Director of Public Prosecutions v Saeed

[2020] VCC 1566

.

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-19-02456

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

EBRAHIM SAEED

JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Melbourne
DATE OF HEARING:	30 September 2020
DATE OF SENTENCE:	30 September 2020
CASE MAY BE CITED AS:	DPP v Saeed
MEDIUM NEUTRAL CITATION:	[2022] VCC 1566

REASONS FOR SENTENCE

Catchwords: CRIMINAL LAW: Sentence

APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms E. Maguire	Office of Public Prosecutions
For the Accused	Ms E. Clark	Victoria Legal Aid

HIS HONOUR:

Introduction

1       Ebrahim Saeed, you have pleaded guilty to an indictment containing one charge of attempted theft, which carries a maximum penalty of five years' imprisonment, and one charge of attempted armed robbery, which carries a maximum penalty of 20 years' imprisonment.[1]  You also consented to this court hearing and pleaded guilty to two related summary offences, namely; commit an indictable offence (that is, this attempted armed robbery) whilst on bail and contravene bail condition.  The maximum penalty for each of those summary offences is a fine of 30 penalty units or three months' imprisonment.

[1]        Charges 1 and 2, respectively, on Indictment K12386849.1.

2       The circumstances of your offending are described in the detailed typed prosecution opening.[2]  I note that at the relevant time you were 20 years of age, having been born on 12 August 1999.

Circumstances of the offending

[2]        Exhibit A.

3       At 4.05 pm on 8 September 2019, you attended TJ Mobile Repairs, a kiosk store in the Broadmeadows Shopping Centre to get your iPhone XR mobile phone repaired.  You left it with a note of the phone number 0421 358 746 with the store technician, Mr Nabeel Altaf, after he had advised you that the repairs could be undertaken overnight for a cost of $310.

4       In accordance with that arrangement, you re-attended the store to collect your phone on the following morning, at 11.13 am.  You told Mr Altaf that you wanted to buy a phone cover and test your phone before paying.  When you repeatedly asked him to hand the phone over, he refused to do so until you paid for the repairs.  He did, however, offer to hold the phone for you so that you could use your finger to open it.  You then attempted to snatch the mobile phone from him, but he was able to keep hold of it using both hands.  That conduct on your part forms the basis for the offence of attempted theft alleged in Charge 1 on the indictment.

5       Mr Altaf responded to that attempt by stepping back and contacting the shopping centre's security.  When two security guards attended a short time later, you told them you had no money with you to pay for the repairs and asked if you could use your mobile phone to call someone.  Mr Altaf agreed, on condition that one of the security guards held the phone.  You then called a number of people, one of whom agreed to attend the store in half an hour.  At around this time, a different store technician, Mr Saad Akram, arrived for work.

6       After you completed your phone calls, the security guard handed the mobile phone back to Mr Altaf and left the area, as did you.  When you re-attended at 1.28 pm, you told Mr Altaf that you wanted your mobile phone back so that you could make a phone call.  Again, he refused to return it until you paid for the repairs.  He did, however, offer you the use of a landline phone.

7       At this point, you pulled up the sleeve of your jumper on your right arm and showed Mr Altaf the tip of a knife.  You said, 'Here, look, I have a knife, I could do anything, don't do anything loud, don't speak, just give me my phone.'  As Mr Altaf told you that he had given the mobile phone to security, he noticed drops of blood dripping from your right arm onto the counter.  As Mr Akram walked towards Mr Altaf, he heard you say, 'See this and see my face'.  Mr Akram then also noticed the knife up your sleeve and blood dripping onto the counter.  This conduct on your part forms the factual basis for the offence of attempted armed robbery alleged in Charge 2 on the indictment.

8       When Mr Akram contacted security, you ran from the area.  On re-attending, the security guards advised Mr Altaf and Mr Akram to contact the police, which they did.  The police who attended established a crime scene, seized the mobile phone and relevant CCTV footage, and took a swab of the blood located on the counter.

9       I note that at the time of this offending, Mr Saeed was already on bail for two different sets of charges, namely:

·     A charge of shop theft for which he was required to appear at Melbourne Magistrates' Court on 4 November 2019; and

·     Charges of assault and resist police and wilful damage, for which he was required to appear at Broadmeadows Magistrates' Court on 16 December 2019.

10      This provides the context and basis for related Summary Charge 2, committing an indictable offence whilst on bail.  As is clear from the charge itself, the indictable offence referred to is the attempted armed robbery alleged in Charge 1 on this indictment.  The fact that Mr Saeed was on two sets of bail at the time, not one, makes the offence more serious.

11      Police checks on the phone number that he had provided to Mr Altaf confirmed that it belonged to Mr Saeed and a viewing of the relevant CCTV footage confirmed his involvement in the offending.

12      The police who executed a search warrant at Mr Saeed’s address at approximately 3.30 pm on 11 September 2019, located clothing and a backpack that matched those worn by him at the relevant times and a box for an iPhone XR that contained identifying numbers which matched the mobile phone police had seized from TJ Mobile Repairs.  Further investigations revealed that the mobile phone was registered under his mother's name.

Arrest and interview

13      After the search, Mr Saeed was arrested and formally interviewed back at the Broadmeadows Police Station.  In that interview, he confirmed the contact and dealings that he had with Mr Atlaf, but claimed not to recall trying to snatch the phone from him.  In relation to the second incident, he indicated that when Mr Atlaf would not return the mobile phone, he showed him the knife he had up his sleeve to 'scare him' and then said, in effect, 'We can do this the easy way or the hard way.'  He denied having said, 'Here, look, I have a knife, I could do anything, don't do anything loud, don't speak, just give me my phone'.  He told the police that he had not put the knife in his bag before going to the shops, that it was already in there.  He described it as a normal kitchen knife from his home.  When asked why he had it with him at all, he replied, 'I dunno, to be honest… All my actions that day were not me, whatever happened that day.'

14      Mr Saeed then explained that by indicating that he had taken Xanax that morning before attending at TJ Mobile Repairs.  He went on to say that when he was on Xanax, 'There's no such thing as reasonable, unreasonable, you just do it - you just do things… there's no thinking about things… that's the issue... it can't be explained by logic, because when you're under the influence of that drug it just makes you do things… without logic.'

15      He also acknowledged that his actions would have made Mr Altaf feel afraid, and that his behaviour was reckless and stupid.  In relation to Mr Altaf, he said that he 'looked pretty shook' and 'frozen up' when he saw the knife.

16      Mr Saeed was charged and remanded in custody on that same day,11 September 2019.  He appeared at the Melbourne Magistrates' Court on the following day for a filing hearing at which time he was granted and released on bail with conditions, one of which was to report daily to Broadmeadows Police Station between 6 am and 9 pm.

17      As it turned out, he failed to so report on three occasions, namely, on the 20, 21 and 22 September 2019, inclusive.  It is that failure on his part which forms the factual basis for related Summary Charge 4, contravene conduct condition of bail.  The relevant conduct condition for the purposes of that charge is the reporting condition.  This is put as a 'rolled-up' charge as it entails three separate failures to report.

Pre-sentence detention

18      The fact that Mr Saeed was arrested on 11 September 2019 and not bailed until the following day means that he has already served one day of pre-sentence detention in relation to this matter.  I am confident that that time, which was spent in the police cells and at the Melbourne Custody Centre, would have already achieved some measure of personal deterrence.

Prior criminal history

19      The criminal record filed with this court reveals that Mr Saeed has a very limited but nonetheless relevant prior criminal history.

20 For one charge of handling stolen goods and another of attempting to obtain property by deception, he was granted a Diversion. However, when he failed to complete the Diversion Plan within the nominated adjournment period, the matter was returned to court on 13 September 2018. At that hearing, the charges were dismissed under s.76 of the Sentencing Act 1991 as he had, by then, complied with the Diversion Plan.

Other offending

21      Whilst not yet found guilty or convicted of them, I note, as candidly conceded through his counsel, that Mr Saeed admits and intends to plead guilty to the following additional offences at a plea hearing that is currently listed at the Melbourne Magistrates' Court on 21 October 2020: one charge of shop theft, one charge of resist police and one charge of criminal damage.  All of those offences occurred in a relatively short period of time and prior to the date on which he committed the offences for which he must now be sentenced.

22      The criminal damage and resist police offences occurred at Mr Saeed’s family home on 5 August 2019.  After arguing with his mother, he damaged the door to his bedroom.  His mother called the police and when they tried to handcuff him, he resisted.

23      The shop theft occurred in company on 2 September 2019 and involved the theft of $320 worth of cigarettes from a milk bar when the attendant was not in the immediate vicinity.

24      The fact that Mr Saeed engaged in this additional offending shows just how turbulent and chaotic his life was in the latter part of 2019.  His current offending and that additional earlier offending all occurred within a period of only six weeks or so.

25      I will take the additional offending into account, but only for the limited purposes of assessing Mr Saeed’s prospects of rehabilitation and the weight that needs to be accorded to specific deterrence.

Personal circumstances

26      I will now briefly refer to your personal circumstances, Mr Saeed.

27      You recently turned 21 years of age and live with your mother and sister.  Your father tragically passed away in around 2004.

28      You have been in a relationship for some years and intend to marry your partner, who runs her own hairdressing salon.  The two of you have had limited face to face contact during the Stage 4 COVID restrictions period.

29      Your mother works in childcare and your sister works in retail and attends university.  Your family are religious, and you pray daily.  Your counsel informed the court that you have re-engaged with your faith since this offending, which has given you more clarity and purpose in your life.

30      After successfully completing your VCE, you commenced but did not complete a Bachelor of Information Technology at La Trobe University.

31      You have been working on a regular basis, most recently as a truck jockey.  However, that work ceased due to the Stage 4 COVID-19 restrictions.

32      Once those restrictions are lifted, you hope to obtain a plumbing apprenticeship, get your licence and purchase a car.  You also have aspirations to marry and move out of home.

33      When your father passed away in 2004, your mother chose not to tell you that he had suicided.  In 2018, a family friend unwittingly informed you of the true cause of your father's death and it had a profound impact on you.  You withdrew from your tertiary studies and started relying heavily on prescription medications.  In short, your life spiralled out of control.

34      However, your arrest and prosecution for the current offending seems to have been a catalyst for change in your life, and for the better.  You are now focused on your fitness and health and, according to your counsel, you have not abused illicit substances or prescription medication, with one recent exception.  You have also quit smoking and drinking alcohol.

35      You have a history of mental health difficulties and engagement with Orygen Youth Health.  You have previously been admitted as an involuntary inpatient to a psychiatric unit in the context of a drug induced psychosis.

36      Your counsel submitted that since the offending and cessation of abuse of illicit substances and your focus on a healthier lifestyle, your mental health has improved.  However, and understandably, you remain anxious about the outcome of this case.

37      You are not currently taking any medication nor are you under the care of a psychologist, as you are now too old to access services through Orygen.

38      You acknowledge that you require ongoing support for your mental health and are willing to engage with a new mental health practitioner for cognitive behavioural therapy.  For good reasons, you are reluctant to take any prescribed medication.

39      You were recently assessed by the psychologist Mr Jeffery Cummins.  I have read and had regard to his report dated 25 June 2020.[3]  Mr Cummins diagnosed you as suffering from a Major Depressive Disorder and considers that your mental health is still fragile and would inevitably deteriorate in custody.  On that basis, your counsel submitted that limb 6 of Verdins is engaged.

[3]        Exhibit 2.

40      You are a citizen of New Zealand and a permanent resident of Australia.  You will be automatically subject to a deportation order if you receive a term of imprisonment of greater than 12 months.  You would then be deported unless the Minister exercises his discretionary power to revoke it.  Defence counsel submitted that the uncertainty raised by the prospect of deportation would make the burden of imprisonment more onerous for you, particularly since you have lived in Australia since childhood and your immediate family, partner and friends also reside here.

41      You were only 20 at the time of the offending.  At age 21 now, you are a youthful offender.  Your counsel submitted that given your age and the very limited nature of your criminal history, that rehabilitation has a considerable role to play in the sentencing exercise.

42      In this context, I note that Mr Cummins concluded that your risk of further violent offending was low, but also noted that your major risk factor is a return to abuse of prescription medications.

43      Your counsel submitted that your prospects of rehabilitation can be properly categorised as very good, having regard to the following:

a. Your limited prior criminal history;

b. Mr Cummins' opinion as to risk of violent reoffending;

c. Your improved lifestyle and cessation of prescription medication dependence;

d. The admissions made to police and your demonstrated remorse;

e. Your work history and future plans;

f. The ongoing support of family and others;

g. Your commitment to your faith and a healthy lifestyle; and

h. Your willingness to engage in mental health treatment and desire to maintain abstinence from substance abuse;

44      Your counsel also submitted that, should a custodial term be imposed, COVID-19 would impact on you in several ways, including:

a. You would be concerned about there being a greater risk of contracting the virus whilst in custody;

b. The lack of face to face visits for a currently undefined period of time;

c. The reduced access to programs, treatment, education, exercise and employment; and

d. The potential for lockdown regimes.

45      To those matters I would add another: the need to undertake a 14 day quarantine isolation period.

46      It was put that such issues would be of particular significance for you, given that you present as a young man with fragile mental health, who would be in a prison setting for the first time.

Defence sentencing submissions

47      At the plea hearing, Ms Clark appropriately conceded that, having regard to the nature of the offending, denunciation and general and specific deterrence were clearly relevant considerations in this sentencing exercise.

48      However, in line with the principle of parsimony and the strength of the plea material available in this case, including your relative youth and limited criminal history, Ms Clark submitted that a stand-alone community correction order was within range and capable of adequately reflecting the necessary punitive and rehabilitative aspects of any sentence.  In that context, reference was made to the well-known case of Boulton v The Queen.[4]

Prosecution sentencing submissions

[4] (2014) 46 VR 308.

49      For their part, the prosecution noted the seriousness of this offending and the need to give weight to such sentencing principles as general deterrence, denunciation and just punishment.  However, they also very fairly acknowledged that given the combination of circumstances in this case, including your youth, positive progress to date and current fragile mental state, that a stand-alone community correction order was within the range of sentencing options available to the court.

Analysis

50      I have been much assisted by the written and oral submissions made by each counsel.

51      I accept all of what Ms Clark has very capably put forward as being the relevant mitigatory considerations upon which her client, which is you, can rely.  In particular, I have had regard to the following matters.

52      The offending appears to have been out of character and rather unsophisticated.  It was inevitable that Mr Saeed would be caught and prosecuted.  The context of the offending is noteworthy.  Mr Saeed had unexpectedly learned, many years after the event and to his great dismay, that his father had in fact suicided.  Mr Saeed's life then spiralled out of control as he sought refuge in drugs and prescription medication.  On the morning of the offending, he was under the influence of Xanax and clearly compromised in his ability to think clearly and rationally about his actions and their consequences.

53      His youth and good prospects of rehabilitation are important sentencing considerations.  Mr Saeed has taken some very positive steps since being arrested and charged.  He has abstained from taking drugs and prescription medication, save for one recent recourse to Xanax, he is maintaining a healthy lifestyle and he has reconnected with his faith.

54      He pleaded guilty at a very early stage and has demonstrated remorse.

55      He is well supported by his family and partner.

56      All of that augers well for the future, providing that he can maintain abstinence from drugs and in particular, prescription medication such as Xanax.

57      Any sentence imposed must properly reflect those considerations and provide some therapeutic assistance in addressing the causal factors of the offending and thereby fostering his already good prospects.

58      However, the sentence must also pay due regard to general deterrence, denunciation and just punishment.  Specific deterrence, while of lesser significance, also needs attention.  The indictable offences were serious.  The attempted armed robbery offence was frightening and very troubling.  It represents a very serious escalation in the type of offending in which Mr Saeed was prepared to engage.  Unsurprisingly, the adverse impact on the victims, and especially on Mr Altaf, was significant.

59      In the end, however, I am prepared to accede to defence counsel's submission.  Providing that it is of a suitable length and includes a significant number of hours of unpaid community work, I consider that a stand-alone community correction order is within the range and an appropriate sentence to impose for the offences of attempted theft and attempted armed robbery.  Through other conditions, the order will also seek to provide supervision and treatment so as to assist and encourage Mr Saeed on his path to long-term rehabilitation.

60      I note that Mr Saeed was interviewed by a community corrections officer this morning and ultimately found suitable for a community correction order.  I have read and had regard to the suitability report prepared by that officer.

61      In all the circumstances, I am minded to deal with the related summary offences in a different manner, albeit in a way that involves the recording of a conviction.

Sentence

62      Accordingly, after having considered, balanced and weighed the various sentencing considerations raised by this case, I have decided to convict Mr Saeed on each charge and sentence him as follows.

63      For Charges 1 and 2 on the indictment, and providing Mr Saeed consents, he will be convicted and placed on a community correction order for a period of two years.  Apart from the mandatory conditions attached to every such order, it will include the following additional conditions for the duration of the order.

64      He will be required to perform 150 hours of unpaid community work;

65      He will be required to be under the supervision of a community corrections officer;

66      He will have to undergo assessment and treatment (including testing) for drug abuse or dependency, as directed;

67      He will have to undergo any mental health assessment and treatment, as directed; and

68      He will have to participate in programs and/or courses that address factors relating to his offending behaviour as directed.

69 I also direct, pursuant to s.48CA(2) of the Sentencing Act 1991, that 50 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

70      Ms Clark, I will now provide you with a copy of the proposed community correction order.  After you check it and assuming it is in order and reflects my intentions as previously stated, would you mind just checking that your client fully understands all of the conditions or the order, the potential risks for him in the event that he were to breach it, and ultimately his consent for being placed on an order with those conditions?

71      MS CLARK:  Yes, Your Honour.  May I approach Mr Saeed, Your Honour?

72      HIS HONOUR:  Yes, certainly.

(Order explained and signed)

73      MS CLARK:  Thank you, your Honour.

74      HIS HONOUR:  Mr Saeed, having had the conditions of the proposed community correction order explained to you, are you prepared to be placed on such an order and to be bound by all of its conditions?

75      OFFENDER:  Yes, Your Honour.

76      HIS HONOUR:  Is that your signature on the order?

77      OFFENDER:  Yes.

78      HIS HONOUR:  Very well.  Let me just explain one thing at this stage, Mr Saeed.  I am not suggesting that this will occur, but you need to understand it.  If you were to breach this community correction order in any way, including by the commission of any other offence while on the order, you could be charged with and sentenced for the additional offence of contravening the community correction order, an offence which carries a maximum penalty of three months' imprisonment.  You could also be sentenced afresh for the current offences of attempted theft and attempted armed robbery.  In such circumstances, you would face the very real prospect of being sent to gaol.  Do you understand that?

79      OFFENDER:  Yes, your Honour.

80      HIS HONOUR:  Very well.  I have now signed that order and it is now in effect.

81 In respect of each of the two related summary offences, Mr Saeed, you will be convicted and discharged pursuant to s.73 of the Sentencing Act 1991.

Ancillary orders

82      I note that Mr Saeed has consented to the making of a compensation order in the sum of $310 in favour of TJ Mobile Repairs.

83 I am prepared to exercise my discretion in favour of granting the prosecution's application for such an order. Accordingly, and pursuant to s.86 of the Sentencing Act 1991, I make a compensation order in those terms.

84      Mr Saeed, you may now leave the dock and take a seat behind your counsel.  Please do not leave this court until you are given a copy of the signed community correction order.  Do you understand?

85      OFFENDER:  Yes, your Honour

Other matters

86      Counsel, is there anything that either of you wish to say at this stage in respect to the sentence or sentencing reasons?

87      MS CLARK:  No, your Honour.

88      MS MAGUIRE:  Your Honour, just a declaration under s.6AAA.

89      HIS HONOUR:  I do not believe I am required to do so under the Act, Ms Maguire.

90      MS MAGUIRE:  I believe if it is a community correction order for a period of two years or more, then a 6AAA declaration is required.  It is under sub-s.1(i)(b), Your Honour.

91      HIS HONOUR:  Just repeat that sub-section again please?

92      MS MAGUIRE:  Yes, Your Honour, it is sub-s.1, and it is (i)(b). 

93      HIS HONOUR:  Sorry, which section, s.6AAA - - -

94      MS MAGUIRE:  Section 6AAA, sub-s.1 - - -

95      HIS HONOUR:  The connection is not very good.  Six AAA, is it?

96      MS MAGUIRE:  Yes, Your Honour.

97      HIS HONOUR:  Bear with me.  It has been a while since I had a look at this.  So, 6AAA, which sub-section?

98      MS MAGUIRE:  It is sub-s1(i)(b).

99      HIS HONOUR:  Yes.  No, you are correct.  All right just bear with me a moment.  By way of a 6AAA indication, I state that were it not for Mr Saeed's plea of guilty to Charges 1 and 2 on the indictment, he would have been sentenced to an aggregate term of 18 months' imprisonment, with a non-parole period of 10 months. 

100     MR CLANCY:  As Your Honour pleases. 

101     HIS HONOUR:  Nothing further, Ms Maguire?

102     MS MAGUIRE:  No, Your Honour.  As the court pleases. 

103     HIS HONOUR:  Thank you.  Once again, I thank both counsel for their assistance in this matter.  Adjourn the court sine die at this stage, thank you.

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