Director of Public Prosecutions v Sari

[2020] VCC 1803

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02443

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI SARI

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November, 9 November 2020
DATE OF SENTENCE:	12 November 2020
CASE MAY BE CITED AS:	DPP v Sari
MEDIUM NEUTRAL CITATION:	[2020] VCC 1803

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Aggravated home invasion – False imprisonment – Theft – Handling stolen goods – Unlawful assault – Serious examples of offences – Young offender – Relevant criminal history – s10AC of the Sentencing Act 1991 applied – Special reason found – Disrupted childhood – Intellectual disability – Deterioration of mental health in custody – In protection in adult custody – Youth Justice Centre Order not appropriate – Community Correction Order not proportionate – Community protection – Specific deterrence
Legislation Cited: Crimes Act 1958 (Vic); Summary Offences Act 1966 (Vic); Sentencing Act 1991 (Vic); Mental Health Act 2014 (Vic)
Cases Cited: Azzopardi v The Queen (2011) 35 VR 43; R v Verdins [2007] 16 VR 269
Sentence: Total effective sentence of 3 years and 9 months imprisonment with a non-parole period of 1 year and 9 months – s.6AAA declaration – 5 years imprisonment with a non-parole of 2 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	The Office of Public Prosecutions
For the Accused	Ms C. Park (Sentence) Ms C. Lynch (Plea)	Papa Hughes Lawyers

HIS HONOUR:

1Ali Sari, you have pleaded guilty to the following charges;

(i)one charge of aggravated home invasion contrary to s.77B of the Crime Act 1958 (Vic).  The maximum penalty for that offence is 25 years' imprisonment;

(ii)one charge of false imprisonment contrary to common law.  The maximum penalty for that offence is 10 years' imprisonment;

(iii)seven charges of theft contrary to s.74(1) of the Crime Act 1958 (Vic).  The maximum penalty for that offence is 10 years' imprisonment; and

(iv)two charges for handling stolen goods contrary to s.88 of the Crimes Act 1958 (Vic). The maximum penalty for that offence is 15 years' imprisonment.

2You have also pleaded guilty to the related summary offence of unlawful assault contrary to s.23 of the Summary Offences Act 1966 (Vic). The maximum penalty for that offence is three months' imprisonment or a fine of 15 penalty units.

3You pleaded not guilty at committal mention and the matter was listed for trial and an initial directions hearing was conducted in this Court.  The matter was then listed for a final directions hearing on 27 July 2020 which was adjourned for the purpose of resolution and negotiations which resulted in your plea of guilty.

4Yours is, therefore, not an early plea but it has spared the community and witnesses the burden of a complex criminal trial and I accept that it is evidence of some remorse now for your offending.

5You have admitted a criminal history in the Children's Court and this Court on appeal for a range of serious offences including armed robbery, weapons offences, burglary and theft.  You have been the subject of dispositions intended to support your rehabilitation and you have also been detained in a Youth Justice Centre.

6A prosecution opening was tendered in evidence and your offending may be summarised as follows –

7On the evening of 26 May 2019, in company with three co-offenders, you travelled by public transport to Bentleigh and then to premises in Pasadena Crescent, Bentleigh.  Your co-offenders were all aged 17 and were younger than you.

8At approximately 9 pm, all four of you forced your way into the premises by kicking open the rear door.  Inside the premises you confronted three occupants.  You were armed with a knife that you had brought with you.  The occupants were threatened and told to hand over cash and other valuables.  They were all forced into a bedroom while the house was searched.  One of the offenders demanded to know the whereabouts of a safe in the house and the key to it.  A very significant quantity of valuables was stolen and you also stole the family BMW and used it to escape from the premises.  These events concern Charges 1 to 6 on the indictment.

9I have not received a Victim Impact Statement from the occupants of the house but it is clear that your violent crimes must have had a deeply traumatic effect upon them.

10The stolen BMW was then driven at high speed and in a dangerous manner towards the city along the Monash Freeway before it was crashed in Port Melbourne. 

11All four offenders decamped the vehicle and then approached a woman who was getting into her car after finishing work.  Her husband and young daughter were nearby.  She was threatened and forced from her vehicle and all four offenders then got into it and drove away.  This offending concerns Charge 7 on the indictment, the charge of theft of a motor vehicle.

12Your co-offenders pleaded guilty to a charge of aggravated carjacking in relation to these events but in your case it was accepted by the prosecution that you were not concerned in that offence and the basis of the charge against you is that you travelled in the vehicle knowing that it had been stolen.

13I have received in evidence a Victim Impact Statement of the driver of the vehicle and one on behalf of her four year old daughter. I accept that your offending has had a profoundly traumatic effect on both of them and it has significantly disrupted their wellbeing and the enjoyment of their lives.

14The stolen vehicle was then driven to Derrimut, arriving at Ivy Close at approximately midnight.  An aggravated home invasion was then committed at a house in Ivy Close.  It is not the prosecution case that you were involved in that offending but that you handled a quantity of valuables and other goods that were stolen from the house.

15A motor vehicle was also stolen from the premises and you also travelled in that vehicle knowing that it had been stolen.  This offending constitutes Charges 8, 9 and 10 on the indictment.

16That stolen vehicle was in turn then driven to premises in Mernda where a further aggravated home invasion was committed.  It is not the prosecution case that you were involved in that offending but that you travelled in the BMW that was stolen from that property knowing that it had been stolen.  This offending constitutes Charge 11 on the indictment.

17It is clear from this summary that you engaged in offending of the utmost seriousness, with no regard whatsoever for the wellbeing of your victims or their property.  It is the fundamental responsibility of this Court to protect our community from offending of this nature and this sentence must be calculated to deter others from offending in this way.

18In my opinion, specific deterrence is also a relevant consideration in this case.  Your offending was calculated to undermine the values upon which our community is built and it must be denounced by this Court.

19I now turn to your personal circumstances.

20You were born on 18 April 2000 in Sudan and are now aged 20.  You are a young offender for the purposes of the Sentencing Act 1991 (Vic) (‘the Act’) and more generally the sentencing principles in relation to young offenders are engaged in your case.

21I accept that your future rehabilitation is an important consideration in your case, however, as stated by the Court of Appeal in Azzopardi v The Queen [2011] 35 VR 43,

'Where the degree of criminality in the offending requires the sentencing objectives of deterrence, punishment and the protection of the community to be more prominent in sentencing, the weight to be attached to youth and the role of rehabilitation is correspondingly reduced.'

22This is such a case.

23When you were three years of age, your family fled Sudan and lived in Egypt as refugees before moving to Australia in 2006.  Following a period living in New South Wales, the family settled in regional Victoria in 2008.

24I accept that your childhood in the developmental years was seriously disrupted by your parents' separation and the abusive behaviour of your father towards you.  Your relationship with your mother remains, however, a supportive one and you also have a positive relationship with your older brother, who provided a helpful reference to the Court.

25I have received in evidence a comprehensive Neuropsychological Report prepared by Dr Laura Anderson setting out your background, psychological profile and cognitive functioning.  You suffer from a mild intellectual disability which has resulted in the impairment of your cognitive functioning and adaptive behaviour skills.  As you were growing up, this in turn added to the disruption of your education and healthy socialisation.  In turn, you began to abuse alcohol and illegal drugs of dependence in your early adolescence.

26Dr Anderson is also of the opinion that you suffer from post-traumatic stress disorder as a result of your father's response to your behavioural difficulties as a child.  Dr Anderson records that you have been assessed as eligible for National Disability Insurance Scheme services and I have received in evidence a statement setting out the services that will be delivered to you upon your release from prison.

27Of particular significance in your case is the fact that you are currently housed in protection in an adult prison.  It appears that your behaviour in prison is such that you are regarded as a vulnerable prisoner by Corrections authorities and for this reason you have been in 24-hour daily lockdown for approximately six months.  Dr Anderson concludes that this regime has led to the development of psychosis, severe anxiety and depression and she is clearly of the opinion that your imprisonment has led to a serious deterioration in your mental health.  Dr Anderson further concludes that it is imperative that a disability framework be established for you to support your ongoing rehabilitation.

28Your counsel initially submitted that it would be open to me to impose on you a sentence of youth detention but during the course of the plea, she did not press this submission.  In my opinion, for reasons that I detailed in the cases of your co-offenders, such a disposition would not be appropriate in your case and furthermore you are now aged 20 years and seven months.

29Your counsel also submitted that it would be open to me to impose a term of imprisonment in combination with a Community Correction Order.  I also do not accept that such a disposition would be proportionate to the gravity of your offending.

30Furthermore, by operation of s.5(2G) of the Sentencing Act 1991 (Vic), it is not open to me to impose that disposition for a Category 1 offence, namely aggravated home invasion, and it would therefore be necessary for me to impose the Community Correction Order for all the other offences you have pleaded guilty to.

31I do not accept that it would be appropriate for me to do so in all the circumstances of this case.  The charge of false imprisonment is a serious example of that offence and your offending in relation to the other offences are also serious examples of them.

32By operation of s.10AC of the Sentencing Act 1991 (Vic), I am required to impose a term of imprisonment on you and fix a non-parole period under s.11 of the Act of not less than three years in relation to the charge of aggravated home invasion. However, this provision is not engaged if I find that a special reason exists pursuant to s.10A of the Act.

33I am satisfied on the balance of probabilities that you have impaired mental functioning, namely a mild intellectual disability, as set out in the report of Dr Anderson.  This is accepted by the prosecution.

34It is also apparent from the contents of the report of Dr Anderson, that you are suffering from a mental illness within the meaning of the Mental Health Act 2014. Dr Anderson records you as suffering from increased paranoia, disorganised thinking and auditory hallucinations. You are suffering severely depressed mood and experience suicidal ideation.

35In my opinion, it is plain from the contents of Dr Anderson's report that your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden of imprisonment.

36You are a young offender with complex mental health conditions set against the background of trauma suffered by you and your family as refugees.  I accept, as it was submitted on your behalf, that a special reason exists in your case and accordingly I am not obliged to impose a term of imprisonment upon you with a non-parole period of not less than three years in respect of the charge of aggravated home invasion.

37I also accept that principles 5 and 6 set out by the Court of Appeal in R v Verdins [2007] 16 VR 269 are engaged in your case and I have moderated the sentences to be imposed in your case for that reason.

38Dr Anderson observed that you presented with symptoms of a potentially emerging psychosis and it was important to review your condition to determine whether or not you developed an enduring psychotic illness.

39I have also taken into account the fact that you have been in prison during the COVID-19 restrictions and this has further increased the already onerous conditions of incarceration that you have experienced.

40This sentence will be tailored to provide for your release from prison in the near future although I accept that this is a decision for the Adult Parole Board.

41In relation to the charges on the indictment, the sentence of the court is as follows –

42On Charge 1, you are convicted and sentenced to be imprisoned for two years and six months.

43On Charge 2, you are convicted and sentenced to be imprisoned for 18 months.

44On Charge 3, you are convicted and sentenced to be imprisoned for three months.

45On Charge 4, you are convicted and sentenced to be imprisoned for one month.

46On Charge 5, you are convicted and sentenced to be imprisoned for two months.

47On Charge 6, you are convicted and sentenced to be imprisoned for three months.

48On Charge 7, you are convicted and sentenced to be imprisoned for six months.

49On Charge 8, you are convicted and sentenced to be imprisoned for three months.

50On Charge 9, you are convicted and sentenced to be imprisoned for three months.

51On Charge 10, you are convicted and sentenced to be imprisoned for three months.

52On Charge 11, you are convicted and sentenced to be imprisoned for three months.

53In relation to the related summary offence, you are convicted and sentenced to be imprisoned for one month.

54The sentencing imposed on Charge 1 is the base sentence.

55I direct that six months of the sentence on Charge 2, the entirety of the sentence on Charge 7, that is six months, and the entirety of the sentence on Charge 9, that is three months, be served cumulatively on each other and cumulatively on the sentence imposed on Charge 1.

56This makes for a total effective term of imprisonment of three years and nine months.

57I direct that you serve one year and nine months before becoming eligible for release on parole.

58I declare you have served 533 days by way of pre-sentence detention not including today.

59But for your plea of guilty, I would have imposed a total effective term of imprisonment of five years and fixed a non-parole period of two years and six months.

60Are there any ancillary orders required, Mr Pickering?

61MR PICKERING:  Your Honour, there were the forfeiture and disposal orders which were filed ‑ ‑ ‑

62HIS HONOUR:  Yes.

63MR PICKERING:  ‑ ‑ ‑ prior to the last hearing.  I understand they are by consent.

64HIS HONOUR:  Yes.  Thank you.  I will make those orders.  Is there a compensation order as well?

65MR PICKERING:  Yes, that concerns the property that was in the car.

66HIS HONOUR:  Yes.

67MR PICKERING:  It is the same order that is made with regard to the
co-offenders.

68HIS HONOUR:  Yes.  I will make those orders.

69MR PICKERING:  Your Honour.

70HIS HONOUR:  Thank you.  So that means that Mr Sari will be eligible for release on parole in about six weeks I think subject to what other further reductions in sentence are provided by Corrections as a result of the
COVID-19 restrictions that he has been subject to.

71As I say, it is a matter for Corrections, Ms Park, as to when he is released but, as I have said in my sentence, it has been tailored plainly for the purpose of his release in the near future.

72All right?  Thank you.

73MS PARK:  As Your Honour pleases.

74HIS HONOUR:  We will adjourn until Tuesday, 17 November, at half past nine.

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