Director of Public Prosecutions v Shahwan, Tim

[2012] VCC 1762

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

AT GEELONG

CRIMINAL DIVISION

Case No. CR-12-01207

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIM SHAHWAN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Geelong
DATE OF HEARING:	5 November 2012
DATE OF SENTENCE:	5 November 2012
CASE MAY BE CITED AS:	DPP v Shahwan, Tim
MEDIUM NEUTRAL CITATION:	[2012] VCC 1762

REASONS FOR SENTENCE
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Catchwords:            Criminal law – Sentencing – Armed Robbery in company – ‘soft target’ – Pharmacy – Co-accused armed with a knife – immediate custodial sentence imposed    

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Sampson	Craig Hyland solicitor for Public Prosecutions
For the Accused	Ms P. Chaya	Victoria Legal Aid

HER HONOUR:

1       Tim Shahwan, you have pleaded guilty before me to one charge of armed robbery.  Armed robbery is a very serious offence and that is reflected in the maximum penalty that Parliament prescribes namely, 25 years' imprisonment.

2       I shall proceed to sentence you on the basis of the opening that was read into the transcript by the Crown Prosecutor, Ms Sampson.  Briefly, it concerns you participating in an armed robbery of a pharmacy known as ‘Our Corner Pharmacy’ that is situated at 145 High Street, Belmont on Friday, 2 March 2012 at around 8.45 pm.

3       At the time you were with a male co-offender, you were both wearing hooded tops and had your faces covered with white cloth masks.  Your co-offender was armed with a large knife.  It was estimated to be 20 to 30 centimetres in length. 

4       At the time pharmacy assistants Dion Wierzbowski and Emma Martin were present as was the pharmacist Lisa O'Byrne.  Two customers were also present.

5       After you entered the store one of you shouted, "This is a hold up.  You're being held up.  Stay calm."  You and your co-accused moved between the counter and the dispensary.  Emma Martin, the pharmacist's assistant was ordered to lay on the floor.  Your co-accused demanded that the safe be opened and at that time was waving his knife around. 

6       Ms O'Byrne the pharmacist was followed to the rear store room where the safe was located and eventually she opened the safe on her fourth attempt.  The co-offender demanded all of the Oxycontin medication that was contained in the safe to be placed into a bag.  She complied with that request and approximately 20 to 30 boxes of Oxycontin were stolen.

7       Whilst that was occurring you walked Dion Wierzbowski to the front cash register and demanded she put cash into the plastic bag that you were holding and approximately $600 was placed into the bag.

8       You asked if there was another till and she told you that it was in the safe.  You then walked to the rear of the store and waited for your co-offender and as you were doing this another customer collapsed on the floor of the pharmacy.   After a short time you and the co-offender fled the store. 

9       Approximately $600 and medication to the value of $986 was stolen. 

10      Staff members were said to be frightened during the incident and the incident was captured on CCTV but none of the offenders were identified from that CCTV footage.

11      You were arrested at your home on 1 June 2012 and participated in a taped record of interview with police.  I will refer to that shortly.  You were fully co-operative with the police and made full admissions.

12      The circumstances of the offending show that  you were brazen and focused upon what you wanted upon entering the pharmacy with your co-accused.  You entered the store just on closing and held up the pharmacist and the two staff in the presence of customers.  Your co-accused was armed.

13      The robbery with the ever present threat of violence would have been terrifying for all involved.  Having regard to the methodical manner in which you both went about your tasks once in the pharmacy, I consider that the armed robbery was planned and well executed.

14      Your and your co-offender were disguised using masks and wearing black hoodies and gloves.  Your identity could not be readily ascertained.  Your behaviour in the pharmacy displayed that there were clear roles and you stole both cash and drugs.  I consider this to be a serious example of the crime of armed robbery and I consider the roles played by you and your co-accused to be equal.

15      I have read the Victim Impact Statements that have been filed with the court.  Lisa O'Byrne the pharmacist who was on duty says that she still experiences flashbacks to the night.  Particularly when  you first rushed into the pharmacy in your frightening masks and hoodies holding a knife up for all to see.

16      She is still haunted by her memories and has occasional nightmares and fears that she will be the subject of an armed robbery again.  She has been able to return to work but she feels very anxious at work and has not been able to return to working evening shifts nor has she been able to feel comfortable working as a sole pharmacist and only works shifts where there is a second pharmacist on duty.  This has caused upheaval to her life and great uncertainty for her.  She also does not feel comfortable or safe entering any shop after dark and generally does not go out after dark as a preference.

17      She feels alarmed and agitated whenever she sees someone entering the pharmacy wearing the clothing, that is hoodies, that were worn by you on that occasion or even if she sees somebody in the street near her with a dark hoodie on.  She also feels alarmed when somebody rushes up to her or near her.  She is very anxious whenever she is alone at home and is hyper vigilant about her safety.

18      Nicole Webber, one of the other pharmacists says during the weeks following the incident she was uncomfortable working nights.  She had to take prescribed sleeping tablets as she could not sleep at night.    She also became extremely stressed and that affected her university studies.  She has been on edge and paranoid in all environments and is unable to be alone at her home especially at night time.  She is now panicking about small things that would ordinarily not upset her and again and again says that whenever she sees somebody in similar clothing to that worn by the robbers she feels anxiety and nausea.

19      Andrea Morris, one of the customers who was in the pharmacy, says that since the robbery she has become very fearful and that has had a negative impact on all aspects of her life.  She has been unable to do many of the day to day things that she used to.  She cannot shop independently and she does not feel safe.  She has also had difficulties in coping with her day to day duties at home.  She is a mother and carer of three children one of whom has special needs and also her husband who has chronic mental health issues.  She has become extremely nervous and scared at home and is very fearful.  She is very agitated whenever she has to go out because of the fact that she is leaving the safety net of her home. 

20      Overall the situation following the armed robbery has meant that she is very irritable and it has had a big impact, a negative impact on her life.  She has been placed on sleeping medication because of her difficulty sleeping because of intrusive thoughts, images and nightmares and she is very fearful at night.  As a result of all of the above she is attending a psychologist for counselling and that is ongoing. 

21      Andrea Key, a student who was one of the customers present in the pharmacy, says that it has had a bad effect on her well-being and enjoyment of life.  She is currently being helped with psychological counselling and she says that her being involved in this robbery has affected her VCE and her social life. 

22      Finally, Dion Wierzbowski the pharmacist's assistant, says that she fears working at night and also the emotional trauma resulting from the incident has had a massive impact on her.  She was unable to sleep for some weeks and was not comfortable being by herself.  She had constant nightmares and was not able to trust anyone she did not know.  She describes the incident as having had a massive impact on her life even though she does not think about it as often as she used to she is still reminded of the incident every time she works nights and that is three to four times per week and every time she sees somebody in a black hoodie.

23      The effect on each of those victims is dramatically described in their Victim Impact Statements and such effects are on-going. 

24      I note that you admitted your criminal record and you have convictions spanning the period from the 12th April 2004 to the 12th December 2011. 

25      Over the years the courts have extended you, Mr Shahwan, considerable leniency in the sentences that have been imposed.  There have been 14 court appearances and numerous convictions are recorded for dishonesty type offending as well as driving related offending.

26      I note that you do not have any prior convictions for armed robbery however there is a conviction for intentionally causing injury and threat to inflict serious injury for which you received a suspended gaol term in 2009.  You were subsequently breached and underwent that prison term.

27      You are now aged 37 and your criminal record does exhibit a consistent pattern of re-offending and of failure in the past towards rehabilitation.  I note that those features are set out against a background of long term drug use which gives some explanation for but does not excuse your ongoing offending.

28      The context to this particular offending was that you had been recently released from prison, had no employment prospects and had relapsed into using heroin and amphetamines in the setting of being depressed and anxious about being rejected for work due to your criminal record.

29      In your favour I have taken into account the fact that you pleaded guilty to the charge at the earliest opportunity at committal mention.  When the police arrested you, you were frank with the arresting officers and made full admissions to your involvement in this armed robbery.  You told police where to locate the top, that is the black hoodie that linked you to the offending.

30      When formally interviewed you readily spoke of your involvement in the offending and expressed appropriate concern for each of the victims.  You acknowledged the wrongfulness of your actions and you were genuine in your expression of remorse.

31      You have declined to identify your co-accused whom you say is a person associated with others you met in gaol.  You are fearful of reprisals and your own personal safety.  Your co-accused is still at large and the police have not arrested any suspects.   Your plea must be adequately reflected in the sentence to be imposed.  It is indicative of remorse, it has saved the community expense and court time and it has relieved potential witnesses of the burden of giving evidence.  You have thereby facilitated justice.

32      In sentencing you the seriousness of the offence is of importance.  It does call for appropriate punishment and condemnation.  General deterrence is of considerable importance.  So too in the light of your past criminal history is specific deterrence even allowing that you have made steps towards your path to rehabilitation.

33      Your counsel agreed with the Crown's submission that imprisonment was the only appropriate sentencing option in all the circumstances.  She emphasised all the mitigating factors together with your expressed commitment to remain drug free.  You have not used since being in prison these past five months.  She submitted that your post-offence conduct is reflective of good rehabilitation prospects.

34      I have had regard to the report of Dr Aaron Cunningham who assessed you at Melbourne metropolitan remand centre on 30th August 2012.  He sets out your history and background in comprehensive detail.  Briefly, he notes you are 37.  You were born in Victoria.  Your parents are of Egyptian origin and they raised you in Geelong with an older brother and a younger brother. 

35      When you were aged 19 your father sadly passed away after a liver transplant and reportedly since his death it has been difficult for you and it was around this time you began heavily indulging in drugs.

36      You had a relationship with a woman - Kelly - from the age of 15 to 21 and from that relationship your son, Sam, was born.  He is now aged 16.  Your relationship with Kelly has been acrimonious over the years and there has been real difficulties in you having any relationship with your son and, in fact, you do not have any contact with him and it is stated that he lives with his maternal grandmother.

37      From 2006 to 2009 you lived in Western Australia where you worked in commercial carpentry.  When you relocated to Melbourne in an attempt to develop a relationship with your son Sam you were arrested and dealt with for past offending involving your former partner.

38      Prior to your recent remand you were living with your mother supporting her and she remains supportive of you. 

39      I note that you left school having completed Year 12.  You did two years of an Associate Diploma at Gordon Institute of TAFE  in Electrical Engineering that you did not complete due to your inability to continue studies because of the difficulties you had in coping with your father's death. 

40      You began an apprenticeship as a carpenter and then started work as a plasterer.  You have had an intermittent history of work in the past and I have a letter from the company Blue Media which states that upon your eventual release you are offered full time employment as a sign installer.  Your brother Al is in a business partnership with the Director, Myles Quinn.  It is stated that in the past you have worked for their company on a casual basis.  Mr Quinn in his letter to the court says that he has no doubt that you will thrive if you are employed full time and that that will greatly assist your rehabilitation and provide you with an opportunity to start a new chapter in your life.

41      I note your past history of use and abuse of cannabis, amphetamines and heroin.  There has been a history of heavy intermittent use over the years and a history of ongoing relapse.  You had relapsed at a time shortly prior to the commission of this offence after associating with an individual you had met in gaol. 

42      Dr Cunningham says that you have, in his view, a diagnosis of substance use disorder.  He says following testing that you have cognitive function in the low average range and a medium - high risk needs range of re-offending. 

43      He says that you do have insight into your need to refrain from taking drugs and he has reported motivation to develop a relationship with your son Sam.  He recommends that you would benefit from engagement with inpatient drug and alcohol rehabilitation.

44      Overall, having regard to his expressed opinion and the fact that you have not been using whilst you have been in custody I consider there is some prospect for rehabilitation albeit I am rather cautious about expressing any overall prospect.  On the one hand you have not engaged in drug taking whilst in gaol and  you have also expressed an appropriate attitude towards the offending on this occasion.  You have expressed a desire to remain drug free and also a commitment to living a law abiding lifestyle plus you have the prospects of full time employment.  However, your prior history reflects ongoing criminality.

45      There is some prospect for rehabilitation although I am cautiously optimistic.  It is very much dependent on you, Mr Shahwan, actually doing what you say in the future.

46      Having regard to the serious nature of your offending I consider that a term of imprisonment is warranted for this offence. 

47      In sentencing you I must impose punishment that is just in all the circumstances and on behalf of the community I must condemn what you did on this occasion as being wrong.

48      I will now proceed to sentence you.  Please stand Mr Shahwan.

49      In respect to the one charge of armed robbery you will be sentenced to imprisonment for four years.  I fix a non-parole period of two years and six months and that is longer than usual in order to enable your supported release into the community. 

50 In relation to the s.6AAA Sentencing Act 1991 declaration, but for your plea of guilty I would have imposed a term of imprisonment of six years' imprisonment to serve four years' imprisonment and make a declaration of pre-sentence detention.

51      I declare that you have already served 157 days in respect to the sentence and I direct that that be entered into the record of the court.  I note that does not include today's date. 

52 I make the order pursuant to s.464ZF(2) Crimes Act 1958 on the basis that such order was not opposed and the seriousness of the circumstances of the offending warrant the order plus your prior convictions are such as to warrant the making of the order. I consider the order is in the public interest.

53      Mr Shahwan, what that means is that you will be asked by the authorities to provide them with a forensic sample.  You will be given a cotton bud and you scrape it on the inside of your mouth and if you do that then you will comply with the order.  I have to inform you that if you do not consent to the taking of that mouth scraping under supervision - well, then a sample can be taken using reasonable force.  Do you understand that?

54      PRISONER:  Yes, your Honour.

55      HER HONOUR:  I am sure that you will comply.  I will sign that order and I think that covers everything.   Those orders are signed.  I will sign the gaol order. 

56      That completes Mr Shahwan's matter. He may be taken back into custody.  Thank you.

57      (Prisoner removed.)

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