Director of Public Prosecutions v Shamoon
[2022] VCC 916
•6 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01820
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MILAD SHAMOON |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 January, 7 April & 31 May 2022 |
DATE OF SENTENCE: | 6 June 2022 |
CASE MAY BE CITED AS: | DPP v Shamoon |
MEDIUM NEUTRAL CITATION: | [2022] VCC 916 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Theft - burglary - obtaining property by deception - obtaining financial advantage by deception - attempting to obtain property by deception - possess drug of dependence - fail to stop on police request - resisting police - unlicensed driving - criminal enterprise offender
Legislation Cited:
Cases Cited:
Sentence:4 years and 10 months' imprisonment, 2 years and 8 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Mr Z. Petric | Office of Public Prosecutions |
For the Accused | Mr D. De Witt with | Ann Valos Criminal Law |
HIS HONOUR:
1Milad Shamoon, you have pleaded guilty to each offence on an indictment charging you with 43 offences. They include 21 offences of theft, for which the maximum sentence is imprisonment for 10 years. However, I note that three of those offences are continuing criminal enterprise offences, namely, Charges 18, 25 and 32, for which you are to be sentenced as a criminal enterprise offender. Those three offences, therefore, each carry a maximum term of imprisonment of 20 years.
2You have also pleaded guilty to 13 offences of burglary, for which the maximum sentence is imprisonment for 10 years; three offences of attempted burglary, for which the maximum sentence is imprisonment for five years; one offence of obtaining property by deception and one offence of obtaining financial advantage by deception, for which the maximum sentences are imprisonment for 10 years; one offence of attempting to obtain property by deception, for which the maximum sentence is imprisonment for five years; one offence of possession of a drug of dependence, for which the maximum sentence is imprisonment for one year; one offence of dangerous driving whilst being pursued by police, for which the maximum sentence is imprisonment for three years; and one offence of handling stolen goods, for which the maximum penalty is imprisonment for 15 years.
3In addition, you have pleaded guilty to three related summary offences, namely, Charge 17 of failing to stop on police request, for which the maximum penalty is imprisonment for two years or a fine of 120 penalty units or both; Charge 46 of resisting police and Charge 73 of unlicensed driving, for each of which the maximum penalty is imprisonment for six months or a fine of 60 penalty units.
4I note that, in addition to the maximum penalties to which I have referred for each of the three charges of theft of a motor vehicle, namely, Charges 1, 19 and 29, for the offence of dangerous driving whilst being pursued by police, Charge 42, and for related summary offence no.17 of failing to stop on police request, I am required to disqualify you from holding or obtaining a driver's licence for such period as I specify, which, in relation to the latter charges, must be not less than 12 months.
5You have also admitted a prior criminal record going back to 2012 which sets out numerous convictions of relevance to my sentencing discretion, including convictions for offences of dishonesty and resisting police imposed on 10 September 2019 - during the period of the offending the subject of this indictment.
6The prosecution tendered and read to the Court a detailed document entitled Updated Prosecution Opening on the Plea, dated 10 September 2021, together with an attached schedule of stolen items recovered by police, which is Exhibit A on the plea hearing. Rather than repeat the contents, I incorporate that document by reference into these reasons for sentence. It may be summarised briefly as follows.
7From late August 2019 until your arrest in the early hours of 3 October 2019, at the conclusion of your dangerous driving whilst pursued by police - the subject of Charge 42 on the indictment - you engaged in a sustained crime spree involving 13 burglaries, three attempted burglaries of dwelling houses, and theft of personal property valued at more than $1m. In addition, you stole three motor vehicles, which you used in the commission of the burglaries and other offences.
8All but four of the burglaries and one of the attempted burglaries were committed in company with a co‑offender named Richard Shabani, who was sentenced by His Honour Judge Higham in this Court on 26 May 2022 on an indictment charging a total of 42 offences to a total effective sentence of four years and six months' imprisonment with a non‑parole period of two years and nine months.
9In all of the burglaries and attempted burglaries, it was your role to enter the premises and remove the items of value, the subject of the theft charges. Generally, you performed those tasks alone, except where you required the assistance of your co‑offender. The burglary and theft the subject of Charges 17 and 18 on the indictment is one such example, where you were assisted by Shabani to remove a heavy safe from the property using a trolley. The total value of the property stolen and damage caused by you whilst committing those two offences alone amounts to more than $618,000.
10Other offences of theft involved stealing vehicle registration plates, which you later affixed to the stolen vehicles used in the burglaries, and theft of petrol for use in those same stolen vehicles. You also committed offences of obtaining or attempting to obtain property or financial advantage by deception, using credit cards stolen during the burglary offences.
11The schedule of stolen goods recovered by police which forms the subject matter of Charge 43 runs to 374 separate items. Given your prior criminal history, the commission of thefts of motor vehicles, unlicensed driving, dangerous driving while pursued by police, failing to stop when required by police and resisting police must be regarded as serious offences of their kind.
12Victim impact statements provided by three of the victims of the burglary and theft offences are respectively Exhibits C, D and E on the plea. Each of them describes the immediate and ongoing fear and mental anguish engendered by what they saw as an assault upon their home, their privacy and their sense of security. Their homes were trashed, their personal property treated with contempt and irreplaceable items, having sentimental value far exceeding their intrinsic value, have been lost forever.
13It is doubtful whether they or any of the occupant victims of your crimes will ever feel safe in their homes again. The stories told in the victim impact statements bring to life graphically the seriousness of the crime of burglary of a home and strongly reinforce the deplorable, callous and selfish sense of entitlement apparently motivating those who engage in such crimes.
14Turning to matters personal to you: I have been provided by your counsel with written submissions dated 23 January 2022, Exhibit 1; a psychiatric report by Dr Best dated 11 August 2017, Exhibit 2; psychological reports of Dr Anderson dated 14 December 2020, 10 May 2021, 23 January 2022 and 30 March 2022, Exhibits 3, 4, 5 and 8 respectively. I have been provided with a certificate of achievement showing that you completed the ‘Ice and Me’ course during your imprisonment on remand, which is Exhibit 6. I have also received from your counsel further written submissions dated 6 April 2022, which is Exhibit 7 and a report from the National Disability Insurance Agency, dated 2 July 2021, which is Exhibit 9.
15That material has been extremely helpful in my task of determining appropriate sentences. I have also been provided with a letter dated 24 January 2022 from Ms Jenny Hoskin, Assistant Commissioner of the Sentence Management Division of the Department of Justice to the office of the Director of Public Prosecutions informing of aspects of your management whilst in custody on remand. You have now been in custody on remand for 977 days, not including today.
16You were born in Iraq in December 1990 and are now 31 years of age. You were aged 28 at the time of your offending. You fled Iraq with your parents and four older siblings when you were five years of age. You and your family went first to New Zealand and then when you were aged 10 you moved to Australia and settled in Melbourne. It seems that you have been fortunate to have come from a close family and maintain good relationships with your parents and siblings. Sadly, your father died of cancer in 2019. You have a close relationship with your mother and plan to return to live with her and an older brother who suffers from schizophrenia when you are free to do so. I am told that none of your other family members has a criminal record.
17You struggled at school and left during Year 11 after a period of incarceration at a youth justice centre. You then commenced an apprenticeship as a cabinet maker which you continued for six years until you took up a managerial job.
18You lost that job after one year due to increased misuse of drugs and deteriorating mental health following the death of your employer who you had regarded as a father figure.
19Your abuse of illicit drugs began when you were 16 years of age, escalating from cannabis use to methylamphetamine by the time you were 18 years of age. The psychiatric and psychological reports tendered by your counsel show that you have been diagnosed as suffering from schizophrenia, for which you have been medicated whilst in custody. You have also been assessed as having a mild intellectual disability.
20The reports of Dr Anderson support the contention that you were experiencing an increase in psychotic symptoms during the period of your offending. I am informed that the offending occurred during a period when you failed to remain compliant with your prescribed anti-psychotic medication and that as your mental health worsened your gambling and drug use increased. You were then living away from home, out of contact with your family, prompting your concerned mother to report you as a missing person. I am satisfied that Verdins principles 1 to 4 apply to reduce your moral culpability for your offending and the significance of general and specific deterrence in the sentencing process.
21You have been approved for a National Disability Insurance Plan for which you became eligible on 2 July 2021. Presently the funding on offer is insufficient for your needs once you are released into the community, but it is anticipated that adequate supports will be arranged to coincide with your release from custody.
22I accept that this support will increase your prospects of rehabilitation, although much will depend in that regard on your willingness and capacity to comply with your prescribed medication regime and to remain free of illicit drugs. You deserve considerable credit for your early indication of pleas of guilty, reflecting your willingness to accept criminal responsibility and to facilitate the course of justice. You are entitled to a significant discount of sentence during these COVID times. You have also been in custody throughout the pandemic.
23Despite the fact you made general admissions to police after your arrest I am not persuaded by the evidence before me that you have displayed genuine remorse for your crimes. Your offending was sustained and serious. You teamed up with your co-offender Shabani, who generally acted as the driver of the getaway car. You showed a callous disregard for the owners and occupiers of the homes you burgled and treated their homes and their personal property with utter contempt. The offending required planning and organisation. Cars were stolen to facilitate the burglaries. Their ownership was disguised with stolen registration plates. Necessary tools and other equipment was taken to the premises selected for burglary to enable you to break in and remove selected items of property, including a 140‑kilogram safe from a house in Toorak, the subject of Charges 17 and 18.
24The attempted burglaries were, it seems, only abandoned as a result of discovering the unexpected presence of the lawful occupant of those premises.
25The quantity and value of the property stolen was substantial. By virtue of your pleas of guilty to Charges 18, 25 and 32, you are to be sentenced for those offences as a continuing criminal enterprise offender. Each of those three offences therefore carries a maximum term of imprisonment of 20 years.
26I am satisfied beyond reasonable doubt that you were well aware that what you were engaged in was a deliberate and serious crime spree and that you had many opportunities to consider and reconsider your criminal conduct. Had it not been for the substantial factors in mitigation of penalty to which I have referred, the sentences that I would have imposed would have been significantly higher.
27Other important factors in determining appropriate disposition for your offending are the principles of totality and parity with the sentences imposed by His Honour Judge Higham upon your co-offender Richard Shabani on 26 May 2022. I note that there was a considerable but not complete overlap in your respective offending. I have been supplied with His Honour's unrevised reasons to assist me in these respects. In sentencing Shabani His Honour expressed the view that you and Shabani 'were an effective team and bear equal criminal responsibility'.
28Verdins principles did not apply to reduce Shabani's sentence as they do in your case. However, your criminal record is considerably worse than that of Shabani. You committed four more burglaries and one more attempted burglary than Shabani. Further, His Honour found and placed 'Delphic' emphasis upon the 'full and frank' admissions and 'assistance' to the police in their investigation given by Shabani, which indicated 'genuine remorse' and merited 'significant mitigation' of Shabani's sentence.
29Given factors personal to you, in particular the considerable assistance you should now receive through the NDIS in dealing with your mental deficits, I have acceded to the submission of your counsel to impose a relatively short non‑parole period and to assist in your rehabilitation. Doing the best I can to achieve parity as to individual sentences, and in totality between you and Shabani, I proceed to pass sentence upon you.
30Milad Shamoon, on each of the 43 charges on the indictment and on each of the three related summary offences you are convicted and sentenced as follows:
- on Charge 1 of theft of a motor vehicle, you are imprisoned for 10 months and disqualified from holding or obtaining a driver's license for two years from today;
- on Charge 2 of burglary, you are sentenced to 18 months' imprisonment;
- on Charge 3 of theft, you are sentenced to two months’ imprisonment;
- on Charge 4 of theft of registration plates, you are sentenced to imprisonment for two months;
- on Charge 5 of obtaining a financial advantage by deception, you are sentenced to imprisonment for two months;
- on Charge 6 of theft of registration plates, you are sentenced to imprisonment for six months;
- on Charge 7 of attempted burglary, you are sentenced to imprisonment for 12 months;
- on Charge 8 of burglary, you are sentenced to imprisonment for 18 months;
- on Charge 9 of theft, you are sentenced to imprisonment for 17 months;
- on Charge 10 of theft of registration plates you are sentenced to imprisonment for six months;
- on Charge 11 of theft of petrol, you are sentenced to imprisonment for one month;
- on Charge 12 of attempted burglary, you are sentenced to imprisonment for 12 months;
- on Charge 13 of burglary, you are sentenced to imprisonment for 17 months;
- on Charge 14 of theft, you are sentenced to imprisonment for 17 months;
- on Charge 15 of burglary, you are sentenced to imprisonment for 14 months;
- on Charge 16 of theft, you are sentenced to imprisonment for five months;
- on Charge 17 of burglary, you are sentenced to 20 months' imprisonment
- on Charge 18 of theft you are sentenced to imprisonment for 30 months, and I note that that sentence for theft is for a continuing criminal enterprise offence;
- on Charge 19 of theft of and from a motor vehicle, you are sentenced to imprisonment for 15 months and disqualified from holding or obtaining a driver's license for two years from today;
- on Charge 20 of burglary, you are sentenced to imprisonment for 20 months;
- on Charge 21 of theft, you are sentenced to imprisonment for 17 months;
- on Charge 22 of burglary, you are sentenced to imprisonment for 20 months;
- on Charge 23 of theft, you are sentenced to imprisonment for 20 months;
- on Charge 24 of burglary, you are sentenced to imprisonment for 20 months;
- on Charge 25 of theft, you are sentenced to imprisonment for 22 months, and I note that that is one of the three continuing criminal enterprise offences;
- on Charge 26 of attempted burglary, you are sentenced to imprisonment for 12 months;
- on Charge 27 of burglary, you are sentenced to imprisonment for 17 months;
- on Charge 28 of theft, you are sentenced to imprisonment for 20 months;
- on Charge 29 of theft of a motor vehicle, you are sentenced to imprisonment for 15 months and disqualified from holding or obtaining a driver's license for two years from today;
- on Charge 30 of obtaining property by deception, you are sentenced to imprisonment for three months;
- on Charge 31 of burglary, you are sentenced to imprisonment for 21 months;
- on Charge 32 of theft, you are sentenced to imprisonment for 24 months, and that is the third of the three continuing criminal enterprise offences;
- on Charge 33 of attempting to obtain property by deception, you are sentenced to imprisonment for one month;
- on Charge 34 of possessing a drug of dependence, you are sentenced to imprisonment for two months;
- on Charge 35 of burglary, you are sentenced to imprisonment for 18 months;
- on Charge 36 of theft, you are sentenced to imprisonment for 20 months;
- on Charge 37 of theft of petrol, you are sentenced to imprisonment for one month;
- on Charge 38 of burglary, you are sentenced to imprisonment for 18 months;
- on Charge 39 of theft, you are sentenced to imprisonment for 18 months;
- on Charge 40 of burglary, you are sentenced to imprisonment for 20 months;
- on Charge 41 of theft, you are sentenced to imprisonment for 12 months;
- on Charge 42 of dangerous driving whilst pursued by police, you are sentenced to imprisonment for 15 months and disqualified from holding or obtaining a driver's license for three years from today;
- on Charge 43 of handling stolen goods, you are sentenced to imprisonment for six months;
- on Summary Charge 17 of failing to stop upon police request, you are sentenced to six months imprisonment and disqualified from holding or obtaining your driver's license for two years from today, and I note that this is the second time you have been convicted of that offence;
- on Summary Charge 46 of resisting police at the time of your arrest, you are sentenced to imprisonment for two months, and I note that you have two previous convictions for that offence;
- on Summary Charge 73 of unlicensed driving between 30 August 2019 and 3 October 2019, you are sentenced to imprisonment for two months, and I note that you have a bad previous driving record which includes convictions for driving whilst your license was suspended, driving whilst disqualified and dangerous driving.
31The sentence of imprisonment for 30 months on Charge 18 is the base sentence.
32I make orders for cumulation as follows: one month of the sentence on Charge 7, one month of the sentence on Charge 8, one month of the sentence on Charge 12, two months of the sentence on Charge 14, two months of the sentence on Charge 19, two months of the sentence on Charge 23, three months of the sentence on Charge 25, one month of the sentence on Charge 26, two months of the sentence on Charge 28, one month of the sentence on Charge 29, three months of the sentence on Charge 32, two months of the sentence on Charge 36, two months of the sentence on Charge 39, three months of the sentence on related summary offence number 17, one month of the sentence on related summary offence number46 and one month of the sentence on related summary offence number 73 are to be served cumulatively upon one another and upon the sentence of 30 months' imprisonment imposed on Charge 18.
33The total effective sentence is therefore imprisonment for four years and 10 months.
34You will be required to serve a minimum term of two years and eight months before being eligible for parole.
35I declare 977 days pre-sentence detention, not counting today, as the time to be reckoned as served on the sentence I have just imposed.
36Pursuant to s6AAA of the Sentencing Act, but for your pleas of guilty I would have sentenced you to a total effective sentence of seven years and 10 months with a non-parole period of five years and six months.
37Now, there are two forfeiture orders. Have you seen those orders or draft orders, Mr De Witt?
38MR DE WITT: I have, Your Honour. Those have been provided previously. And all ancillary orders are not opposed.
39HIS HONOUR: All right. In that case, I shall make those two orders. Are there any other matters?
40MS MARQUES: Yes, Your Honour. There should be a disposal order, but that may have not made its way to you. I mean, Mr De Witt has seen that as well, but I will refile that.
41HIS HONOUR: Yes. All right.
42MS MARQUES: That is just for clothing and other items at the scene, but I will CC Mr De Witt into that again and send that through.
43HIS HONOUR: And I take it that is one of the orders that you have consented to already, is it, Mr De Witt?
44MR DE WITT: It is, Your Honour.
45HIS HONOUR: Yes. I will make that order when I receive it.
46MS MARQUES: Yes, Your Honour.
47HIS HONOUR: Now, I have obviously tried to be as careful as I can in calculating the head sentence. And, obviously, the non-parole period is easy enough, but in terms of identifying the cumulation correctly, Mr De Witt, perhaps you would take a minute or two just to check that if you have not already done so.
48MR DE WITT: Thank you, Your Honour. If I could just have a moment, I will double-check that.
49HIS HONOUR: Yes. Well, I will sit quietly for a moment or two. Or would you rather I left the Bench for a moment?
50MR DE WITT: No, Your Honour. I am quite content for you to remain on the Bench. I will not be too long.
51HIS HONOUR: All right. Okay.
52MR DE WITT: I have got a calculator to assist me.
53HIS HONOUR: Yes. And also Ms Marques, if you would not mind doing the same thing. I would be grateful.
54MR DE WITT: Your Honour, that number reflects the total effective sentence that you announced earlier, on my calculation.
55HIS HONOUR: Thank you. Mr De Witt, no doubt your client has followed what I said, but I think he is almost eligible for parole now. If not, he will be very shortly. It is very much to be hoped that he will use the advantage of the NDIS plan to assist him in his rehabilitation and that he can fulfil his express wish, which is to settle down at his mother's home and assist her and his older brother who is also suffering from schizophrenia and settle down to a drug‑free and productive life.
56It is a gamble, in the sense of putting a great deal of store in the ability of that plan to see him through, but it very much will depend, as I have already indicated, on his capacity to remain drug‑free. One hopes that he can build on the period of his incarceration, which has enabled him to stabilise his mental illnesses and also to be drug‑free for a sustained period of time.
57MR DE WITT: Yes, Your Honour.
58HIS HONOUR: Are there any other matters either of you want to raise?
59MR DE WITT: Your Honour, I know that you have noted it in the course of announcing your decision, but I just note the requirement in section 6J of the Sentencing Act that it be noted on the record that Mr Shamoon has been convicted of a continuing criminal enterprise offence.
60HIS HONOUR: Yes.
61MR DE WITT: I suspect that that is something that will be done when orders are drafted, but I just wanted to raise it.
62HIS HONOUR: I think it is in train. Certainly, if it is not, it will be. But thank you for that reminder.
63MR DE WITT: Thank you, Your Honour.
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