Director of Public Prosecutions v Taleb

[2022] VCC 2174

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-00216

DIRECTOR OF PUBLIC PROSECUTIONS

v

BADER TALEB

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 August 2022 & 15 September 2022
DATE OF SENTENCE:	7 December 2022
CASE MAY BE CITED AS:	DPP v Taleb
MEDIUM NEUTRAL CITATION:	[2022] VCC 2174

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  One charge of burglary – two charges of armed robbery – related summary offences offender had a hammer at the time of the robbery - exception to imprisonment for category 2 offence argued – exception found not to apply – youthful offender – Bugmy considerations – all sentencing purposes engaged – serious examples of each offence – early plea of guilty

Legislation Cited:                  Sentencing Act 1991

Cases Cited:DPP v Lombardo [2022] VSCA 201; R v Mills [1998] 4 VR 235; Azzopardi v R [2011] 35 VR 43; Bugmy v R (2013) 249 CLR 571; Buckley v R [2022] VSCA 138; Worboyes v R [2021] VSCA 169

Sentence:23 months detention in a Youth Justice Centre and fines on the summary charges

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik	Office of Public Prosecutions
For the Accused	Ms J. Swiney	Giorgianni & Liang Lawyers

HIS HONOUR:

1Bader Taleb, you have pleaded guilty to a charge of burglary and two charges of armed robbery.  You have also pleaded guilty to three summary charges:  committing an indictable offence while on bail; contravening a conduct condition of your bail; and driving while disqualified.

2The circumstances of these offences are set out in the document entitled 'Summary of Prosecution Opening on Plea', which is Exhibit A.  Your counsel admitted the factual contents of that document.

Circumstances

3At about 2.40 am on Thursday 14 March 2020, you and two other males drove to a Fresh Plus store at shop G/24 David Munroe Drive in Roxburgh Park.  All three of you left the vehicle.  You were carrying a hammer and a pillowcase.  You were wearing a black-coloured hooded jumper, with the hood up,
black-coloured pants, black-coloured hat, grey shoes and green gloves.

4You and one of the males went to the main door of the store and attempted to gain entry, but were unsuccessful.  Both of you returned to the vehicle.  One of the other males reversed the vehicle into a window panel of the store, causing it to break.

5The three of you entered the store and attempted to gain access to the cigarette cabinet, causing damage to its roller door.  The three of you stole packets of chips.  You stayed in the store for about 2 minutes.  The three of you returned to the vehicle and drove away.  These circumstances constitute Charge 1, burglary.

6

Three minutes later, the three of you drove to a Caltex Service Station at

260 Somerton Road in Roxburgh Park and parked beside a pump.  You left the vehicle with the hammer and pillowcase while one of the others left carrying a metal bar and a pillowcase.  The remaining person left the vehicle carrying a hammer and backpack.

7The three of you ran to the entrance of the store.  You used the hammer to smash the bottom glass panel of the front door.  You kicked the glass away, enabling you to enter the store.

8Once inside, you ran to the counter and threatened a store attendant, Ammar Cheema, with the hammer.  You smashed the hammer on the counter and later, dropped it.  Your co-offender with the orange pillowcase also went to the counter, held open the pillowcase and demanded Ms Cheema fill it with money from the till.  She complied, opening the till and put about $100 into the pillowcase.  Your co-offender picked up the hammer you dropped.

9You jumped over a barrier on the counter, looked in the till for more money and then opened the cigarette cabinet and passed 25 to 30 packets of cigarettes to the others.  Ms Cheema saw one of the others steal a chocolate bar.

10You then grabbed a drawer full of cigarettes, opened the barrier and ran to leave the store.  As you left, you dropped the pillowcase you were carrying and left it behind.

11The three of you left the store through the broken glass panel, returned to the vehicle and left the premises.  These circumstances constitute Charge 2, armed robbery.

12At the time of you committing the offences in Charges 1 and 2, you were subject to four sets of bail, having been granted bail on 17 December 2019; 17 November 2020; 29 November 2020; and 22 December 2020.  These circumstances constitute the related summary offence of committing an indictable offence while on bail.  It is a rolled-up charge.

13On 17 February 2021, you were arrested and interviewed by police members.  You gave 'no comment' answers and were released.

14At about 8.20 pm on Tuesday 1 June 2021, you drove a motor vehicle to a Caltex service station at 1169 Pearcedale Parade, Broadmeadows.  You parked the vehicle at the rear of the service station and left it carrying a shopping bag and a hammer.  You wore a surgical face mask.  You attempted to enter the store through the door and moved back and forth, trying to activate the automatic door.  You then knocked on the door to gain entry and Kavya Aliminate, who was working behind the counter as the store attendant, opened the door for you.

15Once inside, you rushed to the counter, confronted Ms Aliminate with the hammer and said, 'don't call the police, open the till'. You walked behind the counter and yelled at Ms Aliminate to open the till and smashed the hammer on the counter.  You threatened to hit her with the hammer if she did not open the till.  She froze, and you ripped the cash drawer, containing about $200, from the register.  You took the cash drawer and ran from the store, dropping the shopping bag as you left.  You returned to your vehicle and left.  This constitutes Charge 3, armed robbery.

16At the time of this offending you were subject to two sets of bail, having been granted bail on 29 November 2020 and on 22 December 2020.  This constitutes the related summary offence of committing an indictable offence on bail, which, as I said, is a rolled-up charge.

17A condition of the bail granted on 22 December 2020 required you to reside at 66 Redding Rise, Epping, during the hours of 8.00pm to 6.00am.  This constitutes the related summary charge of contravening a conduct condition of bail.

18On 1 June 2021, you were driving a motor vehicle.  You were intercepted by police.  At the time, you were disqualified from driving, having been disqualified on 19 February 2021 for 12 months.  This constitutes the related summary charge of driving while disqualified.  You were arrested and interviewed.  Again, you answered 'no comment' to questions asked of you.  You were charged with offences and this time remanded in custody.

Criminal history

19In February 2021, you appeared in a criminal court twice and have been found guilty or convicted of 18 offences.  In one appearance, you were placed on probation and, in the other, fined and your legal ability to drive a motor vehicle was stopped for 12 months.

Victim impact statements

20There are no victim impact statements.

Personal

21You are now 20.  You were born in Melbourne and raised in Broadmeadows.  Your parents separated in about 2017.  You are the third eldest of seven children.  You have six sisters, aged from seven to 24.  You are a half-brother to your eldest sister.

22Until you were 12, your childhood was unremarkable.  Then the relationship between your parents deteriorated and they fought a great deal.  This was due to effects of your father's drug abuse becoming evident.

23Your father became very violent towards your mother.  On numerous occasions, she suffered significant injuries due to his violence.  The police intervened.  A family violence intervention order was made.  It prevented all contact between at least, your father and your mother.  However, your father would locate your mother and the violence would resume.  Your family went from residence to residence and from refuge to refuge over a number of years.  At one stage, you stayed at the home of your mother's parents in Shepparton.

24The Department of Health and Human Services were involved briefly due to the violence.  Neither you nor your sisters were removed from the home.

25Your father was imprisoned four times for contravening a family violence intervention order.  Apparently, the current family violence intervention order lasts until 2052.

26

Your secondary education ended during Year 10.  You did well in Years 7

and 8.  In Year 9, you developed a new peer group at school, your parents fought more, and for several months, you lived with your maternal grandparents.  You did not attend school.  When you did, you could not concentrate.  You were smoking cannabis.  You were asked to leave the school.  You went to a TAFE, studying VCAL in plumbing, but did not attend and left without completing the course.

27Recently, you have found work.  Patrick O'Sullivan, a foreman at your employer, speaks very well of your time there.  This job was found by your youth worker.  You took it because you realised the need to do something to change your life.

28In March 2021, you completed a White Card and traffic control course through Edway Training in Sunshine.

29While in Year 8, you started smoking cannabis and continued daily until you were 16.  You stopped using cannabis when you started using other drugs.  You started with Xanax and then cocaine.  You used these drugs until your remand in June 2021.  You have used other drugs and alcohol, but these have not persisted.

30Until your remand in custody, you lived with your mother and three of your sisters.  Your mother's diagnosis of cancer and its treatment has had a significant impact on you psychologically.  Nevertheless, you have taken on extra responsibilities in the home through caring for your younger sisters.

31Ann Smith is a case manager with Youth Justice.  At my request, she prepared a pre-sentence report about you.  In her opinion, your employment has been a significant protective factor for you.  It has given you a regular income.  It has been a stabilising influence on you and given you a purpose within the community.

Psychologist

32Warren Simmons is a consulting psychologist.  At the request of your solicitors, he interviewed you on 18 July 2022.  Much of your personal details come from his report.

33Mr Simmons did not diagnose you as suffering from any mental illness or disorder or, as he put it, there were no significant mental health issues.  He considered your childhood left you vulnerable to substance use.  He noted, lacking a positive role model in your father, you turned to your peer group, whose influence was negative, not positive.

34Mr Simmons considered a continuation of your drug and alcohol counselling and psychological counselling to explore the issues relating to your childhood.

References

Patrick O’Sullivan

35Patrick O'Sullivan is a foreman at 2Bros Concrete Constructions Pty Ltd.  Being aware of the charges you are facing, he wrote a powerful reference about you, having worked with you for about five months.  He said you have an extremely good work ethic, and with proper guidance, he believed you would make a fantastic contribution to the company.

Semra Yuksel

36Semra Yuksel is your mother.  On 1 August 2022, she wrote to the court. 

37First, she has spoken to you many times, and you have told her of your sorrow and regret at the terrible choices you made.  Second, she speaks of the disruption of your life through the actions of your father and the need to move home.  Third, she points to your loss of a role model in your father and the corrosive emotional affect it had on you.  She believes those matters caused you to rebel.  Fourth, she speaks of the effect on you of her diagnosis of cancer, causing you to help around the house, obtain employment, care for your younger sisters and better relate to your older sisters.

Youth Justice assessment

38As I said, at my request, you were assessed for your suitability for a youth justice centre order.  I have received a comprehensive report.[1]

[1] Report dated 12 September 2022.

39The assessor, Ms Smith, had supervised you on your probation order between 7 August 2021 and 8 February 2022, and, again, on bail from 26 July 2022.

40For the purposes of s32 of the Sentencing Act 1991, Ms Smith considered you had reasonable prospects of rehabilitation. That is what the section requires her to consider. Ignoring the cause of your current remand, I would consider your prospects of rehabilitation are excellent. She also considered you are particularly impressionable, immature and at considerable risk of being exploited by older adults within a custodial setting. Consequently, she considered you suitable for a youth justice centre order.

41Finally, Ms Smith invited me to consider a community correction order.  For legal reasons, I cannot do that.

Discussion

42Under the Sentencing Act, the offence of armed robbery may be a category 2 offence. Here it is one because the charge of armed robbery at the service station at Roxburgh Park was committed by you in the company of two persons. That means a sentencing court must impose a sentence of imprisonment or detention unless an exception applies. The exceptions are set out in s5(2H) of the Sentencing Act. You rely on the exception contained in s5(2H)(e), which reads:

‘there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).’

43The application of this paragraph has been further limited by s5(2HC) and s5(2I).  They provide respectively:

‘(2HC)  In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—

a.    must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1) ; and

b.    must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

c.     must not have regard to—

i.the offender's previous good character (other than an absence of previous convictions or findings of guilt); or

ii.an early guilty plea; or

iii.prospects of rehabilitation; or

iv.parity with other sentences.’

44Sub-section (2I) provides:

‘(2I)     In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—

a.    the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and

b.    whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.’

45Division 2 of Part 3 of the Sentencing Act deals with custodial orders.  Among the specified custodial orders are youth justice centre orders and youth residential centre orders.  I will return to this aspect shortly.

46Recently, the court examined the operation of the paragraph and the associated provisions in s5(2HC) and s5(2I) in DPP v Lombardo.[2]  In applying the test created by paragraph (e), there are two key steps:

[2] [2022] VSCA 201

(a)   the court must identify whether there are substantial and compelling circumstances.  'Substantial and compelling' means the circumstances are weighty and forceful or powerful so as to justify not imposing a custodial sentence; and

(b)   if the answer is 'yes' to (a), then the phrase 'exceptional and rare' requires circumstances wholly outside the run of the mill factors typical of the relevant kind of offending - in this case, armed robbery.

47You are young.  This engages the considerations stated in R v Mills[3] and Azzopardi v R[4].  You have been working for, at least, the past six months where the foreman speaks very highly of you.  You have performed well with the aid of Ms Smith and others.  You have stopped using drugs although your addiction is well established.  It is a rare person who can overcome an entrenched addiction, largely unaided by professional help.  However, your youth, employment and your steps at drug rehabilitation relate to your prospects of rehabilitation, which I am precluded from considering.

[3] [1998] 4 VR 235

[4] [2011] 35 VR 43

48

You have had a disrupted upbringing due to the actions of your father.  You have moved from residence to residence, from refuge to refuge and from school to school.  You have been exposed to the violence done by your father to your mother. Not only does this engage the considerations in

Bugmy v R[5]

but also the damaging effects to you of such exposure to family violence.  The effects of exposure for children are described at length by the Royal Commission into Family Violence[6].  These circumstances alone provide substantial and compelling circumstances justifying not imposing a custodial sentence.

[6] 2016 report, volume 2, chapter 10:  'Children and young people’s experience of family violence'.

49As to the phase 'exceptional and rare', experience shows that persons who commit armed robberies have been part of highly dysfunctional families, characterised by exposure to family violence.  Unfortunately, these are not circumstances wholly outside the ordinary factors typical of the offence of armed robbery. As the court said in Buckley v R[7]:

[7] [2022] VSCA 138 at [43]

‘The principal matters relied on by the applicant, both at first instance and in this Court, were his youth, his significant immaturity, his difficulties during adolescence and his likely vulnerability in prison. On ordinary principles, those matters taken in combination might well constitute ‘substantial and compelling circumstances’ justifying a non-custodial order. But the sad reality of our criminal justice system is that such circumstances — whether alone or in combination — simply could not be described as ‘exceptional and rare’. On the contrary, they are all too common.

As we have said, the legislative intention could not be clearer. By adding the words ‘that are exceptional and rare’, the Parliament intended to make the test ‘almost impossible to satisfy’. The express exclusion from consideration of the offender’s prospects of rehabilitation bespeaks a deliberate rejection of well-established and well-understood principles about the vital importance — to the community — of rehabilitating young offenders.’

50In your case, the exception does not apply.

Purposes

51Section 5(1) of the Sentencing Act sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in;

(e)   to protect the community from the offender.

52Each of the offences of burglary and armed robbery are commonly encountered in this court.  Each of the sentencing purposes are engaged by those offences.  General deterrence, specific deterrence, denunciation and the protection of the community from you are important sentencing considerations here.  Rehabilitation is an important consideration because of your age and the progress you have made since committing these offences.

Gravity

53The offences of burglary and armed robbery are serious.  Each of the offences committed by you is a serious example of the offence whether due to the method of entry into the premises or the fear instilled by your actions and those of your co-offenders.

Maximum penalties

54The maximum penalties for the offences are:

(a)   burglary — 10 years' imprisonment;

(b)   armed robbery — 25 years' imprisonment;

(c)   commit an indictable offence on bail — 30 penalty units or three months' imprisonment;

(d)   contravene a conduct condition of bail — 30 penalty units or three months' imprisonment;

(e)   drive whilst disqualified — 240 penalty units or two years' imprisonment.

Guilty pleas

55

Your preparedness to plead guilty to these charges existed before the

hand-up brief was served upon your solicitors.  That is, before your lawyers could assess the strength of the prosecution case and advise you.  In terms of the timing, your pleas were indicated and subsequently entered at the earliest reasonable opportunity of a process starting with the laying of the charges and ending, theoretically, in a trial.

56They are evidence of your remorse for the offending.

57By pleading guilty to the charges, you have avoided a trial.  You have saved the time and expense of a trial.  You have allowed other trials to be listed earlier than would otherwise be the case.  You have spared witnesses the burden of giving evidence at the trial.  These considerations have what is described as a utilitarian benefit to the criminal justice system.  The value of that benefit has been enhanced in the time of pandemic.

58At the present time, pleas of guilty deserve a greater discount on sentence.  Why this is so was explained in the case of Worboyes v R[8] where the court said:

[8] [2021] VSCA 169 at [35]

‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.’

59Your pleas of guilty require a significant discount on the sentence.

60I have already discussed your prospects of rehabilitation.

61Although you have spent 81 days in custody over these charges, owing to remand on other offences, you have spent 111 days in custody (excluding today). Whether as an application of the principle in Renzella’s[9] case or the principle of totality, I have taken those additional 30 days into consideration in sentencing you.

[9]R v Renzella [1997] 2 VR 88

[5] (2013) 249 CLR 571 at [44]

Sentence

62On Charge 1, I sentence you to nine months' detention in a youth justice centre.

63On Charge 2, I sentence you to 12 months' detention in a youth justice centre.

64On Charge 3, I sentence you to 15 months' detention in a youth justice centre.

65On the summary charges:

(a)   committing an indictable offence on bail, I sentence you to a fine of $300;

(b)   contravening a conduct condition of bail, I sentence you to a fine of $200;

(c)   driving whilst disqualified, I sentence you to a fine of $200.  Any licence of permit you hold to drive a motor vehicle is cancelled and you are disqualified from obtaining a licence or permit for six months.

66The sentence on Charge 3 is the base sentence.  Six months of the sentence on Charge 2 and two months of the sentence on Charge 1 are to be served cumulatively upon the sentence on Charge 3 and upon themselves.  The other sentence of detention is to be served concurrently.  The total effective sentence is 23 months' detention in a youth justice centre.

67Before being released on bail and subsequently, you have spent 81 days in custody.  I declare that period is to be counted as time already served under these sentences.

68I will refer the fines to Fines Victoria for collection.

Forfeiture

69I will make a forfeiture order in the terms sought.

Section 6AAA

70If you had not pleaded guilty to these charges, I would have sentenced you to a total effective sentence of 33 months' detention in a youth justice centre.

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