Director of Public Prosecutions v Tayar, Bilal
[2013] VCC 492
•17 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 13-00181
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BILAL TAYAR |
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JUDGE: | His Honour Judge Smallwood | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 April 2013 | |
CASE MAY BE CITED AS: | DPP v Tayar, Bilal | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 492 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C Lynch | |
| For the Accused | Ms Ballek |
HIS HONOUR:
1 Bilal Tayar, you have pleaded guilty to one count of armed robbery. That crimes carries a maximum penalty of 25 years imprisonment.
2 You pleaded guilty at a reasonably early opportunity and I accept that that plea of guilty is accompanied by a degree of remorse. You must also, of course, get the utilitarian benefit of that plea.
3 It is always a very unpleasant experience for a victim of a crime such as this, to be subjected to a trial, have to give evidence and have their credit challenged.
4 You are 30 years of age. You have an extensive criminal history, which was pointed out to me by your counsel. You have been, it would seem, gaoled in something in the order of 19 occasions, so obviously a lot of that would have been concurrent. You have two prior convictions for armed robbery, and I will deal with all that in a moment.
5 The circumstances of the offending are that - at this point I will go through a little bit of the history of it. On 25 September 2009, you were sentenced in this court for a period of four years and four months imprisonment, with a minimum term of two years and two months imprisonment, for the crime of armed robbery. You were 33 days into that sentence when it was passed. You were released on parole in November 2011, owing approximately 26 months parole. You then were able to - apart from a driving whilst disqualified, keep out of trouble until September of the next year.
6
What occurred was that your brother passed away of a drug overdose. He having had a similar background obviously to yourself, and you were becoming more and more distressed because of that. You were, during the course of the time you had been out of gaol, adhering to your medical regime and it would appear that that was starting to come apart. In any event, on
10 September 2012, in the late afternoon, you attended an appointment with a general practitioner in Chadstone. He gave you a prescription for Xanax and you left his surgery at about 5.15 pm. I am told from the Bar table that you were given a one month prescription, which you took the view was only going to last you a very short period of time.
7 In any event, you then went next door to a pharmacy. As you entered that store, you were wearing a hooded top, but your face was not covered. You were carrying a screwdriver. I am told that the screwdriver was already in your pocket for car maintenance. I have grave doubts about that. In any event, you approached the service counter behind which a staff member was standing. You yelled at her, "Give me the money, open up the till", while threatening her with the screwdriver. She could see that the screwdriver had a yellow handle and was about 20 centimetres long, from the handle to the tip. She tried to open the till but was unable to do so because you were jabbing her hands with the screwdriver. To protect herself she had to keep pulling her hands away and could not open the till. You then became frustrated and walked around the counter. You started screaming, "Give me the Xanax".
8 I have a victim impact statement before me from that young lady. It was obviously a terrifying experience. She has suffered emotional stress over an extended period of time and I take that very much into account in this sentencing disposition.
9 In any event, by that time the pharmacist, a Mr Lim, had come from the office to the dispensary area near the service counter. He hit the pharmacy's alarm button and picked up a golf club to defend himself. You looked at him and said, "Where's the Xanax?" He then led you into the dispensary area where the Xanax was, but you did not take any. You then walked out of the dispensary area, and as you did so, stumbled and fell down the stairs. You then got up and went back to the service area, and again screamed at the young lady to "open the till, give me the money". She opened the till, you grabbed a $50 note and a $10 note. You were trying to grab a bundle of $20 notes when you were told, "Get out of the store".
10
You and the pharmacist then moved around the store, with you lunging at
Mr Lim with the screwdriver, that is the pharmacist, and Mr Lim, trying to defend himself with the golf club. After about 30 seconds another staff member who also managed to press the alarm button, yelled out, "The police are on their way". You said, "Are they?" and then ran towards the front glass door. There was insufficient time for the door to automatically open and you slammed into it. Once it opened you ran outside, carrying the screwdriver and the $60 cash.
11
A description of you was given, you were subsequently arrested on
30 October 2012and conveyed to the Ringwood Police Station cells.
12 As I have indicated, I have before me a victim impact statement. Armed robbery is invariably a serious crime, which is why in the vast majority of cases such as this, people receive an active custodial sentence. In this particular situation, it bears a disturbing similarity to earlier armed robberies, or at least one earlier armed robbery that you committed. You clearly terrified the young lady and there was, what can be described here, gratuitous violence, as you were chasing the pharmacist around the pharmacy, trying to stab him. It calls, obviously, for the application of general and specific deterrence, as well as denunciation and appropriate punishment.
13 As I have indicated, you pleaded guilty at a early, reasonable time.
14 What has occurred is that after the armed robbery, your mental condition continued to deteriorate. By 25 September 2012, you were in, what I understand to be referred to as the Broadmeadows Psychiatric Unit. You remained there for a week as an impatient.
15 Clearly at the time of the offending you were in a very distressed state and as I indicate later, I accept that there is an either schizophrenia or certainly drug induced psychosis involved in all this. However, as I indicated to counsel, I do not see that the moral culpability is reduced, other than in a very generalised sense of it being put into context. It was an armed robbery and you have done it twice before in very similar circumstances. You knew what you were doing and you knew what the consequences would be if you were caught.
16 You, upon being released from psychiatric care, as I have indicated, were arrested by the police on 30 October. What had occurred in the meantime was that on 26 October the parole board had reclaimed you. When you were arrested, police executed the parole warrant. You have been in custody undergoing parole reclamation since that time. It is a significant period.
17 Obviously any sentence that I pass will not commence until your parole has finished. That means that the sentence that I pass will not commence until December 2014. By that time, you will have been in custody for, in excess of two years.
18 The history is that the armed robbery for which you were sentenced by Judge Millane in this court in 2009, was an armed robbery which involved a knife and an imitation gun, on a shop, where there was gratuitous violence perpetrated on the shop attendant. I think that you probably terrified him, more than you terrified the young lady in this matter, but they are similar offending. You also have an armed robbery conviction from 2002, which is simply referred to as a video store with a knife.
19 I have had the benefit of reading Judge Millane's sentencing remarks from 2009 and these sentencing remarks should be read in conjunction with it. I do not propose to go through the complete history of when you have been in and out of gaol, that is all contained within her report. This offending has occurred, as I indicated, something like nine months or so after you were released from her sentence.
20 You other prior convictions relate to dishonesty, violence, and are consistent with the drug addiction that you have had since you were probably in your very early teens.
21 Tendered on your behalf was a report from a psychiatrist, Dr Cidoni, as well as a DHS report, which refers to your earlier childhood. I can simply say this, that again having read Judge Millane's sentencing remarks, you came from a very dysfunctional family. There was clearly violence in the home. You mother clearly had great difficulty with you and your siblings and there was intervention from the authorities at a very early stage.
22 By the age of ten it would appear that you were the subject of a (Indistinct) Protection application. You were taken to a wardship and over a period of time, lived in various institutions. It is difficult in situations such as this to work out what should have our should not have been done. You have indicated that you would have had a preference to being in foster homes, that did not happen. You went to different schools, you shifted to different areas, you went to different schools and accordingly your educational level is low. This is frequently the childhood that gives rise to a life of drug use and crime. In your case, it is exactly what it has done.
23 You, on the face of it, would appear to have been given Youth Training Centre dispositions from a very young age. I do not know whether you were kept in Turana as a ward or not, but you have been in institutions since your early teens. You have been using drugs, including heroin, since the age of around about 12. I would accept that on the material before me, it would appear that you were affected on the day that this armed robbery took place, but that is of little benefit to you. You were certainly thinking clearly enough to know what you were doing.
24 As was indicated, you were in and out of gaol over an extended period of time. In around about 2008, you were becoming patently, it would seen, mentally ill.
25 Tendered before Judge Millane was a report from a respected forensic psychologist, Mr Joblin. He had assessed you as far back as 2005. At that stage, he said that you had what he called a "problematic attitude to authority" and a "seriously anti-social orientation". At that point in time, back in 2005, he was not prepared to go so far as to diagnose an anti-social personality disorder.
26 In 2009, he saw you again. He said that your psychological state had deteriorated and that you had, what he described as, as referred to in Her Honour's remarks as, "barbed wire psychosis". That refers to a person with a history of institutionalisation, which I have no doubt you have, who is unable to relinquish the values, attitudes and behaviour, established in a prison environment, on release into the community. Your counsel has effectively confirmed that that is the case. What is of real relevance with that is that every day that you spend in gaol, compounds that problem and it is in the community's interest that people not be institutionalised for obvious reasons and the benefit and cost to the community is keeping a person in institutions and for the actual personal rehabilitation of the person involved. It also increases dramatically, in my view, the risk of re-offending upon release.
27 That material was all provided to Her Honour when she was sentencing you. She gave you, despite your criminal previous history, a, in my view, relevantly low minimum term. The matter was appealed and it was confirmed - certainly leaves to appeal, was refused.
28 I then come to the material provided in relation to this matter. Clearly there is someone from - Mr Hogan from Crossroads at the Salvation Army, who has had an interest in you for a long time and will continue to do so.
29 Also a report from Dr Anthony Cidone, a psychiatrist, who is of course known to me. He goes through your history in some detail and I think rather than read it all out here, I will simply ensure that that report remains on the court file for any person with a genuine interest. He described your having been brought up in very difficulty circumstances, that you have been, for long periods of time, very transient. Your brother is in trouble. You were sexually abused from the age of 11 to 13 by your step-father. You have been in boy's homes and foster care. You have, as I have indicated, heroin use from the age of 12 and regular use since the age of 14. You have used amphetamines, benzodiazepines and ice. You had very little consistent drug and alcohol treatment. I do not know what has been done in gaol for you over the years, but I suspect very little.
30
When you were undergoing Her Honour's sentence, you were admitted to
St Paul's Psychiatric Rehabilitation Unit at Port Phillip Prison for a period of approximately five and a half months. That is a fairly long time to remain in psychiatric rehabilitation in the course of a gaol sentence. During the course of that sentence, you described that your psychosis, which had now been - at that point, been happening for a while, became worse.
31 Mr Cidone points out the admission to the Broadmeadows institution, which I have described previously. He points out the anti-psychotic medication that you were on and now have currently been on. You are in a position where you are dependent on the system. You have virtually no contact with family. And again, his concerns is so far as institutionalisations are concerned.
32 I note in this matter that you will undergo the sentence in protection, that you have been unable to do the courses that are otherwise available, and because you are sedated because of your illness, it may be very difficult for you to get billet positions. I accept the opinion of Dr Cidone, that whilst your symptoms may be treated in custody, if will be harder for you than for the normal or usual prisoner, and that there is a prospect of your condition worsening. I take both those matters into account in this sentencing process. He indicated clearly that he could find insufficient evidence that you psychosis impacted upon your offending.
33 You also suffer from depression, and it is Dr Cidoni's opinion that that may well worsen in custody. You had earlier been diagnosed, it would seem, from drug induced psychosis. He says, "He has also suffered from psychotic illness, most likely schizophrenia with associated depression and anxiety, has post-traumatic symptoms, related to his sexual abuse. It is likely that his amphetamine use has exacerbated the psychosis, (indistinct) it is purely a drug induced phenomenon".
34 As I have said, I will be taking that into account in the way that I have indicated. The prognosis for your schizophrenia depends on your compliance of medication and engagement with treatment. It would seem that that treatment will continue in gaol and whilst it is not specifically stated, it would seem that you have reasonably good insight into your mental illness, which for as all goes well for the future, that someone with such a disability.
35 The prospects of your rehabilitation are very much in your hands, I think, and the risk of you re-offending is virtually completely dependent upon that rehabilitation. It has been a long time that you have offended and you are capable of turning your life around, but it is really a matter for you. I have to be very aware of the principle of totality, not to impose a crushing sentence, and I am very concerned in your situation, about the prospects of institutionalisation.
36 The real matter of concern in sentencing you, Mr Tayar, is the fact that you have still got a very significant period of reclaimed probation to serve. As indicated during the course of the plea, I do have to look at the circumstances upon your ultimate release and it can result in a sentence being passed for a crime which is not truly indicative of the seriousness of the crime. That is going to happen here, in my view, but I can only point to the overall circumstances, which I will explain in a moment.
37 You are 30 now and you have been in custody since October of last year, and before that you had been in custody for some two years and two months. That means over the last - I am trying to work this out, but over the last four years you have been inside for three years and there is a lot more to come. I think I will pass the sentence and then explain how that will affect the situation as to how I see it.
38 Taking all those matters into account, on the charge of armed robbery, a sentence of imprisonment for a period of three years. I direct that 20 months of that sentence be served before you become eligible for parole. That means that on my clear understanding that this sentence will not commence until December of next year. You will have been in custody for 46 months before you become eligible for parole. That is three years and ten months. If you are not paroled, which of course is a possibility, you will have been in custody for something in excess of five years. When you add that to the two years and two months that you served less than a year before this, that is a lot of gaol. It adds up to something like over seven years in an eight year period. At 30, that is a very big sentence.
39 I indicated to counsel that s.6AAA in these circumstances can be misleading, but what I say is this, that but for your plea of guilty, I would have sentenced you to be in prison for a period of four years, with a minimum term of three. I add to that that were it not for the next 18 months that you have to serve, that four with a three would have been significantly greater, were there no parole involved in all this. So what I am trying to say to you is this, if this was being done without the parole and without a plea of guilty, you would have been sentenced to a head sentence of in excess of five years. Just so that is all clearly understood and I am doing that deliberately because these thing can look odd, if you are not aware.
40 All right, there is no PSD, so no declarations made there. Is there any other orders I have to make?
41 MS BALLEK: Only a Compensation Order, I think. Did you want to make that earlier?
42 HIS HONOUR: Made the compensation, yes.
43 MR LYNCH: So, just the Compensation Order.
44 HIS HONOUR: Yes, that has been done. Yes, all right. Which has already been done, all right, thanks for that.
45 MS BALLEK: As the court pleases.
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