Director of Public Prosecutions v Younan
[2016] VCC 1020
•25/07/2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00354
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDY SABRI YOUNAN |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 25/07/2016 | |
CASE MAY BE CITED AS: | DPP v Younan | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1020 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Porceddu | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr C. Farrington | Stary Norton Halphen |
HIS HONOUR:
1
Mr Younan, on 27 May 2016 you pleaded guilty to Indictment E12555933.1 containing five charges, being two charges of prohibited person possessing a firearm, two charges of armed robbery, and one charge of conspiracy to commit armed robbery. The maximum penalty for the offence of armed robbery is
25 years’ imprisonment, as is the maximum penalty for conspiracy to commit armed robbery, whilst the maximum penalty for being a prohibited person possessing a firearm is ten years’ imprisonment.
2 You admitted an extensive prior criminal history, considering at the time of the instant offences you were aged 22 years.
3 Tendered as Exhibit A on the plea was the summary of prosecution opening. In short, on 26 July 2014 you drove a stolen motor vehicle to the Meadow Inn Hotel at Fawkner. You were with two unknown offenders. You, together with one of your co‑offenders, left the vehicle, and the third man entered the driver’s seat. You were disguised, wearing a black hooded ‘Fox’ jumper, grey tracksuit pants, and black Nike runners. You covered your face with what appeared to be sheeting and wore dark sunglasses. You also wore gloves. You were carrying a swan-off polymer stocked stainless steel barrelled bolt-action .30-06 calibre rifle. Your co‑offender was carrying a large curved bladed knife, and together you ran into the licensed venue and went directly behind the gaming counter.
4 You pointed the gun at a staff member, demanding “Where’s the money? Take me to the fucking money. Fucking move, hurry, take us to the money.” You then went to the cash register in the bar section and took the cash drawer. You then demanded to be taken to the back, but staff told you that they did not have the key to that area. You ran from the premises, entered the stolen vehicle, and it drove away. You were in the venue for 50 seconds or so and stole $1800 cash (Charges 1 and 2).
5 On 31 July 2014 a tracking, listening and recording device was lawfully secreted in the stolen vehicle.
6 On 1 August 2014 you, together with your cousin, Andi Fatho, decided that you would go to the Taylors Lakes Hotel and rob it under arms. You intended to commit the armed robbery on the gaming venue at 5 am, the time at which the venue closed for business. However, you arrived at the venue at 5.03 and were unable to execute your plan. A transcript of part of the conversation that occurred between you and your co‑offender in the stolen car appears at p.702 of the depositions (Charge 3).
7 Motivated by your failure at the Taylors Lakes Hotel, you then drove to the Meadow Inn Hotel and at about 5.18 am you and your co‑offender committed an armed robbery at those premises. Again you were disguised, and you carried the sawn-off rifle. Again you threatened venue staff with that firearm. You were in the venue for a total of 78 seconds and stole $1200 in cash. (Charge 4)
8 Each of the armed robberies was caught on CCTV (see Exhibit E). Each of the armed robberies are serious examples of that offence.
9 On 1 August 2014 police executed a search warrant at the place where you lived from time to time and you were arrested. A search of those premises produced the sawn-off rifle and the curved bladed knife used in the armed robberies as well as a homemade firearm. (Charge 5 ) There is no suggestion that the firearm used in the armed robberies was loaded.
10 Tendered as Exhibits B and C were victim impact statements, one from a member of staff who was threatened by you during the course of the second armed robbery. She deposes to suffering anxiety bursts, which are less frequent of recent times, but that she still suffers from panic attacks as at April of this year, nearly two years after the event.
11 You have 19 findings of guilt or prior convictions from six court appearances, commencing in the Children’s Court in June of 2010. You have received non-custodial and custodial dispositions in respect of acts of violence including recklessly cause serious injury and making a threat to kill. You have prior convictions for offences under the Firearms Act including being a prohibited person possessing an unregistered firearm, possessing ammunition without a licence, carry or use a loaded firearm in a public place, and carry a handgun in an unsafe manner, for which you received an aggregate sentence of nine months’ imprisonment to be served by way of an intensive correction order which you breached.
12 At the time of committing the instant offences you were undergoing a wholly suspended sentence of 12 months’ imprisonment. This is an aggravating feature of your offending.
13 Since your arrest on 1 August 2014 you have remained in custody.
14 You were originally indicted on a large number of armed robberies, and your plea is to a settled indictment, and accordingly you must be regarded as having entered your plea at the earliest opportunity.
15 Mr Younan, you are currently aged 24. You suffer a mild intellectual disability. You were born in Iraq and you are of Assyrian Christian background. I was informed by your counsel that as a child you were obliged to witness executions in Iraq, including beheadings. This matter was supported by references that are included in Exhibit 3 on your plea. When you were aged about five your family fled to Turkey, and there you were abused on a number of occasions. Your family was vilified whilst they lived in Turkey, and ultimately your family arrived in Australia as migrants in or about the year 2000 when you were aged eight. You are the second-youngest of five children.
16 On arriving in Australia you initially underwent English-language schooling and thereafter attended Broadmeadows and Coolaroo primary schools. You attended Broadmeadows and Hume secondary colleges but understandably struggled academically, and left school part-way through Year 9. After that you had limited employment as a teenager at McDonald’s and Hungry Jack’s. As a teenager you were charged with rape and you were subsequently acquitted of that offence. The effect of those proceedings on you was profound, in that it was one of the motivating factors that caused you to leave school, and it also caused you to lose your employment.
17 Tendered as Exhibit 1 on the plea were the reports of consultant psychologist Carla Lechner dated 22 April 2015 and 16 May 2016. In 2015 when you consulted Ms Lechner you were evidencing symptoms of depression at a clinical level. This was partly reactive to the court proceedings that you were then facing. You presented to Ms Lechner at that time as being impulsive in nature and with a low tolerance for frustration. She reported that you had been an abuser of marijuana and ice since your teens. It was put on your behalf that you were introduced to drugs of dependence when you were remanded in custody as a youth as a result of being charged with rape. Unsurprisingly, you presented to Ms Lechner with features of post-traumatic stress disorder, and she opined that your intellectual disability would likely make you eligible for client disability services. Ms Lechner regarded you, as at 2015, as being socially, cognitively and emotionally immature.
18 As at 2016 you presented to Ms Lechner with lowered mood but not at a clinical level. Ms Lechner attributed this improvement to your abstinence from drugs whilst in prison. Tendered as Exhibit 5 on the plea were a number of urine test results demonstrating that you have been drug free since August 2015. You told Ms Lechner in 2016 that you were on drugs and not thinking properly at the time that you committed the instant offences.
19 It is plain from the references provided by your family members that you have a loving and supportive family who will support you on your release from prison, whatever form your sentence takes.
20 A more frightening scenario of an armed robbery being committed whilst the offenders were adversely affected by ice, or methylamphetamine, I cannot imagine.
21
Tendered as Exhibit 2 was a report of Anita Carroll, psychologist, dated 26 May 2016. In many respects this report echoes the contents of the reports of
Ms Lechner.
22 Whilst in prison, you have undertaken a number of courses which were generally related to drug rehabilitation and harm reduction, occupational health and safety, and food-handling.
23 It was submitted on your behalf that a sentence of up to two years’ imprisonment in addition to the period of pre-sentence detention that you have served, together with a lengthy community corrections order, was the appropriate disposition in your circumstances. With some reluctance I had you assessed for such a disposition.
24 Having received a report from The Department of Justice and Regulation I received submissions from counsel.
25 Whilst you were assessed as suitable for a community corrections order after a term of imprisonment I found the report to be less than helpful. The report lacked insight into the task at hand and had about it the characteristic of being a document written to a formula rather than one written to address the unique issues that you present with and that impact on a community corrections order being appropriate in your circumstances.
26 Of particular note, however, was that you were assessed as a high risk of general reoffending which to my mind impacts adversely on your suitability for a community corrections order.
27 Ultimately I have come to the view that the appropriate sentence in your case is one which involves both a head sentence and a non-parole period being imposed upon you.
28 Whilst your personal circumstances, when coupled with your early plea must mitigate your sentence the objective seriousness of your offending when combined with your antecedents and the aggravating circumstance that the instant offending was committed by you while you were undergoing a suspended sentence mandates that the principles of general and specific deterrence together with protection of the community as well as just punishment result in a sentence involving the imposition of a head sentence with a non-parole period. Would you please stand.
29 Your conduct must be denounced and you must be punished for it. Taking into account the circumstances of your offending with its effects, your personal circumstances and antecedents, endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending I sentence you as follows:
30 On Charge 1, twelve (12) months’ imprisonment,
31 On Charge 2, three (3) years’ imprisonment,
32 On Charge 3, three (3) years’ imprisonment,
33 On Charge 4, three (3) years' imprisonment and
34 On Charge 5, twelve (12) months’ imprisonment.
35 I order that four months of the sentences imposed on Charges 1 and 5 together with 18 months on each of the sentences imposed on Charges 2 and 3 be served cumulatively with each other and on the sentence imposed on Charge 4.
36 This results in a total effective sentence of six years and eight months’ imprisonment and I fix the period of four year and four months’ imprisonment before you will become eligible for parole.
37 I declare that your have served 724 days by way of presentence detention, not including today.
38 I declare that but for your plea of guilty I would have sentenced you to nine years and six months’ imprisonment with a non-parole period of six years. You may be seated.
39 I hand down the signed orders.
40 MR PORCEDDU: Thank you, Your Honour.
41 MR FARRINGTON: As Your Honour pleases.
42 HIS HONOUR: Are there any other ancillary matters?
43 COUNSEL: No, Your Honour.
44 HIS HONOUR: Are the maths of the sentence correct?
45 MR PORCEDDU: They appear to be correct, Your Honour.
46 HIS HONOUR: Mr Farrington?
47 MR FARRINGTON: Yes, Your Honour.
48 HIS HONOUR: Yes. Remove the prisoner, please. What time tomorrow? 9.30. Adjourn the court until 9.30 tomorrow morning, please.
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