Director of Public Prosecutions v Zakeri

[2015] VCC 1041

IN THE COUNTY COURT OF VICTORIA  Revised

Not Restricted Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR 14-00425

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMAD ZAKERI

JUDGE: WHERE HELD:

DATE OF HEARING: DATE OF SENTENCE:

HIS HONOUR JUDGE MAIDMENT

Melbourne

30 July 2015

CASE MAY BE CITED AS:           DPP v Zakeri

MEDIUM NEUTRAL CITATION:     [2015] VCC 1041

REASONSFORSENTENCE

Subject: Catchwords: Legislation Cited: Cases Cited: Sentence:

APPEARANCES:  Counsel  Solicitors

For the Accused  Ms C. Duckett

For the Accused  Mr D. Dann

VICTORIAN GOVERNMENT REPORTING SERVICE

565 Lonsdale Street, Melbourne- Telephone [phone]

HIS HONOUR:

1You have pleaded guilty to an indictment charging you in Charge 1 with aggravated burglary, that is an offence which occurred on 13 September 2013 in that you entered a private unit which you knew would be occupied by the victim and you did so with an intent to commit an assault on her. You also pleaded to Charge 2 of attempted kidnapping of your victim in that you attempted to take her away by force as has been pointed out by the learned prosecutor that attempt was foiled by her biting you on the finger and causing you to loosen your grip.

2You have no prior convictions. The offence of aggravated burglary carries a maximum term of imprisonment of 25 years. The offence of attempted kidnapping carries a maximum term of imprisonment of 20 years. The prosecution tendered a summary of prosecution opening for the plea hearing, that is Exhibit A, and I incorporate that document in its entirety into these reasons for sentence.

3I note that it catalogues the sequence of events which involved you working with the boyfriend of your victim and incorporates the circumstance that you had previously apparently met your victim. On Monday 9 September 2013, you tricked Mr Zafari, your victim's boyfriend, into lending you  his car.  He gave you his set of keys for that purpose, which included a key to the unit, at which you ultimately carried out the aggravated burglary.

4You took the opportunity of having a key cut from the template of that house key, clearly with the intention of using it to carry out the aggravated burglary that you ultimately committed. You returned to your workplace later that day, returned the keys to Mr Zafari and told him that you were going fishing on Friday night for the weekend.  You then left your workplace in your own car.

5On Friday 13 September 2013, five days later, Mr Zafari went to work at about 2.30, leaving the victim at the unit that they occupied alone.  At about 7.45

pm, she finished her dinner and prayers and went to her bedroom.  At about

8.15 pm, she heard noises that sounded like someone trying to open the front door. She then telephoned Mr Zafari. She left her bedroom to investigate the noise and noticed firstly a pair of black men's shoes and then looked up and saw you, a mere 50 em away from her with what she described as a mask covering your face.

6There seems to be some issue as to whether you had a mask or whether you were simply seeking to disguise yourself somewhat with the hood of your top, but she tried to turn her bedroom light on. You grabbed her placing one hand over her mouth and the other around her waist as if you were hugging her. Mr Zafari was still on the other end of the phone and could hear the victim screaming.    She tried to turn her bedroom light on again, and you started picking her off the ground and dragging her down the hallway while she was struggling. You dragged her through the open front door and security screen of the house onto the driveway area. It was at that point that she bit you on the hand, causing you to loosen your grip and she was able to make good her escape to a neighbour who came out of his house. You then ran away from the location and made good your escape.

7In addition to the falsehood that you told Mr Zafari about going fishing on that weekend, you also posted a Facebook entry on your profile, claiming that you were in Adelaide. All of those matters show that whether or not you had been drinking on the night that you carried out your offending  conduct,  you  had ample opportunity to think about what you were doing soberly between 9 September and 13 September.

8You were arrested on 16 September and interviewed by police. You told a number of falsehoods, although you made some admissions. You claimed that you believed the victim loved you. You admitted that you had taken condoms with you in the hopes that the victim will agree to have sex with you.

9You no longer adhere to much of the false story that you told the police and you no longer submit that you had a belief that the victim loved you and you have now, it seems, been prepared to accept your guilt and the full measure of your responsibility for your offending conduct. That is very much in your favour. As I understand it, you were charged with a number of other offences and it was a result of negotiation that the ultimate indictment to which you pleaded guilty was drawn. When that was agreed, you indicated  your intention to plead guilty to these offences.

10It is not strictly an early plea, but one understands that there is a process that leads to a successfully negotiated plea in these circumstances and I think you are entitled to a full discount for your plea of guilty. It certainly has significant community benefits and that it has saved the state the cost of a trial, but it has also saved the victim the trauma of having to give evidence.

11It is consistent with remorse. I accept that you are now remorseful for what you have done, but I have to regard this offending conduct as a serious example of aggravated burglary, which did involve a measure of planning and mature consideration on your part before carrying out the offences.

12The  prosecution  provided me with  some photographs  and also tendered the victim  impact statement, which  shows that your conduct towards  your victim has caused ongoing emotional issues, anxiety and she has had considerable difficulty, it would seem, in getting on with her life.  Hopefully, now your plea of guilty to these matters and this matter coming to finality will enable her better to cope with  the  ongoing emotional  disturbance  that  has resulted from your conduct.   She indicates in her last sentence of the victim impact statement, "I constantly think about how I will cope with this fear for the rest of my life." am bound to take into account the effect of your conduct on your victim.

13Your counsel provided me with an outline of submissions on your behalf, including a chronology of relevant events, a reference from your employer,

Macho. Construction Services, a medical report or certificate indicating that your wife is pregnant and due to produce your child on 2 December of this year or thereabouts, and a report from a psychologist, Randolph Monteiro, which makes reference to you having attended three counselling sessions with him after a referral to him on 15 May of this year.

14I was also provided with a copy of a report from Mr Bernard Healy, a psychologist, who concluded that you clearly suffered from significant depression and Post-Traumatic Stress Disorder arising from the horrendous events in Afghanistan and Pakistan, which resulted in the deaths of your parents respectively in those two countries and of course, your exposure to the immediate aftermath of your father's death at the hands of the Taliban and no doubt, the conditions in which you were living at that time, in fear in a war torn country.

15He also sets out a deal about your background and the fact that after the death of your mother, you eventually made your way to Australia, arriving in 2010.           Your brother, who  was living here, sponsored you. You had no education in Afghanistan or Pakistan. When you arrived in Australia, you lived in Doveton with a cousin. You found a job after a week and generally, it would seem that you have been in employment.

16In 2012, you went back to Pakistan and got married to your wife. It was an arranged marriage. When you returned, you made arrangements to sponsor your wife to come here. She did not arrive until earlier this year and it seems that she is now, as has been indicated, some five months pregnant.

17It was put on your behalf and I accept that your time in custody will be harder to bear because of cultural differences and also, and most particularly, because your wife is not able to qualify for Centrelink benefits. She being five months pregnant, the prospects of her having to fend for herself without your assistance  during the period when you are in custody will  undoubtedly weigh

more heavily on your mind and make certain your sentence harder.

18You also have mental health issues and the impairments to which Mr Healy refers are significant depression and Post-Traumatic Stress Disorder and they too will make the serving of a sentence harder. It was opined by Mr Monteiro that a prison sentence would have a negative impact on your  mental wellbeing.    I do not think it was put as high by your counsel that there was a significant risk of your mental health deteriorating during the course of your incarceration, but I think it is axiomatic that being in prison is bad for your health, bad for your mental health, with the conditions that you already suffer from, I take into account that there is a risk, perhaps a significant risk that your mental health with deteriorate during the period that you are incarcerated.

19You have no prior convictions and that is a significant factor. You committed these offences in September 2013, nearly two years ago.  The  matter  has been hanging over your head for a significant period of time and you have committed no further offences. It seems you have  maintained  your  work, albeit you have been anxious about the outcomes of these proceedings.

20The period during which this has been hanging over your head will no doubt have played upon you and I take that into account. But it has also given you the opportunity of demonstrating that you are capable of leading a trouble free life and I assess your prospects for rehabilitation as good. I think that this will have taught you a very significant lesson. I accept that for one  reason or another, you may not have been thinking particularly straight or well during the period when you were planning and executing these offences. However, I see no basis upon which your moral culpability for these offences should be reduced as a result of these  mental impairments. Although, I do note that they are part of the context in which this offending occurred.

21There are some circumstances in which the  effect of a prison sentence on other members of your family can be taken into account.   I do not understand

that it was put on your behalf that I should regard the circumstance that your wife is pregnant as a special or exceptional circumstance, so that I should you give you a reduction in sentence for  that reason. I note that she became pregnant at a time when clearly you knew that these proceedings were unresolved. Therefore, it does not seem to me that it is appropriate that I give you a discount for the effect that it will have on your family circumstances or other members of your family.

22The fact is that you have family support. Your wife is, it seems, standing by you and supports you and that will help your period in custody. It will also help you when you have completed your term of imprisonment.

23Your  counsel  pressed me to apply the  principles  and guidelines  arising from the case of Boulton, which came before the Court of Appeal at the end of last year,  so as to  impose a community  corrections  order without  adding to the period that you have spent in custody already.   I note that you have now spent 39 days pre-sentence detention and Mr Dann has urged me to regard that as a sufficient  period of incarceration coupled with a suitably  drawn  community corrections  order.   The prosecution,  on the other hand, through  Ms Duckett, made  it  clear  that  an  immediate  custodial  sentence  in  excess  of  that  is necessary  in order to meet the competing sentencing  considerations.  I have given  the  matter  considerable  thought.  It seems  to  me that  this  offending conduct  with  the  element  of  planning,  albeit  not  particular  sophisticated planning or complete planning, but nevertheless  an element of planning, and a period during which you had time to reflect on your conduct means that this offence is of a kind that is too serious for me to accede to the first submission of Mr Dann.

24Nevertheless, it is his second submission that I should nevertheless impose a sentence that would allow me to also impose a community corrections order for the purposes of assisting you with your rehabilitation and incorporating sufficient punitive elements that would reduce the sentence of imprisonment

to one that is two years or less.

25The question or the issue is not without its difficulties. The language of the Court of Appeal in the decision in Boulton and indeed the guidelines is strong. It undoubtedly has changed the landscape to a point where  even  in cases such as this, the court has to consider carefully the option of avoiding a term of immediate incarceration in appropriate circumstances.

26Doing the best I can to balance the need for denunciation of  conduct  as serious as this, the need to punish you adequately for your offending conduct and the need to deter you from further conduct of this kind  or  any  other criminal conduct and particularly with the need to deter others from engaging in conduct of this kind, all of those matters have to be given proper value, but also balanced against the need to facilitate your rehabilitation as much as I reasonably  can.

27I was persuaded that it was appropriate to have you assessed for the purposes of a community corrections order. That has been done and you have    been assessed as being suitable for such an order with the recommendations that in addition to unpaid community work, that you be the subject of supervision, treatment and rehabilitation conditions addressed to alcohol abuse, assessment and treatment for mental health issues and offending behaviour programs related to the prospect of you reoffending.

28You were taken through those matters by the Corrections Office who carried out the assessment and you consented to an order being made by the court, however at that time you did not know what kind of sentence I had in mind to impose in parallel with or in addition to the community corrections order. I made that clear to Mr Dann what I had in mind without shutting him out from making further submissions and I then gave him an opportunity of discussing the matter with you and you are apparently are willing to consent to an order of the kind that I outlined.

29I am therefore able to proceed to sentence. Mohammad  Zakeri,  for  the offence the subject of Charge 1 of aggravated burglary, I convict you and sentence you to imprisonment for a period of 18 months. On Charge  2 of attempted kidnapping, I convict you and sentence you to imprisonment for a period of ten months and I order that two months of the sentence on Charge 2 be served cumulatively upon the sentence of 18 months on Charge 1, making a total effective sentence of 20 months' imprisonment.

30I decline to set a non-parole period but I couple that sentence with a community corrections order, which will commence upon your release from the term of imprisonment that I have imposed for a period of two years and in addition to the core conditions, you will be required under the terms of that order to complete 250 hours of unpaid community work.  Subject to the supervision of the Department of Corrections for that two year period and be subject to conditions that you be assessed and if found suitable, treated for alcohol issues, mental health issues and for offending behaviour programs as directed.

31The first requirement that you report to the Community Corrections Office at Dandenong, that is 46-50 Walker Street, Dandenong within two working days of the order commencing, that is upon your release from your term of imprisonment.

32I declare 39 days pre-sentence detention as time to be reckoned as served on the sentence that I have  imposed  and to  be deducted  administratively  from the time you will actually have to serve. I declare that had you not pleaded guilty to these offences, I would have sentenced you to a total of five years' imprisonment with a non-parole period of three years and six months.

33You will no doubt have been told and I need to repeat that once you have completed your sentence and the community corrections order comes into force, you will be required to comply with the terms of the order.  If you fail to

comply with the terms of the order, then you run the risk of being brought back to this court for breaching the order and for breaching the order, you could be sentenced for up to three months' imprisonment, plus you  could  be resentenced for these matters, which would almost inevitably mean a further period of imprisonment.  One of the ways in which you could breach the order would be to commit a further offence whilst the order was in force and that would involve you not just in the prospective risks of further imprisonment that I have just referred to, but also with any further term of imprisonment  that might be imposed for the offence that puts you in breach of the order.

34So it will be like a suspended sentence still hanging over your head once you have been released and that will remain for a period of two years as  a reminder to you that you need to pursue you rehabilitative measures and complete the order in order to avoid any further period of incarceration.

35I also make the disposal order for the copied key that you had prepared in advance of the aggravated burglary and which was recovered by police from the lock to the front door of those premises.

36Are there any other orders that I need make?

37MS DUCKETT: There's no other orders, Your Honour. There's one matter that I just wish to put on the record for the sake of the sentence if it is revised at some stage. In relation to the charges, there has only ever been one indictment.    So these two charges were the trial charges. Mr Zakeri was committed on four charges, but there are only ever two charges  on the indictment, being those charges that are before this court.

38HIS HONOUR: All right. I think in all other respects, my sentencing remarks are accurate in that there were earlier charges, which ultimately resulted in the indictment being drawn in the way that it was.

39MS DUCKETT:  Yes.   But there was no other indictment.  This was not a plea

indictment, this was the trial indictment and I am just required to put that on that on the record.

40HIS HONOUR: Yes, all right. That is on the record, thank you. Now the community corrections order is just being drawn up. Mr Dann, would you accompany my associate to ensure that your client knows exactly what he is being asked to sign.

41MR DANN:  Yes, Your Honour.

42HIS HONOUR: All right, I have signed that order.  It is now in place.