Director of Public Prosecutions v Zakzouk, Omar
[2012] VCC 2060
•19 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01667
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OMAR ZAKZOUK |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2012 | |
DATE OF SENTENCE: | 19 December 2012 | |
CASE MAY BE CITED AS: | DPP v Zakzouk, Omar | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2060 | |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Armed robbery
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: Total effective sentence 24 months, 12 months non-parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr M. Phillips | Victoria Legal Aid |
HIS HONOUR:
1 Omar Zakzouk, you have pleaded guilty to one charge of armed robbery.
2 Armed robbery carries a maximum penalty of 25 years’ imprisonment.
3 You are presently 35 years old, having been born on 26 February 1977, and you were also that age when this offending occurred in June this year.
4 You have a criminal record commencing in the Prahran Magistrates' Court in 1995 when you were aged 18 with convictions and fines on two charges of obtaining property by deception. Some eight more appearances in various Magistrates' Courts followed, the last in October 2011 for the breach of an adjourned undertaking imposed in October 2010 for driving without a licence. On that occasion you were again convicted and fined.
5 I note that in 1998 you were placed on a 12-month community‑based order for burglary and attempted theft, which you subsequently breached. You were then given a 2-month wholly‑suspended sentence which you also breached. You were then given a third chance on these offences, with the suspended sentence being extended for another six months in 2001.
6 You next came before the court in May 2004 on a theft charge; then in October 2010 on the driving without a licence charge for which you again received an adjourned undertaking, which you again breached and on which you were, in October 2011, again convicted and fined.
7 The current offending occurred some 18 months later. The circumstances of this offending are as follows:
8 On Saturday 16 June 2012 at approximately 4.40 a.m. you waved down a taxi. The victim, the taxi driver, stopped his taxi and you entered. You asked if he could take you to Epping. He quoted $20 to $30 and asked for upfront payment. You said you would pay on arrival as you needed to stop at a bank. The driver replied that you would have to pay up front or leave.
9 At that stage you leant forward and took the driver's phone from the centre console. You also produced a butter knife and said "Give me all your money, I have more friends with me".
10 The knife has been described as having a 3 to 4-centimetre blade. You kept repeating your demands for money five to ten times.
11 The driver said he would give you the money, got out of the car and walked to the passenger’s door. You also got out. The driver then attempted to retrieve his mobile phone from you. You then raised your right hand with the knife and made four to five stabbing motions towards the driver's face. This scared the driver, he stepped back, and you ran away. The driver gave chase for a short distance but fell.
12 The matter was reported to police and you were subsequently arrested later that evening.
13 You participated in a recorded interview and made full admissions. You stated that you had had a heroin habit for eight to ten years, were prescribed Xanax but had not taken your medication. You had taken the butter knife with you from your home earlier that night but had not originally intended to do an armed robbery.
14 You have admitted prior convictions for road traffic and property offences as I have indicated before, including burglary, all heard in the Magistrates' Court, and you have breached both a suspended sentence and a community‑based order.
15 You have described your early life as depressing, largely based on your father's protracted illness. You never knew him to work. He was very strict and there were never any holidays. He eventually died of lung cancer 12 years ago when you were 23.
16 You still live with your mother and a brother. Your mother is 65 and suffers tablet-dependent diabetes and high blood pressure.
17 You have three brothers and three sisters, none of whom has been in any trouble with the law and none of whom has been involved with illicit drugs.
18 You described yourself as being below average at school, left at 16 and did a short TAFE course. You subsequently worked as a cleaner and street sweeper. You have had minimal employment since age 22.
19 You have been a regular cannabis user since the age of 15 and in recent years have taken to having heroin three times a week. Your mother and siblings are aware of the fact that you are now a chronic heroin user. You have made attempts to reduce your heroin intake.
20 You have no previous history of violence.
21 A report from Mr Jeffery Cummins, clinical and forensic psychologist, was tendered on your plea. Mr Cummins reported that you presented as depressed and sad and give a history of longstanding depressed feelings. You also admitted to having used heroin and cannabis. From his interview and psychological assessment, Mr Cummins concluded that you suffered from a dysthymic disorder triggered by your father's ill health and dating from your teenage years. Furthermore, you gave the impression that you may have a dependent personality style, had become dependent on cannabis and had transferred your dependency onto heroin. You did not present as being psychotic or schizophrenic or having any personality disorder.
22 Mr Cummins also noted that you spontaneously expressed remorse regarding your offending and indicated you were feeling disgusted with yourself for having committed an act of violence and in particular, an armed robbery.
23 In Mr Cummins' opinion, your heroin dependence would exacerbate your feelings of depression and your mental health would deteriorate if you were sentenced to imprisonment. From a clinical perspective you require residential drug rehabilitation.
24 A report has been obtained assessing your suitability for a community correction order. The order is positive, notwithstanding that you previously breached a community‑based order which was imposed in 1998.
25 Your offending is obviously serious. It involved an approach to a vulnerable driver and a threat with a knife. Attacks of this nature on taxi drivers are not uncommon and a source of great anxiety to those engaged in that occupation. The victim was stoic, conceding there was no serious injury but expressing the very understandable fear that he continued to feel in his occupation.
26 Principles of general and specific deterrence require emphasis, and ordinarily an offender should expect a sentence of imprisonment to be immediately served and for a significant period.
27 In mitigation I accept that you have a longstanding drug addiction with underlying dysthymic disorder. The fact that you were drug-affected at the time of the offence is not a mitigating factor, but your longstanding disorder and circumstances of addiction can be taken into consideration. You pleaded guilty at an early stage, at committal mention, you have not before committed any offence of violence and have not seriously offended for 11 years despite your drug addiction and mental state. You have the support of your family.
28 Whilst you have breached both a community‑based order and suspended sentence in the past, I infer that in each case there had been substantial compliance because of the dispositions recorded on the breach proceedings. You have expressed remorse and self‑admonishment.
29 Whilst the particular circumstances of this offence might be said to be less serious because the knife was a simple butter knife, the objective gravity remains high. It was, nonetheless, a knife, and when the driver sought to resist you taking his phone, you made four to five stabbing motions towards his face causing him to back away. Furthermore, you do not come before the courts as a first offender, you are aware of your heroin addiction, you have had the benefit before of court-directed courses to assist your rehabilitation but you re-offended nonetheless. You had been medicated by prescription drugs, but chose to cease that medication and instead continued to take the illegal course of using heroin and cannabis.
30 You have been assessed as suitable for a community correction order. Whilst I accept that clinically the best hope for your rehabilitation is by treatment for your drug addiction and dysthymic disorder outside a custodial environment, in my opinion the objective gravity of your offending, the circumstances of this particular offence, your personal circumstances and your history of previous offending prohibit the appropriateness of that course as a balanced sentencing disposition. You will have the opportunity for treatment whilst in custody and should apply yourself conscientiously to that opportunity.
31 I accept that there are aspects of your case that suggest that the prospect of your rehabilitation remains open. In arriving at the ultimate sentence I have provided for a shorter non‑parole period than I otherwise would have to provide a longer period under the supervision of the Adult Parole Board.
32 Mr Zakzouk, would you please now stand.
33 On charge 1 of armed robbery you are convicted and sentenced to two years’ imprisonment.
34 I direct that you serve a minimum period of 12 months’ imprisonment before being eligible for parole.
35 Pursuant to s.6AAA of the Sentencing Act, but your for your plea of guilty, the sentence that would have been imposed is three years’ imprisonment with a minimum period of two years to be served before eligibility for parole.
36 I declare that the period you have already spent in custody on this matter, namely, 20 days not including today, be reckoned as a period of imprisonment already served under this sentence and is to be deducted administratively.
37 At the plea hearing the Crown sought an order for the taking of a forensic sample of a scraping from the mouth and/or a blood sample, and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, your prior convictions are such as to warrant the making of the order, the order is by consent and the making of the order is in the public interest.
38 I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to allow that forensic procedure to be completed. Do you understand that?
39 PRISONER: Yes, sir.
40 HIS HONOUR: At the plea hearing the Crown also sought an order for compensation for the victim, the taxi driver, in the sum of $1,000 to which you consented and I have also made that order today.
41 Mr Zakzouk, you may be seated. Thank you. Are there any other matters from either counsel?
42 COUNSEL: No, Your Honour.
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