DPP v Al Batat
[2020] VCC 1155
•30 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-19-01411
Indictment No. K10380612
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMMAR AL BATAT |
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| JUDGE: | HER HONOUR JUDGE DALZIEL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 July 2020 |
| DATE OF SENTENCE: | 6 August 2020 |
| CASE MAY BE CITED AS: | DPP v Al Batat |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1155 |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Armed Robbery – Make threat to kill – Process a Drug of Dependence – plea of guilty
Sentence:Total effective sentence of 9 months’ imprisonment followed by an 18 month community correction order
Section 6AAA declaration: Three years’ imprisonment, non-parole period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Brown | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Lewin | Emma Turnbull Lawyers |
HER HONOUR:
1.Ammar Al Batat, you have pleaded guilty to one charge of Armed Robbery, one charge of Making a threat to kill, one charge of possession of a drug of dependence, namely Cannabis, and a related summary offence of fraudulently using a licence plate, pursuant to Section 72(1A)(b) of the Road Safety Act.
2.The applicable maximum penalties are 25 years for Armed Robbery, 10 years for making a threat to kill, and in the circumstances of this case the maximum penalty applicable to the charge of possession of cannabis is 5 penalty units. The maximum penalty for the summary offence is 60 penalty units or 6 months’ imprisonment.
3.These offences were committed on 12 February 2019, when you were 23 years old.
4.The victim had met up with a female friend of yours, NA, for a date. They went to the Lakeside Motel in Taylors Lake, where they had sex, and then fell asleep. In the early hours of the morning the victim woke to find you sitting next to the bed. He did not know you.
5.You were holding a flick knife with a black handle. You pointed the knife at the victim holding it around 10 cm from his throat and said words to the effect of, “You move or you talk I’m going to kill you.” That conduct gives rise to Charge 2, making a threat to kill.
6.You told the victim to remove his watch and he did so, handing it over to you. You took his mobile telephone from the bed and demanded that the victim give you the PIN, which he did as he was frightened that you would harm him.
7.You then used the victim’s phone to film him. The footage on the phone shows you holding the knife in your hand. You and NA began to argue in a language that the victim could not understand. You removed the victim’s wallet and car keys from his pants’ pocket.
8.You and NA went outside to your car. The victim followed you and you told him to stay where he was. He was frightened that you would produce the knife again and so he ran away, dressed only in his underpants. At 2.30 am he knocked on the door of a house, to seek assistance. The man who he spoke to observed that the victim was shaking. Police were called and attended a short time later.
9.The police and the victim went back to the Lakeside Motel. The victim pointed out your car. You left the motel room and you were arrested. You told the police that you had gone into the room and found the victim and NA in bed, and that you had threatened to hit the victim. You admitted you had a ‘cooking knife’ but denied pointing it at the victim.
10.You told the police that the victim’s clothing was in your car, and that his keys and wallet were in the pockets of your pants. When you were searched the police also found a bag of Cannabis in your bag. You were also wearing the victim’s watch. You initially claimed the victim’s mobile telephone was yours.
11.The registration plates on your car were found to be not the ones that related to its actual registration.
12.You were formally interviewed by police. You told them you had gone to the hotel room as NA had called you and asked you to bring some food. When you arrived you saw NA and the victim in bed together, and told the victim to get out, which he did without taking his clothes. You denied threatening the victim, but said you told him NA was married with a child. You said the victim apologised and then ran as he thought you were NA’s husband. You said you had the victim’s clothes, phone, wallet and car keys as he took off and you did not have the opportunity to give them to him, and thus you put them in your car. You said that you had a knife but you did not point it at the victim. You said you took the victim’s watch as it was all he had on him. You said the Cannabis in your bag was not yours.
Personal Circumstances
13.You were born in Australia. When you were young your family returned to Iraq, and you returned to Australia when you were an adult. I note that your criminal history commences in Victoria 2015 when you were 19 years old, and you have had court appearances in Queensland, in 2013 and 2017. You have very limited family support here in Australia.
14.You have a history of substance abuse, commencing with Cannabis and methylamphetamine at a young age. You continue to have issues regarding drug abuse, although you are apparently clean whilst in custody. Previous sentencing orders in the Magistrates’ Court have included provision for assessment and treatment for drug abuse or dependency, in 2015, 2016, and possibly in 2018.
15.You have no diagnosed mental health issues, although I note in that respect that in a CCO imposed in 2016 the conditions included provision for assessment and treatment in respect to your mental health. Your lawyer has noted that whilst growing up in Iraq you witnessed traumatic events, and no doubt this has had an effect on you.
16.You have had some employment in the past, from time-to-time. You are offered a place to live with friends upon release from custody.
17.I referred to your criminal history earlier. It includes mainly driving related offending, but also dishonesty offences, and assault. You have failed to comply with bail orders and breached community correction orders. Whilst the offences that have brought you before courts in the past are not nearly as serious as the ones you are now being sentenced for, they show a concerning disregard for the law and court orders.
18.I note that you were subject to a CCO at the time of this offence, which is an aggravating factor.
19.You have now spent nearly 18 months on remand. You were charged and remanded in custody on the day of the offence, 12 February 2019. You were committed for trial in July 2019, with a trial date set of 20 July 2020. You unsuccessfully applied for bail on 5 June 2020. Whilst you have been on remand you have served a sentence of 3 months, regarding breached community corrections orders.
20.Your time in custody has, recently, been more onerous due to the COVID-19 restrictions. You have had a considerably reduced time out of cell each day, and like all people in custody you have not been able to have any in person visits.
21.Also by reason of the restrictions due to the COVID-19 pandemic your trial was put off until some time next year. Your plea of guilty means that no trial needs to be run, and no witnesses need to be called. In view of the effect of the many adjourned trials upon the operation of the Court your plea carries real weight in mitigation, and more than would usually apply to a plea of guilty.
22.Your plea is not accompanied by remorse – you told the Corrections officer who interviewed you that you deny the offending and have pleaded guilty for practical reasons, only.
23.Armed robbery is an inherently serious offence. It carries a maximum penalty of 25 years' imprisonment. This was by no means a minor incident. The victim was asleep and woke to find you beside the bed, with a knife. The threat to kill made by you was accompanied by a knife held close to the victim. The whole experience must have been terrifying. The victim was so frightened that he ran away dressed only his underwear. The absence of a victim impact statement does not mean that the effect on the victim cannot be taken into account.
24.The principles of denunciation, just punishment, and protection of the community all carry real weight in the sentencing exercise, as does general deterrence.
25.Specific deterrence is also relevant. Whilst I am sure you do not wish to be imprisoned again, you have work to do to remain offence free. You are still a young man, and your rehabilitation is something I seek to promote by sentencing you as I do.
26.On Charges 1 and 2 you are sentenced to an aggregate term of imprisonment of 9 months, to be followed by a community correction order for a period of 18 months. That CCO will have the usual conditions, and the following special conditions:
26.1.Supervision;
26.2.Assessment and Treatment in respect to drugs;
26.3.Assessment and Treatment in respect to your mental health; and
26.4.That you undertake any programs as directed to address offending behaviour.
27.Mr Al Batat, do you understand what the CCO consists of and what you will be obliged to do? Can you please be unmuted? Thank you.
28.Sorry, Mr Al Batat, I could not hear you before.
29.OFFENDER: Yes, Your Honour, I understand.
30.HER HONOUR: Do you consent to the CCO being made?
31.OFFENDER: Yes, Your Honour.
32.HER HONOUR: All right. Now, it is going to be sent through to the people - you are at MRC. Please make sure that you sign it - - -
33.OFFENDER: Yes.
34.HER HONOUR: - - - before you are released from custody. All right?
35.OFFENDER: Yes, Your Honour.
36.HER HONOUR: Otherwise, it is a mess.
37.The other thing I need to advise you is that you need to report to Corrections as set out on the document within two working days. You report by making a telephone call. You do not have to go to the Corrections office, do you understand?
38.OFFENDER: I understand, Your Honour.
39.HER HONOUR: I am going to remind you that the order can be breached if you do not comply with the terms of it or if you reoffend during the period of its operation. If you do so then you will be required to appear again before me for a contravention hearing and in such a hearing, I would need to resentence you on these charges as well as on the charge of contravention of CCO and that itself carries a maximum penalty of 3 months.
40.In respect to Charge 3, possess drug of dependence, and the related summary offence, I find the offences proven and you are otherwise discharged in respect to those offences pursuant to Section 73 of the Sentencing Act 1991.
41.Under Section 6AAA Sentencing Act 1991 (Vic), I note that had you not pleaded guilty, you would have been sentenced to a total effective sentence of 3 years' imprisonment, with a non-parole period of 2 years.
42.I declare, pursuant to Section 18(4) Sentencing Act 1991 (Vic), that you have served 274 days of the sentence I have passed upon you and I direct that this be entered into the records of the court.
43.And I will make the disposal and forfeiture order sought by the Crown.
44.Now, that is the end of the sentencing reasons.
45.Mr Lewin and Ms Brown, I calculated 274 based on six months from today. Do you want to check that?
46.MR LEWIN: I am not sure, I apologise, what Your Honour means by six months from today.
47.HER HONOUR: Sorry, nine months from today. I am having trouble with my calculations. So I added nine months on today and then did a count of the days between using the date calculator. Perhaps if you and Ms Brown want to check that once we concluded and if the declaration is wrong, I can amend that in the orders.
48.MR LEWIN: In my submission - not much or anything turns on it, so I am just raising it, it may - in my submission, it is more appropriate to recognise the 417 days that he has available. Pardon?
49.HER HONOUR: No, I will only declare the - I have sentenced him to nine months and so I declare nine months PSD. The other time then remains is either dead time or if he falls to be resentenced, then that can be part of any declaration.
50.MR LEWIN: As Your Honour pleases. On a resentencing exercise, it would be Lew v The Queen regardless where the time would get retriggered.
51.HER HONOUR: That's right.
52.MR LEWIN: I am not agitating too far. If that is Your Honour's view, then 274. I would not take issue with that.
53.HER HONOUR: All right. Ms Brown, do you want to say anything about that?
54.MS BROWN: No, Your Honour.
55.HER HONOUR: All right. So it is my intention that Mr Al Batat be released today and that he be processed through and sign the CCO and then make contact with Corrections.
56.Is there anything else that needs to be addressed?
57.MR LEWIN: Nothing further. As Your Honour pleases.
58.HER HONOUR: Ms Brown?
59.MS BROWN: No, Your Honour. As Your Honour pleases.
60.HER HONOUR: All right. Thank you. If you could adjourn the court please.
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