DPP v Halabi
[2013] VCC 1370
•25 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00499
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAHMOUD HALABI |
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JUDGE: | His Honour Judge Parsons | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2013, 10 July 2013, 19 September 2013 | |
DATE OF SENTENCE: | 25 September 2013 | |
CASE MAY BE CITED AS: | DPP v Halabi | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1370 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N Todorov | OPP |
| For the Accused | Mr S Andrianakis | Stephen Andrianakis & Associates |
HIS HONOUR:
1 You, Mahmoud Halabi, have pleaded guilty before me to one count of armed robbery.
2 This crime arises out of circumstances which were opened in some detail by Mr Saunders who appears on behalf of the prosecution. And those matters are set out in Exhibit A, the Crown opening.
3 In broad compass the matters with which I am concerned arise in the following way: You were part of a group of at least six males who committed armed robberies over a ten month period in the north and north-eastern suburbs in 2012. Your various co-accused are nominated as Ahmed Chebib who is 20; Mohamed Elrajeb who is 19; Mohamed Abdou who is 20; Abdoullah Ghazi who is 18; and Erik Lahteenmaa who is 26.
4
Erik Lahteenmaa has pleaded guilty to one count of armed robbery with respect to an incident which occurred in January 2012, and of course you were not involved in that incident and I have previously sentenced
Mr Lahteenmaa in respect of that matter.
5 The other accused are listed for various committal hearings in the Magistrates' Court and the Children's Court, but their matters have not yet been finally disposed of, as I understand it.
6 On Thursday 19 April 2012, Chebib, Abdou and you attended at the Furlan Club in Thornbury. You and the other two males were seen to circle the venue a number of times, ordering drinks and playing the machines. The reason you did that was to conduct reconnaissance in preparation for an armed robbery.
7 On Monday 23 April, Chebib, Abdou, Ghazi and you met at the tennis courts in Campbellfield where Chebib distributed firearms and disguises. Chebib was armed with a pump-action shotgun, you were armed with a handgun, whilst Abdou and Ghazi were armed with other firearms. All four of you then travelled to the vicinity of the Furlan Club in Thornbury. You and Chebib were driving in Chebib's car and the others in another vehicle. You parked several streets away before travelling to the venue in Abdou's vehicle.
8 Approximately 8.19 pm Abdou sought to enter the club to conduct reconnaissance, but when he attempted to enter the front doors he found them to be locked. He then walked away. You four then changed your plans and decided to wait until the venue closed and you then lay in wait behind bushes at the far end of the car park for the staff to commence leaving.
9 At 11.20 pm, two staff members and a security guard left the venue and walked to the car park. Chebib, Abdou, Ghazi and you confronted the staff, brandishing your firearms. You forced all three to lay on the ground, tied their hands behind their backs with duct tape and whilst doing this, on of your number struck a 62 year old staff member to the forehead with a firearm.
10 Once secured the staff were forced back into the gaming venue at gunpoint. Inside the venue Chebib forced a staff member to the strongroom and demanded he open the safe. The remaining two staff members were managed in the gaming area by you and the two others. At that time, cash from the gaming machines, coin canisters and cashier's drawers was also stolen, as well as an Apple iPhone from one of the staff members. Each of you wore balaclavas and gloves to conceal your identity. The total amount stole was $43,565.
11 On 1 November you were arrested at your home by the Special Operations Group and conveyed to the St Kilda Road Police Station where you made a recorded interview. During that record of interview you made full admissions to attending the club on 19 April for the purposes of conducting reconnaissance and to committing the armed robbery on 23 April in the company of the three others. You subsequently provided a signed statement about your own, Chebib, Ghazi, Abdou's involvement in the armed robbery.
12
Clearly the aggravating aspects of the offence include the element of
pre-planning, disguise and the use of weapons and it is a most serious example of the offence or armed robbery.
13 No victim impact statement has been tendered in the matter, although of course it is clear from the depositions and the material before me in the depositions that there was considerable suffering on the part of those victims, as is referred to in the opening document.
14 Ms Torov, that's right, is it, there has been no victim impact statement tendered?
15 MS TOROV: That is correct.
16 HIS HONOUR: Thank you.
17 As was pointed out by your counsel, Mr Gwynn, there are a number of mitigating factors. Firstly you have pleaded guilty and you are entitled to have that fact taken into you account in your favour and I do so. The community has by your plea been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial.
18 I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial. Further I take it into account in your favour that you intimated early your intention to plead guilty to these charges. The circumstances of the apprehension and of course their ready admissions and very extensive admissions you made to your part in the crime. In the circumstances I accept that in your case, your plea does indicate true remorse for your actions.
19 The matters highlighted in particular by Mr Gwynn on your behalf were indeed your significant, as he described it, early plea of guilty and that there was no contested committal.
20 With respect to the possession by you of the firearm, it was noted it was provided by Mr Chebib. On your instructions you simply had no knowledge of whether or not it was loaded and you returned the firearm to Mr Chebib at the end of the evening.
21 Thirdly it was stressed on your behalf that at the time of your offence you were aged 18 years and four months, meaning those authorities relevant to young offenders very much apply to you.
22
You have one prior matter and that is in the Heidelberg Children's Court on
11 April 2012, when without conviction the matter was adjourned for a period of six months upon you entering into a good behaviour bond. Those matters for which you were before the court included shop stealing, dealing in property suspected of being the proceeds of crime, retention of stolen goods, forging a number of documents required by the Road Safety Authority, use of unregistered motor vehicle on a highway and drive without L-plates displayed.
23 Another matter stressed on your behalf by Mr Gwynn was the fact that you made a very extensive record of interview, in which you responded to over 800 questions and you fully co-operated with the police. Indeed without the extensive admissions made by you concerning you and your co-accused and what happened on the evening, the police would not have been possessed of the detail that they now have with respect to those various matters. As it was pointed out by Mr Gwynn on your behalf, identity would have been a very significant issue in this particular offence, particularly your identity and your ready admissions with respect to that matter are to be taken into account in your favour and I will do so as directed by the relevant authorities.
24 Of course with respect to your personal history and your circumstances, I have been told a great deal and in particular I had the advantage of a number of very detailed reports, including one prepared by Patrick Newton, a well respected forensic psychologist, who gives evidence regularly before the courts. That is dated 19 June 2013 and there was an addendum to that report, which was a letter from Mr Newton, dated 9 July 2013.
25 In addition to those matters there was also a provision of further exhibits, being reports that I called for on the previous occasion of your sentencing submissions and these comprise Exhibit D, which is the Department of Human Services report concerning your suitability assessment for a youth justice centre sentence. There is also Exhibit C, which is a Forensicare report, dated 27 August 2013, prepared by Dr Remi Glowinski and finally there is a pre-sentence report, Exhibit E, which is dated 21 August 2013.
26 I should refer in this context to one further document that was provided to me, which is Exhibit 3, a letter concerning the fact you have been a casual labourer.
27
I think it appropriate in the circumstances to refer to the background material set out in Mr Newton's report, although of course this is reflected in the other materials that are also put before me. I should note of course also that
Mr Newton gave extensive evidence and was
cross-examined on 19 September, both with respect to explaining matters in his own report and also reflecting upon the matters which were raised in the pre-sentence report, the Forensicare report and the youth justice centre suitability report. I found his evidence most helpful and I agree with it.
28 You are the youngest of three brothers, born to Lebanese immigrant parents. Your mother and one of your brothers were present in court on the occasion of your plea. You said your parent's relationship was harmonious and you deny any family history of alcohol or drug abuse, mental illness or criminality. Your first language in Arabic, although you now consider English to be your first language, but you speak Arabic to your parents.
29
You attended primary school in Campbellfield and secondary school in Fawkner. You acquired functional literacy slowly and your reading ability remains rudimentary and you have never really mastered numeracy skills. You experienced pervasive academic difficulties throughout your schooling and became increasingly disengaged from your studies as time progressed. Your problematic behaviour included truancy and fighting and you failed
Years 7, 8 9 and 10 and ultimately you were asked to leave school, part way through your repetition of Year 10.
30 You then began training as a spray painter's apprentice, completing two years before coming disenchanted with the work and leaving. You were then unemployed for about a year before you found intermittent work as a labourer.
31 You reported a history of drug use from the age of 17. You used cannabis on approximately a weekly basis until your 18th birthday and you then commenced using amphetamines, chiefly methamphetamine on your 18th birthday celebration and you engaged in compulsive use from your 18th birthday onwards. In that context you lost your job, experienced problems with your relationship, became increasingly estranged from your family. You told Mr Newton your use of ice remained at high levels until your arrest on this matter in November 2012.
32 With respect to the offending, you told Mr Newton that you had committed the offence in the company of an older co-accused, including Mr Chebib, whom you described as your best mate and who had introduced you to methamphetamine.
33 You expressed remorse and regret for your offending and you had some insight into the likely effects of your behaviour and the others involved as observed by Mr Newton.
34 You clearly continued a struggle with a severe drug problem and Mr Newton's observation was that your use of cannabis and various stimulants, especially ice, was compulsive, intense and severely detrimental to your adjustment.
35 I note, particularly under the heading of "Immaturity" that it was Mr Newton's opinion that you remain a very immature person for your age. Mr Newton developed this particular opinion, both in his written report and in the evidence before me. And I accept what he had to say with respect to this matter. He noted that your sense of direction in life remained diffuse and your identity development was regarded as at its formative stage. Your social reasoning reflects your immaturity. It is unsophisticated and tends to consider only a limited range of options before you foreclose on a solution.
36 You are, in Mr Newton's view, highly susceptible to the influence of those around you and you turn for guidance to those who manifest the bravado and machismo to which you aspire. Of course it was that tendency that brought you under the sway of your co-accused. It was also Mr Newton's view that it is likely to have significant potential to cause you ongoing problems in the event that you find yourself in a custodial environment.
37 It was Mr Newton's view that the personality traits described by him in that context are not yet an integrated part of your makeup. Nevertheless the traits go beyond normal tendencies to the verge of what is referred to as a "Cluster B personality disorder. Mr Newton explained this concept to me in his testimony and again I agree with his views as expressed to me in his report and in his oral testimony.
38 I note it was his view that appropriate treatment, education and rehabilitative programs in a structured environment, where your compliance can be monitored, would be the appropriate and preferred means of dealing with your situation at present.
39 By now I think it appropriate to refer to Mr Newton's opinion where he said at p.6 of his report, "Mr Halabi remains a very immature man for his age. He has made only piecemeal progress towards the transition to mature identity and his vocational, social and interpersonal maturity remains formative. Moreover his views on major life issues remain adolescent and his sense of identity is diffuse. Mr Halabi's social reasoning is poor and he tends to be impulsive and to make decisions that are both self-defeating and risky. Of particular concern he is prone to seek the influence of others who manifest the bravado and machismo to which he aspires. This underpins his association with his co-accused and constitutes a significant criminogenic risk factor in his own right. These personality problems are exacerbated by his drug use."
40 In his concluding comments, Mr Newton said, "It's clear that without consistent and extended engagement in treatment, Mr Halabi's problems will only grow worse, so that they will continue to undermine his potential to participate productively as a member of the community. Speaking in terms of his rehabilitation, which is acknowledged to be only one of the several factors of relevance to the court's decision making, the most important component of any rehabilitation would appear to be participation in structured long-term drug counselling and education."
41 Mr Newton in turn relied upon the views expressed by Dr Glowinski in his report from Forensicare, which is Exhibit C, and particularly relied on paragraph 30, "There is some evidence suggestive of personality difficulties, although in such an immature individual, it is difficult and unwise to make a definitive diagnosis of personality disorder. In my view there are a number of potential trajectories for Mr Halabi's future, depending on his future choices regarding criminality, substance use, vocation and relationships."
42 I asked Mr Newton to comment upon the views expressed by Mr Reardon in the suitability assessment for the Youth Justice Centre sentence, which can be characterised as lying on the other side of the equation from those expressed by Mr Newton and Dr Glowinski. It was Mr Reardon's view that he was unconvinced as to whether your are committed to change, or whether you were motivated to getting out of prison. Also he was concerned about how you would be managed in the more relaxed youth justice setting and the impact your serious criminal offending and bravado would have on some of the more vulnerable and impressionable clients. Ultimately it was his view that you did not fit the criteria stipulated in the Sentencing Act and therefore were deemed as an unsuitable candidate for a Youth Justice Centre Order.
43 As I say, these matters were fully agitated before me and Mr Newton canvassed the various views and I think gave a very considered, thoughtful and very helpful analysis of the matters.
44 I prefer the analysis of Mr Newton and Dr Glowinski in preference to the views of Mr Reardon and for the reasons set out by Mr Newton in his oral evidence. It seems to me that the concerns Mr Reardon has are not yet as concretely established as he believes them to be, but rather there is a distinct opportunity for you to be moulded appropriately in the way characterised by Mr Newton, whilst in the youth justice system. Of course one can never be certain about these matters, but it seems to me the preponderance of opinion is in that direction and I adopt that for the purposes of sentencing.
45 What is also of significance is the fact that when I remanded you in custody you were attacked whilst in prison.
46 I accept and act on the basis that this was an act of retribution, organised by your co-offenders, because you had made a statement inculpating them and that fact was known to them. As a consequence, you spent three weeks, I believe, in lockdown mode, that is 23 hour custody on a daily basis. And I have no doubt that was a traumatic experience for you, especially given your age and circumstances, as set out in the various reports.
47 Ms Todorov, how long has Mr Halabi spent in custody to date?
48 MS TODOROV: 77 days, not including today.
49 HIS HONOUR: Thank you. Ms Andrianakis, do you agree with that?
50 MR ANDRIANAKIS: Correct, Your Honour.
51 HIS HONOUR: Thank you.
52 You have now spent a total of 77 days in custody and well understand that if you choose to act in such a way that you are deemed unsuitable, whilst serving your sentence in the youth justice system, you will then be moved back to the adult system.
53 This will be entirely a matter for you, of course, as to whether or not you comply with the directions of those around you in the youth justice system. If you do there is every reasonable prospect to hope that your personality will be moulded in the was expressed by Mr Newton, with appropriate role models and with appropriate values. In any event, as I say, the choice ultimately will reside with you and you will understand the results of making the wrong decision.
54 With respect to your role in the offending, I act on the basis that you are indeed a very young and very impressionable member of the group and you were only involved in a single armed robbery, so therefore the various propositions relating to youthful offenders apply to you, as was submitted on your behalf.
55 Of course as well as those matters personal to you, to which I have referred in some detail, including the question of rehabilitation, I must always take into account such matters as a deterrence and especially general deterrence, which is of considerable importance in a case such as this, involving as it does, elements of pre-planning, disguise and the use of weapons in what can only be regarded as a very serious example of armed robbery. Specific deterrence at this stage does not loom large, given you are very young and the fact that you have only one prior matter. Although of course, it is a matter to which I have some regard.
56
I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending, which I find to be very much dependent upon the way in which you respond to the Youth Justice Centre sentence, which I intend to impose in your case. If you are compliant and accept the directions of those around you within that system, there are good prospects for your rehabilitation, as explained by
Mr Newton, but as I say, that matter is in your hands.
57 There clearly has been some delay in the matter in the sense that the offence was committed one and a half years ago and I have no doubt that the passing of that time has been a cause of anxiety for you. And further that you have utilised the passing of that time to effect in some way your rehabilitation, particularly given the fact you have abstained from drugs in the way explained and you have not been in any further trouble since.
58 An application has been made for an intimate forensic sample to be taken from you and you have not objected to this. In the circumstances I am satisfied that it is in the interests of justice that an intimate forensic sample previously taken from you be retained. That has not been opposed by you and I will make that order.
59 Yes, if you would stand please Mr Halabi.
60 This is without doubt a serious offence and in all the circumstances I have no alternative to the imposition of a custodial sentence, but I am satisfied in the circumstances, particularly in view of the material made available to me and the matters raised by Mr Newton and to which I have referred, that you satisfy the provisions of the relevant section of the Sentencing Act, with respect to your suitability for a Youth Justice Centre Order. And with conviction you are ordered to be detained in a youth justice centre for a period of three years.
61 I declare that the period of time you have spent in custody with respect to this matter is 77 days and I direct that such be noted in the records of the court.
62 Yes, please be seated Mr Halabi.
63 Now anything further, Ms Todorov?
64 MS TODOROV: Only a s.6AAA declaration, Your Honour.
65 HIS HONOUR: Yes, thank you.
66 Had you not pleaded guilty, for the purpose of s.6AAA, I would have ordered a sentence which would have been served in the adult prison system. I do not know ultimately, I thought that if - that is probably sufficient in the circumstances. Is it necessary - I do not think it is necessary when there is a Youth Justice Centre Order, as opposed to an adult order for s.6AAA, is that?
67 MS TODOROV: Sorry to say, Your Honour, this is an area that I'm not too sure of.
68 HIS HONOUR: Thank you. All right Mr Halabi, I think - as I say, you have been given the opportunity now to do the things that people tell me you can make the right choices if you go into that system and it is all up to you. Of course you need to understand that the consequences of making the wrong decisions, whilst in the youth justice system, mean that you go back and you serve the balance of the three years in the adult system and that clearly is nothing that would benefit you, nor I suspect those around you. But it is all up to you. It is a matter of your choosing and ultimately of course I hope you make the right decisions for you.
69 All right Mr Halabi, thank you. Yes, thank you officers, if you would go with them please Mr Halabi. And I think that concludes this matter. And we will adjourn until tomorrow.
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