DPP v Ibrahim

[2018] VCC 1142

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00513

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUSTIN IBRAHIM

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	18 July 2018
DATE OF SENTENCE:	26 July 2018
CASE MAY BE CITED AS:	DPP v Ibrahim
MEDIUM NEUTRAL CITATION:	[2018] VCC 1142

REASONS FOR SENTENCE
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Subject:Aggravated carjacking, reckless conduct endangering serious injury, youthful offender, prospects of rehabilitation, minimum non-parole period to apply in the absence of special reasons

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Bate	OPP
For the Accused	Mr M.McGrath	James Dowsley & Associates

HER HONOUR

1Justin Ibrahim, you have pleaded guilty to a charge of aggravated carjacking committed by you on 15 October 2017.  That offence carries a maximum penalty of 25 years’ imprisonment.  You have also pleaded guilty to a charge of reckless conduct endangering serious injury, an offence that carries a maximum penalty of five years’ imprisonment.  That offence was committed by you whilst driving the stolen car in the early hours of 16 October 2017.

2At the time you committed the aggravated carjacking you were on bail imposed by the Werribee Magistrates’ Court on 12 September 2017.  You have pleaded guilty to committing an indictable offence whilst on bail, an offence that carries a maximum penalty of 3 months imprisonment.

3You were 23 years of age at the time of the offending.  You are now 24 years old.  You have been remanded on these offences since your arrest on
16 October 2017.

Circumstances of Offending

4The circumstances of your offending are set out in the prosecution opening that were tendered in these proceedings and marked Exhibit A.  It is not my intention to repeat the entirety of that summary.

5Briefly, on 15 October 2017 the victim in this matter, 24-year-old Syed Ali, was sitting in his wife’s car, a 1998 Holden Commodore near Chirnside Park when he was approached by you.  You asked him for a cigarette.  You then began a conversation with Mr Ali, telling him that your name was “Jack”.

6After talking for a while, you told Mr Ali you had missed your bus, asking him for a lift home.  Mr Ali said he could drop you off near the racecourse close to his home and you got into his car.

7As Mr Ali approached the turn off to Racecourse Road, you asked him to continue along the road he was travelling, directing him to drive towards an industrial area without street lights or houses.  You then asked him to pull over under the pretext of needing to go to the toilet.  Once Mr Ali had parked at the side of the road, you got out of the car, walked around to the front driver’s door and demanded that he get out of the car.  Mr Ali reluctantly left his vehicle.  You then demanded the keys to the car.  Mr Ali refused, stating “I will not give”.

8At this point, Mr Ali saw you were holding a knife in your right hand.  You made a second demand for the keys.  In fear, Mr Ali ran back towards the road.  You gave chase to Mr Ali and caught up to him, grabbing him by the right arm.  In doing so, you caused Mr Ali to lose his balance and he fell to the ground.  You then stood over Mr Ali and pointing the knife towards him, demanding he give you the keys to his car.  In fear, Mr Ali handed you the keys and you then drove off in the stolen Holden Commodore.  Mr Ali’s wallet containing $250 in cash and his Mastercard credit card was in the car.

9After you left, Mr Ali called 000.  Because he was disoriented, it took police 40 minutes before they could locate him.

10These are the circumstances giving rise to the charge of aggravated carjacking.

11The charge of reckless conduct placing people in danger of serious injury arises from the manner of your driving Mr Ali’s stolen car on 16 October 2017 at
3.08 am.

12At that time, police observed you driving the stolen car on Old Geelong Road, Hoppers Crossing until you stopped in traffic near the Princes Freeway.  Two police officers left their police car to arrest you.  When you saw the police, you were seen to accelerate at speed around the stationary traffic in front of you, driving over the curb and heading for the freeway.  The police officers returned to their car and attempted to follow you but soon lost sight of you due to the speed at which you were travelling.

13At approximately 3.15 am, another police unit travelling eastbound on the Princes Freeway saw you overtake their unmarked police vehicle at an extremely high speed.  You then turned left and took the exit at Millers Road.  The police activated their lights and siren to intercept you.  Seeing this, you again accelerated at a fast speed continuing north along Geelong Road, Brooklyn.  The police ceased their pursuit but maintained observations of you from a distance.

14You turned right at the intersection of Millers and Geelong Road.  You continued along Geelong Road in an easterly direction, driving on the wrong side of the road into oncoming traffic.  At that time of the morning, the road is predominantly used by large heavy vehicles, trucks and semi-trailers.  The police saw you continue to drive on the wrong side of the road, at speed, for approximately two kilometres into oncoming traffic before turning right at Somerville Road and Williamstown Road.

15While you were driving south on Williamstown Road, police again saw you drive on the wrong side of the road for a short distance, needing to swerve to avoid a truck as it turned into the Westgate Freeway on-ramp, Geelong bound.

16The police followed you at a distance until they lost sight of the car near North Road, Newport.  The car was found dumped near High Street, Newport.  You were located shortly after hiding in the front yard of a home and were arrested by the Critical Incident Response Unit.  A search conducted by police found that you were in possession of Mr Ali’s credit card and a black handled silver blade knife covered with a brown leather sheaf.  You were arrested and taken to Footscray Police Station where you gave a no comment record of interview.

17Clearly, this was serious offending.  You aggressively demanded the keys to the victim’s car, threatened him with a knife, and stole his vehicle.  You did so after securing the victim’s trust to the extent he offered you a lift home.  Lulled into a false sense of security, you directed the victim to drive to a remote, unlit area, where you produced the knife and made repeated demands for his car keys.  You gave chase when he attempted to flee, and repeated the demands, pointing the knife at the victim after he had fallen to the ground.  It must have been a terrifying ordeal for him.  Understandably, he says he feared for his life.  You stole his car and then, in the early morning, you drove that car erratically and at high speeds, including driving on the wrong side of the road into oncoming traffic placing road users at appreciable risk of serious injury.  Of concern, you drove in this manner when other road users included heavy vehicles.

18It is an aggravating feature of your offending that you committed the carjacking offence whilst on bail and when you were serving an 18-month community correction order imposed by the Sunshine Magistrates' Court on 7 November 2016 for previous relevant offending.

19The maximum penalty of 25 years’ imprisonment for the offence of aggravated carjacking is a measure of the seriousness with which this offending is regarded by Parliament.  In sentencing you I must deter other people who may be tempted to offend in this way.  General deterrence is a paramount sentencing consideration in this case.

20You also have relevant prior convictions.  As stated, you were sentenced by the Sunshine Magistrates’ Court to an 18-month community correction order on
7 November 2016 for offending that included dangerous driving, theft of a motor vehicle, driving while disqualified, unlawful assault and possessing a controlled weapon without excuse.  That order was imposed for offending committed in August 2015 where you were observed by police in a stolen vehicle driving erratically and at speed, resulting in you losing control of the vehicle.

21You had also been sentenced in February 2016 to a 15-month community correction order by the Melbourne Magistrates’ Court for offences that included dangerous driving, dangerous driving while pursued by police, negligent driving while pursued by police and unlawful assault.  On 7 November 2016 you were found to have breached that community correction order and you were convicted and fined $2,500.

22These were previous occasions where you had been given an opportunity to address your offending behaviour under a sentence in the community.  This offending in October 2017 represents an escalation in your offending behaviour and demonstrates a complete disregard for the law, for the community and to your obligations under Court orders.

23Given this history, it is necessary to impose a sentence that operates as a specific deterrent to you and protects the community.

24I now move to matters relevant to your background.  Mr Ibrahim, you were born on 11 March 1994, being one of six children.  Your parents separated when you were born.  Over the next 14 years of your life your mother re-partnered twice, including to a man who was violent towards you.  His violent behaviour led to child protection involvement with your family and police attendances at the home.

25At the age of 14 years, you moved out of the family home to live with your older sister, Alyce.

26VOICE (from body of the court):  Thank you, Your Honour, sorry.

27MR McGRATH:  Your Honour's observed that my client's father is now in attendance.

28HER HONOUR:  Thank you.

29MR McGRATH:  Thank you, Your Honour.

30HIS HONOUR:  Have a seat Mr Ibrahim.

31I'll just repeat that last paragraph.

32At the age of 14 years, you moved out of the family home to live with your older sister, Alyce.  You subsequently moved to live with your father.

33Your experience of school was difficult.  You attended a number of primary schools due to problems with your behaviour.  You report being bullied in secondary school due to your weight.  In Year 9 you were expelled from Thomas Carr College after fighting with a student who was teasing you.  I have taken your difficult childhood circumstances into account.

34At around this time, your father relocated to Werribee to support you.  In
Year 10, your father arranged for you to undertake work experience at Corso Body Works in South Melbourne.  This suited your skills and you then embarked on three years of a four-year spray painting apprenticeship.  You demonstrated a commitment to this work by travelling daily on public transport for three or more hours to get to and from work.  To support you, your father managed your income and finances to assist you to purchase a car.

35Indeed, until 2015 you had demonstrated an ability to work hard and to avoid problems with the law, supported by your father.  However, this life course has been significantly interrupted by your increasing issues with drug addiction and drug abuse.

36You began using cannabis at 16.  You experimented with cocaine at 20.  You began using methylamphetamine, or ice, at 19 years of age.  At the age of 21 years you had secured employment as a diesel mechanic through your girlfriend’s father at his place of business, “Kad’s Hire”.  You were earning an income of $1,200 per week.  However, by early 2017 your ice-addiction issues led to the loss of that employment.  In the period leading up to this offending you were using significant amounts of ice on a regular basis.  Indeed, you report that you had used your entire savings of $30,000 on drugs over this time.

37Clearly your prospects of rehabilitation will depend, to a significant degree, on addressing your drug addiction issues.  If you are able to do so, you certainly have other supports to assist you in the community, including accommodation through your father, the ongoing availability of a job at Kad’s Hire and the support of your girlfriend.

38I have earlier outlined the circumstances of your offending and the relevant sentencing considerations for offending of this kind.  There are also other matters that are appropriate to consider in mitigation of your sentence.

39In detailed and useful submissions, Mr McGrath, appearing on your behalf, outlined a number of factors that operate to mitigate your sentence.  These include the fact that, at 24 you remain a youthful offender and that a sentence that assists in your rehabilitation remains a significant consideration, coupled with your early plea, support in the community and work history, particularly up to the age of 21 years.  I have taken these matters into account.

40You pleaded guilty to the charges on the first day of the contested committal.  You are entitled to credit for your plea at that stage for two reasons.  First, it is an acceptance of responsibility by you for your offending.  Secondly, and significantly, it saved the victim from the trauma often associated with giving evidence and saved the community the cost and expense of a criminal trial.  I have taken those matters into account.

41In determining your sentence, I have also take into account that this will be your first sentence of imprisonment.

42As a youthful offender, there is a need to impose a sentence that reflects the seriousness of your offending but also affords an opportunity to assist in your rehabilitation.  In assessing your prosects of rehabilitation, I am somewhat guarded.  You are being sentenced for serious matters.  Over a period of two years you have failed to take up the opportunities afforded to you under two community correction orders.  You have continued to abuse drugs, despite the support of your family.  Moreover, this offending represents a serious escalation in offending behaviour by you despite the opportunity afforded by the community correction orders.

43On the positive side, when not drug affected, you have shown the capacity to maintain employment, work hard and not offend.  You completed part of the community correction order, attending a road trauma awareness program, drug counselling sessions and undertook 108 hours, but not all 250 required hours, of unpaid community work.

44In custody, you have completed a number of courses and programs to assist in your rehabilitation, including TAFE courses and a 24-hour drug relapse prevention program.  You have the ongoing support of your father and your girlfriend.

45The offence of aggravated carjacking carries a minimum penalty of three years’ imprisonment unless special reasons exist.  Your counsel conceded, appropriately, that no special reasons apply here.

46I have also had regard to s.16(1A) of the Sentencing Act 1991 (Vic.) which displaces a presumption of concurrency when a term of imprisonment is imposed for an offence committed whilst on bail.  I have determined it is appropriate in this case to reflect the objective gravity of the offence and other relevant sentencing factors in the individual sentences imposed on each charge, because to do otherwise would force artificial moderation which is undesirable in terms of general deterrence.  The totality principle must be applied however, and I have determined this is best achieved by orders for concurrency which, but for the totality principle, would otherwise not be ordered.

47Mr Ibrahim, can you please stand.

48On Charge 1, you are convicted and sentenced a period of three years and six months imprisonment.  On Charge 2, you are convicted and sentenced to 18 months imprisonment.  On the summary charge of commit an indictable offence whilst on bail, you are convicted and sentenced to one months' imprisonment.  I order that the sentence of one months' imprisonment imposed on the charge of committing an indictable offence whilst on bail and nine months of the sentence imposed on Charge 2 be served cumulatively upon each other and upon the sentence imposed on Charge 1 on the indictment.

49This makes a total effective sentence of 4 years’ and 4 months’ imprisonment.  I fix a minimum term of three years before you will be eligible for parole.  I declare 283 days pre-sentence detention.

50On Charges 1 and 2, all licences are cancelled and you are disqualified from driving for a period of two years.

51Had you not pleaded guilty and been found guilty after a trial, I would have sentenced you to a total sentence of 5 years, 6 months' imprisonment with a minimum term of 4 years.

52Pursuant to s.464ZF of the Crimes Act 1958 (Vic.), I order that you undergo a forensic sample by the taking of a scraping from your mouth.  I am required to advise you that if you fail to co-operate in the taking of the sample, the authorities may use reasonable force to obtain a blood sample from you.  I make this order noting it is not opposed and because of the seriousness of your offending, your prior criminal history and being satisfied it is in the public interest.

53I also make the disposal order sought by the Prosecution.

54Please have a seat, Mr Ibrahim.

55Do counsel have any questions?

56MS BATE:  No, Your Honour.

57MR McGRATH:  No, Your Honour.  No.

58HER HONOUR:  No.  Thank you.  If you could remove Mr Ibrahim.

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