DPP v Mekal
[2006] VSCA 218
•10 October 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 61 of 2006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v. |
| MOHAMMED MEKAL |
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JUDGES: | WARREN, C.J., MAXWELL, P. and BUCHANAN, J.A. | |
WHERE HELD: | BENDIGO | |
DATE OF HEARING: | 10 October 2006 | |
DATE OF JUDGMENT: | 10 October 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 218 | |
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Criminal law – Crown appeal – Armed robbery – Soft targets – Significant mitigating factors – Total effective sentence of four years and nine months’ imprisonment and minimum term of two years and nine months’ imprisonment lenient but not manifestly inadequate.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P.A. Coghlan, Q.C., D.P.P., with Mrs C.M. Quin | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Respondent | Mr J.M. Selimi | Starnet Legal Pty Ltd |
WARREN, C.J.:
I invite Buchanan, J.A. to deliver the first judgment.
BUCHANAN, J.A.:
The respondent was arraigned in the County Court and pleaded guilty to counts contained in two presentments. The first presentment contained four counts of armed robbery, three counts of false imprisonment and one count of recklessly causing injury. The second presentment contained two counts of armed robbery, two counts of false imprisonment and one count of assault. After a plea, a total effective sentence of four years and nine months' imprisonment was imposed, and the sentencing judge fixed a term of two years and nine months before the respondent was to be eligible for parole.
The elements constituting that sentence were made up as follows. On the first presentment and on each count of armed robbery, the respondent was sentenced to two years' imprisonment; on the count of recklessly causing injury he was sentenced to six months' imprisonment; and on each of the counts of false imprisonment he was sentenced to 12 months' imprisonment. With a measure of cumulation, a total effective sentence of three years and nine months' imprisonment was produced. In respect of the second presentment, on each count of armed robbery the respondent was sentenced to 12 months' imprisonment; on each of the counts of false imprisonment he was sentenced to six months' imprisonment; and on the count of assault he was sentenced to six months' imprisonment. Again, with a certain amount of cumulation, the total effective sentence was two years' imprisonment. The sentencing judge ordered that one year of the total effective sentence imposed in respect of the second presentment be served cumulatively upon the total effective sentence imposed in respect of the first presentment.
The respondent is now 26 years old. The offences the subject matter of the first presentment occurred between 2 and 21 March 2005. The crimes consisted of four armed robberies and other offences committed in the course of those robberies. The targets in the armed robberies were convenience stores, each staffed by one attendant. The respondent, armed with a large kitchen knife and usually disguised with a ski mask, struck in the early hours of the morning. On the occasions of two of the robberies the respondent placed socks over his hands, presumably to avoid leaving fingerprints.
The first armed robbery took place at a 7-Eleven store in Hawthorn. The respondent entered the store, armed with a knife and wearing a ski mask. He attempted to open the counter drawer and said to the attendant: "Open the door, motherfucker." He then climbed over the service counter and manoeuvred his way through horizontal security wires. Once behind the counter, he pointed the knife at the chest of the attendant and yelled, "Motherfucker, open the register." Obeying the order of the respondent, the attendant gave him the contents of the cash register, amounting to about $500. The respondent also took ten packets of cigarettes. He slashed the telephone cord and ran from the store. An attempt was made by the respondent to remove the security videotape, but he did not succeed in that attempt.
The second robbery occurred at the 7-Eleven store in Hallam. The respondent followed the same modus operandi, save that, in addition, the respondent demanded that the attendant give him his mobile phone, and told him to come out from behind the counter, whereupon the respondent ran the knife up and down the attendant's arm.
The third robbery took place at a convenience store in Burwood. The respondent jumped across the counter and threatened the attendant with a large kitchen knife, demanding that he open the safe. The attendant said he could not open the safe. The respondent continued to threaten him with the knife and attempted to hit the attendant, who put up his hands to shield himself. In consequence he was cut by the knife on his hand, later requiring four stitches. The respondent took $650 from the till and packets of cigarettes, cut the cord of the telephone, forced the attendant to come outside the store with the respondent, and then ran off.
The fourth robbery occurred at Kingsbury and followed the same pattern. The respondent pointed a knife at the attendant at a BP service station and said: "I need the money, you cunt, or I will kill you." The respondent pushed the attendant into the storeroom and told him to get the money. The attendant removed the till from the cash register and gave it to the respondent, together with 57 packets of cigarettes, the attendant's mobile phone and cash from his wallet. The respondent cut the telephone cord, removed the tape from the surveillance camera, forced the attendant out of the store by digging the knife into his back and telling him that he needed him as security. He said: "Keep walking or I'll kill you."
The Director described the robberies as relatively sophisticated, although he conceded that this aspect increased the credibility of the respondent's assertion to the police that another man drove him from one target to another and participated in the planning of the robberies. A month later, the respondent was arrested and interviewed by the police. He admitted all the offences. The respondent was released on bail.
On 5 August 2005, at 11.50 p.m., the respondent and a co-offender came upon two 15-year-old boys in a street in Hawthorn. One of the boys asked for a cigarette and the respondent and his co-offender gave him a cigarette. They became angry when they noticed that one of the youths had a cigarette behind his ear. They demanded the cigarette and money. The victims said they had no money, and walked away. The respondent and his co-offender followed them. The co-offender threatened one of the youths with a bottle. The respondent threw his jacket on the ground and a knife with a long blade fell out. The respondent picked the knife up and said to one of the youths: "Do you want to go, huh?" The respondent slashed the victim's jacket and demanded that he and his companion deliver up their bank cards. Their cards were surrendered, together with two mobile phones. The respondent demanded the PIN numbers of the bank cards. The respondent forced one of the youths to accompany him to an automatic teller machine at a hotel, where the victim obtained $90. The respondent then rejoined his co-offender and they told the youths to run away. A week later the respondent was again arrested.
In victim impact statements filed with the court, three of the victims said they were scared by the commission of the crimes. One said that he felt insecure at night; another said he would be hesitant to use public transport. The victim whose hand was cut said:
"Initially, when I started my work after recovering from the injury, I felt a bit scared to do night shifts, but I was all right after a couple of days. Simply put, I did not suffer any major trauma in this crime."
Notwithstanding the restrained, even stoical, reaction of the victims, it is to be expected that they will suffer ill effects as a result of being threatened at close quarters by a knife-wielding, masked bandit.
The respondent has no prior convictions. He was born in Eritrea. To escape civil war in that country the respondent's family fled to the Sudan. The respondent served in the Sudanese army at the age of 15 years. He migrated to Australia with a sister in 1999. The respondent's father is dead and his siblings are scattered all over the world.
In Australia the respondent began drinking alcohol and using cannabis. According to a psychologist whose report was tendered in the course of the plea, the respondent suffered from a major depressive disorder and post-traumatic stress disorder, which was the result of witnessing a soldier in the Sudan being killed by another soldier. The respondent used alcohol and cannabis to deal with his depression and anxiety. The sentencing judge apparently accepted that the respondent suffered "from some form of traumatic stress disorder and an associated depressive condition". The psychologist thought that the respondent's substance abuse was the catalyst that contributed to the commission of the offences. He said that the respondent was remorseful. I think it is relevant to observe in this context that the respondent committed the offences the subject matter of the second presentment while on bail. Any remorse on his part did not arise immediately.
While in prison awaiting sentence, the respondent participated in a number of courses such as youth drug education. The sentencing judge found that: "One of your motives for committing these offences, indeed your primary motive, was to get the money to assist your mother in Sudan." His Honour also said that evidence given in the course of the plea by the head of an organisation for persons from Eritrea who worked with youths, and references which were tendered on behalf of the respondent, "indicate to me that you have a good sense of community and one would ordinarily be optimistic about your rehabilitation in the future". His Honour noted that the respondent's brother gave evidence of family support for the respondent and that a number of persons in the court also supported him. His Honour also accepted that the respondent was a person of some intelligence who should in the fullness of time be able to find employment.
In imposing sentences which I consider to be lenient, the sentencing judge was apparently influenced by the respondent's relative youth, the fact that he had no prior convictions, his acceptance that the offences were the product of his traumatic stress disorder and indulgence in alcohol and cannabis, the early pleas of guilty, and the respondent's co-operation with the police. The very experienced sentencing judge apparently thought that the applicant had good prospects of being rehabilitated.
Nevertheless, the offences were serious indeed. Their gravity is marked by the maximum sentence of 25 years' imprisonment for the offence of armed robbery. The victims were isolated and vulnerable. The masked respondent wielded a knife at close quarters, with the result that one of the victims was wounded and the clothing of another slashed. The respondent accompanied his alarming actions with direct, crudely expressed threats. In order to protect persons in the same position as the victims of these crimes, it is necessary for the courts to place general deterrence at the forefront of the consideration of an appropriate sentence. Generally speaking, crimes such as these require condign punishment. Are those considerations overcome in the present case by the relative youth of the respondent, his previous good character and his deprived upbringing?
In the end, I think the sentence, while at the bottom end of the range, was not so manifestly inadequate as to warrant intervention by this Court. It was a merciful sentence, but I am of the opinion that it could be justified by the unusual circumstances personal to the respondent. The sentence was not so short as to deny meaningful operation of the requirement of general deterrence and denunciation of the crimes.
Accordingly, I would dismiss the appeal.
WARREN, C.J.:
I agree, for the reasons given by Buchanan, J.A., that the appeal should be dismissed.
MAXWELL, P.:
I agree, for the reasons which his Honour has given. I will add three brief remarks of my own.
The first is that the Director's submissions about the range reasonably open to the judge in sentencing this offender were of considerable assistance. In the exchange with the Director I made clear once again that we do not look for precision in the numbers put forward. Given that the Director is, because of his function in bringing Crown appeals, a custodian of consistency in sentencing – as is this Court – his submissions are relevant and important. For completeness, I agree with the Director that his submissions about the lower limit of the applicable range do not need to factor in the double jeopardy discount. That consideration is not relevant to deciding whether the sentence is manifestly inadequate.
Secondly, it appears that the Judge regarded the psychiatric condition from which the respondent suffered as relevantly explanatory of the offending. His Honour said: "In many ways your offences are the product of some form of traumatic stress disorder, the symptoms of which were perhaps exacerbated by your indulgence in alcohol and cannabis which lowered your discretion."
The relevance of mental illness in sentencing is a recurring issue for this Court. Because depression varies greatly in its degree and in its effect on the sufferer, when a sentencing judge treats depression as relevant to the assessment of the culpability of the offending this needs to be done explicitly, and the reasons should explain how it is that the condition is seen as mitigating the seriousness of the conduct. Likewise, if it is relevant to consider the effect which the mental illness will have on the defendant’s experience of incarceration, that also needs to be clear on the face of the reasons, so that this Court – and the community – can understand the full reasoning behind the sentence.
The final point is about self-medicating with alcohol for conditions such as depression and anxiety. The plea made on behalf of this respondent noted – quite candidly – that "as he continued to drink he became violent". Where the defendant knows that alcohol makes him violent but nevertheless drinks, becomes violent and commits offences, the resort to alcohol is likely to negate any mitigation attributable to the underlying mental instability.[1]
WARREN, C.J.:
[1]cf. DPP v Tokava [2006] VSCA 156 at [14] per Buchanan JA.
The order of the Court is:
The appeal is dismissed.
A certificate is granted to the respondent pursuant to s.15 of the Appeal Costs Act.
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