R v Afran, Gabra and Putrus
[2016] VCC 1940
•12 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-00883, CR-16-00882 & CR-16-00884
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARVIN AFRAN JIMMY GABRA and MARZIN PUTRUS |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 and 7 December 2016 | |
DATE OF SENTENCE: | 12 December 2016 | |
CASE MAY BE CITED AS: | R v Afran, Gabra and Putrus | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1940 | |
REASONS FOR SENTENCE
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Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Sharpley | Office of Public Prosecutions Victoria |
| For the Accused Afran For the Accused Gabra | Mr A. Halphen Ms K. Ballard | David Barrese and Associates Doogue O’Brien George Papa Hughes Lawyers |
HIS HONOUR:
1 Marvin Afran, Jimmy Gabra and Mazin Putrus, each of you has pleaded guilty to one charge of aggravated burglary (Charge 1) and one charge of theft (Charge 2). The charges are identical however, a separate indictment was filed concerning you Mr Afran.
2 In addition to these charges on indictment, you each also pleaded guilty to an associated summary charge of unlawful assault.
3 Finally, in your case Mr Gabra, you pleaded guilty to a further associated summary offence of committing an indictable offence whilst on bail.
4 Mr Sharpley, who appeared for the prosecution, opened the circumstances of the offending by reading from a written ‘Summary of Prosecution Opening on Plea’ which I marked as an exhibit.
5
In short, at about 3 pm, on Tuesday 12 May 2015, the three of you attended a house in Taylors Lakes. After banging on the door forcible entry was achieved by you, Mr Gabra and you, Mr Putrus (Charge 1). You both entered with the intent to steal. After some searching, you, Mr Gabra, forced yourself into a bathroom where an occupant of the house was hiding. The victim was required to open a safe. Another safe belonging to his father could not be opened by the victim and he was punched a number of times by you,
Mr Gabra (unlawful assault). The two of you then left, taking money and property (Charge 2), and once outside Mr Afran, who had arrived after you two entered, joined you. The three of you then left the scene.
6 It seems the plan to commit the aggravated burglary was developed when the three of you were earlier at a hotel in company with a woman, with whom you, Mr Afran, were in a relationship. There was discussion about the victim being a drug dealer and the prospect of stealing cannabis from him. The female attended the premises, but was not charged.
7 Mr Halphen, who appeared for you Mr Afran submitted that you should be treated more leniently than your co-accused. Amongst the reasons for this, he submitted, was the fact that you remained outside the premises. Indeed, you arrived after entry by the others. Although you anticipated no entry to the building, you accept that you understood it was probable. You thought cannabis was to be taken but understood that it was probable, other items would be stolen. You also did not plan any assault but understood, that it was probable that an assault would occur. I need to keep in mind that the charge of aggravated burglary is limited to an intent to steal. It seems you were drug affected at the time of the offending.
8 You, Mr Gabra and you, Mr Putrus were arrested on 15 May 2015. Mr Gabra, you declined to comment when interviewed and Mr Putrus, you denied the offending or knowledge of Mr Gabra.
9 Mr Afran, you were not arrested until 5 June 2015 and also denied the offending when interviewed.
10 Mr Gabra, you had been bailed in the Magistrates’ Court on 24 April 2015 to appear on 22 May 2015, so the current offending occurred between these dates and of course when you were on bail. The alleged offending for which you were on bail is serious. The fact that you were on bail is of course relevant, and means that any sentences imposed by me, must be served cumulatively unless I order otherwise. In other words, a presumption of accumulation is created (Section 16 (3C) Sentencing Act 1991).
11 You, Mr Afran and you, Mr Gabra have consented to me making orders for the taking of a forensic sample. In your case, Mr Putrus, you did not oppose the making of such an order. I will make the orders. My reasons will appear in the orders. You must each understand that a police officer may use reasonable force to obtain the sample.
12 On your behalf, Mr Afran, Mr Halphen produced an ‘Outline of Submissions on Plea’ which I exhibited.
13 You must benefit from your pleas of guilty. The charges were initially listed for trial before Judge Dean in late September 2016. At that stage, it was alleged that you had entered the premises and that weapons were taken into the premises. These allegations have been resolved in your favour. Accordingly, although the pleas were entered late, I need to keep in mind that they were the result of negotiation where the prosecution made concessions significantly favourable to you. You pleaded guilty to the aggravated burglary on the Monday that the trial was listed to commence. You pleaded guilty to the theft the next day, after consultation with your legal advisers. Your co-accused pleaded guilty on the following Wednesday. In your case Mr Afran, I am prepared to accept that your pleas were accompanied by some remorse. Evidence of this was given by your partner, Ms Macali and was also referred to in a psychological report from David Ball with him describing your remorse as “conditional”.
14 As with your co-offenders, had the resolution of the case been achieved earlier, the crimes to which you have pleaded guilty could have been dealt with in the Magistrates’ Court. Whether they would have, I am not sure. In part, the fact that this did not occur was because all three of you did not concede that you were the offenders until relatively late. Nevertheless, it is still correct to say that the crimes as pleaded before me are within the Magistrates’ Court jurisdiction.
15 Mr Halphen noted that your mother, partner and a friend attended court to support you. There is a large group of people here to support the three of you today. You are fortunate to have this family support. I accept that you feel ashamed for the disgrace you have brought on your family and that in part also explains your isolation and drifting in the drug milieu in the past. I accept that you have been reflecting on this in custody.
16 Mr Halphen briefly sketched your background. You were born in Kurdistan and have only recently turned 26 and were 24 at the time of the offending. You have three siblings. Your family fled to Syria from Iraq in 2003. Some time prior to this, when you were aged 10 or 11, you were kidnapped, mistreated and held for three days until your father paid a ransom.
17 You arrived in Australia in September 2003. You are a citizen of Australia.
18 You had limited education and struggled with English. You began a course at Kangan TAFE but did not complete it.
19 Despite this you were engaged is solid employment until 2009, when your life ‘spiralled out of control’, following the end of a relationship with a female. It seems you turned to drugs around this time and have struggled with drugs since.
20 You have a very poor criminal history with appearances in the Children’s Court between 2007 and 2009 for driving offences, violence and dishonesty including robbery. You have also appeared in the Magistrates’ Court and County Court on appeal from the Magistrates’ Court. This offending also included driving offences, dishonesty and violence. You received a sentence of 30 months imprisonment with a non-parole period of 16 months in 2013 on appeal for charges including burglary.
21 You were released on a CCO on 1 May 2015 by the Melbourne Magistrates’ Court for various charges including burglary. This, of course, was very shortly before the current offending. You have been breached on this order and received a sentence of six months imprisonment and a further CCO. You have additional breach proceedings before Judge Allen in February next year as a result of breaching a CCO imposed by him on 30 September 2015. The current charges are the first time you have appeared on indictment.
22 Soon after being released on parole in 2013, you were the victim of a robbery and were shot in the face requiring three weeks admission to hospital.
23 A psychological report from David Ball was tendered.
24 Mr Ball described you as “a low functioning individual, lacking in appropriate social and coping skills”. He said you presented with untreated PTSD, anti-personality disorder and substance abuse issues. Your social reasoning, he thought, reflected your antisocial personality features and dull normal intellect. You tend to reduce even complex problems to simplistic concrete terms. He thought you often made poor decisions and chose short term solutions. He said you had a history of failing to learn from previous mistakes.
25 Mr Ball thought that when crossed or pushed on personal matters, or faced with embarrassment, you are likely to respond impulsively and become angry and vindictive.
26 In drug treatment, he thought you likely to have difficulty obeying rules, staying in treatment and maintaining abstinence.
27 He noted the risk of you developing depressive symptoms later in life. He thought your antisocial personality disorder to be severe.
28 He thought you satisfied the criteria for PTSD as a result of the kidnapping and being shot and that this condition was unlikely to be adequately treated in prison.
29 In contrast to this bleak psychological picture, a letter from your current partner, Ms Micali, was tendered and then, after a question from me, she gave evidence.
30 It seems she has known you for 10 years and has been your partner since you were most recently incarcerated. She spoke very positively of your remorse, your acceptance of responsibility, your determination to not maintain negative friendships and to focus on work and family. She thought your conduct out of character, saying she had never seen you aggressive. She saw you as kind and caring and committed to helping others.
31 I am mindful that she is your partner and that the relationship suffers the impediment of your incarceration, but insofar as Mr Ball presents a different picture, I accept his assessment of your personality. I accept that your partner is supportive and that you have expressed a desire to take the steps she spoke of on release, but this if not a sufficient basis to give me confidence that you can do these things given the assessment of Mr Ball. That is not to say that you are beyond rehabilitation, but simply to note that, although I hope you can reform, I have considerable reservations about your capacity to do so.
32
You were charged with the current offending on summons and were remanded in custody on 18 July 2015. On 29 July 2015, you were sentenced to six months imprisonment as noted earlier. This sentence expired on
3 December 2015, when you were released from custody. Your bail on the current matters was revoked due to alleged further offending on 16 May 2016. You have served 210 days of pre-sentence detention.
33 Ms Ballard appeared for you Mr Gabra. A written document headed ‘Defence Submissions on Plea’ was exhibited, as was a psychological report from Jeffrey Cummins, a medical report from Dr D. F. Rowais and a letter from your mother.
34 You are 26 and were 24 at the time of the offending. Whilst you have some prior criminal history, it is of little relevance. However, you do have subsequent criminal sentences and have spent a significant time in custody since your arrest on the current matters, approximately 16 months as calculated by your counsel.
35 I accept your counsel’s submission, particularly given your age and the risk of contamination in prison, that the totality principle is engaged and that I should do, within the limits of what is permissible, all that can be done to foster your rehabilitation in the community. Indeed, this applies to all three of you.
36 In January this year you were sentenced by Judge Lewitan to 279 days imprisonment, combined with a CCO for 12 months. This was for multiple offences including drugs, threats, firearms, driving, burglaries and thefts. You were remanded on other matters in April 2016 and your bail on the current matters was revoked. You have spent 211 days in pre-sentence detention. Between May and September this year, you were held in lock-down at the MRC which is onerous incarceration. I was urged to also take into account 28 days spent in custody from 19 April until 17 May on pending matters. I will do so and intend to credit you for the entire 28 days. Accordingly, this period will not be available for any pending matters should you be found guilty.
37 You have pending charges both for summary and serious indictable matters. I was told that these matters are contested and so I draw no inference about your guilt. You will also have to appear before Judge Lewitan for CCO breach proceedings, but it is not clear, at this stage whether the breach will be by further offending or confined to failure to comply with conditions. I was provided with a report concerning your alleged breach of conditions which alleges, an early failure to engage with the opportunities provided. There was no suggestion by your counsel that these allegations of failure to engage are not justified, indeed, your counsel was scrupulous to ensure that I should not mistakenly act on the assumption that breach proceedings might only involve allegations of further offending or failure to comply with conditions because of your incarceration. There was no objection to the breach report being tendered.
38 As with your co-accused, you must benefit from your pleas of guilty. In each of your cases, they save time, expense and the need for witnesses to give evidence at trial. Although your pleas of guilty came late, they did involve concessions made by the prosecution, particularly concerning the absence of weapons, after identity was conceded.
39 As noted earlier concerning Mr Afran, the offending to which you have pleaded is within the Magistrates’ Court jurisdiction. Your counsel argued that had the current offending been included in the offences before Judge Lewitan in January, it is likely that the total effective sentence would not have been substantially increased. On the material before me, that is not an easy judgement to make. I do not know what was put to Judge Lewitan. For example, at that stage, you intended to plead not guilty to the current offending and identity was in dispute. The assessment of your rehabilitative potential was made by Judge Lewitan on material different from that before me. The issue of totality is engaged, but the exercise suggested by your counsel is not of great assistance, as I see it.
40 You were born in the Sudan, although your mother and father, who were also born in the Sudan are of Egyptian and Syrian heritage respectively. You have two siblings.
41 You came to Australia, aged seven, accompanied by your family as refugees You are a citizen of Australia. Your family is law abiding and supportive of you. Your mother, father and brother-in-law attended court to support you. You are particularly close to your mother. You have expressed regret for disrepute to your parents and siblings.
42 You had a limited education, being expelled from school part way through Year 10, because you refused to participate in religious education. You completed a short term apprenticeship and seem to have been well employed until aged 23. It seems that you ceased this employment after you began using drugs with your then girlfriend, whom you met in the ‘methamphetamine using scene’. Your mother noticed behavioural changes due to drugs in late 2012. You also developed a gambling dependency with poker machines around the time of your descent into drug abuse.
43 Your parents separated shortly after they arrived in Australia. Your doctor described your family as dysfunctional due to your father’s alcohol and marijuana abuse and your mother’s depression. It seems you compensated by eating and are obese. According to your doctor, you are also emotionally and psychologically disturbed.
44 As noted earlier, a psychological report from Jeffrey Cummins, which had been prepared for the earlier consolidation hearing, was tendered.
45 You have been prescribed an antidepressant whilst in custody.
46 Unsurprisingly, your offending is linked to drug abuse and your long term rehabilitation prospects are likely to depend on your ability to remain drug free in the community.
47 Mr Cummins said you presented as being of at least average, perhaps high average intelligence. He also thought it possible that the murder of your cousin has had a significant impact on you and may be connected to your taking up drugs. Mr Cummins says it is inevitable that you do have ‘mental health issues’ and accordingly require treatment. Mr Cummins also thought your dysfunctional family background and ‘morbid obesity’ would mean imprisonment, would have a more significant impact on you than others without these problems.
48 Unlike your co-offenders, you were physically involved in the assault and were on bail at the time of the current offending.
49 Ms Lynch appeared for you, Mr Putrus.
50 She submitted correctly that you must benefit from your pleas of guilty, although it could not be argued that the pleas were at an early stage [Revision note – indeed, Mr Putrus was the last to plead guilty, a matter noted by counsel shortly before these reasons were delivered]. As with your co-offenders, I note that the pleas were finally generated after prosecution concessions.
51 Ms Lynch cautioned me against punishing you for an offence for which you have not pleaded guilty and correctly emphasised that I need to keep in mind that the aggravated burglary was complete upon entry into the premises. The plan was to steal drugs and the relevant element concerning the presence of an occupant was recklessness. In addition, you were not physically involved in the assault.
52 You are 27 years old and were 25 at the time of the offending.
53 You have a prior criminal history, including a prior conviction for aggravated burglary in 2012.
54 Your counsel submitted that your first relevant appearance before the courts coincided with drug use and mixing with negative influences. You were released on a CCO which was breached and you were re-sentenced to six months imprisonment.
55 Then in November 2015, you were sentenced to further imprisonment in the Broadmeadows Magistrates’ Court, albeit suspended, as part of an aggregate sentence for charges of assault and imprisonment for theft of a motor vehicle, once again as part of an aggregate sentence, subsequent to the current offending.
56 You have served 239 days pre-sentence detention.
57 You were first remanded on the current matters in May. You were first remanded on the current matters in May 2015. You were later sentenced in the Broadmeadows Magistrates’ Court to 168 days imprisonment for other offending, the matters just referred to, and time served was declared as PSD.
58 You also spent 29 days in custody in April/May this year, prior to your bail being revoked on the current matters, for unrelated matters that are pending.
59 Accordingly, you have spent, 429 days in custody since your arrest on the current matters. Your counsel submitted correctly, that I need to keep this in mind as part of the totality principle, when determining the appropriate sentence, with an eye to your total effective sentence on the current matters and any non-parole period. As I noted earlier, this exercise in totality considerations applies to all three of you, although your individual situations are different.
60 Your counsel asked me to give you credit for the 29 days served in April/May this year. I will do so. You will be credited for the full 29 days. Accordingly, this period will not be available for any pending matters.
61 You were born in Bagdad from which your family fled to Syria in 2004, before coming to Australia in 2008, in which year you turned 19.
62 Can you just help me Ms Lynch. I have just forgotten in my note and my note does not indicate. I think Mr Putrus has brothers as siblings doesn't he?
63 MS LYNCH: Yes, all brothers.
64 HIS HONOUR: Only brothers and how many are there?
65 MS LYNCH: Five boys. So four brothers and him, five boys.
66 HIS HONOUR: Thank you. You have four brothers and you are the only one in your family to have committed crimes. You regret the shame you have brought to your family.
67 You suffered from the political unrest in Iraq as well as the struggle your family were engaged in when fleeing through Syria and settling in Australia. Of course this was all foreign and new to you and your difficulty with English set you back.
68 [Revision note: it seems this paragraph was missed in oral delivery – Your education ceased at year 8. You worked in Syria and here in Australia but it seems employment has been unstable.]
69 You sustained a gunshot wound, to your leg in 2013 which has resulted in chronic pain. Apparently, you were the victim of mistaken identity. Drug abuse and depression seem to have followed this injury. At the time of the current offending, you were addicted to drugs and isolated from our family. You are receiving anti-depressant medication in prison.
70 A psychological report was tendered from Matthew Staios. He said you experience symptoms of depression in the extremely severe range, anxiety in the severe range and stress in the moderate range.
71 Mr Staios thought your risk of recidivism was in the moderate range. He noted the risks of contamination by antisocial peers in prison. He thought your level of insight into your offending was somewhat lacking, however, he thought you had the capacity to change. He recommended psychological, drug and alcohol and community skills support and assistance. You meet the criteria for Major Depressive Disorder and Stimulant Use Disorder. The avoidance of drugs is obviously central to your rehabilitation. An attempt at drug rehabilitation was made shortly prior to the current offending. Clean drug testing results were tendered
72 You have a close and supportive family. Your mother and brother attended court.
73 Letters from your parish priest and family members were tendered. Importantly, there is the possibility of employment available to you on release.
74 Although all your family has sought and obtained citizenship, you are not an Australian citizen. You have not applied. Your counsel submitted that I should pay regard to the worry you will suffer in prison because of the risk of deportation. I will do so.
75 I was referred to the recent case of Bowden [2016] VSCA 283 in which the Director successfully appealed a sentence of three years which was increased to four years. In that case, the court referred to the well-known case of Hogarth v The Queen (2012) 37 VR 658, as well as DPP v Meyers (2012) VR 486. Current sentencing practices were criticised in the former. A list of features relevant to the assessment of the seriousness of any particular aggravated burglary was set out in the latter. A number of other recent cases were reviewed in Bowden.
76 In my view, the aggravated burglary committed by all three of you is obviously serious. House entry was a central component of the crime, although it seems you all hoped that confrontation could be avoided. I accept that the absence of weapons, disguises, and the fact that the crime occurred in daylight make it less serious than it would have been if those features, which are often present when this crime is committed, were present. The assault is of course a summary charge. You all entered with intent to steal. The crime was committed to obtain drugs. As it turned out, you took cash and property. Aggravated burglaries are committed where the offenders believe the victims are drug dealers is a relatively common fact scenario in this court. There were three of you, albeit only two of you entered the premises. Entry was forced. You all were reckless as to the presence of a person in the house. You may have hoped that no one would be present and you could make off with the drugs, but the risk of escalation beyond what is planned or hoped for is obvious. You were all drug affected.
77 Although there are matters particular to each of you concerning the role you each played in the crimes and matters personal to you, in the end, I consider the same sentence should be imposed on each of you.
78 The matters relied upon by your respective counsel do not require disparate sentences, as I see it, a conclusion supported by the prosecution. In particular, although you did not enter the premises, Mr Afran, your criminal history, including the fact that you had been released on a CCO shortly prior to the current offending, particularly when viewed in the context of your psychological assessment by Mr Ball, is more troubling than that of Mr Putrus. Of course, Mr Gabra was on bail for serious matters and was an active participant in the offending but his prior convictions were limited to driving matters. Both Mr Gabra and Mr Putrus have had just short of a month’s incarceration credited as part of the sentences I will impose on them.
79
I propose to impose aggregate sentences. I do not think I discussed this with any counsel, but I cannot see any reason why it is not available. Can
counsel - - -
80 MR SHARPLEY: No, Your Honour.
81 HIS HONOUR: I consider the term to be modest given the remarks by the Court of Appeal in cases to which I was referred. I am mindful that each of you is still relatively young and each has descended into drug abuse in recent years; longer in your case Mr Afran. I am guarded about the rehabilitative prospects of each of you. However, you each have family support, you each have come from highly disadvantaged backgrounds and if you can remain off drugs, your prospects, in each case, would be reasonable.
82 Marvin Afran, you will be convicted of both charges on the indictment relevant to you, as well as the summary charge of unlawful assault and be sentenced to an aggregate term of two years and four months imprisonment.
83 You have served 210 days in pre-sentence detention. That is to be reckoned as time already served on the sentence I have imposed.
84 I fix 16 months as the term you must serve before being eligible for release on parole.
85 Jimmy Gabra, you will be convicted of both charges on the indictment relevant to you, as well as the summary offences of unlawful assault and committing an indictable offence on bail and be sentenced to an aggregate term of two years and four months imprisonment.
86 You have served 211 days in pre-sentence detention. This is to be reckoned as time already served on the sentence I have imposed.
87 I fix 16 months as the term you must serve before being eligible for release on parole.
88 Mazin Putrus, you will be convicted of both charges on the indictment relevant to you, as well as the summary charge of unlawful assault and be sentenced to an aggregate term of two years and four months imprisonment.
89 [Revision note – I fix 16 months as the period you must serve before being eligible for release on parole.]
90 You have served 239 days in pre-sentence detention. This period is to be reckoned as time already served on the sentence I have imposed.
91 In each of your cases, had you not pleaded guilty, I expect I would have sentenced each of you to at least three years imprisonment, possibly more, and fixed non-parole periods of at least two years. Is there anything that I have overlooked that counsel can identify?
92 MR SHARPLEY: No, Your Honour.
93 MR HALPHEN: No, Your Honour.
94 MS BALLARD: No, Your Honour.
95 HIS HONOUR: You are looking curious Ms Lynch, is there something I have overlooked?
96 MS LYNCH: I'm just thinking through the pre-sentence detention factor. The submission in terms of their total effective sentence and the taking into account of the 29 days. But as I said, I was just thinking it through with my colleague. It's just not reflective in the actual overall sentence.
97 HIS HONOUR: It's not. It's one of the factors that - as I said in the relevant paragraph, was weighed in the balance along with other different factors that apply to each accused.
98 MS LYNCH: Yes, Your Honour.
99 HIS HONOUR: The accused will have to go into custody, thank you.
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