R v Azami
[2015] VCC 1862
•15 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-15-01267
| THE QUEEN |
| v |
| MEHRAN AZAMI |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 October and 15 December 2015 | |
DATE OF SENTENCE: | 15 December 2015 | |
CASE MAY BE CITED AS: | R v Azami | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1862 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Doyle | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr A. Atlas | Atlas Legal |
HIS HONOUR:
1 Mehran Azami, you have pleaded guilty to 19 charges of importing Tier 2 goods as well as 3 summary charges of possessing a prohibited weapon.
2 The circumstances of the offending were opened by the prosecutor reading from a written ‘Prosecution Opening’, which was tendered.
3 In short, between 29 May 2014 and 12 May 2015, you imported 332 weapons in 41 parcels into Australia. The parcels contained 161 knuckledusters, 40 extendable batons, 6 butterfly knives, 7 trench knives, 23 AK47 Cold Steel tactical flick knives, 43 Tasers disguised as Apple iPhones and 52 Tasers in the shape of knuckledusters. Of these items you actually received 5 knuckledusters, 4 extendable batons, 23 AK47 Cold Steel tactical flick knives, 14 Tasers disguised as Apple iPhones and 8 Tasers in the shape of knuckledusters.
4 You have no prior convictions. You pleaded guilty at the first reasonable opportunity. You are still only 19 years old and indeed were only 18 at the time of the majority of the offences.
5 Plea submissions began on 22 October but were adjourned to today to enable a psychiatric assessment to be made. You were released on bail.
6 At the time of submissions in October I was given remarkably little information in the course of submissions made by your counsel.
7 This was because of the concession by the prosecution concerning the defence submission that although I should sentence you to imprisonment such sentence should permit your immediate release from custody on recognisance. At that time you had served 175 days pre-sentence detention.
8 The prosecution provided me with two decisions of this court concerning similar offending as comparative cases (Shao Zong Ma, a sentence of Judge Campton imposed on 16 August 2010 and Chuan Hong, a sentence of Judge Gaynor imposed on 24 March 2015). This was the best that could be provided to assist in determining relevant current sentencing practices.
9 In my view, both sentences support the defence submission and prosecution concession that time served is a sufficient period of imprisonment to be served concerning the proposed sentence before release on recognisance.
10 Indeed, taking all matters into account I consider the defence submission and prosecution concession to be appropriate.
11 You came to Australia as a refugee, you live with your parents and with your younger brother and sister.
12 On the application for bail the informant noted you come from a supportive family and that your elder brother is a very positive influence on you.
13 Your offending was detected as a result of telephone intercepts on Sevdet Bessim who was a target of the Joint Counter Terrorism Team. Mr Bessim was in contact with Harun Causevic to whom you supplied items.
14 During discussion in October your counsel noted that you have suffered mental health problems, which he described as depression. He said you had been receiving treatment in prison. He also said you had been arrested at and had spent time in the Monash Health Stepping Stones Adolescent Unit in Clayton. He applied to adjourn the proceedings to obtain evidence concerning your mental health problems and sought bail in the interim. The applications for adjournment and bail in the interim were not opposed. The prosecution stated that it could not submit that risks associated with bail were unacceptable.
15 The informant was called by the prosecution on the bail application. He confirmed his belief that you had spent time in the psychiatric facility, that you had attempted suicide at least once, your family support as noted earlier and the absence of risk of flight. The informant, who was a member of the Joint Counter Terrorism Team said he was concerned about your mental health in prison and your radicalisation by others in prison. As I followed, the view of the prosecuting authorities was that risks to your mental health and radicalisation were greater in custody than if you were in the community on bail provided strict conditions were imposed.
16 I released you on bail with reporting, residential and curfew conditions. In addition you were not to leave Australia and were to seek treatment under a Mental Health Plan.
17 I ordered that you be psychiatrically assessed by Forensicare and that report be provided to me.
18 Your release on bail was delayed because you were unable to meet one of the conditions of bail originally set. You drew this to the attention of the authorities. You have now served 177 days in pre-sentence detention.
19 After release on bail you came under the care of your local practitioner, Dr Adcock, who formulated a Mental Health Plan for you. Pursuant to this plan you have been attending Dr Trevor Corran, who had been recommended by the psychologist treating you in prison. I was informed this morning by your counsel that you have seen Dr Corran twice and have eight more sessions as part of the plan.
20 I have now received a report from Forensicare dated 11 December. It is helpful. It confirmed that you meet the criteria for mild to moderate major depressive disorder with anxious distress. Importantly, the author, Dr Fiona Best, said you are in need of psychiatric treatment. She noted that you have been diagnosed for post-traumatic stress disorder in the past.
21 I need to have regard to s16A of the Crimes Act 1914 for the Commonwealth offences. Prosecutions submissions concerning this list of non-exhaustive matters were addressed in a document headed ‘Crown Written Submissions on Sentence’. I have had regard to these matters most of which were non-contentious.
22 Your offending had obvious potential dangers relating to the presence of weapons in the community. I accept that there was a commercial element to your offending although I cannot specify the precise financial benefit to you. The offending was part of a course of conduct over a relatively prolonged period.
23 Your arrest, the attendant publicity and imprisonment has been difficult for your family. Your parents were mad at you when they discovered what you had been doing. I accept that prison has been salutary and that you did not, but now do, appreciate the seriousness of your conduct. As noted earlier, you have a supportive family.
24 You must benefit from your pleas of guilty. The question of whether an offender sentenced for Commonwealth offending is entitled to the objective utilitarian benefits of guilty pleas in saving time and expense is contentious.
25 The prosecution argued that you were not entitled to the objective utilitarian benefits of the pleas of guilty to the Commonwealth offences. I indicated in discussion that I considered decisions by the Victorian Court of Appeal that I was required to pay regard to the utilitarian advantages of your pleas were binding on me. In any event, in my view the wording of s 16A requiring me to take into account the ‘fact’ of your pleas of guilty compels the conclusion that the objective utilitarian benefits must be taken into account.
26 As discussed earlier this morning the issue is irrelevant in a practical sense because I propose to give significant weight to the pleas of guilty as reflecting remorse and an intention to facilitate the interests of justice. You have been generally cooperative with the criminal justice system.
27 Additionally, the weight to be given to the utilitarian benefits of your pleas of guilty in Commonwealth offences would not affect the outcome.
28 I accept that general deterrence is more significant than specific deterrence. Your youth is important as is the fact that you have no prior convictions.
29 On the Commonwealth charges 1-19 you will be convicted and sentenced to an aggregate sentence of 12 months' imprisonment. That sentence is to begin today. You are to be released after serving 175 days' imprisonment on recognisance in the sum of $1000 to be of good behaviour for 12 months.
30 As noted earlier, you have already served 177 days by way of pre-sentence detention and so the term required to be served in prison has been exceeded. Accordingly you will be released on recognisance forthwith.
31 I am conscious of the fact that the State offences relate to the same items imported and the need to avoid double punishment. However I consider there are real advantages in your receiving support. You were assessed as suitable for a Community Correction Order with the writer of the report noting that you were cooperative throughout the assessment answering all questions to an appropriate standard.
32 You will be convicted on the State summary charges and sentenced in respect of those matters to be released on a Community Correction Order for a period of 12 months with the following conditions.
33 (1) That you be under supervision.
34 (2) That you undergo mental health assessment and treatment as recommended.
35 Had you not pleaded guilty, I expect I would have sentenced you to a total effective term of about 18 months' imprisonment. I do not propose to say anything further about this order and what the term would have been before you would be released on recognisance as the matter is too speculative. Anything I have overlooked?
36 MR DOYLE: No, Your Honour. My instructor has prepared a copy of the recognisance release order. I hand that up to Your Honour in triplicate.
37 HIS HONOUR: Anything you can see I have got wrong. Mr Atlas, or overlooked.
38 MR ATLAS: No, Your Honour.
39 HIS HONOUR: Mr Azami, you can come out of the dock and just sit behind your counsel. There are two documents that you are going to be asked to sign so your counsel will assist you with those. We are just printing out the CCO now.
40 MR DOYLE: Just for the benefit of Mr Azami and Your Honour's associate, obviously if the order is breached - - -
41 HIS HONOUR: Yes, thank you for that. I had forgotten that. I need to explain that if the order is breached, he can be brought back here and sentenced for the original offending. Is there anything further I need to make clear to him?
42 MR DOYLE: No, Your Honour.
43 HIS HONOUR: The same goes with the CCO. The date has been left off the recognisance by Mr Azami. Shall I enter it? Thank you. 15/12/2015.
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