R v Rezwani
[2021] ACTSC 7
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | R v Rezwani |
| Citation: | [2021] ACTSC 7 |
| Hearing Date: | 1 February 2021 |
| Decision Date: | 1 February 2021 |
| Before: | Mossop J |
| Decision: | See [44] |
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – aggravated robbery – taking a motor vehicle without consent – low end of mid range objective seriousness – offending occurred in the context of disordered thinking and intoxication – disrupted upbringing – mental health diagnoses – no criminal history –– medium to low risk of reoffending – intensive correction orders |
| imposed | |
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 11, 46C(7) Crimes (Restorative Justice) Act 2004 (ACT), s 24 Criminal Code 2002 (ACT), ss 310, 318 |
| Cases Cited: | Hall v The Queen; Barker v The Queen [2017] ACTCA 16 |
| Parties: | The Queen (Crown) Mohammad Rezwani (Offender) |
| Representation: | Counsel |
| P Dixon (Crown) A Doig (Offender) | |
| Solicitors | |
| ACT Director of Public Prosecutions (Crown) | |
| Darryl Perkins Solicitors (Offender) | |
| File Number: | SCC 101 of 2020 |
| MOSSOP J: | |
| Introduction |
1. The offender, Mohammad Rezwani, has pleaded guilty to the following offences:
(a) aggravated robbery (SCCAN2020/89), contrary to s 310 of the Criminal Code 2002 (ACT) which carries a maximum penalty of 25 years’ imprisonment, a fine
of $400,000 or both; and
(b) taking a motor vehicle without consent (CC2020/3436), which is contrary to s 318(1) of the Criminal Code and carries a maximum penalty of 5 years’
imprisonment, a fine of $80,000 or both.
2. The four other charges on the indictment are to be the subject of a notice declining to proceed to be filed by the Director of Public Prosecutions.
Facts
3. At approximately 11pm on 3 March 2020, the offender knocked on the door of an apartment in Taylor. The victim was staying at the apartment which belonged to his brother. The
victim’s brother was not at home at the time, however, his 2005 grey Honda Accord was
parked in the underground carpark. The keys to the vehicle were inside the apartment.
4. The victim opened the door to the offender, who he did not know. The offender said words
to the effect of “you hit my car” and said that he lived in another apartment in the same
complex. The victim explained that he did not hit the offender’s car but that it could have
been his brother. The offender threatened the victim and took a sliver flick knife, which had a blade of approximately 7 cm, from the pockets of his pants. The offender said that he would kill the victim and his brother with the knife and then shoot them both.
5. The offender told the victim to go with him to the underground carpark. He grabbed the
front of the victim’s shirt, held the knife up and said that if the victim did not go with him, he would kill him. The offender said words to the effect of “bring the keys, I’m gonna want the car”. He grabbed the victim’s arm and the victim got the keys to his brother’s car. They
walked to the underground carpark and the offender continued to hold on to the victim’s
arm.
6. The car was parked in the car space allocated to the victim’s brother’s apartment. The offender took the keys and opened the car, stating that he needed the “logbook”. The victim
reiterated that it was not his car and that he did not know where the logbook was. The offender took a pair of sunglasses from the car and told the victim to hold them. The offender pointed to a black car parked in the carpark which he said was his. He pointed out damage to one of the taillights.
7. The offender and the victim then walked back to the apartment. The offender was still
holding the knife. Once inside the apartment the offender again grabbed the victim’s shirt.
While holding onto the shirt, the offender held the knife to his own throat and dragged it
across the skin on both sides, drawing some blood. The offender said “look at this, I’m
going to kill you and this is what I do to you.” The offender then placed the knife against
the victim’s cheek and made a circular movement against the victim’s skin. The offender
asked the victim if he knew what the movement meant and the victim said that he did not.
The offender pointed the tip of the knife close to the victim’s face and said that he would kill the victim with the knife and a gun, and that he would “get” the victim’s brother as well.
8. The offender asked the victim for his wallet. When the offender took the wallet he ripped it open, causing the wallet to break. The offender took some money from the wallet and then
threw it on the ground, stating it had “nothing to do with money”. He said to the victim that
he would take the car and that if could not take the car then “someone is going to die”.
9. Following this, the offender stepped out of the front door of the apartment with the victim’s brother’s car keys in his hand. It is the theft of the keys that forms part of the aggravated
| robbery. The victim quickly closed the door and locked it. He heard knocking on the door about five minutes later and he called the police, believing that it was the offender. |
10. Police arrived at approximately 12:20am. Police were standing out the front of the apartment complex with the victim when the victim observed the offender walking towards
the victim’s apartment. The victim pointed him out to the police and identified him as the
offender. The police approached the offender and had a conversation in which he said
“He’s just crashed into my car a couple of times into my storage” and “I’m just trying to get
him, like what, why is he doing that for.”
11. The offender was arrested and a 20.5 cm folding knife and two sets of keys (including the
keys to the victim’s brother’s car) were found during a search of the offender. During the arrest the offender stated “I thought I was under attack. I thought people were attacking me like … Go downstairs and look at my storage unit.”
12. On 4 March 2020, the victim went into the underground carpark and noticed that his
brother’s car was not there. His brother confirmed that he had not taken the car. On
8 March 2020 while driving home from work, the victim noticed his brother’s car parked on
the side of the road, near the apartment complex. The car was locked and the police did not observe any damage or tampering to the car. It is the taking of this car that constitutes the second charge to which the offender has pleaded guilty.
13. On 5 April 2020 police attended the apartment complex with the victim’s brother. They observed damage to the left side of the storage unit allocated to the offender’s apartment
and damage to a black Honda CRV registered to the offender.
14. Although the Statement of Facts does not include anything about the offender’s
consumption of alcohol, it was common ground that at the time of the offending he was affected by alcohol. I find, based on the history recorded in the report of Mr Sam van Meurs, to which I will refer later in these reasons, that prior to the offending the offender had consumed a substantial quantity of vodka.
Victim impact statement
15. The victim prepared a victim impact statement which was tendered by the prosecutor. The statement describes his experience of the offending and his fear that he would be stabbed. Since the incident he has experienced anxiety and fear that it may happen again. He explained that this has affected his concentration at work and caused him to become paranoid. He now dislikes being in a crowd and is very security conscious when home. He stated that he no longer feels as free as he used to.
16. These impacts are consistent with what would be expected to flow from offending of this nature.
Objective seriousness
17. The aggravated robbery involved a knife and the touching of the victim’s skin with it. It
involved threats of death with the knife and a gun. It involved physical contact with the
victim – grabbing the victim’s arm and holding his shirt. It is offending which is at the low
end of the mid range of objective seriousness for this very serious offence.
18. The taking of the motor vehicle occurred subsequent to the taking of the keys. Apart from the circumstances in which the keys were obtained, there are no additional aggravating features. There was no damage to the vehicle and it was found nearby. This offence too is at the low end of the mid range of objective seriousness for the offence.
Subjective circumstances
19. The personal circumstances of the offender are described in a pre-sentence report dated 27 January 2021.
20. The offender is currently 27 years old and was 26 at the date of the offences. He was born in Iran. At the age of six, the offender, his mother and younger brother came to Australia as refugees and were detained on Nauru for three years. The offender and his family were given asylum seeker status and arrived in Australia in 2004. The offender reported that he experienced stressful events while on Nauru.
21. The offender is currently single and has no children.
22. He described a positive relationship with his family. He has one brother and three sisters. His mother agreed that she and the offender have a close relationship, however, she stated that he is not close with his father and siblings. She explained that this was because his
father did not live with the family during the offender’s childhood. The offender stated that
he sees his family at least one per week, however, his mother denied this. She noted that she would like to see him on a regular basis but she cannot visit him at his current residence due to family tensions.
23. In 2018 an apprehended violence order (AVO) was put in place against the offender by his brother and father due to his alcohol consumption. His mother explained that the AVO was required to send the offender the message that drinking was not tolerated in the household. Later that year the offender left the family home and became homeless. He lived in shelters, couch surfed, slept in his car and squatted in empty flats. He reported that he was robbed
on several occasions. He now lives with his uncle and his uncle’s family and described the
situation as good. He is on the waiting list for a transfer with ACT Housing.
24. He completed his Year 12 education in the ACT. He commenced tertiary education at a university in Canberra but did not complete any degree.
25. He was last employed in 2018 as a labourer and stated that he left this employment due to
his mental health. His uncle’s partner has offered him casual employment in a restaurant
from February 2021.
26. The offender’s problems with alcohol commenced in 2018, when he would consume
approximately 10 standard drinks per day. He completed residential rehabilitation at Arcadia House in September 2019. Although this did not assist him to cease his alcohol consumption, he said that he attended rehabilitation to show his family that he was trying to get better. He claimed that he had last consumed alcohol on 3 March 2020, the date of
the offences, and then “just stopped” because drinking was “not for him”. The offender’s
| mother described how she had to call the ambulance for him on multiple occasions due to his alcohol consumption. She did not know whether he continues to consume alcohol. |
27. In relation to illicit drugs, the offender used cannabis between 2015 and 2019. He used methamphetamine three or four times while homeless in 2018, although ceased this because he did not like its effects. The offender has been a client of Directions Health Service on and off since 2018. He has consistently seen an alcohol and drug counsellor since September 2020. He recorded two negative urinalysis tests in October and December 2020.
28. The offender was assessed as presenting a medium to low risk of general reoffending. His risk factors relate to unemployment, past alcohol and illicit substance use and mental health. The author of the report was of the opinion that, although his recent engagement
with alcohol and drug counselling and mental health treatment is positive, “due to discrepancies in information provided, it remains to be seen if the offender’s newfound
motivation is the result of the pending matters or a genuine desire to address his risk factors
and mental health.”
29. He was assessed as suitable for a good behaviour order, a community service work condition and an intensive correction order.
30. A report of Mr Sam van Meurs, psychologist, dated 7 January 2021 was tendered in relation
to the offender’s mental state at the time of the offending.
31. Following an assessment of the offender, Mr van Meurs made the following diagnoses:
(a) social anxiety disorder (moderate-severe, chronic); (b) persistent depressive disorder with intermittent major depressive episode, but without current major depressive episode (moderate-severe); (c) adjustment disorder with anxiety (initially moderate-severe, remitted); and (d) substance use disorder, alcohol (remitted).
32. Mr van Meurs’ report described in more detail his family, educational, health and drug and
alcohol use history. It also described his version of the incident. That is consistent with material that appears in the Statement of Facts which indicates that the offender was in a highly agitated state as a result of feeling under threat within the residential complex due to damage to his vehicle and storage unit, his anxiety and his consumption of a significant quantity of alcohol.
33. Mr van Meurs records that the offender demonstrated “a strong presentation of a highly anxious individual”.
34. A letter from the offender to the court appears to indicate some level of insight into his offending conduct. A reference from his father supports that, although it does not go into any detail about the current extent of support that the offender has from his family. A letter from Directions Health Service records his history of engagement with drug and alcohol counselling. He has also obtained assistance from a private counsellor and hopes to get access to a program of free psychological support in the future.
Criminal history
35. The offender has no criminal history.
Plea of guilty
36. The offender pleaded guilty in the Supreme Court on 13 November 2020, following the criminal case conference. The trial had been due to start in the week of 30 November 2020. The Crown case was a strong one. A discount of between 10 and 15% is appropriate in those circumstances.
Time in custody
37. The offender has spent 188 days in custody referrable to these offences. He was arrested on 4 March 2020 and bail was refused in the Magistrates Court. Bail was later granted in the Supreme Court on 7 September 2020.
Consideration
38. The starting point must obviously be that the offending is serious offending. Although only at the low end of the mid range of the offence of aggravated robbery, this is a very serious offence. The present offence involved the use of a knife touching and in close proximity to the victim, accompanied by very serious threats. The taking of a motor vehicle is, having regard to the maximum penalty, a less serious offence but nevertheless one that potentially carries a very significant period of imprisonment. Clearly, denunciation, general and specific deterrence, holding the offender accountable and punishing the offender for his conduct are relevant sentencing considerations.
39. Having said that, it must be recognised that the offender does not have a criminal history and, although he has had some involvement with illicit substance use, does not have a history which would deny him leniency or the potential for rehabilitation. He is also still relatively young and has had a disrupted upbringing. It is also relevant that he has been diagnosed by Mr van Meurs with the various conditions set out in the report, a significant theme of which is his level of anxiety.
40. The behaviour of the offender, including as it did, drawing blood from his own neck, is
appropriately described by counsel for the Crown as “odd”. Engagement in the offending
| conduct appears to have been driven by disordered thinking consequent upon intoxication and the perception of threat or injustice, rather than a desire for personal gain. |
41. Counsel for the Crown appropriately referred to the decision of the Court of Appeal in Hall v The Queen; Barker v The Queen [2017] ACTCA 16 in relation to sentencing for aggravated robbery. In my view, while the only appropriate sentence for each of these offences is a custodial one, having regard to the fact that the offender has spent a significant period in custody, it is possible to deal with these offences in a way which does not require him to spend a further period in full-time detention.
42. On the charge of aggravated robbery, the starting point is a sentence of 30 months’
imprisonment which is reduced to 26 months on account of the plea of guilty. On the
charge of taking a motor vehicle without consent, the starting point is a period of 15 months’
imprisonment, reduced to 13 months on account of the plea of guilty. It will be cumulative as to four months upon the sentence for aggravated robbery. The sentence for aggravated robbery will be backdated to take into account the 188 days served in full-time custody.
43. Having considered the matters in s 11(3) of the Crimes (Sentencing) Act 2005 (ACT), I consider that it is appropriate that the sentence for aggravated robbery be served by way of intensive correction. I also consider that the take motor vehicle charge can appropriately be served in that way.
Orders
44. The orders of the Court are:
1. I order nunc pro tunc that pursuant to s 46C(7) of the Crimes (Sentencing) Act 2005 (ACT) the intensive correction assessment form part of the pre-sentence report.
2. On the charge of aggravated robbery (SCCAN2020/89), the offender is convicted and sentenced to imprisonment for 26 months commencing on 28 July 2020 and ending on 27 September 2022, which sentence is to be served by intensive correction in the community.
3. On the charge of taking a motor vehicle without consent (CC2020/3436), the offender is convicted and sentenced to imprisonment for a period of 13 months commencing on 28 December 2021 and ending on 27 January 2023, which sentence is to be served by intensive correction in the community.
4. Each offence is referred for restorative justice under s 24 of the Crimes (Restorative Justice) Act 2004 (ACT).
I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop.
Associate:
Date: 11 February 2021