DPP v Akber [2023] VCC 353

**2 The circumstances of your offending are as follows.

3 At 5.54 pm on 10 June 2022, you entered the foyer of the Telstra building at 242 Exhibition Street in the Melbourne CBD. You approached the Telstra store and climbed over the glass partition, after the store was closed and no staff were present. Over the next 13 minutes, you broke into several locked storage cabinets containing phones, using pliers or something similar. You also cut wires securing display phones on the bench top. You placed all the phones you stole in a plastic bag and left.

4 At 6.37 pm on 14 June 2022, you again entered the foyer at 242 Exhibition Street, you were carrying a number of plastic bags. You sat down briefly and waited for staff to leave the area. You then climbed over the glass partition and entered the Telstra store. Again, the store was closed and no staff were present. Over the next 13 minutes you again forced access to various locked storage cabinets containing phones and electronic devices. You cut wires securing display phones and gained access to cupboards behind the reception counter. You were interrupted on this occasion by a security guard.

5 As you climbed back over the glass partition, a bag that you were carrying broke, and an iPad and a number of iPhones fell to the ground. The security guard told you he was calling police. You replied, 'You do that.' Before leaving, you picked up one of the phones that had been dropped and left the store with it. Inventory checks completed by a staff member at the store, showed 102 phones had been stolen with a total combined value of $108,828.08.

6 You were eventually located by police and arrested. You said that your actions were performed as a result of financial stress and debts owed to the Bandidos Outlaw Motorcycle Gang.**

8 You were born in Pakistan in March 1963. You are currently 59 years old. You have two siblings. You lost contact with most of your family when you left for Australia at the age of 21. You have described a troubled childhood. You instructed that your father was violent and physically abused you and your mother when you were between five and 17 years of age. There was frequent shouting in the household and you were often attacked for no reason. You instruct that at the age of 10 you were offended against at school. This abuse was perpetrated by a priest and teacher and continued for about two years.

9 You moved to Australia in 1984, and married Jennifer Davies in 1989. During your 28-year marriage, you had three children together, Sarah, Ishahk and Yasmin. They all currently live, work and study in Victoria. However, all contact with them ceased upon your remand.

10 In 1989, you began working with Telstra as a technician. You started an Associate Diploma in Electronics, and worked in cabling and wiring in the telephone exchange for two years. Subsequently, you worked in manufacturing as a technician and later as a security guard. Around 2013, your mental health began to deteriorate, and I've been told that you became addicted to gambling. This precipitated the end of your marriage and you separated from your wife in 2016. You then entered a deep depression, and suffered from severe anxiety. You lost contact with many of your close friends and you still have problems with gambling. You have accrued debts with members of your community and have ceased working. You are receiving unemployment benefits.

11 In 2020, you were admitted to Monash Medical Centre, following a disclosure that you were suicidal. You were diagnosed with major depression and anxiety. You were prescribed anti-depressants and you now receive a disability pension as a result of these diagnoses.**

13 A psychological report dated 1 March 2023, prepared by Dr Aaron Cunningham, was provided by your legal representatives.[1] In Dr Cunningham's opinion, at the time of his assessment of you, your profile was not consistent with the presence of mental illness. He says that it appears your current treatment regime had significantly improved your mental health. He noted, significantly, that you were psychotic when you were taken to gaol. You had been diagnosed with bipolar disorder. Dr Cunningham believes your report of the symptoms during the period of the charges, your comments in the record of interview, and prior psychiatric treatment, are consistent with the presence of bipolar disorder.

14 You stated to him that you were prescribed Olanzapine after a psychotic episode approximately two years ago. You reportedly ceased using this medication in the time prior to your offending, due to bad side effects.

15 In Dr Cunningham's opinion, your bipolar disorder contributed to your offending behaviour, it did not impair your understanding of the wrongfulness of your conduct but he writes, 'Were it not for his symptoms of mania, Mr Akber may have better assessed the risk of his offending actions.'[2] He observed that there was a rational motive for your offending, but your bipolar disorder impaired your judgment with respect to the consequences of your offence behaviour.

Dr Cunningham believes that your mental state has stabilised and improved in prison.**

**16 Mr Riordan on your behalf, submitted that your offending falls at the low to medium range of seriousness for offences of this nature. It is conceded that the total value of the stolen phones is significant, however it is submitted that your offending was not sophisticated. It occurred in a shopping centre bristling with CCTV cameras. You did not use a disguise or gloves. You used your personal Facebook account to sell one of the stolen phones. You also attended the police station for an interview upon request bringing with you a stolen phone. It is submitted that you have indicated remorse and that your plea of guilty carries extra utilitarian benefit in the context of the COVID-19 pandemic.

17 You made full admissions to police. These factors, it is submitted, demonstrate that your prospects of rehabilitation are sound and the need for specific deterrence is low. You also pleaded guilty at the earliest opportunity.

Mr Riordan submitted that limbs to 1-4 of Verdins are enlivened in your case as a consequence of the nexus between your psychiatric condition and your offending, which Dr Cunningham identified in his report. Mr Riordan also relied on the principles in Bugmy as a consequence of your exposure to significant violence and dysfunction during your childhood as set out in the history taken from you by Dr Cunningham. I will come to these principles shortly.**

**18 The prosecution submits that a combined sentence or a sentence consisting of a Community Corrections Order alone, are both within range. It also submits that no further time in custody is warranted given your 258 days of pre-sentence detention. So, that figure again now - - -

20 HIS HONOUR: Two hundred and sixty-two days now. The prosecution concedes that your mental health issues attract the principles of Verdins. It is also conceded that your prospects of rehabilitation are good. You have a limited criminal history, although it is a relevant one. You have a prior conviction for attempted theft, and one for committing an indictable offence whilst on bail.**

**21 Section 5 of the Sentencing Act 1991, provides that the only purposes for which I may sentence you are to punish you in a manner and to an extent that is just in all the circumstances, to deter you and others from committing similar offences, to establish conditions through which you may be rehabilitated, to manifest the denunciation by the court of your offending behaviour, and to protect the community from you. I accept that this offending is at the lower to middle range of seriousness for offences of this kind, notwithstanding the value of the stolen phones, due to the fact that your detection was inevitable.

22 I note however, that you were armed with pliers and you were able to steal display phones by cutting the wires securing them to the counter. So your offending was not wholly unsophisticated as it required some pre-planning. I am prepared to accept that limbs 1-4 of Verdins are enlivened here.[3] Whilst there was a rational motive for your offending, your bipolar disorder impaired your judgement in relation to the consequences of your behaviour. I note

Mr Cunningham's observation that your 'grandiosity' led you to feel that the risk of apprehension was minimal and that you would escape punishment for your actions. Accordingly, your moral culpability is reduced and denunciation of your conduct has less work to do than it otherwise would have.

23 I am also prepared to moderate general and specific deterrence in your case given the influence of your condition on your offending behaviour. Mr Roper for the prosecution accepted that the principles in Bugmy's case are enlivened here as a consequence of the history you relayed to Dr Cunningham. I am prepared to act on that history as a truthful account of your childhood, although it is not confirmed by any other source. In Bugmy the High Court stated,

'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing disposition.'[4]

24 In your case Mr Akber, I accept that the difficulties you experienced in your childhood enliven the principles of Bugmy. I accept that the violence perpetrated by your father upon you and your family deprived you of the crucial developmental benefits of a happy upbringing. This also applies to the abuse you suffered from the age of 10. I take this into account in sentencing you. The prosecution referred me to current sentencing practices, which show that of the 101 people sentenced in the higher courts of Victoria between 2016 and 2021 for theft, 75.9 per cent received a sentence of imprisonment or a sentence of imprisonment combined with a Community Corrections Order. And 12.8 per cent were placed on a Community Corrections Order alone. Of course these offences can be committed in any number of ways with varying degrees of seriousness, sophistication, pre-planning and consequential damage. I accept that the most important sentencing principle here is your rehabilitation, given the nature of your condition and the role it played in your offending.**

27 On Charge 1, a rolled up charge of burglary, I sentence you to a Community Corrections Order of 24 months.

28 On Charge 2, theft, a rolled up charge, I sentence you to a Community Corrections Order of 24 months. This sentence is to run wholly concurrently with the sentence on Charge 1.

29 On Summary Charge 3, commit an indictable offence whilst on bail, I convict and discharge you.

30 On Summary Charge 6, commit an indictable offence whilst on bail I convict and discharge you.

31 Now, I need you to listen closely at this stage Mr Akber, what I'm proposing to do on Charges 1 and 2, is record a conviction and place you on a Community Corrections Order for a period of 24 months, that is two years from today's date. Before I ask you if you consent to such an order being made, I have to tell you a little bit about the order so that you know what it means. Do you understand?

33 HIS HONOUR: All right. The following core conditions apply to all Community Corrections Orders. (a), you must not commit, whether in or outside Victoria during the period of the order, an offence punishable by imprisonment; (b), you must report to and receive visits from the Secretary to the Department of Justice or his or her nominee during the period of the order; (c), you must report to the Community Corrections centre at Melbourne, within two clear days following your release from custody; (d), you must notify the Secretary of his or her nominee of any change of address or employment within two clear working days after that change; (e), you must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee; (f), you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order. Do you understand?

35 HIS HONOUR: Very well. There are a number of other conditions attached to this order and they apply to you. Now I will read those out to you also.

36 So the first one is, you have to perform 100 hours of unpaid community work over a period of 24 months, as directed by the regional manager. All hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition, do you understand?

38 HIS HONOUR: I understand you have a back condition, but, that should not prevent you from being able to perform 100 hours of community work.

40 HIS HONOUR: So, (b), you must be under the supervision of a Community Corrections Order for a period of 24 months, two years; (c), you are required to be supervised, monitored and managed as directed by the Secretary or his nominee; (d), you must undergo any medical assessment and treatment, that may include general or specialist medical treatment, or treatment in a hospital, a residential facility as directed by the regional manager; (e), you must undergo assessment and treatment for gambling addiction; (f), you must undergo mental health assessment and treatment including but not limited to, mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the regional manager.

41 I direct that I be advised by your Corrections officer of any non-compliance of these conditions, and I will then determine if the matter should be brought back to me.

42 Now, Mr Akber, I can only impose a Community Correction Order, if you agree to such an order being imposed, so I need to tell you just a little bit more about that.

43 I should advise you, that if you contravene or breach that order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment. So you need to be extra careful for the next 24 months. Do not commit any further offences that might incur a gaol term, otherwise you are back before the court and you will be re-sentenced on these charges that are before me. Do you understand?

45 HIS HONOUR: I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, or worker if you like, as part of this order, a substantial fine can be imposed. Now, are you aware of all of that?

47 HIS HONOUR: And having understood all of that, do you consent to the order being made?

49 HIS HONOUR: Very well, in those circumstances I make the order I foreshadowed.

51 HIS HONOUR: All right, pursuant to 6AAA of the Sentencing Act, I declare that had you pleaded not guilty to these offences, I would have sentenced you to

18 months' gaol, with a non-parole period of 10 months.

55 MR RIORDAN: Nothing further, thank you Your Honour.

[3] R v Verdins & Ors [2007] VSCA 102; (2007) 16 VR 269, 276 [32] ('Verdins').

[4] Bugmy v R (2013) 169 CLR 571, 594-5 at [43].