Fariah v The Queen [2021] VSCA 213

1 On 21 May 2021, the applicant, now aged 23 years,[1] pleaded guilty before a judge in the County Court to an armed robbery[2] that had been committed on 26 August 2019.

2 The applicant had no prior convictions, but had, on 5 March 2021, incurred a subsequent conviction for armed robbery in the Magistrates' Court - that robbery was committed on 22 September 2019 - for which he was imprisoned for four months.[3] On 10 December 2020, the applicant had also been sentenced to an aggregate term of eight months' imprisonment for offences including robbery; attempted robbery; attempted carjacking; theft; and bail offences.

3 Following a plea, on 26 May 2021 the judge sentenced the applicant to 2 years and two months' imprisonment, with a non-parole period of 12 months, to be served concurrently with the sentence then being undergone.[4]

4 The applicant now seeks leave to appeal against that sentence on three grounds:

1. The learned sentencing judge erred in characterising the objective seriousness of the offending as involving a 'soft target' victim.
2. The learned sentencing judge erred in his application of s 5(2H)(e) of the Sentencing Act 1991 (Vic) by:
   1. Imposing a 'balance of probabilities' legal burden of proof on [the applicant]; and/or

b. Erroneously interpreting the statutory phrase 'substantial and compelling reasons that are exceptional and rare' as, relevantly, requiring consideration of the rate at which circumstances arise in the County Court.

5 For the reasons that follow, we would grant leave to appeal; allow the appeal; and sentence the applicant to nine months' imprisonment.

6 On the plea, the Prosecution Opening was treated as an agreed summary of the facts. So far as relevant, it was in the following terms:

1. The [applicant] at the time of the alleged offences, was 21 years of age ...
2. The co-accused in this matter is Tony Franco, who, at the time of the alleged offences, was 22 years of age ...
3. Police have been unable to ascertain the identity of a third male offender, referred to as 'Capone'.

1. The complainant in this matter is Duc Nguyen, who was a student at the time of the alleged offences ('Nguyen').
2. At approximately 3.30pm on Monday 26 August 2019, Nguyen was walking home from University alone on Storey Road, Reservoir. As Nguyen was walking along Storey Road, he observed a black-coloured Audi sedan parked outside of 36 Storey Road, Reservoir. This was an address known to Nguyen, as his friend, Teodore Stankovic, resided there ('Stankovic').
3. As Nguyen walked closer to the black Audi, a male from inside the vehicle called Nguyen over to speak with him. Nguyen recognised the male who called him over as being Franco, as he and Franco went to high school together, and had mutual friends.

1. Nguyen walked over to the Audi where he recognised a second male inside the vehicle as Capone. Nguyen ... recognised Capone from having mutual friends.
2. Capone asked Nguyen if he could call Stankovic for him, to which Nguyen agreed. Nguyen began calling Stankovic.
3. At this time, Capone exited the Audi and grabbed Nguyen's phone out of his hand and said 'look down'. Nguyen then observed Capone to be holding a taser in his right hand. At the same time, a third male from inside the Audi, whom Nguyen recognised as the [applicant], exited the Audi and approached Nguyen. The [applicant] then grabbed Nguyen's Apple Air Pods from his left jacket pocket. ... [charge 1: armed robbery].
4. Capone then demanded Nguyen's iCloud password, to which Nguyen refused. Capone then started waving the taser in the direction of Nguyen, and stated 'I'll use this if I don't get your password to your iCloud'.
5. At this time Stankovic exited his apartment, and Nguyen asked Stankovic for assistance. However, due to Capone holding the taser, Stankovic was reluctant to assist.
6. Nguyen tried to snatch his phone back off Capone, however, Nguyen was unable to. At this time, Capone activated the taser and attempted to use it on Nguyen, however, Capone missed Nguyen.
7. Stankovic then intervened and broke Nguyen, Capone and the [applicant] up, before Capone stated 'I will bring trouble to you', before he and the [applicant] re-entered the Audi, and Franco drove away at a fast rate of speed.

1. On 13 October 2019, the [applicant] presented at the Heidelberg Police Station where he was arrested.
2. On 14 October 2019, the [applicant] participated in a record of interview, where he stated the following:

1. He knew nothing about the armed robbery of Nguyen on 26 August; 2. He could not recall what he did on 26 August 2019;

1. He never had the victim's Air Pods; and 2. He could not explain why he was captured on CCTV in Franco's vehicle.
2. At the conclusion of the record of interview, the Accused was charged and remanded in custody.

7 The applicant was born in Somalia in 1998 during civil war. He was raised in an environment of war and conflict. Both his parents were killed when he was an infant. An uncle, who had assumed the role of father figure, was also killed when the applicant was aged nine years. He lived in constant fear of his own death. Not only was violence a pervasive aspect of his existence, but robbery and theft were normalised and highly prevalent. His life involved resort to anti-social means to have his basic needs met. Dr Laura Anderson, a clinical neuropsychologist, in a report dated 7 December 2020, said that the applicant

described being exposed to significant war and conflict during his childhood in Somalia. He explained that he saw many of his friends killed in front of him. When reflecting upon this Mr Farah stated 'you never know when you're gonna die there. You could die tonight or tomorrow. People kill you for no reason'. Mr Farah also stated that when living in Somalia he had to 'hustle to survive', explaining that he rarely ate and would 'hustle' and 'sell clothes or whatever I could' in order to get money so he could eat.

8 In 2015, at age 15, the applicant emigrated to Australia on an 'orphan relative visa', helped by his supportive older sister. In a reference which was before the sentencing judge, his sister wrote:[5]

After arriving in Australia, Farhan was eager to resume his studies which were severely disrupted after our parents passed away. For the first two years since arriving in Australia, Farhan was a model student and enjoyed his studies at Reservoir High School. Unfortunately, a group of students of bad influence befriended him and introduced him to bad habits. After a short period of time, these [scil, this] group of students introduced him to others outside the school community who led him further astray and got him involved in illegal activities.

9 The applicant told Dr Anderson that, by age 18, he was drinking very large amounts of alcohol daily - reportedly 24 cans of beer and two bottles of spirit - in an attempt to 'knock [himself] out each day' and 'block some stuff out', 'lots of stuff'. He was also regularly using cannabis and benzodiazepines. It is against that background that, around his 21st birthday, the applicant first offended, having previously lived a law-abiding life in this country.

10 Dr Anderson assessed the applicant as having 'Complex Trauma', which is a response to 'multiple, chronic traumatic experiences'. The applicant was also assessed as having various alcohol and substance use disorders, together with clinically significant depressive and Post-traumatic Stress Disorder symptoms.

11 During the plea in mitigation, the applicant's legal practitioner relied on the applicant's early plea of guilty, and the utilitarian benefit associated with its entry during the current pandemic. The applicant's youth; his deprived background; his lack of prior convictions; and remorse, were also put to the forefront. Further, it was submitted that, not only will prison conditions be much more onerous due to the effects of the pandemic, but, should the applicant be sentenced to a term of imprisonment of 12 months or more, by reason of s 501 of the Migration Act 1958 (Cth) he will automatically be deported. Whilst it was acknowledged that the applicant's armed robbery qualified as a category 2 offence for the purposes of the Sentencing Act 1991 ('the Act') - 'the offence was committed by the offender in company with one or more other persons' - it was submitted that s 5(2H)(e) of the Act justified the imposition of a community correction order with a sentence of no greater than 12 months' imprisonment, since there were 'substantial and compelling circumstances that are exceptional and rare' that warranted that course.

12 In his reasons for sentence, the judge accepted the applicant's 'background of trauma and dysfunction and disadvantage ... where violence was, to an extent, normalised', and said that there can be 'some real reduction' in the applicant's moral culpability based on 'Bugmy principles'.[6]

13 The judge noted that the applicant had 'pleaded guilty at an early stage', the plea being 'worthy of some extra weight' because it was entered during the pandemic. Further, the judge said that he was 'prepared to find the presence of some remorse', which he took into account in the applicant's favour. Given the applicant's age and the absence of prior criminal history, the judge was 'prepared to find' that the applicant has 'quite reasonable prospects of rehabilitation', if he can change the way that he lives. Moreover, the applicant's youth was 'undoubtedly a matter of real significance'. The judge added: 'There are quite realistic prospects of rehabilitation here, but this was a serious enough offence'.

14 It was accepted by the judge that the burden of imprisonment upon the applicant had been increased by the COVID-19 pandemic. He also 'work[ed] on the assumption' that the applicant's visa will be cancelled automatically. With respect to the first and third Verdins[7] considerations relied upon, the judge said:

I am not satisfied that I can find on the balance of probabilities any realistic connection between your condition and this crime. It follows that I do not believe it is open to give any weight to either of these principles raised. As I have said though, I take into account your psychological profile in a general way and also in a Bugmy fashion. That together with your youth attracts some real reduction in culpability. Your youth alone leads to some moderation of general deterrence as more weight is extended to rehabilitation in such a setting with a 22-year-old with no formal prior criminal history.

15 As to the gravity of the applicant's offending, the judge observed:[8]

I take into account the nature and the gravity of the offence. Your counsel concedes the seriousness of the offence. It Is not an offence with any level of planning. It was obviously spontaneous but still serious. It was after all an armed robbery. You knew your offsider had a taser and used that fact and the group dynamic to take what you wanted. You were not the initiator of contact but you committed this armed robbery. Your counsel points to the absence of certain other weapons. Well, I am sentencing you for what you have done, not for what you have not done or what you might have done, so the absence of another weapon is not a matter in mitigation. It was not a firearm, real or imitation, nor a knife or plastic drink bottle. It was what it was. A functioning taser which was wielded and deployed, though very happily, it did not strike your victim. It was an in-company offence, a spontaneous enough soft target armed robbery committed upon a totally innocent victim on a public street in broad daylight. It was miles from the most serious category of armed robbery but does not fall at the lowest level either.

16 The judge also referred to current sentencing practices and statistics; discussed the effect of s 5(2H)(e) of the Act (which we will return to in more detail when dealing with the second ground of appeal); and said that he took the principle of totality into account. Finally, the judge considered the applicant's prospects of rehabilitation; specific deterrence; protection of the community; and denunciation. As to general deterrence, the judge said:

I also have to deter others. That principle, which is known by us lawyers as the principle of general deterrence, is always an important enough consideration in this sort of case. There is a real need to deter other likeminded people from committing such a serious offence as armed robbery.

Your youth can lead to some moderation of general deterrence, as it does to all these purposes actually. Rehabilitation gets far more weight in this case than it would for an older or more criminally experienced offender. General deterrence is still of some importance in this case, one involving, as I have said, a nasty enough soft target armed robbery in a public street in broad daylight.

Ground 1: Mischaracterisation of the victim as a 'soft target'

17 Counsel for the applicant submitted that the sentencing judge erred in characterising the applicant's offence as a 'soft target armed robbery'.[9] He submitted that 'soft target' is 'a term of art in sentencing parlance to denote a well-recognised aggravating feature of armed robberies'. It is a label attaching to victims 'when their particular circumstances of vulnerability engage and necessitate a special protective obligation on the part of a sentencing Court'. Taxi drivers, service station and convenience store attendants, and proprietors of small family businesses such as milk bars, are examples.[10]

18 In our view, however, the applicant's counsel seeks to read far too much into the judge's use of the term 'soft target armed robbery'. We consider that, by using that expression, the judge was endeavouring to convey no more than the notion that the victim was in a vulnerable position vis-à-vis the applicant and his co-offenders. Thus, the victim was a student, walking on the street alone, when confronted by the applicant and two other men - one of whom was armed with a taser - and robbed of his Apple 'AirPod' headphones.

Ground 2: Error in the application of s 5(2H)(e) of the Act

20 Counsel for the applicant submitted that error in the application of s 5(2H)(e) is revealed in the following passages from the judge's sentencing remarks:

Your counsel submitted that there were substantial and compelling circumstances that are exceptional and rare and that justify not imprisoning you. That is the exception set up in section 5(2H)(e). If not falling within it, I have no option but to confine you and not in combination with a community corrections order. Prison would beckon as you are too old for detention in a youth justice facility.

...

I must pay attention to the words used in the sub-section. They are not there by accident. I must also apply other provisions of the Act, which give guidance as to the interpretation of those words. So, I must firstly consider the actual words used in the provision. The bar is raised very high here by the words actually employed in the legislation. Not just substantial and compelling. That was a very high bar, as cases interpreting that older provision made clear. ...

This is a very strict provision with a very high threshold. It is and is designed to be a very stringent test. ... I cannot just ignore the additional words, 'Exceptional and rare'. They have been added in to make it even harder to establish.

In determining whether there are substantial and compelling circumstances, section 5(2HC) tells judicial officers to pay greater regard to general deterrence and denunciation than to other sentencing purposes and to give less weight to the personal circumstances of the offender. The court is told not to take into account previous good character other than the absence of prior convictions, not to take into account an early plea of guilty or prospects of rehabilitation. These are very significant and quite deliberate alterations to the way in which a Judge will usually perform the sentencing task. That together with section 5(2L)(a) signals Parliament's stated intention that ordinarily for a Category 2 offence, a term of imprisonment is to be imposed, or at least confinement, and not in combination with a community corrections order.

Your counsel points to your youth and disadvantaged or deprived background, your lack of formal prior criminal history, the risk of deportation and the heightened custodial burden arising from the COVID-19 setting, as well as from the prospect of deportation.

Youthful offenders, even those with no criminal history, are quite common. So too, regrettably, offenders with backgrounds of significant disadvantage. We see them all the time. The risk of deportation is far from uncommon. I would have considered that matter in more than a dozen cases myself inside the last 12 months and I am but one of the many judges sitting in crime in this Court. At this stage, the worst of the impacts of COVID-19 upon prisoners seems to be behind us.

...

I do not believe that any of the matters raised on your behalf either individually or in combination rise to that level of being substantial and compelling circumstances which are exceptional and rare and which justify not making a custodial order here. I am not satisfied on the balance of probabilities that the exception is made out.

Your counsel conceded that if that exception was not made out, the court would move to fix a head sentence and a non-parole period, conceding that a straight sentence would not be adequate or appropriate. I agree.

21 Two errors, counsel contended, are revealed in the passages above. First, as is plain from his use of the words 'balance of probabilities', the judge understood s 5(2H)(e) to impose a legal burden on the applicant. Secondly, the judge interpreted the words 'exceptional and rare' to mean 'exceptional and rare as amongst persons sentenced by the County Court'. These two errors, counsel submitted, resulted in the judge reaching the wrong conclusion about the application of s 5(2H)(e). The judge should, counsel submitted, have found the provision was engaged.

22 So far as relevant, ss 5(2H)(e), (2HC) and (2HI) provide:

(2H) In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless -

...

(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).

...

(2HC) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court -

(a) must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in section 5(1); and

(b) must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

(c) must not have regard to -

(i) the offender's previous good character (other than an absence of previous convictions or findings of guilt); or

(ii) an early guilty plea; or

(iii) prospects of rehabilitation; or

(iv) parity with other sentences.

(2I) In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to -

(a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and

(b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.

23 Section 5(2H)(e) was considered in Farmer.[11] In that case, the applicant, when aged 18 years, committed a serious armed robbery on a petrol station in the company of two males, aged 18 and 16. The three were disguised, and the applicant's co-offenders were armed with a machete and a large knife. Money and cigarettes were stolen and the console operator was terrorised. The applicant pleaded guilty to armed robbery in the County Court, and was sentenced to nine months' detention in a Youth Justice Centre. A submission that s 5(2H)(e) was engaged was rejected by the sentencing judge, who concluded that the circumstances were not wholly outside what might be described as 'run of the mill' factors typically present in offending of that kind. On appeal, this Court considered that the case was 'most unusual', given 'the physical disfigurement from which the applicant suffers, and the profound impact which it has had on his life'. Allowing the appeal, this Court resentenced the applicant to 'time served'. The Court observed:[12]

Within the context of s 5(2H), paragraph (e) is a residual category of limited scope. On any view, it is a very high hurdle that will not often be surmounted. The legislative norm is that category 2 offences will attract an immediate term of imprisonment, drug treatment order or detention in a Youth Justice Centre or youth residential centre. Importantly, community correction orders ('CCOs') or a combined CCO and term of imprisonment under s 44 are not available.

In many cases, given the type of offences within category 2, a term of imprisonment will be inevitable. In some cases, the operation of s 5(2H) will be harsh. In other cases a term of imprisonment or youth detention would be entirely unjustified, counterproductive from the view point of rehabilitation and work a serious injustice. That may be particularly so for young offenders. To a degree paragraph (2H)(e) guards against the risk of injustice. But the stringency of the test cannot be avoided.

Within the bounds of reasonableness, whether in combination the applicant's circumstances amounted to 'substantial and compelling circumstances' that are 'exceptional and rare' was for the judge to determine.

The judge was correct in concluding that a young offender who will be vulnerable in custody and who suffers from anxiety but who has committed a very serious offence is not rare or unforeseen. Generically, the factors relied on by the applicant are often seen.

However, although each of the aspects on which the applicant relies fit within a category or type that is common, in our view, the accumulation of detail was exceptional and compelled the conclusion that the mandatory detention provision should not be applied. We are of the opinion that the conclusion reached by the judge was not one which was open to him.

What makes this a most unusual case, in our view, is the physical disfigurement from which the applicant suffers, and the profound impact which it has had on his life. ...

24 In our view, the judge erred in considering that the applicant bore an onus to satisfy the court that there were substantial and compelling circumstances that were exceptional and rare that justified not making an order under Division 2 of Part 3 of the Act.[13] We accept the submission of the applicant's counsel that s 5(2H)(e) does not impose a burden on an offender to prove on the balance of probabilities the existence of substantial and compelling circumstances that are exceptional and rare. That is an evaluative judgment for the judge to make once the relevant underlying facts have been established in accordance with settled principle.[14]

25 We also consider that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not by that fact alone necessarily deprive them of their character as substantial and compelling and exceptional and rare. Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception in s 5(2H)(e). Indeed, in our view, the applicant's appalling childhood experiences, coupled with his youth and other factors relied upon, were sufficient in combination to engage s 5(2H)(e).

26 The second ground has been made out. Given our conclusions on ground 3, however, we need not pause to consider the course that the sentencing judge should have adopted.

27 By its nature, armed robbery is a serious crime. The applicant's offence is, however, a long way from being in the worst category. No doubt the victim was put in fear - particularly by the co-offender's use of the taser - but, given that no victim impact statement was produced, it cannot be concluded that he has suffered any ongoing or lasting difficulties. We also note that the victim's AirPods were recovered by police during a search of Franco's premises on 27 August 2019.

28 As we have mentioned, the applicant's formative years were blighted by conflict. He lived in constant fear, and 'hustled' to survive. So much is significantly mitigating. Thus, in Marrah, this Court said:[15]

Circumstances of deprivation, abuse and other social disadvantage occurring during an offender's formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender's criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender's conduct that the offender's moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community's disapproval of the offending.

29 It is also important that the applicant was youthful when he first offended. Despite his appalling background, he had lived several years in this country without breaching the law, until he became involved in a relatively confined (albeit serious) burst of criminal activity. His youth and previous good character required that his prospects of rehabilitation be given significant weight in the exercise of the sentencing discretion.

30 Ultimately, we consider that when proper weight is given to the applicant's youth; his deprived background; his early plea of guilty, and the fact that it was entered during the pandemic;[16] his prospects of rehabilitation; the threat of deportation hanging over his head;[17] and his family support; it may be seen that the sentence imposed by the sentencing judge was wholly outside the range of those open in the sound exercise of the sentencing discretion.

31 Ground 3 must succeed. We would therefore grant leave to appeal and allow the appeal. Synthesising for ourselves all of the circumstances discussed above, we would resentence the applicant to nine months' imprisonment.

[2] Crimes Act 1958, s 75A. The maximum sentence is 25 years' imprisonment.

[3] An appeal against that sentence also came before the judge on 21 May 2021, but was abandoned.

[4] Pursuant to s 6AAA of the Sentencing Act 1991, the judge declared that, but for the plea of guilty, he would have sentenced the applicant to three years and eight months' imprisonment, with a non-parole period of two years and four months.

[6] Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 ('Bugmy').

[7] R v Verdins [2007] VSCA 102; (2007) 16 VR 269.

[8] Emphasis added to this and following passages.

[9] See [15] and [16] above.

[10] Counsel cited R v Kittikhoun [2004] VSCA 194; R v Lee [2006] VSCA 80; and R v Alashkar [2007] VSCA 182; (2007) 17 VR 65.

[11] Farmer v The Queen [2020] VSCA 140 (Maxwell P, Kaye and Niall JJA).

[13] See generally, NOM v Director of Public Prosecutions [2012] VSCA 198; (2012) 38 VR 618, 642-6 [75]−[84] (Redlich and Harper JJA and Curtain AJA); and compare s 5(2H)(c) which, in terms, requires an offender to prove the matters referred to in that section in order to come within the exception referred to therein. See also Deputy Commissioner of Taxation v Shi [2021] HCA 22, [89] (per Edelman J).

[14] As to which, see R v Storey [1998] 1 VR 359, 371 (Winneke P, Brooking and Hayne JJA and Southwell AJA); Olbrich v The Queen (1999) 199 CLR 270, 281 [25]-[27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

[15] Marrah v The Queen [2014] VSCA 119, [16] (emphasis in original; citations omitted).

[16] See Worboyes v The Queen [2021] VSCA 169, [35].

[17] Guden v The Queen [2010] VSCA 196; (2010) 28 VR 288, 294-5 [25]-[27] (Maxwell P, Bongiorno JA and Beach AJA); Ankur v The Queen (2021) 96 MVR 1, 27 [117] (Priest, Kaye and T Forrest JJA).