CDirector of Public Prosecutions v Hockley

[2023] VCC 154

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CR-21-00927

DIRECTOR OF PUBLIC PROSECUTIONS

v

Hayuu ADEN

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JUDGE:	Dalziel
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2023
DATE OF SENTENCE:	9 February 2023
CASE MAY BE CITED AS:	DPP v Aden
MEDIUM NEUTRAL CITATION:	[2023] VCC 154

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Attempted armed robbery – Causing injury recklessly – Prohibited person possess a Firearm

Sentence:                  Convicted and sentenced to a total effective sentence of 4 years and 7 months imprisonment with a non-parole period of 3 years.

Section 6AAA declaration: Conviction and total effective sentence of 6 years imprisonment with a non-parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Hannan	Office of Public Prosecutions
For the Accused	Mr A. Malik	Valos Black & Associates

HER HONOUR:

1Hayuu Aden, you have pleaded guilty to one charge of attempted armed robbery, one charge of recklessly causing injury, one charge of being a prohibited person in possession of a firearm and one charge of committing an indictable offence on bail. Each charge is alleged to have occurred on the 4th of October 2020.

2The victim is a young man who was here in Australia as a student.  He lived in a bungalow behind a house in Melbourne’s west, sharing that residence with a cousin.  The victim was bi-sexual, which was something he kept from his cousin and landlady, out of concern that he might be shunned by his family due to his sexuality. 

3Prior to the incident which brings you to court today you and the victim were not known to each other.

4On 2 October 2020, the victim contacted you in the form of electronic messages via the application ‘Skout’, a social networking and dating App.  The victim was using the application to facilitate a meeting for casual sex.

5You operated on Skout under the username and alias “Kenny Shmacko.” You said you were 23 years old and interested in both men and women. You used 3 separate profile pictures, none of which were actual photographs of you.

6Between the 2 and 4 October 2020, you and the victim exchanged a number of text and photo messages.  In these messages you asked if you could go over to the victim’s house for “some fun”, being a reference to sex.

7He agreed, sent you his address via text, and invited you over.

8On 4 October 2020, at approximately 5:00 pm, you arrived at the victim’s home. You had with you a black face mask and were wearing all black clothing and shoes.  The victim greeted you at the gate and invited you inside.

9The victim noted immediately that you were not the person in the photos on Skout, but he was not concerned by this as he believed that you were using fake profile photographs due to fear of rejection.

10You and the victim spoke inside for a brief time before you again asked him if he wanted to have some “fun”, meaning to sexual activity.  The victim declined.

11You then removed a long-barrelled silver handgun from the waistband of your pants and pointed it at the victim’s head.  You said “Shut up. Give me all the money.”  This demand was made with the firearm pointed at the victim’s head.

12The victim told you that he did not have any money. You used the barrel of the gun to strike him across the jaw. This caused pain and swelling.

13He handed you his “piggy bank” containing an unknown amount of cash and  he asked you to leave.  You told the victim to give you a plastic bag. You and the victim walked into the kitchen where he picked up a plastic ‘Coles’ shopping bag and passed it to you. You did not take it, instead you told the victim place the “piggy bank” into the bag.

14As he was doing this you picked up his passport and put it into your pocket. You then demanded his phone. The victim told you he did not know where his phone was.  You asked for it again. You shouted at the victim, pointed the firearm at him, pulled back the hammer on the gun and said “I’m going to shoot you in the leg. Give me the phone and tell me the PIN.”

15The victim handed you his phone. You held the firearm in one hand and the victim’s phone in the other. You made the victim enter his PIN himself.  After he had unlocked his phone, you then demanded the code to his Commonwealth Bank App. At this point the victim fought back against you.

16He grabbed hold of your hand and used his right shoulder to push you in the chest, knocked you off balance, and grabbed hold of the firearm with his other hand.  During the struggle that followed, you were both holding onto the gun and you fell over the bench-press in the lounge room. The bar bell fell off the bench-press and landed on top of you, pinning you briefly to the ground.

17Still holding onto the gun with his left hand, the victim punched you to the face twice which made you let go of the gun.   He got up and tried to run away from you towards the front door of the bungalow.  You caught up grabbed hold of him from behind, putting one hand on the top of his head and the other on the his jaw.

18The victim and you continued to struggle. He grabbed hold of your hair and managed to get free. In the struggle you collided with the interior wall near the door, leaving a small bloodstain.  He again tried to escape the room but could not get outside.  You seized him around waist to try and restrain him but he managed to fight you off. This struggle caused injuries on the victim’s torso in the form of grazes and scratches.

19You and the victim continued to struggle and you both fell through the screen door, knocking it completely out of its track. At this point the victim was in possession of the firearm.  You tried to grab hold of the gun but were unsuccessful. You then grabbed hold of the victim’s t-shirt and pulled it free of his body.

20The victim’s landlord came out of her house and saw you fighting with the victim.   The victim yelled at his landlord “call police, he is robbing me”.   She called back that she had called the police. 

21You then stopped fighting and fled the scene, briefly chased by the victim down the driveway. You did not have any of the victim’s items in his possession, and you left behind your black face-mask, shoes, firearm, and blood droplets in the driveway.

Police Investigation

22Police arrived at the crime scene a short time later.  Amongst other investigative steps, swabs from blood located from the driveway of the address were taken. 

23The results of the DNA provided strong support for you being the  contributor of the DNA in that blood.

24The firearm, which was  left at the scene, was examined and found to be a .22 calibre handgun which was fully functional and capable of being discharged, although not loaded.

Related summary offence

25At the time of these offences you were on bail  and therefore you committed offences against the Bail Act, in particular committing an indictable offence on bail. You had been bailed from the  Melbourne  Magistrates  Court  on  the  9  June  2020  to  appear  at  the  Melbourne Magistrates Court in January 2021.

26On Wednesday the 21 October 2020, police attended your home and arrested you.  When interviewed you answered no comment, as was your right.

Victim Impact Statement

27No victim impact statement has been provided, but in his statement the victim made the following comments:

“17.  As  a  result  of this incident  I  have a  cut  on my left  and  right  pinky fingers,  a bump on  the  right  side  of my forehead,  I  have  a  swollen  left  cheek,  I  have scratches  on the right hand side of my stomach and  a graze on my right knee.

18.  I  am shocked and  panicked,  I  feel  stressed.  It's hard  for me to  spend the night  here.

I  am also  worried  for my landlord.”

Offence Gravity

28It is not possible for me to make a finding as to whether you went to the victim’s home for sex, and when this was refused decided to rob him, or whether you went there solely to commit an armed robbery .  Either way, this was a serious instance of attempted armed robbery.  You were in the victim’s home, you used a real firearm, you threatened him by pointing it at his head, and you were persistent in trying to locate items to steal.  When demanding his code for his bank account, which is not part of the armed robbery but proximate to it, you threatened to shoot the victim in the leg.

29I am mindful that you have pleaded to an attempt armed robbery, not the completed offence.  The maximum penalty is 20 years rather than 25 years, and you are being sentenced for the incomplete offence.  Nevertheless, you took almost every step necessary to complete the armed robbery, and the only reason it has resolved as an attempted armed robbery is because despite having taken possession of various items, at the time when you fled you did not take them with you.

30As to the charge of recklessly causing injury, this is not a low level instance of the offence.  You hit the victim in the face with the handgun.  Fortunately his injuries were not long lasting or significant. 

31Finally, in respect to the charge of being a prohibited person in possession of a firearm, this is not a low level instance of this offence.  The firearm was capable of being discharged, and you had it with you, not stored away from easy access.  You have said that you carried the gun because you were fearful of being attacked, but this does not mitigate this offence.

Personal Circumstances

32You were born in Melbourne in 1996. You are currently 26 years old. You are the second youngest of five children. Your parents came to this country fleeing the instability in Ethiopia. Your two elder siblings were born in Ethiopia and then you and your other two siblings were born here in Australia. 

33You were raised in Footscray and described your home and family as a good environment, with good relationships.  There was no abuse or neglect.  You spent time with your cousins playing games and sports, at which you excelled. You played in representative teams, including travelling overseas to play in tournaments.

34Your parents were employed throughout your childhood, with your father initially having a job with Toyota and when Toyota closed its operations here, working in the nursing field. Your mother owned a retail store and works as an Oromo interpreter.  Your family had stable finances. You say that there was no domestic violence or substance abuse at home, although your older brother could be argumentative with your parents.  You describe your parents as very strict, with the religion of the family, Islam, having a significant impact on your family’s cultural values and family focus. 

35You are closest to your brother who is the next above you in age. He was diagnosed with epilepsy when he was a teenager, which you found very distressing. You felt pressure from your family to excel, given that your brother had lost the opportunity to play sport and take part in other activities.  The letter to the court from your mother explains the severity of this condition for your brother, with the need for regular medical appointments, and for increased care and monitoring when his condition worsens.

36A traumatic series of events happened to you when you were around seven years to nine years of age. Until recently, you have kept this to yourself and not mentioned it to your family at all. You have only recently disclosed this, in the course of counselling under the CISP program.

37You went to Footscray Primary School. Where you easily established literacy skills., but you needed support to help your numeracy skills. You report some bullying where people teased you about your name. You found it hard to connect with a large group of friends.

38You attended Werribee Islamic College for high school and completed year 12 in 2015. Your parents had arranged for you to take extra classes in Islamic studies, on the weekends, and your ability to spend time with friends was restricted by your parents’ rules.

39In Year 11 you moved to live with your sister, which opened up your social activities, and gave you more freedom.  You didn't do as well as you had hoped in VCE because you had been doing things you were not supposed to do. When you were at school at the Islamic College you were able to establish a group of friends. You felt safe and supported with no bullying. You reported some behavioural issues at school, and told Ms Fleming, who prepared a report for the purposes of the plea, that you were sometimes suspended due to fighting.

40After high school, you started a degree in civil engineering at RMIT, but after one semester transferred to a business degree at Victoria University. You did 18 months of that course. After you had been put into custody you did not continue with that course. Since then, you have worked casually in factories as well as for your sister’s childcare business and working for your mother's retail business.  Your assistance to your mother is particularly helpful, as she frequently needs to take time away from that business to care for your brother.  You say that your own plan is to open a barber shop.

41Your connection to your sporting clubs led you to be part of a team liaising with DHHS and Victoria police, during the lockdowns, to assist members of your community who lived in the Flemington and North Melbourne housing towers.  I have received a letter from the president of the Oromo Sports Federation Australia, who has known you since you were children.  He knows you well and has played sports with you, in opposing football teams.  He says that from 2016 to 2019 you helped with running kid’s activities, that you have helped with a soccer tournament, and managing a team.  He gives high praise of you and your work for the community. 

42You have a partner with whom you have been for around a year I have been told that she is “firmly anti-drugs”[1]

[1]Outline of Defence Submissions on Application for a Sentencing Indication dated 10 August 2022, [18]

43Your partner wrote a letter to the court on your behalf where she praised your support for her, and for your family.  She spoke of your grief when your grandmother died, earlier this year, and also about the loss of other family members.

44You report that you required surgery due to an infection in your hand three years ago. More recently you had surgery on your leg, after being shot in the leg. You report that you had ongoing nerve damage from that injury and you required physiotherapy to be able to walk normally. You reported being involved in several fights as a teenager and that multiple times you had been hit on the head.

Drugs and Alcohol

45You first started smoking cannabis when you were 12. You became dependent on this drug from around the age of 18 years and were using significant amounts per day. You commenced experimenting with drugs such as methylamphetamine, cocaine and heroin as well as non-prescribed benzodiazepines from approximately 16 or 18 years of age, with your usage increasing when you were at university. You report that you would use drugs to calm yourself when you felt overwhelmed due to your brother's illness.

46You report that after your first CCO, but say that after you were assaulted in 2019 you turned back to drugs to help you deal with the anxiety and fear you felt as a consequence of this assault.  You report that you found the CISP counselling in respect to drugs useful.  Subsequent traumatic events, such as the death of a close friend in February 2022 from a drug overdose act as a trigger for you to revert to drugs to deal with your grief. 

47You express embarrassment that you are the only member of your family to be in trouble with the law, and that you have hidden your drug use due to stigma and disapproval for that issue in your family and community. 

Mental Health

48You report symptoms consistent with post-traumatic stress disorder, including hypervigilance, paranoia, anxiety, low mood, negative perceptions of yourself, and a sense of unease. I understand that you have previously been accessed mental health services and support with psychologists, counsellors and also through imams.

49Whilst you Were on CISP bail you were assessed by a psychiatrist, who diagnosed you as having an adjustment disorder with depressed mood and post-traumatic stress disorder. He recommended that you commence psychological intervention.

50Ms Fleming considered that you met the criteria for stimulant use disorder, cannabis use disorder, and post-traumatic stress disorder. The two drug related disorders she described as in early remission in a controlled environment. She related the diagnosis of post-traumatic stress disorder to the events when you were seven to nine years old. 

51Ms Fleming considered this traumatic experience pushed you away from the otherwise healthy home environment provided by your parents, compromised your emotional development, and contributed to a pattern of instability, self-isolation, maladjustment and emotional disturbance. She said:[2]

These experiences, coupled with shame at his behaviour going against cultural and religious expectations and grief over his brothers, ill health, continued a negative cycle of ongoing reckless behaviour

[2]Psychological Report of Ms Fleming, forensic psychologist, dated 24 October 2022 [78]

52You were introduced to drugs at an early age and used drugs as a coping strategy to minimise your distress. Ms Fleming considered that your use of drugs during the offending contributed to impairment of your cognitive ability and emotional regulation.

53You told Ms Fleming that leading up to the offending you had been avoiding staying at home, and were spending time at friends’ houses and using drugs. This is confirmed by the submissions made by Mr Malik at the plea hearing.

54You told Ms Fleming that at the time you were feeling paranoid, that is, that people were out to get you and that your relationship with your partner was, “off and on”. You stated that you were fearful that people were out to get you, which is why you were carrying the gun.

Criminal History

55Your criminal history commences in 2018. You have had numerous appearances in Magistrates Court since that time. Many of the charges for which you have been before the Court are drug offences, but you also have prior findings of guilt for possession of prohibited and controlled weapons, and numerous charges of committing indictable offences on bail or other breaches of bail. 

56Your first custodial disposition was in 2020 when you were before the Melbourne Magistrates Court for a charges including attempted robbery. You received a term of 110 days imprisonment on that occasion, which was time served.

57You had been given a 13 month CCO on 21 April 2020, some 6 months before this offending, and thus were still subject to that CCO when you committed the offences for which I will sentence you.

58You were initially remanded in custody on these matters on 21 October 2020, but then bailed after nearly a year on remand.[3]  You were on CISP bail, with counselling for drug abuse issues, and your mental health. Your bail was revoked on 11 July 2022, and you have been on remand since. 

[3]Bailed 12 October 2021, 356 days on remand

Matters Raised on Plea

Sentencing Indication

59A sentence indication hearing was conducted before me on 12 August 2022.  The indication I gave was that I would imposed a sentence of no more than 5 years.  No indication was given by you at that hearing that you had accepted that indication, and I adjourned the matter to the trial date.

60There was a considerable amount of discussion on the plea hearing  about whether you pleaded guilty at the first available opportunity after the sentence indication hearing.  

61Ultimately the sentences I have arrived at do not exceed the 5 years incitation that I gave, and so that issue does not need to be determined by me.

Plea of Guilty

62You were charged on 21 October 2020.  You ran a contested committal in May 2021 on the issue of the DNA results, and the victim was also cross-examined.  You were committed for trial having pleaded not guilty to the charges.  

63Your pleas of guilty were entered fairly late in the proceeding.  Despite this, you are entitled to a real discount of your sentence, due to your pleas.  The pandemic had a significant impact on the court’s operations and this was still manifest at the time of your arraignment.  The court has been saved the time and expense of a jury trial, and the victim of your offending has been spared the trauma of attending court and giving evidence again.

64The mitigation afforded by your pleas is less, due to the timing of them, but I will still give your pleas real weight in determining your sentences.

Remorse

65You wrote a letter to the court in which you apologised for again being before the court.  You say that whilst on remand you have been reflecting on the path that led you to committing offences.  You accept these charges are serious, say that you regret your behaviour, and that you can see how badly this type of behaviour can affect you, and your future.  You also say you regret and apologise for the effects on the victim, and the community.  I accept that you are remorseful for this offending, and take this into account in arriving at your sentences.

Family History & Support

66You speak of the history of your family, who came from a refugee camp in Djibouti, and the difficulty you have faced overcoming social, cultural and economic expectations and barriers.  I accept this.  The trauma that led to your family coming to Australia does not simply disappear on arrival in a new country.  I accept that generational trauma and the difficulties of setting into a new community continue to present real hurdles for you and your family.  Your parents have worked hard and are an important part of their community, and you have that capacity, also. 

67Your mother wrote about the assistance you can give her to support her in caring for your brother, and in her business.  She urged me to be lenient on you, to enable you to return to your family as soon as possible. 

68Mr Harun, who wrote about your contribution to the community through the OSFA, said that he considers that you can be a role model and example for those who are also seeking to change their lives, and to escape the negative spiral of drugs and offending that you have been on.  He considered that you are genuinely remorseful for your past acts, and says that you feel you have let down your friends, community and your family.

69The president of the Australian Oromo Community Association also wrote a letter on your behalf.  He says he was told by your family that your brother’s epilepsy and situation has deteriorated whilst you have been in custody.  Your family has for many years been involved with and contributed to the Australian Oromo Community Association, since being part of the founding of that association more than 30 years ago.

Mental Health

70I accept Ms Fleming’s opinion that imprisonment would probably weigh more heavily on you than a person who did not present with your mental health issues. She also noted that you would be less likely to receive appropriate treatment in custody, and I will mitigate your sentence to a moderate degree for this reason.

Experience of Custody

71I accept that whilst on remand the conditions of custody have been affected by the pandemic.  Lockdowns have been common, as have less severe restrictions on activities and courses.  For much of your time on remand no personal visits were permitted, and phone or other communications were not always optimal.

72I was told that despite the issues attending your remand, due to the pandemic, you have completed a number of courses, and also had one on one drug counselling.

73I accept also that you will be concerned for your brother and mother, in particular, whilst you are in custody, and are regretful that you cannot be there to help your family.

74I have been asked to take into account the approximately  2.5 months you were on remand for the other matters, but before your bail on these matters was revoked. I do take this into account under the heading of totality, although the weight given to it is not significant.

Prospects of Rehabilitation

75Ms Fleming conducted an assessment of your risk of further offending. She considered that you present a moderate risk of further offending.  She noted a number of areas which, if addressed, would or could reduce your risk of future offending. These included.

·        Your substance abuse;

·        The need for better social support and connections;

·        Better friendship group, and

·        Mental health treatment.

76Ms Fleming recommended that you would benefit from intensive psychotherapy, and psychological interventions aimed at developing techniques for you to manage your depressive and trauma symptoms rather than taking drugs to deal with these. She noted that whilst your recent alcohol and drug counselling was of benefit, you have a tendency to relapse when you are in psychological distress and you would benefit from placement in a residential rehabilitation facility.

77I accept that you do have some prospects for rehabilitation.  You have skills, and the desire to help others.  You have your family support, and connections in your community who value you and your contribution. If you address the underlying causes of your drug abuse, and are able to progress in your rehabilitation in respect to drugs, you have real capacity to be a valuable member of the community. 

Other sentencing Principles

78Offending of this type is serious.  You were in possession of a firearm whilst being a  prohibited person.  You used a firearm in committing an armed robbery on a victim in his own home.  General deterrence must carry real weight in the sentencing exercise, as do denunciation and just punishment.

79Furthermore, I consider that your prospects for rehabilitation are moderate at best,  and so deterring you from committing further offences still carries moderate weight in the sentencing discretion.

80The sentences are:

81Charge 1, attempted armed robbery, three years and six months.

82Charge 2, recklessly causing injury, 12 months.

83Charge 3, prohibited person in possession of a firearm, two years.

84On the summary offence the sentence is two months.

85The sentence of three years and six months on Charge 1 is the base.  I direct that six months of the sentence on Charge 2, nine months of the sentence on Charge 3, and one month of the sentence on the summary charge be served cumulatively upon each other, and on the base sentence.

86That gives rise to a total effective sentence of four years and seven months. I set a non-parole period of three years.

87In setting this non-parole period I have considered your counsel's submission that a longer than usual period on parole would benefit your rehabilitation, and thus the community.  A non-parole period is the minimum period that I consider you must serve, taking into account all the relevant factors of sentencing, including the gravity of the offending, but also with more emphasis on your rehabilitation.  The period I have set gives you the opportunity to be on parole for a considerable period of time.

88Pursuant to s6AAA I state that if you had not pleaded guilty I would have imposed a sentence of six years with a non-parole period of four years.

89I will make the ancillary orders which are not contested and I declare pursuant to s18 that you have already served 569 days in custody, not including today, and I direct that that be entered into the records of the court.

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