Director of Public Prosecutions v Abdi
[2024] VCC 1664
•22 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00211; CR-24-00210; CR-24-01733
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ISMAIL ABDI and MOHAMED SALAD |
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JUDGE: | Karapanagiotidis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 October 2024 | |
DATE OF SENTENCE: | 22 October 2024 | |
CASE MAY BE CITED AS: | DPP v Abdi & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1664 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: Intentionally cause injury – possessing a firearm contrary to firearm prohibition order – possession of a drug of dependence – Bugmy – Boulton.
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic).
Cases Cited:Gommers v The Queen [2021] VSCA 258; Bugmy v R [2013] HCA 37; Berichon v R [2013] VSCA 319; Bruce v The Queen [2022] VSCA 100; Boulton [2014] VSCA 342.
Sentence: Total effective sentence for Mohamed Salad: Convicted and sentenced to 404 days’ imprisonment with a 15 month Community Corrections Order.
Total effective sentence for Ismail Abdi: Convicted and sentenced to a period of three years and three months imprisonment, with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Barry | Office of Public Prosecutions |
For Accused Salad For Accused Abdi | Mr D. De Witt Mr J. Anderson | Marco Man Lawyers QM Lawyers |
HER HONOUR:
Ismail Abdi and Mohamed Salad, you have pleaded guilty to one charge of intentionally cause injury. You Mr Salad, on a separate indictment, have also pleaded guilty to charges of possessing a firearm contrary to a firearm prohibition order and possession of a drug of dependence.
Circumstances of the offending
The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.
On the evening of 17 August 2023 the victim in this matter, David Nairn a 76 year old retired research engineer was at his home on Middle Park.
Not long after 7:00PM you Mr Abdi and Mr Salad left an address at Park St, South Melbourne with two other people. You were in a Hyundai [‘the vehicle’]. You Mr Abdi were wearing a Nike creamy yellow tracksuit bottom and hoody. By 7:14PM you were in Canterbury Rd, Middle Park heading south in the vehicle.
At 7:18PM the vehicle was seen on CCTV heading north on Canterbury Rd. Between 7:19PM and 7:37PM the vehicle was variously captured on CCTV, travelling north and south on Canterbury heading towards Mr Nairn’s home on five occasions, turning into streets near and behind his home, parking near or opposite Mr Nairn’s home on Canterbury Rd for periods of about 90 seconds.
At 7:37PM you both alighted from the vehicle in Canterbury Place directly behind Mr Nairn’s home. The vehicle then proceeded to Canterbury Rd where it turned right and headed south. At 7:39PM the vehicle parked behind a black Mercedes on the eastern side of the road about 4 houses up from, and on the opposite side of the road to, Mr Nairn’s home. Canterbury Rd at this point is divided by a median strip.
At approximately 7:40PM CCTV captured you Mr Abdi and you Mr Salad walking in a northerly direction along Canterbury Rd towards Mr Nairn’s home.
At this time Mr Nairn was sitting at his dining table which was situated towards the rear of his home. Also at home at the time with Mr Nairn was his wife and step daughter.
Sometime between 7:40PM and 7:44PM you entered his property through the front gate, which was part of a brick fence, and rang the doorbell which was about 5 meters from the gate. Swabs taken of the gate and doorbell found trace elements comprising DNA consistent with you, with Mr Salad’s on the door bell and both on the gate.
Mr Nairn, on hearing the bell, got up from the table and walked to the front door which took about 20 seconds. He opened the door but found no one there. He walked from his doorstep to the gate, checked the letter box to see if anything had been delivered and moved through the gate and took about half a step on to the footpath. At this stage he noticed movement on the opposite side of the road about 25 meters away.
At 7:44PM CCTV captures you Mr Abdi walking on the opposite side of the road [the southbound eastern side] towards the vehicle which remained parked behind the black Mercedes van.
At 7:45PM, CCTV captured you both on the south bound side of Canterbury Road walking towards the vehicle which remained parked behind the black Mercedes van. Mr Salad walks to the front passenger side of the vehicle and appears to bend over conversing with the vehicle occupants. Mr Salad enters the rear passenger side of the vehicle and Mr Abdi enters the rear driver side of the vehicle.
At 7:45PM CCTV captures you Mr Abdi exiting the vehicle and running towards Mr Nairn’s home. CCTV shows Mr Salad walking towards the black Mercedes van.
Mr Nairn first saw you Mr Abdi on Canterbury Road near a car and running directly towards him. When you approached within five metres of him he noticed a cylindrical object in your right hand pointed towards the ground.
As you Mr Abdi approached within a metre of Mr Nairn, you were heard to say something with an intonation of intent in a single sentence phrase.
At this stage, with Mr Nairn standing near his gate, you Mr Abdi pointed the object in your right hand towards his left thigh. Mr Nairn heard an extremely loud bang and fell to the ground with his left leg collapsing under him. You then moved away from him.
At approximately 7:46PM, CCTV shows you Mr Abdi returning to and entering the rear driver side of the vehicle, which immediately conducted a U-turn over the medium strip of Canterbury Road and drove off in a northerly direction.
By 8:16PM you had returned to the Park Street, South Melbourne address.
After being shot Mr Nairn dragged himself towards the front door. He was assisted by his wife and stepdaughter.
At 7:47PM a call was made to 000. Police and ambulance arrived soon afterwards.
Mr Nairn was transported to the Alfred Hospital.
Neither Mr Nairn, nor his wife and stepdaughter, knew or had any association with either of you.
The matter resolved on the basis that there was an understanding between the two of you to go to the scene of the offending and confront and threaten a person although the actual victim was not the intended one. Both of you went to the house and the doorbell was rung. You then retreated. The case against you Mr Salad is that you were aware that it was probable that there would be an escalation into violence but the prosecution accept that it cannot proven that you knew about the gun.
No projectile was found at the scene.
Investigators subsequently conducted enquiries, ultimately leading to your arrest Mr Abdi on 6 September 2023 and yours Mr Salad on 14 September 2023.
You Mr Salad were, at the time, subject to a Firearm Prohibition Order made on 4 January 2023 for a period of 10 years.
Located on a chair in the living room of your home was a Gucci satchel bag containing one silver revolver handgun with a wooden handle and three .32 calibre ammunition rounds.
The revolver was a .32 calibre Smith and Wesson with barrel length of 50 mm. It had a selective double action trigger mechanism. The trigger action of the revolver was erratic and unreliable as was the timing of the cylinder and hammer. The revolver would not cock on single action mode and the mechanism would, more often or not, fail to cycle the hammer and cylinder when the trigger was pulled. The alignment of the cylinder and hammer was poor resulting in the firing pin being unable to strike the primer of the cartridge correctly being an essential requirement of discharge. The revolver was unable to be fired by pulling the trigger but it was “within probability that it might fire if this was repeated often enough”.
The type of ammunition found was able to be used in the revolver.
Located on the coffee table of the living room:
(a) One zip lock bag containing crystal substance [small amount of methamphetamine]; and
(b) One shopping bag containing crystal substance [small amount of meth].
As a result of the incident, Mr Nairn was admitted to the Alfred hospital where he remained until 22 August 2023. His injury was a gunshot injury with entry on the front of the thigh and exit wound at the back of the knee.
He did not require a blood transfusion. There was no bone or significant blood vessel injury.
He received damage to his common peroneal nerve. This affected sensation and muscle innervation of the leg.
On 20 August 2023 Mr Nairn underwent a debridement procedure [removal of damaged and dead tissue] a well as the repair of the outer area of the damaged nerve-end under general anaesthetic.
The injury caused a ‘foot drop’ [inability to lift or flex the foot upwards at the ankle joint whilst the heel is resting on the ground] which required him to wear a foot orthotic for a period of time. He also required pain relief medication and antibiotics.
Victim impact
Mr David Nairn, his wife Dr Catherine Urie and their daughter, Claire Barnier, have all provided victim impact statement’s in which they eloquently articulate how your offending has impacted them. Mr Nairn describes how active he was before the shooting and then how ‘everything changed.’ He explains the impact of the physical injuries and the constant pain and medication regime required. The loss of his active and independent life – which was so very important to him – and the potential for permanent injury was particularly distressing. He takes the opportunity to pay tribute to those who have helped care for him and outlines the immense work and resilience required to rehabilitate. He states, ‘the permanent disability is likely to be small. But the imposition on me, my family, my healthcare team and society has been significant.’ He describes how your offending has also had a huge emotional impact on him and his family and how it has undermined their sense of security and safety. He refers to the lost opportunities, plans and abilities caused by your offending. Illustrative of his measured and generous disposition he states ‘Mr Abdi and Mr Salad deserve punishment for a cowardly, callous and stupid act, but I have little anger toward them. I hope they find the strength to turn their lives around.’
His wife Dr Urie refers to the initial shock and trauma of what occurred. She was consumed by worry, stress and concern for her husband and their future. She herself became hypervigilant, overwhelmed by the situation and exhausted, which in turn affected her physical health and many aspects of her life, including her work and her family’s financial security.
Ms Barnier explains that she had a pre-existing back injury and surgery in December of 2022, requiring a long recovery period. At the time of the shooting, she describes her shock and distress, and how she made the decision to help her stepfather back into the house, even though conscious that this could cause irreparable damage to her spine. She describes how now on some days she can barely move because of the pain in her back. She feels that she has let ‘everyone down.’ This is no doubt an honest reflection but most unwarranted, as it is clear to this court that she acted selflessly this day, showing considerable compassion and care, to her own detriment. She provides details as to her health complications and the two further surgical procedures needed since the shooting. She also refers to how her independence, sense of security, and her family unit have been affected.
I take the impact of your offending into account.
Gravity of offending
As the Court of Appeal stated in Gommers v The Queen[1] the seriousness of an offence of ICI is to be gauged by the injuries caused, and the manner of their infliction’ (at [44]). The offending is plainly serious, involving as it does the discharge of a firearm at close range, shooting and injuring a completely innocent man outside of his home in a suburban street. This is a serious example of the charge, involving as it does gratuitous and unprovoked violence.
[1] [2021] VSCA 258.
A gun was used and there was a degree of planning, though the extent of this was in dispute. From all the circumstances, I infer that planning commenced from approximately 7:18PM when the vehicle headed towards Mr Nairn’s home on five occasions, travelling in the relevant vicinity. The footage provided by agreement includes a much earlier period of time that you were in the company of each other, however I am unable to make any confident findings as to your intentions at that time. In my assessment I also take into account that the offence was committed in company, the nature of the injury caused, as outlined in the opening, and the significant and ongoing impact of your offending.
Your Counsel Mr Abdi submits that your offending is explained by a combination of your diagnosed PTSD, substance use and the experience of being stabbed in 2021. To this end, a discharge summary from the Alfred Hospital dated 14 December 2021 was relied upon, which confirms you presented with a single stab wound. You instruct you were stabbed when you were the victim of an armed robbery and were too fearful to report the matter. Instead, connected to this offending, sometime after you received incorrect information that the person who stabbed you resided at Mr Nairn’s address and you had intended to confront this person and mistook Mr Nairn for him. Even accepting all of these matters, while they may provide a context, they do not serve to mitigate your offending or moral culpability. Your Counsel readily accepts on your behalf that there was no good reason for why Mr Nairn was targeted or for your senseless criminal behaviour.
Mr Salad, you report that at the time of your offending your thinking patterns were significantly impacted by your daily use of ice and cocaine and less frequent use of prescription pills and alcohol.
Mr Salad you acted in complicity with Mr Abdi and you are equally liable for the injuries sustained by Mr Nairn. However, I accept your Counsel’s submission that your actual role and knowledge prior to the offending are relevant and are very different to Mr Abdi’s. You were not in possession of the firearm nor did you use it. Importantly, your plea was accepted on the basis that you were aware that it was probable that there would be an escalation into violence but the prosecution cannot prove that you knew about the gun.
These factors are relevant to an assessment of your offending and moderate your moral culpability. Your Counsel also submits that at the time of the actual offending you were some distance away and beyond your presence you did not offer any other express encouragement. During the plea hearing it was agreed between Counsel that relevant footage would be provided and I was invited to watch it, which I have done. The footage does appear to corroborate your positions at the time of the relevant offending, as outlined in the prosecution opening. As to what is shown in the footage in the lifts after you’ve returned to the towers, I note Counsel’s submissions but am unable to reasonably draw any inference in respect of this.
Turning to your further offending, firearm offences are, by their nature, inherently serious. The circumstances of your offending are serious given you were prohibited from possessing firearms’ under the Firearm Prohibition Order (‘FPO’) made on 4 January 2023 for a period of 10 years. As the Higher Courts have stated, the purpose of the scheme is to ‘promote community safety by ensuring that weapons do not fall into the wrong hands’[2]. While you have a prior conviction for breaching the order by possession ammunition on 11 March 2023 I note that you have no previous convictions for possession or use of firearms. Also, it is not alleged by the prosecution that the firearm was connected to the earlier offence or that it was used in the course of some ongoing criminal activity or specific criminal purpose[3]. I also take into account that while capable of being fired, it was unable to be fired by simply pulling the trigger.
[2] Bruce v The Queen [2022] VSCA 100.
[3] Berichon v R [2013] VSCA 319.
In terms of the drugs in your possession, it is agreed between the parties that they were a small quantity.
Plea of guilty
In all the circumstances, in respect of both of you, I accept that your plea of guilty is an early one. Your cases progressed through case assessment hearings and conferences where ultimately resolution to a less serious charge was achieved. You had both previously offered to enter pleas of guilty to a charge of ICI. While a committal hearing did proceed, I note that the cross examination of Mr Nairn was confined and that his integrity and honesty were never impugned. I accept that your pleas of guilty indicate a willingness to facilitate the course of justice and an acceptance of responsibility. In your case Mr Salad I consider that there were triable issues relating to complicity and your intention at the time. Your pleas also have important utilitarian benefit, saving the cost of a trial and the additional trauma to Mr Nairn and his family of having to give evidence before a jury. I also accept Mr Abdi that you have expressed remorse for your offending during your assessment with psychologist Gina Cidoni, reflecting that your victim could have died, stating further ‘I wish nothing but the best for him, and I’m very sorry’ (see at [15]-[16]). Mr Salad, in your recent assessment with corrections you explained that you felt significantly moved by hearing the VIS read out in court. You expressed considerable sympathy for the victim and his family, and stated ‘I really really regret (my offending behaviour).’
Personal Circumstances
Ismail Abdi
Your circumstances were canvassed by your Counsel and are also outlined in the report of Ms Cidoni of 11 October 2024.
You are 25 years of age born in February 1999 and you were 24 at the time of the offending. You were born in Sydney and you are the third of five children. Your parents came to the country as refugees from Somalia.
Your father was tertiary educated in physics and biology, but since arriving in Australia has worked in low skilled jobs and is currently working as an uber driver. Your mother has at various times stayed at home to care for the family or been employed as a childcare worker.
You were initially raised in public housing. Your parents managed to secure the rental of a family home in Tarneit in 2010, motivated by a desire to remove their children from the negative influences of their living environment. Melbourne was chosen because it was more affordable than Sydney.
You attended Tarneit Secondary School and completed year 12. You felt bullied and racially vilified at school and you did not fit in as easily as you did in Sydney.
Your parents and siblings continue to reside in the family home. Your parents are Muslim, are hard-working and law-abiding. Drugs and alcohol are not tolerated in the home.
You enrolled in a business diploma course at RMIT upon leaving school. Your engagement was poor and you dropped out in the first year. Unknown and undiagnosed at the time, you were suffering from PTSD. You were first diagnosed with this condition while in youth justice detention. The genesis of the PTSD was your exposure to extreme violence in Somalia on a family trip there when you were a child. When you were approximately 8 years of age you and your family spent 12 months in Somalia during a time of civil unrest. You described to Ms Cidoni seeing and experiencing constant violence and fear (see [25]).
After school, you started to use alcohol and other drugs, developing a substance use disorder. You quickly dropped out of your RMIT course. You were too ashamed to consume drugs or alcohol in the presence of his family and would increasingly spend periods of time away from home with friends living in the public housing towers in South Melbourne. Understandably your parents expressed frustration at your return to the type of environment they had worked so hard to remove and protect you from.
You have a short but relevant criminal history. In 2019 you were sentenced to a term of detention in a Youth Justice Centre for offending committed in 2018. A copy of reasons for sentence was provided to the Court. You were aged between 19-20 at the time of the offending and on both charges the weapon was a knife. At the time of the offending you were under the influence of Xanax and either methylamphetamine or alcohol or cannabis.
You remain supported by your family but you continue to feel shame for your conduct. Your mother in her letter provides further important insights into your family background and circumstances. You have one older brother who has also had a number of interactions with the criminal justice system. Your other three siblings have successfully graduated school and moved onto careers or tertiary studies.
Your Counsel relies on the report of Ms Cidoni and her diagnosis of PTSD. At paragraph [65] of her report, Ms Cidoni states:
His PTSD, which originated from witnessing severe violence as a child in Somalia and was later compounded by traumatic experiences such as being stabbed, significantly worsened his paranoia and fear. These experiences left him hypervigilant and constantly on edge, believing there were potential threats around him, leading to his involvement in a situation where a firearm was used. The combination of his drug induced impairment, trauma-related hypervigilance, and emotional distress contributed to his impulsive and reckless behaviour at the time of the offending. His participation in a street subculture, where he felt particularly vulnerable and unsafe, further fuelled his need to arm himself, exacerbating his irrational decision-making.
Ms Cidoni also opines that your history of trauma, compounded by your youth and susceptibility to being easily influenced, makes the prison experience even more difficult (at [69]).
Mohamed Salad
Turning to you Mr Salad, your personal circumstances were outlined by your Counsel. You are now 27 years of age and were 26 years of age at the time of offending. Prior to your birth your parents fled the war in Somalia. You were born in a refugee camp in Kenya. You were raised by your mother and extended family while your father travelled to Australia to try to secure your families pathway to migrate here.
Your earliest memories are of the chaotic, impoverished and often dangerous living conditions in the refugee camp. You recall living with your siblings, two uncles and their children in a small and overcrowded hut built out of straw and waterproof tarps. There was no security, stability or safety at the time and your family was extremely poor. Your early childhood years were marked by your exposure to violence between other residence at the camp, extreme poverty and desperation.
When you were 5 years of age your family were finally granted refugee visas permitting you to migrate to Australia. You are now a citizen. You reunited with your father and were provided housing commission accommodation in Flemington.
You grew up in Truganina and report coming from a loving and supportive family. You recall feeling initially overwhelmed by the differences between Australian culture and the refugee camp in Kenya. You spoke limited English (your first language was Swahili) along with most of your family. You all relied heavily on your father to navigate the community.
I accept your Counsel’s submission that your childhood was characterised by ongoing exposure to disadvantage, violence, substance misuse and poverty and that the cumulative effect of these experiences engage the principles in Bugmy v The Queen[4] in the general way.
[4] Bugmy v R [2013] HCA 37; (2013) 249 CLR 571.
Notwithstanding early hardship, you attended school and learnt English, gaining fluency by Grade 4. You completed year 12 at Tarneit Secondary College. You enjoyed schooling, which primarily took place in Flemington where you felt part of a multicultural community.
During high school, your parents made the decision to relocate the family from the Flemington high-rise to a private rental in a new area. While they were concerned about the financial consequences of moving out of government housing, similar to Mr Abdi’s parents, they also were becoming increasingly concerned about the violence and substance misuse in the area.
After completing schooling, you went on to undertake study in civil construction. You completed the requisite units and was in the process of obtaining your white card when your younger brother (then aged 16 years-old) died in a car accident (along with your cousin) in 2021. You recall your entire family being completely devastated by their untimely deaths. Your Counsel explained that this manifested in considerable conflict between your parents and the broader family which profoundly impacted you and your younger siblings. You dropped out of study, tried to set your grief aside and took charge of trying to coordinate the organisation of your brother’s funeral and vigil. At the end of all of this, you left the family home and ceased all contact with your extended family, also distancing yourself from your immediate family. Your brother provided a reference where he refers to the difficulties over the past 3 years since the passing of your younger brother and the grief that has impacted you all. He states that before his death you seemed to be on the right track and engaging more meaningfully with your religious community.
Between 2022 and when you were remanded, what had started as occasional drug and alcohol use developed into sustained, serious substance abuse.
During this period, your contact with pro-social friends (who were mostly in full-time employment) also ceased and you started spending time with new peers who shared your dependence on drugs. Your involvement in the criminal justice system coincides with your increased use of drugs and desperation to fund your daily addiction, whilst homeless and unemployed. During this period you completely isolated himself from your mother to avoid experiencing the shame associated with his drug use.
You have a relevant prior criminal history, commencing in 2018, for a range of matters including drug and dishonesty offending and possessing controlled weapons.
In both of your cases, I also take into account your relative youth, though you are not young offenders for sentencing purposes, along with your substantial period on remand and the uncertainty as to outcome that has weighed from the delay in this matter finalising.
Parity
The parity principle requires that there be consistency in the sentences imposed upon co-offenders unless there are such differences in their roles in the offending or their personal circumstances that warrant disparity in their sentences.
Your circumstances are broadly similar and you are of a similar age. Mr Salad your criminal history, on the face of it, is more extensive than Mr Abdi’s and you also face additional charges. However, Mr Abdi you have been sentenced to a substantial term of detention in the past for serious offending.
I consider that the disparity between you is justified by reason of, as already canvassed, the different roles playing in the offending by each of you. Mr Abdi, you were the main offender and the prosecution accept, in your case Mr Salad, that it cannot be proved that you knew about the gun.
Prospects of rehabilitation
Mr Abdi there is a need for some caution in assessing your rehabilitative prospects given your criminal history, your self-reported motivation for this offending and your assessment as a medium risk of violent reoffending. To progress your rehabilitation you need to engage in appropriate treatment to address your trauma and drug use and to make substantial changes to your life. As the presiding judge stated in you sentence on 2 August 2019 ‘it is important that you understand that without addressing these issues you will find yourself reverting back to negative peers and re-offending’ (at [38]).
You have been in custody since your arrest on 6 September 2023. You are ashamed of your actions. You decline to have your family visit you in custody but speak to them regularly, in particular your mother. You currently work as a billet and have undertaken some therapeutic courses.
You retain the full support of your family and intend to return to the family home in Tarneit where you remain welcome. You are motivated to obtain employment in the construction industry and to remain abstinent. Your Counsel submits that you want to use this sentence as an opportunity to reset your life, be substance free, reengage with your family and obtain employment and treatment. You are still a relatively young man and while you present with some unchangeable risk factors, the dynamic risk factors, including your substance use, current peer associations, mental illness and ability to manage emotional stress, are amendable to change (at [67]). Ms Cidoni opines that you have strong prospects of rehabilitation with the right supports in place, developing insight and motivation (see [67] to [68]).
Your mother in her letter reflects on your offending – ‘I am sad that my son has caused harm to Mr Nairn and to his family. Being shot in front of your home is a terrible experience. An experience that my husband and I fled a country to avoid for our family. I hope Mr Nairn can forgive my son.’ She states, and I have no doubt, that she has tried to teach you well but she makes the point that you are an adult. Mr Abdi, it is up to you now to make these changes.
Mr Salad in my assessment of your rehabilitative prospects I also take into account your prior criminal history, which includes breaching Court orders. I note that this time on remand represents your first substantial period in a custodial environment. Your Counsel submits that you have found it a difficult and sobering one. This period has been made more difficult as your classification changed to maximum security and for over the past 12 months you have been housed in close proximity to a more violent subset of prisoners and remandees. Notwithstanding, you have tried to use your time in custody productively. You have secured employment (previously in the kitchen but now your applying for new employment) and you have undertaken various educational courses including completing your white card. Tendered in evidence was also a Certificate II in Cookery from the Kangan Institute. You remain on the waitlist for drug and alcohol courses and treatments. You have recently commenced pharmacotherapy on the buprenorphine program with a view of maintaining this once released (monthly injections).
Most importantly you have re-engaged with your family and maintain daily contact with your mother and siblings. On your release in the short term you intend to return home and reside with your family in Truganina, where you are welcomed. Your brother confirms the availability of accommodation and support in his letter. This will mark your return since the death of your brother. Ultimately you plan to relocate and reside with your father in Perth. You understand that he has taken some preparatory steps to assist you in securing future work in the mines. If required to remain in Victoria, you will secure employment in construction, having now obtained your white card while on remand. You plan to spend your time working and focused on your family.
Sentencing purposes
The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. Given the nature of this offending, general deterrence looms large and the community expects that such offending will be denounced.
In your case Mr Abdi there was no dispute that a term of imprisonment structured with a NPP is the only just and appropriate sentence. On your behalf Mr Salad your Counsel submitted that, in all the circumstances, a sentence of imprisonment not exceeding the period already served is an appropriate one. The prosecution submit that this is significant offending and in both your cases a term of imprisonment, with a non-parole period is called for.
I have taken into account the sentencing guidelines referred to in s.5 of the Sentencing Act where relevant to your case. I have also taken into account the maximum penalties. I have had regard to the sentencing landscape for charges of this nature, particularly cases of ICI where firearms are used and the cases referred to by the prosecution[5] (ADD). Of course, no two cases are the same but these cases have offered some guidance. I also take into account the principles of parsimony, proportionality and in your case Mr Salad, totality.
[5] Gommers v R [2021] VSCA 258; Zaatiti [2019] VCC 497; Luu [2021] VCC 1144; El Hamza [2018] VCC 939.
You Mr Salad were assessed for a community corrections order (‘CCO’) and you were assessed as suitable. Your previous non-compliance with orders is noted and you report that you are now motivated to stay abstinent and to live a pro-social lifestyle. Corrections recommend conditions including supervision, judicial monitoring, drug and alcohol treatment and treatment for mental health and programs.
In your case Mr Salad I am not satisfied that a sentence comprised effectively of ‘time served’ is appropriate. I do consider that a combination sentence is capable of addressing the punitive and deterrent purposes of sentencing and will best promote your rehabilitation, which in turn will better protect the community. As the court of Appeal stated in Boulton’s case[6], even in cases of relatively serious offending, the sentencing court may find that a term of imprisonment coupled with a properly conditioned CCO is capble of satisfying the requirements of proportionality, parsimony and just punishment while affording the best prospects of rehabilitation. Such an order is also intrinsically punitive.
[6] Boulton [2014] VSCA 342.
Sentence
Mr Abdi, if you could stand, please.
Mr Abdi, on the charge of intentionally cause injury, you are convicted and sentenced to a period of three years and three months’ imprisonment. I set a non-parole period of two years.
I declare that you have served, pursuant to s18, 412 days of pre-sentence detention. I declare pursuant to s6AAA that had you not entered a plea of guilty, I would have sentenced you to some four years and 11 months’ imprisonment, with a non-parole period of three years and three months’.
Can you take a seat please.
Mr Salad, if you could stand, please.
In your case, on the charge of intentionally cause injury I convict and sentence you to 404 day’s imprisonment with a 15 month community corrections order.
In respect of the separate indictment, on the charge of possess a firearm contrary to a Firearm Prohibition Order you are convicted and sentenced to eight months’ imprisonment, and I order that one month of that sentence be cumulated on the sentence imposed in respect of the intentionally cause injury charge.
In relation to the possession of a drug of dependence, you are convicted and discharged.
In your case, pursuant to s18 I declare that you have served 404 days. You have a month remaining to serve before you will be released on a community corrections order.
Pursuant to s6AAA I indicate that had you not entered a plea of guilty I would have sentenced you to some three years and eight months’ imprisonment with a non-parole period of two years and four months.
In relation to this corrections order there are core conditions, once you are released, that apply to all orders. You will be required, and it will include that you must abide by the directions of Corrections; you must inform them within two days of changing your work or address, that you have done so; you cannot leave the State without their permission; and you must receive visits.
In addition to those core conditions, further I order that for that period of time you be subject to supervision, and that you undergo treatment and rehabilitation for drugs, alcohol, mental health and programs to reduce reoffending. I am also going to require you to attend before me for judicial monitoring. I will set a date for that, and you can take a seat now.
I make the disposal order and the forfeiture orders in the terms sought, unopposed.
I am going to set a judicial monitoring date for 24 February at 2 o'clock. That will be the initial date. If you could stand, please, Mr Salad.
In terms of the corrections order, once you are released on it, the next time I require you to appear before me is 24 February 2025 at 2 o'clock. What will occur then is Corrections will be present, you will have obviously attended upon them and they will provide me an update as to your progress. Do you understand?
OFFENDER SALAD: Yeah.
HER HONOUR: All right, thank you. You can take a seat.
Counsel, can I thank you for your assistance in this matter.
Can I also take the opportunity to thank also Mr Nairn again, his wife and their daughter for their contributions, thank you.
We will adjourn.
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