Director of Public Prosecutions v Abdi
[2022] VCC 68
•17 January 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01475
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDULLAH ABDI |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 January 2022 |
DATE OF SENTENCE: | 17 January 2022 |
CASE MAY BE CITED AS: | DPP v Abdi |
MEDIUM NEUTRAL CITATION: | [2022] VCC 68 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
For the Accused | Mr C. Nikakis | Haines & Polites |
HIS HONOUR:
1Mr Abdi, you have pleaded guilty to one charge of robbery, two summary charges of resisting police officers in the execution of their duties, one summary charge of stating a false name, one summary charge of committing an indictable offence whilst on bail, and a further summary charge of assault with a weapon. The maximum penalties are set out in the prosecution opening which was read in open court on the plea, and I incorporate by reference.
2The background to the matter was also set out in the prosecution opening, and involved you in a scheme to rob a vendor of a iPhone by pretending to be interested in buying it, and then seeing the phone and then when the phone is shown to you, you then, instead of paying for it, pulled a knife and ran off with the phone. That constitutes the offence of robbery, and then the pulling of the knife on the complainant, constitutes the offence of assault with a weapon.
3You ran away. When the police apprehended you, you resisted their attempts to arrest you, and that constitutes the two charges of resisting a police officer. At the time, you were on bail for an earlier offence. That is the summary offence of committing an indictable offence on bail, and when the police arrested you, you proceeded to give them a false name which constitutes the summary offence of stating a false name.
4The explanation for the offending was unsatisfactory on the basis of what Mr Nikakis has put to the court. It was put by Mr Nikakis that this was a spur of the moment event. I am unable to accept that, in that you did travel from one side of Melbourne, namely Braybrook, to Elwood, to meet the proposed vendor of the phone who you had got in touch with, as a result of a Gumtree offer. The actual owner of the phone was not there, and another person, his housemate, was the one that dealt with you.
5You were carrying a knife which itself you should not have been doing, and so I do not accept that it was not premeditated.
6So assessing the seriousness of the offence, the victim himself has put in a victim impact statement indicating that he was not the owner of the phone. He was the housemate indicating that he was shocked and upset as a result of your offending. No doubt he was. He was just doing it for assistance for his mate.
7He says it had an emotional impact on him and he had to take a day off work and it upset his concentration and his sleep for two or three days, and then anger set in and it affected his partner and he says that his victim impact statement that he recorded in November of last year:
'I still feel angry towards the offender and suffer fear of potential retaliation. Not only has it had emotional and social impact on my life, but also financially, given the value of the phone.'
8He lost a day off work, the phone dropped in value and he has changed his behaviour, becoming more vigilant and reluctant to sell items on Facebook and Gumtree and he has moved overseas now.
9So I have got to take into account the impact of the victim in your offending, and that indicates that this was a significant example of robbery, a separate offence of assault with a weapon adds to the gravity of the overall offending, followed by the resisting the police when they tried to arrest you. The phone is recovered, but you resisted, then gave a false name, and at the time you were on bail for some other offending, so again, that goes to increase your culpability for the offending, and further, another initial aggravating factor, was that about a month prior to that, you had been before me on a plea of armed robbery and I had put you on a community corrections order and so you really only just got on to that order, when you started to commit this offending.
10So literally, on 22 January 2021, last year, which is almost a year to the day, and so a month later, you commit this offending. So as indicated in the course of the plea, you gave evidence on that occasion, and you promised me that you would not reoffend. Unfortunately you did.
11As Mr Nikakis indicated in his submissions, it is not the first time that offenders have said to judges that they will try and stick on the high road and they fall off, and you are an example of that.
12So it was serious offending, compounded by those aggravating factors, the fact you were on a community corrections order, the fact that you were on bail at the time, so all in all, some serious offending.
13Turning to the mitigating matters. Your personal circumstances are set out in the sentencing reasons which I gave on the previous occasion, which indicates that you come from a terrible background. You are from a Somalian family born in a notorious refugee camp there in Kenya, came to Australia very young, one of a large family. Your father and mother are back in Somalia, stuck there at the moment because of the COVID flight ban on international travel. You have a couple of older sisters here in Melbourne and you were in the family home when you were sentenced by me in January of last year. You were still in that home but then after I gave you my sentencing reasons, four weeks later you go and commit this offence.
14So, as Mr Pickering indicates in his submission, community protection has got to have some significance in this matter because I dealt with you, put you on a community corrections order, and as the report indicates you did not really engage with the community corrections order, and I am dealing with you for breach of that community corrections order as well.
15I give you some slack in terms of that it was in the COVID environment, but they required you to ring them and be the subject of telephone supervision, and you made a couple of contacts but then did not really take any further action, and because of the delays in COVID, it really had not got off the ground.
16So your offending, as I indicated in the course of discussions on the plea, is the consequence, in a sense, of the COVID-19 environment where the criminal justice system, particularly the the community corrections aspect, has been impaired in its' ability to grab offenders and keep them on the straight and narrow because of a lack of personal contact, with the delay in courses being available, and so you were not able to get and engage with the community corrections people last time and you are now before me for this further offending.
17As I indicated in those sentencing remarks, I took the view at that stage that you were worth another opportunity and you had indicated you were not going to let me down, you had been involved in a community organisation in the period that you had been on bail after you had done your 322 days on remand after the original index offending which is back in 2018.
18So you have been wrapped up in the criminal justice system for about the last four years and you have got a couple of other prior convictions, and you are about to turn 25, and not only that, you are married. I do not know of the state of the relationship, you told me last year you have a three year old child, where the child, I think, is with the mother, or maybe she was with your sisters I am not sure, but you have a reason in life to want to stick with the straight and narrow and be a law-abiding citizen. You told me you had been involved with a community organisation and they need people who put back into the community and help younger people than yourself.
19You are now 25 almost, so you are much more mature than a 16 or a 14 year old person of Somalian extraction, and you should be a role model to them, not a role model of a person who commits crime, and you have got three prior offences now that involve knife crime which is a terrible scourge on the community. You know that is just not good enough, and so carrying around a knife which you were on this occasion, then of course you did not want to pay for the phone, so you pulled a knife and ran away with it, which is exactly the same thing that I dealt with you for a year previously involving a cannabis transaction.
20So it is time for you to put aside personal weapons and try to get into some work. You had been working in your apprenticeship, you have done a bit of work in a plumbing apprenticeship. If you can finish plumbing it is a licence to print money. The government is pouring money into training courses for young people, able-bodied males in particular. You should go along to the Sunshine TAFE or VU University out there in Sunshine and say, 'I want to get into an apprenticeship' when you are released from custody, or a pre-apprenticeship and do a pre-course. You have already got a few courses you have done out there, the TAFE courses and add to them, and get yourself – it might take you a year or so - and then you get yourself into a trade, and the building industry is screaming out for people who are prepared to put in and work, shovelling concrete or whatever.
21And look, employers are all complaining. You can go up into the fields, learn how to drive a tractor and work on a harvester or pick grapes up in Mildura, or pick fruit up in Shepparton. They are screaming out for people to do it. Pays good money. Do you know how to swim?
22OFFENDER: Yeah.
23HIS HONOUR: Right. Go and learn how to be a lifeguard. They cannot get enough lifeguards, and people who just stand beside a pool and they learn to swim so the kids – there was literally at Christmas there was a dozen municipal pools that could not open because they could not get lifeguards, so that is another job and it pays about $25 an hour. That is the sort of thing you have got to get into as an able-bodied male. Now you have got prior convictions so you will have to try and work that through, but there are plenty of jobs out there, and it is productive work rather than committing these robbery-type crimes which you have now done on about three or four occasions. So it is time to wake-up.
24As I said to Mr Pickering and Mr Nikakis in the course of discussion on this plea, the period you have been in custody now for 328 days, nearly a year, 11 months, with the programs limited, your family cannot visit because they are not here, so limited programs, limited visits, lock downs or even if there is no lockdowns, restricted moving that makes a period of imprisonment much more onerous than what it would be in normal times, so that is to be taken into account.
25The plea of guilty in the course of COVID has got to be given extra weight. Worboyes, the authority in the Court of Appeal middle of last year, says that judges have got to give a perceptible amelioration of sentence for people who plead guilty in the COVID environment, so I have got to do all that.
26Mr Nikakis put to me that really the crucial issue here is totality given that the two periods of imprisonment that you have had, albeit that they were broken by a period of, I think, it was nearly two years that you were out on bail. But as Mr Pickering says, you fell off the wagon a month after I gave you that sentence last time.
27The purposes of a sentence are punishment, deterrence, specific and general; denunciation and protection of the community and rehabilitation, and they are all in tension with each other.
28You are still a relatively young man and that is a very important consideration as I said in my earlier sentencing remarks last year. You now are 24, you were 23 then, you are turning 25 next month. So you are still a relatively young man and males, they mature later than females, and so that is why courts give males a bit more leniency in a sense, until they do mature, but you are running out of time because of your criminal record.
29As Mr Pickering said, protection of the community is a factor here because I sentenced you and then a month later you are committing a similar offence.
30I have got to re-sentence you on the original offending, the armed robbery and then sentence you on this offending as well. The way to do it is to impose appropriate sentences for each of the different offences and then order appropriate cumulation to take into account totality, then step back and ensure that the sentence is not – is not crushing or disproportionate.
Sentence
31I propose to sentence you to a total effective sentence of two years and three months' imprisonment with a non-parole period of one year and nine months' imprisonment. That gives you a period of six months when you will be eligible for parole.
32The individual sentences are going to be as follows:
33On the charge of armed robbery, the earlier indictment, it is a sentence of 15 months' imprisonment.
34On the charge of robbery on the new indictment, it is a sentence of 18 months imprisonment. That is the base sentence.
35On the two charges of resisting a police officer, Charges 4 and 5, to one month aggregate sentence, on the charge of stating a false name, you are convicted and fined $400.
36On the charge of committing an indictable offence on bail you are sentenced to seven days' imprisonment.
37On the charge of assault with a weapon you are sentenced to two months' imprisonment, and on the charge of breaching a community corrections order on the breach summons, you are sentenced to one month's imprisonment.
38The base sentence is the sentence of 18 months on the charge of robbery and I declare that nine months' of the sentence on the armed robbery charge be served cumulatively on the base sentence. All other sentences are concurrent, making a total effective sentence of two years' and three months' imprisonment.
39I order that you serve a period of one year and nine months imprisonment before being eligible for parole and I declare that you served 650 days pre-sentence detention.
40Is that everything Mr Pickering?
41MR PICKERING: The only other thing is the 6AAA Your Honour but other than that, I think that is everything.
42HIS HONOUR: Yes, the 6AAA is tricky. Had you not pleaded guilty on both counts, I would have imposed a total effective sentence of three years with a non-parole period of two years' imprisonment.
43Are there any other matters Mr Pickering that I have not covered?
44MR PICKERING: No, Your Honour, I am just consulting remotely with my instructor just to confirm that there are not. But I cannot see any myself.
45HIS HONOUR: All right, okay, I just wanted to – yes okay.
46MR NIKAKIS: Your Honour just quickly my client is eligible for parole straightaway.
47HIS HONOUR: That is not a matter for me.
48MR NIKAKIS: Understand that, but just on the arithmetic.
49HIS HONOUR: Yes, well look, I will have the terms of the – the sentence reduced and revised and sent to the parties and sent to the authorities and he can make his application for parole.
50MR NIKAKIS: Yes.
51HIS HONOUR: And they will – they will expedite it, but he has got to get parole, it is not a matter for me.
52MR NIKAKIS: Correct.
53HIS HONOUR: As I indicated to Mr Abdi last time, if you commit another offence in the course of any period on parole, you will have to serve the balance of the sentence and with your prior conviction sheet now Mr Abdi, next time you commit a serious offence or any offence involving a weapon or robbery, you will be doing serious time, do you understand?
54OFFENDER: Yes, Your Honour.
55HIS HONOUR: Years and years of sentence. So, you know, you have had your chances so you are running out of time, so you have got to get into the arms of your family. If you feel that you are still got mental health problems, go and see a GP, get yourself a mental health plan, get a bit of talking therapy, but getting a job is the best therapy you can get. Get back into some of those youth groups, keep away from any people using drugs, everything like that. You have got – you have shown in that period before I sentenced you 12 months ago – that you can put into the community. You are worth a crack, but it is all in your hands.
56OFFENDER: Thank you.
57HIS HONOUR: All right. I want to thank also Mr Ridenski for his assistance, and Mr Nikakis and Mr Pickering, and adjourn the court sine die.
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