Director of Public Prosecutions v Abdi

[2020] VCC 1115

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00333

CR 19-00334

CR 19-00335

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAWUUD ABDI

SALAH ABUKAR

SALAH KHALIF

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 July 2020
CASE MAY BE CITED AS:	DPP v Abdi & Ors
MEDIUM NEUTRAL CITATION:	[2020] VCC 1115

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D'Arcy
For Accused Abdi	Mr C. Pearson
For Accused Abukar	Mr C. Thompson
For Accused Khalif	Mr M. Kozlowski

HER HONOUR: 

1Dawuud Abdi, you have pleaded guilty before me to one charge of intentionally causing injury and to the summary charges of committing an indictable offence whilst on bail and resisting arrest.

2You, Salah Abukar, have pleaded guilty to one charge of intentionally causing injury and one summary charge of committing an indictable offence on bail.

3You, Salah Khalif, have pleaded guilty to one charge of intentionally causing injury.  Was there a summary charge with Mr - no, one charge of causing injury, intentionally causing injury only.

4The facts underlying your offending are as follows.  The victim in this case is a man called Stefano Stazio, who is 23.  He had been diagnosed with schizophrenia when he was 18 and took medication in the form of fortnightly depot injections and Seroquel.  At the time of the incident, which occurred on 9 August 2018, he was living with his mother and a Mr Frank Gussa, aged 67, in a one-bedroom unit in Rochester Street, Braybrook, which was leased to Mr Gussa.  Mr Stazio and his mother slept in the bedroom and Mr Gussa slept in the lounge room. 

5Before living there Mr Stazio and his mother had lived with another Sudanese man called Chico in the same unit complex in Rochester Street.  Through them Mr Stazio met the three of you.  He had known you, Mr Abdi, for about two years, and you, Mr Khalif and Mr Abukar, for about a year and a half.  Mrs Stazio thought the three of you were friends of her son.

6In the early hours of 9 August 2018 Mr Stazio was asleep in his bedroom, Mr Gussa was asleep on the couch and Mrs Stazio had gone out with a neighbour, Kane Sokolowski.  The three of you went into Mr Stazio's bedroom.  You, Mr Abdi and Mr Abukar, were carrying rod-like objects and you, Mr Khalif, were holding a knife.  You, Mr Abukar, were wearing a black mask, which you removed a couple of times during the incident at the unit.  The three of you began an assault on Mr Stazio while he was in bed, you, Mr Abdi and Mr Abukar, hitting him on his legs, stomach, arms and back with your weapons and during that time you were saying to Mr Stazio that he owed you money and that he was not loyal.

7Soon after the assault started, Mrs Stazio returned home to hear her son screaming and she screamed at the three of you to stop assaulting her son.  She tried to get in front of him to shield him from being attacked and you, Mr Abdi, said to her words to the effect that her son had betrayed you and not paid you enough.  Mrs Stazio came out into the lounge room and one of - sorry, Mr Stazio got out of bed, went into the lounge room and one of you threw a glass object at him which broke.

8Mrs Stazio said she would go and get the money and she and you, Mr Abdi, went to Mr Sokolowski's house nearby.  You tapped on his lounge room window with a baton and Mr Sokolowski and his wife Luba came out.  You got on your knees and said, 'I just want money', and when asked how much you said $1,800.  Mr and Mrs Sokolowski said they simply did not have that kind of money and to leave.

9Whilst you, Mr Abdi, and Mrs Stazio were out of the unit, you, Mr Abukar, continued to assault Mr Stazio for some of that time.  After you, Mr Abdi, went back into the unit with Mrs Stazio, Mr Stazio was then taken to a car and driven by the three of you to a house in Castley Crescent, Braybrook, where you lived, Mr Khalif.  For some reason Mr Stazio took off the clothes he was wearing, you gave him other clothes, and he was then taken to another bedroom where you, Mr Abdi and Mr Abukar, assaulted him with golf clubs to his arms, legs and back and threatened to break his bones.  You, Mr Khalif, used a knife to slash Mr Stazio in the area of the left eye and you, Mr Abukar, used another knife to cut Mr Stazio on the left side of his face.

10Mr Stazio was then taken to another bedroom where you, Mr Abdi and Mr Abukar, slept for four to five hours while he stayed awake.  Then when you woke up the three of you with Mr Stazio and some other people watched TV and smoked marijuana.

11Mrs Stazio meanwhile had been waiting for her son to come home and when he did not, at about 1 pm, telephoned police.  They went to Castley Crescent at 7.30 pm and saw Mr Stazio through the front window.  They knocked on the door, which was answered by a man who left the security door locked, and then a short time later that door was unlocked and police went inside.  Mr Stazio appeared in the doorway with a male by his side.  He looked dazed and was taken out of the house by police.

12Eventually you, Mr Khalif, were identified by police as you were talking on the phone and were arrested.  Police then returned to the house at about 11.50 pm to execute a search warrant, at which time you were present, and when police tried to arrest you you thrashed around and adopted a fighting stance.  Police then had to use OC spray.

13You, Mr Abukar, were present at the house but were found in an unconscious state on the couch and were taken to hospital.  You later attended at the Sunshine police station by appointment on 27 August 2018.

14Ultimately Mr Stazio was taken to hospital and was seen by a doctor, who saw that he suffered the following injuries:  an abrasion under the left eyebrow; bruising and swelling on the left eyelid; a 4.5 centimetre incision along the left jawbone, another smaller incision at the outer corner of his left lower lip; bruising on his chest, abdomen, both arms and both legs, as well as tram line bruising on multiple areas of the back, which were said to have been produced by forceful contact with a linear object such as a stick, rod or baton or, in your case, golf club; and also scabs, which were indicative of underlying wounds on both arms.

15A Dr Janine Rowse from the Victorian Institute of Forensic Medicine gave the opinion that the injuries were the result of multiple applications of blunt and sharp abrasive trauma and 'highly suggestive of an assaultive event'. 

16You, Mr Abdi, did not participate in an interview.  You, Mr Khalif, gave no comment answers to an interview.  You, Mr Abukar, basically said that you had gone to a movie and came home to find Mr Stazio present in your house and watching TV.

17It is the prosecution case that, pursuant to s.323(1)(c) of the Crimes Act 1958, the three of you reached an agreement to go to Mr Stazio's house and assault him in order to get payment of a debt. The basis of the guilty plea to intentionally cause injury is on the basis of there being a continuous assault on Mr Stazio both at Rochester Street and Castley Crescent in Braybrook and includes all of the physical injuries inflicted on him using various weapons and that each of you was involved in the commission on the offence of s.323(1)(c), that you entered in an agreement, arrangement or understanding with other persons to commit the offence.

18Your cases, Mr Abdi and Mr Abukar, resolved following a pre-trial hearing in March 2020, after which the prosecution agreed to withdraw other charges.  

19You, Mr Abdi, were arrested on 9 August 2018, as I have said, and have remained in custody ever since.  You, Mr Abukar, were arrested on 27 August 2018 and have remained in custody ever since.  You, Mr Khalif, have remained on bail in the meantime.

20Each of you has prior convictions.  Of significance you, Mr Abdi, and you, Mr Abukar, were sentenced by His Honour Tinney J in the Supreme Court following a trial in which each of you pleaded not guilty to intentionally causing serious injury and to affray.  Each of you was placed on a total effective sentence of six years and nine months and ordered to serve a minimum term of four years and six months before becoming eligible for parole.

21I now turn to the personal histories of each of you, starting with you, Mr Abukar.  You, Mr Abukar, are now 24 years old and you were born in a small village outside Mogadishu.  Your family fled from there because of the Somali Civil War to a refugee camp in Kenya.  That was in 1997 and you were about two at the time.  In 1998 your family was accepted as refugees and flew to Perth to live in a Housing Commission house there.  In 2006, when you were about 11, your father took you and your brother back to Kenya and put you in an Islamic boarding school, which was called Parklands in Nairobi.  You are the eldest of six children born to your parents.  Your father was a truck driver before you came to Australia. 

22You had quite a difficult time, or your family had quite a difficult time before coming to Australia.  One of your uncles was shot dead in your front yard.  Essentially, however, and I note that you have been diagnosed as suffering from post-traumatic stress disorder, your difficulties arose because of actions by your father.  When you were in Grade 6, as I have said, your father sent you and your next oldest brother to the Muslim boarding school Parklands in Nairobi.  This school taught only the Koran and in primitive conditions and you and your brother lived in a tin shed with a cement floor and bunk beds with 30 other students.

23You had enjoyed your primary school before you were sent away, but you had a lot of trouble at Parklands, partly because of the primitive conditions, very much because lessons were Swahili, which you did not speak, and because you were bullied as outsiders.  According to what your counsel has told me, your teachers were brutal, by which I am assuming there was a great deal of physical punishment.  The school had no mosquito nets, you caught malaria and eventually became very ill, losing 17 kilograms in the process, and you were finally attended upon by a doctor.

24A year after going to the school, you and your brother escaped and then lived as street kids in Nairobi.  A year later one of your father's cousins saw you digging through trash on the corner and took you and your brother back to your father.  He at that stage was living with another woman.  He had had no contact with you in the meantime.  Your mother Fatima flew to Nairobi after finding out what had happened and put the two of you in a normal school, which you enjoyed, and she then flew back to Australia.

25Three months later your father put you back in a different boarding school in Mombasa.  Again it was a Muslim boarding school.  It had proper toilets and carpets but only taught the Koran.  Two years later your mother flew to Kenya with her other children and wanted to take you and your brother back, but your father Mohamed refused to let her.

26He decided to take you and your brother back to Somalia, but you fled from your father and were found by police.  However your father let police keep you for four months in lock-up while he took your brother to Somalia.  You were therefore imprisoned with adult men in a large room without windows and beds.  You were fed once a day and you spent your days in a corner, trying to protect yourself, and on several occasions you were abused by these men.

27When your father came back from Somalia he took you out of prison and tried to get you back to the school, but you escaped and again lived on the streets in Nairobi for two years.  You slept in a park with a group of boys, you stole to eat and were regularly harassed by police, who shot one of your companions.

28Your mother came to Nairobi to look for you, but she could not find you, and gave a cousin a photo of you.  This cousin finally located you, by which time you were addicted to glue sniffing.  You at first refused to go with your mother's cousin, but your mother found you, put you in hospital for three weeks and then into a drug rehabilitation centre in Nairobi. 

29In 2013 you flew back to Perth with your mother, tried to go to school but could not readjust.  You felt that everyone else was happy, but you were severely depressed, and then halfway through Year 11 you were diagnosed with type 1 diabetes, for which you must take insulin and eat regularly, otherwise you go into an insulin coma.  You once passed out in the street and woke up in Fremantle Hospital as a result of this.

30Your father came back from Kenya and moved in with your mother and your brothers and sisters and you were unable to deal with this and left home and got a job packing live crayfish and found a place to live.  You then did eight months of a tyre-fitting traineeship with Dunlop Tyres but could not earn enough to live on so found another job packaging iron ore samples for testing in a lab.  You moved in with the family of an older female cousin who had also been brought up by your mother.

31This worked for a while, but you continued to suffer depression and you used alcohol and marijuana to cope with this.  Your cousin's husband kicked you out of the house, you lost your job, tried to move back with your mother, but this did not work, so you flew to Melbourne to make a fresh start.  You stayed there with a Syrian friend in Essendon.

32That friend went home to live with his family and you moved to Braybrook to live with relatives.  You then met Mr Abdi and Mr Khalif and you started a couch surfing, drug-taking lifestyle.  It was during this time that you got involved in the serious offending which occurred on 9 December 2017 for which you were sentenced by Mr Tinney J.

33You were originally released on bail and did manage to find a pre-apprenticeship position with Wong Mechanics and started a relationship with your partner Faiza Day, with whom you remain in a relationship.  You have a little boy, Karim, who is 19  months old and Faiza, your partner, is studying to work in the disability sector and lives with her mother and brothers and sisters.  She supported you while you were on trial in the Supreme Court. 

34Your father came back from Kenya and also supported you during the trial and has reconciled with you.  You believe your father is a changed man and that is a very important factor in your life, in my view.

35I agree with your counsel that you had a shockingly deprived childhood and underwent a number of horrors which were simply not your fault and your post-traumatic stress disorder, with which you have been diagnosed and which you have understandably sought to deal with using drugs and alcohol, have very much fed into the context of your offending in this way.

36Whilst in gaol you have worked as a billet in the MRC.  You have undertaken every course that you possibly can.  You have been tested for drug use whilst in gaol and the testing has all proved negative.  You have been moved to Barwon Prison since being sentenced by His Honour, but there are currently no vacancies for billet positions there.  You had been undertaking a business course whilst at the MRC, but because of the lockdown conditions (and that is particularly a problem at Barwon) all programs have been shut down.  A staff member there was diagnosed with coronavirus.  So the position is that these sorts of courses and the sorts of programs are no longer available, I accept, make life in custody difficult for you. 

37It is the situation that you do have some prior convictions.  They are reasonably extensive, Mr Abukar.  They go back to 2012.  They are mostly in Western Australia.  You have been dealt with for giving false personal details with police.  There is an amount of street offending, if I can put it that way.  You have also assaulted a public officer, you have failed to produce a valid ticket, you were placed on an intensive supervision order, you were dealt with for stealing in 2013.  There were breaches of orders that you were placed on and in 2017 you were dealt with for essentially unlicensed driving, for which you were fined.  Your placement in prison in 2018 was the first time you had ever been in gaol. 

38I accept that whilst this is a serious example of intentionally causing injury, I note the victim impact statement of Mrs Stazio, who talks of the enormous fear that she experienced, the fact that she has never felt safe since, that she does not like to go out, that she continues to be reminded of the horror of seeing her son attacked in this way.  And he was a vulnerable young man, he had a psychiatric illness.  I accept that this was, as the prosecutor said, a serious example of this crime.  It has a maximum term of 10 years.

39It is also an aggravating feature, Mr Abukar, that you committed this offending whilst you were on bail for very, very serious offending for which you were ultimately sentenced to the long term of imprisonment that I have referred to.  However, I accept that prior to this that you suffered an extremely difficult childhood, that in the circumstances your previous prior convictions until you were dealt with by Mr Tinney J were not as bad as they could have otherwise been.

40I am impressed by the way you have dealt with your time in gaol.  I was impressed, as I said, with the way you spoke to me on the plea.  As I said, you impressed me as a young man of intelligence.  You hoped to be a mechanic and to run your own business one day.  You have the support of your de facto partner, who is law-abiding and working.  You are a relatively young man.

41I also have to consider what is called the principle of totality.  That is the fact that you are undergoing a significant term of imprisonment.  And I have to take into account all those factors and the fact that totality should not amount to an imposition of a term of imprisonment on top of what you are already serving to what is called a crushing sentence. 

42I therefore am going to sentence you to a term of imprisonment on both charges of 12 months.  I am going to order that three months of that term be served cumulatively to the sentence you are undergoing so that you have a new total effective head sentence of seven years and a new minimum term of four years and nine months.  That sentence is to be backdated to the 30 June, I think it was, 2020.  I am going to make sure I have got that absolutely right.

43MR THOMSON:  30 April, I think, Your Honour.

44HER HONOUR:  30 April, I am sorry, 2020.  All right.

45MR D'ARCY:  Could Your Honour just repeat what the actual sentences were.

46HER HONOUR:  It is 12 months and that is to be - there is to be only three months cumulative and nine months concurrent with the sentence they are undergoing and that results in a new total head term of seven years, because his current maximum head term is six years and nine months.  So that results in a total effective sentence now of seven years and a total minimum term of four years and nine months.  That sentence is backdated to the 30th, to commence on 30 April 2020.

47MR D'ARCY:  Did Your Honour mean 12 months for the summary offence?

48HER HONOUR:  No, I said on an aggregate basis.

49MR D'ARCY:  I'm sorry.  I see.

50HER HONOUR:  It's an aggregate basis.

51MR D'ARCY:  I misunderstood that.

52HER HONOUR:  No, I probably wasn't clear.  So it's an aggregate term.  All right, thank you.

53I now turn to you, Mr Abdi.  You are 24 years old.  You were born in Somalia and you came to Australia with your family when you were about a year old.  Your father was a motor mechanic, but he no longer works as he is extremely unwell.  He has not well-controlled type 1 diabetes, a kidney disease which requires dialysis. He also has a cancer, although you are not quite sure what type of cancer, as this is obviously something that has arisen since you have been in custody.  He is presently in hospital and you have always enjoyed a close relationship with him.

54Your mother works in the occupation of home duties.  You have got two older brothers, a younger brother and five younger sisters, so you are one of nine children, and you are the only one to have been in trouble with police in your family.  You grew up on Braybrook and began high school and you regard yourself as Australian, understandably, because you have been here since you were one and you are an Australian citizen.

55However, in 2010 when you were 14 your parents decided to send you, two of your brothers and one of your sisters back to Somalia because your grandmother was dying.  Your brothers and sister returned to Australia, but you stayed in Somalia for six years to 2016.  While you were there you underwent a great deal of trauma.  You witnessed shootings, you were kidnapped along with a teenage friend by people who made demands for a ransom and you saw the bombing of a passenger bus by terrorists.

56Apart from studies with the Koran you received no formal education.  When you returned to Australia when you were 20 you found work in Melton cutting fire wood and Christmas trees and worked casually for a meat packaging company in Brooklyn.  You, however, suffered, unsurprisingly, a degree of mental health difficulties which have ultimately been diagnosed by a psychiatrist nurse and a GP as post-traumatic stress disorder.  However, this diagnosis did not come about until you were finally in remand in prison.  You sought no help in the meantime but turned instead to regular use of amphetamine and ice.

57Looking back to the report of consultant psychologist Ian McKinnon, which was tendered on the plea, it is noted that I have left out probably the most horrendous part of your experience in Somalia, which was that you were imprisoned in your late teens over charges that you had engaged in sex outside marriage and had been found intoxicated and in possession of a small quantity of cannabis. You then spent three years in underground prison cells.

58You told Mr McKinnon that it was filthy and that  'We were like animals there'.  When you were released you returned home to your village and your uncles beat you severely.  Soon after that you joined the government military and, after six months as a soldier, became fearful you would be targeted by the terrorists and gave in to your mother's desperate pleas, she being in Australia.  You deserted the military, fled to Kenya and eventually came back to Australia.  You were also whilst you were in Somalia assaulted.

59You then had to readjust to life in Australia.  You stayed with your parents for a while, but you soon left and stayed with friends, couch surfing, and became homeless for extended periods, telling Mr McKinnnon that you did not want to go back home because of what had happened to you.  You also told Mr McKinnon that you suffer chronic respiratory problems and you also told him that when you were 21, just after returning from Somalia, you became involved in a street fight and were hit on the head with a machete, which made you paranoid.

60It was Mr McKinnon's opinion that, at the time he saw you, you were suffering post-traumatic stress disorder, which he attributed to the many traumatic experiences that you endured in Somalia.  You also had some difficulties over a girlfriend who had been recently sexually abused.  You were also suffering, he felt, ongoing psychotic symptoms that included paranoia, delusions and hallucinations because of your drug use.

61In any event (and that is only a rough summary of your background) I am also satisfied that in your case you have suffered horrendously difficult experiences, particularly in your adolescence.  I am satisfied that you suffer from a post-traumatic stress disorder.

62But I also spoke to you during the plea:  you are currently now being held a Marngoneet, where you appear to be doing fairly well.  Again because of the COVID conditions you are largely in lockdown, but you too have been tested for drugs; you have been found not to be using drugs and it is your hope when you leave gaol to work in the engineering field.  Indeed you had begun doing some education in that area, but this has been discontinued because of the COVID crisis/conditions.

63Can I say in relation to both of you, you and Mr Abukar, you strike me as young men - I could not say this entirely confidently - but who can have good futures if you want to.  In any event, you retain the support of your family and it is your aim to go back and live with your family once you are released from prison.

64Again you are a young man who has been offending in the context of using drugs, which you were taking for the post-traumatic stress disorder symptoms you were experiencing, which I do not think you would have had any clue, Mr Abdi, that you were experiencing.  You had sought no assistance for it, you had come back to Australia after living all those years in Somalia, enduring all those horrendous experiences, and you simply became lost once you came back here.

65In all the circumstances I am going to sentence you to the same term of imprisonment to which I sentenced Mr Abukar.  That is 12 months and that will be an aggregate sentence for both the charge of intentionally causing injury, committing an indictable offence whilst on bail and for resist arrest.  I also order that three months of that sentence be served cumulatively so that now your head term is now a total effective sentence of seven years.  I order that you serve a minimum term of four years and nine months and I backdate that sentence to 30 April 2020.

66All right, does that make sense to you, Mr Abdi?  Good.

67All right, finally I turn to you, Mr Khalif.

68I should add, I am sorry, in relation to Mr Abdi, you have very little in the way of previous history apart from the very serious matter for which you were sentenced by Mr Tinney J, essentially that you have got a couple of driving offences and that is pretty much it.

69I now turn to you, Mr Khalif.  You are 24 years of age and you - excuse me.  Sorry.  I'm trying to find his prior history.

70MR KOZLOWSKI:  I have a copy here if that would assist Your Honour.

71HER HONOUR:  That's all right, I've just found it. 

72You have a prior history going back to 2016, mostly driving offences, the most serious of them being reckless driving which was dangerous to the public in order to - that being an escape pursuit, for which you were sentenced to six months' imprisonment, and stealing, for which you received a $200 fine.

73You were born in New Zealand to Somalian parents and you are the fourth eldest of your family.  You have three sisters and two brothers.  Your parents separated when you were three and your father emigrated to the United States, so the rest of you were brought up by your mother.  However, your father apparently remained active in your life.

74When you were six the family moved to Perth, where you lived with your mother, and you began using recreational cannabis when you were 12.  You did well at school, you completed Year 12 and you were admitted into an arts and cultural anthropology university course, but then you only completed one semester.  Your mother decided to send you to Kenya to be treated by the tribal medicine man.  This was because you suffer from epilepsy and have since you were 12.

75You stayed in Kenya with your relatives for six months and you were then sent to Somalia to stay with other relatives as discipline.  You returned to Australia in 2016, but your parents then sent you back to Kenya.  You originally stayed with relatives, but then your uncles took your passport from you and you were taken to what is described as the infamous Durashifa Rehabilitation Centre.  This was because there were concerns that you were using cannabis and because you were not abiding by your Islamic faith.

76This centre is known for torturing its clients and you experienced frequent physical abuse during the nine months that you stayed there.  You were eventually rescued in an international antiterrorist raid and moved to the United Kingdom Embassy, then to the Australian Embassy and then issued with an emergency passport and brought back to Perth.

77In 2018 you moved to Melbourne where you were living with relatives.  You were looking for a fresh start because of the trouble you got into in Perth.  You stopped using cannabis in April 2018.  You did this cold turkey because you wanted to get employment in a meat works where they tested for drug use at the meat works.  You have not used cannabis since.  You do not have any drug issues and you only drink socially.

78You were remanded on these matters and then you were released.  You have been on strict bail conditions including a curfew and daily reporting.  You are currently unemployed, but you did work at an IGA fruit and vegetable store in Perth and you have also worked in a chicken processing factory.  You now live with your cousins.  You are working with a cousin whilst living there, although you are not being paid.  But your cousin is married, he has children, it sounds like a very stable environment for you.

79Again you were a young offender at the time that you engaged in this offending.  You were away from home and you too have suffered what I certainly regard as horrendous treatment at the hands of your family in Kenya and extreme injury in terms of the prison, or rehabilitation centre that you were sent to.  You are obviously a young person of considerable promise, Mr Khalif. 

80You got your Year 12,  you got into university.  This is something that hopefully you will continue to pursue.  Is that something you want to do?  Do you want go back to study?  Stand up, Mr Khalif.

81OFFENDER KHALIF:  Yes, Your Honour.

82HER HONOUR:  It would obviously be a disaster, and I'm saying this advisedly, it would obviously be a disaster if you were deported from this country.  The way in which you were treated in Kenya, what your relatives seemed to regard it an appropriate way of dealing with young people, simply means that you face the most extreme ill treatment if you were deported from this country back to Kenya. 

83As I said, you know, you appear to have done well.  Now, you have got your Year 12.  Really life should not have ended up this way for you.  What sort of study would you like to do, Mr Khalif?  I beg your pardon, can you take your - pop your mask down.

84OFFENDER KHALIF:  Yeah, I'd like to continue the Bachelor of Arts and I'd like to go on to do a certificate in - Certificate IV in Community Services. 

85HER HONOUR:  There is no reason why you cannot do that.  You know, you have got the education to do it.  It is extraordinarily sad, in my view, that you ended up having to endure what you did.  Are you still in good - what's your relationship like with your parents now? 

86OFFENDER KHALIF:  It's good.

87HER HONOUR:  It's good?

88OFFENDER KHALIF:  Yep.

89HER HONOUR:  All right.  And they're still over in Perth?

90OFFENDER KHALIF:  Yeah.

91HER HONOUR:  Do they have any understanding of what happened to you when you were in Kenya?

92OFFENDER KHALIF:  Yeah, they do.

93HER HONOUR:  All right. 

94In any event, it is my view that it is perfectly clear on the materials that you played a lesser role in the offending against Mr Stazio.  Again I am satisfied this was offending that took place in the context of you being lost, of you perhaps seeking family with your co-accused. 

95But I certainly am satisfied that you have honoured the conditions of your bail and they were strict conditions.  You have not reoffended, you are living in a protective environment, you are a person with, in the circumstances, good rehabilitative prospects and you are a young person.  In all the circumstances, therefore, I am satisfied that placement on a community corrections order is an appropriate disposition in your case.

96I am going to place you on the order for a period of 18 months, but before I can place you on this order I have to outline the conditions of the order and I have to get your consent, all right?  So the conditions are that you must report to the Community Corrections Office within two working days of the making of this order.  That is by Tuesday of next week, all right?

97While on the order you must not commit another offence punishable by imprisonment.  That means if you commit any offence for which you could possibly go - for which theoretically you could go to gaol, like stealing something small from the supermarket, that will breach the order.  You will be brought back in front of me and I will resentence you on that.  Is that clear?

98OFFENDER KHALIF:  Yes, Your Honour.

99HER HONOUR:  All right.  Whilst on the order you can't leave Victoria except with the permission of the Community Corrections Office.  You must report to receive visits from the Community Corrections Office.  You must notify the Community Corrections Office of any change of address or employment.  You may not report to the Community Corrections Office under the influence of drugs or alcohol.  You must obey all lawful directions of the Community Corrections Office.

100I am going to order that you undertake 150 hours of unpaid community work.  You are to undergo programs designed to reduce reoffending and you are to undergo supervision and there will be judicial monitoring.  Now, what judicial monitoring means is that every few months you come back before me with a report about how you are going, all right, so I just keep an eye on how you are travelling.  All right.  But you need to bear that in mind.  This will not be the last time you and I see each other, all right, Mr Khalif?

101The way you have managed to conduct yourself on bail is very impressive and I am sure you will continue to do well, but we just want to make sure, all right?  Are you prepared to enter this order?

102OFFENDER KHALIF:  Yes, Your Honour.

103HER HONOUR:  Thank you.  Have a seat.  In relation to Mr Abukar, I declare pursuant to s.6AAA that had you not pleaded guilty I would have sentenced you to a term of imprisonment of 18 months and ordered that you serve nine months of hat cumulatively with the sentence you are undergoing.  Also pursuant to s.6AAA I make the same declaration in relation to Mr Abdi.  In relation to Mr Khalif, pursuant to s.6AAA - I don't think I have to.

104MR D'ARCY:  No, you don't have to, not imprisonment.

105HER HONOUR:  I don't have to.  Good.  Now, is there anything else that I need to attend to?

106MR D'ARCY:  Just the disposal order.

107HER HONOUR:  Disposal order, yes, I've got that here.  Sorry if that was very boring for everyone as I went through that, but - this need not appear on the transcript but better that I get it out of the way today I think.  All right.  There we go.  There's the disposal order, thank you.

108MR THOMSON:  Yes, thank you, Your Honour.

109HER HONOUR:  All right, thank you.  Now we'll just get the - gentlemen, you can go.  I'm just going to remain on the Bench while the community corrections order is ‑ ‑ ‑

110MR PEARSON:  If Your Honour pleases.

111HER HONOUR:  Thank you.  Can I thank you both very much for your extreme, very full plea material that made it very easy for me both to reach a decision and to hand down the sentence today.  Mr Abukar and Mr Abdi, good luck to you both, all right?

112OFFENDER ABUKAR:  Thank you very much, Your Honour.

113OFFENDER ABDI:  Thank you, Your Honour.  All the best.

114HER HONOUR:  All the best.  Thank you very much.

115MR KOZLOWSKI:  Thank you, Your Honour.

116OFFENDER ABUKAR:  (Foreign words spoken).  Son of a bitch.

117HER HONOUR:  All right, thank you.  Right, we'll turn that - we can - yes, I'll see you in three months, all right, Mr Khalif?  Thank you.

118I hope what Mr Abukar was saying in Somali ‑ ‑ ‑

119MR D'ARCY:  I didn't understand it.

120HER HONOUR:  ‑ ‑ ‑ wasn't rude, Mr Khalif. 

121MR D'ARCY:  It's an interesting process, Your Honour, isn't it, the written submissions are quite good, aren't they?

122HER HONOUR:  Yes.

123MR D'ARCY:  Really when they're done like that.

124HER HONOUR:  Yes.

125MR D'ARCY:  But the technology leaves us behind with the audio. 

126HER HONOUR:  Yes.  No, it's not great and it's quite stressful doing it.

127MR D'ARCY:  Yes.

128HER HONOUR:  It's so much more - so much easier when everyone's in front of you.

129MR D'ARCY:  It's interesting though that it caused Your Honour to engage with the prisoners in a way.

130HER HONOUR:  I always do.

131MR D'ARCY:  Yes, but that worked out in their favour, I would have said, in this instance.

132HER HONOUR:  It mostly does.

133MR D'ARCY:  Yes.

134HER HONOUR:  I mean I nearly always speak - I know it's very interfering of me and I often say.  I would hate ‑ ‑ ‑

135MR KOZLOWSKI:  We never mind, Your Honour.

136HER HONOUR:  Pardon?

137MR KOZLOWSKI:  We never mind it.

138HER HONOUR:  I would hate to appear in front of a judge like me because I interrupt all the time and I nearly always want to have a word with the accused.

139MR D'ARCY:  But it was the sort of set-up because of the written submissions that allowed Your Honour easily into that mode.

140HER HONOUR:  Yes.  Oh, absolutely, but I do find even when people are in court I usually do have a fairly - well, I won't quite publicise what recently - but I usually do have a bit of a chat with the - I think if you're in my position you would too, Mr D'Arcy, because you've been appearing for people for so long it helps.

141MR D'ARCY:  Well, the only thing is, Your Honour, there'd be some clients I would have had that I'd be very concerned about that.  But then ‑ ‑ ‑

142HER HONOUR:  If anyone starts saying anything that I think is going to harm them I always say 'Thank you, sit down'.  I certainly don't let people do that.

143MR D'ARCY:  Yes.

144HER HONOUR:  Because I'm the one inviting them to speak to me and it's entirely unfair if they end up saying something by - anything comes up that sort of leads us to, 'All right, that'll do', and we stop.  But I find it really helpful.

145MR D'ARCY:  yes.

146HER HONOUR:  I really like, you know ‑ ‑ ‑

147MR D'ARCY:  Yes.  It's interesting.  It's quite a different presentation really, isn't it?

148HER HONOUR:  It is.  It is.  But I would have - I mean if they had been in court I would have spoken to them both in the same way.

149MR D'ARCY:  Yes, yes.

150HER HONOUR:  It's just become a habit I think.  Yes.  In fact I think someone told me most people who appear in front of me say, 'She'll want to speak to you', so they're sort of used to it.  But, yes - no, I this need not be on the transcript.  I'm very aware that that can flip and be very unfair, so just chop it off.  How are you finding all of doing it this way?

151MR D'ARCY:  The audio I find confronting a bit, Your Honour.

152HER HONOUR:  Yes.

153MR D'ARCY:  I had an occasion where I had none and I had to dial in and that's difficult because you can't see.

154HER HONOUR:  No.

155MR D'ARCY:  So there's cross-talking and it's ‑ ‑ ‑

156HER HONOUR:  yes, it's not great.

157MR D'ARCY:  That was disappointing, yes.

158HER HONOUR:  Yes.  What about you ‑ ‑ ‑

159MR D'ARCY:  But I mean we've got to do something. 

160HER HONOUR:  Better than nothing.

161MR D'ARCY:  Yes.

162HER HONOUR:  All right.  Now, I'm going to see you on 28 October, Mr Khalif, all right? 

163OFFENDER KHALIF:  Your Honour.

164HER HONOUR:  All right.  What will probably - I'm not quite sure how we'll do it, I'm not sure if conditions will have changed, but what would be good is if we can WebEx you in.  We can dial you in, we can do it on your phone, all right, so we'll sort that.  All right.  Now I'll get you to sign this, thank you.  That just contains all the conditions that I just read out to you, all right?  Thank you, Mr Kozlowski.

165All right.  So good luck, Mr Khalif.  Hope it all goes well and I will see you in three months' time.  I thank counsel very much for their assistance.  You can come out of the dock now if you wish.  Thank you very much.  Yes, we'll adjourn to 9.30 on Monday morning.  Thank you very much.

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