Director of Public Prosecutions v Abdi

[2019] VCC 1220

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01147

DIRECTOR OF PUBLIC PROSECUTIONS

v

ISMAIL ABDI

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2019
DATE OF SENTENCE:	2 August 2019
CASE MAY BE CITED AS:	DPP v Abdi
MEDIUM NEUTRAL CITATION:	[2019] VCC 1220

REASONS FOR SENTENCE
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Subject: Armed robbery, attempted armed robbery
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Badcock	OPP
For the Accused	Ms A. Dixon	Michael White & Associates

HER HONOUR:

1Ismail ABDI you have pleaded guilty to one charge of armed robbery, one charge of attempted armed robbery and related summary offences.  The maximum penalty for Armed Robbery is 25 years, Attempted Armed Robbery 20 years and each of the relevant summary offences is 3 months. 

Charge 1 – Circumstances of the Offending

2On 10 May 2018 the Victim, Kambiz MOLLAEYAN, was at the Salvation Army Café in Bourke Street.  It was at about 10:40 pm he saw you sitting alone at a table and engaged in a short conversation with you.

3You both left the café and you asked him what he was doing – he told you he was looking for a battery for his phone.  You walked to a nearby car park on Little Collins Street, Melbourne.  You both walked towards a nook in the carpark where you said you saw a battery.

4You then produced a knife and held it about 5 cm away from his neck demanding his money.  He took out his wallet and gave you $600 that he had won earlier that day on poker machines.  You then swung the blade at his leg about 5 or 6 times in an attempt to stab him.   He was able to move to avoid the blows and was not injured.

5You then ran away though were chased by him onto Little Collins Street and then Spring Street, Melbourne.  As you ran away you threw the knife onto the footpath.  Mr MOLLAEYAN saw Protective Service Officers near Parliament Station and told them what had happened.  They photographed and secured the knife you had dropped. 

Investigation

6In the course of the police investigation DNA analysis performed on the knife and handle matched your DNA.  Further, phone records indicated your presence at the scene and ultimately you were identified in a photoboard prepared by police. 

Arrest and Interview

7You were arrested and interviewed on 30 October 2018 – you denied involvement in this incident and otherwise provided no comment answers and were released at the conclusion of the interview.   After the photoboard identification on 28 November 2018 you were charged with armed robbery and released on bail.

Charge 2 and Related Summary Charges – Circumstances of the Offending

8On 2 May 2019 at about 1:15 am the Victim, Philippe LEBEDEV, went to a unit in Park Street, South Melbourne.  He went there to pay off a drug debt and buy more drugs – you were there at the unit with other older males. 

9You followed Mr LEBEDEV out of the unit and into the lift, offering him to go to your place to get some weed then pressed the button for level 18. CCTV footage captured this interaction in the lift and shows you both getting out of the lift.  You asked him to show you his money and he revealed the contents of his wallet, $70. 

10You then produced a knife, with a blade of about 30 cm long.  You held the knife in your hand and pointed the blade at him – you tried to grab  his wallet with your other hand. 

11A struggle ensued and ultimately he got in the lift and left the building still holding on to his wallet.  He then called the police.

12It was a condition of your bail in relation to the armed robbery charge that you were to be at home in Tarneit between 10pm and 6am – it is thus a breach of your condition of bail that being Summary Charge 4, the circumstances in respect of the commission of this offence.

Arrest and Interview

13On 7 May 2019 and 10 May 2019 Police again attended at your house in Tarneit and again you were not there in breach of your curfew conditions.  That is Summary Charges 5 and 6.   Soon after on 10 May, you returned home and were arrested. 

14You were interviewed by police and agreed that you had been at the unit in South Melbourne – you denied offering to sell cannabis maintaining it was
Mr LEBEDEV that offered to sell you cannabis.  You denied attempting to rob him and maintained that he had attempted to rob you with a knife in the stairwell.

Victim Impact

15I received a Victim Impact Statement from Mr LEBEDEV – although
Mr MOLLAEYAN did not provide a Victim Impact Statement, given the circumstances of your offending, I have no doubt that he would have been frightened and concerned about his safety due to your actions.

16Mr LEBEDEV indicates in his statement that he now has a general fear of people of African descent – he has left his accommodation in the building where this incident happened and has had to find temporary and ultimately will have to find alternative department housing.  He has permanent and serious mental health issues that have been exacerbated by your offending – he feels constantly nervous, anxious, distrustful and distressed with limited relief from his medication.

PERSONAL CIRCUMSTANCES

17As to your personal circumstances I was provided a report from Gina CIDONI psychologist dated July 2019 and a supplementary email regarding your childhood experiences - I take that material into account.

18You are the third of five children.  Your parents are from Somalia – your father came to Australia before your birth as a refugee from the civil war.  Your mother followed him in 1994 and you were born in Sydney in 1999.  You completed both primary and secondary school including year 12, then commenced a  Bachelor of Commerce at RMIT University, however you ultimately dropped out of this degree at the beginning of 2018.  You have expressed a desire to become involved in a trade rather than pursue tertiary education.

19You have had different jobs with your uncle and aunt though have never had stable full time employment.  You have been unable to qualify for Centrelink benefits given you live with your parents and your age.

20You were exposed to significant trauma when you were with your family in war torn Somalia - your family went to Somalia in 2003 for a period of about nine months.  During that time when you were aged about 4, you and your family members witnessed a shooting at a checkpoint and your passports were taken by authorities – this event precipitated your parents leaving Somalia permanently.  You also may have been exposed to adult family members discussing deaths or injuries of relatives in the civil war.  

21Ms Cidoni opined that given your age at the time of these events that you may be confused about the accuracy of the details of these matters when she spoke about them with you – I do however accept that there was some impact of such trauma or exposure on you. 

22Various psychological tests were conducted by Ms Cidoni – she reported:

Your cognitive  and memory function was intact with low average function. Assessment of your personality revealed heightened anxiety and symptoms of PTSD as well as some schizotypal characteristics.  Post-traumatic stress scales were elevated where the trauma source was most likely from your extreme experiences in Somalia.  There was heightened anxiety re your situation in adult custody.

Drugs/alcohol

23You have a history of drug use – you were socializing with older males and began abusing drugs and trying to fit in with his group – I was informed you first tried cannabis in 2017, and by 2018 you had an addiction and dropped out of university.  You also tried Xanax and by 2019 you were using it on a regular basis.  Additionally you commenced drinking alcohol when you were about 15 years and around the time of this offending, in addition to your drug use your alcohol consumption increased.

24Your counsel informed me that you first tried methylamphetamine or ice on the night of the attempted armed robbery, on the suggestion of an associate and tried it one other time in 2018 prior to being remanded.

25I was informed that at the time of the offending you were under the influence of Xanax and either methylapmphetamine or alcohol or cannabis.  You needed money to feed your addiction to cannabis and Xanax in relation to the attempted armed robbery.  I was informed that you felt stressed and anxious about being a financial burden on your family at the time.

26Your mother confirmed the family were having some financial difficulties as she was unable to continue to provide day care from the family home as an income source once you commenced offending.  Your parents were not aware of your drug use.

27Ms Cidoni reported that your abuse of Ice and Xanax in the offending  period  would  have resulted in increased autonomic activity, perceptual disturbances and behavioural and psychological changes, that being agitation, affective blunting and impaired judgment.  She opined that your drug affected state would have contributed to compromising your judgment and obscured clear thinking and that you acted in an uncontrolled and disinhibited way.

28Underlying this, he would be further impaired by arousal and hypervigilance produced by PTSD and other traits, specifically paranoid thinking and misinterpretations of reality.  These conditions most likely had the effect of impairing your ability to exercise appropriate judgment and to make calm and rational choices or to think clearly during the time that you were offending. 

29Your counsel submitted that your mental health was such that I should consider that custody is more burdensome for you.  The prosecution did not dispute that submission.  Your counsel did not submit however that your moral culpability for this offending was significantly reduced as a consequence of your mental health combined with your substance abuse.  That is, your counsel did not rely on that aspect of Verdins.

PRIOR MATTERS- CRIMINAL HISTORY

30You had 7 prior convictions at the time of the May 2019 offending.  You had 2 court appearances on 10 September 2018 and 23 January 2019 – you received fines in relation to this offending.  It is fair to say this offending is a significant step up in seriousness of the nature of your offending.  In respect of the first charge on the indictment you had at the time no prior convictions.

31You are currently 20 years old though in respect of the armed robbery you were then aged 19 when that was committed.  You are a young offender as defined under the Sentencing Act.

32I was informed that in June-July 2018 you were in custody for a different armed robbery and other minor offences.  The armed robbery charge was ultimately withdrawn though you spent about 3 weeks in custody.  I take into account this period in custody or dead time in accordance with Renzella in formulating this sentence. 

I note that the second lot of offending before me occurred after that period in custody.

MATTERS IN MITIGATION

Youth

33The most significant factor to take into account in sentencing you is your youth - you were 19-20 during the time of the offending.  The remarks of the Court of Appeal in Azzopardi (2011) 35 VR 43 [92]-[93] have application to your circumstances :

There are a number of considerations which underlie the general primacy of an offender's youth as a sentencing consideration.  First, young offenders being immature are therefore more prone to immature or rash decisions.  They may lack the degree of insight, judgement or self-control that is possessed by an adult.  They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.

Secondly courts recognise the potential for young offenders to be redeemed and rehabilitated.  This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.  No doubt because of this potential it has been stated that rehabilitation of young offenders is one of the great objectives of the criminal law.

34Because of these considerations, the primacy of general deterrence for this kind of offending is reduced though it is not eliminated.

35I take into account your plea of guilty – in respect of both incidents of offending they were at a relatively early opportunity and no witnesses were called to give evidence.  You are entitled to a full discount for your plea in relation to the second charge. 

36Your plea is also indicative of remorse and as noted in the psychological report:  ‘He acknowledged the wrongfulness of his actions against the victims and "he feels really guilty about the offending and said his family were very disappointed in him"'.  I note that the Youth Justice report indicates that you demonstrated little victim empathy and that you stated that the victim would not be affected by the trauma of the robbery. This is an issue that needs to be addressed by you.  I do, however, take a level of remorse into account.

Rehabilitation

37Your counsel submitted that you had good prospects for rehabilitation:

i.you have strong support from your family – your parents and some of your siblings were in court – you have a strong male role model in your father, which many offenders of your background do not have; I understand that you are able to live back at home when you are released from custody.

ii.you have a reasonable level of intelligence as indicated by your completion of studies;

iii.you have a minimal criminal history; though as I indicated before, this clearly is a step up in the seriousness of your offending;

iv.your plea and remorse.

38Relevant to your rehabilitation prospects is the view of Ms Cidoni – you are in need of drug education and counselling – you require treatment for your traumatic history through psychotherapy and psychiatric interventions and you need to engage in study or have a vocational direction. 

It is important that you understand that without addressing these issues you will find yourself reverting back to negative peers and re-offending.  It is extremely important that you take full advantage of programs to address your issues for the remainder of your period in custody.  I am more guarded regarding your rehabilitation prospects than your counsel submitted, though accept they are reasonable.

Aggravating features

39Your counsel acknowledged the seriousness of your offending.  Although there were not present the hallmarks of planning or attempts for you to disguise your identity, both your victims were vulnerable and isolated at the time of the offending.  You lead your first victim into a secluded dark area and attempted to cut him with the blade; both your victims were soft targets.

40You were on bail for the first offence when you committed the attempted armed robbery.

SENTENCING SUBMISSIONS

41Your counsel submitted that you are an immature and impressionable young man with good rehabilitation prospects.  It was submitted that a term of detention in a youth justice facility was the appropriate sentencing disposition. 

42The prosecution highlighted the application of relevant sentencing principles of general deterrence, specific deterrence, denunciation and protection of the community, all of which I accept are relevant in this sentencing exercise and take into account.  It was accepted by the prosecution that it was within the sentencing range available to me to impose a Youth Justice Order.

43In order for me to adopt that course, it was necessary for me to receive a report under the Sentencing Act – Mr Steven Riordan Youth Justice prepared a report for that purpose dated 30 July 2019.

I was unaware that youth justice had previously been involved with you when you were bailed on 19 July 2018 for matters that have now resolved – it was reported that at that time your engagement was superficial at best and that you were not interested in any intervention.   

44Despite this history, Mr Riordan is of the view that you have reasonable rehabilitation prospects (see s.32 Sentencing Act) but that is if you make the decision to address the underlying reasons for your offending behavior and your association with negative peers.  That view is consistent with that of the psychologist who recognizes areas that you require assistance and support.  I note Mr Riordan did not view you as particularly impressionable or immature.

This offending was very serious as is reflected by the maximum penalty and for the reasons I have indicated.  I am mindful of your youth and range of personal issues though am concerned about your lack of attempt to initially engage with youth justice – this is clearly your last opportunity given your age and the very serious nature of your offending – it is essential that you take full advantage of counselling and other programs that are offered to you as part of the youth justice program as any subsequent criminal activity is likely to result in you spending significant and the best years of your life in adult custody. 

45I will ensure that the report of Ms Cidoni to be provided to youth justice. 

46If you could please stand.  Could you stand up please?

47In respect of Charge 1, you are convicted to be detained in a youth justice centre for a period of two years.

48In respect of Charge 2, you are convicted to be detained in a youth justice centre for 18 months.

49In respect of the related summary offences, I convict and sentence you to one month imprisonment in respect of each of them.

50I order six months of the sentence imposed in respect of Charge 2 to be cumulative on the sentence imposed on Charge 1 giving a total effective sentence of 30 months or two years and six months.

51Pursuant to s.6AAA of the Sentencing Act I would have imposed a sentence of four years' detention if you had not pleaded guilty to this matter. I make the order pursuant to s.464ZF of the Crimes Act. I understand that that order is not opposed.

52Is there a disposal order?  I will also make the disposal orders in relation to the weapons.

53Mr Abdi, do you understand what I have just said to you?

54OFFENDER:  Yes.

55HER HONOUR:  You really understand this is it for you?  I know before you weren't keen on engaging with youth justice.  They have programs there for you and it really is a matter of you taking the initiative and wanting to address your problems.  As I said to you at the end of these reasons, you will lose the best days of your life if you revert back to re-offending.  Do you understand that?

56OFFENDER:  Yes.

57MS DIXON:  Can I just enquire with the court, there was no time to be reckoned as served under the - - -

58HER HONOUR:  Yes, PSD is - was it 59 days or is it more now?

59MS DIXON:  I think it's 84 not including the Renzella, yes.

60HER HONOUR:  Yes, no I've taken the Renzella amount into account but I will declare the relevant PSD which is - - -

61MS DIXON:  I think it's 84.  It was 74 at the last appearance and that was ten days ago.

62HER HONOUR:  All right, I'll take into account the PSD of 84 days.

63MS DIXON:  Thanks, Your Honour.

64HER HONOUR:  Thank you.

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