Director of Public Prosecutions v Abdi
[2016] VCC 1981
•16 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00007
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDIKHADIR ABDI |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 December 2016 | |
DATE OF SENTENCE: | 16 December 2016 | |
CASE MAY BE CITED AS: | DPP v Abdi | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1981 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Criminal Procedure Act 2009; Sentencing Act 1991; Crimes Act 1958
Cases Cited:Boulton & Ors v R [2014] VSCA 342; DPP v Maxfield [2015] VSCA 95; Alam v R [2015] VSCA 48; Marocchini v R [2015] VSCA 29; Hutchinson v R [2015] VSCA 115
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms A. Bhai | Office of Public Prosecutions |
| For the Accused | Mr N. Leslie | Slink & Keating Solicitors |
HER HONOUR:
1 Abdikhadir Abdi, you have pleaded guilty to one charge of armed robbery on Indictment F11901013. The maximum penalty applicable to that offence is 25 years’ imprisonment.
2
You have also agreed to two summary charges being heard by me, pursuant to s.145, Criminal Procedure Act 2009, and have pleaded guilty to two charges of failing to appear in accordance with your undertaking of bail on two occasions, those dates as amended, the first on 26 May 2015 and the second on
10 November 2015. The maximum penalty applicable to each to those charges is 12 months' imprisonment.
3
Regarding summary Charge 4, your failure to attend on 26 May 2015 followed you signing and entering into your bail on 22 May 2015. Your failure to attend on 10 November 2015 occurred after you signed and entered into that bail on
4 August 2015. It is clear you were well aware of the respective bail orders.
4
Your crime of armed robbery arises out of an event which took place on
22 May 2015 and involved the victim of your offending, Yu Hong Tuo.
5 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
6
I turn, then, to a brief summary of your offending. At the time of your offence you were 25 years of age and at the time of sentence, 26. Your victim, Ms Tuo, was 57 years of age at the time of your offending and she and her husband,
Mr Bai, ran a milk bar at George Chudleigh Drive, Hallam. They both lived in residential premises attached to the milk bar.
7 On 22 May 2015, at approximately 1 pm, you got off a bus near that milk bar and entered it, although I note your instructions now, were that you had been shortly before your offending at a friend’s home where you smoked some ice. Ms Tuo was in the living area, heard someone enter the shop and so attended at the counter area.
8 You asked to use the phone and then quickly pulled a beanie over your head and said, "I need cigarettes and money quickly." You held up a black metal object and pointed it at Ms Tuo saying, "Quick, quick." Your voice was getting louder. Ms Tuo was not sure what the object was that you had or whether it was a proper gun. However, she thought it was something that could shoot her. A photograph of that object was tendered (Exhibit B). From the shape and colour of it, I can understand her fear that it was a real gun, albeit, it was not.
9 Mr Bai, her husband was watching television in the rear part of the building and heard yelling. He went to the door of the milk bar and you pointed the black metal object at him. You continued yelling at both Ms Tuo and Mr Bai, however, he could not understand what was being said as he does not speak English.
10 You told Mr Bai to "get back" and pointed the black metal object at Ms Tuo, making further demands for money and cigarettes.
11 Ms Tuo gave you a loose packet of GPS red cigarettes, being a packet belonging to her husband, which contained a few loose cigarettes.
12 You demanded, "I want money, give me the money." Ms Tuo then gave you $80.
13 Mr Bai grabbed a cricket bat from behind the door and said to his wife that it was a fake gun and not to be scared.
14 Mr Bai ran at you and attempted to hit you with the bat but you moved out of the way. He tried to hit you again. However, you ran out of the shop. Mr Bai went into the house and his son helped to call police.
15 You ran away from the premises towards Ern Barker Reserve, where you dumped a black wheel brace which you had used as an imitation firearm, under a bush in the Reserve.
16 You then jumped into the back yard of 93 Saffron Drive, continuing to jump fences until you reached 99 Saffron Drive. You left your jumper and gloves behind a shed, then walked out of the driveway, where you were seen by police and arrested.
17 You were cooperative with police at the scene and showed the police where you had left your jumper and gloves, although you denied having any weapon.
18 I discussed with your counsel that the beanie was not retrieved despite your recent instructions that prior to leaving your friend’s house and going to the milk bar, you took both the beanie and the weapon.
19 Police searched you and found a packet of cigarettes which contained four loose cigarettes and $85 in cash. You told them you had run from the milk bar. During a line search, the wheel brace was located. At the scene you denied you had a weapon. It follows from that, you likely did not direct police to that wheel brace.
20 On that same day, within approximately one hour and 45 minutes of the armed robbery, you were interviewed at Narre Warren police station. You said you had gone to the milk bar and asked to buy a packet of cigarettes from the female attendant but she had asked for identification, which you did not have. You said she then told you to "go away". You saw a packet of cigarettes on the counter, grabbed them and ran away.
21 You said you were angry because Ms Tuo would not sell you cigarettes. You then said, "something that I’m not proud of happened", referring to you stealing the cigarettes off the counter.
22 You said you were aggressive and swearing when you took the cigarettes. You said a man threw a hockey stick at you but it did not hit you. At question 49, you denied having a weapon and, of course, to answer "no comment" in relation to a number of questions put to you was, of course, your right.
23 On 20 July 2015, you were arrested and remanded on unrelated matters and were in custody until 4 August 2015, that is 16 days.
24 You were sentenced on 5 August 2015 for the unrelated matters. However, the sixteen days was not declared in relation to that sentence. These can be taken into account, and I do, but not as pre-sentence detention pursuant to s.18 of the Sentencing Act 1991, rather consistent with principles in R v Renzella[1]. Where s.18 does not apply, the common law may allow such time to be generally taken into account in a fixing of the sentence. This occurs where justice requires the court to credit the offender for time spent in custody. The amount to be credited is not, however, a mathematical exercise and no specific words are required.
[1] [1999] VSCA 85
25 Following your failing to appear for your plea hearing on 20 July 2016, you were arrested and remanded in custody on 7 October and had, as at your plea hearing, served a total of 62 days by way of pre-sentence detention, i.e., s.18 declaration, for this offence before me.
26 There are a number of aggravating features of your offending. There was a degree of planning and preparation. You took the weapon and beanie with you to the milk bar. Your recent instructions were that you had been at a friend’s place smoking ice shortly before you went to the milk bar. Mr Leslie, quite properly, did not rely upon your ice use as mitigatory of sentence. You also wore a disguise, specifically a beanie (like a balaclava) with two holes for the eyes which you pulled down over your face. You also wore a hoodie in an attempt to disguise your appearance.
27 The victim of your offending has suffered considerably and I shall return to pass some remarks on that subject shortly.
28 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so.
29
In that regard, I turn to the chronology contained within Exhibit A. On
22 May 2015, you were arrested and interviewed regarding the armed robbery. You failed to attend court on 26 May 2015 and a warrant was issued for your arrest. On 1 July you were arrested and bailed to another filing hearing on
9 July 2015.
30 On 6 October 2015, at a committal case conference, the matter was adjourned to enable you to obtain representation and then on 10 November 2015 at a further committal case conference, you failed to appear, and a warrant was issued. As a result, you were arrested, then bailed on 18 November 2015.
31 On 8 December 2015, a committal case conference was again adjourned for you to obtain representation. On 7 January 2016 at a committal case conference, the matter finally resolved.
32
Your matter was listed for a plea hearing on 14 April 2016. However, you failed to appear. A warrant was issued and executed on 27 April 2016. On
20 July, you failed to appear at your plea hearing and a warrant was issued, subsequently executed on 7 October 2016, at which time you were remanded.
33 Quite simply, any delay in this matter being finalised falls squarely at your feet.
34 You have ultimately pleaded guilty to these charges, as I have said, and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial and, in particular, I refer to Ms Tuo and Mr Bai.
35 As the chronology to which I have just referred indicates, however, your plea of guilty was not at an early stage. It could arguably have occurred much earlier if you had attended Court at the appropriate times with legal representation. But you have, however, ultimately pleaded guilty and that is a matter I do take into account in mitigation of your sentence. In the circumstances, I accept that your plea is of guilty, indicates some remorse for your offending. However, I am concerned by the progress of this matter to date and your numerous fails to appear at various hearings where this matter could have been resolved.
36 I also note that whilst you were quickly apprehended, you did not readily admit your involvement in the armed robbery, specifically denying a weapon. Beyond your pleas of guilty, I find little evidence of remorse, although note you have recently expressed concern for your effects upon the victim upon reading her victim impact statement.
37 You do not have any prior criminal history. You do, however, have a subsequent court appearance which causes me concern regarding your rehabilitation prospects.
38 You appeared at Dandenong Magistrates’ Court on 5 August 2015 on charges of burglary, theft, five charges of obtaining property by deception and committing an indictable offence whilst on bail. Those offences were committed on 7 July 2015 and the possess cannabis charge, 20 July 2015. The offending on 7 July 2015 occurred just seven days after you were arrested and bailed on these offences before me on 1 July 2015.
39
For that offending you were placed on a community correction order for
12 months with therapeutic conditions attached.
40 I was told that there is a breach hearing relevant to that community correction order listed for 12 January 2017. I, of course, am not sentencing you for that breach.
41 When assessing your rehabilitation prospects and remorse for this offending before me, I am concerned, however, by your offending so soon after being arrested and bailed on 1 July 2015.
42 I was told something of your personal history and circumstances by your counsel, Mr Leslie, who also prepared a written outline of submissions for your plea hearing and addressed them during the course of it.
43 By way of background, you were born in Somalia and moved to Ethiopia when you were seven. From there, you moved to New Zealand as a refugee, coming to Australia in 2011.
44 You have six siblings, I gather, two brothers and four sisters. In court, were some of your family members to support you at your plea hearing. Your father died when you were in your final year of secondary school in 2009 when in New Zealand. While you said you were not a great student due to difficulties with reading and writing, you had begun but did not complete, a travel and tourism course.
45 In 2010 you were told by your ex-girlfriend’s mother you were a father of a then two year-old boy, Nathan. Your brother, who lives in New Zealand, eventually took custody of Nathan, who is now 8 years of age. You enjoy a good relationship with your son it seems, despite the physical distance between you.
46 You are married to Miska, who you met in Somalia in 2012. You went to Somalia for two months in 2012, then went with her to Malaysia for one month. Since then you went back and forward to Malaysia until she came to Australia in 2015.
47 As I discussed with Mr Leslie, at the most you had been in Australia just approximately three and a half years prior to the commission of the armed robbery.
48 Prior to coming to Australia, you had employment for a time at McDonalds. In Australia you worked at Domino’s Pizza in Lyndhurst for approximately four months over the summer period, which was the contracted period and otherwise was helping your mother around the house.
49 Mr Leslie conceded your offending was serious and that there was the need for specific and general deterrence, as well as denunciation when sentencing you.
50 Mr Leslie urged that you were still relatively young at 26 and that your rehabilitation should be a significant consideration, although he acknowledged your subsequent offending and circumstances of it would impact upon that assessment. I, of course, again note your lack of prior history since you have been in Australia.
51 While Mr Leslie conceded an immediate term of imprisonment was appropriate for your offending, he submitted such a disposition could also incorporate a community correction order. I discussed this with Mr Leslie who had, it seems, not been fully aware of the history of your corrections order.
52 As I stated in court, if I considered a community corrections order to be the appropriate disposition, I would order same. The issue for me is whether such a disposition, either on its own or in combination with a term of imprisonment, would appropriately reflect all sentencing considerations.
53 Mr Leslie urged that I obtain a Forensicare report. In my opinion, I would not be assisted by such a report, pursuant to s.8 of the Sentencing Act, and I declined to order same.
54 There was a victim impact statement before me from Ms Tuo. It is clear your victim has suffered considerably as a result of your offending.
55 She described the adverse emotional effects of your offending which has caused her “deep anxiety”. She gets nervous when she thinks about what happened to her and hearing other relevant news stories.
56 Her anxiety increases when she sees people of a darker skin colour. She prefers to stay inside her house as opposed to walking on the street as she is in fear. When she works at the shop, every time the door entry alarm sounds, she gets nervous. As a result of your offending, she has attended a psychologist twice. However, she described that as not being very effective.
57 She believed there had been a financial impact of your offending.
58 Turning to the social impact of your offending, she felt that wherever she went she was not fully safe. At times, it made it hard for her to sleep. She always worried about whether or not doors were locked.
59 A number of authorities have referred to the effects upon a victim of offending, including DPP v Toomey[2], with reference to DPP v DJK[3]. Of course, I note they are very different charges involved in that offending to yours.
[2] [2006] VSCA 90
[3] (2003) VSCA 109
60 The effect upon a victim is a relevant sentencing consideration (see s.5, Sentencing Act 1991). But I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
61 Turning to your rehabilitation prospects, I have at best, guarded optimism. You have not been in Australia very long before you committed the serious offence before me. You had also used ice prior to this offending. Your offending occurred, it seems, whilst you had family support.
62 Further, you committed serious offences on 7 July 2016, shortly after being arrested and bailed on 1 July 2016.
63 Again, I note, regarding rehabilitation; there is nothing before me to suggest your rehabilitation prospects are good but in fixing an appropriate sentence, I must seek to maximise your chances of your rehabilitation as they may be.
64 Your counsel, as I said, urged to a disposition which would result in a term of imprisonment with a community correction order. In that regard, Mr Leslie was referring to the decision of Boulton & Ors v R[4]. I am mindful of the decision of that case and of the authorities and subsequent pronouncements by the Court of Appeal relevant to those principles. A community correction order has both a punitive and rehabilitative aspect to it and, in Boulton, sentencing judges were urged to “rethink the conventional wisdom about whether prison is really the only option”.
[4][2014] VSCA 342
65 Community corrections orders have been referred to and addressed, as I have said, in a number of cases since, including DPP v Maxfield[5], Alam v R[6], Marocchini v R[7] and Hutchinson v R[8]. Of course, I am mindful of the differing offending in those cases from yours and again, most recently, in Gul v R[9].
[5][2015] VSCA 95
[6][2015] VSCA 48
[7][2015] VSCA 29
[8][2015] VSCA 115
[9] [2016] VSCA 82
66 I did not, however, understand Boulton to remove the requirement that a sentencing judge must take into account all of s.5 of the Sentencing Act 1991. Nor did I understand Boulton to mean that the sentencing principles stated by the Court of Appeal and other courts relevant to this type of offending, specifically armed robbery, now amounted to nought.
67 Nor did I understand Boulton to remove the instinctive synthesis when sentencing.
68 I also did not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to the charge of armed robbery and failing to appear on bail. Further, I note Priest JA observes in Hutchinson that:
“… it should not be thought that Boulton offers a ‘get out of jail free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed.” [17]
69 Mr Leslie referred to Mackay v R[10] and Clement v R[11]. However, an analysis of those decision reveals significant differences between those cases and yours. In Mackay, the plea of guilty was at the earliest opportunity without the chronology like yours. The appellant made full and frank admissions at the earliest stage, he gave sworn evidence before the sentencing judge and wrote a personal apology to the staff involved, he had a very good work record, a number of impressive references and testimonials were tendered, he completed the CISP program and had significant attempts towards rehabilitation.
[10] (2015) VSCA 125
[11] (2014) VSCA 342
70
In Boulton, specifically the appeal regarding Clements, that involved issues of parity with a predominant discussion in that case of the length of the community correction order which was, in that case, ten years imposed prior to the appeal. The appellant in Clements was 18 years of age at the time of the offending and the court accepted, was under the "bad influence" of his brother and friend.
R v Mills[12]was also applicable. There are significant differences in both those case from yours.
[12] (1998) 4 VR 235
71 As I discussed with Mr Leslie, it is difficult comparing cases as facts vary enormously case to case, as do matters in mitigation of the offending and personal to an offender.
72 Further, whilst sentencing statistics are also helpful there are limitations to their use also.
73 I briefly also discussed with Mr Leslie, current sentencing practices referable to the decision of The Queen v Kilic[13]
[13] [2016] HCA 48
74 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, as I find them to be, I must also take into account matters such as general deterrence, which is of considerable importance in a case such as this. In particular, regarding the offence of armed robbery involving soft targets, the Court of Appeal has repeatedly referred to the seriousness of such offending. The victims of such offending are going about their normal daily business and are confronted with an armed offender whilst at their place of employment.
75 There is also the need for specific deterrence when sentencing you also. You have only been in Australia since 2011 and your offending occurred within just approximately three and a half years of your arrival. Further, your subsequent offending concerns me, relevant to rehabilitation prospects.
76 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending. I am concerned about the need to protect members of the community from you, given the nature of this offending and reaping such a small reward, specifically some cigarettes and a small amount of cash and I also note your drug use at the time.
77 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
78 Ms Bhai, who appeared on behalf of the prosecution, submitted the sentence urged by Mr Leslie was not appropriate. The prosecution submitted the appropriate sentence was a term of imprisonment with a non-parole period.
79 She urged this was serious offending involving a soft target. Whilst you had a wheel brace, it is clear the victim thought you had a gun and feared you would shoot her.
80 There was, she submitted, a degree of planning, taking the wheel brace and beanie to hide your identification, the latter to hide your identification.
81 Ms Bhai submitted there was limited evidence of remorse. The only evidence of that being your plea of guilty, however, that it was only recently you admitted the armed robbery and until then, you had acknowledged, however, the cigarettes.
82 Ms Bhai submitted regarding your rehabilitation prospects, you had spent 16 days in custody but were then placed on a community corrections order and had breached that. I note I do not have formal details of any breaches of the community corrections order and I repeat, I am not sentencing you for breaching that order. That will be, do doubt, at another time and another place.
83 Ms Bhai referred to Parker[14] that ice use is not mitigatory and I note Mr Leslie did not submit it was. However, the effects of ice use can exacerbate the fear of the victim and citing from paragraph 53:
“The aggressive and erratic behaviour of an offender suffering from the effects of a drug as dangerous as that are well known, and only too likely to exacerbate the ordeal experienced by any victim.”
[14] (2009) VSCA 19 [53]
84 She urged the need for general and specific deterrence, denunciation and just punishment.
85 I have carefully considered the submissions made by your counsel that a term of imprisonment, together with a community corrections order, would be the appropriate disposition.
86 In my opinion, to impose the sentence urged by Mr Leslie would not adequately or appropriately reflect all relevant sentencing considerations, including the gravity of your offending, also taking into account all matters in mitigation of your sentence and personal to you.
87 I therefore sentence you as follows.
88 On Charge 1, armed robbery, you are convicted and sentenced to three years' and 6 months’ imprisonment.
89 Turning to summary Charge 4, you are convicted and sentenced to two months’ imprisonment.
90 On summary Charge 5, you are convicted and sentenced to four months’ imprisonment.
91 Charge 1 is the base sentence, that is the armed robbery sentence, and I direct that one month of summary Charge 4 and two months of summary Charge 5 be served cumulatively upon Charge 1 on the indictment.
92 For clarity, the orders for cumulation are upon each other and upon the base sentence.
93 That results in a total effective sentence of three years and nine months’ imprisonment and I direct that you serve a period of two years before you are eligible for parole.
94 Pursuant to s.18(4), Sentencing Act, I declare you have spent 70 days in custody, up to and including yesterday, 15 December 2016, by way of pre-sentence detention for this offending. I note that you have also spent 16 days in custody, which is effectively dead time and I declare seven days of that be in addition to the 70 days previously declared under s.18, that is a total of 77 days will be declared in essence as pre-sentence detention in those two forms. I hope that is clear.
95 Turning to s.6AAA of the Sentencing Act 1991, had you pleaded not guilty to those three charges and been found guilty of them - so if you had pleaded not guilty and a jury found you guilty of them, I would have sentenced you to a term of imprisonment of six years with a non-parole period of four years and six months.
96 The prosecution made application for a disposal and forfeiture order. This was not opposed by counsel on your behalf and I make the order in the terms sought.
97 Were there any other orders sought?
98 MR FOSTER: No, Your Honour, no other orders sought.
99 HER HONOUR: No, I do not believe so.
100 It was just the matter of the original victim impact statement which I have not got with me, I would like to provide to Your Honour's associate today
101 HER HONOUR: Yes, so that was to replace the copy?
102 MR FOSTER: Yes, that is right.
103 HER HONOUR: If you have it, that would be great, we should - - -
104 MR FOSTER: If I could provide it to Your Honour's associate.
105 HER HONOUR: Yes, that is fine, that is fine, no reason why not. All right, as long as it is identical, that is fine.
106 MR FOSTER: Yes, Your Honour, yes.
107 HER HONOUR: Now, everyone happy with the maths? I mean, when I - I will rephrased that, have you got the maths correct?
108 MR LESLIE: Yes.
109 MR FOSTER: Yes, Your Honour.
110 HER HONOUR: All right, so you understand that. PSD, is that correct?
111 MR FOSTER: Yes, Your Honour.
112 HER HONOUR: That is the 70 days, s.18 plus seven, total, 77 to be declared, is that clear?
113 MR FOSTER: Yes, Your Honour.
114 HER HONOUR: All right, excellent. All right, is there anything further?
115 MR FOSTER: Nothing further from me, Your Honour.
116 HER HONOUR: All right, thank you very much. Thank you, Mr Abdi, can you go out the door there, please? Thank you. Thank you both.
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