Director of Public Prosecutions v Abdi

[2016] VCC 1041

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01067

DIRECTOR OF PUBLIC PROSECUTIONS

v

NIMA ABDI

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 July 2016
CASE MAY BE CITED AS:	DPP v Abdi
MEDIUM NEUTRAL CITATION:	[2016] VCC 1041

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper
For the Accused	Mr D. Stanton

HER HONOUR:

1You can remain seated, Ms Abdi, until I ask you to stand.  Thank you.  Nima Abdi, you have pleaded guilty before me to one charge of theft, one charge of common assault and one charge of possessing a drug of dependence.  The fact scenario underlying your offending is as follows.

2At the time of your offending, you were in a relationship with your co-accused, Mr Omar Youssouf, he living in Carlton and you living in Docklands.  Your victims, Tendai Hwarta and Renske Van Der Heyde were housemates living in an apartment in Docklands which was rented by Hwarta.  You had not previously met Ms Van Der Heyde and you had met Mr Hwarta once.

3At about 11.30 pm on 7 October 2014, the co-accused Youssouf picked you up in Ms Van Der Heyde's car which he had borrowed and drove to the apartment where she and Mr Hwarta lived, entering the building using a fob containing the key to enter the building and the apartment with the key.

4Mr Hwarta and Ms Van Der Heyde were home.  You all sat on the couch and a conversation took place in which Mr Youssouf and Mr Hwarta had a verbal argument and then a physical altercation.  During this, Ms Van Der Heyde was telling Youssouf and Hwarta to calm down and whilst this was occurring, you body slammed Ms Van Der Heyde, the two of you ending up on the floor and you began to pull Ms Van Der Heyde's hair.  These actions underlie Charge 2 on the indictment in relation to you, that is common law assault.

5You asked Ms Van Der Heyde whether she was in a sexual relationship with Youssouf which Ms Van Der Heyde denied.  Mr Hwarta then took Mr Youssouf to Ms Van Der Heyde's bedroom to talk calmly saying that Ms Van Der Heyde had taken money and that he wanted Mr Hwarta to organise its repayment.  You pulled Ms Van Der Heyde into the bedroom where Mr Hwarta told her to give Mr Youssouf the money and then he and Mr Youssouf went back into the lounge room.

6You then took a black and white bag belong to Ms Vanderhyde.  You asked Mr Hwarta if he used internet banking and Mr Youssouf demanded that Mr Hwarta log onto his bank account with his phone.  You then took Mr Hwarta's mobile phone, demanding Mr Hwarta give the pin number to access his accounts, Mr Hwarta eventually giving that information.

7You used Mr Hwarta's mobile phone to transfer $1300 from his savings account to his access account.  Mr Hwarta gave you his bankcard and disclosed his PIN.  You then left the apartment while Mr Youssouf remained with Mr Hwarta and with Ms Van Der Heyde's. 

8You walked to a nearby ATM and tried to make a withdrawal from Mr Hwarta's account with his card.  The ATM was not working so you took Ms Van Der Heyde's car and drove to another ATM where you withdrew $1000 from Mr Hwarta's account.  This was the maximum amount that could be drawn by the ATM. Your actions in that regard underlie Charge 4 on the indictment, theft.

9You then returned to the apartment about 30 minutes after you left.  You and Mr Youssouf then left, Mr Youssouf telling Ms Van Der Heyde he would return her car.  The two of you left the apartment at which time you were carrying Ms Van Der Heyde's bag which is also part of Charge 4 on the indictment, theft.

10As a result of the assault, Ms Van Der Heyde had a cut lip, bruising around an eye and sore ribs.  Police were called shortly after the two of you left.  Police executed a search warrant at your apartment in Docklands on 8 October where they found $2850 upon Mr Youssouf making up the monies that had been taken and also found .01 gram of methamphetamine crystal, that is ice, in a Ziploc bag in your purse.  That finding underlies Charge 5 on the indictment, possessing a drug of dependence.

11Police also executed a search warrant the next day on your residence where they found Ms Van Der Heyde's black and white bag.  In a record of interview with police, you said that that night you were going to hand out with Hwarta at his apartment.  You had not met Ms Van Der Heydebefore.  That there was an ice pipe at the apartment and ice on the table and that Ms Van Der Heydewas using the pipe.

12You told police that Mr Youssouf had spoken with Mr Hwarta about money that was owed to him.  You said there had been a scuffle between yourself and Ms Van Der Heyde.  You said that she was much smaller than you.  You agreed that you had gone to the ATM and withdrawn the money which you gave to Youssouf.  You denied stealing the bag which you said you picked it up but you did not steal it because it had Omar's clothes in it and you said you had inherited the ice in your bag, it was for personal use, that you had only started smoking recently and did not smoke often.

13This matter proceeded of course by way of trial with you and Mr Youssouf facing much more serious charges than those which are ultimately dealt with by the court today.  A contested committal was heard.  Eventually the matter was resolved by way of a plea on 27 April 2016 which was accepted by the Crown the next day.

14I now turn to your personal circumstances.  You are now 28 years of age.  You have one prior criminal matter comprising a shoplifting charge which was dealt with in 2010 and for which you were placed on a six months' good behaviour bond.  Your counsel informed me that apart from this offending, there has been no other offending by you since that time or since this offending and there are no outstanding matters.

15You were born in Mogadishu in Somalia.  You have two brothers and a sister.  Your family fled Somalia in the civil war when they went to Kenya living in a camp, emigrating to New Zealand as refugees in 1990, settling in Christchurch.

16Your parents separated when you were in your teens.  You completed the equivalent of Year 12 in New Zealand and completed a Bachelor of Arts majoring in sociology after leaving school.  Your parents having separated, your mother came to Australia in about 2003, you coming with her at which time you completed your Year 12 going back to New Zealand to undertake your degree.

17After completing your degree you returned to Australia and were employed in 2009 when you returned to Australia, first at the ANZ's credit card collection team where you worked for about a year and then moved to Telstra in October 2010 where you worked on and off essentially up until 2015 when you were made redundant.

18At Telstra, you worked as a complaints case manager, then were promoted to their specialist complaints team which handled high level complaints, becoming a team leader in 2012 where you managed a team of about 15 people.  You moved out of home and rented an apartment in Docklands and in 2013 travelled around Europe for about three months, on your return discovering that some of your friends had started using ice.  You began using on a casual basis and then it began to take over your life.

19You began struggling at work and you took a three month break to try and sort yourself out.  You went to Sydney where your mother had moved but then returned to Melbourne and according to your counsel, things then went downhill.  You began a relationship with Mr Youssouf and continued to use methamphetamine, (and I notice that he seems to have had a bit of a problem with ice as well,) and had been dating him for about a year before this incident in October 2014.

20You sought some assistance through the Telstra's employee assistance scheme starting to seek counselling and support from a psychologist and in 2014 were prescribed antidepressants by your GP in Footscray and you were on that medication at the time of the offending but it did not seem to be assisting you.

21Since your arrest, you have tried to turn your life around.  It certainly appears that you have not been in any further trouble, and I note that you were in custody for about four days which undoubtedly would have been a horrible experience for you.  You regularly attend your mosque in North Melbourne and you were made redundant from your job in November 2015 but have since obtained work at a family day care centre, at first on a part time and now on a full time basis doing administrative work.  I note that you earn about $1600 a fortnight and still live in rental accommodation.

22I received a reference from your friend Jay Papalia who travelled with you.  She works at Telstra and she spoke of what she said was a very creditable career in Telstra.

23HER HONOUR:  She has known you for about five years. She stated:

"Nima and I have had lengthy and honest discussions about all of the problems she is currently facing, including the possession charge, theft and assault and although it makes me sad to hear about Nima's trouble with the law, we both feel that this is a timely intervention and it has given her the opportunity to really look at the direction her life has taken and has served as a wakeup call."

24She notes that you have taken a number of steps to change your life including changing your friendship circle:

"She has fully cleaned up her act and is sober and back at work and we plan to take another holiday when this is all over."

25You have apparently the support of your family and friends and also it appears your church.  I also received a reference from Mr Ali Bashi Mohammed who works at the Australian Muslim Social Services Agency stating that he has known you for about four years and has had numerous dealings with you at your mosque.  You have told him about the offending but he said he describes you as a person of good character.  He talks about your background and he also in particular talks about how in January of this year, you established the African Youth Advocacy Network which he describes as:

"A grass roots community organisation committed to mental health advocacy for marginalised people in our community, especially targeting youth aged between 12 to 25 to remove stigma, break down barriers and ensure they receive access to mainstream mental health services."

26Your counsel explained to me that it can be particularly difficult for people who come from various African countries talking about mental health difficulties with their family.  It appears you have been able to do that but you are anxious to help others who cannot and this is very much to your credit.

27The offending, as I have said, does appear to be out of character and in the context of ice use which you no longer engage in.  In the circumstances I have had you assessed for a community corrections order for which you have been found suitable and with your permission I propose placing you on that order.

28Now, could you stand up please.  The sentence will be an aggregate one, given that the offending all appeared pretty much to arise out of the same incident.  You would agree with that, Ms Harper?

29MS HARPER:  Yes, Your Honour.

30HER HONOUR:  Thank you.  There are a number of conditions that I have to explain to you.  They are that you must report to Community Corrections within two working days of making this order, that is by Friday.  While you are on the order, you cannot leave Victoria without the permission of the Community Corrections Office.  You must report to and receive visits from the Community Corrections Office.  You must not report to the Community Corrections Office whilst under the influence of drugs or alcohol.  You must not commit another offence whilst you are on the order.  If you do you will be brought back in front of me and I will re-sentence you.

31You must inform the Office of any change of address or employment within 48 hours of the making of that change.  And you must obey all lawful directions of the Community Corrections Office.  I am also going to order that you undergo assessment and treatment for drug use.  All right?

32OFFENDER:  Yes, Your Honour.

33HER HONOUR:  Just to make sure.  Now, because of your background, the nature of the charges, the fact that you have not been in trouble before and because of what seemed to be - you know, you have got a promising future if you wanted, Ms Abdi, you know that perfectly well and I do not want to interfere with your future by giving you a conviction so this will be a non-conviction community corrections order which will last for 12 months.

34OFFENDER:  Thank you, Your Honour.

35HER HONOUR:  Are you prepared to accept this order?

36OFFENDER:  I am.

37HER HONOUR:  Have a seat and I will get the documentation drawn up.  Thank you.

38MS HARPER:  Your Honour, there is also an application for a disposal order in relation to the methylamphetamine seized.

39HER HONOUR:  Yes, that is no problem.  So it is the 20th today, is it?

40MS HARPER:  Yes, Your Honour.

41HER HONOUR:  Thank you.

42MR STANTON:  May I assist Ms Abdi with the forms.

43HER HONOUR:  Yes, of course.  Thank you very much.  Good luck.  Good luck with your organisation, Ms Abdi, I hope it goes really well.

44OFFENDER:  Thank you, Your Honour.

45HER HONOUR:  It sounds very worthwhile.  You would have heard that young man previously.  You must be thinking this is exactly what I'm looking at working with, is that right?

46OFFENDER:  Yes, I was.

47HER HONOUR:  Come out of the dock, that's fine.  I thank counsel for their assistance.

‑ ‑ ‑