Director of Public Prosecutions v Abdi
[2016] VCC 399
•5 April 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -15-02233
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TUMSA ABDI |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 April 2016 |
| DATE OF SENTENCE: | 5 April 2016 |
| CASE MAY BE CITED AS: | DPP v Abdi |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 399 |
REASONS FOR SENTENCE
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Legislation Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Zebrowski | Office of Public Prosecutions |
| For the Offender | Mr I. Barker |
Pages 1 - 15
HIS HONOUR:
1Tumsa Abdi, today you pleaded guilty to the following charges.
2Charge 1, trafficking a drug of dependence, this drug was heroin. The maximum penalty for that charge is 15 years' imprisonment.
3Charge 2, trafficking in a drug of dependence, this drug was methylamphetamine. The maximum penalty for that was 15 years' imprisonment.
4Charge 3, trafficking in a drug of dependence, this drug was cannabis. The maximum penalty is 15 years' imprisonment.
5Charge 4, cultivate cannabis. The maximum penalty is 15 years' imprisonment.
6Charge 5, prohibited person in possession of a firearm. The maximum penalty for that is ten years' imprisonment.
7Charge 6, prohibited person in possession of a firearm. The maximum penalty for that charge is ten years' imprisonment.
8Charge 7, prohibited person in possession of a firearm. The maximum penalty is ten years' imprisonment.
9Charge 8, prohibited person in possession of a firearm. The maximum penalty is ten years' imprisonment.
10Charge 9, prohibited person in possession of a firearm. The maximum penalty is ten years' imprisonment and
11Charge 10, burglary which the maximum penalty for that is ten years' imprisonment.
12You have also pleaded guilty to three related summary charges. There are two separate charges of possess ammunition. The maximum penalty for those charges is 40 penalty units in each case.
13There is a further charge of possess a prohibited weapon and in this case it was a credit card pocket knife. The maximum penalty for that charge is two years' imprisonment.
CIRCUMSTANCES OF OFFENDING14I now turn to the circumstances of your offending. The prosecution opening in this case is Exhibit A and I will not fully detail your offending but give you my summary of it. The police investigation named Operation Leisuresuit was commenced in December 2014. You, Mr Abdi, were identified as a person of interest in relation to the trafficking of drugs and firearms:
15In the Heidelberg Magistrates' Court on 9 December 2014 and later confirmed on 31 December 2014 an order under the Family Violence Protection Act was made against you. This order made you a prohibited person for the purposes of the Firearms Act.
16Charge 1 is a charge of trafficking in a drug of dependence. In this particular charge the drug was heroin. In summary, on 12 separate occasions between 16 January 2015 and 30 April 2015 you sold various amounts of heroin to two separate undercover police officers and later on to unknown drug users. The total of the drugs sold to the undercover police officers was 81.7 grams for a total of $29,950. The total amount to the unknown drug users between 29 April 2015 and 14 June 2015 was 45.5 grams in 29 separate transactions. The total heroin traded by you was 127.2 grams. The purity of the drug varied between 90 per cent and 14 per cent purity.
17Charge 2 is a charge of trafficking in a drug of dependence. In this case it is methylamphetamine. Between 3 May 2015 and 13 May 2015 an analysis of telephone intercepts between you and unknown drug users revealed you have, on two occasions, sold a total of 2.1 grams of methylamphetamine.
18Charge 3 is a charge of trafficking a drug of dependence, which is cannabis. On 13 June 2015 a telephone intercept revealed you sold seven grams of cannabis for the sum of $80.
19Charge 4 is a charge of cultivate cannabis. On 30 June 2015 when the police searched your premises they located 13 cannabis plants that were grown in the hydroponic fashion. The total weigh of the plants on that day was 542.3 grams.
20Charges 5, 6, 7, 8 and 9 are the firearms offences. I will revert to the summary. Charge 5, which is a prohibited person in possession of a firearm on 9 February 2015. On 9 February 2015 upon completing a drug transaction which had previously been referred to, you offered a pen pistol for sale to an operative, undercover policeman 290 for $200. Shortly thereafter Operative 290 purchased a black and silver pen pistol from you in exchange for $200. Subsequent ballistic examinations revealed the pen pistol was designed to discharge a .22 calibre cartridge but that it was unable to discharge a cartridge due to the worn firing spring. However replacing that part would have made the firearm operable.
21Charge 6 is a prohibited person in possession of a firearm. On this day it was 18 February 2015. On 18 February 2015 just prior to the drug transaction with Operative 290 you took a large green bag from the boot of your car which contained an under and over shotgun in three pieces and it was wrapped in a purple bed sheet. You then assembled the gun and at the same time as the police operative paid you $1400 for the 3.4 grams of heroin, he paid you a further $1410 for the shotgun. The shotgun was subsequently identified as an “Armed” 28 gauge under and over shotgun serial no.77095600B which had been stolen in the course of a residential burglary in Werribee South on 7 January 2015.
22Charge 7, you were a prohibited person in charge of a firearm on 6 March 2015. This also included the summary offence no.21, which was possession of cartridge ammunition on the same date. On 6 March 2015 Operative 290 contacted you and arranged to meet you at 12 Lily Street in Braybrook. You took Operative 290 to a bedroom and offered him the following items for sale for the sum of $1500 cash:
(1) A sawn off Winchester 12 gauge under and over shotgun;
(2) A silver homemade 12 gauge pen pistol with black tape grip;
(3) A box of Diana 12 gauge shotgun cartridges.
Operative 290 agreed to purchase and exchange the $1500 cash for those items. The shotgun carried a serial number, PK417164 and had been stolen in the course of a residential burglary in Epping on 2 November 2013. The pen pistol was examined by a ballistics expert and identified as being capable of discharging a 12 gauge shotgun cartridge. This is a summary of Charges 7 and 8 and summary offence no.21.
23Charge 9, you were a prohibited person in possession of a firearm on 30 June 2015. These events also included the summary offence 81 which was possession of ammunition and summary charge 84, possession of a prohibited weapon, which is the credit card knife. During the search, police located the following items at your premises:
(1) A sawn-off Lanber under and over 12 gauge shotgun which was loaded with one black cartridge.
(2) A black scion bag containing one 12 gauge shotgun cartridge.
(3) 12 x nine millimetre Luger cartridges.
(4) A pressed seal bag containing 3 x 3 .22 long arm cartridges.
(5) A folding credit card pocket knife.
24You were subsequently conveyed to the Footscray police station for the purposes of a record of interview. Upon arrival at the police station, police identified you had an outstanding warrant and you had your fingerprints taken, or had been taken, and that those fingerprints had been found at the point of entry of a residential burglary on 30 December 2014 at 7 Evelyn Crescent in Sunshine West. That is the burglary charge. A total of the firearm charges involves five separate guns. A total of $3100 was paid to you for those guns. There was also some ammunition for a .22 gun, a 12 gauge shotgun and a 9mm Luger. On 30 June 2015, the day of your arrest, you exercised your right to make a no comment record of interview to police. As I said before, you provided your fingerprints to the police.
PERSONAL CIRCUMSTANCES OF OFFENDER
25I turn to your personal circumstances. You are now 30 years old. You are of Somali background. Your parents left Somalia for Ethiopia at the start of the Somali civil war. At age of three, your family moved to Australia. Your parents are in their 50's and both work. Your father runs a steam cleaning business, Your mother conducts a home based day-care business. You have two younger brothers, aged 27 and 22 respectively. You have a 21 year old sister. None of these members of your family have had any trouble with the law in Australia.
26You were educated at Werribee Islamic College from prep to Year 10. You subsequently attended Footscray City Secondary College for Year 11 and 12. You completed your VCE in 2002. In earlier times you have shown a capacity to engage in work and be a productive member of society. Initially you worked in a fast food outlet at the age of 15. Unfortunately you were introduced to alcohol and cannabis by older workers at that place. This led to conflict with your father in particular and you were kicked out of the family home. Despite this disruption you managed to complete your VCE.
27In later times you have worked in a telemarketer role, K-Mart and Toll IPEC for some 18 months. The fact that you have demonstrated a work ethic and consistently of employment in the past is a positive indicator for rehabilitation for you in the future.
28In 2010 you met your wife, Ayan. You were married in 2013. You have a son, Aadam, who will turn, I think, two or three in November this year. In April 2014 your wife left the family home. The separation - or sometime in 2014 your wife left the family home. The separation was initiated by her due to your drug use and your “party style” life. You ceased all work in November 2014. In December 2014 intervention orders were made against you in respect of your wife and your son. This order makes you a prohibited person for the purposes of the firearms charges.
29You have prior convictions. In November 2011 you were sentenced to two months' suspended sentence for driving whilst disqualified. In October 2011 you were convicted and placed on an adjourned undertaking for 12 months for the charge of burglary and theft. On that occasion you were also dealt with for the possession of cannabis. Subsequently on 15 May 2015 you were convicted of a breach of bail, committing offences whilst on bail, contravening the Family Violence Order and intentionally damaging property. The aggregate sentence was 22 days imprisonment as time already served. You were also placed on an 18 month CCO with 250 hours of community work, orders for rehabilitation for drugs and offender programs.
30Whilst you were on that CCO you have committed the offending in respect of part of Charge 1, Charge 2, Charge 3, Charge 4, Charge 9 and the summary offences 81 and 84 in this case. The rest of your offending in this case occurs whilst you were awaiting the court date on 15 May 2015 at Sunshine Magistrates’ Court.
31The driver of your offending has been drug addiction. You have engaged in poly drug use including alcohol, cannabis, methamphetamine and heroin. You have told Mr Robert Liardi, psychologist, that you have not used drugs intravenously whilst in custody. You have returned negative urine screening to drug use. These two factors are indicators that you can turn your life around from one of ever increasing drug use and addiction.
32Your wife and son, together with your own mother, visit you in prison. You have the support of other family members. They are all here in court today except for your younger sister.
33Your time on remand has been difficult due to the lockdown provisions after the prison riots. You have undertaken courses whilst in prison and completed them. These factors of family support, clean urine tests whilst in custody and completed courses whilst in custody indicate that you have a capacity to turn your life around.
34Your main problems in terms of rehabilitation will be your ability to overcome your drug addiction. As discussed with your counsel the only person who can deal with the drug addiction is you. Your family and wife can support you in dealing with your drug addiction but only you can drive your recovery to sobriety or non-drug status.
35The psychologist, Robert Liardi in his report dated 20 January 2016, which is Exhibit 2 on the plea, concludes that you are an impulsive person. He assesses you as a moderate risk of returning to drug use. His opinion was that you have "a prominence of anti-social personality pathology particularly drug dependence pathology". Mr Liardi notes your previous good employment record is a factor reinforcing your prospects of rehabilitation. I agree with that.
I have noted the references from your wife, your mother, Mr Idrisi, your brother and conclude that you have, in the past, been a respected and contributing member of your family and society.
SENTENCING CONSIDERATIONS36I turn to the sentencing considerations. The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for them and your personal circumstances.
37I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as is possible, that you as an offender are rehabilitated and reintegrated into society.
38I am also required to take into account current sentencing practices when considering your sentence. Your case is different from other cases, as they are form each other. Your case includes three separate areas of offending: drug trafficking, prohibited person in possession of firearms and burglary. Generally each area of offending is interconnected and included in a total of ten charges on the indictment.
39The factor of totality in sentencing you is enlivened in your case. In the case of DPP v Hadara [2013] VSCA 14, the Court of Appeal stated at paragraph 49 as follows:
"When sentences are imposed for numerous offences the sentencing judge should stand back and look at the overall picture and decide whether the total of what would otherwise be an appropriate sentence is fair and reasonable total sentence to impose".
40This is an aspect of the totality principle which, as the High Court said Mills v R, is a recognised principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is particularly described in Thomas, The Principles of Sentencing, as follows:
"The effect of the totality principle is to require a sentencer, who has passed a series of sentences, each properly calculated in relation to the offences for which it is imposed and each properly made consecutive in accordance governing consecutive sentences, to review the aggregate sentence and to consider whether the aggregate is just and appropriate.
The principle has been stated many times in various forms when a number of offences are being dealt with and specific punishment in respect of them are being toted up to make a total. It is always necessary to the court to take a last look at the total and just to see whether it looks wrong.
When cases of multiplicity come before the court the court content itself by doing the arithmetic and pass in sentences which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all of the offences?".
41Just interposing there, that is what I have attempted to do in your case.
42The principle has a wider application than in cases specific to the passage quoted above. As Thomas points out,
"The principle applies to all situations in which an offender may become subject to more than one sentence. Where sentences are posed on different counts in an indictment or on different indictments where the offender is subject to a suspended sentence or probation order where he is already serving a sentence of important or makes appearances in different courts within a short space of time. In all such cases the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive".
43The courts have, for these reasons, shown an aversion to the imposition of crushing sentences except when they are required by statute or are, in exceptional circumstances, otherwise plainly justified. There could, in my opinion, be no justification in imposing a crushing sentence if the only warrant for it was that the motion that where an offender has committed an offence which carries a minimum sentence the minimum must be cumulated in full upon other sentences imposed at the same time.
44In sentencing you I have looked at the overall effect of the sentence which involves incarceration and control in the community under a Community Corrections Order.
45You have pleaded guilty at an early stage in these proceedings. Your plea has the utilitarian value of allowing the orderly and effective administration of justice. There is a certain of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters. Your plea vindicates public confidence in the legal process set up to protect the community. Your plea also is a clear acknowledgment by you that you accept responsibility for your criminal behaviour in this case. Your plea also recognises you are willing to facilitate the course of justice in the community. I also accept your plea of guilty to these charges indicates and demonstrates remorse on your part.
46I accept that you understand your need to be punished for your offending but desire to follow a path of rehabilitation.
47I sentence you to imprisonment on the drug Charges 1 to 4. In respect of Charges 2, 3 and 4, those offences were committed whilst you were on a CCO from the Sunshine Magistrates' Court. This factor aggravates what would otherwise be considered low level offending and calls for some additional punishment.
48In respect of the firearms charges, they are Charges 5, 6, 7 and 8, these charges were committed prior to the imposition of a CCO. Each of these charges involved the sale of a firearms to undercover police officers and are indicative of serious offending. There is no evidence you had sold firearms to people other than these undercover police officers. The accepted evidence is that you made the offer of sale of firearms to the undercover police officers prior to Charge 5. Thereafter you continued further sales to undercover police officers.
49Exhibit D were photographs of the guns concerned. They included sawn-off shotguns, a single shot pen pistol. The fact that you can resource the firearms and sell them when you are a prohibited person is an aggravating feature of your possessing the firearms. The final firearms charge, no.9, is a loaded shotgun at your home when arrested. This charge is made more serious in the context of your drug dealing activities.
50The final charge, 10, is a burglary on private premises. You have a prior conviction for burglary. This offence occurred at a time near the beginning of this series of charges in this set of proceedings.
51Your counsel urged the disposition of a sentence for time served to date combined with a CCO, as in a Community Corrections Order, which ordered you to attend Odyssey House upon your release from custody together with other, I think he described them as “stern measures or conditions”.
52The prosecutor submitted that the combination of your offending with trafficking in drugs and possession of firearms offences, particularly selling them, left no other appropriate sentence than imprisonment with a parole period at its conclusion. The submission was that the term of imprisonment to reflect proper just punishment would be longer than what a combination of a sentence of imprisonment and a CCO could allow.
53Having weighed up all those issues I ordered that you be assessed for a CCO. The basis for doing so was the prospect of your rehabilitation calls for you to be given a chance to prove to yourself, your family and the community that you can turn your life around. A CCO can allow you to be supervised in the community and receive some direct assistance in drug rehabilitation to increase your chances of rehabilitation. That ultimately will result in the protection of the community. The CCO report is positive for you.
54Your offending does call for just punishment and imprisonment will act as a specific deterrent to you and a general deterrent to those who think to act as you have in the past. Drugs and firearms are a potent and dangerous combination which erode our peaceful society. Would you stand please.
55In respect of Charge 1 you are convicted and sentenced to six months' imprisonment. That is the base sentence.
56In respect of Charge 2, you are convicted and sentenced to two months imprisonment.
57In respect of Charge 3 you are convicted and sentenced to two months' imprisonment.
58In respect of Charge 4 you are convicted and sentenced to two months' imprisonment.
59In respect of charge 5 you are convicted and sentenced to six months' imprisonment.
60In respect of Charge 6 you are convicted and sentenced to six months' imprisonment.
61In respect of Charge 7 you are convicted and sentenced to six month's imprisonment.
62In respect of Charge 8 you are convicted and sentenced to six months' imprisonment.
63In respect of Charge 9 you are convicted and sentenced to four months' imprisonment.
64I will now deal with the cumulation. As I say Charge 1 is the base sentence. In respect of Charge 2, one month of that sentence is to cumulated. In respect of Charge 3, one month of that is to be cumulated. In respect of Charge 4, one month of that sentence is to be cumulated. In respect of Charge 5, three months of that sentence is to be cumulated. In respect of Charge 6, three months of that sentence is to be cumulated. In respect of Charge 7, three months of that sentence is to be cumulated. In respect of Charge 8, three months of that sentence is to be cumulated. In respect of Charge 9, two months of that sentence is to be cumulated.
65That is a total effective sentence of 23 months imprisonment.
66On Charge 10, you are convicted and ordered to serve a Community Corrections Order for a period of two years with the conditions of supervision, drug rehabilitation, alcohol rehabilitation and offender reduction programs.
67In respect of summary Charge 21, that is the possession of ammunition, you are convicted and fined $200.
68In respect of Charge 81, the possession of ammunition, you are convicted and fined $200.
69In respect of summary Charge 84, which is the prohibition of the weapon, the credit card knife, you are convicted and sentenced to one month imprisonment. Such sentence is to be served concurrently with all the other sentences.
70As I say your total effective sentence is 23 months imprisonment together with a two year CCO upon release from prison.
71But for your plea of guilty, s.6AAA, I would have sentenced you to four and a half years imprisonment with a minimum term of three years before you are eligible for parole. I declare that you have served 280 days of pre-sentence detention which is to be deducted administratively from your sentence of 23 months.
72I have also signed the disposition, forfeiture and section 464ZF orders. In respect of the section 464ZF order, I just want to inform you that the authorities have the power to, if necessary, to take a swab from inside your mouth with reasonable force if you do not cooperate. Simply put, if you cooperate, that's the end of it. They could just take their swab and that is it. Do you understand that? Thank you.
73MR BARKER: As Your Honour pleases.
74HIS HONOUR: Is that ‑ ‑ ‑
75MR BARKER: As Your Honour pleases. There's two things,
Your Honour. Firstly I didn't catch the fine in respect of Summary Charge 21.76HIS HONOUR: Twenty-one is - they're $200 for both of them. So it's $200.
77MR BARKER: Thank you, sir. The other thing, Your Honour, and for the purposes of the transcript and my client, you referred towards the end of your sentencing remarks to Exhibit D.
78HIS HONOUR: Yes.
79MR BARKER: They were photographs.
80HIS HONOUR: Thank you.
81MR BARKER: And, Your Honour, they were provided by the Crown, sighted by me and tendered by consent.
82HIS HONOUR: Yes thank you. That's right. I think that covers that issue, yes. Yes now there's one piece of administrative work has to be done which is the signing of the Community Corrections Order.
83MR BARKER: Indeed. May I approach my client, Your Honour, before it happens ‑ ‑ ‑
84HIS HONOUR: Certainly. Certainly, Mr Barker.
85MR BARKER: ‑ ‑ ‑ and I'll take my pen with me for your Associate ‑ ‑ ‑
86HIS HONOUR: Yes thank you. Mr Abdi, excuse me, Mr Abdi, I forgot to tell you that you have to attend at the Werribee Office of Corrections Centre. It is on the order, thank you.
87MR BARKER: Thank you very much, Your Honour.
88HIS HONOUR: Thank you. Just before you take the prisoner, Mr Abdi, in terms of your drug rehabilitation, you have done most of the hard yards. By that I mean in custody you have stayed away from it, from what I have been told. Only you know the real answer. As I say you have done the hard yards and if you stay strong over the next 14 months or whatever is left inside and come out and get back to your wife and family, it is best for everyone. Most of all, best for you. I will just get a copy of the CCO ‑ ‑ ‑
89MR BARKER: Thank you, Your Honour.
90HIS HONOUR: Thanks for your help, Mr Barker and Mr Zebrowski.
91MR BARKER: Thank you, Your Honour.
92MR ZEBROWSKI: As Your Honour pleases.
93HIS HONOUR: Remove the prisoner, thanks.
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