Director of Public Prosecutions v Abdilahi
[2022] VCC 925
•7 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01675
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZAKARIA ABDILAHI |
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JUDGE: | HER HONOUR JUDGE BLAIR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 June 2022 |
DATE OF SENTENCE: | 7 June 2022 |
CASE MAY BE CITED AS: | DPP v Abdilahi |
MEDIUM NEUTRAL CITATION: | [2022] VCC 925 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence; Theft; Robbery; Obtaining Property by Deception; Handling Stolen Goods; Possession of a Small Amount of Cannabis; Unsophisticated offending; Victim Impact; Plea of Guilty; Currency of the COVID-19 pandemic; Young Offender; Risk of Deportation; Specific Deterrence
Legislation Cited: Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic); Migration Act 1958 (Cth)
Cases Cited:Worboyes v The Queen 2021 VSCA 169; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43
Sentence: 18 Month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Stougiannis | The Office of Public Prosecutions |
For the Accused | Mr A. Hands | Matthew White & Associates |
HER HONOUR:
1Zakaria Abdilahi, on 2 June 2022, you pleaded guilty to one charge of theft, two charges of robbery, three charges of obtaining property by deception, one charge of handling stolen goods and possession of a small quantity of cannabis. The maximum penalty for robbery and handle stolen goods is 15 years imprisonment, the maximum penalty for theft and obtain property by deception is 10 years' imprisonment, and for the possession of a small amount of cannabis the maximum penalty is five penalty units.
2Your case had been listed for trial, and after pre-trial rulings, you sought a sentence indication on the current charges. Pursuant to s207(1)(a) of the Criminal Procedure Act 2009[1], I indicated that if you were to plead guilty, I would impose a community correction order. I ordered a pre-sentence report as to your suitability for such an order, and you have been assessed as suitable.
[1]Criminal Procedure Act 2009 s207(1)(a).
Circumstances of the offending
3The full circumstances of your offending are set out in the prosecution opening dated 2 June 2022. This was tendered on the plea and marked as Exhibit A. What follows is a summary of that document.
4On 24 October 2019, a black Holden Cruze motor vehicle owned by Alicia Barnes and driven by her boyfriend, Brady Naugle, was parked near the Windsor railway station. Mr. Naugle may have left the keys in the car inadvertently. CCTV footage shows that at about 11.17 pm, four African males entered Vine Street where the car was parked, and moments later, the car was driven out of the area. The CCTV footage does not depict any person entering the vehicle.
5The car remained stolen through until late Monday 28 October 2019. At approximately 10.20 pm on that night, the stolen black Holden Cruze was spotted by police who were in a marked police car. A pursuit was initiated but was called off, as to continue would have been dangerous to the public.
6At about 10.40 pm, the black Holden Cruze collided with another vehicle and came to a stop. The occupants of the car got out and ran away in different directions. Police searched the area but were not able to locate anyone who had been in the vehicle. They did, however, locate a jumper that had DNA consistent with that of your co-accused, Neok Mongrag, on the collar area. Mr Mongrag’s fingerprints were also located on the screen of an Asus laptop that was found in the vehicle.
7The police located your fingerprints and those of your co-offender, Deng Majiok, on the inside and outside of the car. The black Holden Cruze was circumstantially linked to several other robberies and armed robberies.
8Even though the prosecution cannot prove you were the person who took the car, you have pleaded guilty to a theft of the car in circumstances where you have assumed the rights of the owner and have used the motor vehicle without the owner’s consent. And that is Charge 1, I should say.
9At about 8.30 pm on Sunday 27 October 2019, Mr Glenn Kerr was walking along Rupert Street, Footscray, when a dark-coloured sedan pulled up alongside him. A male got out of the vehicle and demanded Mr Kerr hand over his mobile phone. Mr Kerr pushed the male away and in doing so fell to the ground. He was then punched and kicked to his head. A second male approached him, and Mr Kerr then handed over his mobile phone. A demand was made for his wallet, but he did not have one on him. The second male then went through Mr Kerr’s jacket pockets and demanded his car keys, which he handed over.
10Mr Kerr sustained scratches to his hands and elbows. A Samsung mobile phone and house and car keys were taken from him. He later identified you from a photo board as the person who was trying to go through his jacket pockets. And that is Charge 2.
11Also on 27 October 2019, a man named Penghui Wang was the victim of an armed robbery. During this incident, various items were stolen from him including a debit card. You and your co-accused, Mr Mongrag and Mr Majiok, were depicted on CCTV at the 7-Eleven in Brunswick. Without Mr Wang’s authority, the card was used by you to purchase $53.99 worth of cigarettes. And that is Charge 3.
12At 12.28 am, Mr Wang’s card was also used by yourself and Mr Mongrag at the 7-Eleven store in Fitzroy. On this occasion, items valued at $43.14 and $74.99 were obtained. And that is Charge 4.
13Then at 12.50 pm, Mr Mongrag entered La Casa Pizza at 59 Brunswick Street, Fitzroy. He was observed to make three purchases with Mr Wang’s card. These purchases totaled $56, $8 and $4 respectively. You were complicit in this deception. And that is Charge 5.
14At about 9.17 pm on Monday 28 October 2019, Anthony Hogg was walking south on Bellair Street, Kensington. A male of African appearance ran past and snatched his mobile phone from his hand. Mr Hogg chased the male until he reached a group of six other males of African appearance. Mr Hogg demanded his phone back and told you and your co-accused that he had photos of his kids on the phone. He was punched to the mouth, cheek, in the back of the head and nose. Mr Hogg again demanded his phone back, and the assault continued. At one stage, Mr Hogg was told he would be stabbed, but he did not see any weapon. A car pulled up next to you and your co-offenders, and Mr Hogg watched you get in the car and drive off. Mr Hogg noticed his wallet had been ripped out his right-side jean pocket. That is Charge 6.
15On 2 November 2019, you placed a SIM card that was registered in your name into a mobile phone that had been stolen from Mr Zhang during an armed robbery on 27 October 2019. Mr Zhang was in company with Mr Wang, who I have previously mentioned. And that is Charge 7.
16On 29 November 2019, you were arrested by Senior Constable Thompson. You were taken to Melbourne West police station where you were searched. A small quantity of cannabis was found in your left pants pocket. This was seized and had a total weight of 1.36 grams. And that is Charge 8.
Nature and Gravity of offending
17The maximum penalty is an important measure of how seriously parliament and the community view an offence. It is something that I have considered when deciding the penalty I should impose in your case. I must also consider the objective seriousness of the circumstances of your offending.
18The offences of robbery are inherently serious. You, in company with others, targeted individuals on the street at night. You used violence and your numbers to demand and take property from your victims. Both of your victims were assaulted and both suffered the loss of property.
19The theft of motor vehicle was put on the basis that you assumed the rights of owner without consent, not that you were the actual person or one of those who stole the vehicle. However, the vehicle was used in connection with other more serious offending. The deceptions were unsophisticated, and the goods obtained were of a relatively low value. The handle stolen goods charge also involved goods of a relatively modest value. The possession of cannabis was a small amount, presumably possessed for your own use. The offending occurred over a relatively confined period of time.
20Your counsel, Mr. Hands, submitted that your offending was in the midrange in terms of objective seriousness. I accept his categorisation that on the whole your offending falls within the midrange of gravity for offending of this nature.
Victim Impact
21Two victim impact statements were tendered and read to the court this morning. They eloquently convey to the court the extent to which your offending has disrupted and impacted each of these men. I trust that you have listened carefully to what was read out and appreciate the impact of your behaviour.
22Mr. Kerr was the victim of one charge of robbery. He says that your offending and the assault affected him far more than he thought it would. He now avoids walking alone at night and is sensitive to noises around his home, as his keys were stolen. He describes the biggest emotional impact being his loss of faith in strangers.
23Mr. Hogg was also a victim of robbery. He described how he no longer feels safe walking home from work alone. Even three years on, he says that he rarely walks alone at night. He feels paranoid and is very suspicious of groups of people in public. The theft of his phone caused Mr. Hogg financial loss, but the greater loss was a sentimental one, as the phone contained many photographs of his children. There has also been an impact on his partner, who has insisted that she collect him from the train, which means the whole family is put out and must come in the car. You have not only stolen property from these men, but you have also stolen their sense of security.
24I take into account the impact of your offending on both Mr. Kerr and Mr. Hogg when sentencing you. Although such impact cannot overwhelm the sentencing process, there is no doubt that your actions have had a profound and lasting effect upon each of them. It is hoped that your plea and the finalisation of this matter can provide some closure to Mr. Hogg and Mr. Kerr.
Plea of guilty
25I accept that your plea of guilty should be considered an early one. I do so, as you offered to plead guilty to similar charges to those you have now pleaded to in January 2020. This was prior to committal.
26Even though this resolution has come just before trial, I consider in the circumstances there is significant utilitarian benefit in your plea of guilty. The victims did not have to relive what would have been a traumatic experience by giving evidence at trial. You have also spared the court and community from the additional time and expense of what would have been a reasonably lengthy trial.
27In addition, I note what the Court of Appeal recently said in the case of Worboyes v The Queen 2021 VSCA 169 at paragraph 39[2], and that is:
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence'.
[2]Worboyes v The Queen 2021 VSCA 169, 39.
28In these circumstances, I propose to allow a significant discount for your plea of guilty.
Personal circumstances
29You were born in New Zealand in July 2001. You are now 20 years old, soon to turn 21. You were only 18 when you committed the offences before the court.
30Your mother, Hodon Abdilahi, and your father fled war-torn Somalia. They were granted refugee status in New Zealand and settled there for some time. It was whilst your parents were in New Zealand that you were born. Both you and your mother have New Zealand passports. In 2005, your mother separated from your father and moved to Australia 'for better opportunities'. Your mother brought you and your two younger sisters. She came to this country alone with three children under four years of age. There has been no contact with your father since they separated, and his whereabouts are currently not known.
31In 2006, your mum started a new relationship with a man, Abdula Giri. They had three children. Your Mum has since separated from Mr. Giri in 2013 and she has the primary care of all her children. I was told that your relationship with Mr. Giri was positive. I understand your relationship with your mother and siblings is a close one.
32You attended Fitzroy Primary School and then changed to Preston East Primary School. You then attended Reservoir Secondary College. You struggled to fit in and were bullied. You were expelled in Year 9.
33In 2015, your mum took the family back to Africa for a holiday in the hope that you might reconnect with relatives, in particular your maternal extended family. You stayed in Africa with your grandparents after your mother returned to Australia. When you returned to Australia, you enrolled at Collingwood College but only stayed for two months. This was your last engagement with educational programs.
34Your mother gave evidence before me at the sentence indication hearing. I consider her to be an honest witness and a hardworking woman and a loving mother. She told me that you are welcome to come home and that she has some confidence that you understand the seriousness of your situation and have expressed a willingness to change. Currently, she rents an apartment in North Fitzroy and lives there with her five other children, who are aged between 11 and 19 years. Your mother works long hours, seven days per week to provide for you and your sisters and brother. She has planned to give up some of her work hours when you come home so that she can assist you with appointments and so that she can offer you her full support.
Youth
35At the time of the offending, as I said, you were 18 years of old. You are now 20. Accordingly, you fit within the definition of a young offender within the meaning of s3(1) of the Sentencing Act 1991[3]. The principles that apply to the sentencing of young offenders therefore apply in your case. These principles include:
(a)the youth of an offender should be a primary consideration for a sentencing court where the matter properly arises;[4]
(b)young offenders are immature and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;
(c)courts recognise the increased potential for young offenders to be rehabilitated, which is in the public interest; and
(d)incarceration can impair rather than enhance a young offender's prospects of rehabilitation[5].
[3]Sentencing Act 1991 (Vic) s3(1).
[4]R v Mills [1998] 4 VR 235
[5]Azzopardi v The Queen (2011) 35 VR 43, 34.
Deportation
36Mr Abdilahi, you are not an Australian citizen, and your special category class TY, subclass 444 visa has been cancelled. You are therefore very much at risk of deportation. In fact, I understand that upon release from prison, you will be transferred to immigration detention. You are appealing the decision to cancel your visa and are awaiting a date from the Administrative Appeals Tribunal (Migration Division).
37As noted previously, you have lived in Australia since 2005 when you were aged four years. You came to Australia from New Zealand with your mother and two young sisters. You have no family in New Zealand that you are aware of, and you have had no contact with your father since your parents separated. All of your ties and connections are in Australia.
38As discussed at the plea hearing, a sentence of 12 months' imprisonment or more triggers the mandatory cancellation provision of the Migration Act[6] and places you at risk of deportation. You have been sentenced to two terms of imprisonment since your remand on this matter in late November 2019. The first of these was a 100-day sentence imposed on 29 April 2020, and the second a 30-day sentence imposed on 12 October 2020. You have had three months at liberty, having been released on bail briefly in May 2020, but otherwise you have been in custody consistently since 29 November 2019.
[6]Migration Act 1958 (Cth).
39I accept that the prospect of deportation has made your time served in gaol on remand more onerous. I also accept that the deportation, should it occur, would constitute an additional punishment because it would destroy the opportunity for you to settle permanently in this country. The courts have recognised that the impact of deportation may vary depending upon the offender’s circumstances. I consider that in your case the impact will be great. Australia has been your home since 2005 when you arrived here as a young child. . Your mother, four sisters and brother reside in Australia, and these relationships are very important. You have no family or supports in New Zealand. I take into account the likely consequences of the risk of deportation in your case. However, I note that such consequences cannot replace or stand as a proxy for the imposition of an appropriate sentence reflecting the nature and gravity of the offending before a court.
Rehabilitation
40Mr Abdilahi, you have several prior convictions. This offending occurred only a very short time after you were sentenced to a youth supervision order in the Children’s Court. I am hopeful that you have now experienced significant and direct consequences for your offending such that you will think twice before offending in the future. You have a lot to lose if you choose to get into trouble again.
41Since your arrest on 29 November 2019, you have been in adult custody for all but three months. This is a period of 580 days. You have been in custody at a time where custody is more onerous as a result of the COVID-19 pandemic. Quarantine, lockdowns, no visits and limited programs are all commonplace in the current regime. I take this period of time you have served on remand into account when considering the appropriate penalty in your case.
42I received a letter from Emily Hurley who is the campus coordinator at O Street, Parkville College. She writes that you were involved with O Street prior to going into custody, and they have maintained contact with you via regular Zoom visits throughout your remand. O Street staff also regularly communicate with your mother. Ms Hurley says that you have expressed a desire to obtain stable employment when you are released and that the team at O Street are able to help support you to achieve this goal. Further, she describes that you have a strong sense of belonging to the school community, which represents a significant protective factor for you.
43You are a very young man. You have good family support from your mother and this organisation called O Street. You have no mental health conditions. You have been in custody in adult gaol for almost two years. You face the very real risk of deportation. In these circumstances, you have every motivation to remain offence-free in the future.
Sentencing
44I consider that the relevant sentencing principles that must be applied in your case are general deterrence, albeit somewhat moderated as a result of your youth, denunciation and just punishment. I also consider the principles of parsimony and proportionality as part of the sentencing exercise. Given your lengthy time on remand, I do not consider specific deterrence to be an important factor in sentencing.
45I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991[7] where relevant to your case. I have also taken into account as far as possible the current sentencing practices for the offences, particularly the charge of robbery, to which you have pleaded guilty.
[7]Sentencing Act 1991 (Vic) s5.
Disposition
46I have had you assessed for such a community correction order, and you have been found suitable. During the assessment with Corrections, you acknowledged your wrongdoing and were able to identify strategies that would assist you to avoid reoffending in the future. Importantly, you demonstrated that you have given some thought to the impact of your behaviour on the victims of your crimes.
47Mr Abdilahi, on each of the charges - sorry, just one moment - one through to seven, you will be convicted and placed on a community correction order for a period of 18 months.
48The conditions of this community correction order include:
(a)50 hours of unpaid community work over that 18-month period;
(b)assessment and treatment for drug use;
(c)offending behaviour programs;
(d)supervision by the Office of Corrections.
49And I will offset the whole 50 hours of community work against any treatment you undertake, and I do this to provide an incentive for you to participate in counselling and programs to reduce your risk of reoffending.
50In addition to the conditions I have imposed, there are standard conditions to a correction order. The first and foremost of these is that you must not commit any offences during the 18-month period which could be punished by imprisonment. You must also report within two working days of your release from custody to the Neighbourhood Justice Centre Community Corrections Office. You are required to advise your supervising correction officer of any change of address of where you are living and working. This must be done within two clear working days. It is a term of all community correction orders that you must submit to visits as directed and you must obey all the instructions and directions of the corrections officer. You cannot leave the State of Victoria without prior permission.
51Mr Abdilahi, I must tell you that if you breach the order by reoffending or you do not comply with the conditions, you will be charged with a contravention of the order and you will be brought back before me. It may be that I am required to resentence you for the original charges.
52Do you consent to the making of that order, Mr Abdilahi?
53OFFENDER: Yes, ma'am.
54HER HONOUR: All right. Now, in relation to Charge 8, which is the possession of a small amount of cannabis, I intend to convict and discharge you in relation to that matter, all right. So that means, well, there is a penalty involved in the conviction for that, all right.
55Now, because of your current situation and the reality that you will be taken into immigration detention upon your release from custody, I propose to order that the community correction order commences within three months of today’s date or upon your release from detention, whichever occurs first.[8]
[8]The order was amended after the court received advice that Corrections had interpreted release from custody as not including detention. Order now reads that it is to commence on 07 September 2022.
56I indicate pursuant to s6AAA of the Sentencing Act[9] that if not for your plea of guilty, I would have imposed a combination penalty of nine months' imprisonment and a community correction order in the same terms as I have ordered today, all right. So is there anything else?
[9]Sentencing Act 1991 (Vic) s6AAA.
57MR HANDS: No, Your Honour. Your Honour noted on the last occasion if the matter is not dealt with within three months, we may seek to vary the order.
58HER HONOUR: Yes.
59MR HANDS: So perhaps that could be noted on the record.
60HER HONOUR: Yes, it will be now because you have raised it, so I will leave that in the sentencing remarks.
61MR HANDS: Yes, all right, thank you.
62HER HONOUR: Yes.
63MR STOUGIANNIS: There are no other orders sought at this stage, Your Honour.
64HER HONOUR: All right. So Mr Hogg might go through VOCAT, yes. Might have more hope of getting the money, yes, all right, all right. So, Mr Abdilahi, you understand what I have done?
65OFFENDER: Yes.
66HER HONOUR: All right. It might be a little while before you get to start this order, and I hope you do get to start it, and I hope you can apply yourself to it and make some changes, all right. I mean, you have got lots of support there from your mum, you know.
67OFFENDER: Yep.
68HER HONOUR: You have got a good family. They have done it really hard. I know you have probably done it hard too, but, you know, you have got to look out for them. All right?
69OFFENDER: Yep.
70HER HONOUR: So I want you to stay out of trouble.
71OFFENDER: Yes, miss.
72HER HONOUR: It ends now because you will just be back there, and you do not want to go back.
73OFFENDER: No.
74HER HONOUR: It is just a waste of time.
75OFFENDER: Yes, ma'am, yep.
76HER HONOUR: Yes.
77MR HANDS: Thank you, Your Honour.
78HER HONOUR: All right, all right, then. So unless there is anything else, we will adjourn. I think that is it.
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