Director of Public Prosecutions v Abdulhussine

[2022] VCC 763

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-19-01907

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDULAZIZ ABDULHUSSINE

---

JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2022
DATE OF SENTENCE:	26 May 2022
CASE MAY BE CITED AS:	DPP v Abdulhussine
MEDIUM NEUTRAL CITATION:	[2022] VCC 763

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentence

Catchwords:              Sentence indication – Plea – Aggravated burglary – Causing injury intentionally.

Cases Cited:Worboyes v R [2021] VSCA 169.

Sentence:                  Total effective sentence of 22 months’ imprisonment with a 12-month Community Correction Order.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Page	Office of Public Prosecutions
For the Accused	Ms D. Caruso	Leanne Warren and Associates

HIS HONOUR: 

1Mr Abdulhussine, on 8 May 2022 I granted your application for a sentence indication.  The sentence I indicated I would impose was a global sentence of imprisonment for a period of time that you had already served on remand and a community corrections order.  This proposed sentence was supported by the prosecution.  With this indication, you then pleaded guilty on arraignment  to a charge of intentionally causing injury on indictment K11163211.1 and a charge of aggravated burglary and intentionally cause injury on indictment K11163255.1.  Following that arraignment, matters were then adjourned or this case was adjourned to today for the further plea and sentence.  This period of time was needed in order to secure a Justice Plan. 

2However, a significant event has occurred since the arraignment back in March of 2022.  Your circumstances were very complex already at the time of your plea of guilty; however, on 10 April 2022 you were the victim of a shooting while visiting a friend.  You remained an inpatient at the Royal Melbourne Hospital until 27 April 2022.

3Your discharge and early days at home were particularly problematic.  The report of the County Court's Court Integrated Services Program (‘CISP’) coordinator of 25 May 2022 outlines the very significant difficulties you faced and continue to face.  I will do my best to summarise concisely your current difficult circumstances, but on any measure at the moment your circumstances are very unfortunate.  The injuries you sustained as a consequence of the shooting, together with the very considerable disability that has resulted, sees you wheelchair-bound and in addition there is psychiatric trauma which is all relevant now to my sentencing task.  I must out of mercy modify my punishment with respect to a Community Corrections Order (‘CCO’) that I indicated I would impose.  That said, I must aid your rehabilitation with the Justice Plan and CCO that is of sufficient length to enable consolidation of programs via appropriate assistance being provided to you.

4While at present your personal circumstances are or involve significant childhood trauma in war-torn Iraq, your intellectual disability, your complex family circumstances and now your physical disabilities, they are all dominant factors in my sentencing task, but I must not ignore the serious crimes that you committed. 

5The first offending in time was as long ago as 2016; you were just 18.  An associate from your mosque was charged with an assault and a connected intervention order was imposed.  An associate of yours from the mosque had been charged with this assault and he had the intervention order imposed on him as a consequence of that. That is, him assaulting his brother-in-law.  This associate wanted you and another man from the mosque to go to the victim's house to intimidate him into withdrawing his allegations and to assault him.  You went with the other man to the house with weapons.  You broke in and that man was assaulted.  There were facial injuries and a stab to his leg.

6You were arrested and interviewed about a year later in May of 2017.  You initially denied your involvement though a later conversation that your previous lawyer successfully argued as inadmissible actually contained full admissions.  Your DNA was on a baton or weapon left at the scene.  You were granted bail but failed to appear due to your escape interstate following your next offending.  That occurred on 10 March 2018. 

7The day before, on 9 March 2018, two men hatched a plan to steal a motorbike owned by an associate of yours.  The men took the bike following a ruse to buy it after they had done a test ride.  The bike was taken on a test ride and simply not returned.  Your associate asked you to accompany him in seeking out one of the men who stole the motorbike.  That man faces serious charges that have not resolved, thus I will be succinct in my description of the facts. 

8On 10 March 2018, you were with your associate when you two men came to where the victim was.  You men made the allegation that he had stolen the motorbike.  He went to run and was chased by your co-accused or associate and shot in the leg and face.  You were charged and you have pleaded guilty to intentionally cause injury on the basis that you had no intent to cause the serious injuries that were in fact caused by the shooting.  You are not said to have known of the gun or the plan to shoot.

9After this crime you escaped to New South Wales, where you remained until returning to Victoria where you were arrested on 8 May 2019.  You were remanded and remained in custody until granted bail on 5 May 2021, that is almost two years to the day on remand as a young man.  The time available to be declared as pre-sentence detention is 728 days.  Your grant of bail was on to the CISP bail program now available to those awaiting trial in the County Court.  This grant of bail to this program, the CISP program, completely changed the trajectory of your life.  I will endeavour the outline the benefits that you gained from the significant efforts of the CISP workers.  They have continued to advocate for you, indeed, as you struggled after your shooting and your hospital discharge.  Their efforts are highly commended; in fact, I do not think I can express completely how impressed the courts are with the efforts made by the CISP workers in your case.

10However, to put all those matters in context I need first to make clear that your offending on both occasions was serious, more so the first offences involving the home invasion and attack.  The later crime was serious as well, but more because your co-accused engaged in the shooting behaviour.  These crimes of violence and invasion of another man's home to injure must be denounced and a message of deterrence sent.  That is all achieved in my view by the prison sentence that you have already served on remand of just short of two years.

11You were and still are a very young man.  You had no prior convictions.  The extremely long delay was due in part to your solicitor being in my view not able to represent you in a way that moved this case forward sensibly and professionally.  Your new solicitors thankfully resolved this case speedily and favourably to you and to the criminal justice system.  They are to be commended.

12Your plea of guilty in these times when the criminal justice system is in crisis is of significant value, as was made clear in the Court of Appeal decision of Worboyes[1].  This benefit of your plea of guilty must be seen in practical terms by the imposition in this case of a sentence not just of less imprisonment but a sentence of a different kind.  As I have emphasised, you are still young, now 22, and as is clear were only 18 and 19 at the time of this offending.  Your rehabilitation therefore is a most important sentencing purpose.  That can be best facilitated by a CCO rather than a return to adult gaol beyond what you have already done.

[1] Worboyes v R [2021] VSCA 169.

13As referred to briefly, your personal circumstances are replete with traumatic experiences and difficulties.  Your early childhood was in the chaos of the war in Iraq.  You saw and experienced significant violence of bombings and deaths of relatives and others civilians.  In amongst that, your mother died of cancer when you were just 10.  Your father was as I understand it a translator for the Australian Army and thus your whole family were at significant risk.

14Ultimately, you and your father and two sisters were able to come to and settle in Australia in 2009.  If I have understood it, your other sister came later.  In doing so, that is escaping not just the trauma of war, but without elaborating there was personal trauma to you in the form of regular sexual assaults perpetrated on you by relatives when you were very young.

15You did what schooling you could do in Iraq.  In Australia, because of language and behavioural problems, your schooling was minimal.  What was not well understood until appropriate referrals were made during your CISP bail program was that you have an intellectual disability.  The neuropsychological testing and reports were clear that your low IQ and deficits were from an early age, thus making you eligible for appropriate certifications and thus supports from Disability Services.  Further, again through the efforts of the CISP team, you have been connected to experts in drug counselling, that is experts in the field of drug counselling for those with intellectual disabilities.  You have also been referred to and have taken up appropriate trauma and general counselling, again with experts dealing in that field for those with intellectual disabilities.

16The reports of the drug and alcohol counsellors, the psychological and neuropsychological reports reveal that your problems are now more clearly understood and can be managed and you can be assisted.  What is also clear is you have a strong rapport or clinical relationships which have seen you motivated and doing well.  Your current physical problems are quite a significant setback, but again you are being helped.  An important part of this is your connection with the National Disability Insurance Scheme (‘NDIS’), again facilitated by CISP workers and the Disability Justice workers that you have commenced to engage with.  All these matters are a positive sign of your prospects to stay away from offending.

17I had you assessed for a Justice Plan and a CCO.  You are seen as suitable.  A Justice Plan and engagement with Disability Service workers will hopefully continue the rehabilitative progress commenced while you were engaged with the CISP workers.  As has been made clear to me this morning, there needs to be a merging of programs and assistance which can be facilitated through the significant insightful efforts of Ms Pugliese from the County Court's CISP program, together with Ms Rateman as the Disability Justice worker.  They will engage appropriately with the NDIS, and indeed they have already, to fast track so that you do not pause or stop and thereby be set back.  It has been made clear to me that a limited number of engagements is the appropriate way to assist you, thus I will impose a CCO with the single condition that you be subject to and abide by a Justice Plan. 

18That is, in simple terms, Mr Abdulhussine, you will work with the Disability Justice people.  They will work with you and provide you with connections and help you understand them, just as Ms Pugliese has.  She will be there to aid in the transfer over, so I am confident that you will be able to understand, engage and benefit from the Justice Plan that we will put you on. Ms Rateman indicates that a 12-month Justice Plan is appropriate and I agree.

19Doing the best I can, in respect of the charges on the indictment K11163255.1 for the offences of aggravated burglary and intentionally causing injury I impose an aggregate sentence of 18 months' imprisonment. 

20On the indictment K11163211.1 I impose a sentence of nine months' imprisonment.  What I intend to do is cumulate four months of the sentence on the intentionally cause injury, the later offence, upon the aggregate term for the aggravated burglary and the intentionally cause injury.  This gives a total effective sentence of 22 months.  A figure of 728 days in custody has been reckoned and I declare that you have served 728 days in prison.  This is part of, and in fact it is all of and a bit more, the sentence that has been imposed by me today.  You have already done 23 months, three weeks and six days.  I have imposed a sentence of 22 months but that is just and appropriate.

21On both charges I order that you be placed on a CCO for 12 months with a single condition that you abide by a Justice Plan.  Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of four years and six months with a non-parole period of two years and nine months.  I am sorry, that would have been on one charge.  The total effective sentence on a 6AAA is five years with a minimum term of three years and three months.

22Is that all clear enough?

23MS CARUSO:  Yes, Your Honour.

24HIS HONOUR:  I do have to ask you, Mr Abdulhussine, to consent to the CCO, so what I am going to go through, and tell me if you do not understand any of this, so you will be on a CCO.  The important thing is for the next 12 months do not commit any crime, any offence, because if you do then you come back before me and I do not want to see that happen, so just stay out of trouble just like you have been, all right?

25There will be a need for you to comply with the Justice Plan.  They will give you directions, they will set up arrangements for you on the Justice Plan.  You have to do what they ask you to do, all right?  You have to keep them informed of such things as where you are living, and if you do get a job, if your health gets to the point you get a job, you have to tell them about getting a job, all right?  You have got to set all this up and Ms Ratemen will help you with this, that is by getting connected on to the corrections order as soon as possible.  Do you understand all that?

26OFFENDER:  Yes, Your Honour.

27HIS HONOUR:  Do you consent to this CCO?  Normally we would sign something in court but I can just do it in this way if you tell me that you consent and you will do the order.

28OFFENDER:  Yes, I consent, Your Honour.

29HIS HONOUR:  Thank you very much.  I think that might bring it to an end as far as this court is concerned, Ms Caruso.

30MS CARUSO:  Yes, Your Honour.  There is a disposal order, if Your Honour could make that.  It was e-lodged on 11 March.

31HIS HONOUR:  What is that in relation to?  Is that the indictment of the aggravated burglary or the other one?

32MS CARUSO:  Yes, Your Honour.  There is a grey singlet, a telescopic baton, some tracksuit pants and some other clothes.

33HIS HONOUR:  Yes, I will sign that order.  If it has anything to do with the other one we had better leave it alone until some other court deals with that.  All right, I will sign that disposal order.

34MS CARUSO:  And there were some summary offences transferred, Your Honour.  Ms Carpenter will file the notice to have them withdrawn today.

35HIS HONOUR:  All right.  The summary offences that were transferred are to be withdrawn and I will sign orders concerning that.

36MS CARUSO:  As Your Honour pleases.

37HIS HONOUR:  Mr Page, anything?

38MR PAGE:  No, Your Honour.

39HIS HONOUR:  Thank you very much for your considerable assistance,
Ms Carpenter, again, going herself over and above.  Ms Caruso you have been of great assistance here.  I say that almost routinely but this is a case where it carries more force than generally.  Likewise, Mr Page, your lawyers and your instructing solicitor were confronted with a brewing disaster, taking over from a solicitor who should not engage in these serious criminal matters in any way, shape or form from my experience.  He is not here to defend himself but that is of no interest to me.  I was very happy to see your instructors and you take over this matter and move it through sensibly, and again I reiterate the benefits that this court and the criminal justice system and Mr Abdulhussine and the community have received by the significant efforts of those in the CISP program led by Ms Pugliese and now over to Ms Rateman of Disability Justice and the NDIS.  I am going to remain online and speak to my staff.  Everyone else can head away.

40MR PAGE:  I am grateful, Your Honour.

41MS CARUSO:  As Your Honour pleases.

---