Director of Public Prosecutions v Abdullahi
[2016] VCC 1248
•25 August 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-02082
CR-16-01387
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED ABDULLAHI |
---
JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8, 10, 11, 12 and 15 August 2016 | |
DATE OF SENTENCE: | 25 August 2016 | |
CASE MAY BE CITED AS: | DPP v Abdullahi | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1248 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords: Robbery – Making a threat to inflict serious injury -
Legislation Cited:
Cases Cited:
Sentence: Community Corrections Order for two years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms P. Marcou | Office of Public Prosecutions |
| For the Accused | Ms A. Beech | Stary Norton Halphen |
HER HONOUR:
1 Mohammed Abdullahi, you have pleaded guilty on Indictment no. F10734164A to a charge of theft, which has a maximum sentence of 10 years’ imprisonment. On Indictment no. F10734164C, you have pleaded guilty to a charge of robbery, which has a maximum sentence of 15 years’ imprisonment, and to a charge of making a threat to inflict serious injury, which has a maximum sentence of 5 years’ imprisonment.
2 You agreed to this court dealing with five other offences, to which you also pleaded guilty: four charges of contravening a condition of bail, (summary charges 7, 8, 9 and 10), and one charge of failing to appear at Court in answer to your bail (summary charge 11). The maximum penalty for summary charges 7-10 is 3 months’ imprisonment or a fine of 30 penalty units; the maximum penalty for summary charge 11 is 2 years’ imprisonment.
3 I sentence you on the basis of the Prosecution Opening read out on the plea[1], which is an agreed statement of facts.
[1] Exhibit A
4 Briefly, in January 2015, you stole a mobile phone from a staff member of Domino’s Pizza by taking it from the counter (charge 1 on Indictment no. F10734164A); in February 2015, you accosted another staff member of Domino’s Pizza near the Newmarket railway station and threatened him, forcing him to hand over his mobile phone to you (charge 1 – robbery on Indictment no. F10734164C); when he repeatedly asked you to return his phone, you threatened him again (charge 2 – threat on Indictment no. F10734164C), and told him to leave, that you would hide the phone in the grass and he could return to get it. He left, and returned moments later but the phone was not there. Neither phone has been recovered. Both staff members knew you as a customer at Domino’s Pizza.
5 I received a Victim Impact Statement from the victim of the robbery[2]. He was a student as well as working at the pizza place. As a result of the crimes you committed against him, he felt anger, fear and frustration, and had trouble sleeping and studying properly. He was fearful going to work because he knew you lived nearby, and generally became very conscious of walking on the streets, fearing similar attacks. As his phone was not recovered, he lost all the contacts, which affected his study commitments and he could not attend classes. He said that overall, your crimes have had a very negative impact on his life. It is clear that he has suffered from your criminal actions, and I take this into account in deciding the appropriate sentence. I wish the victim well in the future, and hope that with time passing and this case behind him, he can recover from the negative impact.
[2] Exhibit B
6 While I accept the impact on the victim, I am still able to make the finding that your crimes are not the most serious examples of theft and robbery or threat, but are still to be considered serious offences as shown by the substantial maximum terms of imprisonment.
7 Following these crimes being reported to police, you were arrested on 2 March 2015 and bailed on 23 March with certain conditions. You failed to report to police on 28 and 29 March (summary charges 7 and 8) and on 30 March were found in the Flemington area, which was an area you were excluded from as a condition of your bail (summary charge 9). You were arrested on that day, and bailed on 1 April to appear at court on 17 April. Between 2 April and 16 April, you failed to report to police on 13 occasions (summary charge 10). On 17 April, you failed to appear at court (summary charge 11).
8 You were re-arrested on 8 August for breaches of bail and released on bail again on 26 November. Also on 26 November 2015, you pleaded guilty in the Magistrates’ Court to offences which took place in June, July and August 2015, after the offending for which I am sentencing you. On two charges each of theft, obtaining property by deception, resisting police and one charge of unlawful assault, you were released on a Community Correction Order for 6 months with 50 hours of unpaid work.
9 You were arrested on 13 April 2016 in relation to other offending, and have been in custody ever since. That most recent offending was dealt with yesterday in the Magistrates’ Court. On one charge each of attempted robbery, theft from a car, tamper with a car, stating a false name and two charges of obtaining property by deception, you were sentenced to 80 days’ imprisonment. These offences were committed while on the Community Correction Order imposed in November 2015, and so yesterday, for not complying with that order, you were re-sentenced to 30 days’ imprisonment, 20 days of which were concurrent with the 80 days’ imprisonment imposed the same day. The total sentence imposed yesterday was 90 days’ imprisonment.
10 When you committed the offences for which I am sentencing you today, you had not been in trouble before. That means that although I am sentencing you after you have been sentenced for other offending, I must treat you as a person who had no criminal record at the time of the offending in January to April 2015.
11 For charges 1 and 2 on Indictment no. F10734164C, you were originally charged with armed robbery and making threats to kill, and a jury was empanelled on 12 August 2016. Shortly after that, it was announced that you would plead guilty to the offences of robbery and threat to inflict serious injury, which was accepted by the prosecution in respect of charges 1 and 2 on the indictment so that a trial was no longer necessary[3]. However, I take into account that you offered to plead guilty to robbery in November 2015, and this offer was at that time rejected by the prosecution.
[3] The jury were discharged for another reason not related to the change of plea.
12 There are a number of things in your favour that flow from that. The first is that I accept that you indicated early in the process your intention to plead guilty to the offence of robbery for which you are now being sentenced, and as a result, the sentence I impose will be less than I would have imposed if you had been found guilty after a trial. Your willingness to plead guilty to the charge now accepted by the prosecution ultimately saved the community the cost and expense of a trial. The victim of your robbery was at court waiting to give evidence for a number of days, which would have been difficult and inconvenient for him, but that was through no fault of yours.[4]
[4] An interpreter in the Hindi language of a sufficient level of qualification to interpret for the victim was not available.
13 The next thing that flows from that early indication is that your plea of guilty also reflects that you accept responsibility for the robbery, and your early indication that you would plead guilty reflects that you accepted that responsibility back in November 2015.
14 The next thing is that, had your offer been accepted by the prosecution then, there would not have been the delay in this matter being finalised, being 9 months since your first offer. Although you have re-offended in that time, I accept that you have been in custody on these matters for most of that period of time awaiting your trial.
15 As well as your plea of guilty, and the delay in getting this matter to a conclusion, I take into account matters personal to you[5].
[5] Exhibit 1 – Defence Outline of Submissions
16 You are now aged 25 years. You were born in Somalia and your father was killed in the civil war in that country. You came to Australia with the rest of your family in 1994 when you were aged 2. You have two older sisters, and a younger brother and you have been raised by your mother and stepfather in the context of extended family in Melbourne. You were supported in court on each day of the hearing by a number of friends and family. Your mother is not well, but was able to attend on the day of your plea. You are also in a new relationship with a young woman, which began just before you went into custody, and she has remained supportive of you. This continued extended support is very important for your rehabilitation, that is, reforming your life so that you do not continue to commit offences.
17 You did all your schooling in Australia, and completed Year 12, after which you worked in childcare with one of your sisters, and you had a Working with Children authorisation. You have undertaken further training and obtained a forklift licence, a security licence and a Certificate II in Retail Management. As a result of the criminal record you now have, which will be added to today, you will not be able to use the security licence and you will probably lose the authorisation to work with children.
18 You have however, worked using your forklift licence and before you began your period of offending, you had worked as a labourer. An uncle has offered you employment in a coffee shop when you are no longer in gaol, and you are keen to take up that offer.
19 I am told by your counsel that this sudden turn to crime happened as a result of you being introduced to, and becoming addicted to, methylamphetamine, known as ‘ice’, at the end of 2014. Day after day, courts hear of the menace of this drug, causing grief to victims of offenders affected by the drug, and disrupting the families of those addicted to it. In your case, it was a sudden downfall from being a young man educated to Year 12, with further training and a willingness to work and involved with a close extended family, to daily use of ice, cutting off contact with your family, and becoming a repeat offender in dishonesty crimes, and, to put it bluntly, becoming a pest annoying people going about their daily business, such as the two workers at Domino’s pizza, the victims in the charges on the indictments.
20 This addiction is the background to all of your offending, and in particular to the offending I am sentencing you for today, committed between January and April 2015. Since you have been in custody, you have not apparently used any drugs, and your intention is to stay drug free on your release, which is what you told the officer assessing you this morning for a Community Correction Order. I do note though, that you have tried getting off the drug before, while still in the community, and have relapsed. That is the sad reality of an addiction.
21 Despite the possibility of relapse, I am satisfied that your prospects of getting your life back on track and not re-offending are good, because of the brief period of offending, the fact that you are still a young man who can learn and make the changes necessary to reform your life, the support you have, and your willingness to re-engage in the workforce, where a job is available to you.
22 There are some other aspects that my sentence must cover. By my sentence today, I must deter other young men from committing such crimes of dishonesty, and I must reflect the community’s denunciation of such crimes being committed. I accept in part your counsel’s submission that the time spent in custody has served to deter you from re-offending; I think that there is still a risk of you committing further crimes, and my sentence must also act to keep you from doing that.
23 An application has been made by the prosecution for an intimate forensic sample to be taken from you and you have not objected to this. I am satisfied that it is in the interests of justice, in all the circumstances, that I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that the police may use reasonable force to enable such a procedure to take place.
24 Your counsel submitted that I should sentence you by releasing you on a further Community Correction Order, with conditions including treatment for drug use, and for unpaid work. You were assessed and found suitable for such an order, with additional suggested conditions.
25 The prosecutor submitted that even though you are to be sentenced by me as a first time offender, the sentence I give you should involve a term of imprisonment as well as a Community Correction Order, because the victims were both what are described as ‘soft’ targets, the offences are of a serious type, and the threats referred to using a knife.
26 I did not proceed to sentence you immediately, and agreed to defer my sentence until after you had been dealt with by the Magistrates’ Court. Your counsel conceded that was not a usual request, but provided her reasons for making it, which I accepted.
27 I have decided that I do have an alternative to a sentence of imprisonment of your offending. While the type of offending is serious and the impact on your main victim considerable, your crimes were not the most serious examples; you are to be sentenced as a first time offender, and there are a number of other factors in your favour leading to that conclusion.
28 Could you stand up please, Mr Abdullahi.
29 If you agree, I will release you with conviction, on a Community Correction Order for 2 years on all charges on the indictments (Indictment no.s F10734164A and F10734164C). That order will have the conditions that are attached to every order which are: that you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; must not leave Victoria without the permission of Corrections Victoria; and must comply with any direction given by Corrections Victoria to ensure compliance.
30 I will also order that you comply with other conditions during that 2 years: you must perform 150 hours of unpaid community work; you must be under supervision; you must undertake treatment and assessment for drug abuse and dependency; you must undertake programs as directed by Corrections Victoria to reduce your risk of reoffending; and you must return to court on a regular basis for me to check and see how you are going. That last condition is called judicial monitoring. The first date for you to come and see me is 6 October 2016 at 9.30am.
31 Do you need me to go through those conditions again?
32 OFFENDER: No
33 HER HONOUR: Do you agree to being released on a community correction order with those conditions attached?
34 If you are ill or there are exceptional circumstances, this order may be suspended for a period of time. If your circumstances change, you may apply to the court for a variation or cancellation of the order. In either case, you must notify the community corrections office, and I recommend you also get legal advice.
35 You are aware of thise, but I must tell you that if you do not complete a condition of this order, you will be brought back before me to be re-sentenced on the original charges and also be dealt with for not complying with a condition. What will happen then will depend on a number of circumstances, but you should be aware that my options are limited, and one of those limited options is gaol. Do you understand what will happen if you do not complete this order?
36 OFFENDER: Yes
37 HER HONOUR: In the event that it is necessary to re-visit this sentence, I note that you have served 181 days in pre-sentence detention for these offences, including today.
38 On the summary charges, you are convicted and fined an aggregate sum of $500. I will grant a stay of payment of that fine for three months. If you cannot pay at that time, you can apply to the court to convert the fine to community work, or arrange to pay by instalments.
39 Finally, I advise you that if you had not pleaded guilty to the charges on the indictments but had been found guilty after a trial, the sentence I would have imposed on those charges would have been a term of imprisonment for 7 months followed by a Community Correction Order for 2 years.
40 You will now be asked to sign a document that shows your agreement to be released on the Community Correction Order. You will not be released from this court, you must be processed through the custody centre, but it is my intention that you be released today.
41 HER HONOUR: I will just hand down also the signed forensic sample orders. I should have checked with you, Ms Beech, about Mr Abdullahi’s address. We have got 9 Kimberley Road, Cairnlea. Is that address at which he will be residing? We just need to get those details, thank you.
42 MS BEECH: I will just write them down, Your Honour.
43 HER HONOUR: Yes, thank you. Yes, I think with the Deer Park address, it will be the Sunshine Community Correction Centre rather than Werribee.
44 MS BEECH: Your Honour, I note that Corrections recommended Werribee. I am not sure why that was. I think it is either Deer Park or Derrimut. It must be on the border.
45 HER HONOUR: Yes all right. But it wouldn’t be Werribee.
46 MS BEECH: I think Sunshine was mentioned as convenient last time, Your Honour.
47 HER HONOUR: Yes, all right, thank you. So I know you have been through this process before we will go through it again now with the order needed to be signed by you, if you agree to be released on that order, so my Associate will provide that now.
48 Mr Abdullahi, I have signed that order, and a copy will be made available to you before you leave. The next time I see you will six weeks from now, 9:30am on 6 October 2016. That is not terribly long but it is long enough for you to stay out of trouble, I hope. I am looking forward to some good news when I see you on 6 October. All right, no further orders required?
49 MS MARCOU: No, thank you, Your Honor.
50 HER HONOUR: Thank you, and I thank everyone for their patience, waiting till the end of the day, so Ms Beech will you be going down….
51 MS BEECH: Yes, Your Honour.
52 HER HONOUR: So we could probably give the order copy to you, it might be easier.
53 MS BEECH: Yes, Your Honour.
54 HER HONOUR: Mr Abdullahi can be taken out to be processed and the Community Correction Order will be provided to him. Thank you. We’ll adjourn until 10:30am tomorrow.
0
0
0