Director of Public Prosecutions v Abdurazak
[2013] VCC 761
•7 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00286
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED ABDURAZAK |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2013 | |
DATE OF SENTENCE: | 7 June 2013 | |
CASE MAY BE CITED AS: | DPP v Abdurazak | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 761 First Revision | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence-Robbery-Recklessly Causing Serious Injury-Serious example
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E. Ruddle | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr S. Payne | Victoria Legal Aid |
HER HONOUR:
1 MOHAMMED ABDURAZAK you have pleaded guilty to one charge of robbery and one charge of recklessly causing injury. The maximum penalty for robbery is 15 years imprisonment and for recklessly causing injury is 5 years imprisonment.
2 Your offending was opened as follows:
3 At approximately 11am on 20 June 2012, the complainant in this matter Shane Frearson walked from his house to a milk bar on the corner of Wolverhampton and Barkly Streets, Footscray. He had about $700 cash in his wallet which he had received earlier that day (“pay day”). Mr Frearson uses a walking stick due to an injury he sustained in a work incident eight years prior.
4 He noticed you standing outside the milk bar as he (Frearson) entered. You followed the complainant. As he was paying for his purchases, he moved the $50 notes from his wallet to his pocket as he believed you were[1] looking at his wallet whilst he paid. He got his change from the purchase and walked outside the milk bar.
[1]Evidence of Shane Frearson, page 5 of the depositions
5 Outside the milk bar you asked Mr Frearson for a light for your cigarette. As Mr Frearson went to light your cigarette, you said, “Come over here, brother, out of the wind”, and moved, with Mr Frearson, around to the side of the store. As Mr Frearson again went to light your cigarette, you struck him with your fist. You then jumped on Mr Frearson’s back. This caused you both to fall to the ground. Mr Frearson fell on his back, hitting his head on the ground. You were on top of him.
6 The complainant had a pre-existing broken sternum, and so did not struggle. He could not move. When the complainant was on the ground, you hit and punched him to the face multiple times. You then went through Mr Frearson’s pockets and took his wallet containing $200 to $300, the $400 to $500 that Mr Frearson had earlier put in his pocket, a Samsung mobile telephone and a fob key chain required by Mr Frearson to access his building. (Charge I — Robbery).
7 Mr Frearson told you, “You’ve got me money, you’ve got me wallet, get off me. That’s enough, you know, there’s nothing else.” You then tried to remove a gold ring worn by Mr Frearson. He pushed you off and managed to stand up. He then asked you for his money and wallet back.
8 When the complainant asked this, you ran at him and began to hit him with his walking stick. Mr Frearson put his arm up to protect his head. The walking stick was a collapsible walking stick and the sections disconnected, causing it to wrap around Mr Frearson’s head and arm and strike him in the eye.[2] (Charge 2 — Recklessly causing injury).
[2]Evidence of Shane Frearson, pages 19-20of the depositions
9 Mr Frearson suffered a blood nose, pain, dizziness, a black eye and a laceration to the back of his head (requiring two staples) as a result of the attack.[3]
[3]Evidence of Shane Frearson, page 21 of the depositions
10 You ran off and Mr Frearson went back into the milk bar and asked the attendant to telephone the police.
11 You were then seen by bystanders[4] walking at a fast pace along Wolverhampton Street with something in your hand. You were seen to duck behind parked cars on that street and go into peoples’ driveways. You were located by Police hiding in the front yard of 25 Shepherd Street behind a fence of large hedges.[5]
[4]Statement of Jane Morrison, page 55 of the depositions; Statement of Phillip Protulipac, page 77 of the depositions
[5]Statement of Detective Senior Constable Ross Stewart, page 59 of the depositions
12 You had $725 cash and Mr Frearson’s fob key ring on your person.[6] Police later located Mr Frearson’s wallet and personal cards in one of the driveways you had been seen to enter.
[6]Statement of Detective Senior Constable Ross Stewart, page 60 of the depositions
Record of Interview
13 You were interviewed by police on 28 June 2012 and:
(i) denied robbing Mr Frearson (Q&A 31);
(ii) stated that the money in your wallet was yours (Q&A 50-60);
(iii) denied hitting Mr Frearson with any object (Q&A 30-34);
(iv) Stated that you hit Mr Frearson with your bare hands (Q&A33) in self defence (Q&A 40);
Otherwise, you made an essentially “no comment” record of interview.
14 These are most serious examples of each of the offences you have committed. You targeted a person who was obviously vulnerable, signified by his use of a walking stick. He was kind enough to agree to follow you around the corner to light your cigarette but you exploited his decency as it was your intention to rob him. You did so in a most violent fashion. Moreover, rather than flee with his money, you chose to attack him with his own walking stick when he simply asked you to return his belongings. This is was a cowardly unprovoked attack on a defenceless victim. It is fortunate for the victim and also for you that his injuries were not more severe, but they were severe enough. Although he did not provide a Victim Impact Statement, it is not hard to imagine that this was a traumatic experience for the victim.
15 I was told that you were affected by heroin at the time you offended, which heightens the dangerousness of what you did, as you were apparently not in full control of your faculties.
16 I put you on notice that if you choose to abuse any substance in the future and commit offences whilst affected, your substance abuse may well be treated as an aggravating feature by a sentencing judge.
17 In sentencing you, I must impose a sentence which is just in all of the circumstances and which will serve to denounce your conduct. Further, I must give significant weight to general deterrence, that is, I must give significant weight to the need to deter others from offending in the way that you have.
18 You have a fairly limited and yet relevant criminal history which is one factor that is relevant to my assessment of your prospects of rehabilitation, and the weight which I need to place on specific deterrence and the need to protect the community.
19 In the Melbourne Magistrates Court on 10 December 2008, you received a good behaviour bond without conviction in respect of one charge of recklessly causing injury.
20 On 1 April 2009 you were sentenced to a 12 month community based order without conviction for common law assault. In addition to the core conditions, you were ordered to undergo 80 hours unpaid community work. However, you failed to comply with that order so on 30 November 2009 you received the benefit of a variation of it, and you were required to undergo 66 hours unpaid community work. You again failed to comply with the order as varied and by the time you were dealt with for this in January 2011, the order had lapsed so you were convicted and fined $300.00.
21 I was told by your Counsel that you are unable to recall the precise details of these offences but that they both involved you intervening in fights in which your peers were involved. I was told that on each occasion, you were affected by alcohol, and one of these offences was said to have been committed in 2006.
22 You are 29 years old now and you were about a month short of that age when you committed the offences for which I now sentence you.
23 You have a most tragic background which I take into account. You were born in Ethiopia. Your mother died when you were only 9 years old and your father died two years later. You were then placed in the care of an older cousin which involved you being separated from your two older siblings who you then did not see for many years. Whilst living in Ethiopia you have witnessed incidents of extreme violence and when you were only 14 you were arrested for no reason and brutalised whilst in gaol and upon your release. I have little doubt that all of these events have taken a toll on you, although you did not complain to Ms Lechner, psychologist, of any post traumatic stress symptoms. It appears that Ms Lechner suspects that you may well have some issues in this regard, but in the absence of any diagnosis, I am unable to speculate about this.
24 Upon being released on bail in Ethiopia, you fled to Saudi Arabia and from there, you were able to migrate to Australia, being sponsored by your uncle. You and your brother initially lived with your uncle, but found his house rules too strict so you were both asked to leave. You became homeless and turned to drugs. To your credit, you were able to maintain your schooling and having learned English in less than 12 months, you went on to complete your VCE achieving an Enter score of 74. You attended Victoria University and completed one semester of an electronic engineering course. This tells me that you are highly intelligent and have a good deal to offer the community if you make up your mind to make a positive contribution. You hope to return to study in the future with a view to work in a science related field. I sincerely hope that you pursue this ambition.
25 Unfortunately, you were unable to stay at university because of financial pressures so you left and joined the workforce. You worked at a silver and plate company for 5 years and during that time you were promoted to ‘supervisor’; but due to your return to drugs in more recent years, you have not been working since 2009. However, your intelligence and good work ethic in the past are positive matters when assessing your prospects of rehabilitation.
26 I was told that you commenced a relationship with a woman in 2003 when you and she were both 21 years old. She was a positive influence on you such that you turned your back on drugs and alcohol abuse for a period. The relationship lasted for 4 years but ended tragically in April 2009, when Jade, your partner, was killed in a car crash. I was told that you then spiralled back into drug abuse. You lost your job and the house which you had shared with Jade. You made two attempts on your life by drug overdose. Unsurprisingly, as Ms Lechner, psychologist found, you were suffering from deep depression at this time.
27 On the other hand, as the learned prosecutor indicated, it appears that each of your prior matters was committed whilst you were still in the relationship with Jade in circumstances where you were affected by alcohol. This is somewhat at odds with what Mr Payne told me about your attitude to alcohol during that period of your life.
28 However, on any view of it, at the time you committed the offences before me, you were experiencing difficulties with drug abuse which you had sought to address at various times in the past. In this regard, I was told that in 2010 you sought some help, and on 5 June 2012 you attended an information session with Odyssey House, which was about two weeks before the current offences were committed. A letter tendered on the plea from Odyssey House supports this. These steps are to your credit, as it would appear that you were prepared to address your substance abuse problems, of your own initiative, rather than simply trying to give a good account of yourself to the Court after committing the offences before me. You went on to complete a drug rehabilitation program at Odyssey House as an inpatient after the offences were committed. I shall refer to this in a moment.
29 Although you have used and abused various drugs over the years, including ice, valium, cocaine and alcohol (commencing cannabis use when you were 16), your preferred drug has been heroin. As at the time of the offending before me, you were abusing heroin, having been prescribed suboxone in a bid to resist it. However, you were unable to follow through with this, and were affected by heroin at the time you robbed and assaulted Mr Frearson.
30 Whilst it is to your credit that you have made genuine attempts to free yourself of drug addiction in the past, your relapse into drug abuse does give me cause for concern in terms of your prospects of rehabilitation. Having said this, since these offences, you have taken significant steps in addressing your drug problem. Following your remand for 19 days, which you found a most salutary experience, you attended an assessment appointment with Odyssey House some 10 days later and you entered that facility as an inpatient on 4 October 2012. Whilst on bail, you have not committed further offences and you have remained drug free since your arrest. You have done exceedingly well whilst on bail which is supported by the Court Integrated Services Report and you have also done exceedingly well during your time at Odyssey House, as attested to in the report from that organisation.
31 I was told that after 5 months with Odyssey House you decided that it was time to make your own way, but you have continued to be regularly counselled by Odyssey House. You have recently obtained a part time job as a receptionist and although there for only one and a half weeks as at the time of the plea hearing, you have apparently been told that full time work should be available as of July this year.
32 You entered a plea of guilty following a contested committal hearing which involved the victim being cross examined. At that time you were facing the more serious charge of armed robbery, and I was told that following cross-examination of the victim the Crown indicated that they would accept a plea to robbery. However, your representatives did not offer to plead guilty to any offence before the committal hearing. I make it clear that you are not to be punished for running a contested committal hearing. This is your right, but the degree of discount which attaches to your guilty plea may be impacted, depending on what the situation was at that time. Also, it may have a bearing on the question of remorse and insight. As a dispute arose as to the issues canvassed at that hearing, I perused the committal transcript, having consulted with Mr Payne before doing so. Having done so, I am of the view that the ambit of the cross-examination went beyond the negation of armed robbery, even allowing for an attack on the complainant’s credibility and reliability for this purpose. Indeed, at one point, it was suggested that you were waving the walking stick around in order to keep the victim away from you rather than striking the victim with it. This runs contrary to your plea to recklessly causing injury and the factual basis for it.
33 Therefore, I take into account the stage at which you pleaded guilty to these charges, which was after a contested committal hearing. I bear in mind that one of the issues at that hearing was whether you were armed which was a matter resolved in your favour. But I also bear in mind that issues went beyond this, as such, you are entitled to a fairly substantial discount in the sentence which you would otherwise receive, as you have saved the witnesses, especially the victim, the time and trauma of giving evidence at trial and you have saved the community the time and expense of running a trial. In making this allowance I factor in that you were facing a more serious charge before the committal but I also factor in that this was not the only issue. I must say that the approach taken at the committal hearing in February this year, is not consistent with a good deal of genuine remorse or insight on your part as at that time.
34 On the other hand, you had sufficient insight perhaps to attend Odyssey House as an inpatient four months before this. You also expressed regret and shame to Carla Lechner in March this year, although your account of what occurred is not consistent with that which you now accept. It is indeed surprising that Ms Lechner remarked that you acknowledged your role in this matter and did not seek to shirk responsibility, in circumstances where you told her that you thought that the victim wanted to rob you and that he hit you really hard. I note that Ms Lechner had the police summary although it is not clear whether she actually took this into account when assessing your frankness.
35 In any event, in all of the circumstances I accept that your plea of guilty and your actions in seeking out treatment at a fairly early stage do signify some remorse on your part, even if it be the case that some of this relates to your concern for the predicament you had placed yourself in.
36 You have some family support from your brother and sister. Regrettably, neither of your siblings attended court at the plea hearing. However I see some people in court today who, I make the assumption, may well be here in support of you. Bearing in mind your offending on this occasion, your prior matters, your difficulties with drug abuse, your attempts to deal with this in the past months, your ability to find some work, your aspirations for the future and a level of family support, I rate your prospects of rehabilitation as being fair. I place moderate weight on specific deterrence in light of your history and your offending on this occasion. I must also place at least moderate weight on the need to protect the community.
37 I have considered the submissions by your counsel in respect of sentence and those of the learned prosecutor. The Crown submitted that an immediate custodial sentence was required and that a head sentence of between 18 months and two years with a non-parole period of between 12 months and 15 months was appropriate. Mr Payne submitted that a community corrections order, or if not, a wholly suspended sentence ought be imposed in your case.
38 I am afraid that your offending is too serious to accept Mr Payne’s submissions but I intend to allow for a slightly lower non-parole period than might otherwise be the case in a bid to maximise your chances of not re-offending.
39 Stand up Mr Abdurazak.
40 You are convicted in respect of each of the offences.
41 I make an order that a forensic sample be taken from you for the purposes of recording your DNA on the police database. I make the order because of the seriousness of the offending, because the order is not opposed, and because it is in the public interest to make the order. I specific that the sample should be taken by way of a buccal swab from the mouth. I should warn you that if you refuse to co-operate with the authorised officer when the sample is taken then reasonable force may be used in order for this to be done.
42 In relation to charge 1 you are sentenced to 16 months imprisonment.
43 In relation to charge 2 you are sentenced to 7 months imprisonment.
44 I direct that 2 months from the sentence on charge 2 be served cumulatively with the sentence on charge 1.
45 This produces a total effective sentence of 18 months imprisonment. I direct that you serve 10 months before becoming eligible for parole. I declare that you have already served 19 days of this sentence.
46 If not for your pleas of guilty I would have sentenced you to a total effective sentence of 2 years 4 months imprisonment with a non-parole period of 18 months.
47 Would you please take a seat for a moment.
48 Is there anything arising from that sentence?
49 MS RUDDLE: No, there isn't, Your Honour.
50 MR PAYNE: There's nothing, Your Honour.
51 HER HONOUR: Thank you. Yes, you may remove the prisoner.
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