Director of Public Prosecutions v Adan
[2019] VCC 1456
•9 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-17-01085
CR-17-01084
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MOHAMMED ADAN AND ANWAR WARSAME |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 September 2019 | |
CASE MAY BE CITED AS: | DPP v Adan & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1456 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms C. Duckett | |
| For Accused Adan | Ms A. McLure | |
| For Accused Warsame | Ms E. Austin |
HIS HONOUR:
1 Mohammed Adan and Anwar Warsame, by jury verdict you were found guilty of a number of serious offences in this court.
2 You Mr Adan were found guilty of aggravated burglary on the basis that you entered an apartment in Carlton on the 31st day of October 2016 as a trespasser with intent to commit an offence involving an assault to a person and at the time had with you an offensive weapon, that is an extendable baton.
3 You Mr Warsame, were found guilty of the same offence.
4 You were each found guilty of having on the same day intentionally cause injury to Abdullahi Addo.
5 You Mr Adan were also convicted of the theft of a mobile phone belonging to Hilina Gezahegn on the same occasions as the other charges.
6 The maximum penalty for the aggravated burglary and the intentionally cause injury are 25 years and 10 years' imprisonment respectively. Theft also comes with a maximum penalty of 10 years' imprisonment.
7 Mr Adan you also pleaded to two summary offences, the first driving whilst unlicensed which has a 25 penalty unit or three months' imprisonment penalty maximum, and to committing an indictable offence whilst on bail which has 30 penalty units or three months' imprisonment as maximum applicable penalties.
8
The circumstances briefly stated of your offending may be summarised this way. Mr Adan, you were 28 at the time of the offences and you were living in Kensington. You Mr Warsame, were 21 years old at the time of the offences and lived in Flemington. The two victims, Addo and Gezahegn lived at the Carlton housing commission flats on the 15th floor. Addo was 25 years old and Gezahegn, 21. Mr Adan you had met Mr Addo some eight years earlier when you lived in a shared house in the Bulleen area. Sometime before
31 October you had stayed at the Carlton address of Mr Addo for some two nights, the 27th and the 28th, and you were therefore somewhat familiar with those premises. You had however been asked to leave the flat, Gezahegn had not met you before you stayed there the two nights and was unhappy with your presence there although Mr Addo has allowed you to stay for those two nights. Between the time you left and throughout 30 and 31 October you had called or attempted to call Addo by telephone. Another of Mr Addo's friends was also staying in the flat that relevant evening. Neither of the victims knew you
Mr Warsame.
9 On 31 October the Monday at about 10.30 in the morning the two of you arrived at the front door of the flats. You both waited as you were unable to enter and then the closed circuit TV footage shows you entering the building when a person has exited. You both took the lift to the 14th floor then walked up the stairs to the 15th and knocked on the victim's door. When Mr Addo answered the door he recognised you Mr Adan and opened the door. You Mr Adan asked Addo if he wanted to, 'Go for a cruise.' Mr Addo was not so willing and queried why the two of you were at his premises at that time of the morning. He suggested you return later.
10 You Mr Adan pushed your way in and grabbed Mr Addo by the collar of his shirt, pushing him back into the bedroom. Mr Warsame you quickly followed Mr Adan and started striking Mr Addo with a bat to the head and body. He was struck by you. Ms Gezahegn was asleep in bed but woke up and seeing what was happening started screaming. She grabbed her phone and attempted to call for help but you Mr Adan, took the phone from her saying,
'You're not going anywhere, sit down.'
11
But instead she ran out bare foot and in pyjamas. Mr Addo was asking why you were doing this and then you Mr Adan asked him to tell you where the money or the drugs were. Mr Addo's friend Mr Abukhar was asleep on the couch in the living room. Both of you followed Mr Addo and he was hit again with the baton as he tried to wake Mr Abukhar with some blows to the leg. When
Mr Abukhar did wake up he attempted to help Mr Addo but was told to not involve himself in this affair.
12 Mr Warsame, you did a search of the flat and Mr Adan, you told Warsame that you would take Mr Addo for a ride and you both left the flat with him. When you got out into the foyer to the floor Mr Addo ran down the stairwell for some floors. You had both pursued him then he got to a lift on the 5th floor and travelled to the ground floor and in the meantime Ms Gezahegn had also reached the ground floor some time before and was now speaking to a number of people outside the flats and on the road immediately to the front of the block, and had asked them to call the police as she was very frightened by what had occurred.
13 Mr Addo approached Ms Gezahegn and the witnesses outside the flat but you Mr Warsame, approached them holding the baton. When you saw the lights and sirens of police vehicle arriving upon the scene you fled but you were arrested. Police found the extendable baton up your sleeve. You told the police you just found it and that Mr Addo and Ms Gezahegn had stolen money when you had stayed at the flat a few nights ago. Within a few minutes of police arriving and speaking to Mr Addo and Ms Gezahegn, they saw Mr Adan, you, drive past in a Mitsubishi Pajero. Police located it and intercepted you a little distance away in Carlton.
14 Both of you were interviewed by police. You Mr Warsame told police you could not recall much of the day because of alcohol you had drunk. You reiterated you had found the baton on the ground a few metres from where the police arrested you. You were remanded.
15 Mr Adan, you were also interviewed by police. You told police you went there with another person who you hardly knew. When you had walked in the flat you had asked if Mr Addo had any drugs but he did not. You denied assaulting him, that Mr Addo had given you the phone and you did not know anything about the baton. You were also remanded.
16 It is clear from the evidence at trial that your intent was to extract something from Mr Addo one way or another whether in the flat or out and that in the flat the two of you proceeded to act together to injure Mr Addo after you had entered the premises unlawfully. I consider that this is squarely in the middle range of offending for aggravated burglary. You entered as trespassers armed to assault a person in their own home for your own purposes. This type of offence is unfortunately all too prevalent and causes serious consternation to the victims directly but also to the community which looks to the court to denounce this conduct and protect the community by generally deterring those who are like minded to commit similar offences with stern punishment.
17 Your plea at trial does not attract an aggravation of the penalty of course but denies you of any reduction in sentence in recognition of any measure of insight, regret or remorse about the impact of your conduct.
18
I take your personal circumstances into account. Mr Adan, you are now
31 years old. You were born in Mogadishu in Somalia. The country was racked by war and your parents fled. Your father fled to Kenya while your mother went to Northern Somalia. You were sent to live with grandparents who were farming and had some cattle. Your sisters were not with you and when you were about six or seven your uncle who was about 11 or 12 was shot in front of you. You were ill thereafter, you were burned by a heated steel rod in a bush medicine attempt to cure you. In 1988 your father came to Australia and you followed him as a 10 year old where you were reunited with your two sisters and you now had a stepmother. You lived in Brisbane. You completed Year 12 at school. While playing in a football tournament in Melbourne you met a young woman. You relocated to Melbourne and lived with her for five years until you married but had no children of that union.
19 There was little communication and family difficulties and the relationship ultimately floundered in 2015. Since that time which had been stable and during which you had work as a security guard and driving a forklift, your life has essentially fallen apart. You have been essentially homeless since the separation. You began to associate with drugs and drug dealers and began to appear before courts for more serious offending than what you had done up in Queensland up to that point. Between the years 2011 and 2015 you obtained also a warehouse operation certificate and security licence enabling you to work in those fields. The arguments with your wife meant you neglected your work and you got fired. Before this divorce you had a criminal history reported in Queensland. It consisted of street offences and dishonesty offences for which you were fined or placed on recognizance going back to 2006. In 2009 you received community service of some 70 hours for entering premises and committing an indictable offence and that is a very relevant prior.
20 Further community service was ordered when you breached the above order. You then proceeded to breach service and bail orders at least four times being fined for each occasion in 2010 and twice more in 2011. Your next offending is of September 2015 when you were imprisoned for five months for making a threat to kill and assault with a weapon, placed on a community corrections order for 12 months, damaging property, fail to answer bail, commit indictable offence whilst on bail. This community corrections order had just expired when you committed these offences for which you are being dealt with today. This in particular is a very relevant prior which raises the application of specific deterrence in your case as a relevant principle to apply, has a sentencing purpose and to assess your prospects of rehabilitation.
21 Without doubt the sanctions of the court and particularly the sanction of 2015 appear to have had little or no effect on your so your prospects must be guarded. Again you had been bailed on these offences on 13 July 2017 and while living with your aunt you had been doing reasonably well and not using drugs apparently, when in January of 2018 you reoffended by driving past your curfew hours and then engaging in a chase with police in pursuit of you. Bail was revoked and you later received a six months' sentence. That later period was the second period of liberty in the community since 2015 and I am conscious of the principle of totality having a role to play in my considerations as to an appropriate sentence.
22 You have some family support. While your father and stepmother and their children reside in Queensland, you have had some visits. Your mother is in Somalia. I accept that your descent into drug use and criminal behaviour seems to have been triggered by the dissolution of a longstanding relationship. You have some supportive and potential environment which includes your aunt, your father's sister who lives in Collingwood. During your period of remand you have completed various courses and programs for which I have sighted certificates. You have attended on Narcotics Anonymous for some five months once a week while at the MRC.
23 A report was prepared for the court by Dr Aaron Cunningham dated 8 April 2019. He reports your time in reclusion has been difficult marked by being assaulted in March of this year. You told him that since your times in custody and with the support of your aunt you feel more stable and capable of abstaining from drug use when in the community. You are hypervigilant, fear attacks from others at a heightened level in a custodial setting. In his opinion your early experiences and exposure to significant trauma meets the criteria for post-traumatic stress disorder which presents with alternations in cognition and mood, reckless and ongoing behaviour inter alia. Unfortunately the prison environment and prospects of violence within it would aggravate this condition and I must take these difficult circumstances into account, circumstances which may be much lesser in significance in a person of normal psychological makeup.
24
There has been some delay in your case which I take into account. Your trial was ready to proceed in July 2018 and again in November of that year and indeed you were ready to be placed upon your trial then. The matter being a joint trial with Mr Warsame, there were delays to final verdict and I will extend some acknowledgement of this delay in slight mensuration of your sentence. However I note without being able to connect these reasons to you directly, that Mr Addo was unavailable as a witness as he was frightened for himself having been assaulted and hospitalised. And Ms Gezahegn was threatened and forced to move address. This led to an appeal about whether their evidence could be given in another way and so this caused delay apart from
Mr Warsame's absconding. Ultimately both victims did give evidence at committal.
25 I do accept that the aggravated burglary did not carry some of the usual aggravating features such as not being conducted at night, it was conducted without disguise, with a weapon which was not a knife or a gun. However in my view the offence is still within the mid range of offending.
26 Although no victim impact statements were received, I can infer from the evidence that the impact upon the victims was substantial and frightening to them. And the court observes victims in these circumstances often traumatised by such conduct with impact extending well into their future lives. There was a sizeable weapon used, not insignificant in potential for damage and injury, there was a ransacking of the premises and the theft of the phone to prevent its use. I take the impact upon the victims into account.
27 Mr Warsame, you are 25 years old so at the date of the offending you were 21. You were born in Melbourne. Your parents were from Somalia. They came to Australia as refugees in 1993, you have four older brothers and one younger sister. When you were 14 years old you went back to Somalia with your father and you remained there for about a year and a half with an aunt and uncle. You returned to Melbourne at aged 18 and relocated to Brisbane with your family although you eventually returned to Melbourne. You are single and have no children. At the time of the offending you were 'couch surfing' after leaving your parents' home. Upon your return to Melbourne you attended secondary school but left part way through Year 10 so you have little educational achievement and only limited employment. You discontinued several TAFE courses. In Brisbane you did work as a furniture removalist for some months. You have some ambitions to work in the building industry.
28 Like Mr Adan you too have lost by your plea the opportunity of a reduction in sentence but I do not penalise you for having run your trial. Your prospects of rehabilitation must primarily be impacted by your relative youth. Although you were a youthful offender at the relevant time, you are no longer so but remain relatively young. Your history is not only blighted by lack of educational and work achievement but by drug and alcohol abuse. At aged 17 you were introduced to methamphetamines and developed a dependence with daily use. In Somalia you had experienced daily glue sniffing and you have also abused Xanax to counter the effects of ice. Although you have sought the assistance of anti-depression medication pursuant to a mental health plan, your plea specifically disavowed either any mental health issues or neuropsychological issues as mitigatory factors. Indeed the court was not furnished with any such material.
29 You have priors from Queensland spanning the years 2012-2015, five appearances for dishonesty, trespass, supply and possession of drugs for which you received a range of dispositions from bonds to fines to probation. These are followed by a conviction only a couple of weeks before this offending for arson. In other words you had just begun a community corrections order for that offence. It is clear the sanctions imposed by the courts on you have not had the desired impact or response. You were the person carrying the baton and you used it up on Mr Addo. You failed to appear and delayed the inevitable trial. I do not assign further punishment for this conduct. It was submitted that it should be acknowledged by dent of your age some reasonable prospects of rehabilitation. I am driven to the conclusion that in your case also your prospects are guarded. However just as in Mr Adan's case, that is not to say that the court views prospects of rehabilitation as anything less other than relevant in this sentence in each of your cases. The court even with your history and background should be slow to extinguish or make inappropriately difficult the pathway to rehabilitation which may still happen for you.
30 It was submitted that a level of disparity between the two of you is reasonable in the circumstances, probably anchored to your youthfulness at the commission of the offences Mr Warsame. There is a relative difference also in criminal priors. The prosecution for its part conceded that some disparity may be reasonable. The enterprise was one in which both equally culpable was really driven by you Mr Adan, and in which you played the primary role of premeditation as a principle.
31 Please stand.
32 On aggravated burglary Mr Adan, Charge 1, you are convicted and sentenced to four years' imprisonment.
33 On intentionally cause injury you are convicted and sentenced to two years' imprisonment.
34 On theft you are convicted and sentenced to three months' imprisonment.
35 I order six months on Count 2 to be cumulative on Count 1 making a total effective sentence of four and a half years. I fix a non-parole of three years.
36 I declare that you have served 647 days by way of pre-sentence detention and will have that noted in the records of the court.
37 Mr Warsame, on aggravated burglary Count 1, you are convicted and sentenced to three and a half years' imprisonment.
38 On intentionally cause injury you are convicted and sentenced to two years' imprisonment.
39 I order six months on Charge 2 to be cumulative on Charge 1 making a total effective sentence of four years. I order a non-parole period of two years and seven months.
40 I note and declare that you have served 475 days by way of pre-sentence detention and I will have that number noted in the record of the court.
41 On the summary offences Mr Adan, on the drive whilst unlicensed, and on the commit indictable offence whilst on bail, you are convicted and sentenced to one month on each concurrent with the sentence.
42 I have signed disposal orders and in your case Mr Warsame, I have signed an order under 464ZF of the Crimes Act to undergo a forensic procedure for the taking of a scraping from the mouth which is not a painful procedure, in order to obtain a sufficient sample for placement on the DNA database. I have done so because of the seriousness of the circumstances of the offending and because granting this order is in the public interest. If at the time that a request is made for such a scraping Mr Warsame, if you do not consent then an authorised officer can obtain a blood sample from you for those purposes by using reasonable force. Do you understand?
HIS HONOUR: I will hand down those two orders.
MS DUCKETT: If the court pleases.
MS McLURE: As Your Honour pleases.
MS AUSTIN: As Your Honour pleases.
HIS HONOUR: Are there any other orders Ms Duckett?
MS DUCKETT: No, they're the orders required, thank you.
HIS HONOUR: Yes thank you. You can remove Mr Adan and Mr Warsame.
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