Director of Public Prosecutions v Aden
[2024] VCC 1219
•8 August 2024
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00353
CR 23-00354
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAYYU ADEN JAFAR AHMED |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 July 2024 |
DATE OF SENTENCE: | 8 August 2024 |
CASE MAY BE CITED AS: | DPP v Aden & Anor |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1219 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Plea of Guilty - False Imprisonment – Extortion with Threat to Kill – Blackmail – Prohibited Person possess Imitation Firearm – Unlawful Assault – Co-accused – Totality – Parity – Complex PTSD – Application of Bugmy – Substance use – Prospects of Rehabilitation – Currently Serving Sentence – New Non-Parole Period
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
Sentence:Hayyu Aden – Term of Imprisonment of Four years and Two months, Non-Parole Period of Two years; Jafar Ahmed - Term of Imprisonment of Four years and Eight months, Non-Parole Period of Two years and Ten Months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Goetz | Office of Public Prosecutions |
For Offender Aden | Mr M. Page | Valos Black & Associates |
For Offender Ahmed | Mr N. Brown | Nelson Brown Legal |
HIS HONOUR:
1Hayyu Aden and Jafar Ahmed, you have pleaded guilty before me to charges of False Imprisonment, Extortion with Threat to Kill and Blackmail. Jafar Ahmed, you have also pleaded guilty to being a Prohibited Person Possessing an Imitation Firearm. You, Mr Aden, have pleaded guilty to a relevant Summary offence of Unlawful Assault.
2The maximum penalties for these offences are False Imprisonment, 10 years, Extortion with Threat to Kill, 15 years, Blackmail, 15 years, Prohibited Person Possess Imitation Firearm, 10 years, Unlawful Assault, three months.
Circumstances of offending
3The circumstances of the offending are set out in the Summary of Prosecution Opening, which served the purpose of being the opening on the Plea, but also the Sentencing Indication hearing, and it is Exhibit A. It is part of these Reasons for Sentence. I will not summarise it in the same detail, but going into some detail, your victim in this matter, Mr Shagari, was known to you both through your co-offender, Mr Youssef, apparently. I was told Mr Youssef used to be good friends with the victim but had not seen him for some time, and I was told that both of you are cousins of Mr Youssef who is being dealt with for this matter also.
4On Saturday 30 April in the evening, the victim attended the Australian Bosnian Islamic Centre at Deer Park, driving his Toyota Corolla. At some point he exited his car and walked towards the Mosque when he was approached by you, Mr Ahmed. You told the victim that you wanted to talk to him. He walked with you, and I was told he was steered towards a gold-coloured Toyota Camry. You, Mr Ahmed, asked him to get in, you wanted to talk to him about something. Your victim did not feel safe and asked, 'What for?'. You, Mr Ahmed, used your size and your physicality to steer the victim into the rear passenger seat. Once inside, he saw you, Mr Aden, and co-offender, Youssef.
5You were in the driver's seat, Mr Aden. Mr Youssef was in the passenger seat. Mr Ahmed got into the vehicle and produced a firearm described as a 'black Glock pistol'. It was in fact an imitation firearm. You, Mr Ahmed, said 'We can either do this the easy way or the hard way' and you said, 'Don't worry, yeah, this clip is full'. You removed the clip showing it to the victim before putting it back into the firearm. You continued to say, 'It's up to you, the easy or hard way'. You were driving around the Mosque at this point. You, Mr Aden, were driving. You drove to the other side of Station Road, you parked at the front of Millstream Circuit in Cairnlea.
6The victim was told 'You know what we want', and demands were made to the victim for half a million dollars, to which the victim replied 'What you're asking for is ridiculous. I don't have that much'. But you and your co-offenders, all three of you, kept repeating the demand, and someone was saying 'It looks like you want it the hard way'. You, Mr Ahmed, said 'We're going to go for a long drive'. The victim said he did not want to leave his car at the Mosque. You,
Mr Ahmed, said 'Give us the keys' and you gave them to Mr Youssef who took them and then left in the victim's car.7Whilst waiting for Mr Youssef to return, you, Mr Ahmed, retrieved a plastic bag from the boot and removed cable ties, and you cable tied the victim's wrists together, and told him to hand over his mobile phone, which he did. Mr Youssef drove the car back from Millstream Circuit. Mr Aden, you drove the gold Camry with Mr Ahmed and the victim onboard towards Footscray, and Mr Youssef followed in the Toyota Corolla. The vehicle stopped outside a block of units at Geelong Road, Seddon. The victim was taken from the car and walked up the stairs and taken into a unit at that address. Once inside, he was forced to sit on a couch and you all started questioning him as to how he was going to get the money, putting pressure on him to get the amount of money you wanted.
8The victim kept saying he did not have what was being asked for. You,
Mr Ahmed, kept repeating 'Give us what we want'. The victim was understandably very frightened. He was made to take his shoes off. He was continually questioned 'Where is it and what can you give us?'. He was threatened and told that he was going to be shot in the knee, he was going to be stabbed. The victim thought he was going to be hurt. You, Mr Ahmed, told the victim, 'Don't worry, it hasn't started yet. I'm waiting for Aden to get back with all the tools'. You continued to threaten the victim, telling him you were going to knock his teeth out and cut his fingers.9You, Mr Aden, returned with the plastic bag and said, 'What, this guy's still waiting? Time I took charge'. You told Mr Ahmed and Mr Youssef to leave the room and that you were going to chat to the victim. You sat next to the victim on the couch saying, 'Look at me, I'm not playing around. You'd better make a move right now to figure out how to meet our demands'. The victim tried to explain that what you were asking for was unreasonable and he could not provide it. You, Mr Aden, told the victim to put his hands out.
10While the victim's wrists were still cable tied, he put them out and you used a medium seized kitchen knife and placed it between his right-hand index and middle fingers, applying pressure as if you were going to cut. You did it slowly, saying, 'You think I'm playing around'. As a result, Mr Shagari sustained minor lacerations between the webbing of the index and middle fingers. You,
Mr Aden, also slapped him to the side of the face and his left eye became bloodshot. You, Mr Ahmed, came back into the room with co-offender, Mr Youssef.11You, Mr Aden, told the victim to take off all his clothes and made him sit in the middle of the kitchen naked. Photographs were then taken of him in that situation, and he was threatened that the naked photographs would be sent to friends and family on social media. At that point, Mr Yusef said, 'I've got a better shot' and produced an ice pipe, handing it to you, Mr Ahmed. Mr Ahmed, you handed it to the victim and told him to put it in his mouth whilst holding a lighter. Once the victim had the ice pipe in his mouth and was holding the lighter, you took numerous photographs of him, that is, the group did.
12At one stage, Mr Youssef even attempted to blow cigarette smoke to make it appear as if the victim was smoking the ice pipe. You, Mr Ahmed, then stood in front of the victim and started to throw a medium sized kitchen knife at him. This happened approximately six or seven times and the victim dodged the knife. The victim was forced to log onto his online Commonwealth banking account using his mobile phone. There were transactions he was forced to engage in, transferring funds, and he would receive emails from the Commonwealth Bank detailing what transactions had been sent, but as payment was held for 24 hours, he was able to later cancel some of the transactions.
13One of the sums that was transferred after he was forced to log into his online ANZ account, was the sum of $869. The three of you continued to talk amongst yourselves as to how you could get money out of the victim. He was asked how much more he could give if you took him to his house. The victim told you all that if you took him home he could give you $15,000, and it was agreed that that is what you would do. You, Mr Ahmed, told the victim, 'I'm going to give you a timeline. In two weeks you need to come up with $100,000 or else things will get ugly. We're going to come and shoot up your house. We'll kidnap one of your brothers too'.
14The victim agreed to the demands. You, Mr Ahmed, continued to demand saying that every two weeks after the $100,000 transfer, the victim was going to have to give you all $5,000 every two weeks until they had another $50,000'. The victim agreed and said, 'Let's go to my house'. You, Mr Ahmed, you, Mr Aden, and Mr Youssef and the victim left and drove eventually to Clarence Way, Taylors Hill, around the corner from the victim's address. You, Mr Aden, discussed with the victim how he would get the money.
15The victim said he would go into his address to get the money. You, Mr Aden, did not like that suggestion and said that you would go in with him. The victim however managed to convince you to let him go into the address alone and you, Mr Aden, agreed to this after calling you, Mr Ahmed, and Mr Youssef.
16You, Mr Aden, took the mobile phone off the victim, and keys to the car, before he went inside to get the money. The victim went inside the house and called Triple 0 from his brother's phone. He tried to stall as long as he could before he retrieved $11,000 in cash and went back out to the car, handing that $11,000 cash to you, Mr Aden, stating that was all the money he had.
17You, Mr Aden, got angry and asked where the rest of the money was. You told the victim 'Go back and get the rest'. He started walking back to his residence, but then he was signalled by the car's high beam shining at him. He returned, and he was given back his mobile phone and keys. He was told he had until tomorrow at five o'clock to come up with the rest, and to leave. After both of you and Mr Youssef drove off, Mr Shagari followed in his car and continued to call Triple 0. The car was intercepted by police. All three of you were removed from the vehicle, searches were done, and you were conveyed to Sunshine police station where each of you made no comment in a police interview.
Gravity of offending
18It is very serious offending. I am guided by the maximum penalties. It is obviously offending that is very frightening for the victim involved. It was prolonged, and involved serious threats accompanied by physical violence and threats. It involved humiliation. It also has several worrying features. This sort of standover planned extortion in company, designed to yield a high return from a vulnerable individual, is high level criminal activity. It is organised, it has the hallmarks of ‘gangster-like’ behaviour. It is a level above the acquisitive motivation where drug-use and the drug milieu is often concerned, where dishonesty offences or even offences involving violent robberies and so on are engaged in.
19It is offending that is often part of the drug world, part of the drug milieu, but at a level not every participant in that world aspires to or engages in. It is incorrect to say that this is reflective of either of you being influenced by peers, or falling into conduct which has spiralled out of control. General deterrence is very significant for offences of this nature, as is denunciation, as is specific deterrence given the histories of each of you.
20I have received a victim impact statement which is fairly brief, and it seems at this point in time, at least, the victim has recovered relatively well, but I take into account, of course, the impacts on the victim which would have included the terror and concern for his safety, particularly over the duration. The criminal history, and sentences you have received are both very relevant. They are relevant from a prospects-of-rehabilitation point of view, but they are also very relevant in relation to other sentencing principles, such as totality.
Circumstances at the time of offending
21Mr Aden, you are currently serving a sentence. On 9 February last year, you were sentenced in this Court by Judge Dalziel to a total effective sentence of four years and 10 months' imprisonment, with a three year non-parole period, and 569 days were declared as pre-sentence detention. There was an appeal that was unsuccessful in relation to that sentence. I am told you are currently eligible for parole under that sentence, which would make sense given the date of the sentence and the PSD. So obviously you will not be paroled given the sentence that I am imposing , and I will be imposing a new non-parole period.
22But that circumstance alone is of prominence in the sentencing exercise, because I must have regard to that offending, and that sentence, and the offending before me, and as best I can, arrive at an overall sentence reflective of the overall criminality. In order to do that, I might have to moderate what would otherwise be appropriate sentences. So that sentence is in relation to attempted armed robbery and other offences. Of great concern in relation to this matter, is you were on bail for that offence, having spent about a year on remand prior to release on bail at the time of committing these serious offences before me.
23It is of great concern that that period on remand, with that serious matter hanging over your head, did not deter you from engaging in the offending before me. It is very troubling from a prospects-of-rehabilitation point of view, the fact that that stint in custody did not deter you. Prior to Judge Dalziel's sentence upon you, I was told that 110 days was the longest you had been sentenced to or spent in custody. Your criminal history commences in around 2018. You have had numerous appearances in the Magistrates' Court since that time, many of them for drug offences.
24You have findings of guilt for possession of prohibited and controlled weapons, numerous charges of committing indictable offences on bail or other breaches of bail. You, Mr Ahmed, have a lengthier criminal history. Of particular note, you served a lengthy sentence of imprisonment, seven years and nine months with a non-parole period of five years and nine months. You were sentenced to that sentence in 2010, and it was affirmed on appeal in 2012. That sentence involved offences of Aggravated Burglary with an offensive weapon, Armed Robbery, Blackmail, Intentionally Cause Serious Injury, and Intentionally Cause Injury.
25That was not a stand-alone sentence in the context of your criminal history. Your criminal history goes back to 2004. Subsequent to that significant sentence, you also received 15 months' imprisonment for trafficking methylamphetamine in 2018, 12 months' imprisonment for possessing drugs and drug offences in 2021, and you had two years and two months hanging over your head from a drug and alcohol treatment order from 2022 at the time of this offending which I am told has since been restored, and you were sentenced to 16 months with a non-parole period of 10 months.
26Obviously, given your remand on these matters, that is effectively a 16-month sentence. I am told that the sentence has expired in December last year and so you have been accumulating pre-sentence detention since that time, and I will get an updated figure in a moment.
27In Mr Brown's helpful outline in respect of you, Mr Ahmed, there was a chronology. It was actually in the sentencing indication submissions, the chronology at the start, setting out the recent history from December 2018, and I have had regard to that in assessing the argument for totality in your particular case.
Personal circumstances
Hayyu Aden
28Turning to personal circumstances, each of your personal circumstances are quite contrasting and that is not surprising with co-offenders. They are contrasting despite your shared cultural background and your relatedness.
Mr Aden, you were born in Melbourne and grew up in a stable, loving, hardworking family, and your achievements up until early adulthood reflect that stability and support. You were a gifted sportsperson and a very competent student. After high school you started a degree in civil engineering at RMIT. You transferred to a business degree at Victoria University. You did 18 months of that course, and matters intervened in relation to being remanded in custody.29Your family by no means have had it easy, and some of your siblings were born in their country of origin, and some of them were born here. You were one of the siblings that was born in Melbourne. You parents are Ethiopian, you are one of a sibship of five. Your parents fled the instability of Ethiopia and arrived in the late 80s. You are part of the Oromo community in Melbourne. Your parents were educated and, upon coming to this country, have worked very hard and raised law-abiding and productive children. I am not going to summarise all of your achievements; your achievements in the sporting field, the academic levels you have attained, and the capacity you have shown for completing tertiary education.
30There have been matters in your life which I accept have been very challenging for you emotionally and have impacted upon you. In particular, your brother's illness is something that has been very confronting for you and something that has impacted on you. It is a pity that that has not been channelled into more productive support for your family. Instead, you succumbed to that pressure of distress that you experienced as a result of your brother's difficulties, and went down the path of drug use. I was told that you engaged in drug use from a young age.
31What seems to have developed is, once you obtained a bit more freedom and hit the tertiary level, that you became involved in the party drug scene, if I can use a colloquialism. But there is a vulnerability there clearly with you, and it has destroyed your life up to this point, but you can turn it round. You have the capacity to turn it around. You have spent a long time in prison being forced to reflect on the choices that you have made. There is also other trauma referred to in the materials in your early life which seems to have impacted on your psyche. Over the journey there have been assessments of complex Post-Traumatic Stress Disorder.
32I have received reports from Mr McKinnon and Ms Fleming. There have been some difficulties in your life, but the positives in supports and the stability that you have had, overshadow those difficulties to my mind. You have got a drug problem. It is something that you have to address. It is something that you have the intelligence and the family support around you to be able to address it. There were a number of references, really that supported that observation of mine, that were tendered on your behalf. I am not going to list them all in these Reasons for Sentence.
33Many of the references that have been provided in your case are authored by members of the community who have also provided references in respect of Mr Ahmed's case, and it is clear that you have both been involved in community activities and engagement when you have been able to, when you have not been in custody. In your case,
Mr Ahmed, that has not been for extended periods over the last number of years.34However, it has been difficult to reconcile in respect of both of you, and that is you Mr Aden, and in particular you, Mr Ahmed, the assessments of unwavering kindness, generosity and dedication to those around you, commitment to community, empathy, kindness and responsibility. These are some of the descriptions that those referees have attributed to each of you. It is difficult to reconcile those sentiments with your current circumstances and your criminal histories. However, what is clear, is that you both have strong community support.
35Returning to you Mr Aden, you have been endeavouring to engage in programs in custody. I also received the letter from you which was part expression of remorse and part plea for leniency and part legal submission. But I do accept that the impact of the length of time that you have been sentenced to, and what awaits you now, weighs heavily upon you and, in terms of specific deterrence, it would surprise me if you have not at this point learnt that re-engagement in drug use, and in particular re-engagement in standover-type offending, would not be in your interests in the future, and would land you back for longer and longer periods of custody, which would all but extinguish the promise you have shown as a teenager and early adult.
Jafar Ahmed
36Mr Ahmed, you are the oldest of the three co-offenders and you, Mr Aden, are the youngest. You, Mr Ahmed, were 35 at the time of the offence and you are now 37. You have not had the stable upbringing of Mr Aden, quite the contrary, and you have a number of circumstances particular to you which are quite disparate from those involving Mr Aden. Your background is one where you were exposed to trauma of a high level from a young age. You grew up during the civil war in Ethiopia with your mother, sister and grandmother. You have witnessed severe violence from a young age, coming to Australia via a refugee camp.
37I was told that you have witnessed a friend of yours fall and die from a 20-storey building. I accept that there was profound childhood deprivation in your formative years, and I accept the application of Bugmy.[1] Your mother authored a letter which I accept the contents thereof, and also your former partner. Your children experience ASD to a profound degree and the challenges their mother, your former partner, faces in respect of them are immense. I accept that those experiences weigh heavily on you also, as I observed during the plea hearing.
[1]Bugmy v The Queen (‘Bugmy’) (2013) 249 CLR 571.
38It is one thing for others to express that you are needed; your mother needs you, your children need you, I am told your community needs you. I am told your community is better with you in it. It is one thing to accept all of those sentiments. The flip side of that is that you are not available to any of those people because of your choices over a number of years, because of your actions. So what you need to do is to put your head down and work towards parole. Your cognitive profile, I am not going to go into great detail about it, butI note on your earliest matter in your criminal history, there is a reference to a justice plan, and there were materials that Mr Brown provided and indeed the report of Ms Cidoni, that satisfy me that your cognitive profile is a particular circumstance of yours that does have significant sentencing relevance and certainly has some connection in an explanatory way towards this long history of offending of yours, and perhaps your previous position towards drug-use and engaging in these types of offences, together with the effects of trauma and which I put under the Bugmy heading - trauma and profound childhood deprivation.[2]
[2]Bugmy.
39Those two together are often a recipe for a predisposition towards drug-use and they're criminogenic factors. So there is an explanatory connection to the offending. The other side of that analysis, of course, is that with your long history and my satisfaction in relation to those factors, there are community protection and prospects-of-rehabilitation considerations that have to be kept clearly in mind.
Totality and Parity
40Totality is important, as I have said, in respect of both of your cases. Each of you received a sentencing indication from me prior to entering your pleas of guilty. Your pleas of guilty are nonetheless of significance, and worthy of significant discount.
41I have reflected more on the totality issue and also, after having the pleas, hearing more about you, reading more about the reference material, and engaging more with the materials, I have a better understanding of each of you, and there will be a slight moderation to that sentencing indication in respect of each of you, based primarily upon my assessment of totality. Parity is another matter I have had to have regard to and, as best I am able, drawing together the disparity and the parity in offending, in terms of roles, Mr Ahmed you were involved essentially for the duration and were armed with an imitation pistol.
42You also engaged in a lot of the threatening language and demands, but you, Mr Aden, played a very incisive role, and you were demanding and threatening as well. I do not see a great disparity there. Your histories and your age are probably the greatest disparity, but you, Mr Ahmed, have Bugmy mitigation available to you, and the relevance of your cognitive profile which I have referred to in particular, and to some degree the weight upon you of your family circumstances and your children on the outside.[3]
[3]Bugmy.
43I did not mention your sister either, which I will not dwell on, but I have read through the materials, and that is a sad and tragic circumstance of your family and again, in part, perhaps reflective of trauma and intergenerational trauma. So they are some matters that you have in your favour, Mr Ahmed, that Mr Aden does not, but as I said, Mr Aden is younger, and has a more limited history. He is also in the midst of a lengthy sentence, so then there is that. The totality considerations are not the same between each of you. So, I have tried to draw all those similarities and disparities together as best I am able when applying the principle of parity.
44I have mentioned already that general deterrence and denunciation are very significant sentencing factors for offences of this type, and I do not need to say any more about that. Those principles are reflected in my sentence. I have also endeavoured to assess each of your prospects of rehabilitation as best I am able to, based on the materials.
Sentence
Hayuu Aden
45Turning to you first, Mr Aden, in respect of the charge of False Imprisonment you are sentenced to Two and a half years' imprisonment. In respect of the offence of Extortion with Threat to Kill, Three years and Nine months' imprisonment. In respect of the charge of Blackmail, Two years' imprisonment, and in respect of the charge of Unlawful Assault, Two months' imprisonment.
46The base sentence is the sentence imposed on Charge 2. Two months of the sentence imposed on Charge 1 will be cumulative on that base sentence and other sentences.
47Two months of the sentence imposed on Charge 3 will be cumulative on the base sentence and other sentences, and one month of the sentence imposed on the relevant summary offence of Unlawful Assault will be served cumulatively on the base sentence and other sentences. That results in a Total Effective Sentence of Four years and Two months. I set a non-parole of Two years from today. That is the new non-parole period across the sentence that you are currently undergoing.
48That disparity between the head sentence I impose and the new non-parole period is reflective of what I consider to be strong prospects of rehabilitation if you are able to address your drug issues and to turn your back on what, in my view, has been an attraction towards ‘gangster-type’ activity, because for your family and, for those reasons, I am satisfied that two years from today is an appropriate period for an opportunity for you to complete the sentence under parole.
49Pursuant to s6AAA, were it not for your plea of guilty, Mr Aden, I would have sentenced you to a Total Effective Sentence of Six years with a non-parole period of Four and a half years. Mr Page, there is no PSD, am I right?
50MR PAGE: Seventy-two days, I think ‑ ‑ ‑
51HIS HONOUR: Seventy-two is there?
52MR PAGE: Yes.
53HIS HONOUR: Okay. Seventy-two days' PSD. I make that declaration. You have served 72 days' pre-sentence detention.
Jafar Ahmed
54Mr Ahmed, on Charge 1, False Imprisonment, you are sentenced to Two years and Nine months' imprisonment. In relation to Extortion with Threat to Kill, Three years and Ten months' imprisonment. In relation to Blackmail, you are sentenced to Two years' imprisonment. In relation to Prohibited Person Possess Imitation Firearm, you are sentenced to Two years' imprisonment. Four months of the sentence imposed on Charge 1 will be served cumulatively on the base sentence, which is Charge 2, and other sentences. Two months of the sentence imposed on Charge 3 will be served cumulatively on the base sentence and other sentences, and four months of the sentence imposed on Charge 4 will be served cumulatively on the base sentence and other sentences.
55That makes a Total Effective Sentence of Four years and Eight months. I set a non-parole period of Two years and Ten months.
56HIS HONOUR: PSD, is it 359?
57MR GOETZ: Yes, sir.
58HIS HONOUR: PSD is 359 days and I make that declaration. Pursuant to s6AAA, were it not for your plea of guilty, Mr Ahmed, I would have sentenced you to a Total Effective Sentence of Seven years with a non-parole period of Five years.
59Now, were there orders for disposal?
60MR GOETZ: Sir, you will be sentencing the other accused on 21 August and on that day ancillary orders will be sought.
61HIS HONOUR: Yes, all right, we will do that then.
62MR GOETZ: Thank you, Your Honour.
63HIS HONOUR: I don't think there are any other orders. All right, thank you everyone and now we will adjourn the court.
64MR PAGE: Thank you, Your Honour.
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