Director of Public Prosecutions v Aden
[2023] VCC 392
•9 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-22-01244
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YAHYA ADEN |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 March 2023 and 9 March 2023 | |
DATE OF SENTENCE: | 9 March 2023 | |
CASE MAY BE CITED AS: | DPP v Aden | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 392 | |
REASONS FOR SENTENCE
Subject:Criminal law
Catchwords: Causing serious injury recklessly in circumstances of gross violence
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:DPP v Hole & Anor [2022] VCC 1980; Worboyes v The Queen [2021] VSCA 169; Azzopardi, Baltatzis, Gabriel [2011] 35 VR 43
Sentence: Convicted and sentenced to 3 years and 2 months detention in a
Youth Justice Centre; 178 days have been reckoned as time served.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Buchhorn | Office of Public Prosecutions |
| For the Accused | Mr. C. Pearson (Plea) Mr J. Riordan (Sentence) | Balmer & Associates |
HER HONOUR:
1 Yahya Aden, you have pleaded guilty on indictment to a single charge of causing serious injury recklessly in circumstances of gross violence. The relevant event occurred on 20 November 2021 when you were 18 years of age.
2 In sentencing you for your crime I am obliged to consider the maximum penalty for the offence you have committed. The maximum penalty for causing serious injury recklessly in circumstances of gross violence is one of 15 years' imprisonment.
3 The circumstances of your offending were set out in a document entitled “Amended Summary of Prosecution Opening” dated 26 March 2023. This is an agreed document and represents your acceptance of the elements of the offence to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
The offences
4
I have had recourse to the full Crown opening but, in short compass, on Saturday 20 November 2021 you and your four co‑accused were together as part of a group of eleven males and four females who visited the
Avant Apartments located at 60 A'Beckett Street, Melbourne. Your four co‑accused are Mohamed Akram[1], Abdul Askar[2], Rauf Farah[3] and Murad Ibrahim[4].
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
5
At approximately 3.50am, the group of males and females gathered in the elevator lobby on Level 44 of the apartment building before making their way out and congregating in a laneway in front of the side entrance to the
Empire Apartment building located at 81 A'Beckett Street. Each apartment building was equipped with CCTV cameras.
6
At approximately 4.40am, CCTV cameras to the side entrance of the
Empire Apartments captured you in the congregated group. About this time, an altercation between unknown members of the group and the victim,
Taylor Hapamana, occurred at the front of the Empire Apartment building.
Mr Hapamana has run into the laneway where the remainder of the group was still congregating. He was chased into the laneway. In the laneway
Mr Hapamana stood with his back against the wall across from the side entrance of the Empire Apartments. Mr Askar was holding a large
silver-coloured knife and walked towards Mr Hapamana. Mr Akram also postured at Mr Hapamana in an aggressive manner.
7 Other members of the group, which included you, circled Mr Hapamana who then retreated backwards further into the laneway. He was followed by the group who surrounded him. At this point Mr Askar was still holding a knife and you were a short distance behind him. Members of the group, including you, Mr Akram, Mr Farah and Mr Ibrahim, and at least one other unknown male, have then began to punch and kick Mr Hapamana. In response the victim has bent over and raised his arms to defend his head. At this time, you kicked Mr Hapamana to the left side of the head. Mr Hapamana has then fallen backwards onto the ground.
8 In clear view of the group Mr Askar continued to hold the knife in the direction of Mr Hapamana. Whilst on the ground Mr Hapamana has curled up on his knees into a ball and covered his head with his arms. The group, which again included you, Mr Akram, Mr Farah and Mr Ibrahim, and at least two other unknown males, surrounded him. You each then punched, kicked and stomped him several times to his head, legs and torso. The victim has then fallen onto his left side, remained curled up and continued to cover his head with his arms.
9 You have walked over, literally walked over, Mr Hapamana to go to the other side. The group continued to punch, kick and stomp the victim. Whilst doing so Mr Askar has stood over Mr Hapamana directly next to you. You were kicking and stomping the victim. Mr Askar has then crouched down and stabbed Mr Hapamana twice with a kitchen knife, once to his right arm and once underneath his right armpit. Whilst Mr Askar was doing this you continued to kick or stomp the victim. As Mr Askar was standing back up you kicked Mr Hapamana two more times.
10
The group then ran from the laneway and Mr Askar has dropped the knife beside the victim. Once the group has left Mr Hapamana attempted to stand up, but remained on his knees for a short time. Mr Farah and
Mr Ibrahim returned to the laneway. Mr Hapamana made it to his feet and walked around the corner into Literature Lane. Mr Farah and
Mr Ibrahim followed him and Mr Ibrahim punched the victim and Mr Farah threw a beer bottle at him before again running away. You were not said to be present for this event and will not be punished for it.
11 As Mr Hapamana continued down Literature Lane he sat and then laid down in the street. Shortly thereafter he was assisted by a witness, Stuart Hayne, who had seen the group flee from the laneway next to the Empire Apartment building. Police and paramedics were called and attended.
12 You left the scene with four females, followed by Mr Askar, and went to the Melbourne Central shopping centre, arriving at approximately 4.06 am. You were arrested by police shortly afterwards. When interviewed you told police that there had been an argument between the victim and members of the group before the assault. You agreed that you were part of the group which assaulted Mr Hapamana, but denied knowing that anyone had been stabbed.
13 Mr Hapamana lost an estimated 2.75 litres of blood. By the time he arrived at hospital he was in haemorrhagic shock. He required emergency surgery to address his wounds and was placed in an induced coma and intubated. A catheter was required to drain the 750 mils of blood from his chest. The wounds had to be sutured to stop the bleeding and he required a blood transfusion. After the operation he was moved to an intensive care unit and was discharged from hospital on 23 November 2021.
14
He suffered a right side hemopneumothorax, air between the chest and lungs, nasal bone fracture, lacerations to his right arm that were 4 centimetres long and 5 centimetres deep and bruising around the left eye. The injuries
Mr Hapamana suffered are said to have been life-threatening.
15
The charges are said to have occurred in circumstances of gross violence, as you and your co‑accused continued to cause injury to the victim after he was incapacitated. He was incapacitated from at least the moment he had fallen to the ground, curled up into a ball and was not resisting the assault. In accordance with s323(1)(a) of the Crimes Act 1958, at the time of the assault upon Mr Hapamana, resulting in serious injuries, you assisted to encourage the other members of the group, which included Mr Askar, Mr Akram,
Mr Farah, Mr Ibrahim, and at least one other unknown male, to commit the offence of causing serious injury. This can be inferred by your conduct before the assault and your participation in it. This is the agreed position of the parties.
Victim impact and offence gravity
16 The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
17 Mr Hapamana was only 23 years of age at the time of the attack on him and not known to you. In a victim impact statement dated 20 April 2022 Mr Hapamana speaks of how your crime has affected him. He suffered obvious physical injuries which meant he was unable to commence a new employment position. He still had difficulty breathing and moving and was unsure whether this was a result of physical injury or psychological distress.
18 He speaks of extreme anxiety at being alone and a general feeling of uneasiness if out in public. He struggles to find enjoyment and to communicate with people he cares about. Mr Hapamana's victim impact statement was read to the court so the profound impact of your offending upon him cannot be lost on you.
19 Your offending is obviously serious. You were, as described, an active participant. The attack appears unprovoked.
20 The incident has been captured on CCTV which has been tendered. It does not make for comfortable viewing as multiple offenders pursued and then set upon Mr Hapamana in a savage and violent attack. Some of the blows were to his head region. Mr Hapamana is completely defenceless in the circumstances of being kicked, punched, stomped on and stabbed by an enclosed circle of youths.
21 There is no evidence of premeditation or planning. The attack itself was of short duration, some two seconds, and you are not said to be responsible for the direct use of a weapon. Nevertheless, it is staggering to contemplate that so much harm can be caused in so few seconds and for no real reason. The use of a knife is inherently dangerous as this incident serves to highlight. Having viewed the footage, I accept that you were aware of the presence of the knife. As I have already referred, Mr Hapamana suffered life threatening injuries and the consequences for him appear to continue.
22 Such an attack is simply cowardly and amplified by leaving the scene without offering any assistance. In addition, the offence has occurred in a public place and risked exposing others to what can only be described as horrendous violence. Street violence is unfortunately prevalent so a clear message needs to be sent that condign punishment awaits those who are prepared to be involved.
23 The Crown have referred me to one decision of this court, DPP v Hole & Anor [2022] VCC 1980, to assist as a comparable case, and I have had recourse to that document. Each accused in that case entered pleas of guilty to a charge of recklessly cause serious injury in circumstances of gross violence and the provisions of s323(1)(b) of the Crimes Act also applied. This case has been of some assistance, although I note that neither offender was avail themselves of a youth justice centre order by virtue of their respective ages at the time of sentencing.
Parity
24 That brings me to the parity principle, a principle which demands that any sentence imposed reflects differences in the culpability and personal circumstances of co‑offenders and avoids unjustifiable differences in co‑offender sentences.
25 Each of your co-offenders have been dealt with by the Children's Court as follows:
- Abdul Askar was the principal offender responsible for stabbing the victim twice. At the time of the offending he was aged 16 years and two months. He pleaded guilty to one charge of intentionally cause serious injury in circumstances of gross violence. He was convicted and sentenced to a youth supervision order for a period of 18 months.
- Mohamed Akram was aged 16 years and 11 months at the time of the offending. He pled guilty to one charge of recklessly cause serious injury in circumstances of gross violence. He was convicted and sentenced to a youth attendance order for a period of 12 months. He had served
153 days on remand.
- Rauf Farah was aged 16 years and eight months at the time of the offending. He was one of the persons who returned after the group had fled and further assaulted the victim. He pleaded guilty to one charge of recklessly cause serious injury in circumstances of gross violence. He was sentenced to a youth supervision order for a period of 12 months without conviction. He had served some 155 days on remand.
- Murad Ibrahim was aged 14 years and nine months at the time of the offending and had also returned after the group had fled and further assaulted the victim. He pleaded guilty to one charge of recklessly cause serious injury and was placed on probation.
26 The Children's Court does have a differing sentencing regime and different emphasis in that regime to which I cannot have regard in terms of the sentence I am to impose on you in circumstances where you are to be sentenced as an adult and according to the provisions of the Sentencing Act, but I do accept that parity considerations do still have some role to play.
Plea of guilty
27 The Sentencing Act obliges me to take into account the stage at which you entered your guilty plea.
28 This matter resolved a week before your trial was due to commence and hence has occurred at a relatively late stage. Nevertheless, there remains clear value in saving witnesses of the need to give evidence in contested proceedings and utilitarian value in saving the time and expense of those proceedings.
29 Your decision to plead guilty in the context of the COVID-19 pandemic does have additional utilitarian value as it does provide certainty and finality to all parties in circumstances where the court's operations were significantly disrupted and still there is some difficulty in fixing trial dates.
30 In the still recent decision of Worboyes v The Queen [2021] VSCA 169, at paragraph 39, the Court of Appeal said that:
'A plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.'
31 I appreciate that we have passed the very hard times associated with the pandemic but the impact on the courts is still continuing and the discount in my view should still attach.
32 Based on the materials before me I do accept that you are remorseful for your conduct. These factors will be taken into account in your favour.
Personal circumstances
33 In terms of your personal circumstances, you were born in Melbourne to Somalian parents. You understand that your parents escaped civil unrest in Somalia. Your family reside in Truganina.
34 You have five brothers and two sisters ranging in age from 17 to 32 years. Both you and your younger sister are the only siblings born in Australia. Your father has worked as a taxi driver and is now retired, whilst your mother runs a family day-care business.
35 You have been to Somalia once for a period of about a year after the death of two of your grandparents when you were around nine years of age. You describe that experience as scary. You report seeing a cousin murdered, houses on fire, and people being stabbed and assaulted.
36 In 2017 you were diagnosed with attention deficit hyperactivity disorder and were prescribed medication. You stopped taking it midway through 2021 as you found it kept you too alert at night-time.
37 In November of 2021, three of your cousins were killed in a car accident in Truganina. This loss impacted your entire family and you describe your family as being full of grief. One of your cousins was a particularly close friend of yours and it significantly affected your schooling. In terms of your education you did complete an unscored VCE.
38 You have used cannabis from the age of 17 years until the end of 2020. You commenced using alcohol heavily after the death of your cousin and from November 2021 would use Xanax with alcohol. Whilst offering you no excuse, you had used both Xanax and alcohol at the time of your offending before this court.
39 You are yet to engage in paid employment, but you would like to attend TAFE to study to become an electrician.
Prior criminal history
40 You have a relatively limited prior criminal history.
41 On the same day, that being 27 September 2021, you appeared at both the Werribee Magistrates Court and the Werribee Childrens Court. In the Childrens Court, you were placed on a good behaviour bond without conviction for 12 months for four charges of theft, possessing a prohibited weapon and attempting to commit an indictable offence. In the Magistrates' Court you were sentenced to a community correction order for a period of 12 months for charges of robbery, theft, criminal damage, failing to comply with a direction to assist, and to charges of committing an indictable offence whilst on bail.
42 You were obviously subject to each of these orders for a period of about two months at the time of your offending on 20 November 2021. This fact is an aggravating feature to the offending before me.
43 You also have matters pending which are yet to be resolved. Your prior criminal history is relevant to the assessment in sentencing as to the weight to attach to the principles of general deterrence, denunciation and protection of the community, all which do have application in your case.
44 It is also relevant to the assessment as to your prospects for rehabilitation which, in my view, are not in any way displaced by your limited prior criminal history.
Prospects for rehabilitation
45 In terms of your prospects for rehabilitation, you were 18 years and six months at the time of your offence.
46 At the time of your sentencing, you are defined in the Sentencing Act 1991 to be a young offender by virtue of your age.
47 In a decision of Azzopardi, Baltatzis, Gabriel [2011] 35 VR 43 at paragraphs 34 to 36, Justice of Appeal Redlich made clear the reasons to prioritise youth as a sentencing consideration. These include that young offenders are immature and may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
48 Further, that it is recognised by the courts the increased potential for young offenders to be rehabilitated- which is obviously in the public interest- and that incarceration can impair, rather than enhance, a young offender's prospects of rehabilitation.
49 I accept that these considerations all have application to your case.
50 Whilst there are occasions on which the sentencing principles as they relate to youth can take a back seat, this is not one of those cases and your youth should be given proper consideration and proper weight in the sentencing mix, indeed some primacy in it. Arguably, the community is better served, indeed better protected, by steering young offenders away from a life of crime and risk being contaminated by the adult gaol system.
51 Personal matters for you appear to have culminated in late 2021. This was a time where three of your cousins were killed in a motor vehicle accident and you had a particularly close relationship with one of them. Your drug use escalated after this event and your role in this offence occurred at that very same time. It would appear that dealing with that grief and your drug usage would go some way to reducing your future risk.
52 A report authored by Gina Cidoni, psychologist, dated 20 February 2022 has been tendered on your behalf. At that time you were on remand in adult custody at Ravenhall Correctional Centre. Ms Cidoni found that you showed insight in discussions around your offending, particularly around your peer associations. She described you as remorseful and that you understood the impact of your offending on others. She found that you have a low average intellectual capacity and have previously been diagnosed with attention deficit hyperactivity disorder and a panic disorder.
53 Ms Cidoni diagnosed you with post-traumatic stress disorder with anxiety, adjustment disorder with depressed mood, attention deficit hyperactivity disorder and substance use disorder. Your post-traumatic stress disorder is linked to the trauma you experienced when your family returned to Somalia when you were nine years of age and the death of three family members in November of 2021. Your abuse of substances is your mechanism to cope with that trauma. Ms Cidoni did express concerns for you in the adult prison environment in her report from February of 2022 given your symptoms and your immaturity. She was of the opinion that you would be particularly vulnerable in that context.
Submissions
54 In terms of sentencing both parties submitted that the imposition of a youth justice centre order, as opposed to an immediate term of adult imprisonment, would not be wholly outside the range of sentences reasonably available in the circumstances. There are a range of sentencing provisions which needed to be dealt with and I turn to those now.
55 The charge of causing serious injury recklessly in circumstances of gross violence is a category 1 offence under the Sentencing Act 1991 and, therefore, pursuant to s5(2G) I am required to impose a sentence of imprisonment which cannot be in combination with a community corrections order. Section 10(1) of the Sentencing Act requires that the court impose a term of imprisonment and fix a non‑parole period of not less than four years unless a special reason exists. This provision does not apply to a person who is involved in the commission of an offence within the meaning of s323(1)(a) or (b) of the Crimes Act 1958 and, therefore, it is conceded it does not apply in your case.
56 Pursuant to 32(1) of the Sentencing Act, if sentencing involving the confinement of a young offender is justified, the sentencing court may make a youth justice centre order instead of a term of imprisonment to adult prison if, having received a pre‑sentence report, the sentencing court believes, firstly, that there are reasonable prospects of rehabilitation of the young offender, or the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.
57 In considering the making of such an order the court is also required to take into account the nature of the offence and the age, character and past history of the offender.
58 The charge of causing serious injury recklessly in circumstances of gross violence is a category B serious youth offence. Unless there are exceptional circumstances s32(2D) of the Sentencing Act prevents the making of a youth justice centre order if the young offender has been sentenced for a category B serious youth offence and that person has previously been convicted of either a category A serious youth offence or category B serious youth offence.
59 These provisions do not apply to you as fortunately you have not previously been so sentenced or convicted. Accordingly, I was in a position to have you assessed as to your suitability for a youth justice centre order.
60 A suitability for youth justice centre order report dated 1 March 2023 has been provided and I have had recourse to the entire document. In short, the findings were that you were not suitable for a youth justice centre order.
61 The author of the report was required to give evidence and was cross‑examined. He made a number of concessions about the information he received or had access to and how it was interpreted by him. This does impact on the weight I am prepared to give the written report.
62 Despite the outcome of the assessment by Youth Justice I am satisfied that you do present with reasonable prospects of rehabilitation. I make this finding based on your young age at the time of the offence, only one prior court appearance where the supervisory order by way of community corrections order had barely commenced before you were remanded into custody, the report of Ms Cidoni, which included reflections of your insight and remorse, both of which augur well for your future prospects and the continued support of your family. That support is apparent from the supervised bail reports, which I will refer to, and their presence for your sentencing hearing.
63 My access to numerous supervised bail progress reports also contributed to my findings. These reports cover a period between 21 December 2021 and 14 October 2022.
64 You were subject to two periods of supervised bail with Youth Justice. The first of those was from November 2021 to February of 2022 and the second was from May of 2022 to October of 2022, a period which totalled some eight months.
65 By way of example, in the supervised bail report from Youth Justice dated 20 December 2021 you were described as engaging well and attending all appointments. Your family was described as being a supportive and stable environment.
66 In the supervised bail report from Youth Justice dated 14 July 2022, the report details that you had been working with Ms Renae Liddell, case manager from an organisation called Youth Junction Inc. Ms Liddell had reported frequent contact with you and to assisting you to place an application for a Certificate II in Electrotechnology at RMIT. Your compliance with supervised bail was described as good.
67
In a supervised bail report from Youth Justice dated 2 August 2022 your contact with Youth Justice had waned. You were, however, in employment and working with other support services, which included Ms Liddell with
Youth Junction Inc., and Mr Mark Cahill, an alcohol and drug worker with the Youth Support and Advocacy Service. Youth Justice reported that your needs were being met by these services and you were no longer a candidate for Youth Justice supervised bail.
68 In a supervised bail progress report dated 31 August 2022, you were still working with Ms Liddell and had secured an induction for a warehousing position. You were also still working with the Youth Support and Advocacy Service. You were not really working with Youth Justice by this stage, preferring the assistance you were receiving from other agencies. There is a clear pathway in the documents before me of your continued approach towards rehabilitation.
69 You were remanded into adult custody on 26 October 2022 and you do have outstanding matters, but this does not impact on my assessment that you do present with reasonable prospects for rehabilitation.
70 I note Ms Cidoni's concern about your immaturity, identified conditions and vulnerability in an adult custodial situation, but there is no update since her report of February 2022 for me to make a positive finding under s32(1)(b).
Sentencing
71 The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
72 In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim. I must also balance the interests of the community in denouncing criminal conduct with the clear interests of the community in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
73 I have taken into account the guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account the current sentencing practices as best I am able for the offence to which you have pleaded guilty and the important principles of proportionality.
74 Therefore, on the single charge of recklessly causing serious injury in circumstances of gross violence, you are convicted and to be detained in a youth justice centre for a period of three years and two months. I reckon 178 days as having already been served.
75 Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to that charge. There is considerable artificiality in doing that given the factors which have impacted on the sentence, including the maximum penalty available for Youth Justice. However, as best that I am able, if not for your plea of guilty I would have sentenced you to a total effective term of four months in a youth detention centre. Am unlikely to have looked at imposing a term of imprisonment.
76 Anything I missed from your end, Mr Buchhorn?
77 MR BUCHHORN: Your Honour, just in terms of the 6AAA statement, I think Your Honour said four months. Did Your Honour mean four years?
78 HER HONOUR: I did. Thank you very much.
79 MR BUCHHORN: Yes.
80 HER HONOUR: It's been a big day. Thank you, Mr Buchhorn.
81 MR BUCHHORN: Otherwise, I have nothing to add.
82 HER HONOUR: Thank you. Mr Riordan?
83 MR RIORDAN: No, Your Honour, nothing further.
84 HER HONOUR: All right. Well, I will leave you to speak to your client privately. Thank you for your assistance as well today.
85 MR BUCHHORN: Thank you, Your Honour.
86 HER HONOUR: And I'm closing the court until 9 o'clock tomorrow morning.
87 MR BUCHHORN: If the court pleases.
88 MR RIORDAN: If the court pleases.
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