Director of Public Prosecutions v Aden

[2014] VCC 1797

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01445

DIRECTOR OF PUBLIC PROSECUTIONS

v

NASIR ADEN

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 October 2014
CASE MAY BE CITED AS:	DPP v ADEN
MEDIUM NEUTRAL CITATION:	[2014] VCC 1797

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper
For the Offender	Mr A. Lewin

HER HONOUR: 

1Nasir Kadeh Aden, you have pleaded guilty to one charge of robbery (Charge 1) and one charge of armed robbery (Charge 2).  The maximum penalty for robbery is 20 years' imprisonment.  The maximum penalty for armed robbery is 25 years' imprisonment.

2The prosecution sought orders for the taking of a forensic sample from you and the disposal of certain items.  The making of those orders was not opposed. 

3The circumstances of your offending are set out in the Crown Opening Statement of Agreed Facts which was tendered as Exhibit A.  In brief, the circumstances were as follows.

4Charge 1 of robbery relates to the following circumstances.  On Thursday 26 September 2013 at approximately 12.20 am you went to a petrol station in Laverton North.  The store attendant was working alone at the service counter.  You were wearing a black hooded top, black leather jacket, a piece of material across your face, black trousers, and black casual shoes. 

5You approached the attendant and engaged him in conversation.  You then picked up a bottle of what I understand to be a car washing substance from a display shelf and poured the contents on the floor before dropping the bottle.  You then asked the attendant to come and clean up the mess but the attendant refused.  You then fell on the ground and called out to the attendant that you had slipped over.  You did that in a further attempt to lure the attendant out from behind the service area, but the attendant remained behind the service area. 

6You then stood up and approached the service counter.  You made demands for cash and cigarettes.  You said you had a gun and would shoot.  You unzipped your jacket and appeared to reach inside it.  You then pulled out a plastic bag and handed it to the attendant who put about $700 in cash and ten packets of cigarettes in the bag.  You then ran from the store to a dark coloured Toyota sedan in the rear car park and was driven away by an unknown person. 

7

Charge 2 of armed robbery concerns the following circumstances.  On Tuesday 12 November 2013 at approximately 3.10 pm, you and a

co-offender, Joseph Vitali, attended at a brothel in Hoppers Crossing.  At the time, the female duty manager was working at the front counter.  You and

Mr Vitali approached the locked front security entrance, removed the hoods from your jackets and were then admitted to the venue.  You then produced a blue box cutter and threatened the manager demanding that she hand over cash.  You said, "Where is the money?  Get the money, get the money", and, "Give me the fucking money". 

8You then went behind the counter and began to open drawers.  You picked up two mobile phones from the service desk with a combined value of about $800.  You and Mr Vatali then left the premises.  You went to a Ford sedan driven by a co-offender and were driven off. 

9You were arrested on 14 November 2013. 

10The victims in these matters were advised of the opportunity to make a victim impact statement, but declined. 

11In sentencing you, I have taken into account your personal circumstances.  Your personal circumstances were described by your counsel and were also set out in the report which was tendered from Mr Warren Simmons, psychologist, dated 18 September 2014.  You had what can only be described as an extremely traumatic early childhood.  You are now 28.  You were born in Somalia.  You lived there for some time before your family fled to Kenya where you lived in a refugee camp for about four years.  Your family came to Australia when you were seven.  By the time you came to Australia, your mother had been killed.  She was killed when you were about four as a result of the conflict in Somalia.  You had also lost a brother and a sister when they were at young ages. 

12Your father in Australia has worked as a taxi driver.  He has remarried.  Your father and your stepmother have three children and your stepmother had three children of her own.  You have an older brother.  You say that you do not have much contact with your older brother. 

13You described a number of matters to Mr Simmons of events that you recalled from your early childhood which are properly described as horrifying.  Your family had a great deal of hardship whilst you were in Somalia.  Things were better in the refugee camp, but you still struggled for food and water. 

14You told Mr Simmons, and I accept, that you suffered a degree of culture shock on your arrival to Australia and had some difficulty settling in.  At times you have had difficulties in your relationship with your father, whom you consider to be a strict person.  I note that you have had some distance in your relationship with your stepmother.  That said, your father and as I understand it, your stepmother, have been in court to support you.  They remain supportive of you, and you are able to live with them on your release from prison. 

15You disclosed to Mr Simmons that you had been abused by a neighbour when you were a child in Australia for about three years.  You have not discussed the nature of that abuse with your family, but it is clear from what Mr Simmons says that that has had some negative impact on you. 

16At school you struggled academically but completed year 12.  You had also some difficulties with truanting whilst at school.  You started university but dropped out after a few weeks.  You then worked in factory work until you were involved in a motor vehicle accident in February 2008.  You were a passenger in a motor vehicle and suffered significant injuries.  Those injuries have had ongoing impacts on you of a physical nature as well as a psychological nature.  You had a further motor vehicle accident in 2012 and you have not worked since that time. 

17You had used cannabis on a few occasions but did not begin regular use of cannabis until after the first motor vehicle accident when you began smoking it on a daily basis.  You say that a friend, who is also your co-accused, told you about synthetic cannabis and you used synthetic cannabis for about five months before the current offences.  Mr Simmons says you told him that in some ways the effect of that was worse than using real cannabis. 

18You say that after the second motor vehicle accident your co-accused introduced you to methamphetamines and you were using methamphetamines at the time of this offending.  You had also used synthetic amphetamines.  You also have a history of excessive alcohol consumption. 

19It is Mr Simmons' opinion that your memories of early childhood have had a psychiatric impact on you.  It is his opinion that the first motor vehicle accident worsened your psychiatric condition.  He says that after that, you became depressed and withdrawn, and developed panic attacks.  You then also began significant substance use.  It is Mr Simmons' opinion that you have suffered from a post-traumatic stress disorder.  He suggested that condition has been chronic and began while living in your homeland, although there have been further matters which have exacerbated or contributed to that condition since.  

20Mr Simmons suggests that you would benefit from a referral to a therapist skilled in the treatment of post-traumatic stress disorder, especially in someone whose symptoms have arisen from what he describes as "war torn experiences".  Mr Simmons says:  

"While treatment for his substance use has indicated it is unlikely to have much significant impact unless his underlying psychiatric condition is addressed, as his substance use appears to be a form of self-medication". 

21He says if you are able to address those underlying issues, you may be at little risk of further offending. 

22In sentencing submissions, your counsel particularly relied on your plea of guilty, your remorse, your prospects for rehabilitation, and the salutary effect your current imprisonment has had on you.  Your current imprisonment is the first term of imprisonment that you have served. 

23Your counsel also addressed totality issues.  You have been in custody since your arrest in November 2014.  On 24 June 2014, on appeal in this court, sentences were imposed of 60 days in respect of one matter which was reckoned as served, and six months which was the restoration of a suspended sentence.  Your appeal was abandoned in respect of a sentence of three months of a partially suspended sentence.  That three months has been served concurrently with the six months which was reimposed.  You have about two months remaining of that six month sentence.  162 days of your time in custody can be reckoned as served against the sentence which I will be imposing. 

24Your counsel also addressed parity issues.  Your counsel submitted that the sentence on Charge 2 should be significantly less than Mr Vitali's sentence for that offending.  Mr Vitali was sentenced by me in respect to four armed robberies.  In respect of the armed robbery which is the subject matter of Charge 2 in your case, Mr Vitali received a sentence of imprisonment of two years and six months. 

25Your counsel submitted that the appropriate sentence would be a sentence of imprisonment followed by a community correction order.  He submitted that this would further your rehabilitation.  If I did not agree with that, then your counsel submitted that I should set a shorter than otherwise non-parole period because of your need to address your underlying issues. 

26The prosecutor submitted that the appropriate sentence would be a sentence of immediate imprisonment.  In respect of parity, the prosecutor addressed issues relating to Mr Vitali including the application of Verdins principles in his case.  In your case, your counsel properly conceded that there was no application of Verdins principles.  The prosecutor also referred to Mr Vitali's full and frank admissions at the time he was arrested. 

27Mr Aden, clearly your offending is serious.  The offences were both committed against what are described as soft targets.  The maximum penalties set by Parliament indicate the seriousness with which Parliament, on behalf of the community, takes this type of offending.   In respect of Charge 1, the store attendant was working alone, and it was effectively in the middle of the night.  You tried to get him away from the counter.  You then threatened to use a weapon against him.  You did not have a weapon, but you threatened to use a weapon against him.  You made some attempt, albeit a poor one, at disguise.  In respect of Charge 2, the person was working at the front counter.  You threatened her with a box cutter.  That is a nasty type of weapon which is capable of inflicting serious harm.  You made demands and you went behind the counter and took things.   You are a physically imposing man, as is your co-accused, Mr Vitali.  These incidents must have been very frightening for the people involved.  These types of incidents also frighten potential employees and undermine the community's sense of safety. 

28Your counsel said that your crimes were committed to get funds to pay for drugs.  The sentence imposed must be severe enough to deter others from getting money for drugs by committing robberies or armed robberies. 

29I have taken a number of matters into account in mitigation of sentence.  I have taken into account your personal circumstances, including your extremely traumatic early childhood and the assaults in Australia.  I have also taken into account the difficulties that you have suffered since, including the consequences of the motor vehicle accident. 

30You are entitled to a significant discount for your plea of guilty.  I accept that that was at the earliest opportunity and that the contested committal occurred because of Mr Vitali's involvement rather than your involvement.  I accept that your plea of guilty is an indication of your remorse and that you are genuinely remorseful.  Mr Simmons describes you as being remorseful and as having empathy for the victims.  In addition, your letter to the court, which was tendered as Exhibit 4, appears to be a genuine statement of remorse and regret for your offending.  You say that imprisonment has been good for you, as it has given you the opportunity to detox from drugs and to reflect on your conduct.  It is a sad thing that it has taken gaol to achieve this.  It is a great pity that you were not able to make these changes when the courts gave you the opportunity to remain in the community.  You continued to use drugs and offend. 

31You have no prior court appearances for armed robbery but you have committed offences in the past involving violence and involving dishonesty.  These matters give rise to real concern for your prospects of rehabilitation.  In your letter you speak of courses you have done in gaol and I have been provided with documents showing successful completion of those courses.  You also say that you have now been able to disclose and discuss certain matters with a psychologist for the first time.  I accept Mr Simmons' opinions as to the connection between your past, your motor vehicle accidents and your drug taking.  I also accept his opinion that your prospects of rehabilitation rest squarely on your receiving assistance in dealing with your psychological issues. 

32I accept that there has been some salutary effect of your imprisonment to date.  Your current attitude suggests that if given the opportunity, you will engage in counselling and appropriate programs.  You continue to have family support and somewhere to live on your release.  You are remorseful and have accepted responsibility for your actions.  You are relatively young, and it appears that you have increased maturity at this stage. 

33All these are positive signs and I assess your prospect of rehabilitation as being reasonable if you seek and gain assistance for your underlying issues.  It is my view that specific deterrence still has some role to play in sentencing you.  You do need to understand that if you continue to offend, you will be sentenced to more severe punishment in the future.  It is to be hoped that that prospect will deter you from further offending. 

34I have taken into account that you have been in gaol since this offending.  I have given consideration to the application of totality principles in determining the length of the sentences and in making the sentence I am imposing concurrent with the sentence that you are currently serving. 

35I consider that some cumulation is warranted between the sentences to be imposed on the two charges for which I am sentencing you.  That cumulation reflects the seriousness of the separate offending and that there was an additional victim. 

36I have given consideration to the arguments that your counsel made in respect of parity.  You are a similar age to Mr Vitali.  Mr Vitali had a somewhat more serious criminal history and was being sentenced for four armed robberies.  He had prior convictions for robbery and attempted robbery.  On the other hand, Mr Vitali had significant psychiatric issues and the first five Verdins principles applied in moderation of sentence.  He made full and frank admissions.  It was also his first sentence of imprisonment.  Mr Vatali also had a troubled early life, although not as traumatic as your early childhood. 

37Your role in this offending was, to a degree, more serious.  You were acting together and he was there in physical support of you, but you produced the knife and made the demands.  You physically took the items.  In all those circumstances, I consider that Mr Vitali would have a justifiable sense of grievance if you were sentenced to a lesser sentence than he received in respect for that offence. 

38I consider a sentence of imprisonment warranted for the purposes of just punishment, denunciation, general deterrence and specific deterrence.  The combination of imprisonment and a community correction order in this case would not adequately meet those sentencing objectives. 

39Taking into account that your prospects for rehabilitation are reasonable and that this is your first sentence of imprisonment that you are currently serving, I have set a shorter than otherwise non-parole period. 

40Could you stand up please, Mr Aden. 

41In respect of Charge 1, robbery, you are convicted and sentenced to 20 months' imprisonment; in respect of Charge 2, armed robbery, you are convicted and sentenced to 30 months' imprisonment.  Four months of the sentence on Charge 1 is to be served cumulatively on the sentence on Charge 2.  The total effective sentence is 34 months' imprisonment. 

42I fix 20 months as the period you are required to serve before being eligible for release on parole. 

43

I declare that you have served 162 days of this sentence by way of

pre-sentence detention. 

44But for your plea of guilty, I would have sentenced you to a term of imprisonment of 46 months with a non-parole period of 30 months. 

45I have made the order for disposal of certain items.  I am also making the order for a taking of a forensic sample from you.  I am required to tell you that at the time you are requested to give the forensic sample, if you do not consent to the taking of a mouth swab, then the police are entitled to use reasonable force and may take a blood sample.  I am sure you will cooperate with the authorities when they come to take the saliva sample from you, but I am just required to tell you about that. 

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