Director of Public Prosecutions v Agbere

[2020] VCC 964

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01265

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDUL AGBERE

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2020
DATE OF SENTENCE:	30 June 2020
CASE MAY BE CITED AS:	DPP v Agbere
MEDIUM NEUTRAL CITATION:	[2020] VCC 964

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Hayes	Office of Public Prosecutions
For the Accused	Mr J. Lavery	Greg Thomas Barrister & Solicitor

HIS HONOUR:

1Abdul Agbere, you have pleaded guilty to a charge of theft, a charge of intentionally damaging property and one charge of armed robbery.  Additionally, there were two related summary offences in relation to bail to which you pleaded guilty.

2The circumstances of your offending were outlined in an agreed summary tendered by the prosecution.  The circumstances can be summarised briefly.

3At the time of the commission of the offences you were 21 years of age.  You have moved to Victoria from South Australia in the second half of 2018.  You were unemployed and homeless.

4On Thursday, 15 November 2018, at approximately 4.30 pm the victim, Ms Lee, was sitting at the Sunshine railway station awaiting a city-bound train.  She had her handbag next to her.  You took her handbag and stole Ms Lee's wallet containing $50 cash and threw the wallet on the train tracks.  Both the victim and yourself, and you were in company of an associate, boarded the train to Footscray.  At Footscray station the victim approached you to ask for her items back and you started swearing at her, calling her a bitch and a dumb slut.  The victim was scared.  You left the station, looking back at her.  She waited for you to leave and reported the incident.  She described you on that occasion as being intoxicated, with red eyes and slurred speech.  The total value of the theft was $100.  The wallet was subsequently located and returned to the victim.  You were later identified by a Protective Services officer who had spoken to you earlier that day.

5Five days later on Monday, 26 November 2018, at approximately 6 pm, you and an identified co-offender drove a white Toyota Kluger to Leonard Street in Sunshine.  The vehicle belonged to one of your associates.  You parked the car and walked to the Sunshine Plaza.  The co-offender stood outside, acting as a lookout, and you entered the shopping complex alone.  You were wearing a high visibility jacket and a dark, hooded jumper with the hood pulled over your head.  You were armed with a tomahawk.  Shortly after 6 pm you entered the Dahabshill Money Transfer, a business where customers deposit cash for it to be forwarded offshore.  The shop was situated on the exterior of the shopping complex and consists of a small waiting area, a counter and the staff area behind the counter, secured by a glass security screen and locked door.

6Mr Mohamed Tahir, the owner of the business, and his friend, Mr Museh Mohamed, were behind the counter in the secure staff area.  You went to the shop and pulled a black balaclava over your face and Mr Tahir started screaming in fear.  You jumped on the counter, tried to climb over the security screen onto the staff area.  You also tried to smash the security screen, using the tomahawk, but you were not successful in this.

7You then started hitting the security door with the tomahawk to gain access to the area behind the counter and at this Mr Tahir ran out of the store.
Mr Mohamed, who was still inside the counter area, attempted to hold the security door closed to prevent you from entering but you eventually smashed through and pulled the security door and the door frame down, and at that point Mr Mohamed ran out.  You looked through the counter drawers and cupboards, putting the money into your pockets.  You stole a significant amount of money, which was the business takings of the day.  The money has not been recovered.

8From the material it was at one point put it was over $20,000, but I was not given an agreed figure at plea beyond the description of a significant amount of money, and that is the description which I adopt in the sentence.

9Once outside Mr Tahir and Mr Mohamed tried to prevent you from leaving the shop by holding the front doors closed and a security guard joined them in this endeavour.  After trying first to escape by pulling the doors, you struck the doors twice with the tomahawk, causing the glass to crack and fragments of glass struck Mr Tahir and Mr Mohamed to the face and they let go of the doors and ran off.  You exited the shop and ran in a northerly direction.  Some $3487 worth of damage was done.  You jumped over fences and into backyards in the vicinity.  You discarded the tomahawk in a wheelie bin and the balaclava and high visibility jacket before getting back to the Toyota Kluger, and shortly after you returned your co-offender returned to the vehicle, entered the driver's seat and drove off.

10In relation to the two summary charges, on 11 November preceding the first theft, you had been arrested in relation to a theft of a motor vehicle in Box Hill.  You were charged and bailed to appear at the Magistrates' Court on 8 April 2019 and the conditions of bail were to reside at Unit 155 of 76 Canning Street in North Melbourne and to notify the informant of any change of address.  The address that you had provided was that of your father's.

11Police seized the tomahawk, visibility jacket and the balaclava near the crime scene and located a shoe impression on the counter.  The exhibits were conveyed to Victoria Police Forensic Science Centre for analysis and the analysis of the DNA profile from the items was matched to you.

12On 29 November 2018 police attended the bail address and spoke with your father.  They were advised that you never resided at that address, in contravention of the bail undertaking entered on 11 November 2018 that I mentioned above.

13On 30 November 2018 investigators received a phone call from you.  You told them that you were aware police wanted to speak with you but that you would not present yourself to police.  Enquiries revealed that you had fled to South Australia and you were arrested in Adelaide on 26 December 2018.  You were interviewed, made no comment to the allegations and you were found to be wearing Nike runners matching those depicted in the CCTV footage at the crime scene and matching the shoe print left at the crime scene. So you were remanded in custody and extradited to Victoria.

14On 29 January 2019 you consented to providing a DNA sample for comparison and the DNA evidence is said to be 100 billion times more likely if you were a contributor to the swabs on the biological material found on the balaclava and the tomahawk.

15The Crown tendered the victim impact statement of Mohamed Tahir at your plea.  In that statement Mr Tahir states that the armed robbery instilled ongoing fear and hypervigilance when working in the shop in the evenings.  He has recurring frequent nightmares and memories and has trouble sleeping as a consequence. He is naturally fearful and anxious and reportage of similar incidents will trigger flashbacks, causing severe distress.  He has had to obtain counselling.

16He received an injury to his right shoulder when trying to avoid a blow from your tomahawk and this caused discomfort and has impacted his social interactions.  The incident also caused a significant financial burden on him and his family.  He has still ongoing pressure to make good the funds you robbed, making school obligations and household expenses difficult to meet.  The shop needed to be rebuilt so he has had lost patronage and income, and I take the contents of his statement into account.

17Armed robbery is a very serious criminal offence carrying a maximum penalty of 25 years' imprisonment.  Theft and damaging property have maximum applicable penalties of 10 years.  Armed robbery is a particularly pernicious crime, marked by force, violence in its execution, which has a profound impact on the individual victim and on the community.  The victims in this case were vulnerable business people going about their work at the end of the working day in a small shop front.  The robbery had been premeditated and planned, you wore a balaclava to protect your identity and avoid detection and you did so with a dangerous weapon which you used to instil fear and facilitate the robbery.  You stole a significant amount of money and arranged for a getaway vehicle and a lookout driver to assist you.  This was not a spontaneous event.  Rather, a planned criminal enterprise of significant moral culpability.

18The community looks to the court to denounce such conduct and to offer protection for such crimes which leave the community perturbed and cause much consternation.  The offending requires stern punishment to reflect high moral culpability and in order to deter those who are like minded generally to behave in this manner.

19I take your plea of guilty into account.  However, the reduction in sentence which usually such a plea might attract is itself rendered of less weight by the fact that it was not an early plea or offered at an early opportunity.  Rather, after a contested committal in which the victims were cross-examined and at the conclusion of which you pleaded not guilty after the magistrate had informed you that a sentencing judge may have taken into account your plea in the stage of the proceedings in which you pleaded guilty.  That was in June of last year.  The delay which then proceeded was based primarily on the fact that this had to come to the process of a trial in this court.  You were arraigned in
November 2018, which was your date of entering the plea.  You have accumulated some 552 pre-sentence days by way of pre-sentence detention excluding today, which I will declare as time already served and have that noted in the records of the court.

20Despite the plea not being an early plea I accept that it still carries utilitarian value of having avoided a trial and does represent an acceptance of responsibility and some evidence of remorse and I take these matters into account in assigning a reduction of the sentence imposed.

21It is notable indeed related summary offences are before me, that this serious offence was committed whilst you were on bail.  This is an aggravating feature.  You breached the residual condition of that bail order apart from the offences by not abiding by a residential condition.  Each of these matters will attract separate penalties which I consider should be concurrent with the main sentence which will be imposed on the armed robbery.  The earlier theft is a discrete offence and that will have a small measure of cumulation to reflect this fact.

22I take into account the circumstances personal to you.  The first and most important matter is your age.  You are now 22 years old but you were aged 21 at the time of the offences, and although you are on the edge of the definition, you are a youthful offender and therefore the primary object of general deterrence and denunciation must give way to some moderation given your age.

23However, that level of moderation must be balanced with the serious nature of the criminality that you engaged in.  This, in my submission, is a mid-range offence of armed robbery, a serious example of the offence.  I accept that with a young offender prospects of rehabilitation must play a significant role in a determination in order to ensure that such prospects as do exist are enhanced and enabled as far as possible or feasible.

24The prosecution fairly conceded that because of your age, family support, a reasonable work history, your plea and remorse, that your prospects of rehabilitation are reasonable.  This, in my view, was a generous approach, particularly in view of your prior history and the late entry of your plea.  As to remorse this is often a difficult matter to determine.  However, I accept that you have expressed it to your family and I am prepared, like the prosecution, to act on that acknowledgement as to that aspect.

25Your prospects of rehabilitation are firstly tied to your ability to address your drug use, which is often a long and very difficult task.  In generally assessing your prospects of rehabilitation I take into account your priors, which I will describe in a moment.  I do not repeat these in order to punish you for them again but as an important matter in the assessment of your prospects.

26I was also properly told that you have matters pending listed for a guilty plea in early July in the Magistrates' Court for offences committed in September and November 2018 which are serious instances of violence and dishonesty to which your plea includes an ongoing assault by punching and kicking separate victims to the face and head on two occasion to facilitate the theft of money and a motor vehicle.  Although these offences will be sentenced at a later date, these matters give rise to aspects of specific deterrence and your prospects of rehabilitation, which I consider should be guarded.

27Your prior criminal history, though it does not contain priors in Victoria, covers offending committed and dealt with in New South Wales, Queensland, South Australia and Tasmania, reflecting your disrupted lifestyle in past years from 2013 onward when you were aged 16 in Tasmania.  These offences are essentially breaches of bail offences.  These are followed by offending in public, of public nuisance, obstructing police in Queensland, and then a series of offences from 2015 to 2018 in New South Wales for assaults, possession of drugs, stalking, destroying property, driving offences, possession of weapons, resisting police, dishonesty, amongst other offences.

28The South Australian matter is in May 2018, a dishonesty offence, and then a July 2018 matter in New South Wales related to driving.  I note that from May 2018 you served a term of imprisonment for an aggravated assault.  A sanction of the court, which on its face did not deter you from similar conduct soon thereafter having been imprisoned for just over four months in May 2018 and then committing these offences for which I am dealing with you in November of that year.

29I do take into account the delay which has occurred mostly to the process of the law, exacerbated probably by the current pandemic since March of this year to come before the court.

30You were born in Sydney and grew up there, the oldest of three boys.  Your parents separated when you were 12 and from that time you lived with your mother before living with your father in Tasmania.  You completed only part of Year 11 at school.  Your aim was to become a personal trainer and have had employment in the hospitality industry and as a dismantler of cars.  At age 14 you began cannabis use and methamphetamine when aged 16.  In 2018 you decided to go to Western Australia but whilst en route in Adelaide you committed an aggravated assault and was sent to prison.  Upon release you came to Victoria with a young girl.  You experienced a transient lifestyle using methamphetamine and offending in order to fund your habit.

31You have been in custody for the period mentioned above and in that time you have made the best of your reclusion.  You completed a substance abuse program, healthy lifestyle program and a 12 hour substance use and emotional regulation program.  I was shown participation certificates for each of these and was told that you had been studying to complete a VCAL TAFE course before the COVID-19 situation caused the course to be put on hold.

32Two references were received by the court from your family.  Your mother, Sunnah Chimasim, and your younger brother, Hamsa, wrote on your behalf.  These outline the family's support and difficult upbringing as well as physical and emotional abuse from your father which they describe as contributing to your discontinuation of schooling, and substance abuse and, importantly, past disconnection from your family.  Both note in their letters your tendency to rebel against authority and your inability to settle into a career path or long term employment but they note your remorse, reflection upon this experience in this past time, and some confidence in your future capacity.

33Your mother writes of her full support of you.  Your brother also expressed his support.  I take into account those references and I take into account that the last few months have rendered your imprisonment more difficult with limits in your out of cell time, limitations on visits and curtailing of vocational and rehabilitative programs.  Going forward, this will continue at least for the foreseeable future to render your imprisonment more burdensome, particularly so for a young man of your age.

34This matter and the other matters I have mentioned, which should mitigate your sentence, will reduce your sentence significant and result in a longer period of parole that would otherwise be the case, and I impose such a longer period for the reasons which I have outlined.  Just pardon me for a moment.

35On the armed robbery you are convicted and sentenced to five years' imprisonment.  On the intentionally damage property you are convicted and sentenced to one years' imprisonment, concurrent on Charge 1.  On the theft you are convicted and sentenced to six months' imprisonment of which two months will be cumulative on Count 1.  On the commit indictable offence on bail you are convicted and sentenced to one month imprisonment concurrent on Count 1. On the contravention condition of bail you are convicted and sentenced to one month imprisonment concurrent on Count 1.

36I declare 552 days excluding today as days of pre-sentence detention which have already been served and will be taken into account administratively, and I note the details of that declaration for the records of the court.

37I order that you serve two and a half years before being eligible for parole.  But for your plea I would have sentenced you to six and a half years with a non-parole period of four years.  I will sign the disposal order when it is made.
Mr Agbere, you have served approximately 18 months of a prison sentence.  You have about 12 months to serve before being eligible for parole.

38Are there any other matters, Mr Hayes?

39COUNSEL:  No, Your Honour.

40HIS HONOUR:  Thank you, Mr Lavery, and thank you, Mr Hayes, and I see - I think that your mother is also connected.  I hope she has been able to hear the sentences.  Yes.  Now, I see that Mr Agbere's mother is connected whilst we are here in court and you were here too, Mr Lavery, so rather than take up more of your time, if you want to speak to your client and Mr Agbere's mother wishes to speak to him briefly, then I am content for that to happen.  I will leave the Bench and my staff will remain in the court but you are free to speak to him and his mother certainly is free to speak to him if she wishes to at this point, given that we are connected.  She may not get an opportunity too soon given the circumstances and I am happy for her to have that opportunity if they wish to take that up.

41MR LAVERY:  Thank you, Your Honour.

42HIS HONOUR:  My staff will facilitate that if need be.

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