Director of Public Prosecutions v Ahamed
[2024] VCC 729
•21 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00781
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOMINIC AHAMED |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 21 May 2024 | |
DATE OF SENTENCE: | 21 May 2024 | |
CASE MAY BE CITED AS: | DPP v Ahamed | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 729 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCING
Catchwords: Robbery – young offender – rehabilitation of young offender.
Legislation Cited: ss 5(1), 18, 6AAA Sentencing Act 1991 (Vic).
Cases Cited:Bugmy v The Queen [2013] HCA 37; R v Verdins [2007] VSCA 102.
Sentence: Total effective sentence of 147 days’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z. Petric | Office of Public Prosecutions |
| For the Accused | Ms M. Walker | Melinda Walker |
HER HONOUR:
1Dominic Ahamed, you have pleaded guilty to one charge of robbery.
2The full circumstances of your offending are outlined in the prosecution opening, marked as Exhibit A. This constitutes the factual basis upon which I sentence you.
Circumstances of the offending
3At the time of your offending you were 20 years of age and your co-accused, Sidrak Dinkey, was aged 22. The victim of your offending is Ms Pidamarthi, an employee at the Metro Service Station located on Epsom Road, Ascot Vale. The Metro service station is equipped with CCTV, and footage captures the entire circumstances of the offending (which I note has previously been played in Court).
4On 1 November 2022, at about 12:18AM, Mr Dinkey arrives at the Metro Service, having earlier been captured by CCTV in the area, with Andrew Wilson (‘Andrew’) and Jake LUPZ (‘Jake’).
5The Metro service station has a night counter where purchases can be made from outside the premises. At about 12:20AM, Mr Dinkey, Andrew and Jake made a purchase of ‘cream chargers’, strawberry milk and a ‘red-bull’ soft drink. Mr Dinkey discards the ‘cream charger’ boxes on the floor near the night counter window.
6At about 12:31AM, Mr Dinkey, Andrew and Jake leave the Metro service station and walk towards Ascot Street, Ascot Vale.
7At about 1:52AM, you, Mr Dinkey, Andrew and an unknown female arrive at the Metro service station.
8At about 1:53AM, the front door of the Metro service station was locked, and Ms Pidamarthi was serving customers via the night counter window. You all attend the night counter. The unknown female asks to use the bathroom, and Ms Pidamarthi indicated that only she could enter the premises and the remaining males were to wait outside.
9He opened the locked door to the premises to let the unknown female inside, and yourself, the co-accused, and Andrew all came inside. The unknown female used the bathroom, whilst the three males waited inside.
10The unknown female returned from using the bathroom and approached Ms Pidamarthi at the store counter, asking for ‘blue cigarettes’. Mr Dinkey walks over to an ice-cream fridge that is close to the entry to the store counter area, and has a conversation with Ms Pidamarthi about a cardboard box located on the ice-cream fridge.
11Whilst the unknown female was asking about the cigarettes, you and Mr Dinkey then walk down to the main fridge area to have a short conversation. Following this conversation you then pulled the hood of your jacket over your head.
12Mr Dinkey then enters the store counter area and approaches Ms Pidamarthi who was standing near the cash register. Mr Dinkey stands next to Ms Pidamarthi near the cash register and produces a wooden handled, 30cm long machete from his pants. He tells the victim to, “...open the cash register, don’t do anything, don’t call anyone just give me the cash otherwise I will chop your head,”.
13Ms Pidamarthi was in fear that Mr Dinkey would use the machete. Mr Dinkey then demanded that Ms Pidamarthi take all the fifty-dollar notes from the cash register and hand them to you. You were standing at the customer side of the store counter. You then placed your left hand on the counter and leaned towards the cash register. You leaned over the counter, reached over and took a bundle of fifty-dollar notes. You then placed the notes in your jacket pocket and left the store and the Metro service station (Charge 1 – Robbery).
14Your co-accused, Mr Dinki took the remaining money out of the cash register and placed it into his pockets, the total amount of cash stolen being approximately $600. Mr Dinkey then asked Ms Pidamarthi for plastic bags and further stole approximately fifty packs of assorted cigarettes and 10 e-cigarettes (‘vapes’).
15At about 2:00AM, a witness and customer entered the store and Ms Pidamarthi immediately disclosed the offending to him and he observed Mr Dinki leave the store and attempted to chase him.
16At 2:07AM, the police were contacted. Police subsequently attended the Metro service station and obtained still images which led to your identification.
17On 10 November 2022, you were arrested and attended the Melbourne West Police station for an interview.
18A Record of interview was conducted in the presence of an independent person. Your answers are extracted in the prosecution opening. You make a number of admissions to being present and the circumstances of entering the store but deny knowledge of the knife. You stated:
19“me and 3 of my mates, we were going to the servo cause one of my mates said he wanted to steal a drink ok. So, we went there, I wasn’t going to steal nothing of course” (Q326);
20“next minute out of no where he jumps the counter yeah pulls out a knife says to the lady give me all your cash” (Q327);
21And I'm like, "What are you doing, bro?" And then he's - like, he didn't say anything. Yeah, he just - yeah. And then he's like, "Dom, here, take the cash." I'm not taking the cash. And then he's like, "Take it now." So I'm like, "O.K." And the - and the lady - I didn't even - I didn't even reach for the cash. The lady's just like, "Here you go." So I'm like, "I don't want this money, bro." I even gave it back to him, right. And us three were like, "Why the hell did you rob the servo, bro? I can't get done. I'm on bail." Like, I - I - I didn't rob the servo. Like, I - it was him, you know what I mean? But I'm - I'm not saying his name or nothin' because I'm not a snitch or nothin'. But what I'm trying to say is I didn't - yeah.” (Q328);
22I didn't rob - like, I didn't go up to the lady, say, "Give us all your cash." Like, the lady actually passed me the cash. Like, I didn't even, like, say, "Can I have the cash?" or nothing.” (Q329);
23He admitted the circumstances of entering the store (Q379-389);
24He admitted that the co-accused said “don’t do anything” and “don’t call anyone” (Q394-395);
25He said he was given the money (Q403-405);
26The lady passed me the notes, I'm like, "What the fuck?" We all left. All three of us just walked out. (Q408);
27When asked about reaching over into the till when she’s holding the money, he said “What? I didn’t – the fuck?” (Q437). And when asked for an explanation he said “I never reached into the till. I legit – I went like that and then she passed it to me, I swear” (Q438).
Gravity of offending
28The charge of robbery is a serious offence, as indicated by the maximum penalty. Your offending involved a vulnerable and soft target and you acted with a co-accused, though obviously your matter is proceeding on the basis that you had no knowledge and/or were not complicit in the use of a weapon. While there is no VIS, I also accept, as submitted by the prosecution, that given the confrontational nature of this offending your victim would have been scared and concerned for her safety. I accept that such offending must attract principles of general and specific deterrence, denunciation, community protection and just punishment.
29Quite properly, your Counsel, Ms Walker, concedes that the objective gravity of your offending calls for the imposition of a custodial sentence.
30I accept, as was submitted by Ms Walker, that your offending was opportunistic and directed by the co-accused who has pleaded guilty to Armed Robbery. I also accept that your involvement in the robbery itself was brief.
31On your behalf, Ms Walker submits that the offending occurred during a time when you were drinking heavily and your mental health was deteriorating. On the material before the Court, it seems that you had also recently lost contact with mental health services.
Procedural History
32On 10 November 2022 you were remanded on this matter and then later bailed on 18 October 2023. Within this period, you served a further sentence imposed for a number of charges including attempted robbery, several charges of robbery and unlawful assault. On 25 May 2023 you were sentenced to 196 days, which was time declared as served.
33I also note that you have matters outstanding for cannabis possession and possession of weapons, all matters that are currently awaiting re-listing before the court, as you failed to attend court on the 24 April 2024 and warrants remain outstanding. Also, you are now back in custody, having been remanded on 1 May 2024 on matters that will need to proceed through the indictable stream in the Magistrates’ Court.
Plea of guilty
34In respect of this matter, on a number of occasions, you made an offer to resolve your case on the same basis upon which it has now resolved, and those offers commenced as of 31 January 2023 prior to the committal mention . These offers were rejected but ultimately accepted by the prosecution on 4 April 2024, some weeks before the trial was due to commence. In all the circumstances, I consider your plea is an early one and entitles you to a significant sentence discount. I consider your plea has utilitarian value and has saved the victim the trauma of having to give evidence in a trial. Your plea also represents an acceptance on your part of responsibility for your offending and is indicative of remorse.
Personal circumstances
35Your personal circumstances are familiar to the court and were well canvassed by your Counsel. You are 22 years of age now and as I have already noted, you were 20 years old at the time of the offending.
36In brief, your parents separated when you were very young. Your early background was one of neglect, violence perpetrated by your father and consequently you experienced long periods of time in foster care.
37In more recent times, you have had some stable accommodation in Point Cook with your mother, stepfather and siblings while being subject to bail.
38You left school in Year 9 due to learning difficulties and undertook a TAFE course in panel beating at Synergy and diesel mechanics in Warrnambool. You have also undertaken brief periods of employment in bricklaying and McDonald’s.
39You are the father of a 3-year-old son with whom you have irregular contact, and it seems based on the most recent CISP report that you want to have access to him but presently the mother is not prepared to facilitate this.
40You have a previous diagnosis of intellectual disability. You underwent a psychological assessment on 26 June 2013 when you were 11 years of age. On the Wechsler Intelligence Scale for Children you obtained a Full Scale IQ score of 68 which fell in the Extremely Low range (2nd percentile). Your verbal skills were in the Low Average range, perceptual reasoning skills within Extremely Low range and working memory and processing speed were both Borderline[1] . As outlined in the MHARS report of 7 October 2022 you have a previous diagnosis of drug induced psychosis, Bipolar affective disorder and mild depressive episode[2]. You have undergone a number of mental health admissions during 2019- 2020 managed by the Royal Children’s Hospital then Werribee Mercy Health, including 3 admissions in 2021 – 2022 and 6 episodes of compulsory treatment under the Mental Health and Wellbeing Act 2022 (Vic).
[1] Psychological Report of Dr Amy Dluzniak.
[2] MHARS report of 7 October 2022.
41You now have ongoing support provided through NDIS funding connected to Melbourne City Mission.
42You have a relevant prior criminal history though I note these were all heard in the Children’s Court.
Other sentencing factors
43In sentencing you, I take into account your youth both at the time of the offending and now at sentence. The principles relevant to young and youthful offenders are well established. The rehabilitation of young offenders is one of the great objectives of the criminal law. The principles need to be considered against your prior history, the seriousness of the offending and the importance of deterrence, denunciation and community protection. In all the circumstances, I do consider that your youth is an important factor and should have a moderating effect on the sentence.
44Relying on the authority of Bugmy, your counsel submits, and I accept, that your moral culpability should not be equated with a person who has had the advantage of a stable and regular environment, free of violence, abuse and deprivation during their childhood and formative years[3].
[3] Bugmy v The Queen [2013] HCA 37.
45Neuropsychologist Amy Dluznaik undertook a range of assessments and provided the following opinions. On standardised testing for general cognitive ability, you fell overall in the Borderline range (Full Scale IQ = 70, 2nd percentile). In summary, you demonstrated significant difficulty in aspects of executive function, including visual and verbal logical and abstract reasoning, planning and organising skills, cognitive flexibility, response inhibition, self-monitoring, idea generation and attention to detail. While a thorough assessment was difficulty due to your limited engagement, Ms Dluzniak states:
It is clear from Mr Ahamed’s history that he has presented with longstanding functional impairment across the lifespan as evidenced by marked difficulties with community activities of daily living, including self-management, self-direction, employment, learning and communication.
46Further:
Overall, Mr Ahamed’s current neuropsychological test results, background history, presentation and difficulties in adaptive function continue to fulfil criteria for a DSM-5 diagnosis of Mild Intellectual Disability. He has a documented history of delays in multiple area of functioning in childhood, evidencing that his cognitive impairment was present during the developmental period and its longstanding.
47As a result of your intellectual disability, you experience ‘marked concreteness in [your] thinking, [have] a poor ability to understand cause-and-effect relationships and [have] a limited ability to engage in consequential thinking.’ Your intellectual disability also renders you vulnerable ‘to being manipulated, coerced, or influenced by others.’ She also considered that your current presentation raised the possibility of an autism spectrum disorder (ASD) and she suggested further assessment.
48I take into account your mild intellectual disability and mental health conditions, and I accept that all six limbs of Verdins are enlivened in your case[4]. As advanced by your Counsel, I accept that your intellectual disability and psychiatric issues operate to: reduce your moral culpability; bear upon the sentence to be imposed; moderates general deterrence and specific deterrence; and means that a sentence of imprisonment will weigh more heavily on you and seriously risk having an adverse effect on your mental health.
[4] R v Verdins [2007] VSCA 102.
49The prosecution acknowledge that, to the appropriate extent, weight should be given to Bugmy and Verdins considerations and that it is a matter of degree. I accept this, and have balanced all relevant factors and the opinions expressed in the reports as to the severity and extent of your conditions, alongside the seriousness nature of this offending.
Prospects of rehabilitation
50As for your prospects of rehabilitation, I accept your Counsel’s submission that you ‘...remain worthy of reformation and this Court is able to place particular emphasis on rehabilitation as a sentencing purpose.’ Also, quite fairly the prosecution submit that they should be viewed as guarded, given your prior history and the subsequent alleged offending, while on CISP bail.
51It seems that your prospects depend on you remaining drug free and engaging in targeted treatment and supports.
52I take into account that since your release on bail in October 2023 you were under the supervision of the CISP program and undertook regular case management appointments and AOD sessions and attended for a neuropsychological assessment. I take into account that, while at times your level of participation appeared to fluctuate and you struggled to understand or embrace the benefit of mental health treatment, you did – to an extent – noting the allegations of further offending – successfully engage in and complete the program and on several occasions you attended and participated in judicial monitoring. There is a promising reference in the reports to you showing an increasing insight into engaging with treatment services[5] .
[5] Report of 26 March 2024.
53You need to address your drug issues and engage in support and treatment. Ms Dluzniak considers that you may be at risk of recidivism and a substance-related brain injury in the longer-term should you return to regular substance use and she therefore encourages that you remain abstinent, in other words, that you stop. A return to substance use will also contribute to a decline in your mental health. Ms Dluzniak makes a number of useful recommendations in her report as to how you would best benefit from treatment and support in the future.
Parity
54I have also taken into account the principle of parity in your case, which requires that there be consistency in the sentences imposed on co-offenders unless there are such differences in their role in the offending or their personal circumstances to warrant disparity in their sentences. Your co-accused Mr Dinkneh pleaded guilty to one charge of AR and was sentenced on 17 November 2023 to 3 years’ imprisonment. He was also dealt with for other matters at the same time, including a breach of a CCO, which were, in part ordered to be served cumulatively, resulting in a TES of 5 years imprisonment and a NPP of 2 years and 6 months. I consider that it is open to reasonably differentiate between you and Mr Dinkneh, justifying disparate sentences. He was the primary offender and pleaded guilty to a more serious offence. He was older, although still a relatively young man, and had a more extensive criminal history. Also, at his plea hearing, he was dealt with for a further two armed robberies that occurred days after the offending that you were involved in, committed on a 7-Eleven where the targets were a customer and a store attendant. Also, it is not suggested that he had the unique personal circumstances and factors that are available to you, though he was able to rely on Bugmy and the fifth limb of Verdins.
Sentencing purposes
55The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community.
56I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case. I have also taken into account the maximum penalties that apply.
57I have had regard to the general sentencing landscape for the offence of robbery. Each case is, of course, unique and turns on its own facts.
58Your Counsel sensibly conceded that a term of imprisonment was within range for your offending.
59I take into account the principles of proportionality, parsimony and totality. In respect of totality, as already noted, I take into account the intervening period you served during your time on remand and also the lost opportunity for concurrency. You were held on remand for a total of 342 days and are entitled to 147 days in respect of the current matter.
60The Prosecution submit that the offending calls for a term of imprisonment.
61Your Counsel submits that imprisonment is appropriate but should not exceed the period that you have already served. In the alternative, should this not be adequate, she submitted that a combination sentence ought to be imposed. At the plea hearing today, however, she submitted that given your return to custody and your current remand, such a sentencing disposition would likely now be frustrated.
62In all the circumstances, having regard to the seriousness of the offending, I accept that imprisonment is the only just and appropriate sentence in your case. I intend to substantially moderate this period to reflect the significant mitigatory factors that were advanced on your behalf, including your youth, your mild intellectual disability, your mental health, your early plea of guilty and your period of CISP compliance.
63Synthesising all factors you are convicted and sentenced as follows.
64On the charge of robbery you are convicted and sentenced to 147 days’ imprisonment.
65Pursuant to s18, I declare that you have served 147 days’ imprisonment.
66Pursuant to s6AAA, but for your plea of guilty, I can indicate it is difficult in your case, but I would have sentenced you to a likely term of some 12 months’ imprisonment with a lengthy community corrections order, which may have had attached to it a justice plan.
67Are there any ancillary orders?
68MR PETRIC: No, Your Honour.
69HER HONOUR: Thanks, Mr Petric, Ms Walker.
70MR PETRIC: May it please the Court.
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