Director of Public Prosecutions v Ahmed

[2016] VCC 496

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01568

CR 15-00952

AP 15-2629

DIRECTOR OF PUBLIC PROSECUTIONS

v

TALORER AHMED

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2016, 27 January 2016, 15 April 2016
DATE OF SENTENCE:	18 April 2016
CASE MAY BE CITED AS:	DPP v AHMED
MEDIUM NEUTRAL CITATION:	[2016] VCC 496

REASONS FOR SENTENCE
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Subject:Sentencing; armed robbery; robbery; obtaining financial advantage by deception; multiple counts of theft; attempted theft

Catchwords:             Pleas of guilty; appeal against sentence; youthful offender; prospects of rehabilitation;

Legislation Cited:     Sentencing Act 1991 (Vic) ss 6AAA, 18, 32(1), 16(3C)
Cases Cited:            

Sentence:TES (all matters): 2 years 8 months detention in a Youth Justice Centre

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D.J Plummer Ms C. Duckett	OPP
For the Accused	Mr P.J Smallwood	James Dowsley and Associates

HER HONOUR: 

1Talorer Ahmed, you come before this court on two indictments and an appeal against a decision of a Magistrate.  You have sought to have all of these matters heard and determined together, so that your overall sentence takes into account the totality of all of these matters. 

2On Indictment F10083019.1, you have pleaded guilty to one charge of armed robbery, two charges of dishonestly obtaining property by deception, one charge of robbery, and one charge of attempted theft.

3On Indictment F11475424.1, you have pleaded guilty to one charge of robbery, that being of a taxi driver, Mr Aslam. In Appeal No. AP152629, you have appealed the sentence imposed by a Magistrate on 22 October 2015 at Melbourne Magistrates' Court, in respect of two charges of theft, one charge of assault, and one of assault in company. 

4The charges in these three proceedings cover offending by you during two distinct periods, that is, early January, and then the first two weeks of April 2015. 

5You have also admitted a prior criminal history of three appearances before Children's Courts for multiple charges, to which I will refer later. 

6The maximum penalty for armed robbery is 25 years' imprisonment.  The maximum penalty for each charge of robbery is 15 years' imprisonment.  For obtaining property or financial advantage by deception and for theft, it is ten years' imprisonment.  For attempted theft, it is five years' imprisonment. 

7These maximum penalties reflect the relative seriousness with which Parliament, on behalf of the community, regards offences of these types.  However, in your case, the relative seriousness of the actual offence is not necessarily reflected by the maximum penalty applicable to each particular offence, as I shall explain further.  I have, of course, taken each maximum into account as an objective sign of how seriously Parliament regards offences of the general nature.

8Notwithstanding all of those maximum penalties, you will not be receiving a sentence anywhere near any one of them. As I indicated on Friday, you will be sentenced to a term of detention in a youth justice centre and in totality, I have decided that that total should be two years' and eight months'.

9I need to explain how I have reached that conclusion. 

10The first set of charges arises out of events in early-January 2015. 

A little before 11 pm on 4 January 2015, you and another male approached a young woman walking home from Ascot Vale Railway Station.  This was Ms Smith, who was walking along the middle of the road because it was the best lit area.  She became uneasy when a silver car passed her slowly, but I have no information that you were connected with that.  A male suddenly appeared out of the darkness in front of her, so she could not move, asked her for the time, and when she refused, he said he knew she had the time.  She took her mobile phone from her handbag and in doing so, noticed another male, which was you, standing to her left, holding a knife pointed towards her at hip height.  The knife was about ten centimetres long, with a blade of about five centimetres and looked like a flick blade.  She gasped when she saw the knife. 

11The first male demanded her phone, bag and purse, if she did not want to be hurt.  She noticed he also held a knife in his hand, which was also about ten centimetres long and looked a bit like a dagger.  She tried to scream and as she did so, the other male touched her shoulder and brushed his hand along her arm, towards her elbow.  She pulled her arm back and he told her that if she screamed for help, he would stab her.  He again demanded her handbag, which she then handed over and threw her iPhone towards the two of you.  Her bag contained identity documents, purse containing money and credit cards, personal belongings and her house key.  These events give rise to Charge 1 or armed robbery. 

12Ms Smith ran away and indeed ran home.  She was scared at the time and when she got home, became frantic and cried.  She made various phone calls, including to the police.  She was subsequently able to give police details of what had been stolen from her, including the IMEI number for her stolen mobile phone. 

13She made a Victim Impact Statement, which she read out in court.  As was to be expected, this incident caused her not only great fear and distress at the time, but the memories and impact have continued.  They have undermined her confidence as to where she goes, especially alone, and she says it has changed her personality by making her less confident or willing to socialise.  As it happened near her home, she is reminded of it often, as she needs to walk past there to catch the train to work.  She has been assessed by a psychologist as suffering symptoms of trauma as a result of this incident, and has undergone counselling and other treatments to reduce her stress.  She lost some days from work, and at the time of her statement, was still suffering symptoms of stress from this frightening incident. 

14There has been a claim for compensation made, and I was told this morning that that is being made in her favour by consent. 

15Armed robbery is a serious offence, reflected in the maximum penalty of 25 years' imprisonment.  While this was not in the higher range of instances of armed robbery, as it was brief, no one was physically hurt, and it does not reflect careful planning, the serious features are that you committed it in company, both you and your co-offender carried and produced knives to threaten the victim, and that it was against a lone female, late at night, walking from a train station.

16People walking home from public transport at night ought to be able to do so without fear of being robbed and threatened with knives or any other weapon.  She was what is often called a "soft target" - vulnerable, without protection and unlikely to fight back.  The menace and cowardice of targeting such a victim must attract serious punishment which delivers the community's condemnation and sends a warning to others tempted into such offending that they can expect stern punishment. 

17In addition, I regard as an aggravating factor that you were, at the time, on bail for alleged other offending. 

18The same night, shortly after robbing Ms Smith, you and another male attended a 7-Eleven shop in North Melbourne, and you used a credit card stolen from
Ms Smith to make two transactions in the amounts of $42.38 and $30.  You were captured on CCTV making those purchases.  This conduct is the basis of Charge 2 of obtaining property by deception.

19A few minutes later, you and a male entered the BP Service Station on Mount Alexander Road, Flemington, and you used another of Ms Smith's credit cards to purchase a deodorant, a SIM card and two packets of cigarettes,  the total of these items being $89.99.  This is the basis of Charge 3 of obtaining property by deception. 

20Both of these offences were dishonest, but they are not, in my view, nearly as serious as the confrontations with people that are the subject of most of the other charges against you. 

21The next of those is the subject of Charge 4.  At approximately 4.30 am on
6 January 2015, a taxi driver, Mr Abas Mussa, was attacked and robbed as he was about to start his shift.  He had just entered his taxi in a car park in Flemington and placed a bag containing various items on the front passenger seat.  These included his e-TAG, photo identification, portable EFTPOS machine, various cards, about $30 in coins and his lunch and coffee thermos. 

22A male quickly opened the passenger side door, wearing a disguise over his face and grabbed Mr Mussa and tried to pull him out of the taxi.  A second male opened the driver's side door, hit Mr Mussa to the right side of his face, then grabbed him by the shirt and dragged him out of the taxi, ripping his shirt in the process.  That man was African, of average build and had a bandana covering his face. 

23Once outside the taxi, the first male kicked Mr Mussa in the legs, causing him to fall to the ground, and Mr Mussa noticed the male was holding something in his hand that looked like a knife, although Mr Mussa believed it was a long screwdriver.  While on the ground, Mr Mussa noticed another two males standing nearby.  Mr Mussa was punched several times to the head and body, and one of the males grabbed him in a headlock and continued punching him.  The first male, with the item in his hand, came towards Mr Mussa.  Mr Mussa heard one of the males say, "Shoot him, shoot him, where's the gun?"  The first male grabbed at Mr Mussa's pockets, as if searching them, while Mr Mussa was trying to fight the men off.  Mr Mussa's e-TAG photo identification, various cards, portable EFTPOS machine and cash were stolen from the front passenger seat.  These events give rise to Charge 4 of robbery.

24The incident ended when a woman whose window overlooked the car park, heard screaming, saw from her window four males attacking Mr Mussa, including his being kicked while he was on the ground, and she screamed out to the men, that she had called the police already.  She continued to watch and call out, to scare off the four offenders, who then ran away.

25Mr Mussa was taken by ambulance to the Royal Melbourne Hospital, where he was found to be suffering soreness, grazes, and his left shoulder rotator cuff was torn. He has made a Victim Impact Statement, in which he describes his thoughts of the consequences to his wife and children, as he was being dragged from his taxi, kicked to the ground and punched multiple times to his head and kidney, and when he heard the assailants yell, "Shoot him".  He is thankful for the lady who intervened and called police.  He describes experiencing lasting impacts on his life, being unable to work for a prolonged period, and then as a consequence, losing his taxi job. 

26I accept that Mr Mussa, and consequently his family, has suffered financial as well as emotional impact from this incident.  It is to be hoped that in time he can find other work, and that his memories of this event lessen. 

27Notwithstanding some coincidence of description of clothing, the prosecution concedes that it cannot prove beyond reasonable doubt that you were the person described as the second male who dragged Mr Mussa from the taxi.  Nevertheless, it does say that you were seen on the taxi's CCTV camera, which implies that you were the first or second male, and therefore one of the active protagonists who attacked and robbed Mr Mussa. 

28I regard this incident as objectively a serious instance of the charge of robbery, and propose to impose a sentence that may seem proportionately higher, notwithstanding that its maximum penalty is much lower than for armed robbery. 

29Robbery is theft with force or the threat of force, and on this occasion, the brutality of the force used was particularly serious and involved the pulling out of his car and kicking on the ground, of a man who was alone, doing his job, and vastly outnumbered by four males, including you, making it particularly cowardly.  In addition, the use of bandanas over faces, at least of the two who were in the car, is indicative of some degree of pre-planning. 

30While I cannot assess your precise role, you at least made yourself party to this level of force. 

31I regard this incident as requiring the sentence to reflect both general and specific deterrence, denunciation and just punishment. 

32The following day, namely 7 January, at about 2.20am, you and another male attended the BP Service Station on Mount Alexander Road, Flemington.  You asked the attendant for a packet of cigarettes, but he asked for identification.  The other male approached and told him to give you the cigarettes, and you then tried to snatch the packet of cigarettes from the attendant's hand, but he moved back out of reach.  You hit the cash register with both hands and ran out of the store.  This incident is the basis of Charge 5 of attempted theft. 

33If it stood alone, I would not regard this incident as particularly serious, but it was a separate offending action by you, on a separate occasion, that I need to take into account, as occurring soon often the previous two more serious incidents.   

34The following day, you were arrested and interviewed by police.  You gave your address as a unit in Flemington and said you had been there a couple of days, consistent with what I am told that you had left your family home by then and were staying with other young men.  You answered "no comment" to the allegations, as was your legal right.  Police seized from you a mobile phone, which contained a text message referring to the number of the phone taken from Ms Smith.  On the following day, a search warrant secured at the address you had given, resulted in various items being seized, including a red phone cover, later identified by Ms Smith as hers, and a can of the type of deodorant purchased with the stolen credit card. 

35These five charges were due to come before this court - sorry, I am not sure if it is all the five, but certainly the matters involving the robbery of Mr Mussa, was due to come - and I think the armed robbery of Ms Smith, was due to come before a court for trial in February of this year.  The matter resolved into a plea of guilty to these charges on 14 January of this year.

36You had been remanded in custody on 8 January 2015 when arrested, and it was not until 17 February that you were granted bail, to live with your parents and be supervised by Youth Justice.  For the first few weeks you complied well, living with your parents, abstaining from substance abuse and attending bail reviews.  However, by the end of March last year, you had reverted to substance abuse, and knowing this was unacceptable to your parents, you did not go home to them and stayed with other youths, being part of the circles with whom you had previously mixed, both in taking drugs and drinking alcohol to excess, and offending. 

37You engaged in a further period of offending in the first two weeks or so of April 2015. 

38You were due to stand trial, commencing 18 January 2016, on Indictment F11475424, but that resolved on the basis that you have pleaded guilty to a single charge of robbery. 

39That charges arises out of an incident on 13 April last year, when you were in company with Mr Abduwali Arale and another young African man.  The three of you were together when you hailed a taxi in Chapel Street in the early hours of the morning, and paid the driver, Mr Aslam, $20 to take you to The Men's Gallery in Lonsdale Street.  Once there, it appeared closed and the driver was given a further $20 to take you to Maidstone.  He was not given a specific address.  Once at the corner of Ballarat and Richelieu Streets, he was given a series of directions into side streets and eventually pulled up and stopped, but was then told to go to the next street, so he drove there.  By then his meter was off. 

40Once in the next street, which was dark, the three passengers told him to pull over.  When he did, you said, "Okay Brother", and grabbed the driver's white mobile phone from the centre console.  As you did this, the driver tried to grab it back.  Mr Arale then reached from the back seat and punched the driver three or four times to the head using knuckledusters. 

41This matter was resolved on the basis that the prosecution does not allege that you knew that Mr Arale was armed at the time of the offence, and therefore the charge against you is robbery and not armed robbery, as it was against Mr Arale. 

42The punches caused scratches to Mr Aslam's right temple and behind his ear.  All of the passengers then got out of the taxi and Mr Aslam went to get out as well, but Mr Arale started punching the driver's side of the taxi with knuckledusters, and continued to do that as the driver started to drive away. 
Mr Aslam pressed his duress button and was advised to go to Footscray Police Station, where he made his report.

43In sentencing you on this charge, I must take into account the sentence I imposed on Mr Arale for his involvement in this incident, and make a comparison between the respective seriousness of your roles and between other features of each of your circumstances.

44I am satisfied that both you and Mr Arale took an active role in the offending against Mr Aslam.  I have no information as to what led to the refusal to tell
Mr Aslam an actual address in advance, and I draw no conclusions as to whether one or more than one of the three people in the taxi were responsible for that.  Once the taxi was told to stop, you acted first in grabbing Mr Aslam's mobile phone, but Mr Arale was the only person to have a weapon and was the sole person to strike Mr Aslam, which he did three or four times using the knuckleduster. 

45Objectively, Mr Arale's behaviour was the more serious.  Further, he pleaded guilty to a more serious charge, that of armed robbery, which as I have said, carries a maximum penalty ten years longer than the charge of robbery for which I sentence you.  However, subjectively, there were some more serious features of your involvement than Mr Arale's and some more mitigatory  features of his.  First, you have a relevant prior criminal history, and as is now before me, had committed offences against taxi drivers in January of that year, that is, three months before the offence against Mr Aslam. 

46Mr Arale, in contrast, had no prior offences, which although artificial, in that on the same day I was sentencing him for two serious prior incidents in the same week, meant he was entitled at law to the benefit of a clear prior record.  Further, a significant sentencing consideration in his case, was that a total custodial sentence of 12 months or more, would almost certainly have resulted in cancellation of his visa and in his being deported to New Zealand, removing him from his parents and siblings, and he has no family still in New Zealand.  That consideration was very significant in the overall structure of his sentence.

47Finally, he had the benefit, as indeed you do, but to a different extent, of the principle of totality, because all of his offences occurred during one week.  He was also on bail at the time of that offence, as were you, which is a factor you had in common. 

48As to the subjective seriousness in your case, you not only have a prior criminal record, including robbery and multiple charges of theft and obtaining by deception, for which you had appeared before the Children's Court previously, and not only were you on bail, as was Mr Arale, but you had committed a spate of offences in early January 2015, one of which was similar, in that it was an offence against a taxi driver , Mr Mussa, and the other was the armed robbery of Ms Smith, and for those you had been remanded in custody for some five to six weeks and only released on bail in mid-February.

49Moreover, there had been bail reviews.  You committed this offence, that is the offence against Mr Aslam, in stark defiance of that recent period of remand and strict bail conditions.  I regard that as an aggravating factor of your involvement in both this incident against Mr Aslam and that against Mr Singh a week later - sorry, a week earlier, but I will mention it later.

50I take into account that Mr Arale's role in the offending against Mr Aslam was considerably more serious than yours, but once the overall subjective seriousness of each of your circumstances is compared, I consider that only a slightly lower penalty should be applied to you than his on this charge.  He was sentenced to eight months' imprisonment for armed robbery of Mr Aslam. 

51Finally, there are the offences which are the subject of an appeal from the Magistrates' Court.  These are four charges arising from two separate incidents.  The first occurred on 3 January 2015, when you and a co-offender had taken a taxi ride, but at its end, ran away without paying the fare, and when the taxi driver tried to chase you, both you and your co-offender made oral threats towards him.  He also found that the two of you had stolen a bag from his cab containing about $60 cash.  This incident is the basis of a charge of theft from a vehicle and one of assault - Charges Nos.16 and 17 on the appeal.

52While the stealing of a bag of coins was opportunistic, and the assault was by threat and not actual force, that was the first of what were to be four instances of stealing from taxi drivers, for which I sentence you, and although in my view, the lowest in seriousness, it reflects a course of conduct by you which ultimately escalated or became worse. 

53The second incident giving rise to Charges 4 and 5, occurred on 7 April 2015, when in company with Mr Arale again, and again travelling in a taxi.  This taxi was driven by a Mr Singh.  On arrival at your destination, you got out of the cab and stood beside the driver's side window, as if to pay him, but when he lowered the window, you punched him in the face and ran away.  Mr Arale then struck him from behind with knuckledusters.  Mr Arale was sentenced to five months' imprisonment for intentionally causing injury to Mr Singh, and one month for obtaining financial advantage from him. 

54I have already mentioned that Mr Arale was sentenced on the basis that he had no prior convictions, and also of significance in the structure of his ultimate sentence, was the consequence to his immigration status.  Apart from those distinctly different factors from yours, his role was more serious in using the knuckleduster, but you were the first to strike a blow against Mr Singh, having used a ruse of pretending to pay to get him to lower his window, and in my view, that put your responsibility at a considerable level in this offence.

55The issue of parity with Mr Arale's sentence arises, as I have already outlined in relation to the previous matter.  I do not know the consequences, if any, to your other co-offenders in the other offences, which I have outlined.  In assessing parity considerations for the total effective sentences, there is only a moderate amount of parity that, in my view, could be applied to the totality of the sentences on Mr Arale and the totality of yours. 

56So far as Mr Arale is concerned, he was also sentenced for another incident in the same week of April 2015, as the two offences you together committed against taxi drivers occurred.  That other offence was an aggravated burglary, with which you have not been charged.  However, he was not sentenced for any offending in January 2015, whereas you are being sentenced for the armed robbery of Ms Smith, the very violent robbery of Mr Mussa, and the offences against the other taxi driver, Mr Ali.

57The incident with Mr Singh, I regard as more serious, in that you struck him deliberately and after a ruse of pretending to be about to pay the fare, although your role was less serious than that of Mr Arale, who used the weapon, the knuckledusters.  Through all of these offences, you were on bail, an aggravating feature, and as I have already said, you had relevant prior offences and in the April incident, were on bail also for the January offences.

58On the appeal, I shall be setting aside the order of the Magistrate and taking into account the totality of the offences before me, not only those in the appeal itself, but from the two indictments containing those other offences I have outlined.  That means that there will be some moderation by way of directions for cumulation, but significant concurrency to take into account that each of these incidents was part of a course of similar offending by you at the time - but that there were two separate periods of such offending. 

59As indicated to your counsel at the outset this morning, I shall be imposing a heavier sentence in fact than the magistrate did before ordering some concurrency with other sets of offences. 

60I turn now to your personal circumstances.  You are now aged 20.  You were still 18 at the time of the January offences and had turned 19 by April last year. 

61You were born in Australia, your parents having come as refugees from Somalia, and having arrived in Australia in 1994.  I am told that you have three sisters and six brothers, but do not know how many are older or younger than you.  I am told and accept that neither of your parents, nor any of your siblings, has been in any trouble with police. 

62You attended Debney Meadows Primary School and then Secondary College, leaving school in Year 10.  Even by then you had frequently truanted.  You apparently completed a six month pre-apprenticeship in bricklaying in 2012, but have not worked since completing that course. 

63I am told that you started using cannabis when you were 13 years old, and have used it regularly since you were 14, and also that you have been drinking alcohol since your mid-teens.  Alcohol became a major problem for you.  I am told that you also started using the drug called "ice" in 2014.  You were mixing with other youths who were abusing these substances and in their company, inclined to commit offences.  You were not gainfully occupied in any employment. 

64You have a prior criminal record, involving three appearances in the Children's Court in 2013 and 2014, including a charge of robbery and several others of dishonesty, and one of possessing cannabis.  You were sentenced on each of those to good behaviour bonds.  You were also charged with some other offences in 2014, for which you were on bail by the end of 2014, and as I have already said, I have taken the fact that you were on bail when you committed all of these offences, as an aggravating circumstance.

65I am told that in January 2015, you were using cannabis daily and drinking copious amounts of alcohol.  You apparently would not go home to your family if drunk, anticipating their disapproval, so were rarely at home and were living with friends at different houses.  You had also started using the drug “ice”, which at one stage I was told had contributed to your offending.  It may well have done, but it does seem that there were earlier offences committed that went to court in 2013, which is before, I am told, you had started using ice.

66After you were arrested for the January offending, you were remanded in adult custody for five to six weeks, before being released on strict bail conditions, including to live with your parents.  You managed about a month and a half before resuming substance abuse, and that led to you leaving home and staying with so-called "friends", and then further offending.

67As I have already mentioned, you were on bail by the end of 2014 for other charges.  That ought to have made you more careful not to get back into substance abuse, if that was what usually led you into offending, nor should you have been mixing with other young men with whom you had committed other offences. 

68Further, the experience of being remanded in adult custody from 8 January 2015, might have been a salutary experience, that is, affecting you enough to impress on you the long-term need to refrain from substance abuse and offending.  In these circumstances, I regard specific deterrence, that is to send the message to you that further offending will attract further and serious punishment, is an important sentencing factor in your case, to try to prevent you from future offending. 

69After the April offences, you were again remanded in custody and have been there ever since, that is, a little over a year.  This has all been spent in adult custody, and at age 19, that will have been challenging.  Apparently you were coping with this, but I learnt last week that in early-March of this year, you were transferred to Barwon Prison, the maximum security prison in this State.  That was apparently for reasons of accommodation availability and not misbehaviour by you, and I regard being in the highest security prison conditions at your age, to have been likely to be more onerous for you, even though only for a few weeks.  Indeed, I am told that you were the youngest prisoner at Barwon Prison whilst there.

70Your pre-sentence detention will count towards your sentence, but I take into account that the number of days to be reckoned served under s.18 of the Sentencing Act, will not reflect those more onerous conditions, and I have moderated your sentence overall a little, to take that into account. 

71Your parents and siblings have apparently remained supportive of you. and on each of the hearings before me and certainly today, there have been some of your family in court to support you.  Your intention and theirs is that on release from custody, you will return to live with your parents. 

72A significant factor in your favour is that you have pleaded guilty to these charges, and you are entitled to some leniency for that.  Although the charges on both indictments were fixed for trial and the pleas were not entered until relatively late, I take into account that in the end, you pleas of guilty saved the community the time and cost of trials, and avoided the need for any witnesses to attend for trial, so each of your victims was spared that potential further stress.  Your pleas of guilty reflect that you have accepted responsibility for this degree of offending. 

73I accept that in addition to the fact of pleading guilty, you have expressed some remorse for your offending, including regret for letting your family down. You say you feel stupid, and there has been some recognition of the impact of your actions on your victims.  That does reflect some insight and remorse by you, but unfortunately, it was not your state of mind in late-March last year when you reverted to substance abuse and the group of friends with whom you committed the further offences in April. 

74Nevertheless, you are now described by both Mr Jackson, a neuropsychologist who recently examined you, and Ms Karevski, who assessed you for a Youth Justice Centre Order, as expressing appropriate remorse for your offences, and some insight into the effect on your victims.

75I am told that your father works as a taxi driver.  Given that four incidents giving rise to these charges involve taxi drivers subjected to violence or the threat of it, while having either items stolen or, in Mr Singh's case, being deprived of the value of a fare is hard to understand. Apparently, you did not associate your own father's vulnerability while he is working to those you targeted. I am told that there was no deliberate decision to target taxi drivers, but because you and your associates used taxis, you or others with you would do something impulsive, and the others would join in.

76Taxi drivers also come into the description of “soft targets” of offending of this type.  They are also usually alone, often after dark and expected to have some cash with them.  Each of those offences was cowardly, but I am not in a position to decide if any were other than relatively impromptu decisions, and to what extent they were influenced by being in company with other youths who were mainly willing participants.

77The offences against the taxi drivers call for general deterrence and community condemnation.  People working in these types of jobs are providing a service and are entitled to feel that they can do so without risk to their personal safety.  Indeed, the whole community suffers if incidents of this nature frighten people who might otherwise engage in the job of taxi driving from doing so, especially at night. I note that you and your mates relied on using taxis to get around, and apparently had no thought that your actions might discourage people from being willing to work as taxi drivers. 

78I am told that on each occasion your offending was significantly influenced by your being effected by alcohol or drugs, or a combination of them. That may explain the behaviour, but it is not an excuse.  And in particular, by the time of the April incidents, you well knew that you could, if you tried, abstain from those substances and while you did, you were not committing offences. 

79I am told that you now realise that the role that substance abuse has played in leading you into such offending, and are willing to undertake drug and alcohol programs, to avoid falling into that habit in future.  You have had enforced abstinence for the last 12 months whilst in custody, which will be a start if you can stay committed to your intention to avoid those substances on release.

80Your age is a significant factor in your sentence.  It is acknowledged that the best interests of a young offender, which you are, and of the community in general, are best served if that offender can be successfully rehabilitated.  Past sentences have not made much impression on you, but you have now spent a total of some 13 months in adult custody, most recently, as I have said, in a high security environment. Attention to facilitating your rehabilitation ought in my view to now be given prominence.

81I requested a pre-sentence report on your suitability for a Youth Justice Centre Order, and the report provided useful and helpful comments. While not regarded as particularly impressionable or immature, you are assessed as having reasonable prospects of rehabilitation, which consideration would make you eligible for such an order under s.32(1) of the Sentencing Act. 

82I accept that there are a number of circumstances indicating reasonable prospects of rehabilitation for you, including your expressions of remorse, regret for letting down your family, and some insight into the effect of your offending on your victims.  In addition, you say that you want to engage in some further education and hope to obtain work in the building industry, if possible, through an apprenticeship in bricklaying. I accept that if you can obtain steady employment, that will help set you up for the future, and keep you out of the company that leaves you with time on your hands for abusing substances and committing offences.

83I accept that you have now accepted the need to engage with specialist programs to assist you to avoid offending behaviour.  At your age, these intentions should be promoted. 

84Your case was adjourned in January of this year, in order for your lawyers to obtain a neuropsychological assessment of you, and I have read and taken into account that report of Mr Jackson. It discusses in detail, which I shall not repeat here, the various test results and what they reflect as aspects of your cognitive functioning.  There were some limitations on the ability to assess your functioning, including due to language, but also that you took up cannabis and alcohol abuse before your education was complete and it was difficult for there to be an assessment of what role your incomplete education played in the assessment.

85You were assessed overall as now functioning in the borderline range, although some skills were well above that, and some were extremely low.  Mr Jackson concluded that some aspects of your executive functioning are impaired, including impulse control, and would have been more so before your forced abstinence from drugs and alcohol that had occurred in prison before the time he assessed you. He was concerned that while there is a potential for further recovery of your cognitive functioning, you may be left with some permanent mild impairment.  While you are inclined to be overwhelmed initially by multiple tasks, you do have capacity for role learning, and that was a positive sign also towards your rehabilitation.  He considered that you would benefit from structure around you, to assist with learning tasks.

86Your counsel did not press that I should consider sentencing factors of moral culpability, general deterrence or specific deterrence to be reduced by reason of the limitations on your cognitive functioning as assessed by Mr Jackson.  However, I do take into account and regard as relevant, that those limitations are relevant to the issue of your rehabilitation. In that regard they confirm that your prospects of rehabilitation are reasonable, but that structured education and programs while you are in custody, and after release, would best serve the needs of your rehabilitation.

87Taking all of these factors into account, I am satisfied that no sentence other than a custodial one, including some further time in custody, would be sufficient to meet the sentencing requirements, given the seriousness of the nature and number of offences before me.  However, given that you have already spent some 13 months in adult custody, and your age which is only just 20, and that with structured programs including further education and your present good intentions towards your future, your prospects of rehabilitation are reasonable. In my view, these sentencing requirements would be best facilitated by your further time in custody being spent in a Youth Justice Centre.

88Further, the Youth Parole Board will be in the best position to decide the timing of your release and to facilitate and supervise your transition back into the community. 

89As already indicated, I have taken into account that there were some overlaps in the circumstances of offending, and considerable similarity in the nature of several of the offences, and that the offending occurred during two distinct periods. I have assessed the totality of the offending in each of those periods when deciding the total sentences appropriate to them.

90Would you stand up now please, Mr Ahmed.

91Talorer Ahmed, on Indictment F10083019.1, you are convicted on each charge and sentenced as follows.  On Charge 1, armed robbery of Ms Smith, you are sentenced to 21 months detention in Youth Justice Centre.  On each of Charges 2 and 3, you are sentenced to two weeks detention in Youth Justice Centre.  On Charge 4, robbery of Mr Mussa, you are sentenced to 18 months detention in Youth Justice Centre.

92On Charge 5, attempted theft of a packet of cigarettes, you are sentenced to one week's detention in Youth Justice Centre. 

93I direct that four months of the sentence on Charge 4 be served cumulatively on the sentence on Charge 1.  By operation of law, the others will be served concurrently, and that results in a total effective sentence on this Indictment of 25 months detention in a Youth Justice Centre.

94On Indictment F11475424.1, on the charge of robbery of Mr Aslam, you are convicted and sentenced to six months detention in a Youth Justice Centre.  I direct that three months of this sentence be served cumulatively on the sentence imposed on the first indictment, that is F10083019.1 and on the orders on the appeal, which I am about to make.

95On Appeal AP152629, I set aside the orders of the Magistrates' Court made on 22 October 2015, and in place of those orders, I order on Charges 4 and 5, which are for assault and theft from Mr Ali, you are sentenced to an aggregate of three months detention in Youth Justice Centre.  On Charges 17 and 18, being the assault in company and theft from Mr Singh, you are sentenced to an aggregate of five months detention in Youth Justice Centre.

96I direct that two months of the order on Charges 4 and 5 be served cumulatively on the order on Charges 17 and 18, resulting in a total effective sentence of seven months detention in Youth Justice Centre on the appeal. 

97Now rather than repeating the declaration of pre-sentence detention made by the Magistrate on that, I propose to deal with that at the end of the combination of sentences.

98I direct that four months of the total sentence ordered on this appeal be served cumulatively on all other sentences imposed today.  But specifically those under the two indictments I have mentioned. 

99These orders are intended to result in a total effective sentence from all three proceedings of two years and eight months detention in Youth Justice Centre.

100I declare as reckoned served a total of 397 days of pre-sentence detention, including today.  And I direct that that be recorded in court records.  I do not fix a minimum term because it will be for the Youth Parole Board to decide that. 

101I am obliged to say what your sentence would have been had you not pleaded guilty to these charges.  As usual, that is an artificial exercise, even more so in the current case because without the pleas of guilty and acceptance of responsibility for the offending and expressions of remorse, I consider it less likely that you would have been found suitable for a sentence in youth detention, because that would have lowered the prospects of your rehabilitation in my view.

102Therefore, I state that the totality of these sentences would have been a total of three years and six months imprisonment, with a non-parole period of two years and two months. 

103Now in addition, on the appeal, I make the same compensation order as did the Magistrate.  I make the disposal order that was sought, and is consented to I gather, as to the blue buttoned up shirt.

104Finally, I am told it was by consent, but the order does not take that form, but I gather at least it is not opposed, an order for compensation for Ms Smith?

105MR SMALLWOOD:  That is so, Your Honour.

106HER HONOUR:  What, not opposed?

107MR SMALLWOOD:  Not opposed.

108HER HONOUR:  Yes, all right.  I make the order sought of compensation of $1,600 payable to Lauren Claire Smith, as it represents some loss of wages.  I believe also items taken and not recovered.  Also the cost of some of the treatment she has undergone.

109All right, you can take a seat Mr Ahmed while - I will see if there is any matter to be raised and while this is worked out.  Mr Plummer, apparently Judge Hampel's associate is asking how long you might be.  I'm sorry for the timing.

110MR PLUMMER:  That's all right.

111HER HONOUR:  But there was also the problem of having to restructure things.  Is there anything you need to raise?  Does it work as I've said it should and is it in a structure that's according to law?

112MR PLUMMER:  It appears to, from my prospective, Your Honour.

113HER HONOUR:  All right, well if you want to be excused, I'll let you be excused ‑ ‑ ‑

114MR PLUMMER:  Thank you, Your Honour.

115HER HONOUR:  ‑ ‑ ‑ while those orders are finalised. 
Ms Duckett, are you due elsewhere also?

116MS DUCKETT:  I am, but I've spoken with Judge Bourke's associate already, so they're aware of the position I'm in this morning, Your Honour.

117HER HONOUR:  All right.  Do you have ‑ ‑ ‑

118MS DUCKETT:  There's nothing arising from the sentence, Your Honour.

119HER HONOUR:  All right, thank you.  Mr Smallwood.

120MR SMALLWOOD:  Nothing arising from this end of the Bar table, Your Honour.

121HER HONOUR:  All right.  The compensation order for Ms Smith needs some address.

122MR PLUMMER:  Thank you, Your Honour, I'm excused.

123MS DUCKETT:  Ms Picone's just indicated she will send a separate schedule to ‑ ‑ ‑

124HER HONOUR:  All right, the entering of the - I can't sign the ultimate order though until this is made, unless I - if I can separate out that compensation order, I'll make it later in the day.

125MS DUCKETT:  Yes, that can be organised.

126HER HONOUR:  I think it can be made separately later in the day and it's just one more complication in the - getting the orders entered in a timely way and also that I can sign them.

127MS DUCKETT:  No, no, it can be done later on in the day.

128HER HONOUR:  All right, it'll need an address.  It can be care of, but it will need an address.

129MS DUCKETT:  I'll have my instructor facilitate that, Your Honour.

130HER HONOUR:  All right.  Well orders made by the magistrate.  Does anyone have any details of those?  I think - I haven't got the folder with me. 

131MS DUCKETT:  My instructor doesn't have an address.  Yes we do.

132HER HONOUR:  It was a compensation order - I think it's in favour of Mr Singh for the $12 fare.

133MS DUCKETT:  Perhaps if I could just hand this up to you.  It should be of some assistance, it does have an address and I think it's the address that the order was actually made to.

134HER HONOUR:  I made it for Mr O'Rilley, but ‑ ‑ ‑ 

135MS DUCKETT:  And those are the details that are ‑ ‑ ‑

136HER HONOUR:  ‑ ‑ ‑ it has to be made against each of them.  The taxi driver doesn't get double the fare, but it is ‑ ‑ ‑

137MS DUCKETT:  No.

138HER HONOUR:  They both committed that offence.

139MS DUCKETT:  And that's the same details, Your Honour.

140HER HONOUR:  This is the one against Mr Singh, sorry.  Yes, because this was the appeal one.  I would think that the phone number shouldn't be included.

141MS DUCKETT:  Yes.

142HER HONOUR: Given that both parties here seem to agree that the operation of s.16(3C) or that s.16(3C) won't operate in this case, I haven't made a specific order on the first - the five charge indictment as to its interaction with the other two matters because it will - it's the longest in total and it will necessarily be concurrent with the other sentences imposed today.

143MS DUCKETT:  Yes.

144HER HONOUR:  It's from the others that I've imposed some ‑ ‑ ‑

145MS DUCKETT:  All the cumulation.

146HER HONOUR:  Ordered some cumulation.  Do you both agree that that works?

147MR SMALLWOOD:  Yes, Your Honour.

148MS DUCKETT:  Yes.

149HER HONOUR:  What charge or charges does the disposal order relate to?  Are we in one indictment alone or crossing across them because that's all a complication also.

150MS DUCKETT:  It's from the first indictment, Your Honour.

151HER HONOUR:  All right.

152MS DUCKETT:  The F10083019.1. 

153HER HONOUR:  The technical way - even though my associate was forearmed with - technically this is a challenge and I have to sign the orders before
Mr Ahmed can be removed.  I'm sorry about the timing and the delay, but it just ‑ ‑ ‑

154MS DUCKETT:  There's no need, Your Honour.

155HER HONOUR:  There's a challenge.

156MS DUCKETT:  Judge Bourke is stood down until 2.15.

157HER HONOUR:  You're lucky.  All right, I think the groups of orders have all been signed now, so - but not copied apparently.  All right the orders are signed now, so I'll ask for Mr Ahmed to be taken from the courtroom please.  Just before he is removed, I'm - my understanding is officers from Youth Justice Centre will take charge of you at some stage during the course of today
Mr Ahmed, to transfer you to youth justice centre.

158OFFENDER:  Yep.

159HER HONOUR:  All right. 

160MR SMALLWOOD:  As the court pleases.

161HER HONOUR:  I'm sorry the matter's run so much longer than anticipated, but that's the way of complicated matters.

162MS DUCKETT:  No, it's a very difficult matter, Your Honour.

163HER HONOUR:  Complicated by lots of features.  I'll leave the Bench for a few minutes before the next matter is ready to start.

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