Director of Public Prosecutions v Ahmed
[2019] VCC 121
•8 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-18-00077
Indictment No. C1711343.2
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ILYAS AHMED |
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JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATES OF PLEA HEARING: | 29 October 2018 and 14 December 2018 | |
DATE OF SENTENCE: | 8 February 2019 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Ahmed | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 121 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – plea of guilty
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Boulton v The
Queen; Clements v The Queen; Fitzgerald v The Queen (2014) 46 VR 308
Sentence: Total effective sentence of six months’ imprisonment and a Community
Correction Order of three years.
Section 6AAA discount: four years’ imprisonment with a non-parole
period of two years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N Hutton | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr L Gwynn (Plea) Ms G Donohoe (Sentence) | Victoria Legal Aid |
HER HONOUR:
1 Ilyas Ahmed, you have pleaded guilty before me to three counts of armed robbery.
2
Exhibit A on the plea in mitigation was a Summary of Prosecution Opening.
I incorporate that document into my Reasons for Sentence. However, I will briefly summarise the offending that has led you to come before the Court.
3 The first incident relating to Charge 1 occurred in the early hours of 9 June 2017. A call was made to 13CABS to attend at an address in Maidstone.
In response to the order, Muhammad Suleman, a taxi driver, attended at the address. You and your co-offender, Mr Macaw, got into his car; you in the front, Macaw in the back. The driver was directed to go a short distance in order to pick up a third party. However, he refused as he was concerned for his safety. He stopped the car.
4 Both of you got out of the taxi before you got back into the front passenger seat. He began to drive towards another address in Scovell Crescent. On arrival at that address, you pulled out a black axe from the front of your jacket. You hit the axe on the cup holder and said “give me everything or I will hit you.
But first, give me your phone”. He then took his phone out and you took it. Furthermore, Mr Suleman handed $40 cash to you. You then got out of the car and ran towards Scovell Reserve.
5 The second incident relating to Charge 2 occurred late in the evening of 11 June 2017. In response to a call for a taxi, Amjad Hussain attended at Frank Street, Sunshine West. You were waiting for him and got into the back seat. There was a conversation between the two of you and you directed him towards Deer Park Station.
6 As you were driving, your co-offender Mr Macaw appeared and approached the taxi, and he got into the front seat. As Macaw got into the front seat he produced a long knife from inside his clothing and made a demand of the driver for his mobile phone and wallet. At the same time, you reached over and placed a pair of scissors to the back of the driver’s neck. You and Mr Macaw then took the driver’s wallet, containing $500 cash, and his mobile phone. You then both got out of the taxi and ran away.
7 The third incident relating to Charge 3 on the Indictment occurred in the early hours of 16 June 2017. In response to a call to 13CABS, Ali Syed attended an address in Hoppers Crossing. On arrival, he saw you and another male standing on a corner, and then a third male a short distance up the road.
You and the first male got into the taxi, you into the rear passenger seat.
8 There was then an exchange between you and the driver. The driver began to drive towards the third male. He stopped the taxi and was struck to the chest with an axe once by you, and you said, “give me whatever you have”.
The front-seat passenger produced a pair of scissors and held them against the driver's chest. Both of you then demanded Mr Syed’s belongings.
You removed his wallet and mobile phone from his pocket. He handed $300 cash to you and your co-offender.
9 You and the other male got out and one of you demanded that the driver open the boot of the car. He was dragged to the boot of the taxi and told to get inside.
He heard you and your co-offender inside the taxi. The engine was started and the car performed burnouts for about 30 seconds, with the driver in the boot. The boot was then opened and the driver got out and was told to restart the car. There was an exchange between you and the co-offenders, and the driver. You then, along with the other two men, walked away.
10 In the early hours of 16 June 2017, you were arrested by police in Hoppers Crossing. You were interviewed by the police and denied any involvement in any offending. You were remanded on that date and have remained in custody ever since.
11 At the time of committing these offences, you were nineteen years of age.
You are now twenty. Before me, you admitted your prior criminal history.
For the sentencing exercise today, there are some relevant matters from the Children’s Court. On 23 August 2016, you, without conviction, were released on a Youth Supervision Order (YSO) for a period of twelve months for a number of offences, which included three charges of robbery. Therefore, at the time of the commission of these offences you were subject to a YSO, which constitutes a factor in aggravation.
12 As already noted, you were remanded in custody in June 2017. You have served the entire period of time while in custody in the adult prison system.
This has clearly had a profound impact upon you. It has triggered insight and commitment to change. Your newfound attitude is determinative, to some extent, of my ultimate sentencing disposition.
13 Whilst in custody, you have completed a number of courses, one of which was I received a certificate for, indicating that in December of 2018 you completed an Anger Management Program. Furthermore, part of Exhibit 1 on the plea were the results of urine analysis tests. From the period 8 July 2017 through to
27 November 2018, the results before me indicate that you have tested negative for any drugs in your system.
14 Also part of Exhibit 1 was a letter that you wrote to the Court. The letter is replete with references to your remorse. You indicate that you have made “some terrible mistakes” that you are not proud of. You show that you are aware that your family is disappointed in you and in your actions. Furthermore, you express an apology to each of the three victims and their families.
15 Your offending occurred during a period of significant personal crisis. You had separated from your partner, Rikhaia. You have a young daughter together, who is almost two years of age. Indeed, you became a father at a profoundly young age, being only 17 at the time.
16 Furthermore, this offending behaviour occurred in the context of a methamphetamine addiction. You were using on a daily basis and such was the motive for your offending; or, more specifically put, the motivation for the offending was to obtain money to fund your drug use.
17 It was submitted to me by Mr Gwynn of Counsel, whilst also acknowledging the seriousness of this offending, that you were a person with excellent prospects of rehabilitation. In support of that submission, the following matters were highlighted:
(a) your pleas of guilty, consequent upon pre-trial rulings delivered by me. Reliance was also placed upon the fact that an offer to plead guilty was made in respect of Charges 1 and 2 on the Plea Indictment on the 24 January 2018.
In the circumstances, I find that it is early plea with respect to these matters. More generally, I find the pleas consistent with a desire to facilitate the administration of justice and acceptance of responsibility for your actions;
(b)your genuine remorse as illustrated in the letter to the Court and as expressed to Dr Aaron Cunningham, forensic psychologist;
(c)your limited prior criminal history, having only previously appeared in the Children’s Court;
(d)your youth. True it is, you were 19 years of age at the time of these offences and are now 20 years of age;
(e)the availability of family support, which was absent at the time of the commission of the offences;
(f)your productive use of time in custody;
(g)your disadvantaged and difficult background as a matter in mitigation deserving of leniency/mercy; and
(h)your sound intelligence and insight, by dint of which you are now highly motivated to rehabilitate yourself and, upon release into the community, have a positive role in your daughter’s life.
18 Ultimately, the submission was made to me that you were an appropriate candidate for a combined custodial and non-custodial disposition. In other words, that all relevant sentencing considerations can be appropriately addressed through the imposition of a term of imprisonment, combined with an appropriately tailored Community Correction Order.
19 In response, Mr Hutton, on behalf of the prosecution, contended that the sentencing principles in your case could only be met by a sentence of imprisonment that would contemplate a non-parole period. In support of that submission, he relied upon the following aspects as illuminating the objective gravity of the offending here:
(a) the use of subterfuge in order to isolate the taxi driver on each occasion;
(b) there was a degree of planning involved in relation to all three incidents;
(c) the use of a weapon, in particular the axe, in relation to Charge 1; and
(d) the fact that on each occasion the offending was committed in company.
20 Mr Hutton also submitted to me that the emphasis on the fact that you were a youthful offender must be tempered against the seriousness of the offending here.
21 In that vein, I am mindful of Dr Aaron Cunningham’s prognosis, in which he described you as “motivated to work towards rehabilitation to be a support for [your] daughter and family”. Dr Cunningham is also of the view that you would “benefit from a disposition that facilitated [your] rehabilitation”. In particular, you would benefit from “engaging with psychological intervention and drug and alcohol counselling".
22 It seems the universal assessment of all that have been exposed to you that you are an intelligent young man. This, to some extent, may explain your capacity for insight into your behaviour. You also appear genuinely ashamed by your conduct and the taint that it has brought to your family. These are important matters, to my mind, in making my assessment as to your prospects for rehabilitation.
23 My view is that they remain good. I say this because of your attitude displayed while in adult custody, the fact of family support which was present on the plea in mitigation and the fact that your intelligence hopefully means that you will harness the opportunity provided by a partially community-based disposition.
24 In respect of Charges 1 and 2, you are a co-offender with Aqil Macaw. Insofar as the question of parity is concerned, unlike Mr Macaw, you have pleaded guilty to these offences, thus acknowledging your role in this serious conduct. As I already indicated in my sentencing reasons in relation to Aqil Macaw, I had both of you assessed for a Correction Order. In light of your pleas of guilty in relation to all the matters before me and relatively good prospects for rehabilitation, I am of the view that in your case a combined disposition is open.
25 I turn now to your personal circumstances.
26 You were born in Victoria, Australia. You were raised by your mother and father in Maidstone, with an older brother, an older sister and a younger sister. However, your parents separated when you were very young, only four years of age. You witnessed your father inflict violence upon your mother. Your life since has been devoid of positive male role models and you felt abandoned. And I note I was just told this morning that your father passed away recently in January whilst you were in custody.
27
You told Dr Cunningham that your mother struggled as a single mother. At the age of nine you were sent to Kenya, Africa, as your mother wasn’t coping well on her own. You told Dr Cunningham that living in Kenya was like going to prison. You lived with your grandparents, who were strict and brutal.
Not surprisingly, after having lived in Australia all your life, you found the experience of living in Africa alienating and dislocating. You lived there for three years and had no access to education in the interim.
28 Upon your return, you commenced your secondary education at Maribyrnong Secondary College, and completed Year 10. You did commence Year 11, but unfortunately left after meeting the mother of your child. You made that relationship a priority. This turned out to be a fateful decision. As a consequence of that choice, you began regularly living away from home at the age of 15 or 16 and using drugs. The relationship with Rikhaia ended about two months before the commission of this spate of offending.
29 The end of that relationship precipitated a crisis of meaning for you. You also became extremely self-destructive. You were daily using cannabis and methamphetamine in the lead up to, and at the time of, the commission of these offences.
30 In Dr Cunningham’s opinion, you present with a diagnosis of Post-Traumatic Stress Disorder. In meeting that criteria, you have been exposed to significant violence, trauma and death. This is a reference to the brutality and violence you experienced while living as a young person in Kenya. One incident you shared with Dr Cunningham was that shortly after your arrival in Kenya, you witnessed a man set on fire with a tyre around him after he was caught for a theft.
31 According to Dr Cunningham, not surprisingly, you have distressing recollections of these events. In that vein, reliance was placed on the fifth limb of the principles in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 in support of the contention that the existence of your PTSD means that any sentence would weigh more heavily upon you than it would on a person of sound mental health.
32 As already stated, you have fathered one child. I was told on the plea that there was no prospect of you re-uniting with the mother of your daughter. You have not seen your daughter for the entire time that you have been in custody. This has formed part of the salutary effect that incarceration (particularly in an adult environment) has had upon you.
33 As already observed, you now have family support, which was absent at the time of the commission of these offences. Present in court on the plea in mitigation were your two sisters, a cousin and a stepbrother. It is proposed, upon your release from custody, you will live with your paternal aunt in Tarneit. Apparently, she is a strict and disciplined woman. Hopefully your maturity and current positive attitude will endure and ensure that you live harmoniously in that environment with her.
34 The purposes for which a court may impose a sentence are punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim.
35 I am required to balance the interest of the community in denouncing criminal conduct, with the interest of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. In your case, Mr Ahmed, given your youthfulness at the time of the commission of the offences and the sobering effect that an extended period on remand in adult custody has had upon you, I am of the view that it is very much in society’s interest to foster and encourage your rehabilitation.
36 Furthermore, I am mindful of the relevant Court of Appeal authorities[1] that make clear that a CCO has a punitive effect and may be a suitable disposition even in the case of serious offending, such as is the case here. To that end, as I already indicated, I am minded to impose a combined disposition upon you.
[1]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen (2014) 46 VR 308
37 Please stand, Mr Ahmed.
38 In relation to Charge 1, being a charge of armed robbery, I convict you and impose a CCO of three (3) years upon you.
39 In relation to Charge 2, being a charge of armed robbery, I convict you and impose a CCO of three (3) years upon you.
40 In relation to Charge 3, being a charge of armed robbery, I convict and sentence you to a period of imprisonment of six (6) months.
41 I make the order on Charges 1 and 2 concurrent. So that in effect, the period of the CCO will be three (3) years.
42 Pursuant to s44(1) of the Sentencing Act 1991, as I already indicated, I propose to sentence you to a period of imprisonment of six (6) months, effective from today’s date, and on the completion of that six (6) months’ imprisonment, impose a three (3) year Community Correction Order.
43 The conditions of that Order must be that you must undergo assessment and treatment for alcohol abuse and drug abuse. You must undergo any mental health assessment and treatment. You must participate in programs that address factors that relate to your offending behaviour, and you must participate in programs or courses that are consistent with achieving the purpose of rehabilitation, which may include employment, education or cultural, or personal development programs.
44 I also order that you appear before me, pursuant to judicial monitoring, on
25 October of this year at 9.30 am.
45 Pursuant to s18 (4) of the Sentencing Act, I declare a period of 602 days as pre-sentence detention and I note that such declaration be ordered in the records of the Court.
46 Pursuant to s 6AAA of the Sentencing Act, were it not for your plea of guilty,
I would have imposed a sentence of imprisonment of four (4) years with a non-parole period of two (2) years.
47 I make the order for disposal of seized property as sought by the prosecution.
48 MR HUTTON: As Your Honour pleases.
49 HER HONOUR: You may be seated, Mr Ahmed. Yes, any matters arising?
50 MR HUTTON: I don't think so, Your Honour.
51 HER HONOUR: No. Very well. We will adjourn till Monday. Sorry, before you do that. Mr Ahmed, Ms Donohoe, I have already signed the order. If you would like to take the order?
52 MS DONOHOE: Yes, Your Honour.
53
HER HONOUR: I will just speak to Mr Ahmed before I do so. Mr Ahmed,
I have imposed - upon your release from prison, I have imposed a Community Correction Order. Do you understand that? Do you understand that if you breach any of the terms of that order you can be brought back before me for re-sentencing?
54 OFFENDER: Yep.
55 HER HONOUR: You understand that. And I am sure Ms Donohoe will explain to you. So given that, you consent to having the order imposed upon you, do you? You do. All right, very well. Yes, Ms Donohoe, you can take the order and ask Mr Ahmed to sign it. Yes, Mr Hutton.
56 MR HUTTON: One matter I just wanted to raise, Your Honour. Your Honour's made it clear in your reasons for sentence that Mr Ahmed has six months to serve from today.
57 HER HONOUR: Yes. From today's date.
58 MR HUTTON: I'm just concerned that the orders accurately reflect - if you have declared the 604 days.
59 HER HONOUR: I have declared the pre-sentence detention and I have made the six months effective from today's date.
60 MR HUTTON: Yes, Your Honour. That's my only concern. Thank you.
61 HER HONOUR: From today's date. That's my intention.
62 MR HUTTON: Yes, I figured that.
63 HER HONOUR: Yes. Because obviously, that's how s44(1) works. So he's got six months to serve from today.
64 MR HUTTON: Yes, Your Honour.
65 HER HONOUR: And then he will be released, pursuant to the Order. Now, there has been an application for a release of material from a media outlet. There has been a request for the dashcam footage CCTV and for the Crown opening, I think. Does anyone have any submissions they want to make in relation to that?
66 COUNSEL: No, Your Honour.
67 HER HONOUR: All right. In those circumstances, I will release that material. Do you need that back? Yes. Well, thank you, counsel. We will adjourn now until Monday.
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