Director of Public Prosecutions v Ahmed
[2018] VCC 989
•28 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-00066
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TALORER AHMED |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 June 2018 | |
DATE OF SENTENCE: | 28 June 2018 | |
CASE MAY BE CITED AS: | DPP v Ahmed | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 989 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - Sentence – Plea to four offences: indictable offences of armed robbery and prohibited person possess firearm, and related summary offences of possess cartridge ammunition without licence/authority and state false name – armed robbery committed in company on taxi driver using handgun – very relevant prior criminal record, including for offences against taxi drivers – drug intoxication an aggravating feature of the offending - prohibited person possess firearm offence related to a loaded shotgun on day following commission of armed robbery – offender aged 21 at time of offending and 22 at time of sentence – Offender relatively immature for age - Prospects of rehabilitation ‘guarded’ - Co-offenders in armed robbery aged 15 and 16 at time of offending, had no prior convictions and sentenced in Children’s Court jurisdiction
Legislation Cited: Crimes Act 1958; Firearms Act 1996; Sentencing Act 1991
Cases Cited: The Queen v Lee [2006] VSCA 80; The Queen v Awad [2007] VSCA 299; Rich v The Queen [2012] VSCA 273; Lord v The Queen [2018] VSCA 52
Sentence: For indictable offences: total effective sentence of 5 years and 10 months with non-parole period of 3 years and 8 months; Pre-sentence detention of 223 days declared: s.6AAA indication of 7 ½ years with non-parole period of 5 ½ years; For related summary offences: convicted and fined total sum of $1,000.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms B. Goding (Plea) Ms A. Roodenburg (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr M. Pena-Rees (Plea) | Armour Legal |
HIS HONOUR:
Introduction
1 Talorer Ahmed, you have pleaded guilty to an indictment containing two charges. Charge 1 alleges an offence of armed robbery and carries a maximum penalty of 25 years’ imprisonment. Charge 2 alleges an offence of prohibited person possess firearm and carries a maximum penalty of 10 years’ imprisonment.
2 You have also consented to this court having jurisdiction to deal with two related summary offences, namely possess cartridge ammunition and state false name when requested, and you have pleaded guilty to those offences also. Their maximum penalties are financial only; fines of 40 penalty units and five penalty units, respectively.
3 The circumstances in which you came to commit these offences are set out in the typed prosecution opening dated 25 May 2018, a copy of which was tendered as Exhibit A on the plea hearing. Your counsel indicated that it could be treated as an agreed statement of facts for sentencing purposes.
4 I have had regard to that opening when determining the appropriate sentence in this case. I will not recite its contents in full now; it is sufficient for present purposes, to note the following.
Circumstances of the offending
5 The armed robbery was committed in the early morning of 26 June 2017, while the other offences were committed on the following day. You were 21 years of age at that time and are now 22, having been born on 19 February 1996.
6 You committed the armed robbery offence with two accomplices, both of whom were children; Xavier Collett[1] was 15 at the time while Jesse Hill[2] had only just turned 16. The male victim, Gurinder Athwal, was a taxi driver working for the company 13Cabs. He had never previously met you or your two accomplices.
[1] This is a pseudonym in place of the real name: it has been utilised so as to ensure that there is no possibility of the identification of a child party to a proceeding held in the Children’s Court.
[2] Again, a pseudonym in place of the real name has been used so as to ensure that there is no possibility of the identification of a child party to a proceeding held in the Children’s Court.
7 On 26 June 2017, Mr Athwal started his shift at 5.30 am. At around 6.00 am, he received a job to pick up a person named ‘Steve’ from the address 25 Crow Place, North Melbourne. He arrived there shortly afterwards. When no passenger appeared in the following ten minutes, the job was cancelled.
8 At approximately 6.20 am, the victim received a further three jobs for a passenger named Steve, this time for the nearby address of 30 Alfred Street, North Melbourne. Again, no one showed up. An operator tried to contact Steve, but there was no answer. As Mr Athwal was driving away, you waved him down from outside the address of 22 Alfred Street.
9 When he stopped, you got into the taxi and identified yourself as ‘Steve’. You told him that you wanted to go to Flemington, but that you were still waiting for two friends who were only one or two minutes away. When Mr Athwal told you that he could not wait any longer, you made an unsuccessful attempt to call the others to find out where they were. They called you back a short time later and advised that they were at the corner of Boundary Road and Alfred Street. The victim agreed to drive there and pick them up. On entering the taxi, Xavier Collett sat in the front passenger seat while Jesse Hill sat in the rear drivers-side seat next to you.
10 The three of you had made a rudimentary attempt to conceal your appearances. You, like them, were wearing a hooded top with the hood pulled up and tightened by drawstrings around your face.
11 As directed, Mr Athwal drove to Flemington. He was asked to stop and pick up another of your friends, but refused as he did not want to wait any longer. As he continued to drive, he was directed to a car park near Mt Alexander Parade. Once there, he agreed to wait for your friend. After waiting for approximately a minute, he said he could not wait any longer.
12 At that point, Mr Ahmed, you said to the victim “I have a gun”. When he looked back, he noticed that you were holding a black pistol. Xavier Collett then got out of the taxi and ran to the open driver’s side window through which he grabbed the keys for the vehicle.
13 You then made a demand and threatened the victim, saying “Give us everything you got, otherwise we shoot you.” You then grabbed the victim’s black iPhone 5 from the centre console and, together with Jesse Hill, searched the taxi. As a result, the victim’s wallet containing approximately $160 in cash and personal cards was also located and stolen.
14 When the victim got out of the taxi, Xavier Collett gave him a pat down search. As a result, Mr Athwal had to hand over a further $60 in cash from his pocket. Xavier Collett then threw the keys back into the vehicle. All three of you then fled the scene on foot towards the high-rise apartments on Racecourse Road.
15 The victim then reported the matter to the 13Cabs operator and, ultimately, to the police.
16 You were arrested by police on the following day, 27 June 2017.
17 On that morning, Constables Glen Guilmartin and Sarah Bird were performing divisional van duties in the Flemington area. At around 2.20 am, they approached you and a female in the ground level foyer of 29 Holland Court, Flemington. As they did so, you ran away.
18 They gave chase as you ran behind nearby buildings and through a car park towards 58-64 Holland Court. When they lost sight of you for a few seconds, they heard what sounded like a metallic object being dropped on the ground. As they saw you re-emerge into the car park of 64 Holland Court, they noticed that you were no longer wearing the black jacket they had first seen you wearing.
19 Constable Guilmartin caught you near 126 Racecourse Road. You were immediately arrested and searched. Found in your possession were
Mr Athwal’s wallet, Victorian Driver’s Licence and personal cards, $200 in cash and a red-coloured shotgun shell.
20 When asked to provide your name, you gave police the name of your younger brother. Checks of the D24 database revealed that there were no police records under that name. On being advised that, you again provided the name of your brother. When asked a further time to provide your name, you said “I’ve already told you my name.”
21 A subsequent search of the area, located the black jacket that you had discarded during the chase. In one of the pockets, police located a second red-coloured shotgun shell.
22 You were then taken to Moonee Ponds Police Station, where your true identity was ultimately ascertained via the iFace recognition system, fingerprint database, and your father.
23 When you were interviewed by police on that day, you gave a mostly “no comment’ interview, as was your legal right. However, you also told a number of lies: for example, you continued to give the same false name, you denied robbing a taxi driver the previous night and you denied ever having a gun.
24 When the police later reviewed the relevant CCTV footage relating to the area of the chase, they discovered that you had disposed of a shotgun underneath a parked car near 126 Racecourse Road, Flemington. That firearm was located by a female civilian in a gutter near that address on 28 June 2017. She contacted the police who seized the weapon and found that it was loaded.
Pre-sentence Detention
25 Following your arrest and interview, you were charged and remanded in custody for this matter. You have remained in custody on remand for this matter ever since, although during part of that period, you have also served a sentence on unrelated matters. More particularly, you appeared at the Melbourne Magistrates’ Court on 30 October 2017 and received a sentence of six months’ imprisonment. That sentence lapsed on 22 March 2018. From that date, you have been in custody solely for this matter.
26 As at the date of the plea hearing, 19 June 2018, the parties agreed that the total period of pre-sentence detention that could be declared in respect of this matter under Section 18 (1) of the Sentencing Act 1991, was 214 days, not including that date. Accordingly, the total period is now 223 days, not including today. An appropriate declaration will be made in respect of that period later in these sentencing reasons.
Plea of Guilty
27 I note that this matter resolved following the committal hearing. You were arraigned and pleaded guilty to the charges on this indictment at a further initial directions hearing held on 22 February 2018.
Proceedings against the Co-offenders
28 Each of the two young co-offenders have already been sentenced in the Children’s Court jurisdiction for their involvement in this armed robbery. Each of them pleaded guilty to a single charge of armed robbery and received a without conviction disposition.
29 On 2 January 2018, Jesse Hill was placed on a 12 month Youth Supervision Order, with a special condition that he comply with the Outcome Plan from the group conference.[3]
[3] This was a global sentence imposed for a total of 10 offences.
30 On 21 March 2018, Xavier Collett was placed on an 18 month Youth Supervision Order, with special conditions, including that he engage with the plan of services prepared by Disability Client Services.[4]
[4] This was a global sentence imposed for a total of 21 offences.
31 At the time of being sentenced, each of those young co-offenders had no previous findings of guilt or criminal convictions and therefore fell to be sentenced as a first time offender.
32 I do note however, that each of them were sentenced for multiple other offences at the same time that they were sentenced for this armed robbery.
33 Jesse Hill was sentenced for additional offences of armed robbery (two), attempted armed robbery, attempted robbery (two), obtaining property by deception and committing an indictable offence whilst on bail.[5]
[5] Exhibit C, Relevant Police Criminal Record dated 19 June 2018.
34 Xavier Collett was sentenced for additional offences that included, inter alia, armed robbery (two), attempted robbery (three), affray (two), unlawful assault (two), criminal damage (three) and committing an indictable offence whilst on bail (four).
Prior Criminal Record
35 When your antecedents are viewed globally, Mr Ahmed, it must be said that you have a very relevant and somewhat disturbing criminal record.
36 In terms of any prior findings of guilt and convictions, you have been sentenced for a total of 37 offences as a result of four court appearances in the three year period, between 5 March 2013 and 18 April 2016. Of most note are the following.
37 In the first appearance, a magistrate in the Melbourne Children’s Court placed you on a 12 month Good Behavior Bond without conviction for an offence of robbery and numerous offences of dishonesty in various forms.
38 On 18 April 2016, you appealed to this court against sentences imposed in the Melbourne Magistrates’ Court on 22 October 2015. The sentencing magistrate had sentenced you to a term of 178 days’ imprisonment, which equated to time already served on remand, for offences which included assault in company, unlawful assault and two dishonesty related matters. At the same hearing, you were convicted and fined for four other offences, including one of state false name and another of state false address. Your appeal was allowed and instead of being imprisoned, you were ordered to be detained in a Youth Justice Centre for seven months.
39 That sentence was ordered to be served concurrently with other offences which were charged on indictment and dealt with on the same date and by the same judge. More particularly, you were additionally sentenced by her Honour Judge Cohen, for one charge of armed robbery, two of robbery, two of obtaining property by deception and one of attempted theft. To that point, you had already served a period of 397 days in adult remand. After cumulation orders, the total effective sentence was one of two years and eight months’ detention in a Youth Training Centre. A declaration was made in respect of 397 days pre-sentence detention.
40 The circumstances of the offending for which you were sentenced by Judge Cohen, in April 2016, are fully explained in her Honour’s revised sentencing reasons, a copy of which was tendered as Exhibit F on this plea.
41 The first set of charges arose from events in early January 2015. You and another male offender approached a young woman walking home at night from a railway station. Each offender was armed with a knife. The other male threatened to stab her if she screamed and demanded she hand over her handbag, which she did. It contained money and credit cards as well as her house keys and various identity documents. On the same night, you and the other male made a number of purchases using the victim’s stolen credit cards. At the time you committed those offences, you were on bail for other matters.[6]
[6] Exhibit F, [10]-[12] and [17]-[19].
42 One of the charges of robbery was committed in company against a taxi driver on 6 January 2015. He was attacked and robbed as he was about to start his shift. He was grabbed, punched to the ground and further assaulted by means of kicks and punches. One of the four males present implied that they had a gun and could shoot him. Stolen during the robbery were the victim’s e-TAG photo identification, various cards, portable EFTPOS machine and a quantity of cash. The incident only ended when it did because of the intervention of a female neighbor who screamed out that she had called the police. Her Honour found that you were one of the active protagonists in this incident and had become involved at an early stage.[7]
[7] Ibid, [21]-[30].
43 In the early hours of the following day, 7 January 2015, you attempted to steal petrol from a petrol station.
44 You were arrested on the following day and remanded in custody. You were released on strict bail conditions nearly six weeks later, on 17 February. Within a short time, you relapsed into drug use and further offending whilst subject to those strict bail conditions.
45 On 13 April 2015, you and two other males hailed a taxi in the early hours of the morning. The driver was paid in advance to take the group to the Men’s Gallery in Lonsdale Street. When it was discovered that the venue was closed, the driver was paid further money to take the group to Maidstone, where he was directed into a darkened side street. Once he stopped the taxi, you grabbed his mobile phone. As he tried to wrestle it back, one of your co-offenders punched him numerous times to the head using a set of knuckledusters. You were sentenced for an offence of robbery on the basis that the prosecution could not prove that you knew that the other male was armed.[8]
[8] Ibid, [38]-[41].
46 The circumstances of the offending the subject of the County Court appeals against sentence were also explained by Her Honour. Of most note were the following.
47 On 3 January 2015, you and another male fled from a taxi without paying the fare. When the driver sought to confront you, he was threatened. He later learnt that his bag and $60 had been stolen. As Her Honour noted, that was the first of four instances of stealing from taxi drivers.[9]
[9] Ibid, [51]-[52].
48 On 7 April 2015, you and another male travelled in a taxi. On arrival at your destination, you got out and punched the driver in the face before fleeing.[10]
Subsequent Criminal Convictions
[10] Ibid, [53].
49 As I have already noted, you were sentenced to a term of six months’ imprisonment while on remand for the offences for which this court must now sentence you. More particularly, on 30 October 2017, you were sentenced in respect of one charge of assault in company, four of obtain property by deception and one of fail to answer bail.[11] They constitute subsequent convictions for sentencing purposes; they are relevant to the weight to be given to specific deterrence as well as to this court’s assessment of your prospects for rehabilitation.
[11] Exhibit E, Sentence Remand Report.
50 The assault in company offence was committed on 10 May 2016, whilst you were still serving the period of Youth Justice Centre detention imposed by Judge Cohen. According to the police summary, you were one of four offenders who assaulted another detainee in the admissions lounge of Malmsbury Youth Justice Centre.[12] He was punched and kneed numerous times. The incident, which was captured by CCTV cameras, was only brought to an end by the intervention of staff. Fortunately, the victim received only minor injuries. You declined to be interviewed about that matter.
[12] Exhibit G.
51 I note that while there was no pre-sentence detention declared in respect of that six month sentence, you served less than five months. That is because you were credited 38 days by Corrections to make allowance for the difficulties caused by the fires which occurred at Port Phillip Prison where you were then an inmate.
Explanation for past and current offending
52 To the extent that there is any explanation for your past offending, it comes from what you told the psychologist Jeffrey Cummins during an assessment he conducted on 21 May 2018. In the resultant report dated 4 June 2018,[13] the author indicates that you told him that in the context of an aunt’s death and a friend’s overdose, you struggled to cope. As you put it, despite receiving good parenting, you started mixing with the wrong crowd, a group of older Somalian youths, and that led to drug use and criminal offending.[14]
[13] Exhibit 1.
[14] Ibid, [22]-[23].
53 On being released on Youth Parole, you engaged for a while, but then ‘gave up’. You relapsed into heavy drug use and not long after you committed this armed robbery on the taxi driver, Mr Athwal.[15] As you explained it, you had not slept for a number of days and were under the influence of drugs and professed to have very little recollection of the offending, ‘just bits and pieces’. You presumed that you acted as you did in order to get money for drugs and maybe other living expenses.[16] You knew the co-offenders, who were of Somalian/Sudanese background, from the area in which you grew up.
[15] Ibid, [24].
[16] Ibid, [26].
54 You summarised your offending history to Mr Cummins by stating that at an early stage you got in with a drug using crowd and were unable to resist reuniting with them once completing your parole.[17]
Release on and cancellation of Youth Parole
[17] Ibid, [38].
55 That last statement would not appear to be correct. You did not successfully complete your Youth Parole. But, nor did you breach it. What occurred was this. You were released on Youth Parole on 15 August 2016, for a period of 576 days and that period was due to expire on 31 January 2018. You did well on that parole for a while, but in very late 2016 and early 2017, you began to accumulate unacceptable absences, such that you received a number of warnings. A Youth Parole Board warning was listed for 13 June 2017, but you failed to attend. As a result, your parole was cancelled on that date and a warrant was issued for your arrest. That warrant was executed when you were arrested for this armed robbery on 27 June 2017.
56 As I understand it, no further action has yet been taken by the Youth or Adult Parole Board. I cannot speculate about what they may or may not do. All that is known at this stage is that at the time your parole was cancelled, you had completed 239 days of the parole period and owed the Youth Parole Board 337 days of the original parole period of 576 days.
Victim Impact
57 The victim of the armed robbery for which this court must now sentence you, has explained in clear terms the dramatic impact that your offending has had on him. In the victim impact statement he affirmed on 17 April 2018, Mr Athwal explained those adverse psychological and financial effects as follows.[18]
[18] Exhibit B.
58 He now gets scared when he works as a taxi driver, to the point where he locks his car on occasion and refuses to take some jobs. He is particularly afraid of the dark and will only work during daylight hours. He even has trouble sleeping at night and so, prefers to sleep during the day if he can. He has become socially isolated and feels lonely. He has lost the photos that were on his stolen mobile, some of which had sentimental value and cannot be replaced.
Foreseeability of that impact
59 The adverse effects on Mr Athwal, in terms of his ability to work as a taxi driver, are hardly surprising. Indeed, I consider them to have been entirely predictable. Any right minded person would likely expect an offence of this nature to have an adverse effect on the victim. In your particular case,
Mr Ahmed, I have absolutely no doubt that you were acutely aware of the fact that Mr Athwal would be severely impacted by the offence you were about to commit on him. I have come to that conclusion for the following reasons.
60 First, the neuropsychologist who had earlier assessed you for the purposes of the court hearing before Judge Cohen, was of the opinion that you had some insight into the effect on your victims.[19]
[19] Exhibit F, [74].
61 Then, when you were sentenced for the armed robbery of the lone female, and the offences against the other taxi drivers, the sentencing judge went to some lengths, to make very clear to you what the impact of your offending had been on some of those unfortunate victims. So, on 18 April 2016, some 14 or so months before you committed this armed robbery against Mr Athwal, Judge Cohen told you the following:
· Your offending against the female victim of the armed robbery had caused her great fear and distress, both at the time and afterwards. She had lost confidence and become socially withdrawn. She had needed counselling and other treatments for the trauma and stress that she had experienced. It had impacted her ability to work. She was still trying to deal with the trauma at the time of making her victim impact statement.[20]
· During the robbery of the taxi driver on 6 January 2015, the victim was worried about what the consequences would be for his wife and children. That offending caused significant and lasting impacts on his life. He was unable to work for a prolonged period and, as a consequence, lost his job as a taxi driver. He and his family suffered financially as a result.[21]
[20] Exhibit F, [13].
[21] Ibid, [25].
62 Furthermore, the way in which the current armed robbery was carried out, that is, in company, and by means of the production and threatened use of a handgun, was clearly designed to instil maximum fear in the victim’s mind, so as to ensure ready compliance with your demands. In this context, it is worth noting that when questioned by Mr Cummins, you readily conceded that the victim would have been ‘petrified’.[22] I do not consider that you were there speaking with the benefit of hindsight. In my view, you aimed to place Mr Athwal in that frame of mind by carrying out the armed robbery in the circumstances that you did.
[22] Ibid, [27].
63 Based on those matters, I have no doubt that as you planned the current armed robbery, you were cognisant of the likely deleterious impact that it would have on the victim. In my view, that is one of the reasons for concluding, as I do, that your degree of moral culpability for this offence is very high.
Awareness of the seriousness of the offending
64 Another reason is your prior firsthand knowledge of the seriousness of armed robbery offences generally, and of those committed against taxi drivers in particular. You well knew that the courts and Parliament viewed armed robbery very seriously before you robbed Mr Athwal at gunpoint.
65 At the latest, you would have gained that appreciation from listening to Judge Cohen’s sentencing reasons as they were delivered on 18 April 2016.
66 It is hardly surprising then that you later told Mr Cummins that you know armed robbery is a very serious offence. In my view, you were not then speaking with the benefit of hindsight, after you had been arrested on this occasion. Rather, you were drawing on your past experiences with the police and the legal system, as a result of being arrested and prosecuted for other offences, including those committed against taxi drivers.
Drug Intoxication an aggravating feature of the offending
67 In this particular case, I am satisfied that you were drug affected at the time that you committed this offence of armed robbery, and that such drug intoxication was causally connected to that offending. Further, I am satisfied to the criminal standard, that such intoxication represents an aggravating feature of that offending. Your counsel did not seek to argue against that proposition when I raised it with him during the plea hearing.
68 You told the psychologist, Mr Cummins, that your offending was ‘totally drug-related’ and that you were under the influence of methamphetamine, cannabis and Xanax at the relevant time. You presumed that you acted as you did to get money to buy more drugs.[23]
[23] Exhibit 1, [26] and [34].
69 I note that you gave a similar explanation for the earlier offending for which you were sentenced by Judge Cohen. As noted by Her Honour, you offended as you did on those occasions, while significantly affected by either drugs or alcohol or a combination of both. At the plea hearing for those matters, Her Honour was told that you realised the role that substance abuse had played in that offending and that you were motivated to undertake drug and alcohol counselling to avoid falling into the same habit in the future.
70 In such circumstances, I am satisfied that when you were released on Youth Parole, in respect of Judge Cohen’s sentence, you understood that if you relapsed into serious drug use, you were at very real risk of committing the type of offence that is now before this court. In my view, that increases your level of moral culpability and makes this offence of armed robbery more serious.
Personal Circumstances
71 I will now outline your personal circumstances, Mr Ahmed.
72 As already noted, you are still a relatively young man, albeit not a young offender for sentencing purposes.
73 You were born in Melbourne to Somalian parents. They travelled to Australia in 1994.
74 You are part of a large, law abiding family. As was evident from their attendance at the plea hearing, they continue to support you despite the continuing and escalating nature of your offending.
75 You were in a 12 month relationship with a woman of Somalian background, but that ended shortly prior to your arrest in June 2017, on account of your drug use. You are currently single and have no children.
76 Your education was limited. On leaving school at age 15, you enrolled in a pre-apprenticeship course in bricklaying at Newport Victoria University. On completing that course, you received a Certificate 3 pre-apprenticeship. In 2016, while on Youth Parole, you completed a Warehouse Logistics and Forklift Certificate 2 at Laverton Training Institute.
77 You have experienced periods of homelessness and that has impacted on your ability to obtain employment. In fact, you have never had paid employment.
78 You have a history of alcohol abuse and illicit substance use. You commenced drinking alcohol and using cannabis shortly after leaving school. Your drinking became heavy and regular and you went onto use cocaine, methamphetamine (‘Ice’) and heroin. You have never undertaken any residential detoxification or treatment despite considering yourself to be addicted to both methamphetamine and cannabis.[24]
[24] Exhibit 1, [21].
79 Some months prior to the current offending, your polysubstance use (‘Ice’, cannabis and heroin) resulted in you moving out of the family home and onto the streets. Your parents do not condone either your drug use or criminal offending; in fact they are understandably perturbed by it.
80 To your credit, you have undertaken further studies whilst on remand, obtaining certificates in kitchen operations, cleaning operations, construction, and employment pathways. Whilst you have no specific career aspirations, you do have some interest in becoming a brickies labourer.
81 I note that whilst in custody, you have also successfully completed a 42 hour intensive drug and alcohol program.
82 Apart from the support being offered by family and friends, assistance is also available from the Somali Australian Council of Victoria (“SACOV”),[25] which is a not-for-profit agency which aims to provide services to Somali Australians and other culturally and linguistically diverse communities. That organisation is willing to engage and support you in custody, as well as on your eventual release. A letter from a senior social worker outlines the type of assistance and tailored intervention supports that can be provided. In addition to weekly counselling sessions designed to address and reduce your anti-social and criminal behaviours, mentoring support would be available to you and your family, to address personal and family issues and to assist you to successfully re-integrate into the social, economic and cultural life of your local community. The family issues include the cultural stigmatisation and shame of drug use.
Report of Jeffrey Cummins, Psychologist
[25] As to which, see exhibit 2.
83 You were assessed by the clinical and forensic psychologist, Jeffrey Cummins, on 21 May this year, via a video link conference.
84 You presented as of below average intelligence, relatively immature, and at risk of being diagnosed with an Antisocial Personality Disorder.
85 Your reported symptoms of anxiety and depression are considered by
Mr Cummins to be reactive to your current legal predicament and to your inevitable further incarceration.[26]
[26] Exhibit 1, [35] and [39].
86 In his opinion, at the time of your offending you did not attract any specific clinical diagnosis other than that of poly-drug use. Rather, your offending behavior was, in his view, primarily reflective of your drug using lifestyle, coupled with your relative immaturity.[27]
[27] Exhibit 1, [32]
87 As far as any recommendations are concerned, Mr Cummins considers residential drug rehabilitation and an anger management course, such as the Violence Intensive Program to be essential. In addition, he considers that you could benefit from general psychological treatment in light of your relative immaturity.
88 He provides a guarded prognosis; your situation will only improve if you are able to remain drug free on an extended basis while in the community.
Other matters in mitigation
89 Your counsel, Mr Penna-Rees, was able to rely on a number of other matters in mitigation on your behalf.
90 You have pleaded guilty to the offences for which you must now be sentenced by this court. However, that plea has not been entered at an early stage. You pleaded not guilty at the committal and it was not until a directions hearing stage in this court that you decided to plead guilty to the same charges that you had always faced. But, you are still entitled to a moderate discount in sentence for pleading guilty at that stage of the proceedings. As a result of the course that you have taken, the community has been spared the cost and time associated with a trial and, even more importantly, the victim of the armed robbery offence has been spared the ordeal of having to give evidence at trial.
91 The issue of remorse is a nuanced one. Whilst I am prepared to accept that your plea evidences some level of remorse, I am not satisfied that it is all that strong, given the nature of your criminal history, and in particular, your deliberate choice to target vulnerable taxi drivers. In the instant example, you acted as you did with pre-mediation and whilst cognisant of the likely adverse impact that your actions would have on the hapless victim. In the end, consistent with the opinion of Mr Cummins, it would seem that what remorse you do have is limited and unsophisticated.[28]
[28] Exhibit 1, [29].
92 At 22 years of age, you are still a very young man. You are also relatively immature. For both reasons, due allowance must be made for the potential for you to develop further maturity and a better capacity to reflect on and perhaps address your antisocial and offending behaviours. In that context, careful consideration must be given by this court to the fixing of any non-parole period.
93 It would appear that you have endeavored to use your time on remand productively and have expressed a preparedness to undergo further drug and alcohol counselling and treatment in the future.
94 You have continuing family support and the opportunity to obtain valuable assistance from a social worker allied with the Somali Australian Council of Victoria.
Gravity of the offending
95 However, they are not the only matters to which this court must have regard when considering what sentence to impose in this case.
96 Regard must also be had to the objective gravity of this offending.
97 As is clear from the very high maximum penalty fixed by Parliament, armed robbery is an intrinsically serious offence. That point has been made on numerous occasions by the Court of Appeal, most recently in Lord v The Queen.[29] In that case, the point was made in the following terms:
Armed robbery is a very serious offence. It causes great harm to those directly affected and great disquiet in the wider community. The very high maximum is the clearest indication of how seriously the offence is to be viewed.[30]
[29] [2018] VSCA 52.
[30] Ibid, [11] (The Court) (Maxwell P and Beach JA).
98 For understandable reasons, those committed against vulnerable and ‘soft’ targets are viewed very seriously indeed. Again, that point has been repeatedly made in this court and at the appellate level. The following observations of Vincent JA in The Queen v Lee[31] appear apposite:
…[T] community is entitled to look to the courts for protection against such offending, and to expect that condign punishment will be imposed in such cases, in order to make clear to those who may be minded to engage in it, that conduct of this kind will not be tolerated. This court has on a number of occasions emphasised the seriousness with which offences committed against persons who work in isolated and unprotected environments will be viewed. Such persons as taxi drivers and those who work in service stations, convenience stores or small family businesses are extremely vulnerable and are clearly entitled to the full protection of the law. The protection of the law means that the principle of general deterrence assumes considerable significance.[32]
[31] [2006] VSCA 80
[32] Ibid, [24].
99 The general observations made by Curtain AJA in The Queen v Awad[33], a case in which the offender was sentenced for armed robbery and robbery of taxi drivers are also worth noting.[34]
[33] [2007] VSCA 299.
[34] Ibid, [16]-[17].
100 I would also like to endorse what was said about armed robberies on taxi drivers by her Honour Judge Hogan, when sentencing an offender named
Pia Rich. The relevant observations were extracted and referred to in paragraph 28 of the Court of Appeal decision of Rich v The Queen.[35]
[35] [2012] VSCA 273.
101 In my view, this armed robbery was a serious example of an inherently serious offence. It was committed against a vulnerable and soft target.
The victim, like many taxi drivers, was working alone and at night. He was directed to a secluded location where he was even more exposed. There, he was subjected to a terrifying experience at gunpoint. He was told he would be shot if he did not comply with the offenders’ demands. He has been severely impacted by the ordeal to which he was subjected and will continue to suffer adverse effects into the foreseeable future. This offending was pre-meditated, although not overly sophisticated. But, such offences rarely are as the offender would risk not being picked up if better disguised. What planning did occur was sufficient to guarantee the success of the criminal venture. Furthermore, this offence was committed in company with two other offenders. I am satisfied that Mr Ahmed played the leading role; it was he who was in possession of the handgun, and it was he who made the threat to shoot the victim. It is also relevant to note that he was considerably older than the other two offenders, and had been convicted previously of serious offending against taxi drivers. For those and other reasons, I consider
Mr Ahmed’s level of moral culpability for this offending to be very high.
102 The offence of prohibited person in possession of a firearm is also an intrinsically serious offence, carrying as it does, the relatively high maximum penalty of 10 years’ imprisonment. This particular example is a serious and troubling one. Self-evidently, it involves a different firearm to that used to commit the armed robbery less than 24 hours earlier. This firearm was loaded. No real explanation was offered in respect of how or why Mr Ahmed came into possession of it. In my view, the inescapable inference is, that he had it for some unidentified criminal purpose. Another relevant consideration is the very short period between when he became a prohibited person and when he committed the offence.[36]
[36] As was explained at the plea hearing, under the relevant legislation, Mr Ahmed was deemed to be a prohibited person by reason of the fact that he was in possession of the shotgun within 5 years of having served a period of detention in a Youth Justice Centre.
103 The related summary offence of possess cartridge ammunition is far from trivial, especially given that the cartridges possessed were compatible with the shotgun the subject of Charge 2 on the indictment.
104 As for the related summary offence of state false name, I note that this instance involved persistent statements, and that Mr Ahmed was prepared to put his younger brother’s name forward to the police, in circumstances where he must have known that they may well find the firearm that he attempted to hide from them. Such attempts to shift the blame does him no credit whatsoever. I also note that Mr Ahmed has relevant prior convictions in this regard.
Relevant Sentencing Principles
105 For obvious reasons, general deterrence and denunciation assume considerable importance in this case.
106 So too does specific deterrence, given Mr Ahmed’s concerning and very relevant criminal history. In addition, it would seem that previous periods spent in gaol on adult remand and under sentence, in a Youth Justice Centre have proved insufficient deterrents. Indeed, his current offending represents an escalation in what is a developing pattern of offending against soft target victims.
107 In the particular circumstances of this case, I consider the protection of the community from the offender to be another important sentencing consideration.
108 This court must punish Mr Ahmed to an extent and in a manner that is just in all the circumstances. Given the nature and gravity of this offending, any such punishment needs to be substantial.
109 Totality considerations arise in a number of respects. First, the offending for which Mr Ahmed must now be sentenced, occurred over a very short period. That said, the weapon related offences involved different firearms and were committed on separate dates, albeit consecutive dates. Clearly, some degree of cumulation is warranted as between those two charges and defence counsel did not suggest otherwise. Second, some allowance must be made for the fact that Mr Ahmed served the entirety of the sentence he received on 30 October last year, without any opportunity to have a degree of concurrency between that sentence and this sentence
110 As defence counsel at the plea readily acknowledged, parity has no substantial role to play in my consideration of the sentence to be imposed for this armed robbery offence. The reasons for that should be self-evident.
111 Regard must also be had to Mr Ahmed’s age and prospects of rehabilitation.
112 He is, as I have already noted, still young. But, the weight to be accorded to that consideration must be less in circumstances where, as here, he falls to be sentenced for very serious offending, against a backdrop of having been afforded some degree of leniency in the past for broadly similar offending.
113 I concur with Mr Cummins’ assessment of Mr Ahmed. His prospects are guarded to say the least. They very much hinge on him receiving and engaging in appropriate counselling and treatment for what is obviously a very serious and entrenched drug addiction. On this occasion, as in the past, that addiction was causally connected to his offending. Unless and until he overcomes his addiction to drugs, I have little doubt that he will continue to appear before the courts for serious offending and spend increasing periods in gaol. Mr Cummins recommendations for residential drug treatment and counselling, together with anger management and general psychological counselling, have much to commend them.
Sentencing submissions
114 In what was a very realistic and appropriate sentencing submission, defence counsel conceded that nothing short of a substantial sentence of imprisonment, involving a head sentence and non-parole period was open, in the particular circumstances of this case. However, he emphasised
Mr Ahmed’s youth, relative immaturity and prospects and urged the court to avoid imposing a crushing sentence.
115 For their part, the prosecution pointed out some of the serious aspects of
Mr Ahmed’s offending and addressed a number of the relevant sentencing principles, to which this court must have regard. They agreed with the defence that nothing short of a head sentence with a non-parole period was appropriate.
Analysis
116 I agree with the effect of those submissions.
117 Clearly, a substantial sentence of imprisonment is warranted in this case. To do otherwise, would fail to accord due weight to a number of important sentencing principles and would fail to justly punish Mr Ahmed for the serious criminality in which he engaged.
118 But, given Mr Ahmed’s age, and the fact that he does have some prospects, I consider it important to give him the opportunity to be considered for a relatively lengthy period of supervised release into the community on what I would expect would, if granted, be a strict and tailored parole regime.
Sentence
119 Having carefully considered, balanced and weighed the various, and in some respects competing sentencing considerations raised by this case, I have decided to convict Mr Ahmed on each charge and sentence him as follows.
120 For the two offences contained in the indictment, Mr Ahmed is sentenced to the following terms of imprisonment.
121 On Charge 1, armed robbery, five and half years.
122 On Charge 2, prohibited person possess firearm, 12 months.
123 The sentence imposed on Charge 1 is to be the base sentence.
124 I order that four months of the sentence imposed on Charge 2 is to be served cumulatively on the sentence imposed on Charge 1.
125 That makes a total effective sentence of five years and 10 months.
126 In respect of that head sentence, I fix a non-parole period of three years and eight months.
Pre-sentence detention
127 The period of 223 days pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
S6AAA declaration
128 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had Mr Ahmed pleaded not guilty to the charges for which he has been sentenced to imprisonment today, he would have been sentenced to a total effective sentence of seven and a half years with a non-parole period of five and half years.
Related summary charges
129 In relation to the related summary charge of possess cartridge ammunition, Mr. Ahmed is fined $750.
130 And finally, in relation to the related summary charge of state false name, he is fined $250.
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