Director of Public Prosecutions v Ahmed & Anor
[2023] VCC 1077
•5 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-00131, CR-22-00132 & CR-22-01195
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMED AHMED MOHAMMED ALI |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 April 2023 |
DATE OF SENTENCE: | 5 June 2023 |
CASE MAY BE CITED AS: | DPP v Ahmed & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1077 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Sentence Indication – Co-accused – Armed robbery – Intentionally causing injury – Possession of cartridge ammunition – Attempted armed robbery – Theft – Breach of Bail Act – Dealing with property suspected of being the proceeds of crime – Plea – Denunciation – Deterrence – Rehabilitation.
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175; R v Renzella [1997] 2 VR 88; Karpinski v The Queen [2011] VSCA 94; Boulton v The Queen [2014] VSCA 342; 46 VR 308;
Legislation Cited: Bail Act 1977 (Vic)
Sentence:MOHAMMED ALI: 304 days imprisonment and an 18-month Community Corrections Order.
MOHAMED AHMED: Total effective sentence of 3 years and 3 months imprisonment with a minimum non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Tatas | Office of Public Prosecutions |
For Accused Ahmed | Mr L. Barker | Emma Turnbull Lawyers |
For Accused Ali | Mr J. Mortley | Angus Cameron Lawyers |
HIS HONOUR:
1Mohamed Ahmed and Mohammed Ali, on or about 14 April 2023 I gave you men an indication of the sentences I would impose if you pleaded guilty to the indictments you faced. You, Mr Ali, accepted the indication given and pleaded guilty on arraignment to the charges on Indictment M11207181, being
one charge of armed robbery and one charge of intentionally causing injury and a summary offence of possession of cartridge ammunition.2You, Mr Ahmed, also accepted the indication given and pleaded guilty on arraignment to charges on two indictments, the first was Indictment M11212839, which contained the same charges as Mr Ali, being armed robbery and intentionally cause injury, which contained the same charges as Mr Ali, being armed robbery and intentionally cause injury.
3The second indictment was then N10047513, which contained three charges of attempted armed robbery and intentionally cause injury, theft of a motorcar. You have this morning pleaded guilty to a further two summary offences, being committing a breach of the Bail Act and dealing with property suspected of being the proceeds of crime.
4Dealing first with the charges of armed robbery and intentionally cause injury, to which you have both pleaded guilty, they arose out of a drug deal gone wrong on 6 June 2021. The young drug user, to keep this neutral, sought to buy a significant amount of drugs from you men. The transaction was to occur in a car in Carlton or Parkville. The purchaser wanted to try the drugs before purchasing them. You men became frustrated at what you saw was his delaying and you became aggressive. The drug purchaser got out of the car and you men attacked him, using machetes to cause injuries to his hands and arm. You took the money that he had brought to the scene to buy the drugs. He ultimately received treatment in a hospital for the injuries that you caused to his hand and arm. As I said during the sentence indication hearing, these crimes were serious notwithstanding the victim was seeking out drugs to buy. It was no doubt a frightening experience.
5The injuries were significant, but have likely resolved. As was raised by counsel and as I mentioned in the sentence indication hearing, given what the victim was seeking to do, the prosecution did have some difficulties in prosecuting this case, thus the pleas of guilty from both you men in respect of that matter is a matter of significant weight. What must be added to that is that your plea of guilty came during the crisis in the criminal justice system caused by COVID. Thus, the value of your pleas of guilty must be an augmented one of a dimension that encourages others who are guilty to plead guilty so as to reduce the COVID caused backlog of trials.
6The principles that were articulated in Worboyes[1] and Chenhall[2] apply to both accused and in relation to all indictments. Dealing first with you, Mr Ali, your counsel sought a sentence of the time that you have served in custody of
304 days, together with a community corrections order. After considering all the material and the prosecution's submissions in opposition to this course,I determine that all sentencing purposes would be satisfied by a sentence of imprisonment that is of the time that you have already served, together with an 18-month Community Corrections Order.[1]Worboyes v The Queen [2021] VSCA 169.
[2]Chenhall v The Queen [2021] VSCA 175.
7You were assessed for your suitability for a Corrections Order and were found to be suitable for it. As I noted in the sentence indication hearing, ordinarily the sentence that I have just described would be lenient to the point of inadequate. There remains a significant need for denunciation and deterrence for the crimes that you committed. However, my assessment of your turnaround or your steps towards rehabilitation was that now was a moment to seize rather than return you to prison. The events of the last week give greater emphasis to that. I will return back to the fact that your wife gave birth, or your partner gave birth to your third child last week.
8Your personal circumstances are that you are now 29, if I have got that right. You were born in a refugee camp in Kenya. Your parents' relationship was fragile. You were taken first to New Zealand, then to Australia and then to the USA by your mother. She then gained residency in Australia in 2003 and you were raised in the Housing Commission flats in Carlton. It was a difficult environment.
9You relocated briefly to Perth. You were for a time in Somalia with your mother. Your father's family were there but again that was more a time of upheaval than anything else. You came back to Australia but your mother effectively abandoned you and your sister when she, your mother, returned again back to Somalia. Your mother had established, it seems, a cleaning business and at a young age you took that on. At 21 you moved into a share house from the flat that you shared with your sister. It was in the share house and about that age that you were introduced to drugs. This share house disintegrated and you were homeless for a significant period of time. You were using drugs and commenced criminal activity but on close examination your prior criminal history is not extensive, nor is it too concerning.
10There was one significant set of charges laid in 2017 that saw you remanded for nine months before a trial in this court was discontinued. Though, as I understand it, it was not argued, I consider on the basis of Karpinski,[3] and before that Renzella,[4] that this remand time or dead time is relevant to my sentencing discretion, further fortifies me that the gaol portion of my sentence is sufficient, given that you are entitled to call on that time that you served in 2017 on remand when the charges were at the door of the court or just after they opened, discontinued.
[3]Karpinski v The Queen [2011] VSCA 94.
[4]R v Renzella [1997] 2 VR 88.
11On release from that period of remand you met and commenced a relationship with your partner. I have written you have two children with a third on the way but this morning I was told that your third child was born prematurely last week. Your wife remains in hospital. You were working prior to this offending but in June 2021 the COVID lockdown sat that you were laid off and this had a very significant impact upon you and you were unable to meet financial commitments. It is to be noted that one of your children is in need of significant care and has recently had approval for NDIS support. These were difficult times during the COVID lockdown.
12After you were arrested for this offending in Parkville, the drug deal, you were granted bail early on, but it was revoked when you were charged with an assault. That itself was ultimately withdrawn or did not proceed, but you remained in custody until September 2022. Again, the reason for your incarceration on remand are unfortunate and permit you to call in aid this circumstance in mitigation. Upon your release on bail, you have very significantly altered your approach to life. What was summarised by your counsel in written submissions is a broad overview of what has been the significant progress.
13You were on very strict bail conditions, which included that you reside with an old friend of yours, a school friend, Mr Galofaro, and he offered you some work and you are doing landscaping three days a week. You were waiting to commence a Certificate III in civil construction prior to your remand, and you revitalised that and have in recent days been accepted and are commencing that course literally today.
14As I said, there were very difficult bail conditions which have prevented you from engaging in your preferred sport of soccer training. During the course of your time on bail your partner reached out to your father. There had been a significant break in the relationship. You have reconnected and have commenced relationships with him and four half siblings. Unfortunately, their mother passed away from COVID during the course of that pandemic and you have been motivated to help them.
15You will, as I will refer to shortly, have learnt a great deal about the value and discipline of employment and you do not want to return back to criminality.
You have not used drugs or alcohol. Those that have seen you, particularly your partner, indicate that you have changed a good deal. You are managing your son's NDIS package and volunteering within the Commission flats. Although you do not live there you were assisting there for some time.16I mentioned what is also of significance, as I have already mentioned, is that you have solid work with your long-time friend, who also was your housemate while you were on bail. His letter to the court was very insightful and justifies being quoted at length. Mr Galofaro wrote. He first described himself as a business owner, landscape gardener. He employed you. He has known you for 17 years when you met at secondary school in Year 7. You moved around, as I have already described, but you remain friends.
17He offered work and his house for you to be released on bail. He said throughout that period of time until he wrote the letter you and he spent an extensive amount of time together. You were on very tight curfews. What he said was he witnessed the growth, maturity and positive changes that you had applied to your life. He said as an employee you are enthusiastic and perform the duties required and you have gained confidence. He has seen your improvement in your abilities through consistency and hard work. He says personally he has seen how the job has given you routine and responsibility, which has had a huge effect upon you. It has given you a sense of purpose and validity within society.
18I pause for a moment to say I often emphasise within my sentences the high value of regular work for those who come before the courts who have not had such a thing. Mr Galofaro speaks of it in more concise and telling terms than
I ever have, and it is a matter of great credit to him but also it indicates just how important having secure work can be. He says as a housemate he set an example for you and, in particular, living a healthy, active lifestyle, he gave away drugs and alcohol. and worked very hard on strengthening your relationship with your wife and family.19He said when you started to speak about emotions it took him off guard but it made a lot of sense to him. That is that you were engaging in counselling courses that your barrister has spoken about and it seems that there are things in your past that need to be sorted out. He also noted that you have reconnected with your father and were catching up and you had also made further contact with your mother, who remains in Somalia. He said the changes that he saw are inspiring to see. He feels his ability to give yourself and accept past pains and move on is crucial at this part of your life. He concludes, 'He is a good person. I hope he can continue in his pursuit to do right'.[5] As I say, that letter was very insightful. Thus, the supports and responsibilities you now have are very important in my assessing your future. Beyond that you have genuinely faced up to your responsibilities and want to settle, be crime and drug free, and make a contribution to your family and the community. You have plans to conclude or complete your Certificate III and move into construction, working parallel to Mr Galofaro.
[5] Letter of Mr Damian Galofaro dated 10 April 2023.
20As I said in the sentence indication, these are the very things spoken of in Boulton v The Queen,[6] that mean a sentencing judge is authorised, as I consider I am, to impose a sentence that emphasise rehabilitation, that keeps families together and at the same time punishes. As was made clear in Boulton, the sentencing discretions or the sentencing landscapes had changed. The blunt instrument of incarceration is not required as it was in the past. The sentencing purposes of denunciation, punishment and general deterrence, as well as facilitating rehabilitation, can be achieved or are best achieved by a combination sentence, in your case of imprisonment and a community corrections order. As I said, you were found suitable for a Corrections Order.
[6]Boulton v The Queen [2014] VSCA 342.
21Thus, the sentence that I impose will be: the time that you have served of
304 days, together with an 18 months' Community Corrections Order with conditions. I will return back to that in due course. Just bear with me for a moment.22I will just circle back. I think I will announce the sentence with respect to Mr Ali. So the sentence I impose for the offence of armed robbery, intentionally cause injury is an aggregate term of imprisonment of 304 days together with an
18 month community corrections order with conviction. I asked the Corrections Officers regarding treatment for drug, mental health and supervision. They considered that there was a place for alcohol treatment and other programs. Given what I have heard as to your progress, both the counselling that you have had and how it is slowing up, because you have come so far in particular with alcohol, I am not inclined to add other requirements of you. Thus, within the
18 months Corrections Order the program conditions are: that you are to be assessed and treated for drug abuse; you are to be assessed and treated for mental health problems; and you are to be under supervision.23I declare that 304 days that you spent in custody, that is that figure having been reckoned, I now declare it as part of the sentence that I have just announced, the imprisonment, part of it in fact it is every single day of the imprisonment that I have just announced. So that will be entered into the records of the court so that prison authorities are left in no doubt that you have served every single day of the imprisonment portion of the sentence I have just imposed. The summary offence, possession of cartridge ammunition, you are convicted and fined $150. Had you pleaded not guilty to this offence and been found guilty I would have imposed a sentence of three years with a minimum of 20 months. There will be a form to fill out in due course. We will get to that and if you consent to it, so take a seat for the moment, Mr Ali.
24Mr Ahmed, the crimes you committed separate from Mr Ali was an attempted armed robbery, intentionally causing injury and the theft of a car, together with the summary offences. Those latter offences or indictable offences occurred on 3 January 2022. You were again in the company of a co-accused, a man called Omar. You were on bail, it seems, for these earlier offences and,
as I understand it, on a Corrections Order as well.25The offences on 3 January 2022 were again serious displays of violence.
This time of violence that was inflicted on a victim who was sleeping in a laneway in Windsor. You and the co-accused drove there in a stolen car.
You had gone into a bottle shop early in the morning of 3 January 2022, bought some Vodka and walked out past a laneway. The victim had fallen to sleep in the laneway a few hours earlier. You came to the sleeping victim and demanded his phone. He resisted. You men drew weapons. The victim held his phone and ran to get away. As he did Omar stabbed him in the buttocks and you swung your knife but did not make contact. All this was captured on CCTV footage and I have watched the whole frightening episode. The victim was bleeding badly and called an ambulance. He required surgery to stem what was very significant bleeding from a deep wound.26As can be appreciated, this offending is very concerning. It was violent and perpetrated on a vulnerable man who ended up in hospital, needing surgery to stem the knife wound or stem the bleeding from a deep knife wound. The injury was caused almost gratuitously as he ran to escape what was an attempted armed robbery.
27As I mentioned, you were on bail from the offending committed with Mr Ali, which also involved sharp weapons that were used and you were on a community corrections order. Both those matters are aggravating aspects with respect to sentence for these offences. You have a prior criminal history that is concerning. It means that along with aspects of these offences it makes your rehabilitation a more difficult and likely longer process.
28You are now 28 years old. You were born in New Zealand. Your parents moved there from war torn Somalia. You describe your parents as loving and very supportive. However, your mother died when you were just 12 after the family had moved to Australia. Also tragically, your father died when you were about 25. Within your secure family life, you were subjected to some abuse that you describe to the psychologist by a visiting uncle. You kept this trauma to yourself but it has left a mark. I take that into account.
29You left school at Year 11 but have not had any periods of employment, and
I refer back to what was said by the employer of Mr Ali Galofaro as to the benefits that come from secure employment and the disciplines involved. That you have abused drugs including prescription drugs since your teens. You have been in an enduring relationship for around 10 years. You have four children.
You spoke to the psychologist, Mr Standlish, expressing great regret that you had let your partner down by committing these offences. She has to raise the four children and work to earn money to survive. Her letter was very dignified and supportive of you despite all that she has endured.30You spoke of wanting to secure work, cease drugs, rekindle fitness and involvement in sport. The psychologist indicated that you have no mental health problems. You have problems with substance abuse. You will need supervision on release. In addition to the letter from your partner, you have tendered letters from friends that have seen good qualities in you. Those observations support your counsel's submission that you are redeemable.
As I indicated, I considered the only appropriate sentence for both offences was a global head sentence and a non-parole period. Both your counsel and the prosecution were of the same view.31The need for deterrence and punishment and then supervision on release led me to indicate the following sentence, and I now impose that sentence.
32For an armed robbery and intentionally cause injury at Carlton on Indictment M11212839 I sentence you to an aggregate term of 16 months.
33For the attempted armed robbery, intentionally cause injury and theft of a car, you are sentenced to an aggregate term of two years and nine months.
34For the summary offence of breach of the Bail Act you are sentenced to
one month.35For the summary offence of proceeds of crime, you are sentenced to
two months.36Both those sentences are concurrent but I order six months of the imprisonment imposed on M11212839 be cumulative upon the two years and nine months of imprisonment on M1004751, giving a total effective sentence of three years and three months and I fix a non-parole period of two years.
37You have been in custody for 551 days. That figure having been reckoned
I now declare is part of the sentence that I have just imposed. I will ensure that that declaration is entered into the records of the court so the prison authorities are left in no doubt you have already done 551 days of the sentence that I have just imposed. Had you pleaded not guilty to both indictments, again achieving as best I can what would be a global sentence, it probably would not have worked that way, the sentence that I would have imposed is five years,
six months with a minimum term of three years and six months.38There are a number of disposal orders that I intend to sign. Is there any further orders, Mr Barker, with respect to your client?'
39MR BARKER: No, Your Honour.
40HIS HONOUR: Thank you.
41MR BARKER: As Your Honour pleases, no.
42HIS HONOUR: Thank you. Likewise with respect to Mr Ahmed is there anything further, Ms Tatas?
43MS TATAS: No, Your Honour.
44HIS HONOUR: Thank you. Mr Ali, what is required of you is that you do a community corrections order of 18 months, it is not short, I have not shortened it by reason of what I have heard, because you do need supervision and I am sure you will be able to do it.
45So the requirements of anyone under a Corrections Order are the following: the first being the most important, you must not commit an offence for which you could be imprisoned during the 18 months that this order is in place. So just stay with what you are doing, and almost every offence that you can imagine would be punishable by imprisonment, even if the magistrate gave you a fine you would come back here and it would be - we would start from scratch, highly likely you would go to gaol on the resentence. So no further offending; and the order will start today and go to 4 December 2024.
46The other conditions that are mandatory that apply to every Corrections Order basically are about cooperation. So you must report to, and receive visits from, the Office of Corrections. You must report down to the Office of Corrections within two clear working days. That is at Broadmeadows Community Correctional Centre that is closes to where you are. So get down there as soon as you can and get in touch with them and work out how you are going to do this program. You must not leave Victoria without getting permission. I would probably give it to you but do not think you can just go across the border. That would breach the order, and you have got to obey all lawful instructions and directions from them.
47All right, they are the mandatory conditions, and in and to that you have got to be under supervision, so they will work out that supervision program you have already been involved in, reporting to counsellors and the like, well, this is now mandated so you cannot miss appointments or anything, and you must undergo assessment and treatment for drug abuse, just to continue that on. It may dovetail with what you have been doing already. Work that out with them.
48And you have to undergo assessment and treatment regarding your mental health. I will work that out, all right. I am going to ask whether you consent to doing that order, and if you do, sign this document. Mr Mortley?
49MR BARKER: While that is being done would Your Honour excuse me, sir?
50HIS HONOUR: Sure, yes.
51MR BARKER: Thank you. I have got another matter to get to.
52HIS HONOUR: Thank you. I am sorry. Thank you, yes, head away. I have signed that and signed other orders. If there is nothing else,
I thank counsel for their assistance, likewise Mr Barker.- - -
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