Director of Public Prosecutions v Aldulimi
[2022] VCC 1371
•19 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00555
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUSAM ALDULIMI |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 August 2022 | |
DATE OF SENTENCE: | 19 August 2022 | |
CASE MAY BE CITED AS: | DPP v Aldulimi | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1371 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Attempted armed robbery – Common law assault – Offending at lower end of seriousness – Relevant prior criminal history – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 75A, 321M; Sentencing Act 1991 ss 6AAA, 18.
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Wilson | The Office of Public Prosecutions |
| For the Accused | Ms N Grunwald | Giorgianni & Liang Lawyers |
HIS HONOUR:
Introduction
1Husam Aldulimi, you have pleaded guilty to one charge of attempted armed robbery, contrary to ss 321M and 75A of the Crimes Act 1958, which carries a maximum penalty of 20 years imprisonment (Charge 1).
2You have also pleaded guilty to one charge of common law assault, contrary to the common law, which carries a maximum penalty of 5 years imprisonment (Charge 2).
3You have also admitted your prior Criminal Record.
Circumstances of the offending
4A prosecution opening was tendered on the plea and may be summarised as follows:
5You were 28 years old at the time of the offending and were residing at a house in Hampton Park.
6The victim is Mandip Singh Bath, and at the time of the offending he was employed as a security guard at the Dandenong Vaccination Clinic.
7You were not known to each other at the time of the offending.
8At approximately 8.20am on Friday 12 November 2021, the victim was standing outside the Dandenong Vaccination Clinic with the manager and about three or four other security guards including Gurpreet Singh Sadhu.
9At this time you approached the group. You were in possession of a red folding pocket knife. You approached the victim and asked for coffee. The victim told you that they did not have any coffee and to go to the shops and buy one. You kept saying, ‘what do you mean, what do you mean, I know you have coffee.’
10You were holding the red fold out knife, with the blade out, next to your thigh with the blade pointed towards the victim. The victim became fearful of what you might do with the knife. The victim pushed you in the chest to get you away and told you to put the knife in your pocket and stay away. You then tried to snatch the victim’s car keys which he was holding in his hand.
11The victim kept hold of the keys and you kicked him in the shin of his right leg. You kept saying, ‘don’t fucking touch me, don’t fucking push me.’ Mr Sadhu grabbed you by your arm and told you to leave. The victim left and told his manager to call the police. You then walked off towards another male who was about four or five metres behind you.
12First Constable Stewart Tweddle and Constable Reece Kohan attended the Vaccination Clinic before patrolling the vicinity in attempt to locate you. At approximately 8:35am you were observed walking on Langhorne Street, Dandenong, wearing the same clothing and in company of another male.
13You were depicted on Dandenong City Council CCTV cameras as you moved throughout the Dandenong CBD.
14Detective Sergeant Craig West (‘D/S/C West’), Senior Constable Chelsea Edwards (‘S/C Edwards’), First Constable Stewart Tweddle and Constable Reece Kohan approached you at the corner of Foster Street and Thomas Street, Dandenong at approximately 8:43am. You presented as highly erratic and verbally aggressive towards Police members. You were in the company of a friend at the time of arrest.
15You were arrested by D/S/C West and during a safety and evidence search, the folding red pocket knife was located in your right pants pocket. The knife was seized by S/C Edwards. The arrest was captured on police body worn camera.
16You were conveyed to the Narre Warren Police Station for the purpose of a recorded interview. A Forensic Medical Officer was requested due to your behaviour and you were deemed unfit for interview.
Nature and gravity of the offending
17Attempted armed robbery is an inherently serious offence carrying a maximum penalty of 20 years imprisonment. However, each offence must turn on its own facts and in this particular instance, both the prosecution and defence agree that the offending falls towards the lower end of seriousness.
18While the evidence is unclear as to whether you were drug affected at the time of the offending, you were observed to be behaving erratically and indeed your request when you approached the complainant was to repeatedly ask for coffee.
19It was at that point that you were observed holding a red foldout pocketknife near your thigh with the blade pointed towards the complainant. While you were still holding the knife you attempted to snatch the complainant’s car keys which he was holding in his hand. As was observed by Miss Grunwald who appeared on your behalf, the offending appears to be relatively unplanned, there were no threats or demands, you did not hold the knife up from your leg and the whole event was of relatively short duration.
20Mr Wilson, who appeared on behalf of the Director of Public Prosecutions, while agreeing that the offending is at the low end of seriousness, pointed out the fact that at the time of the offending you were on a Community Correction Order, elevating the seriousness of the circumstances.
21As to charge 2, which relates to the kicking of the victim, it too was accepted to be at the lower end of seriousness, the victim only suffering a visible red mark which was evident from the photographs tended.
22While your offending represents disturbing behaviour in a public place, in all the circumstances I accept that the conduct that gives rise to each charge falls towards the lower end of seriousness.
Personal circumstances
23You were born and raised in Baghdad, Iraq. You have seven brothers and three sisters. When you were 16 years old, your family fled Iraq for Jordan, before continuing on to Hong Kong, eventually settling in Dandenong, Australia as refugees. Your parents remain in Dandenong today. You enjoy the support of your mother, your girlfriend and two of your older brothers and have regular phone contact with them. However, your relationship with your father is strained. There is an intervention order in place where your father is named as the affected family member.
24Due to the conflict in your home country, you did not attend school between the ages of ten and 16. When you arrived in Melbourne, you were enrolled in English language school before transferring to Dandenong Secondary College. You remained there for two years and went on to complete a certificate in building and construction at Chisholm TAFE.
25You have worked various jobs as a labourer and were most recently employed as a labourer for a roof tiler until the COVID-19 pandemic began. You first came into contact with the criminal justice system seven years ago; this coincides with when you first started using drugs.
26While Covid-19 restrictions have existed during your time on remand, I note that you have made effective use of your time in custody, completing a ‘Cannabis and Me’ course and working as a Food Billet.
27You have an extensive and relevant prior criminal history which commenced in 2015. As noted above, your drug use began at a similar time. Your prior history includes a number of violent offences, including family violence related offending and other drug-related offending.
Sentencing considerations
28Ms Grunwald highlighted a number of matters in mitigation.
29I first take into account your plea of guilty. The matter was listed for a five day trial to commence in February 2023 however came before me for a sentence indication hearing on 15 August 2022. Following the sentencing indication, you were arraigned on the same day and pleaded guilty to the two charges on the indictment. In the circumstances your plea, while not at the earliest opportunity, is still is of great utilitarian value, saving court time and expense and importantly, saving witnesses from having to give evidence.
30Your plea of guilty carries additional weight which must be reflected in a further amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system.[1]
[1] Worboyes v The Queen [2021] VSCA 169 at [39].
31As to your prospects of rehabilitation, as noted above you have an extensive and relevant criminal history. You have been given numerous opportunities to complete community-based orders; however, it would appear that on most occasions you have breached those orders and fallen back into the cycle of reoffending. As noted on the plea, one of the difficulties you face upon your release is finding stable accommodation. I was told that you have the support of one of your brothers in the short term in that regard. Since being in custody you have also recommenced regular communication with your mother who will continue to support you upon your release. While your prospects in the current circumstances are unable to be assessed positively, you are at an age where it is not uncommon for someone in your circumstances to begin to realise the need to make significant changes in order to break the cycle.
32The period you have spent on remand in relation to this matter has been served during the restrictions in prisons as a result of the Covid-19 pandemic. Personal visits, access to programs and numerous lockdowns were common through that time. You were also required to serve 14 days quarantine upon your remand. I take these matters into account.
33Deterrence both general and specific, are prominent sentencing considerations. Denunciation of your conduct and protection of the community are also relevant matters to take into account in the circumstances.
34You have served 280 days (or approximately 9 months), on remand in relation to this matter. Miss Grunwald submitted that while a term of imprisonment is warranted, in the circumstances the time you have served is sufficient in order to meet the relevant sentencing considerations. Mr Wilson who did not take issue with that submission.
35In all the circumstances, as noted at the sentencing indication hearing, I accepted the submission that time served is sufficient in order to meet the relevant sentencing considerations in this instance.
Sentence
36Mr Aldulimi, would you please stand.
37Husam Aldulimi, on Charge 1, attempted armed robbery, you are convicted and sentenced to 9 months imprisonment.
38On Charge 2, common law assault, you are convicted and sentenced to 1 month imprisonment which will be served concurrently. Therefore the total effective sentence is 9 months imprisonment.
39Pursuant to s 18 of the Sentencing Act 1991 (‘Sentencing Act’), I declare that 280 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
40Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 18 months with a non-parole period of 12 months.
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