Director of Public Prosecutions v Ali

[2018] VCC 622

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02099

DIRECTOR OF PUBLIC PROSECUTIONS

v

YOUSAF ALI

---

JUDGE:	HER HONOUR JUDGE GYWNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 May 2018
CASE MAY BE CITED AS:	DPP v Ali
MEDIUM NEUTRAL CITATION:	[2018] VCC 622

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Burnett
For the Accused	Ms A. Beech

HER HONOUR:

1Yousaf Ali, you have pleaded guilty on indictment to charges of stalk another person, prohibited person possess imitation firearm, and three charges of common assault, each of which occurred on 20 December 2016.

2Charge 1 and 2 each carry a maximum of ten years imprisonment, and Charges 3, 4, and 5 each carry a maximum of five years imprisonment.  These maximums reflect the seriousness with which Parliament regards these offences.

3The circumstances of your offending are set out in a document labelled, "Prosecution Opening", dated 8 February 2018.  The contents of that document are not disputed by your counsel.

4In short compass, at around 10.15 pm, on Tuesday 20 December 2016, you were at Southern Cross railway station, Melbourne.  Mr Sarath Kumar was sitting at Southern Cross railway station, waiting for a train home, when you approached him and started talking about Mr Kumar's phone.  He ignored you and told you that he was not interested.  The train arrived at the platform and Mr Kumar made his way towards a carriage door.  When you followed him onto that same carriage he walked onto the next carriage and you again followed him.  You sat adjacent to Mr Kumar, were described as staring at him, and fixated on him.

5You then sat directly in front of Mr Kumar, lent into him and began speaking to him.  You pulled Mr Kumar's earphones from his ears and told him that you had a deal for him, he told you that he was not interested and he moved away from you.  You continued to stare at him.

6Concerned at your behaviour Mr Kumar called his housemates and arranged for them to meet him at the train station. When the train arrived at Glen Huntly railway station Mr Kumar got off the train, you followed him to his home address. It is those facts that amount to Charge 1, stalking; contrary to s.21A of the Crimes Act.

7Two of Mr Kumar's housemates, Mr Srikkanthreddy Annam, and
Mr Srikkanthreddy Kolan were waiting outside their house.  On arriving at the house Mr Kumar ran through the open door and hid from you, whilst his housemates pulled the door shut behind him and remained outside the house with you.  Mr Surya Pingali, who also lived in the house, was also outside.

8You, Mr Annam, and Mr Kolan had a conversation. You told them to open the door.  You were described as being very angry, and told Mr Annam, and
Mr Kolan that Mr Kumar owed you money.  You then took something that looked like a gun out of your backpack. This comprises Charge 2; prohibited person possess imitation firearm.  As you did this it dropped and it broke into pieces.  The gun was described as being long, with a brown handle and black barrel.  You were observed to put the gun back together and then point it at
Mr Annam, Mr Kolan, and Mr Pingali, and demanded that they open the door and bring Mr Kumar out.

9You then began making threats to Mr Annam, Mr Kolan, and Mr Pingali that you would break the door down.  You were waving the gun around and attempted to break the door with it.  This, understandably, caused fear and distress to all three of the other men.

10You told Mr Annam and Mr Kolan that you had two bullets and would start firing if Mr Kumar did not come out.  Mr Annam and Mr Kolan were frightened and so called out to Mr Kumar to come out.  It is these facts that comprise Charges 3, 4, and 5 on the indictment, common assault.

11Whilst I am told, and indeed, you pleaded to the item being an imitation firearm, this would not have been a fact known to any of your victims.

12Mr Kumar heard his housemates call out, and in the company of another housemate, opened the door and walked onto the footpath.  In the meantime, Mr Annam waved down protective services officers at Glen Huntly railway station and ran towards them.  As the protective services officers approached, you ran away.

13You were interviewed by police on 13 January 2017 and essentially made a no-comment record of interview, as is your right.  None of your victims were known to you.  I note that there were no victim impact statements, but have no doubt that your offending was not without its impact, given it involved following
Mr Kumar from a train to his home, and occurred at the premises at which your victims resided; an environment in which they are entitled to feel safe.

14Your offending is explained by your counsel as being part and parcel of the fact that you were using the drug ice around the time of this offending.  I am also told that you believe that the transaction, and interaction with Mr Kumar was in relation to a mobile phone.  There does not appear, on the evidence, to be foundation for this purported belief.

15Assessing the objective gravity of your offending, it can be accurately described as serious.  Your primary victim, Mr Kumar, was followed to his own home, three of his housemates were subjected to the fear and trauma associated to an assault which they would have believed was at gunpoint.  Clearly, in addition, you had no entitlement to be in possession of an imitation firearm.

16It appears to me, whilst the charge of common assault attracts the lowest minimum sentence of the matters for which you have pleaded guilty, carrying a maximum term of five years' imprisonment, it is, in the overall mix of the greatest concern.

17I have taken into account matters personal to you, as raised by your counsel, in detail, able, written and oral submissions.  These included that at the time of your offending you were aged 30 years. You were born in Somalia, and came to Australia as a refugee in 1996 with your mother.  Prior to that time you had spent four years in a refugee camp in Ethiopia with your family, where you were unfortunate to witness multiple atrocities.  You are the oldest of four siblings.

18Whilst in Somalia, you experienced the trauma of residing in a country where there was civil war. 

19You first attended school in 1997, at the age of
12 years.  At a very early age there were difficulties with your behaviour and drug use.  I am told that whilst in secondary school you primarily used cannabis and alcohol, which led to your expulsion.  You are not schooled past that
Year 8 level.

20In 2004 you returned to Africa until 2007.  Whilst visiting Africa during these years you witnessed violence and the shooting death of your grandfather.  You also sustained multiple head injuries, although the circumstances in which they occurred remain somewhat unclear.  It would appear that you were the victim of assaults.

21When you did return to Australia you began abusing methylamphetamine, and amphetamine.  You have lived a largely itinerant lifestyle, and had no stable accommodation available to you, with limited support.

22You have a criminal history of some ten previous appearances before the Magistrates' Court.  Essentially, your offending involves dishonesty, minor violence, street based offending, drug possession, robbery, and failure to abide by court orders, which includes both bail orders and community corrections order.  Whilst you are not to be punished for this history again, it is relevant to assessing your prospects for rehabilitation, the need for specific deterrence, and the need to consider protection of the community as relevant sentencing factors.

23You were remanded in relation to this offending on, or about, 13 January 2017.  On 21 August 2017 you were dealt with at the Melbourne Magistrates' Court for a breach of a community corrections order, and other offences.  At which time you were sentenced to a total effective sentence of 11 months' imprisonment.  Twenty-two days were taken into account by way of presentence detention.

24On 19 December 2017 you again appeared at Melbourne Magistrates' Court, and were sentenced to 30 days' imprisonment, made concurrent with the sentence that you were already undergoing.  In short, you have effectively been in custody since remanded for these matters on 13 January 2017, but there have been a number of intervening sentences.  As a result, any presentence detention is only available from 11 December 2017.  As such, totality remains a relevant sentencing consideration, as it would in any event.

25You have had clean urine screens whilst in custody.  I am also told that you have been a witness to a death in custody, and been interviewed as such by the homicide squad.  As a result you have been moved to a higher security prison, and are a protection prisoner.  I know little more about your status as a witness, and this is not a factor that I am able to take into account in your sentence.

26Tendered on your behalf was the report of neuropsychologist, Associate Professor Warrick Brewer, dated 10 June 2016.  This report puts your full scale IQ as being between 68 and 76.  In addition, you are diagnosed by him as suffering from post-traumatic stress disorder as a result of your experiences in Africa.  In Associate Professor Brewer's opinion your substance misuse occurs as a means of self-medicating the symptoms of this condition.

27Associate Professor Brewer also notes a mild to moderate acquired brain injury.  He recommends long term therapeutic treatment.  Associate Professor Brewer opines that should you not engage in therapy, then in light of your previous history, you present as holding at least a moderate to significant risk of reoffending.  He refers to the paradox of the prison environment providing you with structure, which is of assistance to you, whilst at the same time the confined space risks exacerbating your post-traumatic stress disorder.

28Your counsel does not call into aid the principles of R v Verdins & Ors [2007] 16 VR 269. She has referred me to the decision of Muldrock, and I have had recourse to that decision.

29Whilst I accept the unchallenged findings of Associate Professor Brewer, particularly as it relates to your intelligence, an issue still remains as the best way to properly factor in the need to protect the community.  His findings also impact on the assessment of your prospects for rehabilitation.  It would appear that there are some limits to those prospects.

30You have pleaded guilty to the five counts on the indictment, as I have already referred.  I accept your plea has utilitarian value, you have saved the court the time and expense of a contested hearing, together with the trauma, and the need for witnesses to attend and experience cross-examination.  This is a factor in your favour.

31The submission made on your behalf by counsel was that all matters relevant to your sentence could be accommodated through a community corrections order.  The prosecution position was, and remains that only an immediate term of imprisonment can properly reflect the relevant sentencing considerations, and that any term of imprisonment should not be in combination with a community corrections order.

32I ordered an extended presentence assessment of you.  A report has been provided, dated 28 March 2018, authored by a Mr Steven Miriklis.  In a comprehensive report you are assessed as being unsuitable for a community corrections order.  In his report, Mr Miriklis refers to your lack of insight in relation to your offending behaviour.  He refers to your inability to comply with previous community corrections order, which results from your poor decision making, illicit substance abuse, excessive alcohol consumption, and negative peer associations.  He also refers to you being a complex, high risk offender, who has limited protective mechanisms in place to reduce your risks of reoffending.  He expresses concern about the ability of the office of corrections to provide the intensive case management, and strict supervision regime, which you would be required to be managed on a community corrections order.

33On release of that report was further plea and sentence, held on 5 April of this year.  I was told on that occasion that your family were prepared to welcome you back home, in a household that would comprise your sister, two brothers, and your parents.  I note that the male parental figure is your stepfather.  I was also told that your mother had recently been diagnosed with cancer.

34Evidence was called from your sister, Asam Ali.  Her evidence was that she was prepared to have you come and live in the family home.  This would represent a significant change in your personal circumstances - to have a stable residence, and to be supported by family, neither of which you have not had available to you for quite some time.

35Your sister was also able to give evidence that your mother was diagnosed with stage three ovarian cancer in February of last year, underwent surgery, and chemotherapy.  She gave evidence that your mother has been in remission, but that there was a relapse in mid-March 2018.  At this stage it is uncertain as to how she will respond to any treatment interventions.

36Ms Ali confirmed that the family have not visited you whilst in custody, but have maintained contact over the phone, and would be able to take you to any appointment that you are required to attend.  It is also hoped by your sister that you can assist the family to care for your mother.  She indicated that all of these matters have been discussed with you over the phone.

37Mr Miriklis, the author of the presentence report, would not have been appraised of the option for you to reside with your family at the time of writing his report.  As such, the matter was adjourned for further plea and sentence, so that the author of the presentence report could be made available for cross-examination.  For the sake of completeness, the matter was also adjourned so that further information could be obtained as to the nature of your housing in custody, and how that might be relevant to any sentence imposed.

38On the return before me on 1 May 2018, it was not sought that I factor into the sentencing mix considerations as to the nature of your accommodation in the custodial setting, nor am I therefore able to do so.

39I was told that Mr Miriklis had now been appraised of the availability of stable accommodation with your family.  This did not alter the report that he had previously provided.  Indeed, I was told that you had previously provided the proposed address when you had been placed on a community corrections order in 2016.  Apart from attending an induction in relation to that order, you had not otherwise participated or taken up the opportunities it might have presented.

40Evidence was called from Ms Louisa Fedi, a principle practitioner at Sunshine correction services.  Her evidence was that should a community corrections order be imposed on you, that irrespective of when any order was to start, it would be allocated to an advanced case manager and a referral would be made to ARBIA.  ARBIAS would then assess you whilst in custody, with a view to allocating you appropriate services and a worker. Case recommendations would be provided.  There were no guarantees that you would be allocated an ARIAS worker.

41She also indicated that you could become involved with Corrections Victoria Integration Pathway, designed to assist persons in custody to reintegrate into the community under the auspices of a community corrections order.  She noted that participation in such a program is voluntary, and I was told that you would be keen to participate.  Ms Fedi also gave evidence that the services, to which she had referred, would be available under a parole regime.

42The basic purposes for which a court may impose a sentence of punishment, general and specific deterrence, rehabilitation, denunciation, and protection of the community. 

43In 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 your victims.  I am required to balance the interests of the community in denouncing criminal conduct, with the clear interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.

44I have formed the view that your offending is such that a community corrections order is not available to me alone, or in combination.  I now turn to sentence.

45If you could just please stand, Mr Ali.

46In relation to Charge 1, stalking, you are convicted and sentenced to two months' imprisonment; in relation to Charge 2, prohibited person possess imitation firearm, you are convicted and sentenced to 12 months' imprisonment.  This is the base sentence.  In relation to Charges 3, 4, and 5, I propose to impose an aggregate sentence as I am satisfied that those three offences are founded on the same facts or form, or a part of a series of offences of the same or similar character.  Noting that they occurred in very close proximity, at largely the same point in time.  Considering this aggregate sentence, I bear in mind principles of both totality and proportionality, and you are convicted and sentenced to an aggregate of eight months imprisonment.

47One month of Charge 1, and two months of the aggregate sentence are made cumulative upon each other, and on the base sentence, which is Charge 2.  If my maths serves me correctly, this comprises a total effective sentence of
15 months' imprisonment.  I fix a non-parole period of nine months, and reckon 141 days as time already served under this sentence.

48Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges.  If not for you plea of guilty, I would have sentenced you to a total effective sentence of
28 months, with a minimum of 18 months before being eligible for parole.

49Is there anything further?

50MS BURNETT:  No, Your Honour.

51MS BEECH:  No, Your Honour.

52HER HONOUR:  All right, thank you, if you could remove the prisoner.  Thanks very much.

‑ ‑ ‑