Director of Public Prosecutions v Ali
[2013] VCC 911
•6 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00728
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABSHIR ALI |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 6 June 2013 | |
CASE MAY BE CITED AS: | DPP v Ali | |
MEDIUM NEUTRAL CITATION: | [2013 VCC 911 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Triandos | Office of Public Prosecutions |
| For the Accused | Mr C. Mandy |
HIS HONOUR:
1 Abshir Ali, you have pleaded guilty to one charge of armed robbery, one charge of theft and one charge of false imprisonment. Those crimes maximum penalties of 25 years, ten years and ten years respectively. You are now 25 years of age. You have pleaded guilty and I accept that that plea of guilty is now accompanied by appropriate remorse. You must also, of course, get the utilitarian benefit of that plea of guilty albeit coming at a relatively late stage in the proceedings.
2 You have prior convictions and findings of guilt, the bulk of which are from the Children's Court. They essentially, and you being a refugee from Somali, indicate to me a youth situation of, I suspect, I am not sure gangs is the right word but other youths in groups offending together. You have had alcohol problems since you were about 12 and you have used cannabis since about the same age. One has to be careful with these kind of history reports not to deal with double ups but you do have a prior conviction of recklessly causing serious injury which is of concern. You served four and a half months for that. That came from March 2010.
3 The circumstances of the offending were that in the early hours of 12 August 2011 a Mr Taggart went to a bar in Fitzroy. You told him, or asked him, whether he wanted to purchase any cannabis. He said yes, you took him to a flat of someone who is obviously a friend of yours in the flats in Carlton. You knocked on the door of Mr Karni and he woke up and opened it. You and Karni asked Mr Taggart to wait just inside the front door while you got the cannabis.
4 You said to Karni, effectively, "We're going to rob this person". Mr Taggart became shocked and scared. You said "We're going to rob you, give us your money, your bank card, my mate's going to stab you with a knife if you don't do what we say". He emptied his pockets and gave you the $50 he had withdrawn earlier from his account. His PIN was taken and his Motorola mobile phone. He was made to sit in a chair in the lounge room. You then took a knife from the kitchen and handed it to Karni and you punched the man twice to the mouth causing his bottom lip to bleed and head butted him to the right eye. That was utterly gratuitous. There is no charge for that.
5 Mr Taggart then gave you his PIN number. You said you would kill him if the PIN was wrong. You asked how much money he had in the bank, he said $750. You kept the knife at him during that stage. After that you walked to an ATM in Johnson Street, Fitzroy and met up with a person known as Mohammed. $750 was taken from Mr Taggart's bank account and that gives rise to the charge of theft.
6 About 15 minutes later you returned and told Mr Taggart there had been no money in the account. You and Mohammed and Karni then talked about tying Mr Taggart up and blindfolding him to get out of the flat. Mr Karni handed you Gaffer tape from the kitchen and you placed the tape on his mouth and wrapped it around his mouth. He was blindfolded with a black and white bandana and you told him he was going to be walked out of there and that he should not try to run as you had knives and would stab him. His jacket was unzipped and he was tied up.
7 You then walked him down 13 flights of stairs in that condition to the fire exit. He found it hard to breathe as the tape was across his mouth. You continued to threaten him as you walked down the stairs. Once down there he was tied to a pole and you walked away.
8 Upon arrest you made a no comment record of interview. There is no victim impact statement.
9 As I have indicated during the course of the plea I think it is a serious example, in these circumstances, of false imprisonment. It must have been a very terrifying experience for the man. I also have to be careful of not sentencing twice for the same course of conduct. In the end I think there must be an amount of the false imprisonment sentence cumulative upon the armed robbery sentence and that is what I propose to do.
10 An active custodial sentence is inevitable. The offending has to be regarded as serious. It calls for the application of general and specific deterrence as well as appropriate punishment. There is no suggestion, in my view, that you did not know what you were doing despite some matters contained in the report of Dr King.
11 In terms of working out the appropriate sentence for you I look at matters personal to you. Firstly I think, very importantly, you have been now in custody since 15 August 2011. During that period of time you were sentenced in the Magistrates' Court for other matters and 213 days of pre-sentence detention has been eaten up. You still have 448 days which can be declared for this matter. Whilst this is not a mathematical calculation I take into account that there is something in the order of seven months of lost opportunity for concurrency and that causes me to impose a sentence somewhat shorter than would otherwise have been the case.
12 The report of Dr King, whose reports I have seen before, seems to suggest some sort of psychotic episode from anti-TB medicine. I have got grave doubts about that. You were doing this sort of thing long before you got TB. Be that as it may I accept that the TB had a very significant effect on your life. More persuasive is the material contained in the report of Dr Cidoni, who is also known to me.
13 Your counsel, in brief compass, pointed out your background. I think it is almost impossible for an average member of the community to comprehend what happens to people in your particular situation. At the age of five in Somalia when the civil war, for want of a better term, was taking place your father was executed in front of you. I have no doubt that that is a vision which you have never lost and will never lose.
14 Your mother then took your family, including your brother and sister, and tried to walk to Kenya. That took six months. During the course of that walk, as I understand it, one of your sisters at the age of eight was raped and died as a result of the injuries. Your brother became lost in those circumstances and was not found for a significant period of time. When he ultimately was he had virtually no Somalian language left as he had been, fortunately for him, taken in by a Kenyan family. Again I think it is impossible for people to understand the desperation involved in trying to survive for a woman and her children in that situation.
15 It is clear from Dr Cidoni's report that he regards you as having post traumatic stress disorder. I have absolutely no doubt that is right. That can be treated and hopefully that will occur. Dr Cidoni again outlines your history in simple terms of how I have just described it. On top of that you were involved in a car accident in 2007 where you suffered head injuries. It is not suggested that there is a Verdins involved in all this but from what you have told Dr Cidoni that head injury has caused you to have memory problems and from what I can gather has made you, as you described, hate yourself in terms of feeling very frustrated.
16 You fell in with other young people and committed the offending I have described earlier which was dealt with in the Children's Court. You have had, over the period of time, voices occurring in your head but it is not suggested that they involve a psychosis or any Verdins attracting principles.
17 Dr Cidoni confirms your use of cannabis and your use of alcohol and says that they are addictions. He says that your symptoms are consistent with post traumatic stress disorder with an associated major depressive order. Whilst that does not give rise to, I think, moral culpability in this particular drawn out considered situation it certainly means that gaol, on the face of it at least, would be more difficult for you. I accept that you have made every effort whilst in gaol to rehabilitate yourself.
18 Whilst in gaol you have done, as your counsel described, virtually every course that you can. I think very importantly in your particular situation you have indicated a desire or rehabilitate. You have indicated a desire not to "disappoint" your mother and it is clear from what has occurred in this court room today that you have very strong family support.
19 In 2010 you contracted TB. You were in hospital for months. Your counsel said to me that when you got out of hospital after months of that and you started to try and interact in the community again, you basically could not care less whether you lived or died. It was with that state of mind that this offending occurred. Not that it excused it in any way. It simply puts it into a context.
20 You now are in a situation whereupon your ultimate release you will have a mentor, who is present in court today, to support you. This mentor is clearly a member of your own community and has seen you 14 or 15 times whilst you have been in prison. Upon your ultimate release I am confident that you will use his understanding of the world to assist you in your life rather than gravitating to other young men who may be in your previous situation of offending.
21 It is clear that your childhood has influenced your whole life. It is also clear that since you have been in gaol now for this extended period of time it has given you the capacity to reflect upon what you have done and reflect upon how you want to live your life. I think that the prospects of your rehabilitation are far from extinguished and the court should do what it can to endeavour to assist that rehabilitation. There is no (indistinct) and it was described in the decision of Tecova v Leech, the Court of Appeal, that in situations such as this if reformation can be achieved the court should do what it can to assist. That is by far more in the interests of the community than simply having a young person like you warehoused in a gaol. I think also it is a situation where I should give you a longer opportunity for parole than might otherwise be the case.
22 You have indicated that you are looking at a program upon release where you will be able to work with Toll Logistics, I suppose, they call themselves these days and may be able to work with them afterwards. It is to be hoped that that can occur. As yet at the age of 25 you do not have a significant work record and it is going to be very, very important that that be the case.
23 It is clear from the reports and the certificates that you obtained while in prison that you are far from unintelligent and I see no reason why you cannot be a very respected and very worthwhile member of the community. In any event I propose to give you that opportunity. Balanced against that, of course, is what I regard as, particularly with the false imprisonment, some pretty ugly offending. I do not want there to be any mistake about how I view it.
24 If you can rehabilitate the risk of you re-offending should be slight indeed. It is all a matter for you. If you obviously offend whilst on parole, you will be right back where you started and we will have a hard time, I think, persuading the authorities to release you again in the near future. Totality obviously, there is three charges, is a matter that has to be taken into account.
25 In any event on the Charge of armed robbery, sentenced to be imprisoned for a period of two and a half years. On the Charge of theft, three months, on the Charge of false imprisonment, 18 months. I direct that six months of the sentence imposed upon Charge 3 be served cumulatively on the sentence imposed upon Count 1 which gives a effective head sentence of three years. I direct that you serve 18 months before coming eligible for parole and I direct that 448 days be reckoned as having been served under this sentence.
26 I say that pursuant to s.6AAA but for your plea of guilty you would have been sentenced to be imprisoned for a period of four and a half years with a minimum term of three. I make it clear that your decision to plead guilty had played a part in the greater percentage reduction, if I can put it that way, of a minimum term and it is going to get you out earlier. It is a sensible decision and now it is up to you to get out of gaol and look after your family.
27 Any other orders I need to make?
28 MR TRIANDOS: Not related to the sentence, Your Honour, but we overlooked an application for a retention order for the - - -
29 HIS HONOUR: If you have got it I will sign it now. Retention is hard to fight.
30 MR TRIANDOS: Your Honour, my instructor will forward it to Your Honour's Associate. It's just that - - -
31 HIS HONOUR: All right now I do not have to tell him anything about that?
32 MR TRIANDOS: No, Your Honour, it's just the retention.
33 HIS HONOUR: Yes that is all right. I will make that and I will sign it simply on the basis of it's not opposed.
34 MR MANDY: Yes as Your Honour pleases.
35 HIS HONOUR: All right. That can be done. We will just - yes.
36 MR TRIANDOS: Yes thank you, Your Honour.
37 HIS HONOUR: All right. Thanks for that, gentlemen.
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