Director of Public Prosecutions v Ali
[2023] VCC 1956
•23 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-23-00545
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YOUSAF ALI |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 & 23 October 2023 | |
DATE OF SENTENCE: | 23 October 2023 | |
CASE MAY BE CITED AS: | DPP v Ali | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1956 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Attempted armed robbery - cause injury recklessly - possess controlled weapon without exemption or excuse - commit indictable offence whilst on bail
Legislation Cited:
Cases Cited:Bugmy v The Queen [2013] HCA 37
Sentence:23 months' imprisonment plus 18-month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the DPP on 5/10/23 For the DPP on 23/10/23 | Mr C. Banasik Ms T. Stokes | Office of Public Prosecutions |
| For the Accused | Ms H. Anderson | Valos Black & Associates |
HIS HONOUR:
1Yousaf Ali, you have pleaded guilty to an offence of attempted armed robbery, for which the maximum penalty is imprisonment for 10 years, and to an offence of causing injury recklessly, for which the maximum penalty is imprisonment for five years.
2You have also pleaded guilty to two related summary offences: one of possessing a controlled weapon without exemption or excuse, for which the maximum penalty is imprisonment for one year or 520 penalty units, and another of committing an indictable offence whilst on bail, for which the maximum penalty is imprisonment for three months or a 30 penalty unit fine.
3You have admitted your prior criminal record which contains a number of offences, including offences of violence, dishonesty and possessing weapons going back to September of 2004, when on that occasion, for four counts of robbery and other offences you were sentenced to an aggregate three months' imprisonment.
4The prosecution has tendered and relied upon a summary of prosecution opening for the plea dated 20 October 2023, which is Exhibit A. It has just been read to the court and I am not going to repeat it. I have also been provided with a copy of a victim impact statement which your victim has asked not to be read to the court but which sets out his ongoing concern having been the victim of this offending conduct and fearing that there might be reprisals against him even though he was not the person who alerted the police to the offending. He also speaks of his ongoing physical and mental injuries effectively arising from the incident.
5Turning to matters personal to you.
6Your counsel provided me with a defence outline of submissions dated 3 April 2023 for the purposes of a sentence indication hearing, which is Exhibit 1 on the plea hearing, along with a report from Professor Warrick Brewer dated 10 June 2016, a report from Mr Ian MacKinnon, psychologist, dated 21 September 2023, and a report from the Sunshine Marketplace Medical Centre concerning your mother's ill health. There were two further documents provided: a statement of results concerning the rehabilitative program which you completed with the Certificate II in Horticulture and a set of urine test results which show negative results for the presence of illicit drugs.
7
Your counsel submitted that the mental impairments set out in the reports of
Mr Brewer and Mr MacKinnon, including diagnoses of acquired brain injuries, cognitive limitations placing your IQ at between 68 and 76 and diagnosed
post-traumatic stress disorder, anxiety and depression for which you are prescribed medication, support the application of the Verdins principles in reduction of your moral culpability for this offending and reduction of the need for holding you up as an example of general deterrence as well as affecting your ability to cope with your term of imprisonment.
8It is clear from the reports that you have experienced a very disruptive upbringing - one involving you coming to Australia as a refuge at age 13 after witnessing considerable violence and undergoing significant deprivation in refugee camps. Your struggling at school was a result of your difficulties with the English language and you ultimately becoming involved in drug and alcohol abuse from an early age. It was submitted that the principles arising from the well-known case of Bugmy[1] apply in the sense that that kind of deprived background evidenced by the account of your history and set out in the reports to which I have referred, renders you more susceptible to criminal conduct of this kind and is capable of being applied in reduction of your moral culpability.
[1]Bugmy v The Queen [2013] HCA 37
9I note from your record that you have a very significant criminal history involving, amongst other things, crimes of violence, and there is a need therefore to balance those mitigatory factors against the need for protection of the public. It is important therefore that I consider that factor as well as the factors which mitigate the sentence.
10Your mother is very ill. That fact will place greater pressure on you whilst you are serving your sentence. Your plea of guilty whilst the effects of the COVID pandemic are still relevant, given the cost of a trial, the backlog that this court has faced and to some extent continues to face, are relevant to giving you full credit for your plea of guilty and reducing sentence that might otherwise have been appropriate.
11I have already indicated to your counsel my concerns about your capacity to comply with the terms of a Community Correction Order, but it seems to me that the public will be better served by promoting your rehabilitation by giving you the opportunity of demonstrating that you are willing to do the hard work and beat your drug and alcohol problems, giving yourself a better chance of staying out of trouble in the future. Mental health treatment is also indicated, it seems to me, and I hope that you will take advantage of the Community Correction Order that I am going to invite you to accept as part of the sentencing orders that I have in mind.
12It is important for you to appreciate that if you breach the Community Correction Order that I have in mind then you will be brought back to this court, probably before me, and I will remember the words that I have uttered today. It is likely that I will be sending you back to prison again.
13I will tell you what your sentence is going to be in a minute, but you are not going to get out immediately. It is necessary for me to mark the seriousness of your offending with some further time in custody and to send a message to others that they cannot engage in this kind of conduct without the risk of serious punishment.
14It is necessary for you to give all those factors consideration in deciding whether you are prepared to accept the obligations that are imposed upon you by a Community Correction Order. I have no doubt you have discussed it with your counsel. What I propose to do is to indicate what the sentences are, then I will give you the opportunity of deciding whether you wish to accept being placed on a Community Correction Order in the terms that I will outline to you, do you understand?
15OFFENDER: [Nodded agreement.]
16HIS HONOUR: All right.
17On Charge 1, you are convicted and sentenced to imprisonment for a period of 18 months.
18On Charge 2, you are convicted and sentenced to imprisonment for a period of 15 months.
19The sentence on Charge 1 is the base sentence. I order that five months of the sentence on Charge 2 be cumulative upon the sentence I imposed on Charge 1.
20On the related summary Charge 6 of possessing a controlled weapon, you are convicted and sentenced to imprisonment for two months.
21On the related summary Charge 8 of committing an indictable offence whilst on bail, you are convicted and sentenced to imprisonment for one month. I make no orders for cumulation in relation to those two sentences.
22The total effective sentence is therefore imprisonment for 23 months.
23I declare pre-sentence detention of 385 days as time to be reckoned as served on the sentence that I have imposed.
24In addition, I propose to order a Community Correction Order for 18 months. The conditions of the order will be the standard conditions which are attached to all Community Correction Orders, the mandatory terms of the order. I am sure you have heard these before because you have been on a number of such orders in the past.
25Firstly, you must not commit an offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligation or requirement prescribed by Regulation 15 of the Sentencing Regulations - that means not turning up to appointments drunk or drug-affected, that kind of thing. You must report to and receive visits from the Secretary of the Department of Justice or his or her delegate. You must report to the Community Corrections centre at Sunshine Community Correctional Services, 499 Ballarat Road, Sunshine, within two clear working days after the commencement of this order which will be upon completion of your term of imprisonment.
26You must let a Community Corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his or her delegate. You must obey all lawful instructions from and directions of the Secretary of the Department of Justice or his or her delegate.
27In addition to those conditions, you must be under the supervision of a Community Corrections Officer for the period of 18 months during which the order is in force. You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager. You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager. You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager. You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
28Ms Anderson do you want an opportunity of going through those with him in private?
29MS ANDERSON: Maybe just briefly, just a few minutes if that's possible, thank you, Your Honour.
30HIS HONOUR: Yes, I'll leave the court while you do that. Do you have a copy of the proposed order?
31MS ANDERSON: No, but I've got another order on my computer that I can see so I know the terms thank you.
32HIS HONOUR: Yes, all right. Well, I'll leave the court for a few minutes whilst you do that.
33(Short adjournment.)
34HIS HONOUR: Mr Ali, have you understood the terms of the order that I propose?
35OFFENDER: [Nodded agreement.]
36HIS HONOUR: Yes. Are you willing to comply with the terms of the order?
37OFFENDER: Yep.
38HIS HONOUR: I will take your consent to being placed on the order from what you have said and treat the order now as being effectively signed by you. I will now sign the order. Do you have a copy of the order for me to sign? Thank you. That order has now been made.
39I also make the order for forfeiture of the knife.
40But for your pleas of guilty, I would have sentenced you to imprisonment for four years with a non-parole period of two years and eight months. Anything else, counsel?
41COUNSEL: As Your Honour pleases.
42HIS HONOUR: So, do you understand the consequences of breaching the order?
43OFFENDER: Yes, Your Honour, I do, yes.
44HIS HONOUR: I think I explained them to you earlier, that you'd probably come back before me.
45OFFENDER: Aha, yep.
46HIS HONOUR: Remember this exchange that we've had - I would probably have to give you some more time.
47OFFENDER: Yep.
48HIS HONOUR: Even for breaching the order you could be up for a term of imprisonment of three months. So, don't breach it.
49OFFENDER: No.
50HIS HONOUR: Thank you both, counsel.
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