Director of Public Prosecutions v Ali

[2023] VCC 607

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

AT Melbourne

CRIMINAL DIVISION

CR-22-01055

DIRECTOR OF PUBLIC PROSECUTIONS

v

OBSAN ALI

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	22/02/2023
DATE OF SENTENCE:	08/03/2023
CASE MAY BE CITED AS:	DPP v Ali
MEDIUM NEUTRAL CITATION:	[2023] VCC 607

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:   Charges of armed robbery, causing injury recklessly and obtaining property by deception – sentence indication originally rejected – changes in factual matters on plea – overall sentence on plea reduced to limited degree - no criminal history – custodial sentence of category 2 offence – practical effect of later guilty plea – evidence of genuine remorse – excellent prospects of rehabilitation

Legislation Cited:                Sentencing Act 1991
Cases Cited:  Worboyes v The Queen [2021] VSCA 169
Sentence:  Eight months detention in a Youth Justice centre         

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Van Dyk	Office of Public Prosecutions
For the Accused	Ms L. Conwell	Stary Norton Halphen

HIS HONOUR:

1Mr Ali, on 1 December last year, I gave a sentence indication.  Subsequently, it was not accepted by you.  Unexpectedly, the proceeding came before me on 23 February of this year, and you pleaded guilty to the charges subject of my sentence indication, and they were (a) armed robbery, (b) causing injury recklessly, and (c) obtaining property by deception. 

2The only difference between the factual matters underlying my sentence indication and the plea are these:

(a)   there is no longer an allegation you swung your hammer at the victim;

(b)   there is an addition to the summary of your record of interview to include an implicit admission of your involvement in the offending;

(c)   there is a pre-sentence report dated 7 March 2023; and

(d)   there is a victim impact statement.

3In my reasons for the sentence indication, I referred to and relied upon the prosecution’s opening without stating specific findings of fact.  For the purposes of sentencing you today, I should state briefly my findings of fact. 

4This is an example of a young person using social media to his misfortune.  On 15 November 2021, the victim exchanged messages with one of your co-accused, a female then aged 16, about meeting.  At about 3.15 pm on 15 November, the victim and the female met.  She led him away until you and two other males surrounded him.  You were armed with a hammer.  One of the other males, Stefan Limnios, was armed with a machete, while the other with a boxcutter. 

5Mr Limnios said to the victim (a) ‘Give me all your shit now.  Give me your wallet, phone.  Give us your watch now’, (b) ‘Sit down and don’t try anything stupid’, and (c) ‘We’re going to slice you.  We’re going to kill you.  Give us your stuff’.  The victim gave his wallet and watch to the four of you.  An ANZ Bank card was removed from the wallet and given to the female.  The victim gave a false PIN.  As the female was leaving to get money from the victim’s account, another in the group, said to the victim, ‘This better be real or I’ll chop all your fingers off’.  He was referring to the PIN. 

6You and the others demanded the victim hand over his phone.  The victim pushed Limnios and Grimer away.  Using the machete, Limnios struck the victim’s middle knuckle of his right hand.  The injury bled.  As the victim tried to escape, Limnios swung the machete and grazed the victim’s left thigh.  Shortly afterwards, you and the others went to a shopping centre.  You used the victim’s ANZ Bank card to buy cigarettes valued at $49.01, and you gave the cigarettes to Grimer. 

7On 18 November 2021, you were arrested at your home.  Later, you were interviewed at a police station.  On 1 July 2022, the victim made an impact statement.  It is brief and succinct.  The injury to his right hand required three sutures.  It affected his ability to use the hand for a month.  The injury to his left leg was painful for two weeks.  For a few days after the incident, he was unable to work due to the emotional impact of the offences.  The incident has adversely affected his trust in people.  He suffered financial loss, especially in relation to ambulance expenses.  But I would expect he would have met that and other expenses through the assistance of the Victim’s of Crime Assistance Tribunal.

8You have no criminal history.  Your personal circumstances are set out in paragraphs 6 to 22 of your counsel’s written outline of submission.  They are also outlined in the pre-sentence report. 

9The maximum penalties for the offences are

(a)   (a) armed robbery, 25 years imprisonment; 

(b)   (b) causing injury recklessly, five years imprisonment;  and

(c)   (c) obtaining property by deception, 10 years imprisonment. 

10Since the offence of armed robbery is a category 2 offence under the Sentencing Act 1991, I am required to impose a custodial sentence unless one of the paragraphs of s5 ss(2H) applies.  None of those paragraphs apply. 

11In terms of timing, your guilty pleas were entered in the latter stages of the criminal process, starting with your charging and ending with a trial.  Although there was a committal hearing, the victim was not examined.  He was spared the ordeal of giving evidence and reliving the traumatic events.  Your guilty pleas have a practical effect on the criminal justice system.  They avoid a trial and the expense and time associated with it.  They allow other cases which require a trial to proceed more quickly. 

12The judgment in the case of Worboyes v The Queen[1] recognises the enhanced practical benefit of pleas of guilty to offences to the criminal justice system in times of crisis due to the effect of the pandemic.  Although lockdowns are a thing of the past, the other effects of the pandemic are still being felt.  Your pleas of guilty, irrespective of whether they evidence remorse, deserve a significant discount on the sentences that would otherwise have been imposed in their absence.

[1][2021] VSCA 169.

13And just pausing there.  I’m clearly satisfied that, not only do your pleas of guilty evidence remorse, but, in fact, that you are genuinely remorseful.

14I consider your prospects of rehabilitation are excellent.  I’ve had the reports from Youth Justice detailing your progress under bail.  I have read your mother’s letter, as well as those of Ms McFadden, Mr Endale and Mr Abdula-Mohamed.

15The only significant difference between the material presented during the sentence indication hearing and the plea is that withdrawal of the allegation that you swung the hammer.  Your partial admission relating to the offences carries no weight. Accordingly, after considering all of the relevant matters, I will reduce my sentence to a limited degree.  After all, the incident was a very nasty one, and the charge of armed robbery bears a maximum sentence of 25 years imprisonment.

16On charge 1, I sentence you to be detained in a Youth Justice centre for eight months.  On charge 2, I sentence you to be detained in a Youth Justice centre for three months.  And on charge 3, I sentence you to be detained in a Youth Justice centre for one month.  The sentences will be served concurrently.  The total effective sentence is then eight months detention.  I declare the 16 days of pre-sentence detention as time served under my sentences. 

17In the absence of your pleas of guilty, I would have sentenced you to 12 months detention.  I will make the forfeiture order in the terms sought. 

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