Director of Public Prosecutions v Ali Musse
[2021] VCC 547
•7 May 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01772
Indictment No. L12059298
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMED ALI MUSSE |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 April 2021 | |
DATE OF SENTENCE: | 7 May 2021 | |
CASE MAY BE CITED AS: | DPP v Ali Musse | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 547 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Sentence – Armed robbery – Possession of a drug of dependence – Moderately serious example of armed robbery – Offence committed under influence of illicit substances – Significant victim impact – Early pleas of guilty – Young offender – Relevant prior criminal history – No subsequent offences – Remorse – Rehabilitation greatly advanced under supervised bail program – Emphasis on rehabilitation over other sentencing principles – Lenient disposition justified in all the circumstances
Legislation Cited: Drugs Poisons and Controlled Substances Act 1981, s 73(1)(a) – Sentencing Act 1991, ss 6AAA, 48D(3)(a), 48D(3)(b), 48D(3)(f), 48E, 48K, 73(1)(a)
Cases Cited:DPP v Hunter (Supreme Court of Victoria, Appeal Division, Court of Criminal Appeal, Young CJ, Murphy and Brooking JJ, 25 May 1987), DPP v Doherty (2002) 137 A Crim R 147, Azzopardi v The Queen (2011) 35 VR 43, R v Kilic (2016) 259 CLR 256, DPP (Vic) v Dalgleish (a Pseudonym) 2017 262 CLR 428, Boulton v The Queen (2014) 46 VR 308, Markovic v R (2010) 30 VR 589, Bradshaw v The Queen [2017] VSCA 273
Sentence: Community Correction Order for 5 years with 500 hours unpaid community work (Charge 1) – Discharged (Charge 2)
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Baxter | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms Z Garde-Wilson | Garde Wilson Lawyers |
HIS HONOUR:
1Mohamed Ali Musse, you have pleaded guilty to one charge of armed robbery (Charge 1) and one charge of possession of a drug of dependence (Charge 2).
2The maximum penalty for armed robbery is 25 years’ imprisonment and the maximum penalty for possession of a drug of dependence in the present circumstances is 5 penalty units.
The Facts
3The prosecution filed a summary of prosecution opening for plea dated 24 March 2021,[1] which your counsel told me I can treat as a statement of agreed facts.
[1] Exhibit P1.
4On Friday 28 August 2020 at approximately 4pm, Lina Mackay, the victim, was walking home along Melrose Street, North Melbourne. You did not know Ms Mackay. As she was walking, she sensed someone was behind her. She had her headphones on and was listening to music, but she was able to hear a voice which sounded like someone was talking to her.
5Ms Mackay walked faster and looked into the reflection of car windows to see if someone was behind her as she did not want to turn around. You overtook her and positioned yourself in front of her.
6You were wearing a black hoodie and black trackpants and had a silver knife, approximately 20cm in length, which resembled a kitchen knife. You produced the knife from around your stomach area and said, ‘Give me your phone or I’ll stab you.’
7Ms Mackay handed over her mobile phone. You told her to unlock her phone. She was shaking as she unlocked her phone. You told her, ‘Hurry up or I’ll stab you.’
8You then asked Ms Mackay what was in her pockets and to give you everything she had. She told you she did not have anything else. You put your hands in her pockets and grabbed some coins. You asked for Ms Mackay’s headphones, which she gave to you (Charge 1).
9Ms Mackay then quickly walked away. When she arrived home, she called the police.
10Police attended and identified you on Melrose Street, North Melbourne. You became aware of police presence and ran from the scene. A chase ensued and you were tackled to the ground and arrested.
11Ms Mackay’s mobile phone was found on the ground near you when you were arrested. Her headphones were in a satchel bag you were carrying. In a nearby laneway, police located the silver stainless steel kitchen knife used in the armed robbery.
12Police also found loose flakes of cannabis and two small dry buds in the satchel (Charge 2). The prosecution accepts this is a small quantity possessed by you for your own use and I am satisfied on the balance of probabilities this is the case.[2]
[2] See Drugs Poisons and Controlled Substances Act 1981 s 73(1)(a)
13You were interviewed and made the following comments:
· You had been living with your aunt in North Melbourne for the past two weeks.
· You answered ‘no comment’ to questions about the armed robbery and your possession of the knife, but you told police if the knife was analysed it would probably be linked to you.
· You admitted to the small amount of cannabis located in your satchel.
· You could not remember anything because you were using Xanax.
14You were remanded in custody and granted bail on 10 September 2020.
Victim Impact
15A victim impact statement from Ms Mackay was tendered at the plea.[3] The armed robbery has had a significant impact on her. Because of your offending, she feels anxious and unsafe when she leaves her home during daylight and avoids leaving the house after dark. This has stripped her of her sense of independence and confidence. She has also suffered from nightmares about the incident.
Offence Seriousness
[3] Exhibit P2.
16Armed robbery is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence. Your counsel conceded this is a serious offence.
17This was a serious enough example of the offence. You bailed up a lone woman at knife point in broad daylight only a few kilometres from central Melbourne and demanded she give you her mobile phone and headphones. You even searched her pockets for money. You twice threatened to stab her with the large kitchen knife you were wielding. It was a terrifying ordeal for your victim, who continues to suffer from the mental trauma you caused her.
18Sentencers have repeatedly emphasised the very serious nature of this type of offence. On one level, the victim may be subjected to a terrifying experience, believing that if the offender’s demands are not met, physical harm will ensue.[4]
[4] See eg R v Smith (Unreported, Supreme Court of Victoria, Appeal Division, Court of Criminal Appeal, McInerney, Menhennitt and McGarvie JJ, 31 July 1978) 11.
19General deterrence, denunciation and just punishment are the primary sentencing considerations in offences of this kind.[5]
[5] Ibid. See also R v Orlikowski (Unreported, Victorian Court of Appeal, Winneke P, Charles JA and Hampel AJA, 16 October 1997), 4.
20As stated by Young CJ, Murphy and Brooking JJ in DPP v Hunter:[6]
The crime of armed robbery is a very serious one which not only deprives innocent victims of their property but also puts them and others in fear for their bodily safety. The crime thus combines elements of an offence against the person with elements of an offence against property.
[6] (Unreported, Supreme Court of Victoria, Appeal Division, Court of Criminal Appeal, Young CJ, Murphy and Brooking JJ, 25 May 1987) p 5.
21In DPP v Doherty[7] O’Bryan AJA opined:
Armed robbery is a prevalent crime in the community and courts have a considerable responsibility to send a clear message to the public that an armed robbery, whether committed on a "soft" target [as in the present case] or a "substantial" target such as a bank or place where cash money is likely to be found, is likely to be visited with a stern and fitting custodial sentence.[8]
[7] (2002) 137 A Crim R 147.
[8] Ibid 156 [41] (O’Bryan AJA, Callaway JA agreeing).
22Nonetheless, as the prosecutor fairly accepted, your offence was opportunistic and unsophisticated.
Personal Circumstances
23You were 18 years of age at the time of committing these offences and you are currently aged 18. Accordingly, you fall to be sentenced as a young offender.[9] You were born in Australia.
[9] See Sentencing Act 1991 s 3.
24Your parents immigrated from Somalia. They are now separated, and both reside in Victoria. Your father is a court interpreter and your mother is on a disability support pension. Your mother and father were both present in court supporting you during the plea hearing and they are here today.
25You have four sisters, the youngest being 15 years old, who reside with your mother.
26You completed Year 10 and have been unemployed since leaving school.
27At the time of committing these offences, you were residing between your mother’s and father’s homes in Aberfeldie and Ascot Vale respectively.
28According to your counsel, at the time of your offending you were a ‘heavy user’ of cannabis, MDMA, alcohol and Xanax.
29On 10 September 2020, you appeared before the Melbourne Magistrates' Court on unrelated matters and were placed on the Youth Justice Supervised Bail program, to return to Melbourne Magistrates' Court on 23 November 2020. The matter was adjourned to 10 December 2020 and 27 April 2021, with bail extended each time.
30You were bailed to reside with your father in Ascot Vale under 24/7 supervision, however, that bail was varied to allow you to also reside with your mother and attend Youth Justice appointments unsupervised.
31A Supervised Bail Progress Report compiled by Rachanna Pillay, Youth Justice Case Manager at the Department of Justice & Community Safety, was tendered at your plea hearing.[10]
[10] Exhibit D2.
32Since your last court appearance on 10 December 2020, you have engaged in eleven of fourteen scheduled Youth Justice supervision appointments. Due to ongoing positive engagement and compliance, on 24 March 2021 Youth Justice reduced your appointment frequency to fortnightly.
33During supervision, you engaged in a polite and open manner and you were forthcoming regarding your issues with substance use, mental health, family and employment goals. Due to COVID-19 restrictions, supervision appointments were conducted via video and phone conference. Youth Justice has begun transitioning you into office-based appointments.
34Youth Justice has utilised cognitive behavioural approaches during supervision appointments, which aim to assist you to identify the connections and interactions between your thoughts, feelings and behaviours. You have reported a willingness to improve your personal circumstances and demonstrate a readiness to engage with these services.
35There is nothing to suggest you have further offended during the program or have not adhered to your bail conditions. You reported to the community correction officer who assessed you at my request for a Community Correction Order (CCO) that you have remained abstinent from illicit substances and alcohol since being released on supervised bail.
36You currently reside with your father, Abdullahi Ali Musse, at his home in Ascot Vale. On 15 December 2020, Youth Justice notified the informant that due to a disagreement with your father, you were living with your mother, Asli Yousif, and sisters in Aberfeldie.
37You and your father repaired your relationship, however, you continued to reside between your mother's and father's residences. Your parents appear to be caring and proactive supports for you. Although separated, they both actively encourage and support your participation in Youth Justice supervision.
38Your father reported he has seen significant positive change in you due to the rehabilitative efforts you have engaged in. He said you have become a strong member of the family and often lead the family in prayer. He has seen significant improvement in your behaviour and physical appearance, reporting you openly engage in conversations about these issues. The two of you often reflect on how much progress you have made. Your parents and siblings remain supportive and are assisting you to meet the bail requirements of the unrelated matter.
39You have previously been referred to Orygen Youth Health for a mental health assessment because you were experiencing feelings of paranoia and auditory hallucinations. You were assessed by Lucas Coulson, Senior Clinician, at Orygen Youth Health. Mr Coulson reported you engaged openly with him during the assessment process, attending six appointments from September 2020 to December 2020. Mr Coulson reported you engaged positively with him and appeared to have insight into the relationship between your mental health and substance abuse.
40Mr Coulson's provisional diagnosis was that you were in remission from an historic depressive episode, an anxiety disorder, attenuated psychotic symptoms, and substance abuse disorders. Mr Coulson found that your mental health had improved and had not identified any current mental health concerns. He recommended you continue your engagement with Functional Family Therapy (FFT), alcohol and other Drug (AOD) Counselling and suggested you be re-referred if needed.
41You were also referred to Youth Support and Advocacy Service (YSAS) for an AOD assessment, due to reporting a history of long-term substance use. On 21 October 2020, you were allocated to Ms Laura Thompson, Youth AOD Forensic Outreach Worker, at YSAS. Ms Thompson reported that you successfully completed the Brief Intervention Program.
42Ms Thompson reported your engagement was of a high standard and you had openly engaged in your appointments and were reflective about your experiences and feelings. Ms Thompson advised your sessions focus on relapse prevention, harm reduction and AOD education. Youth Justice will continue to monitor your substance use. You reported abstinence since your release on 10 September 2020. Youth Justice will re-refer you for AOD support if needed.
43You were also referred to FFT because you reported you felt disconnected from your family, stating they 'didn't care' about you in the past. On 9 October 2020, you were allocated to Mr James Tupai, a practitioner at FFT, for appointments. Mr Tupai reported you and your family have engaged in all eight recommended therapeutic sessions, appearing to speak openly. Mr Tupai advised appointments were made up of three behaviour change sessions where the family focused on increasing effective communication and five sessions focused on general communication in particular areas outside of the family as well as planning for future challenges and relapse plans. Mr Tupai reported he encouraged the family to speak openly about negative feelings. Mr Tupai advised the family successfully completed the program and accordingly his involvement ceased in March 2021. You reported the sessions have been helpful to you and your family.
44You identified a desire to engage in employment and education. Youth Justice referred you to the First Skills Reconnect Program with Youth Now in Sunshine to assist in securing an enrolment in a pre-apprenticeship. You were allocated to Ms Blen Bekele, a youth worker at Youth Now Sunshine in January 2021. Ms Bekele advised you applied for a plumbing pre-apprenticeship course with Victoria University and the application is in progress. You are enrolled in a Certificate II course in Building and Construction Pre-apprenticeship at Victoria University which, I am told, commences soon.
45Ms Bekele reported your attendance for appointments has been sporadic, but when you have participated, you have engaged in a positive manner. Ms Bekele advised she has also been working with you to secure part-time employment. The two of you have been working on your resume and creating a cover letter. Ms Bekele said she will continue to support your employment and education goals. Apparently, you are now listed with Max Employment Services.
46Youth Justice referred you to Youth Justice Community Support Services (YJCSS) for outreach and cultural support. You were allocated to Mr Peter Makuei, an intensive cultural support worker at YJCSS, on 22 January 2021. Mr Makuei reported initially that you were not actively participating in outreach appointments and you only had phone contact. Mr Makuei has subsequently reported he was able to successfully engage with you and you have now attended two appointments where you both discussed your goals. Mr Makuei said you engaged well during appointments and he would continue to support you.
Prior Criminal History
47You have a relevant prior criminal history. On 18 July 2019, you appeared before the Sunshine Children’s Court on a charge of armed robbery. Without recording a conviction, you were placed on probation for 12 months. On 17 December 2019, you successfully appealed against that sentence to this Court and received, without conviction, an adjourned undertaking in the sum of $1000 to be of good behaviour for 12 months. The present offending breaches that order.
48The prosecutor told me, without objection from your counsel, that offence occurred on 30 October 2018 and involved you producing a knife and robbing the male victim of his mobile phone and $50 which you took from his wallet. You were in the company of a co-offender. You were aged only 15 at the time.
49Clearly, specific deterrence and protection of the community need be given weight in sentencing you for the present offence of armed robbery.
50You also have a matter pending in the Broadmeadows Magistrates’ Court for a robbery alleged to have been committed by you on 26 August 2020.[11] That matter is listed for a first mention on 7 June 2021. That alleged offence is entirely irrelevant for present purposes.
Mitigating Circumstances
[11] Informant Franzi.
51You pleaded guilty to these offences at the earliest forensically reasonable opportunity. I accept your pleas have utilitarian benefit. Your pleas also indicate an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice.
52On the material before me, I find your pleas of guilty demonstrate true contrition and remorse for your offending conduct. You expressed remorse and victim empathy to the community corrections officer who assessed you at my request for a CCO. I accept this is genuine.
53You are a young offender and the principles espoused in cases such as R v Mills[12] and Azzopardi v The Queen[13] apply in sentencing you for these offences. Accordingly, advancing your prospects of rehabilitation is ‘far more important than general deterrence’ and denunciation.[14]
[12] [1998] 4 VR 235, 241 (Batt JA, Phillips CJ and Charles JA agreeing) (Mills).
[13] (2011) 35 VR 43, 53–57 [34]–[44] (Redlich JA, Coghlan and Macaulay AJA agreeing).
[14] Mills 241.
54In this regard, you are to be highly commended for the manner you have approached your rehabilitation since being placed on Youth Justice supervised bail. It is a truly remarkable effort on your part, and your rehabilitation to date is to be encouraged. You have a very supportive family and law-abiding friends who are protective factors, as is, your Muslim faith.
55You were arrested and charged on 28 August 2020 and bail was granted on 10 September 2020. Accordingly, you have spent 14 days on remand for the present offences. You spent that time in quarantine isolation in a youth unit of an adult prison. Your counsel told me you were in cell isolation for 24 hours per day. This experience has taught you a salutary lesson.
Application of Sentencing Principles
56I have had regard to current sentencing practices in relation to the charge of armed robbery as informed by the decisions of the High Court in R v Kilic[15] and DPP (Vic) v Dalgliesh (a Pseudonym).[16] It is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offence of armed robbery and the myriad of personal circumstances pertaining to individual offenders.
[15] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[16] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
57The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, the impact on any victim and your personal circumstances.
58I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, so far as is possible, you are rehabilitated and reintegrated into society.
59Your counsel submits I should impose a CCO on you with a number of conditions attached. The prosecution also submits a CCO with conviction ‘would properly have regard to the sentencing principles in this case’.[17]
[17] Prosecution Outline of Sentencing Submissions (Exhibit P3) [14].
60As the Victoria Court of Appeal observed in Boulton v The Queen:[18]
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[19]
[18] (2014) 46 VR 308.
[19] Ibid 338 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).
61I have received a Community Correction Order Assessment Outcome Report dated 1 May 2021[20] and a Mental Health Community Corrections Screening Program report in relation to an assessment conducted on 29 April 2021.[21]
[20] Exhibit C1.
[21] Exhibit C2.
62You have been assessed as suitable for a CCO. You were assessed as having a high risk of reoffending according to the Level of Service Risk Assessment Tool. Accordingly, a number of program and treatment conditions were recommended to address your drug and alcohol abuse and offending behaviour. Supervision, judicial monitoring and an unpaid community work condition were also recommended. You indicated to the assessment officer you would have ‘no issues co-managing commitments of a CCO and [those] of education or employment’.
63According to the report I received from Forensicare under the Mental Health Community Corrections Program, you are in remission from a depressive episode, an anxiety disorder, attenuated psychotic symptoms and substance abuse disorders. You last experienced psychotic symptoms in August 2020. The Forensicare clinician opined that you do not require ongoing mental care to be made a requirement of any CCO I impose. I accept this opinion.
64The offence for which you fall to be sentenced is both objectively and subjectively very serious. However, after much anxious consideration, I have decided that in your case it is appropriate to impose a sentence which will maximise your prospects of rehabilitation, while giving what I regard to be appropriate weight to general deterrence, denunciation and just punishment, in particular. In Markovic v R,[22] the Victorian Court of Appeal affirmed the ‘proposition of longstanding and high authority, that there is always a place in sentencing for the exercise of mercy where a Judge’s sympathies are reasonably excited by the circumstances of the case’.[23]
[22] (2010) 30 VR 589.
[23] Markovic 590 [1] (Maxwell P, Nettle, Neave, Redlich and Weinberg JJA) citing R v Osenkowski (1982) 30 SASR 212, 212-13 (King CJ).
65Ultimately, I am moved by your circumstances, in particular your efforts at rehabilitation, to impose a lenient sentence upon you for such serious offending. You are a young offender and I am mindful of what the Victorian Court of Appeal has said in Bradshaw v The Queen[24] and Boulton v The Queen.[25]
[24] [2017] VSCA 273 [49].
[25] (2014) 46 VR 308, 311 [2].
66After balancing all relevant sentencing considerations in your case, I consider a sentence imposing a five-year CCO with 500 hours of unpaid community work and a number of other conditions is appropriate to achieve the purposes for which the sentence is imposed.[26]
Stand up, Mr Ali Musse
[26] Ibid s 5(4).
67On Charge 1 (armed robbery) you are convicted and sentenced to a CCO for five years commencing today with 500 hours of unpaid community work over five years and the following other conditions:
Sentencing Act 1991 (SA) s 48D(3)(a) — assessment and treatment (including testing) for drug abuse and dependency.
SA s 48D(3)(b) — assessment and treatment (including testing) for alcohol abuse and dependency.
SA s48D(3)(f) — programs and/or courses that address factors related to the offending.
SA s48E — supervision for five years.
SA s48K — judicial monitoring
68On Charge 2 (possession of a drug of dependence) you are convicted and discharged.
69Pursuant to s 6AAA of the Sentencing Act 1991, I state that the sentence I would have imposed on you but for your pleas of guilty would have been:
On Charge 1 — 18 month’s detention in a youth justice centre; and
On Charge 2 — convicted and fined $200.00.
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