Director of Public Prosecutions v Alie
[2015] VCC 1708
•25 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-15-01542
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OBSA ALIE |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 November 2015 |
| DATE OF SENTENCE: | 25 November 2015 |
| CASE MAY BE CITED AS: | DPP v Alie |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1708 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty – armed robbery - youthful offender - provided investigating police with the name of co-offender
Legislation Cited: Crimes Act1958 (Vic); Sentencing Act 1991 (Vic)
Sentence:Convicted and sentenced to 154 days imprisonment - 154 days reckoned as served – released on Community Corrections Order for a period of 24 months. S6AAA declaration: three years' imprisonment with a minimum term of 18 months before becoming eligible for parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Zebrowski | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr A. Malik | Victorian Legal Aid |
HIS HONOUR:
Introduction
Obsa Murad Alie you have pleaded guilty to one count of armed robbery which carries a maximum penalty of 25 years imprisonment.
Your Offending
You agree that the contents of the summary of the prosecution opening fairly demonstrate your conduct and that of your co-accused, Romea Dyer, on 22 June 2015. It was tendered and is marked Exhibit A.
I propose to shortly summarise what occurred when you and your co-accused decided to rob a milk bar in Murrumbeena.
You lived about 400 m from the milk bar. You were aware of the hours that it was open. You met your co-accused on 22 June 2015 somewhere in Fitzroy. It was there that you hatched a plan to rob the milk bar.
You drove to the milk bar in your co-accused's car. You had both prepared disguises. You wore a hooded top pulled up over your head, and a beanie pulled down over your face which had eye holes cut into it. Your co-accused prepared a similar disguise.
When you entered the milk bar your co-accused was armed with a large pair of scissors. The shopkeeper, a female, heard a buzzer which alerted her to your entry into the milk bar. When she entered the shop area she became aware, on observing you and your co-accused, that a robbery was about to take place.
The shopkeeper left the shop and closed the door behind her. Your co-accused smashed the door and took hold of the shopkeeper. He held his hand over her mouth and held scissors to her neck.
You entered the milk bar within a matter of seconds after your co-accused. You jumped over the counter and tried to open the cash register. You then joined your co-accused. You both asked the shopkeeper for money. You went through her bag. You removed her purse which was valued at about $50. You found $100 in Australian currency, 300-400 yuan in Chinese currency. The shopkeeper told you that there was $100 in a box in her living room. You took that money.
A customer entered the milk bar wanting to purchase milk. You were standing at the cash register. You told him that the cash register was not working. He replaced the milk and left the milk bar. While that was happening your co-accused pushed the shopkeeper against a set of stairs which led to an upstairs area at the premises. He had his hand over her eyes to prevent her from seeing anything.
10When your co-accused heard the buzzer sound he assumed that the customer had left the store. Your attempt to open the cash register set off an alarm. Your co-accused led the shopkeeper into the shop, but made attempts to conceal her by having her crouch down out of sight. She turned off the alarm and opened the cash register. You took about $550 in cash from the cash register. You also took about 10 packets of cigarettes.
11You jumped over the counter and left the milk bar and ran towards your co-accused's car. A matter of seconds later your co-accused released the shopkeeper, jumped over the counter and also ran towards the point where the car was situated.
12While all this was happening the shopkeeper's 10-year-old son was upstairs at the premises. He heard the smashing of the door and saw your co-accused holding his mother with a hand over her mouth, with what he believed to be a knife in your co-accused's other hand. He was terrified by what he saw and heard, indeed he was too scared to telephone the police on his mobile phone.
13After you and your co-accused left the shop, the shopkeeper raised the alarm. The customer who had previously been in the shop, and his companion, gave chase, but were unable to apprehend you.
14The police lifted fingerprints from the counter. They matched your fingerprints. The informant telephoned you on your mobile phone and made an arrangement to meet you on 25 June 2015. You made full admissions of your involvement. Additionally, you identified your co-accused, and you gave the police his telephone number. As a result of the provision of that information your co-accused was apprehended, interviewed and charged with one count of armed robbery.
15You were remanded in custody, and have spent a total of 154 days in custody.
The Plea
16You were born on 30 July 1995. You are 20 years of age. Your co-accused was born on 23 February 1996 and is 19 years of age.
17You were born in Ethiopia. Your father was a political prisoner in Ethiopia. While he was imprisoned you and your older sister were cared for by your mother and your paternal grandmother. During that time your mother died when you were only eight years of age.
18Your father moved to South Africa and also to Kenya. While in Kenya, in 2000, he remarried. From that marriage he and his second wife have five children. They came to Australia in 2003 as refugees. Your father applied for a visa for both yourself and your sister, which was successful. You arrived in Australia with your sister in 2007 when you were about 12 years of age.
19On arrival in Australia you lived with your father. You returned to Ethiopia in 2009 when you must have been 14 years of age. You returned to live with your grandmother in a little village, to be of assistance to her. Life with your grandmother was a serious struggle. You were, from time to time, without food. It would appear that it was your father's idea to return to Ethiopia. He was hopeful that taking you back there would break the cycle of the antisocial behaviour you had developed.
20You experienced the ravages of the civil war which has plagued that part of Africa. Your counsel, as an example, described two soldiers who set upon you and your friends when you were playing a game of soccer. You and another friend escaped. When you returned you found that two of your friends had been beaten to death. That level of violence was apparently a common occurrence.
21You returned to Australia in 2011. You lived with an uncle for a while. You became distanced from other members of your family, including your uncle. You were then living in what your counsel described as crisis accommodation. Up until your arrest and your remand in custody you were having serious problems finding stable accommodation.
22Mr Cameron John Roberts was called to give evidence on your behalf. He has a bachelor of science degree directed to social welfare, and has undertaken short elective courses at Melbourne University. He was employed with The Ladder Project Foundation which is involved with, among other things, youth and youth homelessness. He is now employed with the PMY Group where he is involved in advisory work with organisations in relation to their community projects, for example the AFL's indigenous program.
23Mr Roberts evidence was reasonably lengthy. I do not propose to summarise it in the detail in which it was given. He met you when you were about 16 years of age at a time when you were living in crisis accommodation. He was aware that your family relationships had broken down. You applied to enter a program overseen by him. The program involved, among other things, well-being management, and expectations of behaviour and like matters. It also looked at the motivation of persons involved in the program, and in particular, their educational and employment pursuits.
24Mr Roberts described you, early on, as having a very good attitude. You attended the program, but your involvement fell away due to what he believed was substance abuse. He described your interests as being in manual labour or trade work. You undertook a 12 week course in mechanics and then an apprenticeship which you brought to an end because you wanted to become involved in the construction industry. You had worked with the YMCA, undertaking maintenance work for six months. Mr Roberts described you as having thrived while you were doing that work.
25Mr Roberts emphasised that you have demonstrated that you are personable, motivated and have excelled when you have applied yourself. He particularly referred to your talent in sporting pursuits.
26I was impressed by the conclusion he reached, namely, that if you have stable housing, employment, an absence of substance abuse, and are actively engaged in a general sense, you will have a positive and fruitful future. He also described one visit he made to you in prison when you expressed serious disappointment regarding your conduct, as well as remorse and concern for the victim of your criminal conduct.
27In addition, your counsel referred me to a letter from your father, dated 18 November 2015, which is exhibit OMA 2. He describes the circumstances in which you developed social problems, and ceased to involve yourself with your family. It was in that setting that he describes your change in behaviour and interaction with other boys, with whom you were getting into trouble. He will support you when you are released from imprisonment.
28Your counsel also referred me to a letter from Mr Rashid Dane, dated 18 November 2015. He described you as being a reasonable young man before things went wrong for you. He intends to try to persuade you to re-join your community, to help you stay out of trouble.
29According to the evidence put before me, many people have faith that you are capable of being a decent member of the broader community, and also of your ethnic community, and they have been prepared to put their reputations on the line by speaking up for you. The question is whether you are the person that they believe you to be.
30You and your co-accused might have engaged in a simple and relatively unsophisticated plan. However it might be described, you intended to engage in an armed robbery. You knew that your co-accused was armed with scissors, which he intended to use to threaten an innocent shopkeeper. You chose a very soft target. A local corner store milk bar which was likely to have been quiet at the time of night when the armed robbery was committed, and likely to have only one person tending the shop.
31From the moment you entered the shop there was no doubt in the shopkeeper's mind as to what you and your co-accused intended to do. You not only planned that your co-accused would subdue her with the degree of violence that was necessary, but that your part of the armed robbery was to locate money and other items of value.
32Armed robberies on soft targets like this are prevalent. For this reason, the sentence I must impose on you must contain elements of specific deterrence, general deterrence, denunciation of your conduct and protection of the community. Your personal circumstances should not be too readily allowed to mask the features of the gravity of the armed robbery.
33Although the victim impact statement of the shopkeeper is short, it nonetheless demonstrates just how frightening you and your co-accused were in the steps you took to subdue her and to locate money and other items of value. Her capacity to work in the milk bar has been affected to the extent that she and her son moved out of the domestic part of the premises for some time. She has seen a psychologist with her son. She and her husband have incurred extra cost in improving the security at the milk bar. They have lost what must be a significant amount of money to them.
34Your counsel submitted that despite the gravity of armed robbery, and the statements in many cases that it is a crime which calls for an immediate term of imprisonment, that I should significantly moderate the initial view I expressed and sentence you more leniently.
35There are a number of factors which go to the moderation of that initial view I held:
·You have one Childrens' Court appearance for intentionally damaging property, assault with a weapon and failure to answer bail, but you were placed on probation for 10 months without conviction which suggests that the gravity of what you did was probably at the lower end of seriousness.
·You are only 20 years of age. You should be characterised as a youthful offender, and given the benefit which flows from such a characterisation.
·You admitted your guilt at the earliest time when you were apprehended by the police, and you otherwise entered a formal plea of guilty at a very early stage.
·I accept that you have expressed genuine remorse in a significant way.
·You provided investigating police with the name of your co-offender and the means by which they were able to locate him, leading to his arrest and interview. That constitutes a level of cooperation for which you are to be commended.
·Your unfortunate and unhappy childhood in Ethiopia has made adjustment in your life, as you have grown-up, more difficult.
·The evidence of Mr Roberts is compelling and paints a picture of you being someone who has excellent prospects of rehabilitation, and should be given every opportunity to leave this offending behind you and progress into your early adulthood in the manner he believes you can.
·You have a family network. It is a shame you have not engaged with it. Nevertheless it is a network which includes your community, and it will be of benefit in providing the stability you need.
36The sentencing landscape has changed to the extent that a community corrections order presents a viable sentencing alternative to an immediate sentence of imprisonment with a non-parole period. I am persuaded that sentencing you as I intend, serves all of the relevant sentencing purposes and pays due regard to each of the factors which I consider to be relevant in moderating the sentence I must impose on you.
37You have been remanded in custody now for a significant period of time. As at today's date it is a total period of 154 days, or just over five months.
38Your counsel submitted that I should sentence you to time served and release you on a community corrections order with conditions. The prosecutor submitted that such a disposition is within the range of a just sentence, and he emphasised the prosecution's view that your rehabilitation ought to be a paramount sentencing consideration.
39You have now been assessed as suitable for the imposition of a community corrections order. I propose to accede to the submissions made by your counsel. The sentence that I now impose on you is proportionate to the gravity of the armed robbery in the light of the objective circumstances of its occurrence.
40Please stand. On the count of armed robbery you are sentenced to a term of imprisonment of 154 days. I declare a period of 154 days be reckoned as served pursuant to s18 of the Sentencing Act. I will release you on a community corrections order for a period of two years with the following conditions:
·That you be supervised, monitored and managed as directed by the Secretary to the Department of Justice.
·That you attend appropriate programs that address factors relating to your offending behaviour.
·That you have any relevant assessment and treatment for drug abuse or dependency.
·That you reappear before the court at 9:30 AM on Friday 5 February 2016 for the purpose of:
odetermining your compliance with this order;
odetermining where you are living; any employment you have engaged upon, or have applied for, and programs you have engaged upon that address factors relating to your offending behaviour.
41I will now inform you of a number of matters which you must understand now that you are to be released on a community corrections order.
42I will now inform you of a number of matters which you must understand now that you are to be released on a community corrections order and I want you to listen to this very carefully. In addition to the conditions I have specifically imposed, you must also abide by the terms that apply to all community corrections orders. These are that you must not commit any other offences during the 24 month period the order is in force, being any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a community corrections officer. You must report to the community corrections centre at Neighbourhood Justice Centre Collingwood Community Corrections Service within two clear working days of release. Also, you must not leave Victoria without first getting permission from a community corrections officer and you must inform the community corrections office of any change of address, where you live or work, within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of community corrections officer. Do you understand the conditions I have imposed and the general terms that apply?
43OFFENDER: Yes, I do.
44HIS HONOUR: Before you consent to the making of such an order you must understand that the contravention of any condition attached to the community corrections order except for a contravention of a direction by the Secretary is itself an offence punishable by three months' imprisonment. Contravention of a community corrections order also carries with it the prospect that you will be brought back before me and resentenced for the original offences. Do you consent in those circumstances to the imposition of such an order?
45OFFENDER: Yes, Your Honour.
46HIS HONOUR: Before I let you sit down, if it had not been for your early plea of guilty, I would have sentenced you to three years' imprisonment with a minimum term, before you would become eligible for parole, of 18 months. You can now be seated.
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