Director of Public Prosecutions v Alqasim

[2019] VCC 463

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00054

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUSSEIN ALQASIM

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JUDGE:	HER HONOUR JUDGE RIDDELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 April 2019
CASE MAY BE CITED AS:	DPP v Alqasim
MEDIUM NEUTRAL CITATION:	[2019] VCC 463

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher
For the Accused	Ms Z. Garde-Wilson

HER HONOUR:

1Hussein Alqasim, you have pleaded guilty to three charges of retention of stolen goods, one charge of burglary, one charge of theft, and one charge of home invasion, and one charge of resisting an emergency worker on duty.  Those offences relate to a series of events occurring on 13 June 2018.  You were 18 at that time.

2You met up with your two co-offenders.  All three of you travelled in a car which you knew to be stolen.  It was in fact stolen between 15 and 16 April 2018 from outside the home of a Mr Graham Hoggs in Greensborough.  That was stolen by unknown offenders.  The stolen car also had stolen number plates on both front and back, and they had been stolen from a different Hyundai on or about 18 April 2018 by unknown offenders.

3Sometime during the morning of that day, 13 June 2018, you committed a burglary on a residential premise in Hoppers Crossing.  You entered that premises using a jemmy bar and according to the victim, Mr Quinn, the door was damaged and personal possessions were rifled through.  You were in company with your co-offenders.  Mr Quinn describes the house as having been turned upside down.  A Hugo Boss watch valued at approximately to $400 to $500 was stolen.

4Not content with that, you three then proceeded to commit further offences.  At about 12.40 pm, the 15-year-old victim, Olivia was upstairs studying at her home alone.  She heard a knock and banging at the front door.  She looked out the window and saw a man, which was Mr Ibrahim, dressed in black, moving back to a silver Hyundai parked across the road.  He got into the back seat.  She then saw the Hyundai enter her driveway, and then heard banging on the front door, causing the house to vibrate.

5She immediately panicked and secured her bedroom door with her body weight, worried that someone would enter the room.  You and your co-offender, Mr Ibrahim, and a third offender, entered the house.  One or some of you went up the stairs, and according to the victim, Olivia, it felt like a person was trying to open her bedroom door.  She telephoned her mother and the police.

6Fortunately, the police arrived shortly thereafter.  One of you apparently became aware of their presence, and you all sought to decamp, that is, to run away.  You were all seen by police to exit the house, proving that you had all three, entered that premises.  You were all wearing black gloves, and you were holding a blue jemmy bar.  This had been used to open the front door of both that house and during the earlier burglary.

7The third offender got straight into the stolen Hyundai.  He accelerated away while you and Mr Ibrahim gave chase.  You made various attempts to get into the moving car, with police in pursuit.  The car variously accelerated away while you and Mr Ibrahim tried to get in.  It was eventually cut off by a marked police car.  Your co-offender drove directly into that vehicle.

8Detective Senior Constable Oakleigh tackled you to the ground.  You continued to thrash around and resist arrest but were eventually overpowered and handcuffed.  Mr Ibrahim was chased down and arrested further up the street.  Police located a number of pieces of gold jewellery in your back pocket.  Some of that had been stolen from a domestic burglary in Thomastown the previous afternoon.  The third offender was involved in a police pursuit, before again colliding with a police car.  Within the stolen Hyundai, police then located various jewellery boxes, a machete behind the back seat, and Mr Quinn's Hugo Boss watch.

9When interviewed, you variously denied your involvement, including denying going into the premises, or you made no comment. 

10These are very serious offences; violation of people's safety in the sanctity of their homes, is deserving of denunciation and punishment.  You showed by your involvement in these offences, a complete disregard for people's personal belongings and right to safety in their own home. 

11I do not accept that your involvement was because of what you claim, negative peer influences.  Your co-offender, Mr Ibrahim had no prior convictions.  I do not know about your other co-offender, but your own history, to which I will return, suggests you were an active and willing participant.  The fact you were holding the jemmy bar also suggests this.

12It is troubling that you continue to minimise your involvement.  I do not accept what you told the juvenile justice assessor for example, which was that you had no role in the planning of the offending.  You maintained a story about going with your co-offenders to get something to eat, and just going along with their plan without thinking.  I do not accept that; you must have been involved in planning, given you were wearing gloves, waiting outside the house in the car, and carrying the jemmy bar.  You were certainly involved in receiving the spoils; that is, the stolen items. 

13Turning to your personal history, you were born in a refugee camp in Western Australia, one year after your family arrived from the Middle East.  You later lived in Adelaide, and at age six, came to Melbourne.  Your parents were hardworking, striving to provide your family with stability in their new country.  Their English language skills are limited, and no doubt, assimilating into Australia was difficult.  Your schooling was interrupted by the fact that your family relocated several times.

14You were also learning, apparently at a slower pace, and doubtless, had issues due to your ethnicity and your parents' lack of English.  When you were about 14, you became engaged with a negative peer group and your behaviour started to become problematic.  You were expelled from Epping Secondary College, and Lalor North Secondary College, due to your behavioural issues, including physical and verbal aggression.

15You started to engage in acts of crime, and absconding.  Despite your parents' efforts, you did not comply with their conservative views, and continued to defy them.  No doubt, you were trying to fit in with a discordant peer group.  You did manage to achieve Year 10 at school, before obtaining some employment at a car wash.

16You come before this court with a relevant prior criminal history, which is somewhat lengthy despite your young age.  Your prior criminal record needs to be read with caution, however, given you have breached a number of Children's Court orders, and therefore, there is repetition in your prior criminal history.  Your criminal history starts in the Children's Court, with theft of motor vehicle, and contravening bail.  It seems to coincide with your use of drugs, which you say you started when you were 14, smoking cannabis, and eventually progressing to cocaine use.

17You have numerous dishonesty charges, including offences of burglary, theft, possession of weapons, and of note in relation to you, resist arrest on this occasion, you have two prior matters for failing to stop a motor vehicle on police request.  Most relevantly, you were convicted in April 2017, of aggravated burglary, where a person was present.  You were sentenced to Youth Justice detention for nine months, although you had served 98 days.

18In September 2017, you were found guilty of burglary and criminal damage, though I conclude that the commission date must have been before the aggravated burglary conviction.  Of particular relevance, is that on 7 June 2018, you were before the Melbourne Children's Court on charges of handle stolen goods, dealing with property suspected of being proceeds of crime, failing to stop a motor vehicle, and driving in a manner dangerous.  You were sentenced to a youth attendance order of five months, and to participate in programs aimed at your rehabilitation.  That appearance occurs one week before the commission of these offences.

19You have been given several opportunities to engage in programs through Youth Justice.  However, with only limited success.  I do note, however, that at one point, you did return to school, after involvement with juvenile justice. 

20You were 18 years old at the time of this offending and you are now 19.  This is your first entry into the adult justice system.  This period of remand, for the offending before me, represents your first time in adult custody.  You have now completed 296 days.  I assume you are one of the youngest people in the adult custodial setting.

21It is clear that this has had a sobering effect on you, and perhaps this time, represents a turning point for you.  I have received today, a letter which confirms those views which had been previously expressed by you.  You indicate that your time in adult prison, has been spent surrounded by older men, doing lengthy terms of imprisonment.  You indicate that you do not want to live like that.  You say, "Coming to adult prison has been such a big wake up call for me.  I am glad I learnt the hard way.  Now, I'll think before making my decisions".

22So, as I say, perhaps this time, represents a turning point for you.  You really are at a juncture in your young life, where you need to make a decision about the future, otherwise you will be facing longer and longer terms of imprisonment in the adult system. 

23Given your young age, and given the circumstances of your past history, and of the past offending, I requested both a community correction order assessment and a juvenile justice assessment, as to your suitability for detention in youth justice.  I have received both of those reports.  In relation to the community correction order, you were assessed as being suitable, though I note you were also assessed as being a medium risk of re-offending.

24In relation to the juvenile justice assessment, the author indicates that you do have some insight, that you were being frank, and you have taken some responsibility for your actions.  The author also says you are able to express victim empathy.  As I have indicated, I do not accept all the explanations or expressions of empathy in your comments to the juvenile justice assessor.  However, I do accept in particular, given you pleaded guilty very early to these matters, and I have received your letter today, again, expressing your apology to the victim and her family, I do accept that you are at a point now where you are able to express remorse for your behaviour on this occasion.  Perhaps that is part of the impact of adult imprisonment.  Perhaps it is part of your own maturation. 

25It seems also from that assessment report, that you are undertaking youth-targeted sessions in custody, and that you are actively participating in those.  You have also enrolled in TAFE and are expressing some hope for qualifications in the future.  Your time in adult custody has been difficult, you have been isolated, and at times, have needed to be placed in protection.  You indicated, and I accept, that you have been disturbed by the behaviour of those around you.  It is pleasing to read that you have expressed you do not want to assimilate into that culture.

26The author notes also that some of your engagement on previous orders has been interrupted by further offending.  They note that you were at one point, referred to Orygen Youth Health in May 2018.  Although it is recorded that that engagement was somewhat superficial, there was apparently some improvement in your behaviour in 2018, until your period on remand.

27The author opines that your period on adult remand has had a significant deterrent effect on you.  In particular, you have reengaged with your family, who are all present again, in court today.  You have reconnected with your religion.  It is encouraging to read, that you want to choose the right path.  In terms of criteria, to determine your suitability, your immaturity is noted, as is the potential for you to be influenced by undesirable influences in the adult setting.

28Those propositions are also reflected in the assessment report by neuropsychologist Matt Staios; he describes you as immature, and that there was a lack of structure, leading you to seek out negative peers.  He says you have low average abilities intellectually.  He opines also that you would be vulnerable in the adult custody setting.  He says that setting could serve to exacerbate your existing vulnerabilities, and negatively impact your capacity to reintegrate into the community.  He says the prevalence of exposure to peers with anti-social personalities is significantly higher in custody, indicating that that setting has more potential to negatively impact on your prospects of rehabilitation, by increasing your risk, rather than achieving deterrence.

29It was submitted in this case that you should not be detained further in the adult custodial setting.  I note again, these are very serious offences, in particular, home invasion is a very serious offence, with a maximum penalty of 25 years' imprisonment.  I do accept the categorisation given by your co-accused counsel, which is that there were some efforts, demonstrated on the evidence, to ensure that a person was not present.  Your comments to the juvenile justice assessor reflect that, namely that you did, and your co-offenders, did make attempts to determine that no one was present at the premises.  I note your comments in your letter provided today.

30However, any time you enter a residential premises, you take a risk that a person will be present.  Your prior conviction for aggravated burglary where a person was present, demonstrates that.  However, I do accept that categorisation and therefore conclude, having made efforts to determine whether any one was home, that this reduces your moral culpability somewhat.

31Nonetheless, the home invasion here was pre-meditated.  There were gloves used, a jemmy bar, and the jemmy bar was also used in the earlier burglary.  Further, it must have been a very frightening experience for the victim, who was a young girl, home alone.  Fortunately, it was a very brief episode, thanks to the arrival of police.  Despite the fact there is no victim impact statement from Olivia, I can understand the likely nature of the impact on her, would be one of feeling a lack of safety in her own home, of likely hypervigilance, and anxiety.

32Fortunately, in terms of the resist police, no one was injured by your thrashing about.  These offences of course, were a series of offences.  I take into account, earlier in the day, the commission of the burglary.  Although no one was present at those premises, people arrived home to find their home in disarray; their belongings were upturned, and possessions were gone through.  The impact on them is also real.  It leaves people feeling uncertain about the safety of their home, feeling violated that their personal belongings had been rifled through.

33A number of those items, including the Hugo Boss watch, were sentimental to their owners; that was a $400 to $500 watch, given to the victim by family on the occasion of his 40th birthday.  It is very fortunate it was returned.

34Given the seriousness of these matters, general deterrence and just punishment must be at the forefront of sentencing considerations.  Ordinarily, there is no question they would result in a length of time in adult gaol.  The prosecution indeed, urge that course upon me.  The telling factor here in relation to my considerations, ultimately is your young age.  Despite the usual punishment for offending such as this, the consideration in the circumstances of young offender, are radically different.  I refer of course, to cases of Azzopardi and Mills, both of which outline the very particular features, which a sentencing judge must take into account when dealing with a young offender; that is, a person under 21.

35Relevantly, those factors in summary are as follows:  One, the consideration of the court must turn to the importance of rehabilitation and reclamation.
Two, youthful offenders being immature are more prone to ill-considered or rash decisions.  Three, youthful offenders may lack a degree of insight, judgment, and self-control that is possessed by an adult.  Four, youthful offenders may not fully appreciate the nature, seriousness, and consequences of their criminal conduct.  Five, in sentencing young offenders, courts are cognisant that the effects of incarceration in an adult prison on a young offender, will more likely impair, rather than improve the offender's prospects of successful rehabilitation.  Six, courts recognise the potential for young offenders to be redeemed and rehabilitated, and that potential exists, because young offenders are typically still in a state of mental and emotional development, and may be open to influences designed to positively change their behaviour.  It is for this potential, that it has been stated that the rehabilitation of young offenders, is one of the greatest objectives of the criminal law.

36Your prospects of rehabilitation in my view, are guarded.  You need to confront your past offence and offending behaviour, stop minimising your behaviour, and develop your insight into what led you to offending, and what you can do to change your life around from here on in. 

37I am mindful of the provisions of the Sentencing Act and the fact that home invasion is a Category B offence.  Fortunately, you have no prior convictions for a Category A or B offence.

38Having been satisfied that your confinement is warranted in relation to the circumstances of these offences, I am further satisfied, however, that the appropriate sentence in relation to you, is one where you are detained in
Youth Justice detention.  For those reasons, I propose to convict and sentence you as follows.  If you could stand please, Mr Alqasim.

39In relation to Charge 1, which is the retention of stolen goods, namely, the stolen car, you are convicted and sentenced to four months' detention.  In relation to Charge 2, which is the retention of the stolen number plates, you are convicted and sentenced to one-month detention.  In relation to Charge 3, which is the burglary earlier in the day, you are convicted and sentenced to 18 months' detention.

40In relation to Charge 4, which is the theft, you are convicted and sentenced to six months' detention.  In relation to Charge 5, which is the home invasion, you are convicted and sentenced to two years' detention.  In relation to Charge 6, which is the retention of the stolen jewellery found in your possession, you are convicted and sentenced to two months' detention.  In relation to Charge 7, which is the resist emergency service workers, you are convicted and sentenced to four months' detention.

41I direct that the sentence imposed on Charge 5, which is two years, be the base sentence.  In relation to Charge 1, one month of that sentence is to be served cumulatively on the base sentence.  In relation to Charge 3, I direct that six months of that sentence is to be served cumulatively on the base sentence.  In relation to Charge 4, I direct that three months of that sentence is to be served cumulatively on the base sentence.  In relation to Charge 7, I direct that one month of that sentence is to be served cumulatively on the base sentence.

42The total effective sentence therefore is two years and 11 months, and I direct that you are to serve that in Youth Justice detention.  However, I also declare that you have already completed 296 days, and that that should be reckoned as pre-sentence detention.

43In relation to s.6AAA, but for your plea of guilty, in relation to this matter, so if you had not pleaded guilty, the sentence I would have imposed would have been an aggregate sentence of three years in an adult custody setting, with a non-parole period of two years' imprisonment.

44I propose to make the ancillary orders in the terms sought.  You can have a seat, Mr Alqasim, and I will just ask counsel to check the maths.  Any issue, counsel?

45MS GARDE-WILSON:  No, Your Honour.

46MR FISHER:  No, thank you, Your Honour.

47HER HONOUR:  Thank you very much.  All right.  I will have Mr Alqasim removed.  Thank you, and that completes the matter.

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