Director of Public Prosecutions v Arob and Anors
[2021] VCC 1994
•1 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00859
CR-21-00861
CR-21-00862
CR-21-00863
CR-21-00864
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MANUEL AROB, MAHOMED AWO, HARRISON MISSIRIS, MOUSSA HAMKA AND BILAL CHOUIKHEN |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2021 | |
DATE OF SENTENCE: | 1 December 2021 | |
CASE MAY BE CITED AS: | DPP v Arob & Anors | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1994 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Five co-offenders – Armed robbery (Arob) and robbery (Awo, Missiris, Hamka and Chouikhen) – Common assault – Insight and genuine remorse – Youth – Criminal history (Arob, Hamka) – No criminal history (Awo, Missiris, Chouikhen) – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 75A, 75; Sentencing Act1991 ss 6AAA, 18, 40, 44.
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: 2 years imprisonment together with a community correction order for 18 months (Arob); 10 months imprisonment (Hamka); Community correction order with conviction for 18 months (Awo, Missiris and Chouikhen).
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Nibbs (plea) Ms S Hosking (sentence) | Office of Public Prosecutions |
| For Mr Arob | Mr L Barker | Theo Magazis & Associates |
For Mr Awo | Mr R Backwell | Dribbin & Brown Criminal Lawyers |
| For Mr Missiris | Ms A Sutherland | Greg Thomas Barristers & Solicitors |
For Mr Hamka For Mr Chouikhen | Mr D Sala Mr N Brown | Emma Turnbull Lawyers Nelson Brown Legal |
HIS HONOUR:
Introduction
1Manuel Arob, on Indictment C2013674.A you have pleaded guilty to one charge of armed robbery contrary to s 75A of the Crimes Act 1958 which carries a maximum penalty of 25 years imprisonment (Charge 1) and one charge of common assault contrary to the common law which carries a maximum penalty of 5 years imprisonment (Charge 4).
2Mohamed Awo and Harrison Missiris, on Indictment C2013674.A you have each pleaded guilty to one charge of robbery contrary to s 75 of the Crimes Act 1958 which carries a maximum penalty of 15 years imprisonment (Charge 2) and one charge of common assault contrary to the common law which carries a maximum penalty of 5 years imprisonment (Charge 4). Mohamed Awo, you have pleaded guilty to an additional charge of common assault contrary to the common law which carries a maximum penalty of 5 years imprisonment (Charge 3).
3Moussa Hamka and Bilal Chouikhen, on Indictment C2013674.1 you have each pleaded guilty to one charge of robbery contrary to s 75 of the Crimes Act1958 which carries a maximum penalty of 15 years imprisonment (Charge 1) and one charge of common assault contrary to the common law which carries a maximum penalty of 5 years imprisonment (Charge 2).
4You, Mr Arob and Mr Hamka, have admitted your prior Criminal Record.
5You, Mr Awo, Mr Missiris and Mr Chouikhen, have no prior Criminal Record.
Circumstances of the offending
6A prosecution opening was tendered on the plea and may be summarised as follows:
7The victims in this matter are Jonathon Swinnerton, Eranga Wanninayake and Tharanga Wanninayake.
8On 7 June 2020 at approximately 4 am, the victims and David Garotti were out the front of Mr Garotti's apartment building at 7 Katherine Place, Melbourne, having a cigarette. Whilst there, they struck up a conversation with a group of people. After talking for a while, the victims and Mr Garotti entered the apartment complex to return to Mr Garotti's apartment. When they arrived at the lift area they met you, Mr Arob, and two unknown females. The victims believed you and the two females were part of the group they had been talking to outside. When you were in the lift together, you, Mr Arob, offered to sell the victims and Mr Garotti some cocaine and put a mobile number in Mr Swinnerton's mobile phone. You stated that if they wanted drugs to contact you. The victims believed you were staying on level 18 of 7 Katherine Place, Melbourne as the level 18 button was illuminated in the elevator.
9The victims returned to Mr Garotti's apartment 801 on level eight. At approximately 4.40 am, Mr Swinnerton sent a text message to you, Mr Arob, and received a phone call from you. You organised to meet up in the fire escape stairwell. Mr Swinnerton met you in the stairwell on level eight. You were with Mr Hamka who convinced Mr Swinnerton to return to Mr Garotti's apartment. Shortly after, there was a knock at the door and you, Mr Arob, opened the door to allow in you, Mr Chouikhen, Mr Awo and Mr Missiris. You all entered and began yelling at the victims to sit down and not to look at you.
10Demands were made for the victims to empty their pockets onto the table. The victims had their driver licences and Medicare cards photographed by one of you. You, Mr Arob, threatened the victims by stating, 'We know where you live, we have your address and if you call the cops we are going to come to your house and we are going to kill you.' You, Mr Arob, were not happy with just the $300 cash Mr Swinnerton had withdrawn to buy the cocaine and demanded more money. Eranga Wanninayake said he had $900 on one of his bank cards and that he would get the money out as long as you did not hurt anyone.
11
You, Mr Arob, left with Eranga Wanninayake to get the money from a nearby ATM. You told him that if he tried to do anything 'funny', gave you attitude or ran away, you would tell your mates to 'shank' the other victims. You and Eranga Wanninayake went to the EzyMart on the corner of Katherine Place and Flinders Street. Eranga Wanninayake withdrew $350 over two transactions ($200 and $150). It is these facts that form part of Charge 1, armed robbery, in relation to you, Mr Arob, and Charge 1, robbery, in relation to you, Mr Awo, Mr Hamka,
Mr Chouikhen and Mr Missiris.
12
It is the prosecution case that you, Mr Awo, Mr Hamka, Mr Chouikhen and
Mr Missiris were complicit in the robbery but were unaware that you, Mr Arob, were armed. As you, Mr Arob, had decided to use a knife without the knowledge of Mr Awo, Mr Hamka, Mr Chouikhen and Mr Missiris, and they were also not present when you committed the armed robbery, it is not alleged that you committed the crime in company.
13You, Mr Arob, warned Eranga Wanninayake to not look at the owner and just withdraw the cash. Eranga Wanninayake gave the money to you but you were not happy as you were told the card had $900 on it. You and Eranga Wanninayake returned to Mr Garotti's room where Eranga Wanninayake looked for another bank card to get more money. You, Mr Arob, told the co-accused that Eranga Wanninayake had given you attitude. You, Mr Awo, then punched Eranga Wanninayake to the left eye, asking why he gave attitude to Mr Arob. It is these facts that relate to Charge 3 in relation to you, Mr Awo.
14Eranga Wanninayake found another bank card and told you, Mr Arob, that he had another $400 on it. You, Mr Arob, threatened Eranga Wanninayake that if he did not withdraw the $400 you would stab him and you concealed a knife down the back of your pants. You both returned to EzyMart on the corner of Katherine Place and Flinders Street where Eranga Wanninayake withdrew $400 over two transaction (two x $200) and gave it to you, Mr Arob. These facts also form part of Charge 1, armed robbery, in relation to you, Mr Arob, and Charge 1 robbery, in relation to you Mr Awo, Mr Hamka, Mr Chouikhen and Mr Missiris.
On this occasion you, Mr Arob entered EzyMart and stood behind Eranga Wanninayake and reminded him to hide his now bruised left eye. Whilst this was happening you, Mr Chouikhen, Mr Awo, Mr Missiris and Mr Hamka, continued to threaten the other victims, making comments such as: we will shank you; we will stab you low; we've been to gaol before, we don't care if we go back in; if you tell anybody about this, we know where you live; we will kill you; and go get the gun yeah, to each other.
15All five of you seemed satisfied with the amount of money withdrawn. You told Mr Garotti, Mr Eranga Wanninayake and Mr Tharinga Wanninayake that this was Mr Swinnerton's fault and then assaulted Mr Swinnerton by punching him. It is these facts that relate to Charge 4, common assault in relation to you, Mr Arob and Mr Awo, and Charge 2, common assault, in relation to you, Mr Hamka,
Mr Chouikhen and Mr Missiris.16After a few moments, you stopped and began to leave. You, Mr Awo threatened Tharanga Wanninayake by saying, 'You don't want your mum and dad to die, do you? I've been to gaol and I don't give a fuck.'
17Eranga Wanninayake asked you, Mr Arob if they could have their mobile phones back. You, Mr Arob, left and a short time later re-entered the apartment and handed the victims their mobile phones before leaving again.
18Eranga Wanninayake had $750 cash stolen in total.
19The victims attended the Melbourne East Police Station on 10 June 2020 to report the matter in person to Constable Daniel Walkley.
20The prosecution opening tendered provides some detail in relation to the subsequent investigation and the identification of each of you from the witnesses and from other sources such as CCTV and mobile phone records. As such, I will not reproduce those details in these sentencing remarks.
21
On 18 June 2020, at approximately 5.15 pm you, Mr Awo and Mr Missiris, attended the Reservoir police station together, after identifying yourselves on Victoria Police Media and were subsequently arrested and transported to the Melbourne West police station to be interviewed. During the interview you,
Mr Awo:
· identified yourself in the CCTV stills produced;
· denied knowing anyone other than Mr Missiris and Mr Chouikhen;
· did not remember any altercation and stated you got invited to drink, talk shit and laugh but could not remember about what;
· could not remember meeting Mr Arob or Mr Hamka prior to the party; and
· you asked Senior Constable Tunbridge if police had any footage of the allegations of the knives before stating that, if you were guilty of anything, you would not have handed yourself in.
22During interview you, Mr Missiris:
· identified yourself in the CCTV stills produced;
· stated that you were invited by two other boys to go downstairs to go to another apartment to party and waited out the front until you were invited in;
· identified this male as Mr Arob and stated Mr Awo knew Mr Arob;
· could not remember who the other male (being Mr Hamka) was;
· stated you were drinking and continually 'racking' (taking cocaine) and were pretty blind; and
· didn't remember anything else before being asked to leave the apartment.
23You, Mr Chouikhen, presented a short time later to the Preston police station and were arrested and transported to the Melbourne West police station. During interview you, Mr Chouikhen:
· identified yourself in the CCTV stills produced;
· identified Mr Missiris and Mr Awo in the CCTV stills;
· stated that one of the guys who kept coming in and out (referring to
Mr Arob) said there was a party going on downstairs; and· had no recollection of anything getting serious and sat by yourself as you did not want to affiliate with drugs.
24On 21 June 2020 at approximately 11.50 pm, you, Mr Arob, were arrested in Reservoir and transported to Melbourne West police station for interview. During the interview you, Mr Arob:
· identified yourself in the CCTV stills produced at both Aura Apartments and at EzyMart;
· denied all allegations and did not name the other co-accused in the CCTV;
· provided no comment in relation to you handing out kitchen knives to the other co-accused, stating no one had a knife;
· stated that Eranga Wanninayake wanted to withdraw money to buy cocaine off one of your friends from within the apartment; and
· stated that you went downstairs with Eranga Wanninayake, as a brawl had happened earlier involving other Sudanese males and Eranga Wanninayake didn't feel safe to go alone.
25On 19 June 2020, the legal representative of you, Mr Hamka, made contact with Senior Constable Tunbridge. Arrangements were made for an arrest by appointment on 24 June 2020. At approximately 9 am you, Mr Hamka, attended the Melbourne West police station and were arrested. At the time of the offending, you were wearing red runners and you were wearing the same runners when arrested. During interview you, Mr Hamka:
· identified yourself in the CCTV stills produced;
· stated that, 'Shit went sideways. I didn't touch any of the knives. I did not touch any weapons, I did not do any of that. Anything further that I do, I wish not to comment any further';
·
stated you did not know the person who you went to the apartment with
(Mr Arob) prior to this night out;
· did not comment when asked if any altercations, assaults or thefts occurred;
· denied knowledge of the other co-accused; and
· denied knowledge of taking any jacket, but later said, when cleaning out your apartment, that you located a jacket that wasn't yours but took it with you anyway.
26Knives were seized by police from the apartment and subsequently tested for DNA. There was a mixed DNA profile of four contributors located on one of the knife handles. The DNA evidence is 100 billion times more likely if you, Mr Arob, is a contributor.
Nature and gravity of the offending
27The most serious charge that arises from the incident on 7 June 2020 is armed robbery to which you, Mr Arob, have pleaded guilty. The basis of that charge is that you were in possession of a knife when demands were made of the victim Eranga Wanninayake. The remaining four of you have pleaded guilty to the charge of robbery in relation to the same victim, however, as noted above, the matter settled on the basis that each of you were not aware of the use of the weapon in Mr Arob's possession at the time the demands were made.
28
All five of you have pleaded guilty to common assault. In relation to you,
Mr Arob, Mr Missiris, Mr Hamka, Mr Chouikhen, and Mr Awo, the charges relate to victim Jonathan Swinnerton. In relation to you, Mr Awo, you face an additional common assault charge where Eranga Wanninayake is the victim.
29It is clear that you, Mr Arob, were in effect the ringleader in relation to this incident. The conduct seemed to commence with an offer by you to sell drugs to the victims, before then persuading Mr Wanninayake to return to the apartment with you. It is also you that opens the door to the apartment, allowing the other four co-offenders to enter, after which the events that form part of the robbery and armed robbery occur. Nonetheless, while it is clear that the conduct of you, Mr Arob, is more serious, the remaining four of you were actively involved by making threats to the victims and physically assaulting them.
30While no victim impact statements were tendered, it is self-evident that the victim of the armed robbery would have experienced fear when demands were made of him and also when you, Mr Arob, led him to the teller machines to withdraw further money under threat. Further, he and the second victim would undoubtedly have experienced some pain and discomfort from the physical assaults on them that give rise to the common assault charges, however, in all the circumstances, the common assault charges fall towards the lower end of seriousness.
31Looking at this offending more generally, it appears that apart from you, Mr Arob, the remaining four of you had become involved in an event which was much more serious than you may have anticipated. I accept also that there is little evidence of formal planning. Nonetheless, what ultimately resulted was serious conduct and, in my view, while your offending does not represent high end examples of robbery and armed robbery, the charges themselves remain inherently serious, which is also reflected in the maximum penalties imposed by Parliament.
Personal circumstances
Manuel Arob
32You are 22 years of age and were 20 at the time of the offending. You were born in Khartoum, Sudan and raised by your parents and you have eight siblings. At the age of five, you and your family left Sudan, fleeing the violent civil war there. You travelled to Egypt where you lived for a year. Whilst in Egypt, you were living in highly distressing circumstances on the streets and were subjected to abuse and violence. You and your family were granted refugee status by the Australian authorities and you all travelled to Melbourne.
33Your parents are now separated. Your mother, who lives with schizophrenia, works in the home and lives with some of your siblings. Your father is a factory worker. You attended Saint Gabriel's Primary School and attended secondary school at Parade College and then Peter Lalor Vocational College up until Year 11. You did well at school with hands on tasks and were a good footballer. You struggled academically and were subjected to racial bullying, which led to behavioural issues and you being involved in fights. You returned to Sudan at the age of 12 for a year and again were exposed to the upheaval and conflict. Upon your return, you began drinking alcohol.
34
You returned to Sudan again when you were 15 and were hospitalised for
10 days after contracting malaria. You began using ice upon your return and were drawn to an older anti-social peer group. During those periods when you were in Sudan, you witnessed further traumatic scenes from the serious conflict happening there. Understandably, the trauma you were exposed to in Sudan disrupted your schooling and you now have difficulty with reading, writing and numbers. What you witnessed has also left a legacy on you and your mental health. You have experienced flashbacks, nightmares, panic attacks and distressing memories, which I will refer to further below.
35Your criminal history began at the age of 18 in the Children's Court. You have been sentenced to a number of community based dispositions, including a Youth Supervision Order and a Community Correction Order before receiving terms of imprisonment.
36Around the age of 20, you started using heroin and have since used other drugs, including ice and cocaine. Drugs provided an escape from the hardship and worries you faced. You have a criminal history that commenced in 2017 in the Children's Court and includes a prior matter for armed robbery. You have also served a term of imprisonment in 2018 in relation to an injury charge. Prior to COVID-19 you were working at Supreme Heating installing solar heating systems for swimming pools. You lost your job due to the pandemic and stopped working in February 2020. It was at this point that you turned to drugs.
37You are currently taking antidepressant medication and are on the methadone program. Urinalysis screens were tendered on the plea, confirming that you have been drug free in custody. You engaged in counselling through Caraniche but have ceased this as you found it difficult to open up in a prison setting. You also engaged in psychological intervention through the Mobile Forensic Mental Health Service. Dr Delene Brookstein, senior clinical and forensic psychologist, prepared two letters which were tendered on the plea, in which she confirms you participated in 11 individual sessions focusing on trauma and anxiety. Two certificates of completion were also tendered on the plea in relation to a course in Kitchen Operations and Skills for Work. You have been unable to access any other courses, work or programs in custody due to the restrictions arising from the pandemic.
38A report was prepared by Ian McKinnon, consultant psychologist and tendered on the plea. Mr McKinnon provides a psychological assessment, ultimately concluding that you meet the clinical criteria for Complex Post Traumatic Stress disorder (CPTSD), a form of PTSD that arises in response to multiple traumas often suffered during the formative years and Poly Substance Dependence Disorder (PSDD). He is also of the view that your functional intelligence and general cognitive functioning fall within the normal range, although, you have poor literacy and numeracy skills. Mr McKinnon opines that, if you relapse into substance abuse, you may be at risk of suffering psychotic episodes and at considerable risk of developing schizophrenia. Mr McKinnon is also of the view that your CPSD and PSDD made highly significant contributions to your offending which I will discuss further below.
39Upon release from custody, you intend on living with your family in Reservoir, none of whom have been involved in the criminal justice system. You also plan to get assessed in relation to the NDIS so that you can be assisted by support workers for tasks such as transport and filling out administrative forms. You hope to return to playing football and there is the opportunity for you to work as a landscaper through a friend of yours.
Moussa Hamka
40Turning to you, Mr Hamka. You are now 27 years of age and were 26 at the time of the offending. You were raised in Melbourne with your sister and brother. You attended Lalor West Primary School and completed secondary school at Lalor Secondary College. You were a strong student and were the first in your family to attend university. You completed two and a half years of a civil engineering degree at Swinburne University. You were also working part-time at Coles from the age of 15 to 20. You did not complete this degree as engineering no longer resonated with you. You obtained full-time employment driving for Moon Transport and transporting furniture. You then worked driving a freezer truck for United Foods before working as a traffic controller. On your 21st birthday you were introduced to cocaine by friends and you subsequently developed a cocaine habit that was continuing at the time of the offending.
41A number of character references prepared by your cousins, aunty and friend were tendered on the plea. They describe you as a family orientated man who is reliable and eager to assist your family and community members. The writers find your offending entirely out of character with the person they know and are confident that you will learn from this experience.
42You have been in custody on this matter for some 17 months and I was informed on the plea that you are also on remand in relation to another matter that is listed for trial next year. This matter is relevant to the type of sentence I impose and will be discussed further below.
Mohamad Awo
43Turning to you, Mr Awo. You are 23 years of age and were 22 at the time of the offending. You were born in Melbourne and your parents separated when you were young. You live with your mother and some of your siblings. Your parents had fled the civil war in Somalia and settled in Reservoir. You began drinking alcohol and using illicit substances around the age of 15 and your substance use has often been in circumstances of social pressure. Cocaine has been particularly problematic for you. In the lead up to this offending, you were using cocaine and cannabis.
44After your arrest, you served 28 days on remand, which was your first experience of custody. You were exposed to the trauma of witnessing a fellow prisoner and friend attempting to take his own life. You have had nightmares, flashbacks and sleep disturbance since. You were released on bail on the condition that you participate in the Court Integrated Services Program (CISP). You have been living with your mother, siblings and grandfather who has dementia. You care for your grandfather and also assist your siblings when they are attending school virtually from home. You are committed to your Muslim faith and pray several times a day. You have also turned to a more pro-social peer group.
45You are currently completing an apprenticeship at the Darebin Council, working in the parks and garden section. In this role you have been subjected to bulling by your manager. Your work with the council was temporarily suspended during the pandemic and you have started your own garden labouring business with your business partner, Liam Tomkinson.
46You have completed sessions with an alcohol and drug counsellor from the Australian Community Support Organisation (ACSO). In a letter prepared by a forensic counsellor from ACSO, they state you have successfully engaged in four counselling sessions, completed a relapse prevention plan and learned emotional regulation techniques. You also engaged in 18 sessions with Darren Perry, psychologist, largely to manage your anxiety stemming from these proceedings and the prospect of a criminal record. Mr Perry states that you have ceased socialising with your previous friendship group and have denied substance use. In Mr Perry's opinion, whilst your symptoms of anxiety have reduced and your mental state has improved, you are experiencing Post Traumatic Stress Disorder arising from witnessing the attempted suicide.
47Further, you are supported by the Youth Activating Youth Inc (YAY) Change Program, which provides mentorship, case management, referrals and job support to youth involved in the criminal justice system. Tendered on the plea was a letter from YAY's director, Ahmed Hassan, who has known you for seven years. Mr Hassan states that you have learned a lesson from your offending and he outlines the progress you have made, having sought support. Mr Hassan also describes you as a promising community leader who can help other vulnerable young people.
48A character reference from your friend of ten years Andy Watt was also tendered on the plea. Mr Watt speaks of the charitable community work you have undertaken and your dedication to your family. Mr Watt manages Harmony Homecare and speaks of the contractor services you have provided to the organisation's elderly clients in aged care. Further, references were tendered from Liam Tomkinson who has known you for 16 years, who speaks of your generosity and support as a work colleague and friend, and from your mother who confirms her ongoing support.
Bilal Chouikhen
49Turning to you, Mr Chouikhen. You are now 26 years of age and were 25 at the time of the offending. Your parents emigrated from Morocco. You were raised in Coburg with your two brothers. Your childhood was largely positive and your family is a close one. You are all practising Muslims. You attended Newlands Primary School and completed VCE at William Ruthven Secondary College. You struggled to fit in socially and had issues building self-esteem. You were a strong student but your studies declined towards the end of secondary school.
50You began an electrician pre-apprenticeship but did not complete it. You completed a construction certificate at TAFE and a Diploma of Business and of Management from the Australian Institute of Personal Trainers. You worked at ALDI, firstly, as a trainee and then you were promoted to assistant store manager. You enjoyed your work at ALDI and worked there up until your remand for this offending.
51You began drinking alcohol at the age of 19, having been introduced to it by peers. At the age of 24, your use of alcohol increased and you would regularly binge drink on the weekends. In a way, alcohol was a vehicle to social acceptance and helped bolster your self-esteem in social settings. You were not practising your faith leading up to the offending and had started using cannabis and cocaine. You were heavily intoxicated at the time of this offending.
52Having been charged with this offending has triggered significant distress, anxiety and depression for you and you have experienced suicidal ideation. You found the 26 days on remand, your first experience of custody, particularly difficult. You were released on bail in June 2020 on the condition that you participate in the CISP program. You have been working casually at a warehouse and living with your parents and siblings at home. Your mother has battled ovarian cancer and lives with arthritis and your father has had multiple spinal surgeries. They are both in receipt of the disability support pension.
53You have attended case management appointments and your CISP case manager Ashton Brand, describes you as a leader. You have also engaged in drug and alcohol counselling which you have found helpful, especially in relation to substance use, as you have not used drugs or alcohol since being on bail. Whilst you completed CISP, you have continued on your trajectory of rehabilitation. You are employed casually in warehousing and are currently working full-time.
54You have been volunteering at the Preston Mosque, which your family is strongly connected to. Members of the Islamic Society of Victoria prepared a letter in support of you. They stated that, in recognition of your commitment and initiative in the volunteering role, you were offered a part-time job as youth engagement officer. It is clear you are highly valued at the Mosque and have been instrumental in supporting youth and contributing to initiatives to assist the wider community to connect and share their concerns.
55Your mother prepared a letter to the Court in support of you. She writes of the shock she felt upon learning of your alcohol and drug use and your offending. She articulates your inherent qualities of respect and care for others and confirms that you have the support and love of your whole family as you pursue a change in your life. Your aunty and a number of friends also prepared character references which were tendered on the plea. The authors describe you as a compassionate and hardworking man who regularly volunteers to assist others. What emerges from these letters is that you are highly regarded by those in your community and that your offending was entirely out of character.
56
A report was prepared by Dr Matthew Barth psychologist, and tendered.
Dr Barth writes that you are currently experiencing ongoing anxiety-related symptoms, including sleep disturbance. These symptoms mostly arise from this matter and the prospect of imprisonment and separation from your family. However, you have not been diagnosed with any particular psychological disorder.
Harrison Missiris
57Turning to you, Mr Missiris. You are 19 years of age and were 18 at the time of the offending. You were born in Sydney and have two older siblings. When you were nine months old, your parents separated and the breakdown of your parents' relationship was acrimonious. You lived with your father in Sydney until the age of 10 and, during this period, you were exposed to family violence and were assaulted by your father. At the age of 10, you temporarily returned to your mother's care in Melbourne, due to concerns about your father's behaviour and, thereafter, moved between the two cities. This inevitably disrupted your schooling and meant you were isolated from your siblings, which compounded the family violence you were subjected to.
58You engaged in case management through Austin Health to manage your emotional dysregulation and behavioural difficulties. When you were 15, you moved to Melbourne to permanently live with your mother. Your mother works as an administration officer at Austin Health. You completed secondary school up to Year 9 at Greensborough Secondary College and continued your education at Melbourne Polytechnic. You have substantially completed an apprenticeship in carpentry and have worked in the construction industry since you were 15. Until late 2020 you were working with City-Side Projects which involved completing projects interstate and in New Zealand.
59In November 2020, you began working full time at BD Building Australia. Since June this year, you have been working as a warehouse labourer at MC Labour full-time. The owner and managing director of MC Labour, Marc Lunedei, prepared a letter which was tendered on the plea. Mr Lunedei describes you as a diligent and dedicated employee and a person of integrity. Mr Lunedei confirms that your employment will remain after this matter has concluded.
60Leading up to the offending, you had been drinking and using drugs, in particular cocaine, and were meeting new people, having recently broken up with your then girlfriend.
61On 30 June 2020 you began on the Youth Justice Supervised Bail Program. You have been engaging very well with the program, which includes weekly scheduled supervision appointments. Between July and September 2020, you engaged in seven drug and alcohol education sessions with the Youth Support & Advocacy Service (YSAS). Walter Dowie and Megan Mathieson of YSAS prepared a letter to the Court, in which they state you have exhibited a high degree of insight into your poor lifestyle choices and have developed relapse prevention strategies in order to remain abstinent.
62You are also managing your mental health by engaging in online counselling through MensLine Australia. You continue to live with your mother, stepfather and younger half-brother in Greensborough. You are very close with your three siblings.
63A letter from your mother was tendered on the plea. Your mother writes of how the family violence and disruption you experienced as a child has shaped you and that you are an insecure person who seeks to fit in and be included. She also speaks highly of your skill and passion for construction and how you have applied yourself whilst being on bail. You look forward to completing your apprenticeship and potentially resuming a decking and landscaping small business which you had established last year.
Sentencing considerations
64I will commence with matters common to each of you. First, I take into account your pleas of guilty. In relation to each of you, your pleas were entered after a case conference before me, following sensible discussions and cooperation between the parties. While a contested committal took place in the Magistrates' Court, the charges you were all facing at that time were substantially different from the charges to which you have each pleaded guilty.
65Your pleas have significant utilitarian value, as they have spared the time and resources of a jury trial and witnesses from having to give evidence again. Your pleas carry additional weight which must be reflected in a further amelioration in sentence, as the pleas have been entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1] In the circumstances, your willingness to facilitate the course of justice is a matter I take into account in favour of you all.
[1] Worboyes v The Queen [2021] VSCA 169 at [39].
66As to remorse, in relation to each of you, having read the materials submitted, most particularly the testimonials tendered on behalf of each of you, in my view, you have all demonstrated insight in relation to the impact of your offending on the victims. While the nature of that expression naturally varies between you, I accept that you have each expressed a degree of genuine remorse.
67Youth is also of relevance in this matter. You are all young adults, in particular you, Mr Missiris, being 19 years of age, you, Mr Arob, being 22 years of age, and you, Mr Awo, being 23 years of age. You, Mr Hamka, and you, Mr Chouikhen, are also relatively young men. While your circumstances and ages differ and must be individually factored in the sentencing equation, in relation to each of you, I take into account your youth and the importance of rehabilitation. In your case, Mr Arob, you have significant and relevant prior history and, therefore, the force of the principles in relation to youth must be curtailed to some extent. In this context, I also take into account that you, Mr Hamka, also have some prior criminal history, however, you have not had a conviction recorded against you.
68In relation to you, Mr Arob and Mr Hamka, your time on remand has been particularly onerous, as you entered custody last year when the restrictive conditions arising from the COVID-19 pandemic were in place. You have been in custody since. Prisoners have been subjected to lockdowns, quarantine periods and restrictions on personal visits, education and rehabilitative programs. Restrictions may remain for some time. I take these matters into account in relation to both of you. This factor is also of some relevance in relation to you, Mr Chouikhen, and you Mr Awo, as you served 26 and 28 days in custody respectively, before being granted bail.
69
It is undoubtedly the case that general deterrence is the prominent sentencing consideration in this instance. Denunciation of your conduct is also relevant. Specific deterrence caries limited weight in relation to your, Mr Missiris,
Mr Chouikhen and Mr Awo, as you have come before the court with no prior criminal history but must be given weight in relation to you, Mr Arob, and you,
Mr Hamka, taking into account the differences in your history and circumstances.
Manuel Arob
70Turning to matters specific to you, Mr Arob. Mr Barker who appeared on your behalf, submitted that the principles in Verdins are enlivened in this instance, primarily in relation to your diagnosis of CPTSD. Mr McKinnon is of the view that your CPTSD, together with your poly substance dependence disorder, made 'highly significant contributions to your offending'. You reported to Mr McKinnon that you became involved in this offence in order to finance your substance abuse and you were under the influence of alcohol and cocaine on the night. Therefore, as is often the case, it is difficult to determine the degree to which your CPTSD contributed to your conduct. I do accept, however, that you have suffered significant trauma in your younger years and your CPTSD is a debilitating condition that was extant at the time of the offending.
71In the circumstances, I accept that your moral culpability is able to be reduced to some extent as a result of your CPTSD and that general and specific deterrence can also be moderated to a degree. As to Verdins principles 5 and 6, I accept that prison would weigh more heavily on you than it would for another offender not suffering your condition, however, the evidence does not establish that your condition would deteriorate in custody.
72Mr Barker submitted that your very difficult and disadvantaged background is a matter that should be taken into account. Your younger years leading up to being granted refugee status were littered with trauma. You then suffered family breakdown and you had significant instability throughout your teen years. In the circumstances, I accept that your background of social disadvantage is able to be taken into account in mitigation.
73As to your prospects of rehabilitation, it is clear from the reports and references tendered on your behalf that you have gained significant insight while in custody over the past 17 months and have availed yourself of counselling in difficult circumstances. Mr McKinnon is of the opinion that you do not possess an inherently antisocial or criminal character, but rather, you present as a troubled young man coming from a very challenging personal background and that you have expressed a genuine desire to reform. In the circumstances, I accept that your prospects of rehabilitation are able to be assessed positively.
Moussa Hamka
74Turning to matters specific to you Mr Hamka. Mr Sala who appeared on your behalf, submitted that, while your prior criminal history contains a number of matters in the Magistrates' Court, sentences imposed have all been without conviction, indicating that the offending was at the lower end of seriousness. Further, that although you have appeared on five occasions, it may be inferred that there were other matters in mitigation that gave rise to the merciful dispositions.
75It was submitted on your behalf that the reference material demonstrates that you have strong support in the community and potential to get your life back on track. In all the circumstances, in my view your prospects of rehabilitation can be assessed positively.
76In further correspondence to the court following the plea, Mr Sala submitted that at the time of the commission of these offences, you were on bail for unrelated matters, which I take into account. As noted above, you are also on remand in relation to a matter that is going to trial next year. As you are contesting that matter, it does not impact my assessment of your prospects, however, it does have practical implications in relation to the type of sentence I impose.
Mohamed Awo
77Turning to matters specific to you Mr Awo. Mr Backwell, who appeared on your behalf, submitted that before the offending, you had, in effect, lost your way. You had an ongoing drug problem which you have now addressed. As noted above, you have appropriately engaged in services, including long-term counselling, and you have turned your life around. Having considered the materials tendered, in my view, your prospects of rehabilitation are very good.
78Mr Backwell submitted that, in all the circumstances, including your lack of criminal history and employment circumstances, a conviction ought not be recorded. In the letter from your business partner Mr Tomkinson, he states that you have been instrumental in securing contracts and building the business to its now thriving position. He anticipates the fact that the growth of the business and your future involvement in it may be compromised by you having a criminal history.
79While I accept that your prospects are positive, the offending is nonetheless serious. In my view, a conviction ought be recorded in this instance.
Bilal Chouikhen
80Turning to matters specific to you Mr Chouikhen.
81Mr Brown who appeared on your behalf, submitted that you have gained a degree of insight into how substance use has left you susceptible to impulsivity and poor decision making. You have taken active steps to address your alcohol and drug issues whilst on CISP bail and have demonstrated a real determination to prevent any further criminal conduct in the future and you have no prior criminal history. In the circumstances, I assess your prospects of rehabilitation as very good.
82It was submitted that limb 6 of Verdins has application in the sense that imprisonment would have a significant adverse effect on your mental health. As was discussed at the plea, in my view, the evidence of Dr Barth does not support that conclusion. Nonetheless, I take into account that you may be more vulnerable if you were to serve a further period in custody.
Harrison Missiris
83Turning to matters specific to you Mr Missiris. At 18 you were the youngest of the group on the night of the offending and you come before the court with no prior criminal history and no subsequent offending. As noted above, you have positively engaged in Youth Justice and YSAS for the past 17 months and your risk of substance use relapse is low. In the circumstances, in my view, your prospects of rehabilitation are very good.
84Ms Sutherland who appeared on your behalf, submitted that, as you have effectively completed drug counselling and Youth Justice supervised bail, the conditions of a Community Correction Order would be similar and therefore are not required. As such, Ms Sutherland submitted that an adjourned undertaking together with a fine, is the appropriate disposition. However, while I accept that you have good prospects, I must balance a number of matters, including the seriousness of the offending, and in my view, an adjourned undertaking together with a fine is not an appropriate disposition.
Community correction assessment
85With the exception of Mr Hamka, I had each of you assessed for a Community Correction Order and you have each been assessed as suitable. Balancing the relevant sentencing considerations, in my view, a Community Correction Order is the most appropriate disposition for you, Mr Chouikhen, Mr Awo and Mr Missiris. I take into account that you, Mr Chouikhen, were on remand for 26 days and you, Mr Awo, were on remand for 28 days. You, Mr Missiris, only spent one day on remand. The three of you have also demonstrated that you are committed to your rehabilitation. While the recommended conditions vary between you, balancing all matters, in relation to you Mr Chouikhen, Mr Awo and Mr Missiris, as you have all successfully engaged in sustained drug rehabilitation and have demonstrated that you have moved on, in my view, further treatment conditions are not required.
86
In relation to you, Mr Arob, you will be sentenced to a combination sentence pursuant to s 44 of the Sentencing Act1991. The Community Correction Order in your case will contain a number of therapeutic conditions. As to you,
Mr Hamka, given the circumstances of your remand, you will be sentenced to a straight term of imprisonment.
Sentence
87Mr Arob, would you please stand.
88Manuel Arob, on the charge of armed robbery, you are convicted and sentenced to 2 years imprisonment. On the charge of common assault, you are convicted and sentenced to 3 months imprisonment which will be concurrent. Therefore, you will be required to serve 2 years as the prison component of the combination sentence pursuant to s 44.
89Upon your release, you will be placed on a Community Correction Order for a period of 18 months. In addition to the standard conditions, you will be required to undergo treatment for drug and alcohol abuse, treatment in relation to mental health, and you will be subject to supervision.
90Pursuant to s 18 of the Sentencing Act1991, I declare that 529 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today. Therefore, after the s 18 declaration, the result is a term of imprisonment less than one year which complies with s 44.
91Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 3 years and 6 months imprisonment with a non-parole period of 2 years.
92Mr Hamka please stand.
93
Moussa Hamka, on the charge of robbery you are convicted and sentenced to
10 months imprisonment. On the charge of common assault, you are convicted and sentenced to 3 months imprisonment which will be concurrent. That is a straight sentence.
94Pursuant to s 18 of the Sentencing Act1991, I declare that 525 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
95Pursuant to s 6AAA of the Sentencing Act1991, while in your case the exercise is somewhat difficult, I indicate that had you not pleaded guilty, I would have sentenced you to a combination sentence requiring you to serve 12 months in custody, followed by a Community Correction Order.
96Mr Chouikhen, Mr Awo and Mr Missiris, please stand.
97Bilal Chouikhen, Mohamed Awo and Harrison Missiris, on the charges of robbery and common assault, you are each convicted and placed on a Community Correction Order for a period of 18 months. Pursuant to s 40 of the Sentencing Act 1991, this is an aggregate order in relation to each of you, as the offences to which you have pleaded guilty are part of a series of offences of the same or similar character. In addition to the standard conditions, you will each be required to complete 150 hours of unpaid community work.
98Pursuant to s 6AAA of the Sentencing Act1991, I indicate that had you not pleaded guilty, I would have sentenced each of you to a combination sentence requiring you to serve 12 months in custody, followed by a Community Correction Order.
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