Director of Public Prosecutions v Bakhit

[2023] VCC 1513

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-01751

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL BAKHIT

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2023, 24 August 2023
DATE OF SENTENCE:	24 August 2023
CASE MAY BE CITED AS:	DPP v Bakhit
MEDIUM NEUTRAL CITATION:	[2023] VCC 1513

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:  Plea of guilty – 1 charge of armed robbery – 1 charge of violent disorder – 1 charge theft of a motor vehicle - sentence indication – youthful offender – parity – non-association – high risk of reoffending – rehabilitation - delay

Legislation Cited:  Crimes Act 1958 (Vic), s 74(1), s 75A, s 195I

Cases Cited:R v Cockerell [2021] VSCA 239, R v Renzella [1997] 2 VR 88

Sentence:182 days’ imprisonment and 2 year Community Corrections Order – s 6AAA declaration – 3 years’ 6 months’ imprisonment with a non-parole period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. McWilliams	Office of Public Prosecutions
For the Accused	Mr C. Oldham	Slades & Parsons

HIS HONOUR:

1Mr Samuel Bakhit, you have pleaded guilty to one charge of armed robbery, maximum penalty 25 years' imprisonment; one charge of violent disorder, maximum penalty 10 years' imprisonment, one charge of theft of a motor vehicle, and a summary offence of possession of a weapon. You have also admitted prior convictions. 

2I am required to sentence you for those offences.  I am able to that relatively summarily given the comprehensive submissions made by both parties and in particular the submissions on the plea by your counsel, Mr Oldham, which I have marked and exhibited.

Circumstances Of Offending

3The offending occurred in the early hours of the morning of 7 January 2022 in the Cranbourne business district near the Amazing Grace Hotel. You, along with a number of young males of African descent, committed a shocking armed robbery and car theft on an innocent motorist who was just going about his business, going home to work in the early hours of the morning.

4The event commenced when the complainant's 2012 Mercedes sedan was followed by a dark SUV and blocked from behind.  A second gold coloured Toyota drove onto the wrong side of the road and blocked the vehicle from the front.  Another vehicle, a Holden Captiva, was in the area and was used by you to flee the scene.

5When the complainant found that his vehicle was blocked, he locked it and sought to run away from his vehicle, taking the keys with him.  He was chased by a group of up to 16 individuals.  One kicked him from behind, causing him to fall to the ground.  He was then surrounded, punched and kicked to the head and back, and at least three of the group used knives to stab the complainant in the lower back.

6These events constitute the offence of violent disorder to which you have pleaded guilty, along with your co-offenders.  Several of your other co-accused who are named in the indictment have been dealt with in the Children's Court and, as they are children, cannot be named in any publicity.

7The armed robbery in company involved the complainant being robbed of his car keys, his car was stolen, and he was stripped of his possessions, including his shoes, his work gloves and his phone.  In his car was a bag containing his driver's licence, phone charger, and an ATM card.  The conduct involving the armed robbery was captured on CCTV footage.  Subsequently the stolen car was, a few weeks later, found torched.

8Your individual contribution, as identified from the CCTV footage during the robbery, included chasing the complainant to the hotel car park; punching him as he attempted to get away causing him to fall to the ground; kicking him twice while he was on the ground; slashing the complainant across the lower back four times with a knife, and kicking him once more in the head. You then entered the Holden Capitva with co-offenders and were driven away.

Subsequent events

9In a comprehensive investigation the police used compilations of phone videos seized from your co-offenders, as well as phone tracking in order to identify some of the co-offenders, including yourself.

10At 7.51 am, you were seen in the Holden Captiva involved in the event with two co-offenders.  A short time later the three of you were arrested in Cranbourne East.  Your co-offenders were found in possession of some of the complainant's property. At the time of your arrest you were wearing blood-stained shoes. DNA analysis confirmed the presence of the complainant’s blood on your shoes. At the time of your arrest you were also in possession of keys to the Holden Captiva.

11You have pleaded guilty to the offence of armed robbery, in company with the other youths. You have also pleaded guilty to the charge of violent disorder, contrary to s195I of the Crimes Act. This is a new offence which codifies the old offence of affray, and in that offence, you, along with a number of other Sudanese males about the same age as you, have agreed that you engaged in violent offending, violent assault on the complainant, the victim, Mr Masofa, in public, at night, in company – and he was injured in the course of it. 

12It is a shocking crime, it is a gang crime, it is a crime that youthful offenders like you are all too frequently engaged in where you get peer group pressure – someone suggests we are going to do something and it is done and you all join in.  That seems clear from the prosecution opening because you and the other offenders who have been identified were sharing videos of your conduct in the car subsequent to the offending. These videos allowed you and some of your co-offenders to be identified.

13Not surprisingly, the offending has had a major impact on the complainant.  He has lost his car, he suffered injuries, he was taken to hospital and he has filed a victim impact statement indicating the impact on him.  His girlfriend broke up with him, not because of this but that caused him further upset. He had to pay for an ambulance. He was having trouble sleeping in the period immediately after it, and he had to go to hospital. 

14He was 21 at the time, and he had to take a week off work.  He has got over the injuries but he is still stuck with a $15,000 debt for the car because he financed it and had not insured it.  He is now working extra shifts to pay off a car that he does not even own, a car that has now been torched by you or by one of your mates as a follow-up to this theft.

15The victim says in the final part of his victim impact statement, 'After this crime I feel really uncomfortable around groups of younger people, especially around the bus stop near the Cranbourne shopping centre near where this happened.'  He says, 'This crime happened about three or four minutes' walk from my house. I walk my dog around the area and drive past where the crime happened every day on the way to and from work and it reminds me of this crime.'

16Your offending as part of this group has had a long-term continuing impact on him because he still lives in the Cranbourne are.  You did not even live in the area at the time.

17The seriousness of the offending is reflected by the impact, just the sheer event that is captured on the CCTV footage – shocking to be seen in the photographs that are part of the prosecution opening.

Criminal History

18You were 18 and-a-half when this offending occurred and you have a criminal record, which is relevant, albeit it was in the Children's Court. You were not long out of a Children's Court disposition when this offending occurred.  That disposition was that you were dealt for offences including four thefts of a motor vehicle, a home invasion, aggravated home invasion, unlicensed driving, committing an indictable offence whilst on bail, driving at a speed dangerous, recklessly causing injury by three, robbery, attempted robbery, affray, committing an indictable offence while on bail, armed robbery and assault with intention to rob, in the Children's Court on 29 November 2021, which is about five weeks before this event occurred.  At that time you had been in the Youth Justice Centre for some time and you were ordered to serve a 10 month period but there was 273 days declared as having been reckoned.

19So you had been in the criminal justice system as a child shortly before this happened and you had been in custody in the Youth Justice system. No sooner had you got out of it than five weeks' later you commit this offending.

20As I said to your counsel in the course of the plea, it is well known to the courts, to lawyers, to judges, to social workers, to magistrates, that the period, the couple of months after someone leaves custody is when they are at high risk of reoffending.  Obviously when you were released from the Youth Justice system you fell through the cracks, you got back in with this group of mates down there in Cranbourne and this offending happened. 

21Your prior convictions, albeit in the Children's Court, are relevant, go to your culpability and they show why, as I am going to indicate in a moment, you are very much at a fork in the road in your life.

22The chronology on this matter is that you were in custody after this offending, and you now have 182 days of pre-sentence detention for this offending, and in addition to that, in February of this year you had a period of 47 days where you were remanded in custody on an offence that you were ultimately not charged with.

23That pre-sentence detention (Renzella time[1]) is in the bank and I am going to take it into account in determining what to do with you.  And as I indicated to your counsel and to the prosecutor in this matter, you were in custody for 182 days after you were arrested and that was during the Covid pandemic, it was on remand, it was in an adult prison – the first time you have been in an adult prison – and so that is very onerous custody for someone of your age because you were only 19 at the time.

[1]R v Renzella [1997] 2 VR 88

24I have taken that into account as being worth more than a normal period in custody for a 25 year old, and the lockdown and Covid is a factor in that, plus the 47 days, which does not relate to this offending but you are entitled to get credit for it.  When I put all that together I formed the view that I can deal with you for this offence of armed robbery by way of a sentence of imprisonment of 182 days and I declare that you served that time. 

25That then leaves the other two charges to deal with - the offence of car theft and the offence of violent disorder.  And as I discussed with your counsel and the prosecutor in the sentence indication, I am proposing to impose a community corrections order as an aggregate sentence for two years on that offending.  For the possession of the weapon, you are convicted and fined $500.

Personal Circumstances

26I just would like to explain or recite for the benefit of everyone your personal circumstances which are set out in the plea submission by your counsel.

27You are now aged 20. You were not born in Australia.  You came here when you were aged two with your family as humanitarian refugees from Sudan.  It is not clear where your father is but you have other siblings who live in the Frankston area. 

28You went to school and you got to Year 11.  It seems you do not have your VCE but you have a VET certificate and a VCAL certificate. You are exploring getting into some form of career, and you have been in employment for some time.  You have been living with your girlfriend in more recent times, but you are moving back in with your mother in Frankston at the moment.

29Your counsel, Mr Oldham, has made a comprehensive submission to me as to what I should do with you and he has put to me that in the last 12 months or so since you have been on supervised bail, you have made progress, although you had the 47 days in custody there earlier this year.  If I send you to gaol then that would just set back that progress you have made.

30I have looked at the reports from the bail supervision that you are under, and you have been responding well to the bail conditions.  They have been keeping an eye on you, supervising you, and you have been able to keep on the straight and narrow since you were arrested for this offending.  It is clear from the case that Mr Oldham has raised that to send you back would be against the community interest because it would retard the progress you have made.  There is good authority, and he has referred that to me in his submission, that if a court can avoid stopping the progress of rehabilitation for a young offender then that should be avoided.[2]

[2]R v Cockerell [2001] VSCA 239

31I have acceded to his submission because I have taken into account your age.  That period in adult custody that I just referred to before, in the Covid environment and being on remand is, as I said, a significant punishment.  I have also taken into account that you have pleaded guilty, you have accepted responsibility, you have facilitated the course of justice – poor Mr Masofa does not have to come along to court to give evidence and be cross-examined and re-live the offending.  So they are all matters that I take into account in your favour.

32Your position at the moment is at age 20, what are you going to do?  Are you going to take the high road of crime or are you going to take a road to move into our community?  You have a girlfriend, get yourself into a solid bit of employment or get another qualification to get a job.  Get a job down there in working in construction.  You are 20, starting to mature, so you have to move into being a law-abiding citizen.

33I am required on behalf of the community to see whether I can facilitate that, and the courts have said that if a court can craft a disposition that would encourage your rehabilitation back into the community, away from crime, that should be done if at all possible.

34That is why I am proposing to impose this two-year community corrections order on you.  Mr Oldham has explained it to you.  It has a number of different conditions. For the next two years you are going to be under an order, an order of this Court, and you are going to be supervised by someone from the Frankston Community Corrections Office.  That requires you to obey their orders.  If they tell you to turn up, you have to turn up.  If they tell you that you have to go to a program for reoffending or drug and alcohol, or even the Youth Pivot program that you have been on previously, you have to do it.  Do you understand?

35OFFENDER:  Yeah.

36HIS HONOUR:  You have to report to the Frankston office within two business days, so that is by Monday of next week.  You cannot leave Victoria without getting their permission, you cannot change your address without their permission.  It is like the bail program that you have been on so you know what is required.  If they ask you to do drug testing, you have to provide a sample or whatever other method they get to do it, or alcohol testing.  If they suggest you go to a program, you have to do it.

37As a further condition I am ordering that you not associate with some of the people that you were involved in this offending with for the next two years, because they are bad company.  What does bad company mean, do you know?

38OFFENDER:  It doesn't end up well.

39HIS HONOUR:  It doesn’t end up well, that's right.  They are the sort of people that commit crime and so if you are engaging with them you will be committing crime too.  That is why I am ordering you not to associate with them for the next two years, do you understand?

40OFFENDER:  Yes.

41HIS HONOUR:  Now I said to you before that you were in a fork in the road.  A fork in the road means your life is at a juncture, and you have to decide whether you want to move forward as a law-abiding citizen, a productive citizen, or go back to committing crime, which is what you did that led you to the Children's Court and led you to this court.  So it is your choice, it is your choice, it is a fork in the road. 

42So I am giving you the opportunity, the last opportunity, to do that, to take the high road.  And part of that is that I am going to supervise you, I am going to engage in what is called judicial monitoring, which means periodically I am going to drag you back into this courtroom, or into whatever courtroom I am based, and ask you how you are going.  I will have a report from the Office of Corrections and they will tell me how you are going, whether you are turning up to the programs.  Do you understand what I mean?

43OFFENDER:  Yes.

44HIS HONOUR:  And so the first time I want you to come back here is on 15 November, which is about three months away, and I will see how you go for the next three months.  I want to encourage you to put this in the past, put this crime in the past.  You are in the greatest country in the world.  People give their arm and leg to get to Australia and you are lucky enough to be here and look what you have done in the last two years, you have blown it all by all that crime that you have committed in the Children's Court and the crime that I am dealing with here. 

45So I am giving you this last opportunity, because you are a young person . You were 18 and-a-half when you committed this offending, you are now 20, your brain is still maturing. It might not mature until you are in your mid to late 20s.  So that is why the order that I am making is emphasising your ability to choose the correct road.

46Part of being on a community corrections order for the next two years is if you commit a crime that carries a term of imprisonment, a serious crime, including driving without a licence, theft, that breaches the order.  And if you breach the order, has Mr Oldham told you what might happen to you?

47OFFENDER:  Yeah, incarceration.

48HIS HONOUR:  That's right.  It is not automatic but most likely. And you know what it is like, it's not a pleasant place, is it?

49OFFENDER:  No.

50HIS HONOUR:  That's right.  Not much sunshine out there.  You have had that experience and I am giving you this last chance so that you can put it in the past.  Try and get into some form of work that pays money that occupies your time and then move forward and keep away from all these people that might contact you and say oh, we are going to steal a car and drive all around Melbourne.  You probably know people who are involved but you have to keep away from that sort of conduct.  Do you understand?

51OFFENDER:  Yes.

52HIS HONOUR:  Because if you do commit another offence similar to this, or even lesser than this, you will be going away for a significant period of time.  You will be breaching this order that I am putting you on and you will be re-sentenced for the offence of violent disorder and theft of the motorcar. 

53You have the support of your mother, you have a roof over your head, you have engaged in a number of programs, you got to Year 11, you have got your white card. They are screaming out in all the suburbs of Melbourne for able-bodied males your age, or any age, to go and do some work. Get some money, get paid, rather than committing crime.  This is your big opportunity.

54I have taken into account all the matters that were put by Mr Oldham, and as Mr McWilliams, the prosecutor put to me there before lunch, on one view this is a merciful sentence.  I am being merciful to you on behalf of the community.  I do not want you to let me down. I am giving you this opportunity, and if you blow it, that is gone.  But you know what is going to happen to you, do you not?

55OFFENDER:  Yeah.

56HIS HONOUR:  Right.  Now I have to declare that if you had not have pleaded guilty to these offences, I would have imposed a sentence of three-and-a-half years' imprisonment on you with a non-parole period of two years.

57I have made an order that the knife be forfeited. And I want to make it clear that your conduct in turning up at that event with a knife was absolutely outrageous.  There are far too many people your age hanging around in shopping centres, etc, in the outer suburbs of Melbourne with knives on them.  It is illegal.  And then of course what happens they are drawn when there is a fight.  You saw what happens here, and the complainant, Mr Masofa, he gets cuts in his back from your conduct.  It was absolutely outrageous, and you have to understand it is totally unacceptable.  Do you agree?

58OFFENDER:  Yeah.

59HIS HONOUR:  Right.  Well do not say you were not told in the event you come before me again, okay?  Because I will have a transcript of this and you will get the transcript in due course.

60I want to thank counsel in this matter.

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