Director of Public Prosecutions v Burma
[2025] VCC 816
•16 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-00954 / CR-25-00192
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BURMA, Mohammad |
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JUDGE: | His Honour Judge Palmer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 June 2025 | |
DATE OF SENTENCE: | 16 June 2025 | |
CASE MAY BE CITED AS: | DPP v Burma | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 816 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Theft of motor vehicle – prohibited person possess firearm – using firearm in public place – arson – damaging property – serious offending – combination sentence open due to mitigatory factors – offender a refugee - exposure to violence – drug abuse – strong need for specific deterrence – totality – young offender – combination sentence open.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991;
Cases Cited:Dpp v Bol [2024] VCC 1465; DPP v Nienkel [2024] VCC 1173; Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 169 A Crim R 581; R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) A Crim R 369.
Sentence: 23 months imprisonment with a two year Community Corrections Order
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APPEARANCES: | Counsel | Solicitors |
| For the OPP | Ms F Holmes | Office of Public Prosecutions |
| For the Accused | Mr V Vuu | Sveit Lawyers |
HIS HONOUR:
Circumstances of offending
Mohammad Burma, you have pleaded guilty to eight charges arising out of three separate incidents.[1]
[1] Indictment P12321847.1 contains the offences committed on 11 October 2023; Indictment Q11870708 contains the offences committed on 17 and 19 August 2024. The detailed circumstances of offending are set out in the Summary of Prosecution Opening for Sentence Indication (2 June 2025) and Summary of Prosecution Opening For Plea (12 May 2025). I have also viewed the relevant CCTV footage. I have read and considered the written submissions of the parties as supplemented by their oral submissions, and supported by tendered material, including Prosecution Submissions on Sentence Indication (3 June 2025); Prosecution Submissions on Plea (3 June 2025); and Application for Sentence Indication and Plea: Outline of Submissions (2 June 2025).
On 11 October 2023, shortly after midnight, you drove two other offenders to 121 Buckley Street, Essendon, in a stolen Holden Commodore sedan and stopped outside.[2] The two other offenders – one was Deng Nienkel, one is unknown – got out of the rear passenger door of the car. Both were armed with shotguns. Both men fired their shotguns into Skin Bottega, the business located at 121 Buckley Street. Mr Nienkel also fired his shotgun into the neighbouring apartment complex. The two men then got back into the car, and you drove off. The car was later found burnt out.
[2] The car belonged to Bailey Stanborough, and had been stolen a week earlier.
On 17 August 2024, at approximately 4:40 am, you, Awuol Mun, and an unknown co-offender appeared at the rear of Glenroy Cigarettes in Glenroy. Mr Mun poured fuel out of a jerry can over the rear door and onto the ground. You lit the fuel, setting the door on fire. The three of you then ran around to the front of the store, where a Ford Transit van belonging to the store’s owner – Fadi El Hajj – was parked. Mr Mun poured fuel over the van and you set the fuel on fire. The van – which was worth approximately $25,000 – was damaged beyond repair. The cost of the damage to the store is not known.
Mr El Hajj’s son Nabil was in the store at the time. He had been playing cards with three friends, who had left about 30 minutes earlier. He heard chatter at the rear of the store, and this prompted him to look at the store’s CCTV cameras. He saw three figures in black, and then heard banging on the rear door. Thinking it might be his friends, he went to the rear and saw liquid running under it. He went to open the door, but just as he did so, it caught on fire. He tried to put the fire out with an extinguisher, but did not succeed; nor could he open the rear door. He exited the front door instead, and walked around to the rear, where he saw that tiles had been put in front of the door to stop it opening.
On 19 August 2024, at approximately 3.25 am, you and a number of unknown co-offenders drove a stolen Mazda 3 to 29 McBride Avenue, Wonthaggi.[3] The driver then reversed the Mazda into the front of Grab and Go Mart Tobacconist, a business which was due to open the next month. The driver drove back out of the building, and then reversed into and out of it a further two times, before driving away. The cost of damage to the building was approximately $17K. About 25 minutes later, and approximately two kilometres away, the Mazda – which was worth approximately $6,800 – was found on fire. It was burnt beyond repair.
[3] The car belonged to Kate Yuen Ching Yung, and had been stolen 11 days earlier.
You have pleaded guilty to the following offences:
a.Two charges of theft of a motor vehicle (the Holden Commodore and the Mazda 3),[4] contrary to section 77 of the Crimes Act 1958, the maximum penalty for which is 10 years imprisonment;
b.One rolled up charge of being a prohibited person and possessing a firearm,[5] contrary to section 5(1) of the Firearms Act 1996, the maximum penalty for which is 10 years imprisonment;
c.One rolled up charge of using a loaded firearm in a public place,[6] contrary to section 130(1B)(a) of the Firearms Act 1996, the maximum penalty for which is 10 years imprisonment;
d.Three charges of arson (Glenroy Cigarettes, the Ford Transit van, and the Mazda 3),[7] contrary to sections 197(1) and (6) of the Crimes Act 1958, the maximum penalty for which is 15 years imprisonment; and
e.One charge of damaging property (Grab and Go Tobacconist),[8] contrary to section 197(1) of the Crimes Act 1958, the maximum penalty for which is 15 years imprisonment.
[4] Charge 1 in Indictment P12321847.1 and charge 3 in Indictment Q11870708, respectively. Mr Burma is charged on the basis that his driving of the Holden and presence in the Mazda on the days of the offending amounted to an assumption of the rights of an owner (not that you were the person who first stole the cars).
[5] Charge 2 in Indictment P12321847.1.
[6] Charge 3 in Indictment P12321847.1.
[7] Charges 1, 2 and 5 in Indictment Q11870708, respectively.
[8] Charge 4 in Indictment Q11870708, respectively.
Objective seriousness and moral culpability
This is extremely serious offending:
a.The offending was evidently pre-meditated and planned;
b.Your motive in attacking the three businesses was personal gain, in that you were hired to carry out the attacks on behalf of others;
c.You used stolen vehicles to carry out those attacks;
d.You destroyed one of those stolen vehicles (the Mazda), presumably in an attempt to conceal your involvement;[9]
e.Your conduct threatened the safety of Nabil El Hajj (and anyone else who might have been in Glenroy Cigarettes, such as the friends who had just left), who would have been unable to exit via the rear door – had he needed to – due to the placement of the tiles; and
f.The discharging of the firearms could also have exposed people in those buildings to danger.
[9] Mr Burma is not charged in relation to the destruction of the other vehicle (the Holden).
General deterrence, just punishment and denunciation are important sentencing purposes for offending of this kind, particularly at a time when there is significant community concern about arson and other attacks on tobacco shops. Even without that context, such offending would ordinarily result in a very substantial head sentence with a non-parole period.[10] The parties agreed, however, that this is not an ordinary case.
[10] The only cases the parties referred me to as specific examples of current sentencing practice were DPP v Bol [2024] VCC 1465 (Judge Meredith); and the sentence imposed on your co-offender in DPP v Nienkel [2024] VCC 1173 (Judge Wraight). Both offenders were young men, with extensive criminal histories, who had had significant childhood and adolescent difficulties. I have taken both of these sentences into account, including for the purpose of parity with a co-offender:
·Mr Bol was charged in relation to the arson attack on a reception centre and the arson of a stolen vehicle used in that attack. He was sentenced to two and a half years imprisonment, with a 15 month non-parole period.
·Mr Nienkel was charged with possessing a firearm contrary to a firearm prohibition order, and discharging a firearm with reckless disregard for safety. He was not charged with the theft of the Holden Commodore. He was sentenced to nine months imprisonment and a two and a half year CCO.
You indicated your intention to plead guilty to the August 2024 offending after a committal mention. Both parties submitted that an appropriate disposition for the August 2024 offending was a combination sentence involving a term of imprisonment and a community correction order (CCO). Importantly, with a combination sentence, the offence of arson is not subject to the usual one year maximum period of imprisonment.[11] This means I can impose a sentence of more than a year for the arson offending, and still also impose a CCO.
[11] Sentencing Act 1991, s 44(1A).
On 4 June 2025, I conducted a sentence indication hearing in relation to the October 2023 offending. I indicated that if you pleaded guilty, I would impose a sentence of imprisonment of not longer than the sentence I would impose in relation to the August 2024 offending and would order that it be served concurrently with that sentence. The prosecution agreed that this would be an appropriate overall disposition, and you accepted the indication.
Personal circumstances and other subjective matters
You were born in Egypt in 2004, the second of seven children. Your family are refugees from the civil war in Sudan, and you came to Australia at a very young age. Your family was extremely poor, living in an overcrowded house where there was seldom enough food. Violence was more common than affection in your family, including violence inflicted on you.
When you were around 12 years old, your family returned to Sudan for a year. Sudan was still in a state of civil war. You were exposed to horrific violence, and were seriously bullied by local boys. Your time in Sudan was deeply traumatising for you. Your behaviour changed on your return to Australia. You aligned yourself with a deviant peer group and frequently found yourself in fights. You also began to use cannabis and other drugs, and use them heavily.
In January 2022, you were attacked and stabbed with a knife during an altercation with a rival group of young people and seriously injured. Your own violence escalated after this, and you were injured in several other fights. You also built up an alarming criminal history, including offences involving violence, dishonesty, driving and firearms. On its face, this suggests a strong need for specific deterrence and relatively poor prospects for rehabilitation.
You also have a poor history of compliance with youth supervision orders; and committed the October 2023 offences while on bail. This further demonstrates the lawlessness of your attitudes and behaviour, and raises question marks over the likelihood of you complying with a CCO.
However, the profound disadvantage and trauma you have experienced in your short life and the serious mental health conditions you developed as a result, also mean there are very weighty matters in mitigation.[12] The prosecution accepts that these matters reduce your moral culpability; make you a relatively poor vehicle for general deterrence; moderate the value of specific deterrence; and mean that prison would weigh more heavily on you. Prison might also make these conditions worse. [13]
[12] See Luke Armstrong, Psychological Assessment (22 May 2025); and Gina Cidoni, Psychological Assessment Report (26 January 2025).
[13] Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 169 A Crim R 581 (limbs 1, 3, 4, 5 and 6); and Prosecution Submissions on Plea (3 June 2025), [12]-[14].
You have already spent 479 days in custody for this offending. [14] Some of that time has been spent in solitary confinement (including for your protection), and has therefore been particularly onerous. It is difficult to sensibly apportion this time between the different sentences I intend to impose.[15] I will not, therefore, declare it as pre-sentence detention.
[14] Mr Burma also spent an additional eight days on remand for other matters, which cannot be counted as pre-sentence detention. I take this time into account.
[15] I am informed that Mr Burma has spent 223 days on remand for the 2023 offending; 50 days on remand for the 2024 offending; and 206 days on remand for both the 2023 and 2024 offending. Discussion with counsel proceeded on the assumption that s 18(1) of the Sentencing Act 1991 required an apportionment between the sentences for the different offending, rather than a global declaration of pre-sentence detention. Any such apportionment would make it difficult, if not impossible, to give Mr Burma full credit for his 479 days of pre-sentence detention. Rather than determining whether the assumption of a requirement of apportionment is correct, I have structured the sentence in a way that gives Mr Burma full credit for his pre-sentence detention without actually declaring it.
I will instead take your time on remand into account in a different way. From your point of view, the sentence you will have served by the time of your release includes both the time you have already spent on remand and the additional time that I impose today. I have approached your sentencing in the same way, taking the view that the additional time I order, when added to the time you have already served, makes for an appropriate total sentence.
Your guilty pleas, one very early, the other not, saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty. Your pleas also shows your willingness to accept responsibility for your offending and are suggestive of remorse. I will therefore reduce your sentence because of your pleas.
You are also a young offender. That means I should consider a sentence that prioritises the possibility of your rehabilitation.[16] That possibility is still a live one, with you expressing a genuine desire to move away from offending. A long prison sentence might crush that desire, and consolidate you in criminality. However, the seriousness of your offending demands that you do serve some additional time in prison, beyond that which you have already served.
[16] R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) A Crim R 369.
During the plea, your counsel submitted that your progress would be better supported by the certainty of a fixed term of imprisonment followed by a CCO, than by the uncertainty of a longer head sentence with the possibility of earlier release on parole.[17] I accept that the various matters and purposes I must take into account can be balanced by imposing a moderate sentence of additional imprisonment together with a CCO that will offer you support in your path towards rehabilitation. That is the sentence I will impose. But in the end, Mr Burma, what path your life takes from here will mostly depend on you and the choices you make.
[17] After handing down sentence it became apparent that counsel’s submission may have been based on a misapprehension as to the length of the prison component of the combination sentence I might impose. Be that as it may, there is a tension between s 44(1A) of the Sentencing Act 1991, which allows me to impose a combination sentence in cases of arson that includes “any sentence of imprisonment”; and s 11(1), which provides that I must fix a non-parole period when I impose a sentence of two years or more imprisonment unless I consider “that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate”. Section 11(2A) provides that I must not fix a non-parole period if I impose a sentence of imprisonment as part of a combination sentence; however, s 11(2A) only applies when the period of imprisonment is between one and two years. I am not aware of any equivalent provision that applies to combination sentences that include a prison sentence of two or more years. Had I declared Mr Burma’s pre-sentence detention, I would have imposed a sentence longer than two years, and would therefore have had to resolve the tension between ss 44(1A) and 11(1), either by finding that as a matter of necessary implication s 11(1) does not apply to terms of imprisonment imposed as part of a combination sentence, or by finding that the nature of Mr Burma’s offences – namely, arson – make the fixing of a non-parole period inappropriate.
Consent to CCO
Before I can impose a CCO, you need to consent to it. If I cannot impose a CCO because you do not consent, then the only adequate sentencing option available to me would involve a longer term of imprisonment.
The CCO I intend to impose will last for two years. I will now explain the conditions that would be included in a CCO, so you can decide whether or not you consent.[18]
[18] See Department of Justice, Community Correction Order: Assessment Outcome Report (5 June 2025); and Forensicare, Mental Health Advice and Response Service (5 June 2025).
If you breach the CCO by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. You can also be re-sentenced for the offence which is currently before me. That might include imposing a term of imprisonment. Any breach by you of this CCO will be brought back before me.
Orders
If you had not pleaded guilty, I would have imposed a total effective sentence of four years imprisonment with a three year non-parole period. [19] Because you pleaded guilty, I am instead imposing:
[19] In addition to the undeclared pre-sentence detention of 479 days.
a.For the 17 August 2024 offending,[20] an aggregate sentence of 18 months imprisonment, with conviction, and a CCO of two years duration (this is the base sentence).[21]
[20] Charges 1 and 2 in Indictment Q11870708.
[21] In my view, the offending of 11 October 2023, 17 August 2024 and 19 August 2024 are each founded on the same facts: Sentencing Act 1991, s 9(1). It is, therefore, open to me to impose aggregate sentences in respect of each set of charges.
b.For the 19 August 2024 offending,[22] an aggregate sentence of 17 months imprisonment (five months of which is to be served cumulatively on the base sentence), with conviction, and a CCO of two years duration.
[22] Charges 3, 4 and 5 in Indictment Q11870708.
c.For the 11 October 2023 offending,[23] an aggregate sentence of one year imprisonment, with conviction, to be served concurrently with the base sentence.
[23] Charges 1, 2 and 3 in Indictment P12321847.1.
d.This makes for a total effective sentence of 23 months imprisonment from today, followed by a two year CCO.
e.I order that the time you spent on remand is not to be reckoned as time already served. [24]
[24] Sentencing Act 1991, s 18(1). I am aware, and intend, that as a result of this your total sentence of imprisonment (including time already served) will be just under three years and three months.
f.I cancel your driving licence and disqualify you from obtaining a further one for a period of six months from today. [25]
[25] Sentencing Act 1991, s 89(4)(a).
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