Director of Public Prosecutions v Farah
[2024] VSC 551
•11 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0128
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| ABDISAMAD FARAH | Accused |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 September 2024 |
DATE OF SENTENCE: | 11 September 2024 |
CASE MAY BE CITED AS: | DPP v Farah |
MEDIUM NEUTRAL CITATION: | [2024] VSC 551 |
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CRIMINAL LAW – Sentencing – Kidnapping – Complicity – Young offender – Early guilty plea – Parity with sentence indications of co-accused.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Hayward with Ms S Wallace | Office of Public Prosecutions |
| For the Accused | Mr J Shaw with Mr G Chipkin | McNally & Gleeson Lawyers |
HER HONOUR:
Abdisamad Farah, you have pleaded guilty to a single charge of kidnapping Abdulahi Abdi (‘the victim’) contrary to common law. It now falls to me to sentence you.
The maximum penalty for this offence is 25 years’ imprisonment. It is also a category 2 offence for the purposes of the Sentencing Act 1991 (Vic) (‘the Act’), which requires me to impose a custodial sentence.[1]
[1]In the absence of any of the circumstances referred to in section 5(2H) of the Act.
You were originally charged with murder, but that charge was withdrawn prior to your plea.
The offending
Your offending arose as part of a series of incidents that ultimately led to the tragic death of Khalid Mahat (‘the deceased’). I will briefly recite the incidents that led up to your involvement.
In the early hours of 16 October 2022, the victim, the deceased and several other people travelled to the family home of one of your co-accused in a white Toyota Corolla. Several of the vehicle’s occupants exited the vehicle and approached the residence. A daughter of the household, who was inside the house at the time, called 000 and reported the incident.
Approximately 10 minutes later, a red Toyota Corolla travelled past the residence. Very shortly after, police responding to the 000 call observed the white Corolla and the red Corolla travelling on nearby streets, away from the address.
Police followed the red Corolla, which pulled into the driveway of the home of another of your co-accused, Yuusuf Ali. Police observed that you and two other co-accused were inside the vehicle. Shortly after, a black vehicle carrying more of your co-accused arrived and parked nearby.
Various members of the group spoke to police, with specific mention made to an understanding that ‘guys with weapons’ had attended the house and that the members of your group were ‘helping’.
Later that day, in the afternoon, a group of you travelled in the red Corolla to Northland Shopping Centre, and then to the Mr Abdi’s address in the northern suburbs. Just before 2pm, you, along with other young males, were captured on CCTV exiting the vehicle and placing the hoods of your jumpers over your heads.
Your group approached the victim outside of his house and accosted him with a knife. While you did not brandish a knife, two of your co-offenders did and one threatened to stab the victim while the other held a 30cm knife to his back.
The victim was forced into the back seat of the car in his possession, the white Corolla. You, along with two of your co-accused, entered the white Corolla and followed the red Corolla to a nearby park.
Upon arrival, the victim was told to get out of the car, and then viciously set upon by members of the group, who punched, slapped, and humiliated him. The victim reportedly saw three long kitchen knives with black handles being passed between the group and was, at one point, struck with a hammer. A witness observed some of this conduct and reported that the victim was visibly shaking. After approximately five minutes, the victim was forced into the boot of the white Corolla.
It is not alleged that you engaged in the physical assault of Mr Abdi at the park, nor that you were in possession of the weapons used in the assault. It is also agreed that your involvement in the offending ceased at the park. Both the white and red Corollas were later used in the tragic killing of the deceased. However, you are not alleged to have been involved in this further offending, and I have not sentenced you on that basis.
Your culpability arises from your involvement in forcing Mr Abdi into the vehicle.
Co-accused
Your group of co-accused have all pleaded guilty to different offences arising from this series of events.
Following sentence indications, four have pleaded guilty to manslaughter arising from Mr Mahat’s death. After sentencing indications given by Croucher J on 8 August 2024, two have pleaded guilty to charges of kidnapping and assisting an offender where the principal offence is manslaughter, contrary to s 325 of the Crimes Act 1958 (Vic).
They are all yet to be sentenced by this Court. However, I will return to the role of their sentence indications later in these reasons.
Victim impact statements
The victim did not provide a victim impact statement. However, it is apparent from the reports of the witness at the park that the kidnapping was a frightening experience for him.
Personal circumstances
I will turn first to your personal circumstances. You were born in Australia in 2003. Your parents are originally from Somalia and migrated to Australia to escape the civil war with your two older siblings.
Your father was largely absent from your upbringing and you were raised primarily by your mother. At around the age of 16 or 17 you were taken to Somalia by your father for the purpose of re-connecting with your culture. While there you were forced to reside in a form of pseudo youth detention where you reportedly suffered abuse and corporal punishment. Seemingly on that same trip, you were forced by your father to marry his friend’s daughter in a religious ceremony. This relationship reportedly did not last and you returned to Australia alone.
You were living with your mother and your siblings at the time of the offending. Your mother remains supportive of you and provided a character reference to the Court. You also remain in contact with one of your brothers. You intend to return home upon release from custody.
You attended school to Year 9 but did not complete your secondary education. Outside of school you are an athlete, with a particular interest in soccer and basketball and a talent for athletics. You previously commenced a carpentry pre-apprenticeship and have otherwise engaged in various jobs, including pick-packing and warehouse work.
Criminal history
You do not have any criminal convictions.
Sentencing factors
Nature and gravity of the offence
Kidnapping is a serious offence and your offending has some serious features. The incident appears to have arisen as a response to the attendance of the victim and the deceased at the home of your friend the previous night. This event led your group to approach the victim at his home and to seize him at knifepoint. The victim was accosted by four of you in daylight in his front yard. He was threatened with knives, forced to get into a car and subsequently surrounded by a group of eight and assaulted by some of the group. Finally, he was forced into the boot of the car.
While I accept that you were not in possession of a knife and did not participate in the subsequent assaults of the victim, you were nevertheless instrumental in the events that facilitated this behaviour. The objective nature and gravity of the kidnapping is high.
This offending set in motion a series of events that ultimately had a grave consequence. However, I have not had regard to this later offending in sentencing you.
Moral culpability
While I accept that you have a high degree of moral culpability for your engagement in the offending, I also appreciate that your role and offending was limited. You did not engage in the ongoing abuse of the victim when he reached the park and did not further assist your co-accused. Nevertheless, I consider that you have a high degree of moral culpability.
Guilty plea and remorse
You stated an intention to plead guilty to the kidnapping charge on 5 April 2024. I therefore accept that this is an early guilty plea which indicates a level of remorse for your involvement and carries a utilitarian value.
Age and rehabilitation prospects
You were 19 at the time of your offending and your youth, as with your co-accused, is a significant consideration in this matter.
You have no criminal record. Although you have spent an extended period in custody because of a breach of your bail, I accept that this breach was modest and this was reflected in the offending receiving a fine with no conviction.
The Court received a letter from Kim Metzler, a Case Manager at the YMCA Bridge Project, reporting that you have been accepted into a six-week trade-based work program that will support you pre- and post-release to pursue employment. You are due to commence this program on 28 October 2024 and you will be occupied 5 days a week learning skills to pursue a trade. Critically, your involvement in this program is dependent on you upholding a level of behaviour, engagement, and positive attitude.
Despite this, I remain somewhat guarded about your prospects of success. While I have not taken your breach of bail into consideration in your sentence, it does give me some pause that you chose to flout your bail conditions at a time where you were still facing serious charges for murder and kidnapping. I am hopeful you will take advantage of the Bridge Program and I consider that your prospects of rehabilitation are reasonable.
Parity
Parity is a significant consideration in this matter. Four of your co-offenders have accepted sentence indications for manslaughter. While kidnapping and manslaughter are both serious offences, I do not consider that the manslaughter sentence indications have any significant role to play in the sentencing synthesis in your circumstances.
However, two of your co-offenders have accepted sentence indications in this Court for their involvement in the kidnapping on virtually identical facts. While a sentence indication by itself is not strictly a sentence for the purposes of parity, the fact that those offenders have entered a plea of guilty based on those indications means that parity necessarily has work to do.
GM was 17 at the time of the offending.[2] He spent 132 days in detention in a Youth Justice Centre but has subsequently been on bail. Like you, he has no prior convictions, although he has some driving matters yet to be determined summarily in the Magistrates’ Court. Bail Progress Reports indicate that he has done well on bail, and he has the support of his family. Critically, GM has additionally accepted responsibility for further involvement in the offending, accepting that he drove a vehicle away from the location of the manslaughter. He has therefore pleaded guilty to assisting an offender. GM has accepted a sentence indication for a Youth Justice Centre order of 132 days, declared as time served for the kidnapping offence and a Community Correction Order (CCO) on the assist offender charge.
[2]Where necessary or appropriate pseudonyms have been used throughout this ruling in accordance with the Children, Youth and Families Act 2005 (Vic), s 534.
The circumstances for Zakaria Hagi Ali are even closer to your own. Like you, Mr Hagi Ali was 19 years old at the time of the offending and has no criminal history. By reason of the delay in this matter, like you, Mr Hagi Ali has missed the opportunity for a Youth Justice Sentence order. Instead, he spent 203 days in adult custody, although he has managed to remain on bail since that time. He lives with his family and has their support. Unlike you, Mr Hagi Ali has also pleaded guilty to assisting an offender and has accepted that he was present at the later, serious offending. Mr Hagi Ali has accepted a sentence indication of 203 days’ imprisonment, declared as time served for the kidnapping and a CCO on the assist offender charge.
It is evident that your offending is necessarily less serious than that of GM and Mr Hagi Ali and that you are equally less morally culpable. If I am to give appropriate regard to the principle of parity, I must give consideration to the sentence indications that have been accepted by GM and Mr Hagi Ali. However, I am at pains to stress that, without the strong call to respect the principle of parity, I would have imposed a more severe sentence on you.
Sentencing purposes
I have had regard to the permissible sentencing purposes as outlined in the Act.[3]
[3]Section 5(1).
The principles of general and specific deterrence have significant work to do in this matter. It is important to send a clear message that egregious behaviour such as this, conducted in broad daylight and with such grave results, cannot be accepted. It is equally important that you realise that you must not conduct yourself like this. I hope your sentence can address these purposes, along with the rehabilitation that has been offered to you through programs and employment support while on remand.
Parsimony
I have considered the common law principle of parsimony, reflected in the Act,[4] in determining the appropriate sentence.
[4]Section 5(3).
Sentence
Abdisamad Farah, would you please stand.
For the offence of kidnapping, I sentence you to 402 days’ imprisonment.
I further declare that you have served 402 days of pre-sentence detention, not including this day.
I have imposed on you a less severe sentence than I otherwise would have because you pleaded guilty to this offence. Pursuant to s 6AAA of the Act, I declare that but for your plea of guilty, I would have sentenced you to 2 years and 6 months with a non-parole period of one and a half years.
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