Director of Public Prosecutions v Guled
[2023] VCC 2060
•24 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00354
CR-21-02473
CR-23-00075
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDULSAM GULED |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATES OF HEARINGS: | 20 July 2023, 7 September 2023, 9 October 2023 | |
DATE OF SENTENCE: | 24 October 2023 | |
CASE MAY BE CITED AS: | DPP v Guled | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2060 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Pleas of guilty – sentence indication hearing – prohibited person use a firearm – make threat to kill – prohibited person in possession of a firearm – burglary – damaging property – going equipped to steal/cheat – aggravated burglary – theft – possession of a drug of dependence – attempt to commit burglary – armed robbery – trespass – possess suspected proceeds of crime – harass witness – mental ill-health – post-traumatic stress disorder – depression – anxiety – alcohol abuse – drug abuse – methylamphetamine – guarded prospects of rehabilitation – criminal record
Legislation Cited: Sentencing Act1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; Director of Public Prosecutions v Herrmann [2021] VSCA 160
Sentence: 4 years and 4 months’ imprisonment. 3 years non-parole.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | W.V. Stougiannos | Office of Public Prosecutions |
| For the Accused | J.L. Clark | Kurnai Legal Practice |
HIS HONOUR:
1Abdulsam Guled, following a Sentence Indication hearing on 20 July 2023, you pleaded guilty to the following charges.
2On Indictment M10659967.1:
· Charge 1 – that at Melbourne on 13 June 2020 you robbed Peter Hughes of certain property and money and at the time had with you an offensive weapon, namely, a screwdriver. This is the offence of armed robbery and has a maximum penalty of 25 years’ imprisonment.
3On Indictment L11480194.1:
· Charge 1 – at Collingwood on 20 June 2020 you made a threat to kill Richard Moore. This offence carries a maximum penalty of 10 years’ imprisonment.
· Charge 2 – on 20 June 2020 you entered as a trespasser a building at Gipps Street, Collingwood with intent to steal therein. This is the offence of burglary and carries a maximum penalty of 10 years’ imprisonment.
· Charge 3 – on 20 June 2020 you entered as a trespasser a building situated at Napoleon Street, Collingwood with intent to steal therein and at the time of entering a person was then present in the building. This is the offence of aggravated burglary and carries a maximum penalty of 25 years’ imprisonment.
· Charge 4 – at Collingwood on 20 June you stole a silver Adidas bag. This is the offence of theft and carries a maximum penalty of 10 years’ imprisonment.
· Charge 5 – at Collingwood on 20 June 2020 you, being a prohibited person, used a firearm, namely, a .22 calibre handgun. This offence has a maximum penalty of 10 years’ imprisonment.
· Charge 6 – at Collingwood on 20 June 2020, you stole certain items including a Samsung mobile phone .
· Charge 7 – at Collingwood on 20 June 2020 you stole an iPad.
· Charge 8 – at Abbotsford on 20 June 2020, common assault. This offence carries a maximum penalty of 5 years.
· Charge 9 – at Fitzroy on 21 June 2020 you possessed a drug of dependence. This offence carries a maximum penalty of one year imprisonment where the Court is satisfied on the balance of probabilities, which I am in this instance, that it was not committed for any purpose related to trafficking.
4You consented to my hearing related summary Charges 11 and 25. Charge 11 occurred on 21 June 2020 and involved a trespass on private property in Fitzroy St, Fitzroy. This offence has a maximum penalty of 6 months’ imprisonment. Summary Charge 25 charges that at Fitzroy on 21 June 2020 you possessed $720 suspected of being proceeds of crime. This offence has a maximum penalty of two years’ imprisonment.
5You also consented to my hearing a summary charge that on 24 August 2022 you did harass Tiffany Higham by attending her residence and threatening to damage property knowing that Ms Higham was taking part in a criminal proceeding as a witness. This offence has a maximum penalty of 12 months’ imprisonment.
Circumstances of Offending
6Exhibit P1 is the prosecution summary for the Sentence Indication hearing. It is on the basis of the matters set out in that summary, which were not disputed by you, that you fall to be sentenced.
Indictment M19659967.1
7On 13 June 2020, you and an unidentified co-offender attended at an apartment building at Latrobe Street, Melbourne. Peter Hughes, who was known to you, lived at that address. You pressed the intercom button and spoke to Mr Hughes. He agreed to come down and meet you on the ground level. Once he was outside you brought up a conversation you had with him approximately nine months earlier. You appeared to Mr Hughes to be drug affected. As you were talking with him, you produced a screwdriver and called Mr Hughes a liar. Your co-offender then appeared. You then hit Mr Hughes with a closed fist twice to the right side of his head saying ‘I will shaft you.’ Mr Hughes fell backwards and blacked out. When he regained consciousness, you and your co-offender were emptying his pockets. You kept asking ‘where’s your watch, where is your ring.’ Your co-offender was trying to take Mr Hughes’ phone from his hand.
8You stole from Mr Hughes two Apple iPhones, keys to his apartment and other premises, Mr Hughes’ wallet and identification documents, a shoulder bag, $500.00 in cash and a Bank of Melbourne credit card. Mr Hughes reported the matter to police. He sustained a small graze to the left side of his face as a result of your assault upon him.
Indictment L11480194.1
9On 20 June, at approximately 10.40am, you were walking south on Rokeby Street, Collingwood, near the entrance of a restaurant on Gipps Street. You walked up to Richard Moore, who was taking some tools out of his work van that was parked outside of the restaurant. You approached him and yelled ‘hey brother’ in a loud voice. Mr Moore looked towards you and saw that you were holding something in your right hand which looked like a home-made handgun. You held the weapon approximately six inches from his face and said ‘I’m going to fucking pop you’.
10Mr Moore ran into the courtyard of the restaurant and slammed shut the gate. You kicked the gate for about 10 minutes. Mr Moore was shocked and felt in fear of his life. He remained in the courtyard until police arrived. Mr Moore gave police your description. You were also captured on a CCTV recording continuing to walk down Rokeby Street after the incident. This conduct forms the basis of Charge 1, making a threat to kill.
11At approximately 11.24 am you attended at the rear of Gipps Street, Collingwood. A door to that building was left ajar. You entered the building via the internal fire escape. Your entry was captured on CCTV. You walked up to level one and attempted to lever open the emergency exit door with an unknown tool. This caused damage to parts of the door. You then walked back down the staircase to ground level and attempted to lever open the entrance door into the building. In the process you ripped the electronic fob reader off the wall. You then left the building through another door and into Dorset Street. This conduct forms the basis of Charge 2, burglary.
12You were later seen walking east on Napoleon Street in Collingwood at approximately 11.41am. As you were walking you saw a car leaving the secure underground car park on Napoleon Street. You waited for the car to leave and, as it was doing so, you entered the car park before the gate was fully shut. You then walked through the secure car park and used the internal fire escape stairwell to gain access to level two. On level two you entered apartment 20. The occupant of that apartment, Jade Downey, was in her bedroom. She had heard the door open, and you enter. When she heard footsteps outside her bedroom she yelled out. You then ran out the front door and not long thereafter Ms Downey ran out after you. When she reached the corridor of the apartment block, she saw two males who told her they saw a male run out of her apartment with two bags and a bottle of drink. Ms Downey returned to her apartment and discovered that her bag, containing her passport, cash, debit card and make-up had been stolen. She later located her bag in the fire escape stairwell. Your entry into the car park and your later exit was captured on CCTV recordings. This conduct forms the basis of Charge 3, aggravated burglary, and Charge 4, theft.
13You were next seen at the front of a building on Wellington Street. CCTV cameras caught you entering the lift of that building and getting out at level 20. You then went to apartment 202 and knocked on the door.
14The occupant of that apartment, Yusak Felle, opened the door. You asked him, ‘Is Nash here?’ Mr Felle said that you had the wrong house. You remonstrated with him, saying, ‘Don’t lie to me. You think I’m stupid?’ You then removed from your pants what appeared to be a handgun. You pointed it at Mr Felle and said, ‘I know she’s been here’.
15At this point, Mr Felle’s housemate, Peter Elaby, entered the kitchen. As he did, he saw you take money that was on the kitchen counter. The money, approximately $300, was their rent money. You also stole a duffle bag, a cap, a mobile phone belonging to Mr Elaby, and an iPad belonging to Mr Felle. You then tried to disconnect the PlayStation but were not able to do so with one hand, so you put the firearm down on the floor. At this point, Mr Elaby ran from the flat.
16At some point during this incident your firearm discharged and the projectile struck one of the walls.
17You again said to Mr Felle, ‘Is Nash here? Do you think I’m joking?’ Mr Felle responded he did not know who Nash was. You then asked him for his telephone. Mr Felle said it was downstairs. You told him to go and get it, and if he called police, you would kill him. As he was walking out, you struck him to the back of the head with a solid object.
18Mr Felle went downstairs and retrieved his telephone from the car. After waiting some 10 minutes, he saw you pushing a shopping trolley towards an alley. Mr Felle followed you, but you saw him and ran towards him. Mr Felle ran from you and contacted police. This conduct forms the basis of Charge 5, using a firearm, and Charges 6 and 7, theft.
19After this incident, you were seen by Brendon Couch. You approached him and said words to the effect of, ‘Do you know who I am? Do you want to start me? I’ll put one in you.’ You lifted your T-shirt and put your hand on a firearm. Mr Couch said he did not have a problem with you and walked away. You are not charged in relation to this incident.
20At about 1.50 pm that day, you were walking west in Yarra Street, Abbotsford, and approached the entrance to number nine. You entered the premises but left some two minutes later. You were seen to leave the premises by Mr Savvas Haralabidis. You turned towards Mr Haralabidis and started yelling at him. You walked towards him, and then pulled out a handgun and said words to the effect of, ‘I’m going to shoot you’. Mr Haralabidis was terrified and ran away. This incident forms the basis of Charge 8, common law assault.
21At around 5.50 pm, police conducted a stationary patrol in Campbell Street, Collingwood. You had earlier been identified, and police knew that you would stay from time to time at Tiffany Higham’s unit in Campbell Street. You were seen at approximately 5.50 pm in Ms Higham’s unit. However, upon seeing police, you ran away. In the unit, police located Mr Elaby’s mobile phone you had earlier stolen.
22At about 11.30 pm, you entered a property on Fitzroy Street, Fitzroy. You were seen entering on a CCTV monitor. Police were called and arrived shortly thereafter. Police approached you, confirmed your identity, and then conducted a search. They found on you methylamphetamine and $720 in cash. This conduct gives rise to related summary Charges 11 and 25 of trespass and dealing with proceeds of crime.
Summary Charge of harassing a witness
23I will deal now with the summary charge of harassing a witness. Following the matters charged on Indictment L11480194.1, and your subsequent release on bail, you attended Ms Higham’s unit on 24 August 2022. Ms Higham was standing outside her residence, talking to a friend. You began yelling at and abusing Ms Higham. You called her a ‘dog’ and said that she needed to change her statement. Ms Higham did not know what you were talking about. Ms Higham disputed having made a statement. You replied, saying, ‘You have to go and get a stat dec and say you did not give the cops permission to enter your house’. Ms Higham then realised that you were referring to the signed consent she had given to police on 19 June 2020 giving them permission to search her premises. You continued to make threats. Ms Higham’s two adult sons came out and told you to leave, but you kept on yelling and adopted a fighting stance. Police were called, but you left before they arrived. This conduct forms the basis of the summary charge of harassing a witness.
Background and personal circumstances
24You were born in Somalia in August 1981, during the Somali Civil War. You have four older, and three younger, siblings. Your father, who worked for the Somalian government, was abducted by rebel forces in Somalia. Following that, you and your family fled Somalia. However, before reaching the border with Kenya, you witnessed your mother being shot and killed. The forces responsible for your mother’s murder also tried to abduct one of your sisters.
25You and your siblings, along with a woman whom you refer to as your ‘stepmother’, made it to Kenya, where you spent approximately two and a half years in a UNICEF refugee camp. You attended school in the camp. You also commenced to sniff glue and smoke tobacco and cannabis while there.
26After your time in Kenya, you migrated with your family to Australia, settling in Melbourne. You were then 14 years of age and deeply affected by the trauma you experienced.
27Your father, who had survived his abduction and imprisonment, made his way to Australia and was reunited with you and your family in approximately 2001. He passed away in 2019.
28You attended Brunswick Secondary College after migrating to Australia. You had very limited English language skills when you commenced high school. This made your schooling difficult. You spent three years at high school before being expelled for smoking cannabis on the school grounds.
29On leaving school, you worked in a factory for approximately three years, performing welding work. You lost your job when the factory shut down. You have not had employment since then.
30You have a significant history of drug abuse, commencing at the age of 12 when living in the refugee camp. You also commenced to use alcohol at the age of 14, often to the point of intoxication and blackout.
31In 2003, when in your early twenties, you commenced using buprenorphine during a period of incarceration. Upon your release, you commenced to use heroin. You have used heroin consistently since 2003. You also commenced using methylamphetamine in 2004, initially smoking it, but soon thereafter, you began to use it intravenously.
32A psychological report prepared by Megan Rogers was tendered on your behalf. It is a somewhat dated report prepared on 13 March 2021. You told Ms Rogers that you were diagnosed with post-traumatic stress disorder in 2018, while incarcerated. On clinical assessment, Ms Rogers found that you were experiencing extremely severe symptoms of depression and anxiety, as well as severe symptoms of stress. There was also a strong indication of post-traumatic stress disorder. In her opinion, you suffered PTSD, depression, and anxiety.
33You have an extensive criminal record dating back to 19 October 2000. You have numerous convictions for dishonesty offences and drug offences, including trafficking in heroin and amphetamine, and possessing heroin and methylamphetamine. You have previously been sentenced to community correction orders and terms of imprisonment. Most recently, on 7 July 2021, at the Melbourne Magistrates’ Court on two charges of theft and a charge of attempting to commit an indictable offence while on bail, you were convicted and sentenced to a total effective term of seven months’ imprisonment. This is not a prior conviction for sentencing purposes. It was submitted on your behalf by your counsel, Ms Clark, that your previous offending is related to your history of substance abuse.
34In mitigation of penalty, Ms Clark relied upon the following matters:
i.your pleas of guilty, and the application of the principles stated in Worboyes v The Queen[1];
ii.the application of the principles in Bugmy v The Queen[2] and principles 5 and 6 in The Queen v Verdins[3];
iii.the length of time you have spent on remand, namely 763 days, a substantial period of which was impacted by the COVID-19 restrictions. Notwithstanding those restrictions, you have made good use of your time on remand studying English and creative writing. You also have regular telephone contact with one of your sisters; and
iv.your prospects of rehabilitation, relying mainly on the family support you will have within the community. However, it is accepted by you that you need to address your drug problem to avoid further offending.
[1] [2021] VSCA 169
[2] (2013) 249 CLR 571
[3] (2007) 16 VR 269
35Mr Stougiannos, who appeared on behalf of the Director of Public Prosecutions, submitted that your offending overall was very serious. He described your conduct on 20 and 21 June 2020 as a ‘crime spree’. During that crime spree there were numerous victims impacted.
36Although there are no victim impact statements filed, Mr Stougiannos submitted that for the victims, particularly those who were confronted with the firearm, it must have been a very frightening experience.
Sentencing considerations
37I accept Mr Stougiannos’ submission that your offending behaviour overall was serious, and that the victims were, no doubt, terrified. It is clear that with certain charges you were armed with an operating firearm. That firearm was discharged in the course of you committing the offences set out in Charges 5, 6 and 7 and was used in some of the other offending to frighten your victims.
38Ms Rodgers states that your recall of the circumstances surrounding your offending generally was ‘quite vague’. In her opinion, this was likely due to you being heavily substance affected as well as sleep deprived. You told Ms Rodgers that you were desperate for money as a result of your substance addiction. You said you understood that this did not excuse your offending.
39The procedural history of the charges on indictment has been lengthy, due in part to your failing to appear for your CISP bail review and a warrant being issued for your arrest.
40Pre-trial issues were heard from 29 March 2022, at which time they were adjourned part-heard. On 8 February 2023, after your arrest on warrant, they were set down for further hearing on 2 May 2023, with trials to commence on 26 July 2023.
41On 20 June 2023 there was a sentence indication hearing, and on 14 July I gave a sentence indication which was ultimately accepted by you on the 20 July 2023. On 7 September you matter was listed for plea hearing.
42Your pleas of guilty were not entered at the earliest opportunity and it has not been submitted that they are indicative of any remorse. Your pleas are, however, of utilitarian benefit. You have saved the court and the community the time and cost of two trials and have spared a large number of witnesses from having to give evidence. Your pleas have added utilitarian benefit, given they were entered at a time when the Court was experiencing a backlog of cases as a result of the COVID-19 pandemic.
43Regarding your prospects of rehabilitation, there is little to suggest at this time that they are any better than guarded. In order for you to rehabilitate, you need to address your psychological issues and your drug and alcohol issues.
44I accept the application of the principles set out in the High Court decision of Bugmy v The Queen.[4] I accept that your childhood was characterised by extreme violence and deprivation. Your formative years and development were impacted by the civil war and violence you witnessed, and the deprivation you experienced. Your moral culpability, by reason of those experiences, I consider, is likely to be less than the culpability of an offender whose formative years were not marred in that way. The general approach referred to in Bugmy and explained in in Director of Public Prosecutions v Herrmann[5] applies in your case. I am not able to find that the more specific approach has application.
[4][2013] HCA 37
[5][2021] VSCA 160
45Given your background, it is perhaps not surprising that you suffer post-traumatic stress disorder, depression, and anxiety. I accept the application of Verdins’ principle 5, that by reason of your psychological diagnosis, you will experience the burden of imprisonment greater than a prisoner in normal psychological health. I do not accept the application of Verdins’ principle 6, that imprisonment will greatly worsen your condition, as there is no sufficient evidence of that in Ms Rogers’ report.
46The principles of general deterrence, denunciation and just punishment are significant considerations in the sentence I am to impose. The sentence to be imposed must make clear to others who are minded to offend in the way you offended that they risk stern punishment. Your conduct is properly to be denounced and condemned. It was truly outrageous behaviour.
47Given your history of offending behaviour and my assessment of your prospects for rehabilitation, there is also a need that the sentence to be imposed deters you from further offending.
48In determining what is a just punishment, I have also had regard, as best I am able, to current sentencing practice.
49Given the close proximity in time of much of the offending, and in order to avoid a crushing sentence, the sentencing principle of totality has application.
Sentence
50I turn, now, to sentence. Doing the best I can, and having regard to all applicable sentencing considerations, you are sentenced as follows.
Indictment M19659967.1
51Charge 1 – armed robbery. You are convicted and sentenced to 26 months’ imprisonment. This is the base sentence.
Indictment L11480194.1
52Charge 1 – make threat to kill. You are convicted and sentenced to 12 months’ imprisonment.
53Charge 2 – burglary. You are convicted and sentenced to three months’ imprisonment.
54Charge 3 – aggravated burglary. You are convicted and sentenced to 15 months’ imprisonment.
55Charge 4 – theft. You are convicted and sentenced to four months’ imprisonment.
56Charge 5, being a prohibited person used a firearm: you are convicted and sentenced to 18 months’ imprisonment.
57Charge 6, theft: you are convicted and sentenced to three months’ imprisonment.
58Charge 7, theft: you are convicted and sentenced to three months’ imprisonment.
59Charge 8, common law assault: you are convicted and sentenced to six months’ imprisonment.
60Charge 9, possessing a drug of dependence: you are convicted and fined $300.
61Summary Charge 11, trespass: you are convicted and sentenced to one month imprisonment.
62Summary Charge 25, dealing with proceeds of crime: you are convicted and sentenced to three months’ imprisonment.
63Summary Charge of harassing a witness, where Senior Constable Van der Leewen is the informant: you are convicted and sentenced to six months’ imprisonment.
64I direct that on Indictment L11480194.1, four months of the sentence imposed on Charge 1; one month of the sentence imposed on Charge 2; six months of the sentence imposed on Charge 3; eight months of the sentence imposed on Charge 5; one month of the sentence imposed on Charge 6; one month of the sentence imposed on Charge 7; two months of the sentence imposed on Charge 8; one month of the sentence imposed on summary Charge 25; two months of the sentence imposed on the charge of harassing a witness be served cumulatively upon each other and on the base sentence of 26 months imposed on Indictment M19659967.1. This makes a total effective sentence of four years and four months.
65I set a non-parole period of three years’ imprisonment.
66Pursuant to s 18 of the Sentencing Act, the period of 763 days, not including today, is reckoned as having already been served under the sentence.
67Pursuant to s 6AAA of the Sentencing Act1991, had it not been for your pleas of guilty, the sentence I would have otherwise imposed is one of five years and four months’ imprisonment with a non-parole period of four years and two months.
The orders seeking forfeiture of items and disposal of items referred to in the schedules will be made. The orders are not opposed by the defence.
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