Director of Public Prosecutions v Hersi

[2020] VCC 347

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00116

DIRECTOR OF PUBLIC PROSECUTIONS

v

CABDIRAHMAN HERSI

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2020
DATE OF SENTENCE:	27 March 2020
CASE MAY BE CITED AS:	DPP v Hersi
MEDIUM NEUTRAL CITATION:	[2020] VCC 347

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Malik	Ms A. Hogan, Solicitor for Public Prosecutions
For the Accused	Mr A. Marshall	Chris McLennan & Co

HER HONOUR:

1Cabdirahman Hersi, you were found guilty by jury verdict on Friday, 20 March 2020, of five charges, including one charge of armed robbery, one charge of obtaining property by deception and three charges of attempting to obtain property by deception.  You were acquitted of one charge of armed robbery.

2The offences occurred on Monday, 25 June 2018, in the JJ Holland Reserve, Kensington.  At approximately 11.30 pm, Ms Ana Echeverri-Alvarez was walking home from the South Kensington railway station through the reserve.  She was anxious about walking home alone at that time, so she called her partner on her mobile phone to help her relax.  It was dark and the lighting was poor.

3You approached her, pointing a gun at her.  She described the weapon as a handgun, approximately 15 to 20 centimetres long.  You were wearing dark clothing and a black balaclava.  You demanded that Ms Echeverri-Alvarez give you her iPhone.  When she told you that she did not have one you asked for her phone, which she gave you.  You asked for her cards and her wallet.  You allowed her to remove some items before taking the wallet, which contained bank cards, other cards, a $10 note and several coins.

4You asked her to give you the pin number or password for the bank card.  Speaking in a threatening tone, you told her not to lie to you because you “would be around here”.  You continued to point the gun at her. (Charge 5) She gave you the pin number for the Commonwealth Bank app on her phone and you left.  The victim then turned and ran away towards her home.

5You then travelled on foot towards Flemington.  At 11.40 pm, you used
Ms Echeverri-Alvarez’s mobile phone to access her Commonwealth banking app and prepared a cardless cash transaction.  At 11.46 pm, you withdrew $500 in cash from her account at the Commonwealth Bank ATM in Racecourse Road, Kensington. (Charge 6)

6You were also found guilty of three charges of attempting to obtain property by deception, being three unsuccessful attempts to withdraw $1,000 at the Redi ATM in Macaulay Road, Kensington.  The attempts were made at 10.53, 10.57 and 10.58 pm using two credit cards that had been stolen from
Mr Kuok Ng earlier that night. (Charges 2, 3, 4)   You were found not guilty of the related armed robbery. (Charge 1) In light of the jury's finding, I am unable to determine how you obtained the bank cards.

7At around 12.25 am, on 26 June 2018, police were patrolling the area of
Smith Street, Kensington when they arrested and searched you.  A black balaclava was found in the right-front pocket of your jacket. You were in possession of black gloves. Five hundred and ten dollars in cash, being 10 x $50 notes and one $10 note belonging to Ms Echeverri-Alvarez were found loose in your pocket.

8You were taken to the Melbourne West police station where a record of interview was conducted.  You denied any involvement in the armed robberies or related offences.  You were released, pending further investigation made by police.  You were interviewed again and charged on 18 July 2018.

9Your case proceeded as a contested committal at the Melbourne Magistrates' Court on Monday, 21 January 2019.  You were committed to stand trial, commencing on Tuesday, 10 March 2020.  You pleaded not guilty to all of the offences.  Whilst you admitted that the offending occurred, the identity of the offender was in dispute.  You denied that you were the offender.  You did not give evidence, but your record of interview was played at the trial.

10A victim impact statement has been provided from Ms Echeverri-Alvarez.  In her statement she described the sense of fear that you have created in her as she continues to go about her daily life.  She has been unable to sleep through the night and continually has nightmares about what happened to her.  She has relocated to a different area.  Your conduct has challenged her perception of safety in the community and her self-confidence.

11This is a serious example of armed robbery.  Whilst your conduct was not sophisticated, it was a premeditated offence.  Ms Echeverri-Alvarez was not known to you so the selection of her as your victim was a random one.  She was vulnerable, as she was walking on her own from the railway station in the park late at night.  Your conduct was threatening and intimidating.  You were wearing a black balaclava and carrying a gun that was pointed at the victim throughout this offence.

12To have been confronted by an unknown male, who was disguised and armed with a firearm, demanding that the victim handover her property must have been a terrifying experience. Your conduct has had a significant impact on the victim.  I take the content of her victim impact statement into account.

13Mr Ng has also provided a victim impact statement.  Given that you were acquitted of the serious offence of armed robbery, I do not propose to take that into account, although I accept that giving evidence in court was a stressful experience for him.

14You have denied your offending since the matters were first raised.  You ran a trial and are not to be penalised for that.  In those circumstances, however, there is no acceptance of responsibility for your conduct and I am unable to conclude that you have shown any remorse.

15At the time of this incident you were 20 years old and you are now 22.  In light of the seriousness of this offence, the mitigating effect of age and your relative youth is reduced, although not extinguished.  This factor is still relevant when considering your prospects of rehabilitation.

16You have a limited criminal history.  At the Melbourne Magistrates' Court on
19 December 2017, you were found guilty of a number of offences, including being in possession of a number of weapons, including an imitation firearm.  You were fined an aggregate of $500 without conviction.  You were also placed on an undertaking to be of good behaviour for being in possession of a small quantity of cannabis.

17You were born in Somalia on 11 August 1997.  You emigrated to Australia with your parents and two older sisters when you were two years old.  You have two younger brothers.

18When you were 10 years old, your mother died of cancer.  You had a close relationship with her and suffered significant grief as a result of her death.  In a letter written to the court, dated 23 March 2020, from Liban Yusuf, president of the Somali Australian Friendship Association, he confirms that you worked as a volunteer with the association from 2014 to 2017.  The opportunity to improve your relationship within the community over that time assisted you in overcoming the effect of the loss of your mother.  Mr Yusuf writes that you have previously been regarded as a respected member of your local community.

19You are an intelligent young man, having completed Year 12 at Al-Taqwa College in 2015.  After taking a gap year and working as a labourer, you started a degree in biomedical science at La Trobe University in 2017.  In 2018, you transferred to RMIT, where you are currently studying a Bachelor of Accounting part time.

20Until recently you were employed, mainly working in the warehouse area at Americold in Laverton.  Your full-time employment was on a casual basis.  You were paid $26 per hour and your income went to support your family.

21I have received a letter from Ali Ahmed, CEO of Youth Activating Youth Inc, dated 24 March 2020.  It confirms the recent contribution you have made towards young and disadvantaged people by being involved with events, workshops and sporting activities, including organising soccer tournaments.  Young members of your community look up to you.  The work you have undertaken with them is described as being quite inspirational.  The author believes that young people can learn a lot from the mistakes you have made.  He describes that you are a changed man, who is a positive influence on young people.

22Abeselom Nega, CEO of iEmpower, has written a letter to the court, dated
25 March 2020.  He confirms the contribution you have made towards other members of your community since 2018, particularly in youth development programs.  You have been viewed as a role model who is determined to remain a productive member of your community.

23Your father has worked as a taxi driver while living in Australia and is employed full time.  His shifts end at around 10.30 pm.  At the time of this offending, he required you to stay at home at night to help your sisters look after your family.  This expectation caused a significant amount of friction within the relationship you had with him.  Two days after the current incident, you moved out of home and were living in your car until the time of your arrest.

24You were remanded in custody on 18 July 2018 and released on bail on
16 November 2018.  This was the first time you had been incarcerated and you spent 122 days on remand.  Since your release on bail, you have complied with strict conditions, including a curfew, a residential condition and reporting to police three days per week.  These conditions may have assisted you to continue with your tertiary education, full time employment and engaging in voluntary work.  They also amount to an imposition on your liberty.  You have not breached these conditions, nor do you have any outstanding matters.

25Your father and other members of your family have been in court in the course of your trial.  Your family have not had any previous contact with the criminal justice system.  You are fortunate to have their strong and unwavering support.

26I take into account that measures taken by corrections to deal with the
COVID-19 pandemic may add to your hardship as a prisoner, particularly as you are 22 years of age and this is the first time you will be sentenced to imprisonment.  The prosecution concede as much.

27I do not provide any sentencing benefit on the chance that you may be placed in lockdown, in the course of your sentence.  As I understand it, should this occur, you may receive sentence reductions as a result of the administrative decision of the prison authorities.

28It is clear, however, that the current time will be more stressful for you than it would be if you were in the community.  This is not only due to your personal position of confinement, but also the hardship you may feel being absent from your family at this difficult time.  Further, the emotional impact of being unable to have any personal visits from your family for the foreseeable future will increase the burden of imprisonment.

29You are in good physical health and do not suffer from any mental health or medical issues.  You do not drink alcohol, nor take drugs of dependence.  You and your family are devout Muslims.  Up until the recent prohibition on gatherings, you have regularly attended your local mosque.  You continue to practice your religion and take comfort in your beliefs.  Notwithstanding your lack of remorse, I accept that your prospects of rehabilitation are good.

30Your counsel’s submission is that in light of your youth, the current circumstances in custody and the positive contribution you have made to the community over the past 16 months, a combined sentence being a term of imprisonment and a community correction order would be an appropriate sentencing disposition.  The prosecution submit that an immediate term of imprisonment, with a non-parole period is appropriate.

31The added anxiety that must flow from the current conditions in custody cannot camouflage the objective gravity of your offending.  The armed robbery was premeditated.  You used a firearm and your victim was a vulnerable person walking alone, at night, on her way home.  You have not shown any remorse.

32After careful consideration I am not persuaded that a combined disposition is appropriate.  There is a maximum period of 12 months' imprisonment available for such a sentence.  Despite the possibility that a 12 month period could commence today and not include the time served, I am not satisfied that this period of imprisonment is sufficient.  A significant term of imprisonment is the only appropriate disposition in this case.

33I take into account the maximum penalty for the offences and current sentencing practices.  I consider that general deterrence must be given significant weight within the sentencing process, as must the factors of denunciation and punishment.  It is conceded by the prosecution that specific deterrence is of less relevance in this case.  Rehabilitation is also an important feature in the sentencing mix. 

34The principle of totality needs to be considered, both in the sentences themselves and in the orders for cumulation.  I have taken care not to doubly punish you for the offences.

35Given that the three offences of attempting to obtain property by deception are founded on the same facts and in effect, form part of the one course of conduct, I intend to impose an aggregate sentence for those offences.

36Balancing these factors as best I can, I sentence you as follows: 

-Charge 5, armed robbery, convicted and sentenced to four years' imprisonment;

-Charge 6, obtaining property by deception, convicted and sentenced to nine months' imprisonment. 

-Charges 2, 3 and 4, attempting to obtain property by deception, convicted and sentenced to an aggregate of four months' imprisonment.

37I direct that Charge 5, being the four year sentence, be the base sentence.  Three months of the sentence imposed on Charge 6 is to be cumulative upon the base sentence.  All other sentences are to run concurrently. 

38That is a total effective sentence of four years and three months.  I fix a non-parole period of two years and ten months.

39I enter in the records of the court that 124 days have been served under this sentence.

40I make the order for disposal as requested.

41Is there anything further?

42MR MALIK:  No, thank you, Your Honour.

43HER HONOUR:  Thank you, I will leave the Bench.

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