Director of Public Prosecutions v Khayre, Yacqub
[2012] VCC 1607
•12 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01527
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YACQUB KHAYRE |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 October 2012 | |
DATE OF SENTENCE: | 12 October 2012 | |
CASE MAY BE CITED AS: | DPP v Khayre, Yacqub | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1607 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Hamnett | OPP |
| For the Accused | Ms T. Hartnett | James Dowsley & Associates |
HER HONOUR:
1 At about 20 to three in the morning of 22 April 2012, a young woman by the name of Dilara Barca returned to her home in Dallas, and on entering her bedroom, turned on the light and found you, Yacqub Khayre, in it. You had a torch in your hand, you were wearing black gloves, you were wearing clothing and jewellery that you had stolen from her brother's bedroom, and you had bags with you containing other items stolen from his bedroom and from hers. Each of you was surprised by the discovery that you were in her room or that she had come into her room, respectively. You each screamed loudly. You dropped the bags and tried to get past her. As you did so, you deliberately punched her in the face on the right side of her cheek, and then punched her hard in the stomach. As she double over as a result of the pain from that punch, you punched her in the back.
2 You ran out but into the toilet instead of away, and on your return from there, to try to make good your escape, you punched her on her shoulders. The screams had attracted the attention of her father, who was sleeping in another room in the house. He came out and saw a struggle between you and his daughter, and came up to you. You punched him in the face and head butted him with such force that you caused his nose to bleed.
3 Unbeknown to you, Ms Barca's father, who had only recently arrived in Australia, had spent 25 years in the Turkish Police Force. No doubt the skills that he had learnt there enabled him to get you to the floor, and with his daughter's assistance, to restrain you and to keep you there for as long as it took for the police to arrive.
4 When they arrived, it became clear that you had broken into the house and that you had stolen a considerable amount of valuable property from the bedrooms of the two Barca children. You were obviously impaired by some form of drug or alcohol, and amongst things found in your personal possessions, was a pipe for smoking ice. A knife was also found on you. The property that you took included a computer, a camera, an expensive handbag, coins, jewellery, a watch and clothing.
5 Because of the extent to which you were impaired by drugs, you were unfit to be interviewed at the time of arrest, and were remanded in custody. You told the police upon arrest that your name was Ahmed Ali, not your correct name. When the police later went to interview you when you were fit, you repeated your claim that your name was Ahmed Ali, although by then fingerprints had identified you as being Yacqub Khayre. You made a partial "no comment" interview and otherwise said that you could not remember the incident.
6 These offences - particularly the aggravated burglary (that is, entering the house intending to steal from it and armed with a knife) which carries a maximum penalty of 25 years, and intentionally causing injury, the attack on Ms Barca, which carries a maximum penalty of ten years' imprisonment - are serious offences.
7 Recklessly causing injury, the charge to which you have pleaded guilty relating to your punch and head butt to the face of Mr Barca, carries a maximum sentence of five years' imprisonment. The theft charges, two separate charges, one relating to Ms Barca's property from her bedroom, the other relating to her brother's property from his bedroom, technically carry a maximum sentence of ten years each. However, as they could have been dealt with summarily had they not been bound up with these other more serious charges, I consider that the summary maximum of two years per charge is a more appropriate guide to assessing the maximum sentence available for those charges. The summary charge, to which you pleaded guilty, of giving a false name, is punishable by fine.
8 The seriousness of your offending is made worse by your criminal history. You are 24 and have a very sorry criminal record. In April 2007, you were sentenced by Magistrates' Court for somewhere between 42 and 45 offences. This was a consolidated hearing where multiple discrete criminal activities were dealt with. You were sentenced to be detained for those in a Youth Justice Centre for two years. Almost all the charges for which you were dealt with then are relevant charges when considering or assessing the gravity of your conduct on this occasion.
9 Those charges included multiple burglaries and thefts, a charge of going equipped to steal and one of unlawful assault. There were also a number of charges of giving a false name and address, and one each of failing to answer bail and of assaulting or resisting arrest. You also, at that stage, were dealt with for individual charges of possession of amphetamines, car theft, unlicensed driving and driving at a speed dangerous. In other words, wholesale and widespread criminal activity.
10 Two months later, whilst still serving that period of youth detention, you were sentenced by His Honour Judge Gullaci in this court for attempted armed robbery and intentionally causing injury. The circumstances of those offences were also very serious. You and a friend had accosted a young man, a passenger on a train. You pulled out a knife, demanded his money and his phone, and stabbed him twice in the leg. Those offences were committed whilst you were on bail for at least some of the summary charges which resulted in the imposition of the Youth Justice Centre sentence. His Honour Judge Gullaci expressed concern at that stage about your drug and alcohol abuse, and about your failure to take advantage of the assistance that had been provided to you whilst you were on bail with accommodation and treatment programs, with your continued abuse of drugs and alcohol, your continued offending whilst on bail and your continued use of drugs whilst serving your sentence of youth detention. Although considering that, for the attempted armed robbery and the intentionally causing injury charges, a term of imprisonment was warranted, His Honour sentenced you to a fully suspended sentence, which was to run parallel with the Youth Justice Centre sentence that you were still serving.
11 Eight months after His Honour sentenced you, you again faced a court, this time on single charges of burglary and theft, and were released on an adjourned undertaking.
12 There is then a gap of about three and a half years before you were next sentenced, in November 2011. I will return to that gap shortly. In November 2011, you were sentenced to 111 days' imprisonment for two firearms offences, one of being a prohibited person in possession of a firearm and the other possession of ammunition without a licence, and one charge each of car theft and failure to answer bail. The day after you were sentenced for those offences, you were sentenced for one charge of handling stolen goods and one of stating a false name and address. They appear to have been treated as a consolidation of or as part of the overall sentencing for the offences for which you had been sentenced the previous day, as you were sentenced to one day's imprisonment for those two on the later date.
13 You were released on the day of the second sentence, as you had already served the 111 days and the one day whilst on remand. It was only five months later that that you committed these offences, and you have been in custody since.
14 In all, you have 16 priors for burglary, one for aggravated burglary, and 15 for theft (not including car theft). You have the one serious conviction for attempted armed robbery, one conviction for intentionally causing injury, one for unlawful assault and two for firearms offences.
15 In her careful and considered plea submissions, Ms Hartnett did not seek to minimise the seriousness of the charges that you now face, or the consequences for you. She acknowledged it was hard to imagine a more frightening experience for Ms Barca than to come across you as she did, in her bedroom as she entered it in the early hours of that morning.
16 The effect on Ms Barca has been profound. Her victim impact statement, which was long, was read aloud in the course of the plea hearing, and I do not need therefore to read it all again. However, there are some matters that I do wish to highlight. She speaks eloquently of the anger, fear and guilt that she has suffered and continues to suffer as a result, and the effects on her. She says it has been very hard to deal with the anger resulting from the robbery, and she felt so unsafe in her own room and her house that she has ultimately had to leave the house and find accommodation elsewhere.
17 She said it was hard and exhausting to live with the level of fear and anger that she had, and she has found it very difficult, even with professional assistance, to move on from that. She has had great difficulty concentrating on her studies, and that is a difficulty that has been compounded by the fact that, in the course of the theft of her computer, you dropped it, destroying everything that was on the hard drive, and destroying not only her original files but her backup files of her university work. She was in her final year of university, studying engineering, and had a job lined up for the following year.
18 The effect on her of the burglary, both in terms of her emotional state and the loss of her work meant that she did not complete her studies this year, and has had to forego the cadetship that she had, as a graduate, lined up for next year, in anticipation of the completion of her studies. She feels that she has lost a year of her life, that she will never be able to get back, and feels that she has lost what, at this stage anyway, seemed to her to be her dream job.
19 Her response is certainly at the higher end of the range of responses to offences of this type, but nonetheless, the feelings she described are, although more intensely felt by her than by many other people, typical of the responses that are described by victims of similar crimes. The extent of her reaction to it and the difficulties that she has had in coming to terms with it, are supported by the counsellor's report that was attached to her victim impact statement.
20 Her father, Ridvan Barca, has also been significantly affected. He did not suffer as much physically or emotionally as his daughter did, but he too has suffered significantly from his sense of violation of safety. He had only relatively recently arrived in Australia. English is not his first language and one of the effects he described was the feeling of helplessness, as he appreciated that his limited command of English made it difficult for him to seek assistance, and has made him fear that, were he subjected to a similar invasion of his home and assault again, or any other criminal activity, that he would be hampered in his ability to seek help for his family and himself.
21 He too has lost that sense of safety he had had in his house, in his new country, and has also felt helpless and guilty because he has been unable to protect and assist his daughter.
22 Tolga Barca, Ms Barca's brother and Ridvan Barca's son, was not present during the burglary. He is a victim in respect of the theft and destruction of his property, and the violation of his sense of privacy of his bedroom in the same way his sister was. He is also a secondary victim because he, like his father, feels a sense of guilt and helplessness as he looks at his sister's suffering and feels unable to assist her in coming to terms with what has happened and to move on.
23 It is easy to shrug off the effects on people of the breaking into their home, the going through their bedrooms and the loss or destruction of their property, to think that, once the person is gone, the fear is gone and that insurance can cover the loss, or that this is really only a property offence. But as Ms Barca's victim impact statement makes very clear, that is a fallacy. Her possessions may have meant nothing to you and her brother's possessions may have meant nothing to you, or no more than the amount of money you could trade them for, but as the victim impact statements make clear, for Ms Barca the content of her computer was irreplaceable, and has had effects well beyond the loss of the dollar value of the computer, and the sense of violation of the safety of her home and of the privacy of her bedroom has been significant for both of them.
24 It is clear, as Ms Hartnett acknowledged, that punishment, denunciation and deterrence, both general and specific, are significant sentencing considerations. Features that add to or help identify the seriousness of this offending, and make therefore those considerations of punishment, denunciation and deterrence important in this case, include these:
- you broke into what was clearly a residential property, a family home, at night;
- you had a knife;
- you were wearing gloves;
- you were drug-affected;
- you have a serious previous conviction for attempted armed robbery and intentionally cause injury, the intentionally causing injury being stabbing a stranger after threatening him with the knife relating to a demand that he hand over relatively meagre possessions: any money he had on him and his phone. Therefore, the use of the knife and the stabbing of the knife are significantly disproportionate to the meagre financial gain you may have obtained;
- you have multiple prior convictions for burglaries and thefts;
- you have a long history of drug abuse and, on the material before me, it would appear you have not been prepared to address that or the offending associated with it. Attempts to assist you to address your drug abuse, both by bail conditions and by a sentence with a significant rehabilitative component to it, when you were sentenced to youth detention, have not deterred you in the past or led you to take any steps to address your drug abuse; and
- you assaulted the Ms Barca in circumstances where you came across her unexpectedly and tried to escape. Although, on one level, that can be seen as reactive, you struck her repeatedly. Therefore, they were repeated acts of gratuitous violence on somebody who was clearly a terrified young woman, and you struck her father - punched and head butted him in two separate acts - he an obviously much older man than you.
25 You are 24 and have lived in Australia since you were a child, when you and your grandparents came here as refugees from Somalia via a Kenyan refugee camp. In time, your parents joined you in Australia, but your relationship with them was difficult. I was told they were conservative, traditional and strict, and that you had experienced the freedom of Australian life for longer than they had, and that caused conflict. Your grandfather was the most significant figure in your life and, in addition to the authority he held over you, was a respected leader of the Somali community that was establishing itself here in Melbourne. Your grandfather died towards the end of your secondary schooling and you lost his steadying influence. At about that time, it would appear you had already started dabbling in drugs and alcohol, but following your grandfather's death, you began abusing them seriously. You did not complete your schooling, and the cycle of drug abuse and committing offences commenced then, and has continued until now.
26 When he sentenced you, His Honour Judge Gullaci considered that your prospects for rehabilitation were at that stage limited unless you were able to overcome your drug and alcohol dependency. You have clearly not been able to do so. You were drug-affected when arrested, so much so that you were unfit to be interviewed. I am told you are addicted to ice, and that the offending was committed not only whilst under its influence but and in order to obtain items of value to trade for more ice.
27 That you were drug-affected at the time adds to the seriousness of the offending. It adds to the danger you posed and the risk you posed to anybody in your path. It makes the conduct of Mr Barca and his daughter even braver in a sense, but clearly also placed them at more risk. It is no mitigator that you were drug impaired and that offending was in order to obtain saleable items to obtain more drugs.
28 You are now isolated from your family and community. There was no family at court to support you. You have had a few visits only from one sibling, but no other contact with family or community members. I am told that they have washed their hands of you. Judge Gullaci identified one of the factors that limited your prospects for rehabilitation was, back then, the absence of family and community support. It would appear, from what His Honour Judge Gullaci said, that you were estranged from your family and the community at the time he dealt with you, although I was told that you had continued to enjoy their support until recently.
29 In the time between your release from youth detention and your remand in custody for the matters for which you were sentenced in November last year, you were not at liberty for the whole time. I was told you spent 16 months of that period in custody. You had been charged with terrorism offences and denied bail. After 16 months in high security remand you were either acquitted or discharged and released from custody. It was not long after your release that you resumed your drug use and, I was told, finally lost that family and community support.
30 I was not told any more about the circumstances in which you were charged or released. There is no basis to find, as was the case in Warwick v R [2010] VSCA 166, that you had been the victim of considerable injustice, so justifying a reduction in the sentences to be imposed for these offences. As Callaway JA said in R v Kotzman, which was quoted with approval in Warwick at [9], there can be no question of a person on remand who is subsequently acquitted acquiring a kind of bank balance on which you should draw in relation to subsequent offences unconnected with the reason for custody. In my view, the circumstances here do not justify a significant reduction in the sentence to be imposed for these offences by reason of that 16 months that you spent on remand in relation to the other unrelated offences, and in respect of which you had been released before committing these offences.
31 I can only echo what Judge Gullaci said when sentencing you: if you do not stop abusing drugs, you have limited prospects for rehabilitation. It would appear that each time you have been released from detention or custody, you have rapidly turned back to drug abuse, and nothing has been put to me to indicate that you demonstrate any will or commitment to address it.
32
There is a real risk you will become even more isolated than you are now, institutionalised, and at increasingly high risk of reoffending. You are only
24 and you have spent more time in custody than in the community since your late teens. You went from youth detention to high security detention in a adult prison at only 20, and you faced the prospect of life imprisonment throughout that time. However it was that you came to be released, that 16 months of your youth is a time you will never get back.
33 Given your youth, and despite the gloomy prospects presented to me, I consider I should impose a sentence which will provide encouragement to you to address your drug problem in custody, and to have available to you the prospect of release on parole and support and supervision on parole, so as to assist you to remain offence and drug-free upon your release.
34
This, unfortunately, is not your last matter before a court. You have other, unresolved charges pending, although these are the most serious of them.
I hope that the other matters will soon come to finality too, that you will then be able to have a certain sentence and a certain release date, and that you will be able to use the remaining time in custody to reflect, to develop hope for a more rewarding future, to start to think about and to implement strategies for remaining drug-free and to assist you to re-engage with family and friends who are not part of the drug subculture, and so look forward to having a better and more rewarding life in your mid-20s and thereafter than you have had since your late teens to now.
35 I have structured the sentence to allow for and to encourage that hope for you.
36 Yacqub Khayre, on the five charges and the one summary charge to which you have pleaded guilty before me, you are convicted.
37 On Charge 1, of aggravated burglary, you are sentenced to be imprisoned for a period of three years.
38 On Charge 2, of theft from Tolga Barca, you are sentenced to be imprisoned for one year.
39 On Charge 3, of theft from Dilara Barca, you are sentenced to be imprisoned for a period of one year.
40 On Charge 4, of intentionally causing injury to Dilara Barca, you are sentenced to be imprisoned for a period of three years, and I direct that two years of that be served cumulatively upon the sentence on Charge 1 and the other partial cumulation order I am about to make.
41 On Charge 5, of recklessly causing injury to Ridvan Barca, you are sentenced to be imprisoned for one year and I direct that six months of that be served cumulatively upon the sentence on Charge 1 and the partial cumulation order made in respect of Charge 4.
42 On the summary charge of provision of a false name, you are fined $250.
43 That makes a total effective sentence of five years and six months. I fix a non-parole period three years.
44 I declare that you have spent 173 days in pre-sentence detention and direct that that be reckoned as part of the sentence already served.
45 Pursuant s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have sentenced you on the five indictable charges to a total effective sentence of eight years, and I would have fixed a non parole period of six years.
46 I have been asked to make a disposal order and I propose to do so.
47 Do the sentences as I have pronounced reflect what I said I intended to do?
48 MS HAMNETT: Yes, Your Honour.
49 MS HARTNETT: Yes, Your Honour.
50 HER HONOUR: Arithmetic correct?
51 MS HARTNETT: Yes, everything is correct, Your Honour.
52 HER HONOUR: No further orders or declarations?
53 MS HAMNETT: No, Your Honour.
54 HER HONOUR: I have signed the disposal orders. Ms Hartnett, do you have another court to go to?
55 MS HARTNETT: I do, Your Honour, yes, at 10.30.
56 HER HONOUR: You have time to go downstairs then?
57 MS HARTNETT: I will.
58 HER HONOUR: Otherwise I was going to stay here, if you wanted to speak briefly to Mr Khayre before - - -
59 MS HARTNETT: I might say, if I might see him - - -
60 HER HONOUR: Yes. I have got to stay here.
61 MS HARTNETT: Thank you, Your Honour. Might I approach the dock?
62 HER HONOUR: Yes. Speak to him away from the microphone, Ms Hartnett, so that it does not inadvertently leak.
63 MS HARTNETT: Thank you, Your Honour.
64 HER HONOUR: Thank you, Ms Hartnett. That was a big day you had the other day and that was, I thought, a particularly sensitive plea for someone who is in a desperate state.
65 MS HARTNETT: Thank you, Your Honour. I am grateful to Your Honour for accommodating both matters also.
66 HER HONOUR: Very well, adjourn.
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