Director of Public Prosecutions v Maalin
[2017] VCC 1191
•25 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00118
Indictment G12024334
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMED MAALIN |
---
JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 25 August 2017 | |
CASE MAY BE CITED AS: | DPP v Maalin | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1191 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Karamicov | |
| For the Accused | Ms S. Tovey |
HER HONOUR:
1 Mohamed Maalin, you have pleaded guilty to two charges of attempted robbery, Charges 1 and 4; one charge of recklessly causing injury, Charge 2; one charge of theft, Charge 3; one charge of common assault, Charge 5; two charges of attempting to pervert the course of justice, Charges 6 and 8; and one charge of making threats to destroy or damage property, Charge 7. You have also pleaded guilty to three uplifted summary charges, being one charge of contravening bail conditions, Summary Charge 6; and two charges of harassing a witness, Summary Charges 43 and 44.
2 The maximum penalty for attempted robbery and theft is ten years’ imprisonment. The maximum penalty for recklessly causing injury, common assault and making threat to damage property is five years’ imprisonment. The maximum penalty for attempting to pervert the course of justice is 25 years’ imprisonment. The maximum penalty for the summary offence of contravening a bail condition is 30 penalty units or three months’ imprisonment. The maximum penalty for the summary offence of harassing a witness is 120 penalty units or 12 months’ imprisonment.
3 The prosecution made application for the taking of a forensic sample from you and for forfeiture of certain items. The making of those orders was not opposed.
4
The circumstances of your offending are set out in detail in the Summary of Prosecution Opening upon Plea, Exhibit A. Your offending took place between Saturday 16 July 2016 and Saturday 23 July 2016. At about 3.15 pm on Saturday 16 July 2016, you knocked on the front door of a convenience store in North Melbourne. The convenience store was operated by a 60 year old lady, Ms Lang Ha. After an earlier armed robbery, Ms Ha had installed a secure front door which she could open by a remote control, which she wore on
a lanyard around her neck. When you knocked on the door, Ms Ha opened the door to you and your male friend who had gone to the store to purchase cigarettes. An argument broke out between the three of you. You demanded cash from Ms Ha, who picked up her mobile phone to call police. You grabbed the mobile phone and threw it to the ground. You then held a clenched fist to Ms Ha’s face, making a further demand for cash (Charge 1, attempted robbery).
5 You then grabbed Ms Ha by the arm and hair and pushed her to the ground (Charge 2, recklessly causing injury). Your friend stood by the door, telling you to stop. You threw a few items around before you left with a beanie and a pair of woollen gloves (Charge 3, theft). Ms Ha followed you out. You and your friend ran from a tram that you had boarded. You ran into a bottle shop and purchased some alcohol, which you went into a nearby park to consume.
6 Your actions caused the victim to suffer significant bruising to her arms, body and legs, as well as lacerations to her head and left knee and swelling to her left hand. She was diagnosed with a broken wrist.
7 At about 7.20 pm that night, you and your friend returned to the store. Your friend went into the store as two customers left. Ms Ha refused to serve your friend and pushed him out the door, as you entered wearing a balaclava. Ms Ha closed the door, locking your friend outside. You jumped over the counter and grabbed a bucket which contained the day’s takings. You began to walk to the door with the bucket, but Ms Ha took hold of the bucket as well. You both pulled at it, causing the money to spill out. You kicked some coins towards the door (Charge 4, attempted robbery).
8 Ms Ha tried to call the police on her landline but you took her phone and threw it into the store. Ms Ha called police on her mobile phone. Ms Ha then threw her lanyard and remote control away so that you could not open the door, keeping you in the store until the police arrived. You demanded that she retrieve the lanyard and give you the remote. Ms Ha ignored you. You became angry and you removed your beanie or balaclava. Ms Ha then recognised you as the same person who had been there earlier in the day. You were angry and took a can of Red Bull from the fridge. You drank half of it and then poured the remainder over the victim. You did this a further two times in succession (Charge 5, common assault). Police arrived and arrested you.
9 You were interviewed and told police various things, including that you were defending yourself from the victim who had stolen money from you. You admitted returning to the store. You said you had only grabbed the box of money to tease the victim. You denied pouring drink over her. You were charged and bailed with conditions that you not contact prosecution witnesses, or be at or within 500 metres of the convenience store. The police again told you when you were escorted out of the police station, that you were not permitted to return to or go anywhere near the store. By this time, it was about 2.00 am on 17 July 2016.
10 Later that same day, you went back to the store and entered by following in after another customer. You approached the victim and said, “I'm sorry, can you drop the case?” Ms Ha answered, "No." You continued to ask her to drop the charges three or four times (Summary Charge 43, harass witness).
11 On Monday, 18 July 2016, you returned to the store. You took your mother with you on this occasion. Your mother rang the bell, while you remained out of view. Ms Ha allowed your mother entry and you entered the store. Your mother identified herself and asked Ms Ha why she had called the police. She told Ms Ha that you were a good boy and would not have committed the robbery. You apologised again and told Ms Ha that if she were to withdraw the charges, your mother would pay her money. Your mother left her number and asked Ms Ha to call. You both left the store (Charge 6, attempt to pervert the course of justice).
12 On Tuesday, 19 July 2016, you returned to the victim’s store again. You barged through the front door as a customer was leaving. You walked right up to the victim and yelled at her, “Hey, have you dropped the case yet?” (Summary Charge 44, harass witness). Ms Ha replied, "No", to which you responded, “This time, if I get into trouble, I will come back and burn your shop down.” You also pointed to Ms Ha’s car that was parked outside the store and threatened to damage this too. (Charge 7, making threats to damage property). You told
Ms Ha that you were a gangster as you left the store.
13 At about 9.40 pm on 23 July 2016, you returned again to the store with another male and entered by waiting for a customer to leave. Ms Ha recognised you and immediately locked the front door, locking you into the store. You again asked Ms Ha to drop the case. You told Ms Ha you were a gangster and would be able to get the charges dropped yourself (Charge 8, attempt to pervert the course of justice). Ms Ha called the police. You chased her around the store and yelled at her while she was on the phone. Police arrived and attempted to arrest you, but you ran from the police. Police gave chase and you were arrested approximately 350 metres away.
14 You had entered the victim’s store on a total of four occasions, in contravention of your bail conditions (Summary Charge 6, contravention of bail conditions).
15 You were again interviewed on 16 August 2016. You acknowledged that the police had told you not to go to the store and said that you had laughed at the police when they gave you this warning. You said you went to the store to try to help your situation. You denied that your mother had offered the victim money in exchange for dropping the case. You said you did not go into the store to pressure Ms Ha to drop the case and only went there to apologise.
16 Your plea was entered at the committal hearing on 30 January 2017. It is accepted that your plea was entered at the earliest opportunity. You spent one night in custody when you were arrested on 16 July 2016. When you were arrested on the second occasion, you were remanded in custody from 23 July 2016 to 6 December 2016 when you were granted bail. That resulted in a total then of 139 days of pre‑sentence detention.
17
Two victim impact statements were tendered, being Exhibit B, victim impact statement made by Ms Ha on 26 April 2017; and Exhibit C, victim impact statement made by Ms Ha on 1 August 2017. In her first victim impact statement, Ms Ha describes the emotional impact that your offending has had on her, including sleepless nights and constant nightmares. She says she has struggled to open the shop and has reduced her opening hours. She says, “I feel anger, fear and frustration and I feel that I have been targeted because
I am an older woman.”
18 Ms Ha describes her physical injuries and her feeling of humiliation as a result of those injuries. She describes the financial impact. Significantly, Ms Ha says that she is unable to trust in the way she used to trust people and is more socially isolated. She worries about continuing her business, but could not survive financially without the business.
19 In her second victim impact statement, Ms Ha says that unfortunately there has been no improvement to her emotional, physical or mental situation and that she is still having nightmares. She says she is still fearful and has limited hours of opening. She feels very vulnerable on her own in the shop. She says that it is very unfair what has happened and that she did not deserve what happened to her. She says that she does not trust people in the area.
20 In sentencing you, I have taken into account your personal circumstances. You are now 24 years old. You were born in Kenya. Your parents are Somali-born refugees who came to Australia from Kenya in 1993, when you were six months old. You are the eldest child, with eight younger siblings aged between six and 23. Your family all live in the same family home in suburban Melbourne.
21
You completed Year 12 in the VCAL program. After school you did
a pre‑apprenticeship automotive course. From 2012 to 2015, you were employed in a restaurant which was part-owned by your father, who also works as a taxi driver. From that time until the present, you have been employed in your mother’s store. Your mother has a store selling furniture, carpets and other home wares. Both your parents were in court to support you, as were other relatives.
22 You commenced using cannabis when you were 18 and used cannabis daily up until your arrest. You were also drinking alcohol at the time of your offending.
23
You have admitted a limited but relevant prior criminal history. In January 2013, you were placed on an adjourned undertaking on one charge of assault police. In December 2012, you were convicted on charges of robbery, dishonest retention of stolen goods and failing to answer bail. You were sentenced to
a 15‑month community correction order, with community work and treatment and rehabilitation conditions.
24 In sentencing submissions, your counsel submitted that the appropriate sentence would be a sentence combining imprisonment with a community corrections order. Your counsel submitted that the time you had already spent in custody had been significant in teaching you a lesson and that a sentence could be considered which meant that you did not need to spend any longer time in custody. Your counsel conceded that your offending was objectively serious, but submitted that it was also characterised by immaturity. He argued that your immaturity “speaks to” an age lower than your age of 23 years at the time of the offending. Your counsel submitted that as a youthful offender, your rehabilitation ought be a primary sentencing consideration.
25 Your counsel also relied in mitigation on:
(a)Your good behaviour since being released on bail in December 2016;
(b)Your abstinence from cannabis and other illicit drugs;
(c)Your reduced alcohol consumption;
(d)Your plea of guilty;
(e)Your remorse;
(f)Your positive prospects of rehabilitation.
26
The prosecutor submitted that a term of imprisonment was the only appropriate sentence, given the persistent nature of your offending. The prosecutor submitted that a sentence combining a community corrections order with
a custodial sentence, would unduly constrain this court, in terms of the length of the sentence of imprisonment. The prosecutor submitted that, given the totality of your offending, the gravity of your offending was at the higher end of the scale. The prosecutor addressed aggravating features of your offending, including the harm caused to the victim. The prosecutor submitted that general deterrence and specific deterrence were relevant sentencing considerations, as was denunciation.
27 The prosecutor accepted that your early plea would operate in mitigation of sentence and that your prospects of rehabilitation appeared to be fairly good, provided you remained away from bad company.
28 Mohamed Maalin, your offending behaviour over the week covered by these charges was serious. You repeatedly preyed on an older and vulnerable person in a variety of ways. Your behaviour was repeatedly bullying and threatening. You went back into the shop knowing you were going against bail conditions. You also know Ms Ha did not want you in her shop, so you waited for an opportunity and sneaked in. On the occasions where you apologised, that apology must be seen in the context of your previous behaviour and your subsequent behaviour. I do not accept that your apologising to the victim at that stage was anything but an attempt to try to persuade the victim to not proceed in respect of charges against you.
29
While it is true that, as your counsel submitted, the complainant had already made a statement at the time when you were trying to get her to withdraw from the matter, that does not reduce your moral culpability. You did not know whether or not the police would proceed if the complainant wished to withdraw her complaint. It is, of course, obvious that the police would be in a difficult situation if the complainant refused to give evidence. I have no doubt that what you were intending to do was to try to pressure and cajole her into not
co-operating with the authorities in the prosecution against you.
30 You initially threatened her and assaulted her and tried to rob her in her own shop. You treated her in a bullying, aggressive, humiliating and arrogant fashion. In breach of your bail and against the warnings given to you by the police, you attended again on multiple occasions and attempted to pressure, threaten or cajole the victim into dropping the charges.
31 Ms Ha demonstrated considerable and unusual courage in standing up to you in your demands of various sorts. She managed on two occasions to trap you so that the police could come and arrest you. Despite having been injured by you in what must have been very frightening circumstances, she stood up to you. That is to her credit. It is not to your credit.
32 On the material I have been provided with, your offending appears to have had far more to do with a period of time when you were keeping bad company and had developed attitudes which might be described as anti-social. Those attitudes were not the result of your drug and alcohol consumption, but included bad attitudes towards drugs and alcohol, as well as bad attitudes about violence and threats of violence towards others. Whilst your behaviour may well have been stupid and unthinking, I do not consider that immaturity explains the nature of your offending. There is nothing on the material that I consider demonstrates that you were unusually immature for a 23-year-old, rather the material demonstrates that you had developed extremely poor attitudes. What you did was very wrong and your moral culpability is high.
33 Your counsel submitted that in respect of the attempt to pervert the course of justice, the offending was towards the lower end. The prosecutor did not address that point directly, but submitted, as I have said, that the totality of your offending meant that the gravity was towards the higher end of the scale. I agree that in respect of each of your offences, apart from the recklessly causing injury charge, the offending was towards the lower end in respect of that type of offence. The persistent and repeated nature of your offending over six days and the cumulative impact of your offending on the victim, renders the totality of your offending considerably more serious.
34 You are a youthful offender and your rehabilitation is an important sentencing objective. It is to your credit that you have remained offence-free since your release in December 2016. It appears from the reference provided by your sister, Exhibit 2, that you have ceased your association with troublemakers. Your sister says that you have grown more mature since your time in custody and that you have stopped resorting to those behaviours that got you into trouble.
35 You were assessed in December 2016 by the Court Integrated Services Program. The writer of a report, dated 27 January 2017, refers to a report from Odyssey House, which says that your experience on remand had changed your thinking about drugs, resulting in abstinence. It was the opinion of the Odyssey House report writer that your offending behaviour appeared to be more related to the company you had kept, rather than drug use. I note that the CISP case manager says that you appeared both remorseful and ashamed about the attention that your offending had brought on yourself and your community. You were assessed as not requiring treatment.
36 Your attitudes and behaviour since the period that you spent in custody suggest that you are capable of changing your attitudes and behaviour. You continue to have family support and the support of others in your community. These matters suggest that your prospects of rehabilitation are reasonably good.
37 I consider that specific deterrence must be given some weight in sentencing you, particularly in the light of your prior criminal history. It is disturbing that you previously completed a community correction order, yet appear to have learnt nothing from that experience, in terms of changing your behaviour for the better. The message must get home to you that if you re-offend, the consequences for you will be increasingly more severe. It is to be hoped that this prospect will discourage you from further offending.
38 I consider that general deterrence must also be of some significance in sentencing you, particularly in respect of sending the message out to the community that violence will not be tolerated, nor will breaches of bail be tolerated, nor will efforts to harass witnesses or efforts to pervert the course of justice be tolerated. The application of general deterrence ought be moderated because you are a youthful offender, but remains a significant sentencing consideration because of the seriousness of your offending.
39 You are entitled to a significant discount for your plea of guilty. That plea of guilty has saved the trauma, expense and inconvenience of a trial. I consider that your plea of guilty is also an expression of your remorse. I consider that you are particularly regretful, embarrassed and ashamed because of the attention your offending has brought on your family and your community. I consider that, to a degree, you are now also genuinely remorseful in respect of the harm you have caused to the victim.
40 In sentencing you, I have taken care not to impose double punishment in respect of the same behaviour, given that the charge that relates to the breach of bail covers the same conduct as the charges of harassing a witness and attempting to pervert the course of justice.
41 Despite your youth and the matters in mitigation, I consider a sentence of imprisonment is warranted for the purposes of denunciation, just punishment and general and specific deterrence. General deterrence is an especially important sentencing consideration in respect to the offence of attempting to pervert the course of justice. Others must be deterred from trying to undermine the administration of justice by persuasion, bribes or threatening behaviour. It is serious that on one occasion you went with your mother in an apparent attempt to persuade and bribe the victim. I regard the second occasion as more serious, because you returned alone later at night after four days earlier harassing the witness and threatening her property.
42 I accept the argument by your counsel that offences of attempting to pervert the course of justice vary considerably in seriousness. That is reflected in the cases to which I was referred of R vBuscema [2011] VSC 206 and DPP v Aydin and Kirsch [2005] VSCA 86, but both cases demonstrate the seriousness with which this type of offending is taken and the need to take into account the maximum penalty and the need for general deterrence.
43 Your rehabilitation remains, as I have said, an important sentencing consideration. You have been assessed as suitable for a community correction order. I have decided that, taking into account your age, prospects for rehabilitation and progress since you were released on bail, a sentence of imprisonment, to be followed by a community correction order, would adequately reflect the required sentencing objectives, given the seriousness of your offending. I consider this to be a case where the principles set out in Boulton & Ors v R [2014] VSCA 342, squarely apply.
44
The offences covered by Charges 6, 7 and 8 were committed whilst you were on bail. Pursuant to s.16(3C) of the Sentencing Act1991, there is
a presumption of cumulation in respect of the sentences on those matters.
I consider that some cumulation is warranted, but the complete cumulation would offend against the principles of totality and proportionality. Some cumulation is warranted in respect of different incidents and charges to reflect the additional grave behaviour on your part. I have taken those matters into account in deciding on the appropriate sentence.
45 I have said that I intend to convict you on each charge and sentence you to an aggregate term of imprisonment, to be followed by a community corrections order to last for 18 months, with the following special conditions.
46 Could you please stand, Mr Maalin.
47 The special conditions that I propose are supervision, assessment and treatment for drugs and alcohol and programs to reduce re-offending and supervision.
48 You have had the core conditions explained to you. A very important core condition is that you do not re-offend while you are on a community corrections order. If you do, you may be brought back before me and re-sentenced.
49 You have had the opportunity to go through the proposed special conditions with your counsel. Do you consent to the making of the community corrections order?
50 OFFENDER: Yes, Your Honour.
51 HER HONOUR:
52 ON Charge 1, attempted robbery;
53 Charge 2, causing injury recklessly;
54 Charge 3, theft;
55 Charge 4, attempted robbery;
56 Charge 5, common assault
57 Charge 6, attempting to pervert the course of justice;
58 Charge 7, making threats to destroy or damage property;
59 Charge 8, attempting to pervert the course of justice;
60 Summary Charge 6, contravening bail;
61 Summary Charge 4, harassing a witness;
62 Summary Charge 44, harassing a witness;
63 You are convicted on each charge and sentenced to an aggregate term of imprisonment of 12 months, to be followed by a community correction order to last for 18 months, with the special conditions that I have outlined.
64 The total effective sentence is 12 months' imprisonment.
65 There is no non-parole period.
66 I have calculated the pre-sentence detention as being 143 days.
67 MS KARAMICOV: Yes.
68 HER HONOUR: Counsel agrees, thank you.
69 I declare that you have served 143 days of this sentence by way of pre-sentence detention, to be deducted administratively.
70 But for your plea of guilty, I would have sentenced you to a term of imprisonment of 34 months, with a non-parole period of 22 months.
71 I have made the orders for forfeiture of certain items that were sought.
72 I am also making an order for the taking of a forensic sample from you.
73
I am required to explain to you, Mr Maalin, that when the authorities come to take a sample, you must co-operate with them. They will come to take a saliva swab from your mouth. I am sure you will co-operate with them. If you do not co-operate with them, they are allowed to use reasonable force and to take
a blood test. So, I am sure you will co-operate.
74 OFFENDER: Yes, Your Honour.
- - -
0
2
0