Director of Public Prosecutions v Macaw
[2019] VCC 122
•8 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-18-00084
CR-18-01835
Indictment No. C1711343.3
C1711343.4
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AQIL MACAW |
---
JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATES OF PLEA HEARING: | 29 October 2018 and 14 December 2018 | |
DATE OF SENTENCE: | 8 February 2019 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Macaw | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 122 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – plea of guilty
Sentence: Total effective sentence of five years and three months, with a non-
parole period of three years.
Section 6AAA discount: six years’ imprisonment with a non-parole
period of four years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N Hutton | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr A Marshall | James Dowsley & Associates |
HER HONOUR:
1 Aqil Macaw, you have pleaded guilty before me to three charges of armed robbery, one charge of attempted armed robbery, and been found guilty by a jury of two charges of armed robbery.
2
Dealing first with the matters the subject of the Plea Indictment C1711343.4, Exhibit A on the plea in mitigation was a Summary of Prosecution Opening.
I incorporate that document as part of my reasons for sentence. However,
I will briefly summarise the offending that has brought you before the Court.
3 The incident the subject of Charge 1 occurred in the morning on 27 June 2017. In response to a call to 13CABS, Sunil Sunil attended at an address in Yarraville. You got into the rear of the cab and your co-offender, Asad Nur, got into the front passenger seat. As the taxi drove off, you produced a knife and made a demand of the driver. At the same time, your co-offender produced a bottle opener and threatened Mr Sunil with it. The victim complied and handed over his mobile phone, his wallet, and $400 cash, as well as some Indian rupees. Both you and your co‑offender then got out of the taxi before getting into a waiting car.
4 The incident the subject of Charge 2 occurred late in the evening on 1 July 2017. In response to a call to 13CABS, a taxi driver, Sukhveer Singh, attended at an address in Travancore. On arrival he saw you and another male standing nearby. You got into the front passenger seat and the second male sat in the back. You said that you were travelling to North Melbourne. You produced a knife and pointed it at the driver while the second male also produced a knife and held it to the taxi driver's throat. A demand was made of the driver and you took his black iPhone from the centre console. You then left the taxi with the other male.
5 The third incident, the subject of Charge 3, occurred in the early hours of 2 July 2017. In response to a call to 13CABS, a Mr Niraj Banger, a taxi driver, attended at an address in Sunshine West. On arrival, he saw you walking towards his cab. You got into his cab and sat in the front passenger seat. You told him that you needed to go to Footscray Train Station but the driver had to wait for some other friends to come to the taxi. While waiting, you then said to the driver, “I want to stab you” and pulled out a knife and a sheath. You then made a demand of him and at the same time you were holding the knife and pointing it at him. You took his iPhone 4. The driver then began to drive off and you leapt out of the taxi whilst it was moving.
6 The next incident on the Plea Indictment, which is a charge of attempted armed robbery, also occurred in the early hours of 2 July 2017. Cemile Acik, a taxi driver, was at the cab rank at Sunshine Railway Station. You got into her taxi and sat in the front passenger seat. You said you wanted to go to Ardeer and that you would show her the way. When the taxi arrived at Ridgeway Parade, Sunshine, you said, “stop here, corner house”. You then reached into your pocket and produced a knife described as about 20 to 30 centimetres long. You then made a demand of her. Ms Acik pretended that she did not have anything with her and asked you to leave her cab. You got out of the cab and she drove to the Sunshine Police Station to report the matter.
7
Turning now to the incidents the subject of the Trial Indictment C1711343.3.
In the early hours of 9 June 2017, Muhammad Suleman, a taxi driver, attended at an address in Maidstone. You, along with your co‑offender, llyas Ahmed, approached his cab and got in. You sat in the back of the cab, while Ahmed got into the front. The driver was directed to drive a short distance to pick up another person but refused as he was scared for his safety. You and Ahmed then got out of the cab, before Ahmed then got back inside the taxi.
8 Upon arrival at an address further up the road, your co‑offender Ahmed produced a black axe from the front of his jacket. He hit the axe on the cup holder and was aggressive and made a demand of the taxi driver. While this occurred, you ran back to the taxi and opened the back passenger side door and grabbed the victim’s backpack from the back seat. Ahmed then got out of the car and both of you ran away.
9 Turning finally to the incident the subject of Charge 2 on the trial indictment. At around quarter to eleven on 11 June 2017, Amjad Hussain attended at an address in Sunshine West. Your co‑offender, Ilyas Ahmed, was waiting for him. He got into the back seat of the car. You then appeared and approached the taxi and got in the front seat. When you got in, you produced a knife that was described to be about 40 centimetres long. You made a demand of the driver and at the same time, your co‑offender Ahmed reached over and placed a pair of scissors to the back of the victim’s neck. You said to him, “Give everything to the other person”, before taking the car keys and the driver’s wallet containing $500 cash and also his mobile phone. You and your co‑offender then got out of the taxi and ran away.
10 On 5 July 2017, police executed a search warrant at an address in Ardeer. You were living with your brother at the time. You were arrested at that address and remanded into custody on that day and have remained in custody ever since.
11 Before me, you admitted your criminal record. For the purposes of today’s sentencing exercise, there is a relevant matter on 23 March 2016 at the Melbourne Children’s Court. On that day, you were, without conviction, placed on Probation for a period of seven months. Among the offences before the court were charges of attempted armed robbery, going equipped to steal, obtain property by deception, armed robbery and robbery.
12
As already observed, you were remanded in custody in July of 2017.
You have found your first experience of incarceration in an adult environment an immensely difficult and harsh experience. You have been exposed to brutality, violence and yourself been the victim of assaults. Exhibit 3 on the plea was a handwritten letter authored by you to the Court. In the course of that letter, you express your remorse for your involvement in this serious offending and also express an apology to the community and the victims.
13 However, much of the theme of your letter relates to the negative and adverse experiences you have found yourself in whilst in adult custody. Part of these experiences include being kept in lock-down for 23 hours a day for 12 months subsequent to the riots at the Metropolitan Remand Centre. You also have been a victim of assaults whilst in custody and stood over by older prisoners. Somewhat ironically, this has caused you to have some empathy for the experience of the victims in respect of the matters to which you pleaded guilty.
14 For each of them, your offending has had a profound impact. Sukhveer Singh[1] states that the incident affected him more emotionally and financially than physically. Because of the armed robbery, he did not have the courage to continue his job because it affected him psychologically. Sunil Sunil[2] states quite simply, “I am scared”. After the incident, he lost his job as he was not able to concentrate. Finally, Cemile Acik[3] states that every time she picks up a passenger, she now feels scared.
[1]Charge 2
[2]Charge 1
[3]Charge 4
15 As acknowledged by your defence counsel, your offending is serious. Armed robberies in relation to soft targets such as taxi drivers is prevalent offending. Furthermore, there was a degree of planning involved in the execution of each of these armed robberies, with the majority committed in company. Furthermore, all the charges (with the exception of the attempted armed robbery) involved the use of subterfuge by making a “false” call to the taxi company in order to isolate the driver and then exploit that isolation.
16 In respect of Charge 1 on the Plea Indictment, your co‑offender Asad Nur has already been dealt with in this Court. On 8 June 2018, he was sentenced to a period of four years’ imprisonment with a non-parole period of two years and six months. However, at the time of the commission of the offence, he was a much older man than you, being 27 years of age at the time of offending, and had some prior criminal convictions.
17
Substantial reliance was placed by your counsel on your age at the time of the commission of all of these offences. You were 19 years of age and you are now 21. Furthermore, the offending was part of a spate of offending which all occurred under the influence of drugs. In particular, you told Carla Lechner, clinical psychologist, that you were smoking ice on a daily basis, “about 3 to 4 times a day” and that “everyone around me was doing it”.
You commenced using drugs at the end of 2015 and you were also a regular and heavy user of the drug cannabis.
18 In Ms Lechner’s view, you evidence symptoms of depression and have symptoms of unresolved Post-Traumatic Stress Disorder arising from your experience to trauma in war-torn Somalia and subsequently in a refugee camp in Ethiopia. I will return to your difficult upbringing later in the course of my reasons for sentence. This, to my mind, is a factor that weighs into my assessment of an appropriate disposition in your case and one that seeks to foster your rehabilitative prospects.
19 The following matters were relied upon in the plea in mitigation on your behalf:
(1) Your youth;
(2) Your sound intellect by which you are able to have insight into your offending;
(3) Your pleas of guilty in relation to the three charges of armed robbery and one charge of attempted armed robbery;
(4) The evidence of your older brother, Adnan Macaw, which I heard on the plea. It was argued that he presents as a positive role model for you and that you will be able to reside with him upon your release into the community. Having heard Mr Adnan Macaw give evidence, I agree that he is an impressive man.
(5) Your only prior matter is a Children’s Court matter for which you received a non-conviction Probation Order which you complied with; and
(6) Finally, that you now have the strong support of family and the understanding of the ramifications of your acts, which provides a solid foundation for your future rehabilitation.
20 Ultimately, the submission was made to me that you were an appropriate candidate for a combined custodial and non-custodial disposition.
21
In response, Mr Hutton, on behalf of the prosecution, contended that the sentencing principles in your case could only be met by the imposition of a sentence of imprisonment that would contemplate a non-parole period.
In support of that submission, he relied upon the following features of your offending as reflecting its objective gravity:
(a)The use of subterfuge in order to isolate the taxi driver on all but one occasion.
(b)The degree of planning involved in relation to at least five of the six incidents.
(c)The use of a weapon, in particular a knife, in relation to all Charges on the Plea Indictment and Charge 2 on the Trial Indictment; and
(d)That on each occasion (except for Charges 3 and 4), the offending was committed in company.
22 Mr Hutton submitted to me that in particular the emphasis on the fact that you were a youthful offender must be tempered against the objective gravity of the offending here. Furthermore, it was acknowledged that you have impressed those around you as intelligent. In my view, this augers well for the future if you choose to put that intelligence to good use.
23 Mr Hutton also placed before me the reasons for sentence in the matter of Director of Public Prosecutions v Asad Nur[4]. This is the matter for which your co‑offender was sentenced in June 2018 in respect of Charge 1 on the Plea Indictment. While parity has a role to play, insofar as the objective circumstances of the offending is concerned, there is a significant disparity in age between yourself and Mr Nur. Indeed, it is almost 10 years. Further, unlike Mr Nur, you do not have any criminal convictions, given that the only appearances you have are non-conviction matters dealt with in the Children’s Court.
[4]The Director of Public Prosecutions v Nur [2018] VCC 857
24 To my mind, combined with the other evidence before me as to your remorse and considerable insight into your offending, largely brought about by your negative experience of adult incarceration, there are compelling reasons to differentiate between the sentence imposed upon your co‑offender, Mr Nur, and the sentence that is appropriate in all the circumstances here.
25
Mr Macaw, I have given anxious consideration to the submission made on your behalf as to the imposition of a combined disposition. And to that end,
I had you assessed for a Community Correction Order. Ultimately, however, on reflection, the seriousness of the offending here means that I must accede to the prosecution submission and impose a sentence upon you that contemplates a non-parole period.
26 I turn now to your personal circumstances.
27 You were born in Somalia and fled to a refugee camp in Ethiopia where you were separated from your mother. Your father was killed in the civil war when you were about four or five years old. You have three siblings, all of whom live here in Melbourne.
28 As already observed, your brother, Adnan, gave evidence on the plea in mitigation before me. He is a very impressive young man. He has achieved an enormous amount and he is indeed a positive role model for you to look up to. He has visited you regularly in prison, along with your other siblings. Upon release from prison, he is content for you to live with him. There is also the prospect of him being able to assist you with employment as he is the hiring manager at Brunswick McDonald’s. As already observed, he has visited you regularly whilst in jail, either at Port Phillip Prison, Metropolitan Remand Centre or for a period that you were down in Sale at Fulham Prison. He described you as “broken” by the experience of incarceration.
29 While you were temporarily living with him at the time of the commission of these offences, he gave evidence before me that his accommodation situation now is far more stable than it was back in June/July 2017 when you were staying with him.
30 You are a person of extremely limited education. This is largely due to the fact that you were taken back to Ethiopia at the commencement of your secondary school education. Your aunt sent you and your sisters back to Ethiopia, as it was time to reunite with your mother. You spent around four years there, from 2011-2015, returning to Australia when you were 17 years of age.
31 The return to Africa was alienating and dislocating. The culture shock aside, you were not able to attend school and had no stable accommodation for the time that you were there. The only formal education you have had is whilst you have been here in Australia. You completed Grade 6 at Footscray Primary School. It is a testament to your determination to educate yourself that you were able to write a letter to the Court in the terms in which you did, given your disjointed education. Indeed, you impressed Carla Lechner as cognitively bright, although you were not formally assessed. In her view, the rapidity which you have acquired English speaking skills is impressive.
32 You have also displayed insight into your offending in your exchange with Carla Lechner. She noted that you feel angry with yourself and realise that you could have avoided the choices that you made.
33 In my view, your prospects for rehabilitation remain reasonable. I say this because of your relative youth at the time of the commission of these offences. Furthermore, the evidence that I heard from your brother on the plea gives me considerable hope that upon your eventual release from prison you will have a stable foundation in which to foster your desire to be a productive member of the community.
34
The experience of adult imprisonment has clearly had a stark effect on you. You have served a portion of your time in custody in oppressive circumstances. I am obliged to take this into account in sentencing you and
I do so.
35 True it is that this could be said that your conduct could be described as a spree of armed robberies on soft targets. As already observed, while this sort of offending is often described as prevalent in the community and warranting a sentence that reflects general deterrence, all of which is true, that principle must be tempered with all the sentencing principles that require ventilation.
36 The basic purposes for which a Court may impose a sentence are general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.
37 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society. In your case, in my view, there is a clear community interest in seeking to foster your prospects of rehabilitation. Your family support (in particular, that of your brother), your intelligence and your personal commitment to rehabilitation, all auger well for the future for you. You are still a young man. I have had regard to each of these matters in setting the non-parole period in your case.
38 Mr Macaw, would you please stand.
39 In relation to the matters on the Plea Indictment ending in 343.4, in relation to Charge 1, being a charge of armed robbery, I convict and sentence you to a period of imprisonment of eighteen (18) months.
40 In relation to Charge 2, being a charge of armed robbery, I convict and sentence you to a period of two (2) years' imprisonment.
41 In relation to Charge 3, being a charge of armed robbery, I convict and sentence you to a period of two (2) years’ imprisonment.
42 In relation to Charge 4, being a charge of attempted armed robbery, I convict and sentence you to a period of twelve (12) months’ imprisonment.
43 In relation to the matters the subject of trial Indictment 343.3, in relation to Charge 1, being a charge of armed robbery, I convict you and impose a sentence of imprisonment of three (3) years.
44 In relation to Charge 2, being a charge of armed robbery on the Trial Indictment, I convict you and impose a sentence of imprisonment of three (3) years and six (6) months.
45 I make the following orders for cumulation. I order that six (6) months of each of the sentences on Charges 2 and 3 be served cumulatively with the sentence imposed upon Charge 2 on the Trial Indictment, and nine (9) months of the sentence on Charge 1 on the Trial Indictment be served cumulatively upon the sentence imposed upon Charge 2 on the Trial Indictment. The remainder of the sentences are to be served concurrently with Charge 2 and with one another.
46 That makes for a total effective head sentence of five (5) years and three (3) months.
47 I declare a period of three (3) years before you become eligible for parole, and I note that such declaration be made in the records of the Court.
48 Pursuant to s18(4) of the Sentencing Act, I declare a period of 583 days as pre‑sentence detention and I order that such declaration be recorded in the records of the Court.
49 Pursuant to s6AAA of the Sentencing Act, in relation to the matters the subject of Indictment 343.4, were it not for your pleas of guilty, I would have imposed a sentence of imprisonment of six (6) years and a non-parole period of four (4) years, and I add, Mr Hutton for the Crown, that s6AAA declaration is largely meaningless in the context of the trial matters.
50 MR HUTTON: Yes, Your Honour. No, I understand.
51 HER HONOUR: And I have just done so because the section requires me to make that.
52 MR HUTTON: Yes, Your Honour.
53 HER HONOUR: And I make the orders made for the disposal of seized property, as sought by the prosecution. You may be seated, Mr Macaw.
- - -
0