Director of Public Prosecutions v Mayoum
[2017] VCC 442
•12 April 2017
| IN THE COUNTY COURT OF VICTORIA AT Melbourne | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-02030
CR-17-00170
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAKER MAYOUM AND AKON MAWIEN |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 12 April 2017 |
CASE MAY BE CITED AS: | DPP v Mayoum & Anor |
MEDIUM NEUTRAL CITATION: | [2017] VCC 442 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. McWilliams | |
| For the Accused | Ms C. McGrath |
HER HONOUR:
1.Maker Mayoum and Akon Mawien, you have each pleaded guilty to two charges of armed robbery. You, Maker Mayoum, have also admitted to prior convictions. The maximum penalty for armed robbery is 25 years imprisonment. The facts underlying your offending are as follows.
2.At about 4.30pm on 7 July 2016, the two of you, with a third youth, Nuok Arweng, went to the Citizen Victorian Watch Repair shop in Russell Street, Melbourne. The three of you had your faces covered with material, were wearing gloves and armed with hammers. The three of you ran into the shop and began smashing the front door with hammers, understandably terrorising those present in the shop, causing them to fear for their safety and then hide in a room at the rear of the store. Still using the hammers, the three of you began smashing glass display cabinets in the store and placing watches in the sports bag you had brought with you. This resulted in loss to the victim of stock and damage in excess of $70,500. The three of you fled the store, running a short distance along Russell Street to a waiting car driven by an unknown accomplice. These actions underlie Charge 1 on the indictment, armed robbery. The vehicle was captured on CCTV and mobile phone footage taken by witnesses.
3.About an hour and a half later, at 6.09pm that same day, you attended at Farah Jewellery in Sydney Road, Coburg. Again, all three of you had your faces covered with material, were wearing gloves and you, Mayoum, and the third youth, Arweng, carried hammers, you Mawien, did not. You, Mayoum, and Arweng began smashing on the front glass door with the hammers, so that again those in the store were terrorised, feared for their safety and ran to hide in a rear room of the store. You, Mayoum, with Arweng then smashed the glass display cabinets and you, Mawien, assisted the other two in placing assorted gold jewellery in the sports bags you had brought with you. While the three of you were still inside the jewellery store, a number of nearby business owners and members of the public gathered at the shop entrance after hearing the commotion caused by the three of you inside. Several members of the public held the front door of the store closed in an attempt to keep you inside, while others contacted police. You, Mayoum, and Arweng then began smashing the front door with your hammers, which then allowed you to exit. You, Mayoum and you, Mawien, were immediately grabbed by members of the public as you ran from the store and were tackled to the ground, being held until police arrived. A black coloured sports bag recovered from the two of you, found to contain $75,000 worth of gold jewellery taken from the store, was returned to the victim. However, Arweng, who was carrying another sports bag filled with jewellery, managed to evade the crowd and fled the scene on foot. He was seen running through traffic along Sydney Road. That stolen jewellery, valued at approximately $135,000, including 21 carat yellow and rose gold jewellery and 18 carat yellow and white gold jewellery, was never recovered.
4.The previous day, police had intercepted a phone call made from you, Mayoum, to one Mahmoud Taha, in which Taha told you, he would organise hotels and girls for you. In two other telephone calls that morning between you, Mayoum, and Taha, Taha asked if he would see you tomorrow. You told him to make sure everything was organised this time, then you, in a third conversation, asked Taha to book you four rooms at the Grand Mercure for the next day, which Taha said he would. It is the prosecution case, as I understand it, that these crimes essentially were organised by Mr Taha, although he did not attend, that you two and Mr Arweng were the henchmen, if you like. At the time of this offending, you ,Mayoum and you Mawien, were each18 years of age. Mr Taha, who is aged 19, has apparently pleaded not guilty to offences and his trial is to be heard later this year. Mr Arweng has pleaded guilty to these offences in the Children’s Court and a fifth co-accused, Winis Apet is yet to enter a plea in the Children’s Court.
5.About four minutes after the second armed robbery, investigators intercepted a call made from Taha to Arweng during which Arweng said “they did it but two of them got caught”. Taha asked Arweng if they were caught by “the cops” and Arweng said that “some heroes” had grabbed them.
6.You, Mayoum, were interviewed at the Fawkner Police Station following your arrest, and whilst you admitted being at the jewellery store while armed with a hammer, answered “no comment” when questioned further. You, Mawien, were also interviewed at the same police station that day and admitted to being at the jewellery store and stealing a necklace, but disclosed no further information. Both of you entered pleas of guilty to the charges at an early stage ─ that is, at pre-committal stage ─ and no witnesses have been called in either case.
7.The prosecution is satisfied that the evidence on the brief suggest that neither of you were to be directly enriched by these armed robberies ─ that is, you were not to keep the proceeds but were to be paid in other ways. This would appear to be, insofar as you are concerned Mayoum, by the provision of girls and a hotel room, and according to your counsel, Mawien, you were to paid $2,000 in cash.
8.Unsurprisingly, the effect of this most violent offending upon your victims has been severe.
9.The first victim, the owner of the Russell Street store, wrote in her victim impact statement that since these crimes she has nightmares, wakes at night and thinks the offenders are there, she is shocked and unable to trust anyone, is scared for her daughters, starts shaking when she hears or reads “about something like this”, is frustrated, stressed, unable to sleep and constantly suffering a headache. She said her shop was closed for one week, during which time she had no income, and she wrote that the incident had scared off her customers and she has since had less business.
10.The second victim whose store in Coburg was robbed, said that as a result, his lifestyle had “changed dramatically”, both at work and home. He said it continued to cause him financial and emotional anxiety. It should be noted that victim number two came to this country as a refugee from Aleppo in Syria where, as a result of the civil war there, he and his family were subjected to violent fighting. He stated: “The loud destruction of the thick glass door almost made my heart stop out of fear as it reminded me of the sound of bullets that I used to fear might strike my family when we lived in Aleppo.” He spoke of the taking of a box containing $130,000 worth of jewellery that he was about to put into a safe before the attack and which he was not compensated for by insurance for three and a half months. He stated: “As a result, my business was hindered severely and I lost a potential $30,000 worth of future earnings as the supply I could offer my customers was diminished.” He said the business was closed for two days and that he was in a state of constant fear for about two weeks after the robbery until he had a second door installed. He stated: “Out of fear that this crime will repeat itself I now close my store at 4pm when before I would close at 6pm, which means I miss two hours of serving customers and therefore potential profits.” Repairs for the damage that you caused cost him $25,000 and he had to upgrade his security system. He stated, similarly to victim number one: “Furthermore, a shop that has suffered such damage in a robbery deters potential customers and damages my store’s image to the public as it becomes perceived as a dangerous place.” He stated that, by far, the greatest cost to him has been the emotional and psychological trauma, consisting of months of nightmares, distress and panic attacks which were passed on in terms of stress to his family. He stated: “This is a family business but I will now not let my family come and help me at the store out of fear that another robbery will occur. I can’t help but ask myself ‘what if the kids were there when the glass was being shattered by the axe?’ I came to Australia to escape the violence that plagued the streets of Aleppo and to give my family a safer life, but now I am constantly on edge as the attack has triggered memories of the traumatic distress I experienced in Syria.”
11.I now turn to your personal circumstances beginning with you, Maker Mayoum. You are eighteen years of age and indeed committed these offences on your eighteen birthday. Had you committed this offending the day before, you would have been dealt with in the Children’s Court jurisdiction which would have produced a vastly different result given that general deterrence would have a much lesser role to play in the sentencing exercise before that Court, the emphasis being on rehabilitation.
12.You were born in Khartoum in the Southern Sudan, which you left when you were six in 2004, emigrating with your family into 2005. In fact, strictly speaking, you did not emigrate with your family, but with the family of a friend of your father’s. That man, who has effectively been your father figure ever since, owed a debt of gratitude to your biological father who wished to have you removed from Khartoum as the security situation deteriorated. You are the third eldest of the 10 children who make up your adoptive family in Australia and you did not see your biological father again until 2013 when you visited South Sudan. You are the only member of your family ever to have been in trouble with the law.
13.The family settled in Sunshine, initially living with family friends, then moved a couple of times, ultimately settling in Derrimut where you lived until February 2016. You attended the Mother of God Primary School in Ardeer to Grade 6. Evidence was heard on the plea of both of you and Mawien about the remarkable programs developed both at this school, and at St Paul’s Primary school in Sunshine where you, Mawien, attended. It was realised that a large number of Sudanese refugees were beginning to settle in the area and so programs were designed to assist them to integrate into the community and ensure the educational difficulties surrounding the children of these Sudanese families were overcome. Part of this involved close association with the Sunshine Heights Cricket Club into which have been inducted a large number of Sudanese boys who have been fostered in their cricketing endeavours, provided with older male role models and mentors, and it was at this cricket club that you met Marwien.
14.Your counsel told me when you first came to Australia, you struggled to adapt as you had arrived without English. You attended Footscray North Primary School, where you progressively got into trouble and experienced racial vilification. Apparently your behaviour was particularly poor in Grade 4 and then you were moved to Mother of God Primary School in Grade 5. Your aggressive behaviour apparently altered when a teacher organised for you to play with the Sunshine Heights Cricket Club. You stopped fighting and acquired team values and social skills.
15.You played cricket until early 2016 and also played soccer from Year 7 until early 2016, playing with a number of teams including the Melbourne Knights and St Albans Saints, which is the equivalent of the AFL TAC level. You attended Caroline Chisholm Catholic College including Year 11 in 2015.
16.I was informed that your family, the eldest of whom is twenty and the youngest two, is strict and education is prioritised. When you were about fourteen, you began in a mild way to rebel against your family, you wanted to socialise, you began smoking cannabis on an occasional basis and your use of it increased. Psychiatrist, Dr Adam Deacon, of the Children’s Court Clinic, whose report dated 13 September 2016 was tendered on the plea, noted that by mid-2015 you were mixing with older local Sudanese boys, smoking more cannabis and becoming involved in a few fights which were videoed on mobile phones and sent around on social media. This resulted in attention from “’the wrong people’, resulting in invitations to join youth gangs because you were identified as a capable fighter. You apparently declined those offers to join gangs but agreed to maintain links and provide “’back up’ if required”. Then you and some Sudanese boys that you hung around with were misidentified by a local Islander gang as Apex members because of your Sudanese origins. You did tell Dr Deacon that you were familiar with Apex Gang members and were friendly with a few but were not yourself a member. Along the way, you began disengaging from your family, eventually moving out of home in 2016 in response to your parents trying to discipline you and threatening to send you back to Sudan, which you had visited in 2013, becoming aware in the process of the violence in that country. You feared you would be killed if you were sent back there.
17.You began offending for the first time in late October 2015 and you were charged with robbery in an incident where you stood over another person and stole his mobile phone in the company of others. On 1 January 2016, you were charged with handling stolen goods, then on 18 January 2016, were again charged with robbery; again you manhandled the victim in company, that victim then handing over a mobile phone. On 15 April 2016, you were charged with theft from a clothing store and theft of a mobile phone. On 19 April 2016, you were spoken to by police at a McDonald’s. You were found in a car, you had no licence, the car was searched and stolen clothing was found, and you were charged with handling stolen goods, unlicensed driving and other offences and with breaching the conditions of your bail. You were remanded in custody but then bailed on 22 May. You were then remanded in custody for a week after being arrested in relation to theft of a mobile phone at a bus stop and a series of other thefts and theft of motor vehicle, but then released in June. By the time you were arrested in relation to the armed robberies, you were therefore on a number of sets of bail from the Children’s Court and being overseen by Youth Justice as part of your bail conditions.
1.Your counsel informed me that you began using methylamphetamine or ice for the first time in October 2015. Your use steadily increased, developing into a full blown habit and at the time of the offending before this Court, you were using up to half a gram per day. By this time, you needed money to fund your habit. When released from custody in June 2016, you obtained drugs on credit and your counsel told me your involvement in these crimes was to clear that debt, which was about $20,000.
2.I note, however, that the intercept calls with Taha included a request by you that Taha book you four rooms at a motel along with an earlier conversation that day where Taha said he would organise hotels and girls for you. This was presumably for yourself and the co-accused Arweng, as you, Mawien, only became involved in the offending on the day it took place.
3.As I have said you, Mayoum and you, Mawien, knew each other through the Sunshine Heights Cricket Club where you both had played. The two of you met by chance on the day of the offending; both of you used ice; and you, Mawien, were then recruited into this criminal scheme.
4.You, Mayoum, committed these offences on your eighteenth birthday. Previously, you had always been remanded in youth custody but, for reasons which I will refer to later, this was no longer considered suitable and you have since been held on remand in adult custody at Port Philip Prison. You have been held in mainstream units there, being moved after you were assaulted by another inmate who thought you were a member of the Apex gang.
5.You have obtained positions as billet in both units, a position of trust, and undertaken some courses in English and maths and drug and alcohol. You have not been able to obtain work of any length within the prison.
6.You have also been disciplined in the jail over an argument with a guard about standing behind a line and spent some time in lock-down where you were held in your cell for 16 hours a day.
7.It was submitted by your counsel that I should sentence you to a term of detention in a Youth Justice Centre. I therefore sought an assessment for your suitability to be so detained. In his report dated 17 March 2017, the Senior Court Advice Officer for Youth Justice, Mr Gene Bell, found you were not suitable for Youth Justice detention. You told Mr Bell you had ceased ice use in jail and did not consider you needed any further treatment. You were not interested in the extensive offending prevention programs conducted in Youth Justice detention. You said it was your aim to open up your own business when you were released from custody and you had undertaken a business course to that effect at the jail but ceased it once you found it was not recognised in the wider community.
8.Mr Bell noted that while on Youth Justice bail in relation to previous offending, you had failed to attend the majority of your appointments with Youth Justice, had taken little responsibility and expressed no remorse for that offending behaviour. He said attempts by Youth Justice to increase your involvement had little effect. You were difficult to contact.
9.While in Youth Justice remand, you were involved in a number of assaults and altercations where you had to be restrained. Mr Bell stated:
“Mr Mayoum did not display any motivation to address his offending behaviour during this time and the lack of motivation continued with his supervision in the community.”
1.He said that while on bail, you “did not engage well and denied any substance use.” He went on:
“Mr Mayoum’s general presentation and engagement in services / programs over a significant period of time does not give the writer any confidence that his prospects for rehabilitation are reasonable at this time. He appears to have negotiated the remand period well whilst in a range of remand environments, including strict management regimes.”
(Mr Bell was there referring to your time on adult remand.)
1.He said you did not present as being particularly immature or impressionable stating:
“The considerable period of remand would clearly indicate that he is not likely to be subject to undesirable influences in an adult prison.”
1.He concluded:
“If placed into a Youth Justice Centre, the writer is concerned that Mr Mayoum may place the rehabilitation of significantly more vulnerable and less sophisticated young men at risk with his poor attitude towards offending based programs, willingness to engage in violence, general resistance towards authority and close affiliation with the street gang culture.”
1.In evidence at a further plea hearing on 28 March, Mr Bell said, basically, that in adult prison you pulled your head in, as opposed to your behaviour in Youth Justice custody. I accept that you do have commendable goals for your future, such as undertaking Year 12 and running your own business and you do continue to enjoy the support of your family who (with some difficulty) have visited you in prison. Mr Bell notes, however, that you have also been visited there by your peer group including a co‑offender.
2.Your counsel pointed to your gains in custody, your early plea of guilty, the difficulties you have faced in adult prison and in particular your young age, in urging that I should, despite Mr Bell’s report, place you in youth detention.
3.It was conceded from the outset that in your case, that only a disposition involving some form of incarceration, custody or gaol was appropriate and I certainly agree with this. The offending was extremely serious involving appalling violence on the two jewellery stores and their vulnerable owners and the theft of more than $200,000 worth of jewellery. The effect upon the victims has been extreme financially and particularly emotionally, and is likely to be ongoing into the foreseeable future. It was violent and lawless. Were you an older man, I would not have hesitated to sentence you to a term of imprisonment of many years.
4.It is not common for a Court to sentence an eighteen year old to adult jail. Reform is always preferable and in the greater long term community good, and this is particularly so with young offenders. It is recognised that young offenders are generally vulnerable to the influence of the older, more hardened offenders they live with in an adult prison. The fear is that a young offender in adult custody may be transformed by that experience into an entrenched criminal and therefore pose a far more serious threat to the community on their release, than the person they were when they were first incarcerated. However, in your case, I do accept the recommendations and reasoning of Mr Bell who is also one of this State’s most long term and experienced youth workers.
5.I have decided you will be sentenced to a term of adult imprisonment. At the time of this offending, you had had several stints on remand in Youth Justice detention where you behaved violently and were a management problem. On bail, you simply kept offending, refused to engage in the assistance offered by Youth Justice or abide by bail conditions, and your criminality so escalated that you were a major player in these terrible armed robberies. Despite the difficulties you have encountered in adult justice, you have more or less “toed the line” in a way you did not in a Youth Justice Centre.
6.I accept Mr Bell’s assessment that you are overall managing in the environment of adult prison. I regard your prospects of rehabilitation as uncertain. You may have ceased using ice in jail but you have demonstrated no insight into your serious offending behaviour, nor taken the many opportunities offered you for reform under the Youth Justice system, either in custody or in the community. Despite the support of your family, there still appears to be a rift with your father. In my view, specific deterrence; that is, sentencing which will deter or stop you from offending from this way in the future, is a relevant principle in the sentencing exercise before me.
7.Despite your youth, the principles of general deterrence; that is, sentencing designed to deter other people from offending in the same way, together with community protection, are sufficiently significant in your case to outweigh the normal considerations of rehabilitation that would otherwise apply to someone of your age.
8.In sentencing you, I do take into account your youth and your plea of guilty, which saved the community the time and expense of a trial and your victims the trauma of giving evidence in Court. I do note, however, that the prosecution case against you was a particularly strong one, given your apprehension by members of the community at the scene of the second armed robbery.
9.These mitigating factors will be reflected in a head term of imprisonment which will be considerably less than would have been imposed on an older, more experienced man, and a minimum term which will see you granted a longer than normal opportunity for reform on parole.
10.Can you stand up Mr Mayoum.
11.I therefore sentence you as follows.
12.On Charge 1, you are sentenced to 2 years’ imprisonment.
13.On Charge 2, you are sentenced to 3 years’ imprisonment.
14.I order that one year of the sentence imposed on Charge 1 is to be served cumulatively or on top of the sentence imposed on Charge 2, giving a total effective sentence of 4 years.
15.I order you serve 2 years of that sentence before becoming eligible for parole.
16.You understand that Mr Mayoum?
17.OFFENDER: Yeah.
18.HER HONOUR: All right. I am sorry, I do not enjoy sentencing someone of your age to adult gaol, but you have pushed it too far and this was extremely serious offending. And you have a good family waiting for you when you get out, you had better do your best to make sure you do what you can in prison, to make sure this never happens again. If you ever offend again you will have on your record, this sentence of imprisonment at the age of only 18, handed down by the County Court. That will mean any offending in future will lead to gaol. Do you understand?
19.OFFENDER: Yeah.
20.HER HONOUR: Have a seat, thank you. Could I please have the pre-sentence detention.
21.MR MCWILLIAMS: Certainly, Your Honour. Up to, not including today, 279 days.
22.HER HONOUR: I declare that 279 days of that sentence have already been served by way of pre-sentence detention.
23.MR MCWILLIAMS: I'm certain that Your Honour is perhaps almost immediately about to deal with, but I would just remind Your Honour of the summary matter, which has been before the court as well.
24.HER HONOUR: I have neglected that.
25.MR MCWILLIAMS: I can hand up a copy.
26.HER HONOUR: Thank you.
27.MR MCWILLIAMS: There's a summary offence which has been pleaded guilty to as well. It's committing an indictable offence on bail.
28.HER HONOUR: You have also pleaded guilty to the summary offence of committing and indictable offence whilst on bail, which offence has been uplifted for hearing before this court, pursuant to s.145 of the Criminal Procedure Act 2009. I order that you be sentenced to a period of three months' imprisonment on that sentence, which will be served concurrently, with the other sentences I have imposed.
1.I now turn to you, Akon Mawien. You are now nineteen years of age. Recent inquiries and an extract of birth certificate obtained from Sudan revealed that you are in fact seven months younger than was thought (you having been given a nominated date of birth on your entry to Australia) so that you were in fact eighteen at the time of this offending. You have no prior or subsequent criminal convictions.
2.You were born Sudan. At age two, with your parents’ consent, your aunt took you to Kenya as you had a head injury which required medical attention unavailable where you were. Your aunt took you and her four children to a refugee camp in Kenya where she gave birth to a fifth child. You lived at what was then the largest refugee camp in the world, for four years. It was apparently a very violent environment, both among inmates and because of regular attacks by local Kenyan people. You apparently continue to suffer from traumatic memories of that time.
3.Your family lived in a tin and cardboard shack and you attended a local school. You never again had contact with your natural parents.
4.In September 2005, when you were five or six, your aunt and the children arrived in Australia after being accepted as refugees. The family settled in the Sunshine area. You are the third youngest of these children, now mostly adult, with whom you have close relationships. All of them have gone to undertake education and employment. You are the first member of the family ever to have been charged with a criminal offence.
5.You attended St Paul’s Primary School in Sunshine and then the Catholic Regional College in St Albans, where you continued Year 12 VCAL. In primary school, you met a teacher, Matthew Shawcross, who is now the deputy principal of the Mother of God Primary School in Ardeer. You developed a very close relationship. Mr Shawcross in evidence described himself as a father figure to you and a man who has taken a strong mentoring role in your life.
6.Mr Shawcross introduced you to the Sunshine Heights Cricket Club where he played. You were described by him, in his written reference and on evidence at the plea hearing, as a small, shy boy who enthusiastically took to cricket, at which you then excelled. You thereafter captained numerous teams, eventually being selected in Under 16 and Under 18 representative teams.
7.In 2014, you trialled for the Under 17 state team. Since aged sixteen you have played A Grade cricket for your club, one year winning the Most Valuable Player Award for what Mr Shawcross described in his reference as your “outstanding bowling.” This also, at age seventeen, resulted in you being awarded the Brimbank Athlete of the Year award. You also played for the Albion Junior Football Club until your arrest in 2016. You continue to play cricket to the current day.
8.You worked part time at McDonald’s in the last two years of high school. In 2014, you worked briefly at a meat factory in Brooklyn; then in 2015, completed a six months Certificate II in Building Construction at VUT Sunshine. You have umpired in cricket since you were in Year 11 and for some years on a voluntary basis taught Dinka, the native Sudanese language, at a local primary school. Both these activities ceased on your arrest in July 2016 when you lost your Working With Children card, which according to Gene Bell, who oversaw your Youth Justice supervised bail, was a great disappointment and continuing loss for you.
9.Mr Shawcross described you as a person who had always demonstrated a strong work ethic and desire to succeed. He said you were a modest and humble person who felt he deserved little of the support he had enjoyed over the years. However, leading up to this offending, you had undergone a period of reversals. In late 2015, you suffered a stress fracture in your back. At this time, you were training with the Victorian Under 19 Cricket Squad and were not selected. You had had certain hopes of a career in cricket and this apparently affected you very badly.
10.Soon after, you broke your left wrist playing basketball. This stopped you playing cricket in the 2015/2016 summer season and you drifted from the positive environment of the cricket club as you could not train or play. You had shortly before this offending, as I have said, completed your Certificate II studies, were unable to find work and had no income as there had been a problem in the processing of your Centrelink application. Your car keys were stolen and you were unable to afford the $600 cost of replacing them, and the car locks . You also in this time discovered that you had siblings living in the Sudan whom you had never met, you wanted to make contact but felt it was disloyal to your aunt to make a request of that kind.
11.In evidence on the plea, Mr Bell gave his opinion that there had been a lead-up of about 12 months in your life, before this offending, where your life had become dislocated and somewhat distressing. At the time of this offending, you were unoccupied, unemployed, not engaged in sport and without an income, and you had begun mixing with local peers you had previously had little to do with. In their company you began smoking cannabis and on one occasion, two weeks before this offending, smoked methamphetamine or ice for the first time. On the day of the offending, you met up with Mayoum who you knew and Arweng, who you did not. In their company, you smoked ice for the second time, which you told Mr Bell, was in significantly greater quantity than you had had before. The proposed offending was brought up and you were offered $2,000 to participate in what you thought to be was one armed robbery but became two, you being told you would not be paid unless you participated in both. You did not carry a hammer on the second occasion.
12.Whilst I regard this as an explanation for your offending, I make it clear I do not consider any of the factors I have outlined above as justification for the terrible crimes that then caused so much damage, loss and suffering to your victims. However, I do regard your use of ice on this day of significance as it appears this shocking offending by you is entirely out of character from the wealth of materials I have received from professionals, your community, family and friends, as to your normal presentation up to this offending and subsequent progress in the now nine months since.
13.You told psychologist Jeffrey Cummins, whose report dated 21 February 2017 was tendered on the plea, that you were under the influence of ice at the time of your offending, Mr Cummins writing:
“He stated he thought he would never have become involved in this offending had it not been for the fact he had smoked amphetamine with … the co‑offenders on the day in question.”
1.Mr Bell, who as I have said, oversaw your bail conditions and has been in regular contact with you through this time, stated in his report dated 9 March 2017 that in talking of your use of amphetamine on this day:
“he (that is you) stated that he initially felt a very strong rush, then felt high levels of confidence to the extent of feeling untouchable and invincible.”
1.Unfortunately, the current ice epidemic and resultant plethora of criminal cases arising from it heard in this Court means that that description of its effects upon a user is one very familiar to Judges sitting on such cases. Significantly, in my view, Mr Bell went on to conclude:
“It is my view that Akon’s brief substance use experience has a direct relationship to his offending in this instance.”
1.You were remanded in adult custody for one month after your arrest being released on supervised bail. Mr Shawcross in evidence said he and others who knew you were both flabbergasted at your offending and then very angry with you over it. He stated he visited you in jail and found you distressed, tearful and remorseful.
2.Mr Bell, who assessed you in custody for your suitability for Youth Justice supervised bail, said he found you open and willing to discuss your offending and to take responsibility. He said, however, you were also overwhelmed by the prison environment, describing you in evidence as not confident and “like a deer in the headlights”.
3.You were released on bail with conditions including a curfew which you have abided by until 28 March when I lifted it.
4.Mr Bell described your progress on bail as exceptional. In addition to attending regularly upon him, you have also attended many sessions with YSAS drug counsellor, Sophie Ahern. In her Court report, Ms Ahern described you as an “inexperienced substance user” who was open and honest in your dealings with her and who did not miss one appointment. Mr Bell also said you had not missed a single appointment with him, were always early and engaged fully.
5.Turning to your drug treatment, urinalysis consistently proved negative for methamphetamines. There have, however, been some continuing difficulties with cannabis use which, however, you have always been open about with Ms Ahern, she stating:
“He has reported these lapses to be symptomatic of struggling to cope with the stress associated with his legal issues and uncertainty in relation to his future.”
1.You also discussed this with Mr Bell and that use has apparently dropped to sporadic only. Ms Ahern wrote you have no issues with alcohol and maintained abstinence from ice use and now much reduced your cannabis use. She noted that while seeing her you have maintained study, employment and resumed your cricketing and other sporting activities. She concluded:
“It has been a pleasure to support Akon whilst he has been on the Supervised Bail Program. It is of the writer's opinion that he is a talented, humble, respectful and remorseful young man who has executed motivation for change.”
1.It was her opinion that you had “exceptional prospects” for rehabilitation.
2.On your release on bail, you began your Certificate III in Building and Construction at the Trade Institute of Victoria in Williamstown North. Your teacher, William Spencer, in his letter dated 20 February 2017, wrote that he was “caught by surprise” when he learned of your offending. He wrote that you had immediately informed him of your offending and the charges.
3.You were concerned to finish all your theory work before possible incarceration and have done this, Mr Spencer, writing:
“He’s asked me to do his theory at home … no one has ever asked to take their theory books home.”
1.Mr Spencer wrote that he regarded you as a credit to yourself for the changes you had made to your work ethics and your lifestyle.
2.You have recently gained employment via the Victorian Trade Institute’s partnership with a hire contractor and have worked every day since your first placement on 21 March.
3.You continue to be supervised by Mr Bell and I regard his reports and evidence in Court as most significant. In his report of 9 March 2017, Mr Bell described your engagement on bail as:
“… exceptional in both attendance and in his efforts to engage meaningfully with both services.” (that being both Youth Justice and YSAS)
1.He said you are not particularly street wise and he regarded you as an inexperienced drug user lacking in sophistication. You also told Mr Bell you did not believe you would have offended had you not used ice on that day and Mr Bell has written:
“The offending certainly appears to be behaviours that are in stark contrast to his general character and daily behaviours.”
1.Importantly, he wrote that you were:
“ … a young man who has displayed consistent and what I consider to be genuine remorse and empathy for the victims and general members of the public that have been exposed to his offending. His remorse has been evident from the outset and his willingness to engage with Youth Justice in the manner that he has, clearly demonstrates his capacity to reflect upon his actions and work towards personal improvement. Akon has not missed a single session with Youth Justice without a reasonable explanation and appropriate communication prior to his appointment.”
1.He noted that you have extensive family and community supports, including the Sunshine Heights Cricket Club members and administration who, according to Mr Bell:
“… have clearly and powerfully demonstrated their commitment and ongoing support for Akon. They have expressed to me their shock, anger and disappointment in Akon's actions, however they remain committed to his long term rehabilitation and will continue to support him.”
1.I should interpolate here that I received a raft of references from senior members of this cricket club attesting to your previous good character over and above your cricketing capacities and describing your remorse and contrition and progress with the club since your release on bail. Further, on every occasion that you have attended Court before me, you have been accompanied by your family, friends and numerous members of that cricket club, being both your peers and senior administrative officers of the club, including the President.
2.Mr Bell wrote:
“The period of supervised bail has been exceptionally difficult for Akon. He has not expressed negative views of the bail conditions and in some respects considers that he deserves all of the negative consequences that he receives. However, I believe that Akon has received a disproportionate level of public scrutiny through … reporting in the media. This has had a detrimental impact upon his stability and mental health at times.”
1.Unfortunately, Mr Mayoum, your sporting prowess combined with the appalling and spectacular nature of your offending has understandably attracted media attention. However, it has to some extent been exacerbated by a continual reference to you as either an “Apex gang member” or “engaging in Apex related offending.” My close examination of the materials does not lead me to find you have any connection with the Apex gang or ever had any such connection. You have been photographed by press at cricket training. An article was written when your curfew hours were varied to allow you to attend cricket training, this being considered a pro-social environment for you to continue in. I note that despite the pressure of such adverse publicity, you have not faulted in your attendance upon Youth Justice and YSAS and adhering to your bail conditions. Nor have you reoffended.
2.Expanding on his view that your use of ice had a direct relationship to your offending, Mr Bell wrote:
“Prior to his current involvement with the justice system, Akon has not had any contact with Youth Justice or the courts. He is otherwise a young man of good character who has been raised by a law abiding and community focussed family with very strong links to their community. He presents as a sincere and caring young man who has displayed genuine insight into the seriousness of the offending and the significant impact this type of offending has upon the community. He has accepted full responsibility for his actions, has not minimised the seriousness of the offences and has not attempted to shift the blame in any way. He has expressed a genuine concern for the victims and has displayed a high degree of remorse during the bail supervision.”
1.It was Mr Bell’s view that your prospects for rehabilitation were “very strong if not excellent.” He stated that you had:
“… demonstrated a maturity and attitude during the bail period that strongly suggests he has grown personally and developed a stronger sense of identity and self-worth.”
1.He said you had taken the process of bail very seriously with “positive and commendable progress.”
2.It was also the view of Mr Cummins that you had spoken in a:
“reasonably insightful manner concerning his offending behaviour and how his behaviour and that of the co‑offenders would have adversely impacted on the victims”
apologising for that behaviour during your interview with him. .
1.Mr Cummins stated:
“Based upon my assessment of Mr Mawien, his prospects for long term rehabilitation are favourable and most probably very favourable.”
1.It is conceded by the prosecution that yours was an early plea of guilty, although, as in the case of Mr Mayoum, I note that the prosecution case given your apprehension at the scene of the crime by members of the public, was a very strong one.
2.Overall, on the material and evidence I received, both as to your life before this offending and since, from experienced, respected professionals, as well as the vast host of references I received from respected members of your community, I am satisfied that this shocking and appalling offending was very much out of character. I am further satisfied that but for your ingestion of ice on the day, you would not have engaged in it. I am satisfied it explains this dramatic and terrible change in a person who was normally, as Mr Shawcross and Mr Bell described you in evidence in court, and as did many others in their written references, as a quiet, kind respectful and rather humble young man who was law abiding and productive. A common theme throughout these references was a sense of amazement that you should have offended at all, much less in this destructive and violent way.
3.The prosecution have understandably submitted that I should deal with you by way of a sentence of imprisonment or placement in a Youth Justice Centre. The learned prosecutor submitted that the objective gravity of this offending is such that no other response would be appropriate. Further, it is clear that this alarming and criminal behaviour, that is the violent raids upon jewellery shops such as those you invaded, is becoming prevalent. I accept that these are strong and cogent reasons to consider the protection of the community and principles of general deterrence have a significant role to play in the sentencing exercise before me.
4.Had you been older, had your behaviour before and after this offending been any less impressive, had the expert assessments and references from respected members of the community been any less supportive, I would not have hesitated to adopt the prosecution submission. Again, one cannot understate the seriousness of this offending, its shocking violence and utter lawlessness.
5.The prosecution has now conceded that specific deterrence, that is, punishment designed to deter you from offending in this way in the future, is not required in your case. Nor does it submit that you now present a future danger to the community. I should add that I was particularly impressed by Mr Bell’s support of you, not only because of his extensive experience as youth worker, but because his recommendations in respect of you differ markedly to those he gave regarding your co-accused, Mayoum. Mr Bell’s view was that you would not cope in the adult prison system due to your youth and unsophistication, but that Youth Justice detention, although a better option for you in his view, would still prove difficult and was not warranted in your case.
6.As I stated in my sentencing remarks in relation to Mr Mayoum, the Courts are always anxious to promote and support proved and demonstrated reform in an offender, particular when that offender is young. This is not based on concern necessarily for that particular offender and his or her future, but more based on the premise that reformation is the best protection in the long term for the community at large. It is in the community interest that demonstrated reform, particularly by a young offender of previously good character, should be encouraged and supported.
7.The prosecution position is, however, that no matter the gains made by you, the objective seriousness of this offending and its worrying growing prevalence in the community, are such that only a term of imprisonment or detention is appropriate in your case.
8.After much anxious consideration, I have decided not to accept this submission for the following reasons:
(1)You were eighteen at the time of this offending, are therefore at law a youthful offender, so that rehabilitative measures are considered to be more important than in a sentencing exercise involving an older, more mature man.
(2)Your early plea of guilty, I accept, has not only saved the community the time and expense of a trial and your victims the trauma of giving evidence, but is a sign of genuine remorse by you above and beyond remorse arising from apprehension and potential punishment. This is based on the evidence and reports of Mr Bell, Mr Cummins and many of the written references. You also wrote a letter of apology to the court – which Judges often view with scepticism coming as they do from accused persons facing gaol terms and hoping to further their cause. However I found yours to be a genuine and extremely remorseful letter with appropriate and evident concern for the victims affected by your actions.
1.I want to interpolate here Mr Prosecutor, I would like my sentencing remarks and if they are willing to receive it, the letter written by Mr Mawien forwarded to the victims of the robberies. It is not obviously going to do anything much, but it may at least reassure them in terms of some knowledge of those persons, who attacked them and the actions taken by the court.
2.MR MCWILLIAMS: I'll past that on to the informant, Your Honour, and I'll make enquires as to whether there prepared to receive those documents.
3.HER HONOUR: It's entirely up to them, but it may be a worthwhile exercise.
4.MR MCWILLIAMS: Indeed, Your Honour. Grateful, Your Honour.
5.HER HONOUR: Thank you very much.
(3)You are person with no prior convictions who until the period leading to this offending had always led a pro-social, productive and lawful life. I am satisfied this offending is very much out of character for you.
(4)You were not involved in the planning prior to this offending, joining this enterprise largely by chance. Although responsible for the actions of your co-accused, you did not carry a hammer at the second armed robbery or directly cause the damage to that shop, that is you played a somewhat lesser role in this offending.
(5) Importantly I accept as I have said that but for your ingestion of ice on that day you would not have engaged in this offending. If you were an experienced Ice user this would not assist you as the authorities make it clear that those familiar with the effect of Ice upon them cannot then claim mitigation on the basis that they were under the influence of drugs when they offended. You however were a most inexperienced user of this drug and could not have been expected to know it would affect you as it did.
(6)You have an immense array of support from your family, and again I note this is a pro-social and responsible family whose members never prior to your offending been involved in any infraction of the law. You also enjoy considerable and impressive community support.
(7)I agree that your progress on bail has been exceptional, and that you have undertaken and embraced every opportunity afforded you to rehabilitate, including drug counselling and no longer use Ice.
(8)I regard your prospects of rehabilitation as extremely positive. This assessment involves your previous and subsequent good history, the support you enjoy, but additionally your commendable attention to your studies despite the stress and tension you have had to deal with since your release on bail and you are now in employment.
(9) You have been the subject of much unfavourable media attention, and while this was not unexpected, you nevertheless continued on in your rehabilitation which I regard as particularly praiseworthy in a youth your age.
1.At a further plea hearing on 28 March I indicated that I had decided to defer sentencing of this matter for a further 12 months. I said then that I was not convinced that, because of your youth, previous good history, and progress on bail, you were not a suitable vehicle for general deterrence. I am also not yet satisfied that you are not. Your progress over the past nine months has been of an extremely high order, but the offending you engaged in, in my view, was so very serious that a greater period of demonstration by you that this offending truly was a “one off” and that you are young man who does fit this category is required. I will therefore order that the sentencing in this matter be deferred for one year as from 28 March 2017, involving the imposition of the previous bail conditions you have had to observe, bar the curfew.
2.I am lifting that curfew for two reasons. First, I do not wish it to interfere with your employment in an area where very early starts and late finishes are common. Second, it is in my view important that you demonstrate your good intentions outside of that particular restriction. I am satisfied that any potential danger to the community this might present is compensated for by the continued supervision by Mr Bell and the other conditions of your bail. I note again that you are not now regarded by the prosecution as a danger to the community.
3.If you successfully complete that twelve months without incident you will be placed on a Community Corrections Order and will then be under the supervision of the Office of Corrections for a substantial period of time, as well as being required to undertake significant hours of unpaid community work.
4.Pursuant to S6AAA of the Sentencing Act I declare Mayoum that had you not pleaded guilty I would have sentenced you to five years’ imprisonment and ordered you serve a minimum term of three years. Given my decision to defer your sentence Mawien it is not appropriate that I make a sentence declaration in the face of a not guilty plea at this time. Thank you. Right, now is there anything else that I need to attend to?
5.MR MCWILLIAMS: There are compensation orders currently before the court.
6.HER HONOUR: That needs to set down separately. Are the counsel in a position to deal with that.
7.MR MCWILLIAMS: I'd be greatly if they're just simply adjourned sine die. The applications have been made, the hearing of them could be adjourned sine die, whilst - - -
8.HER HONOUR: I will adjourn that application, sine die.
9.MR MCWILLIAMS: Thank you, Your Honour.
10.HER HONOUR: Thank you. This matter has been placed on the media portal, it's required and there are copies of my sentencing remarks. Can I have just them, I need to change - it could be accepted as these sentences are read out, 4000 typos spring to mind, which we thought had been previously dealt with so I'm just fixing one of them.
11.MR MCWILLIAMS: One matter that I might just raise.
12.HER HONOUR: That you picked up?
13.MR MCWILLIAMS: Only in some of the characterisations of some of the prosecution position in relation to Mr Mawien There of little, perhaps, not of great consequence given the course what's been adopted with Mr Mawien, but probably encumbered on me just to raise it in any event and that is that Your Honour made some statements about the prosecution position, in relation to both specific deterrence and community protection.
14.HER HONOUR: Yes.
15.MR MCWILLIAMS: Entwined in that is - - -
16.HER HONOUR: Only in relation to Mr Mawien?
17.MR MCWILLIAMS: That's so.
18.HER HONOUR: Yes.
19.MR MCWILLIAMS: A submission in relation to those matters was that - the submission was that Your Honour could well be in a position to make a determination that, in the courts view Mr Mawien had very good prospects of rehabilitation.
20.HER HONOUR: Yep.
21.MR MCWILLIAMS: And coupled with a lack of prior history, then sentencing considerations such specific deterrence and community protection, would assume a lesser weight in the sentencing matrix then - - -
22.HER HONOUR: All right, where as I have said they did not feature.
23.MR MCWILLIAMS: That's so.
24.HER HONOUR: Very well. The prosecution position is - can I say you were not the prosecutor in the first hearing on the plea, I don't think.
25.MR MCWILLIAMS: Yes.
26.HER HONOUR: You were?
27.MR MCWILLIAMS: I've been here the whole way through, Your Honour.
28.HER HONOUR: Terribly sorry Mr McWilliams.
29.MR MCWILLIAMS: It's quite all right, Your Honour.
30.HER HONOUR: How could I have forgotten. Look, I take the position that you don't say that they are of no weight.
31.MR MCWILLIAMS: Yes.
32.HER HONOUR: But they are of lesser weight because of the previous good history and subsequent progress of Mr Mawien, and I think something to that effect was said, when I did talk about on the first occasion, the matter being adjourned and the position of Mr Mawien as to bail being continued, perhaps.
33.MR MCWILLIAMS: Perhaps that's so.
34.HER HONOUR: Anyway, look, I understand you saying it doesn't have no part to play.
35.MR MCWILLIAMS: It's not that there's - - -
36.HER HONOUR: But has much less part to play than would otherwise be the case.
37.MR MCWILLIAMS: That's so.
38.HER HONOUR: But I'm sure somewhere along the line it was conceded that he did not present as a danger to the community.
39.MR MCWILLIAMS: Well, I'd have to beg to differ in relation to that.
40.HER HONOUR: All right, we'll go back and have a look at our transcripts but I'm pretty sure that was said on the first occasion, on the first plea hearing.
41.MR MCWILLIAMS: It's something that I don't feel like I could ever concede, frankly, given - - -
42.HER HONOUR: Pardon?
43.MR MCWILLIAMS: It's something that I'm not sure that a prosecutor could ever concede that someone doesn't pose a risk as such.
44.HER HONOUR: I've had plenty of prosecutors concede that.
45.MR MCWILLIAMS: Well - - -
46.HER HONOUR: It's not an unreasonable prospect if there's sufficient reason - if there's sufficient material to back.
47.MR MCWILLIAMS: Yes.
48.HER HONOUR: Anyway.
49.MR MCWILLIAMS: In any event, other than that, Your Honour, I think all the matters have been attended to.
50.HER HONOUR: Yes, does counsel have anything else that they - - -
51.UNIDFENTIFIED SPEAKER: No, Your Honour.
52.HER HONOUR: I thought I saw a bit of rustling at the bar table. All right, thank you very much. We will stand down, thank you very much.
53.Now, Mr Mawien, do you understand what has happened?
54.OFFENDER: Yeah, I understand.
55.HER HONOUR: I've used fairly formal court language. I have said that because of your progress on bail, because you had no prior convictions and other reasons, I am deferring your sentence for 12 months. You've still got to abide by bail conditions. If you are successful, I will then place you on a Community Corrections Order, which will go for some time. All right, you will be under - the supervision by Youth Justice will be changed to Community Corrections, you got that?
56.OFFENDER: Yes.
57.HER HONOUR: I need to make it very clear. You put one toenail out of line Mr Mawien, anything, you make any mistakes. If you fail to keep up the very good work you've done, you will not be getting that Community Corrections Order, all right. This is still a time of your proving yourself and that is because as you must understand, that this was exceptionally serious offending, all right. Thank you very much, thank you for that.
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