Director of Public Prosecutions v Mohamed
[2024] VCC 1260
•16 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-00385
Indictment No. P11280639
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OMAR MOHAMED |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 18 June 2024 and 13 August 2024 | |
DATE OF SENTENCE: | 16 August 2024 | |
CASE MAY BE CITED AS: | DPP v Mohamed | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1260 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Theft (1) – Armed robbery (1) – Related summary offence – Assault with weapon – Youthful offender of Somalian background - Exposed to extreme violence as a teenager in Somalia - Offending involved level of planning – Vulnerable victims targeted alone in cars and taken to isolated locations late at night – Relevant criminal history – History of drug use –– Assessed as unsuitable for Youth Justice Centre detention – Expert opinion – Severe post-traumatic stress disorder
Cases Cited:Bugmy v R (2013) 249 CLR 571; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Convicted and sentenced to 440 days’ imprisonment (aggregate term) in combination with a Community Corrections Order of 18 months’ duration – Conditions of CCO include supervision, drug assessment and treatment, programs to address offending behaviour, curfew and judicial monitoring – 430 days’ imprisonment declared as having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991 (Vic) declaration – Ancillary orders Forfeiture and Disposal
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Malik (Sentence) Ms E. Adams (Plea) | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms I. Siriwardana | Victoria Legal Aid |
HER HONOUR:
1Omar Mohamed, you have pleaded guilty to one charge of theft, which has a maximum penalty of 10 years' imprisonment and one charge of armed robbery, which has a maximum penalty of 25 years' imprisonment.
2Further, you have pleaded guilty to one summary charge, being Charge 4 – assault with a weapon. That offence has a maximum penalty of two years' imprisonment.
3In sentencing you, I must take into account the maximum penalties, as these reflect the seriousness with which Parliament regards your offending.
4You were born in January 2004, and you were 19 years old at the time of the offending. You are now 20.
5The circumstances giving rise to the summary charge and to Charge 1 on the Indictment are as follows:
6At about 2.32 am on 6 May 2023, a driver working for a company known as 'DiDi' accepted a booking in the name of 'Dylan' to collect a passenger from an address in Talgarno Street, Broadmeadows and drop them off at an address in Meadow Heights. The first victim, Mr Shin, attended the address where you and another male got into the back seat of his car.
7Once Mr Shin had driven close to the drop-off address, the other male asked Mr Shin to drop you off at a different address nearby. The other passenger then got out of the car at the original drop-off point and you directed Mr Shin to an area with which he was not familiar. After about five minutes of driving, you reached forward between the two front seats and held out a knife. The knife was small and appeared to be a household kitchen knife and it was in a white sheath. Mr Shin pulled over on a side street. You had directed him to an area near a reserve where there was a path leading through the reserve to your home.
8You said, 'Give me anything you got' or similar words. The first victim told you had nothing to give you. While holding the knife near the first victim's face, you opened the centre console between the two front seats. This contained about $2,500 cash in $100 notes. The money belonged to Mr Shin. You used both your hands, one still holding the knife, to remove the money. You dropped some of the money. As you were it, Mr Shin grabbed your left hand and you dropped the knife, which landed in the passenger seat. The assault continued from the time you first held the knife until the time of dropping it. Although such offending ought be characterised properly as an armed robbery, I do not sentence you on this basis, as the Crown has accepted a charge of assault with a weapon, such that this conduct gives rise to Summary Charge 4 and I sentence you on the basis of that charge.
9You then got out of the passenger seat with the cash belonging to Mr Shin and ran off. The taking of his money gives rise to Charge 1 on the Indictment, the charge of theft.
10On 19 May 2023 at around 3.30 am, the second victim, a Mr Ozcan, who was a taxi driver, received a job to collect an 'Ahmad' through '13CABS', with instructions to collect the passenger from Talgarno Street, Broadmeadows. When Mr Ozcan attended the address around 3.40 am, you and another male approached his car. Either you or the other male identified yourselves as 'Ahmad' and got into the back passenger seat. You got into the front passenger seat. You were wearing a COVID-19-type facemask.
11'Ahmad' instructed Mr Ozcan to drive to a take-away outlet and handed him $50 as prepayment for the trip. Mr Ozcan parked at a service station next to the outlet and 'Ahmad' got out of the car, went to the take-away place and returned to the car. You then instructed Mr Ozcan to drive to an address in Broadmeadows, at which point 'Ahmad' got out of the car.
12You then instructed Mr Ozcan to drive to an address in Meadow Heights. Mr Ozcan gave you $25 change. When you arrived at the drop-off address, you told Mr Ozcan to stop at the end of Rockbank Court, which is in the vicinity of the area where you committed the first offences in relation to Mr Shin.
13You got out of the front passenger door and removed an imitation gun from your bag. You placed this in front of Mr Ozcan towards his face and said 'give me your money'. Mr Ozcan gave you all the money he had in his wallet, which was about $200. You then demanded that the second victim transfer you $2,000, but Mr Ozcan said he did not have that much money. You then took Mr Ozcan's phone, which he was holding, and one of his Apple AirPods. You closed the door of the car and ran away with the cash and AirPod, still holding the imitation gun. This conduct gives rise to Charge 2, armed robbery. You had dropped Mr Ozcan's phone.
14Mr Ozcan then called Triple 0 and attended the local police station.
15A police canine tracked 2B Baker Court, Meadow Heights, to your address. This was in the area where Mr Ozcan's 'Find My iPhone' application was showing that the AirPod was located.
16On 23 May 2023, police attended your home address, where you lived with your family members, but you were not there.
17On 25 May 2023, police attended your address and arrested you.
18You were interviewed and you made the following relevant admissions and denials:
19You said you did not recall an armed robbery of a DiDi driver on 6 May 2023, during which $2,500 was stolen. You told police you did not recall, when any particulars of Mr Shin's allegations were put to you. When Mr Shin's description of the offender was put to you, you said, 'that's not me'.
20You then said, 'I never took that much', then, 'I never took any money'.
21You said you had been to a friend's house and remembered you had taken a couple of 'xannies' that night, a reference to Xanax as I understand it.
22You denied knowing Rockbank Court and you denied having a mobile phone.
23You told police you did not recall, when particulars of Mr Ozcan's allegations were put to you.
24You said you had been with friends, or one of your friends, on 19 May 2023 and that you were in Broadmeadows around 3.00 am.
25You said that you, ‘maybe’, left with one mate and thought that your mate ordered a cab. You went to Subway, ate, and after that could not remember what had happened, but thought you got dropped off. You did not think you got out of the car at Subway.
26You said you did not know anything about a firearm. You did not have access to a firearm.
27You knew the reserve where the offences were allegedly committed and this was near your house.
28You denied stealing the AirPod. You could not explain how it was signalling from your house.
29During a period when the interview was suspended, you were placed in a cell with covert operative ('CO 370' or I might refer to that undercover operative as ‘370’ from time to time).
30After the police interview, you were released, and you and CO 370 met outside the police station. CO 370 offered you a lift and you were collected by an undercover operative 'CO 363' (or ‘363’).
31In the course of the drive, you made a number of admissions to 370 and 363, saying that police would eventually find the weapon, which was at your mate's house. You said it was a Glock 18, you thought, but you did not have bullets and it was 'legit'.
32You said that you would give it to the police operatives so that you could sell it, as you needed to get rid of it.
33While 363 left the car to get take-away, you made the following admissions to CO 370:
(a) you said it was like a crime spree and asked him if he did crime sprees;
(b) you said that you pulled a Glock on a taxi driver and took $2,500 – although you said that it was a lie and it was not that amount, but maybe $800 or $700;
(c) you said you should not have done it, but it was quick cash;
(d) you gave details of your offending in relation to the armed robbery, including the location where you made the second victim stop;
(e) you said that you threw out your clothes, but that you left the knife at the scene, saying that you had 'fucked it up' and that this had happened on a different night.
34At one point, you ran out of the car, returning to tell the operative that you had been sick.
35Subsequently, the police operative dropped you home.
36After several attempts, on 6 June 2023, police operatives were able to contact you in relation to the sale of the firearm. You said that the firearm felt fake, but you did not know these things, as it was the first time you ever got one.
37As part of an inducement to facilitate the purchase, the covert operatives gave you six packs of cigarettes.
38Further attempts were made to contact you on 12 June, without success.
39You were arrested on 13 June 2023 and police conducted a further interview. Police searched your residence and found no items of interest. The 'pistol' described by Mr Ozcan, and by you in conversation with the covert operatives, was not found.
40During the second interview, you were questioned about your interactions with CO 370 after your release on 25 May. You told police you had not recalled anything further about the incidents you had been interviewed about previously. The admissions you had made to 370 on 25 May were then put to you and you denied 'doing taxis every second night'. You said that, using a gun for one job 'never happened', and you never said that the gun was a matte-black Glock with a clip but no bullets. You denied taking an AirPod. You denied ever saying you would take people to a court near a school with a walkway that led to your house. You said that you had no gun and you had never seen one.
41Searches of your home on two separate occasions did not produce a firearm or ammunition.
42Mr Mohamed, your offending is serious and deserving of a punishment which is just in all the relevant circumstances. Your conduct must be appropriately denounced.
43You engaged in offending of a most frightening nature, targeting victims who were in a most vulnerable position, who were doing no more than their job-trying to make an honest living. They were vulnerable because they were confined to their cars with the likes of you, and because you took them to isolated locations in the dead of night. Your offending involved a level of pre-planning and was nothing short of despicable.
44Mr Shin prepared a victim impact statement, and this was read aloud at the further plea hearing. Your offending has had a devastating impact on him, destroying his plans to seek a future in Australia and your conduct has effectively financially ruined him. He has had to return to Korea and cannot face working in the same field as he did here, because of your terrifying actions toward him. Unlike you, he had been a positively contributing member of our community, working hard and engaging in volunteer work. He now feels lost and despondent. He has had to abandon the life that he was building here and the trauma that he has suffered continues to make him feel insecure. He has been unable to obtain any legal redress through DiDi, who have ignored his requests for support, which I must say raises some concern in itself.
45There is no victim impact statement from Mr Ozcan, but it takes no imagination whatsoever to know that he must have been very frightened in all the relevant circumstances. Although the firearm is alleged to be an imitation weapon, the second victim had no way of knowing this, and, obviously, you intended that he believe that it was real.
46In sentencing you, I take into account your criminal history, which commences in December 2021 in the Broadmeadows Children's Court. Without conviction, you were dealt with in relation to two charges of theft of a motor vehicle, four charges of committing an indictable offence while on bail, two charges of robbery, one charge of wilfully damaging property and one charge of possessing cannabis. You were placed on probation for a period of nine months, with the end date indicated as 13 September 2022.
47On 26 August 2022, you were dealt with for six charges of retention of stolen goods, one charge of dishonestly take in retention of stolen goods and one charge of entering a private place without authority or excuse. The matter was adjourned without conviction to 25 August 2023, with a direction that you engage with, and act on, the lawful directions of Youth Justice.
48On 7 October 2022, in the Melbourne Children's Court, you were convicted of aggravated carjacking – offensive weapon – and ordered to be detained in a Youth Justice Centre for 12 months, with a declaration that you had already served 236 days.
49On 18 November 2022, in the Broadmeadows Children's Court, you were dealt with for breach of the Probation Order which was made in respect of the matters to which I have previously referred. The Probation Order previously imposed was confirmed in respect of the offences which were the subject of the Probation Order previously made.
50Your criminal history gives me cause for concern when assessing your prospects of rehabilitation and is also relevant to other sentencing considerations, such as protection of the community, specific deterrence and remorse.
51In sentencing you, I take into account your background:
52You are of Somali heritage and you were born in Jordan. You are the second of seven children. Your family are from the city of Laa-scaa-nood.
53I was told that your family experienced a turbulent time before moving to Australia as refugees. This involved living in refugee camps in Iraq and then Jordan. After a year of living in Jordan, your family was able to relocate to Australia and you and your family are now citizens of Australia.
54You were raised in a stable and loving family with a strong connection to culture and your religion. You never experienced any violence at the hands of your parents. Your mother and some of your siblings were in court in support of you, and your mother and your brother, Ismael, wrote character references which were most informative and articulate. Your brother also gave evidence in relation to some aspects of your life.
55Although your parents had a modest income, they were able to give you and your siblings a stable home, as well as providing for you nutritionally and educationally. Your family taught you to speak Arabic and to read the Quran.
56I was told that you are the only person in your family with a criminal history.
57Your early years of schooling occurred without any problem. You were an outgoing and happy child and attended various schools in suburbs of Melbourne up to Year 9.
58However, your mother sent you and your brother, Ismael, to spend some very difficult years as it turned out in Somalia when you were aged between 14 and 17. I was told that you and your mother went to Somalia to visit family. However, your extended family decided that you should stay in Africa and your mother allowed this without consulting you. I understand that your brother, Ismael, also stayed in Somalia at this time.
59You are of the view that your uncles wanted you to learn more about Islam and to study the Quran. You and your brother were enrolled in a boarding school in Somalia that specialised in religious education. However, you were subjected to bullying by other children and the conditions at the boarding school were very difficult, as explained by your brother, Ismael, at the plea hearing. You left the boarding school after six months and lived with your aunt.
60You were continually exposed to extreme acts of violence while living in Somalia, including being exposed to gun violence, which you instructed your counsel was normalised there.
61Your aunt lived near a police station. You had said that you witnessed seven prisoners being shot dead by police as they attempted to flee. Another time, you witnessed a man being beaten by police in front of you. Your brother gave evidence that you both witnessed another man being shot by police after he was unable to repay a debt owed to a police officer.
62You instructed that you watched a man being stoned to death for identifying as homosexual. You recalled the person pleading for help and remembered the feeling of helplessness.
63Further, you experienced violence at the hands of your uncle, which was regarded as a normal part of discipline. Your brother gave evidence in support of this aspect.
64I was told that there were other acts of violence, but you have struggled to find the words to describe your experiences.
65When you returned to Australia in 2021, you did not tell your family about your experiences in Somalia. Upon your return, you commenced abusing substances and committing criminal offences.
66When you returned to Australia, you were behind in your education, and you were placed in Year 10 with students who were two years younger than you. Understandably, this had a most negative impact on you and you left school in Year 11.
67You have never engaged in formal employment, saying that you apparently preferring to hang out with your friends.
68I was told that when you are released from gaol, you intend to work with your mother in her cleaning business.
69In terms of substance use, you commenced using cannabis at the beginning of 2021, which escalated to daily use by early 2022. You commenced abusing Xanax in 2021. Your longest periods of sobriety had been while you were in a Youth Justice Centre, however I was told that you have abstained whilst in adult custody. I will refer to an aspect of this in a moment. I was told this, but I will refer to this aspect a little later on in my sentencing remarks.
70On 31 May this year, you were assessed by Ms Alison Mynard and a report was tendered dated 8 June 2024, which was prepared by her.
71I note from Ms Mynard's report that you also suffered other traumatic events upon your return to Australia, including the loss of friends in a car accident and another friend was stabbed to death sometime after this. Also, your grandparents passed away in 2021. You have struggled to cope with the magnitude of these losses and your grief.
72Ms Mynard was of the view that, at the time you committed the offences for which I now sentence you, you were affected by substances, you were associating with negative peers and you were also suffering from symptoms of severe Post-Traumatic Stress Disorder ('PTSD'). She said that, in view of these matters, you had reduced capacity for good judgment and your reasoning was impaired. She said that you were taking more risks, that you were impulsive and that you had little thought about the consequences of your actions. No doubt your youthfulness also contributed to your disposition at that time.
73Ms Mynard was of the view that your PTSD had:
'… significantly impaired [your] thought processes, in terms of having a reduced capacity for basic executive functioning, including impaired reasoning skills, making clear judgments and being able to perform clear thinking about consequences for [your] own behaviours.'.
74Taking into account Ms Mynard's findings, as well as the concessions made by the prosecution in this regard, I am of the view that you had a relevant impairment of mental function at the time you committed the offences, although this is somewhat complicated by the fact that you were affected by substances and were associating with negative peers. In the circumstances, I allow for a less-than-moderate reduction in your moral culpability and reduce the weight which would otherwise attach to just punishment, denunciation and general deterrence to this extent. I make a further less-than-moderate reduction in the weight which would otherwise attach to general deterrence because of aspects of your upbringing which have been deprived in accordance with the general limb of Bugmy[1].
[1]Bugmy v R (2013) 249 CLR 571
75In relation to this aspect or the Verdins considerations, although at the further plea hearing certain submissions were not made along these lines, I confirmed through my associate emailing the parties, that the position that I have stated in relation to Verdins is the correct one and was as set out in the written submissions from the parties previously provided.
76I understand that your use of cannabis and Xanax was apparently an attempt to cope with the dreadful experiences you had encountered whilst in Africa and upon your return here.
77Upon your return from Somalia, you had increasing contact with antisocial peers and you were less connected and trusting of your family because of a feeling of being abandoned in Africa and feeling that you had been tricked into staying there.
78Over the past year however, you have begun to repair your relationship with your parents and to heal from the experience of feeling abandoned. In this regard I note that some of your family members are watching these proceedings via Webex today and are very supportive of you.
79Ms Mynard was of the view that you were of average intelligence and had a growing insight about yourself and your mental health. She spoke of increased maturity in relation to developing your Muslim faith, reading the Quran and praying five times a day. You are also leading other prisoners in prayer whilst in custody and your family has noticed a pronounced positive change in you over the time you have been on remand.
80According to the detailed Youth Justice assessment of you, your behaviour in gaol had been of concern at times, including allegedly being party to a physical assault of another prisoner in April of this year, being in possession of Buprenorphine and refusing a drug test in May this year. Information received by the author of that report also suggested that you had been involved in money transfer and drug trafficking. The report stated that you associate with eight other prisoners including some more prominent ones and you had been observed to gravitate toward new remandees with intent to stand over them. The author of the report, Mr Shah, gave evidence at the Further Plea hearing and confirmed that his information in these respects came from the Youth Justice Classification and Placement Unit and the Corrections Victoria Sentence Management Unit.
81However, I also have the benefit of a letter from Ms Hosking, Assistant Commissioner, Sentence Management Division Corrections Victoria and that letter does not support a number of the matters in the report provided by Mr Shah. There have been some allegations to the effect of the matters raised in the Youth Justice assessment but nothing of an adverse nature has been found proven in this regard, save that I understand that you have been found in possession of buprenorphine and refused a drug test. Therefore, I put the unproven adverse allegations contained in the Youth Justice report to which I have just referred to one side insofar as your conduct in adult custody is concerned.
82According to the Youth Justice Report, your behaviour whilst being involved with Youth Justice in the not-too-distant past was most problematic and disruptive. You have been assessed as unsuitable for a Youth Justice Centre disposition. I will return to this aspect a little later on.
83I note that you have previously engaged with a psychologist, Ms Christine Harding. You were referred to Ms Harding by your Youth Justice case manager on 14 July 2021. Unfortunately, you did not attend a number of sessions, however once rapport was established, you engaged meaningfully in 10 individual sessions during two periods in custody. You engaged candidly in sessions, reporting to custodial supports that you had derived benefit from psychological support. It was noted that there was more work to be done in this regard, however unfortunately the funding for your psychological treatment had stopped and you were not willing to engage with the custody clinician. This was consistent with your issues with trust and the fact that you had not established rapport with a new treater. Therefore, you had made some progress when your treatment was interrupted. Unfortunately, the treatment that you had received was not meaningful enough to prevent you from committing the offences which now before me. However, you did make some progress and it is evident that, if you develop rapport with a treater, you may be able to make further progress in terms of your mental health and I hope that you do that.
84I was told that you have enjoyed playing soccer in the past and that you would like to re-engage in this sport and to continue your education, as well as working and being a positive influence on your peers. Again, I really do hope that you pursue each of these things when you are released.
85I understand that you have expressed appreciation for being diagnosed with PTSD, as this has helped you understand what you have been experiencing and you appear to be open to treatment in this regard.
86In sentencing you, I allow for a significant discount in the sentence you would otherwise receive, in circumstances where you pleaded guilty to the offences now before me at the earliest reasonable opportunity in all the relevant circumstances. The matter proceeded by way of straight hand-up brief, such that you saved the witnesses the time and trouble of giving evidence and you saved the community the time and expense of contested proceedings. I note that you made an offer to resolve the matter at an earlier stage than the matter resolved. The prosecution had rejected your offer, however, at a later stage it was accepted. Therefore, the preparedness to facilitate justice in this way, and at a time when there was a backlog in trials, is something that I take into account in your favour as well.
87In terms of your remorse, you are able to say the right things in this regard, which is a good start, but such expressions must be seen in the context of your repeat offending. Although, it is also true that, as you have said, you have had over a year to reflect on your wrongdoing.
88You have taken some steps to turn things around whilst in prison and you pleaded guilty at an early stage, which spared the witnesses, as I have said, including the victims, the trauma of giving evidence. Also, you have expressed regret and concern having had the victim impact statement read to you. In the end, I make some allowance for remorse and insight, but in my view, these are very much works in progress.
89I also allow that time in custody has been, and might well be harder for you, as you are still young and you are in adult custody. I was told that you have been placed in protection and have been subjected to separation orders, and you have been met with threats on a number of occasions. In these respects, I have taken into account the details set out in Ms Hosking's report. Therefore, I make further allowance in your favour due to these harsher forms or experiences of custody noting that this is your first time in adult custody.
90You have said that you have not been able to obtain drug and alcohol education opportunities because you are not in mainstream. However, whilst a full range of courses and the like would be otherwise available to you, there are a number of programs, including drug programs available as I understand the position, but you have not taken part in these, which does concern me. I also factor in that you are now on the methadone program however, which I trust has been of assistance to you.
91I understand that you have enrolled or completed some general education units as well as some units relating to the construction industry.
92In the end, I allow that time in custody has been, and would be, harder for you because of your mental health impairment, as evidenced by the report and further report of Ms Mynard. In keeping with her findings, I allow that incarceration is likely to result in deterioration of your mental health.
93An important consideration in your case is your young age and the law says I must do what I can to maximise your prospects of rehabilitation. In assessing those prospects, I take into account that you are supported by a fine and law-abiding family and that your mother has moved the family to a place where it is to be expected you are not going to be exposed to negative peers as much as you were when you were living in the Government accommodation at the time of the offending. Also, I factor in the progress you have made whilst in gaol, such as it is, and the potential you have to turn things around, as demonstrated by you leading a prayer group whilst on remand.
94In all the relevant circumstances, I assess your prospects of rehabilitation as being guardedly fair. Much will depend upon your ability to properly deal with your mental health issues as well as your substance abuse issues, and to mature to a point where you can stay away from and resist the influence of negative peers. It is well and truly time to start doing yourself and your family proud. Your family, the community and you deserve this.
95I place slightly less than moderate weight on specific deterrence but must place more than moderate weight on protection of the community. If not for Verdins’[2] and Bugmy considerations, I would have placed moderate weight on specific deterrence and strong weight on general deterrence in a bid to deter others from behaving as you have. However, I make the reductions to which I have previously referred because of these considerations, and I also make such reductions in relation to punishment and denunciation, as I have previously said.
[2]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
96Your counsel submitted that it was appropriate to have you assessed for Youth Justice Centre, and in the event that you were not found suitable that you be sentenced to a combination sentence involving a term of adult gaol and a community corrections order. Your Counsel maintained her submission at the further plea hearing that despite the unfavourable report from Mr Shah, I ought sentence you to Youth Justice Centre. However, your Counsel submitted that if I were against her, then a combination of a community corrections order and a gaol sentence was appropriate and indicated your willingness to engage in a community corrections order with the conditions proposed in the extended assessment report.
97The prosecution did not oppose you being assessed for a Youth Justice disposition, but submitted that if you were deemed to be unacceptable, then a head sentence with a non-parole period was appropriate. Having said this, the prosecutor sensibly reserved her overall position until the further material discussed at the plea hearing was to hand, including the assessments for a community corrections order and a Youth Justice Centre order.
98As I previously said, you are deemed to be unsuitable for a Youth Justice Centre disposition. The report detailed your history with Youth Justice and a number of most concerning incidents in which you were involved in the past and the upshot of the report is that you would not be a good influence there. I have borne in mind that a number of incidents that Mr Shah referred to in his report in respect of your behaviour whilst in adult gaol have not been substantiated.
99The author of the community corrections order report assessed you as being at high risk of re-offending and indicated the need for you to be closely managed by community corrections, noting that you had not previously received such a disposition. As it was not apparent that the author of this report knew of the matters raised in the Youth Justice report and vice versa, I arranged for each of these people to attend the further hearing after reading each other's reports. However, after having arranged for this to occur, I then received Ms Hosking's letter which did not substantiate some of the allegations to which I have previously referred.
100At the further hearing, the learned prosecutor submitted that a head sentence with a non-parole period was the only sentence which was appropriate in your case. She referred me to a number of cases, with a view to assisting me in respect of current sentencing practice, acknowledging that these were a guide and that no two cases were alike.
101I have taken current sentencing practice into account as I must, but I am also mindful of the fact that this is but one and not a controlling factor.
102Having heard from Counsel for the prosecution and for you, I have come to the view that in order to maximise your chances of rehabilitation, I should impose a community corrections order in combination with a gaol term. Your rehabilitation is important, both to you and your family, as well as the community, as it better protects them if you are reformed. There will be a curfew condition which is a form of confinement and punishment and like all the conditions, this must be strictly obeyed.
103Make no mistake, Mr Mohamed. Are you listening? Make no mistake, the community corrections order that I intend to impose will need to be followed strictly by you and I will be speaking with you from time to time and to community corrections to ensure that you are behaving appropriately under the order. Do you understand that?
104OFFENDER: Yes, Your Honour.
105HER HONOUR: If you are not, then I will have little hesitation in setting the community corrections order aside and imposing a gaol term likely with a head sentence and a non-parole period. I make it clear to you that even though a number of the conditions that I impose will be for your treatment and rehabilitation rather than to punish you, if you breach any of the conditions, you will be at serious risk of returning to gaol, this is because the conditions that I want to impose are also designed to protect the community. So, if you do not obey these conditions then you will be a risk to the community and I will need to protect them by returning you to gaol, in all likelihood. So do you understand that?
106OFFENDER: Yes, Your Honour.
107HER HONOUR: Therefore, you are convicted of each of the offences, both on the indictment and the summary offence.
108I make the order for forfeiture and disposal which are sought by the Prosecution and not opposed by you.
109In relation to all of the offences, I intend to impose an aggregate sentence of imprisonment in combination with a community corrections order that I am about to announce:
110I intend to place you on a community corrections order, but I cannot do that unless you agree to obey the community corrections order that I propose:
111The community corrections order would run for a period of 18 months.
112The conditions of the community corrections order would be:
113Firstly, the mandatory terms that apply to all community corrections orders, which are:
114You must not commit another offence for which you could be imprisoned during the time that the order is in force;
115You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011;
116You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);
117You must report to the Coolaroo Justice Service Centre before 4 pm within two clear working days of your release from gaol.
118You must let a community corrections officer know within two clear working days of you changing your address or job;
119You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his or her delegate);
120You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his or her delegate).
121The conditions that apply in addition to those mandatory ones are:-
Supervision
122You must be under the supervision of a Community Corrections Officer for a period of 18 months.
Treatment and Rehabilitation
123You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.
124You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment and if necessary to take place in a hospital or residential facility, as directed by the Regional Manager.
Programs re offending
125You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
Curfew (6 month max)
126Further, you are to remain at your home, being 35 Revelstoke Street, Mickleham VIC 3064 between 10 pm and 6 am the following day, from the date that you are released from custody for a period of six months, and you are to present to the front door of your home whenever required to, by an authorised Corrections officer.
I require that each of the conditions that I have just announced be applied intensively by Community Corrections from the commencement of the order
Monitoring
127Further, you are to attend this Court from time to time to be monitored by me. Your first appointment will be on Wednesday 30 October this year at 9.30 am. Ahead of each monitoring appointment I will have community corrections provide a report as to how you are going on the order. You are not to be represented at the appointments with me as they are an opportunity for me to have a chat with you about your progress, and community corrections may also attend.
128Now having heard the community corrections order that I propose, do you consent or agree to the terms and conditions of the order?
129OFFENDER: Yes I do, Your Honour.
HER HONOUR: All right. I should tell you that if you do not comply with all of the requirements of the order then you will face breach proceedings before me. You will then be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, or you may be, in which case you may well be sentenced to a further period of imprisonment. As I have said, I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non‑compliance with any of the other conditions of the order.
130Do you understand this?
131OFFENDER: Yes, Your Honour.
132HER HONOUR: All right, and do you still consent to the making of the order?
133OFFENDER: Yes.
134HER HONOUR: All right. Your consent to the community corrections order has been audio visually recorded and will be noted in the court records.
135Now in addition to the community corrections order that I have announced I propose to impose an aggregate term of imprisonment of 440 days and your
pre-sentence detention is, as I understand it, 430 days.136MR MALIK: Yes, Your Honour.
137HER HONOUR: That will be deducted from the 440 days. So there is an extra period of time there that I want you to start getting ready for your release. For goodness' sake, behave yourself, keep your head down, do everything that is required of you and get yourself in the right head space to smoothly transition onto that community corrections order and take advantage of all the supports that you will have in your life, including your family. All right?
138OFFENDER: Okay, Your Honour. Thank you very much.
139HER HONOUR: So in relation to the charges therefore, you are convicted and sentenced to the community corrections order that I have just announced, in combination with that 440 days aggregate term of imprisonment. I declare that you have already served 430 days which will be deducted from that sentence.
Now I ask that community corrections do all that they can to ensure that you smoothly transition from custody onto the community corrections order.
140If not for your pleas of guilty I would have convicted you and sentenced you to a total effective sentence of four years imprisonment with a non-parole period of 32 months.
141Now is there anything arising from those sentencing remarks?
142MR MALIK: No, thank you, Your Honour.
143MS SIRIWARDANA: Nothing, Your Honour.
144HER HONOUR: All right. Very well, Mr Mohamed, all the best. I am going to see you soon, all right.
145OFFENDER: Yeah.
146HER HONOUR: And I hope to hear good news, yes.
147OFFENDER: Thank you, Your Honour. Yes.
148HER HONOUR: All right. Now did you want to have a quick word with your client before we hang up the transmission?
149MS SIRIWARDANA: If that's possible, Your Honour, I'd be grateful, thank you.
150HER HONOUR: All right, yes. Just hang on there and I'll adjourn the court and your barrister, Ms Siriwardana, will have a quick word with you, all right.
151OFFENDER: Okay.
152HER HONOUR: Thank you.
- - -
0
2
0