Director of Public Prosecutions v Mohamed
[2018] VCC 2037
•22 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-18-00206
Indictment No. H11609278.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SALIM MOHAMED |
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JUDGE: | HIS HONOUR JUDGE C J RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2018 | |
DATE OF SENTENCE: | 22 November 2018 | |
CASE MAY BE CITED AS: | DPP v Mohamed | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2037 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – carjacking – plea of guilty
Legislation Cited: Sentencing Act 1991; Crimes Act 1958, s79
Cases Cited:DPP v Arale & Ors [2018] VCC 1520; DPP v Mohamed [2016] VCC 1787; R v Verdins & Ors (2007) 16 VR 269
Sentence: Five years’ imprisonment with a new global non-parole period of 3 years and 2 months. Section 6AAA declaration: 6 years and 6 months’ imprisonment with a new global non-parole period of 4 years and 2 months. Disqualified from obtaining any licenses or permits to drive a motor vehicle under the Road Safety Act 1986 for 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K Hamill | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M. Man | Stary Norton Halphen Pty Ltd |
HIS HONOUR:
1 Salim Mohamed, on 8 November 2018, you appeared before me to conduct your plea in respect to one charge of carjacking. The maximum penalty for this offence is 15 years’ imprisonment. You admitted your criminal record.
2 Tendered as Exhibit A and read aloud in Court was the Prosecution Opening on Plea. In summary, the victim of your offending, Mr Saba, a taxi driver, at about 8.40pm on 13 May 2017, received a job to pick up a fare from 36 Holland Court, Flemington, and to take that fare to Werribee (see Depositions page 118). The person booking the taxi gave the name “James” and provided a contact mobile number registered to a person by the name of “The Nguyen”. When Mr Saba arrived at Holland Court, you approached him accompanied by another man of African appearance. This unknown co‑offender showed Mr Saba a text message showing the booking confirmation.
3 Whilst Mr Saba recalls being hit on the head while sitting in his taxi, the closed-circuit television images from the taxi demonstrate that he got out of the taxi and approached the passenger side of his vehicle before he was attacked. Mr Saba was struck to the mouth, he suffered swelling to his upper lip, an inability to open his mouth fully, tenderness over the joint between his jaw bone and skull and a laceration to his upper lip (See Exhibit D, a series of photographs taken of Mr Saba by police when he was at hospital). Mr Saba lost consciousness for a period, and you entered the taxi and drove away. It is unknown whether you or your co‑offender struck Mr Saba.
4 An occupant of a nearby apartment walked out onto his balcony and saw Mr Saba lying face-up on the ground, and saw you get into the taxi and drive off. This witness did not see a second male, nor did he see Mr Saba being struck. The witness attended on Mr Saba to assist him, and called the emergency services number.
5 Police located the taxi in Preston, and, when it was forensically examined, your right palm-print was found on the top of the exterior of the front passenger door frame.
6 You were arrested on 8 June 2017. When interviewed under caution, you denied being involved in the carjacking, and described the allegations as “bullshit”.
7 At the time of the commission of this offence, you were undergoing a Community Correction Order, this is an aggravating feature of your offending.
8 Whilst I will deal with these matters in more detail shortly, since 6 September 2014 until the present day, you have been in custody, save for the period of approximately six months between 23 November 2016 and 8 June 2017. Accordingly, the application of the principle of totality is an important consideration when arriving at an appropriate sentence in your case.
9 On 12 August 2014, you committed an armed robbery in Kensington. On 23 November 2016, in respect of the Kensington armed robbery, you were sentenced by his Honour Judge Gucciardo to time served, being 500 days by way of pre-sentence detention, and a 12‑month Community Correction Order.[1]
[1]DPP v Mohamed [2016] VCC 1787
10 On 8 December 2016, you committed a further armed robbery, as well as the offence of intentionally causing injury. On 13 May 2017, you committed the instant offending. On 8 June 2017, you were interviewed under caution in respect to the armed robbery of 8 December 2016 and the instant offending, and you were remanded in custody.
11 On 13 December 2017, as a result of breaching the Community Correction Order imposed on you by his Honour Judge Gucciardo, you were resentenced to a total effective sentence of three years and one month’s imprisonment, and a non-parole period of two years was set. Pre-sentence detention was declared at 611 days. You have served the non-parole period set by his Honour Judge Gucciardo.
12 On 5 February 2018, you stood your trial in respect to the armed robbery of 8 December 2016, and on 14 February, you were found guilty of armed robbery and intentionally causing injury. On 25 May 2018, his Honour Judge Meredith, in respect to the armed robbery and intentionally causing injury, sentenced you to a total effective sentence of five years’ imprisonment.[2] He set a non-parole period of three years. Pre-sentence detention as at the date of your sentence was 76 days.
[2]DPP v Arale & Ors [2018] VCC 1520
13 Your counsel, Ms Clark, informed me that she had been in communication with prison authorities, and that in respect to the sentence imposed by His Honour Judge Meredith, your non-parole period will expire on 9 February 2021 and your sentence will expire on 9 February 2023.
14 Tendered as Exhibits 2 and 3 were reports of Susan Carey, neuropsychologist, dated 10 May 2018, and Stephen Gault, psychologist, dated 12 November 2016.
15 Ms Carey opined:
“At this stage, there is insufficient evidence that Mr Mohamed has an ABI [Acquired Brain Injury] or ID [Intellectual Disability] that caused his offending. That is, he does not present with severe brain injury, an impulse control disorder, or psychotic illness. While an ABI or ID diagnosis cannot be definitively given at this time, it is clear that Mr Mohamed is a man whose cognitive functioning is considerably below normal. … .”
16 Later, Ms Carey opined:
“… His cognitive deficits will be exacerbated by acute substance use.
In my opinion, Mr Mohamed's substance use is highly associated with his offending and his risk of reoffending. … .”
17 Mr Gault was of the opinion that you do not suffer from a major mental illness.
18 Accordingly, your counsel did not rely on any of the principles enunciated in Verdins’ case.[3]
[3]R v Verdins & Ors (2007) 16 VR 269
19 You were born in Somalia. You are the middle of five children. Your family lost contact with your father in 1990 during the Somalian Civil War. Effectively you were raised by your mother, with the assistance of other relatives.
20 In the early 1990s, your family moved to Kenya, where you stayed in a refugee camp for some two to three years. You then moved to Ethiopia and again stayed in a refugee camp for a period of three years or so. In 1998 your family moved back to Kenya for another year, you again lived in a refugee camp, before taking a boat to Dubai. Your family was reunited with your father in Dubai and the family moved to Australia from Dubai in 2002.
21 You instructed Mr Gault that you witnessed, during your young life, a number of significant traumatic events whilst being in refugee camps in Kenya and Ethiopia. You received little or no formal education whilst in the refugee camps; however, your mother was a teacher before your family left Somalia and she provided you and your siblings with basic home schooling.
22 You instructed Mr Gault that when you arrived in Australia, you began to associate with “wrong boys” and started smoking marijuana regularly.
23 In 2006, you returned to Somalia and stayed there with one of your aunts. In 2007, you tried to travel to Kenya; however, were unable to do so and ended up staying in Mogadishu for a number of months. Thereafter you moved to a town near the Ethiopian border where you met your wife. You married and, together with your wife, moved to Mombasa in Kenya, where your first child was born. Your wife left you and returned to Ethiopia; however, you reconciled when you travelled to Ethiopia and while there a second child was born. In 2010, you returned to Australia, leaving your wife and two children in Ethiopia.
24 Your wife and two children came to Australia in 2013. Whilst in Australia, a third child was born.
25 You instructed Mr Gault that your family did not approve of your marriage as your wife came from a tribe that was unacceptable to your family. You separated from your wife in April 2014. Thereafter you lived in Flemington with a friend.
26 Whilst in custody you have undertaken a number of training courses, and certificates in relation to them form Exhibit 4. Accordingly, you have not been idle whilst in prison in respect to your rehabilitation and by way of improving your skills and education.
27 You currently have the support of your mother and siblings, as well as your wife and children, all of whom visit you in prison. Whilst in custody you have been the victim of two assaults: one on 21 October 2017 which resulted in you being subject to various lockdown/protection regimes for your own safety. You are currently held in a protection unit at Port Philip Prison, although you work in the factory.
28 Outside the prison setting you were the victim of a stabbing in November 2011, you were injured in a car accident in 2014, you were again the victim of a stabbing in July 2015 and, subsequent to that, you were assaulted by being struck to the face with an axe which has left substantial scarring to your face, and you are prescribed the drug Lyrica to deal with the neuralgia which you suffer to this day from that injury.
29 At the completion of any sentence you will return to your family in Melbourne, and the issue of whether you will live with your wife and children is a matter which is yet to be resolved.
30 Ms Clark of counsel, on your behalf, submitted that any sentence that I impose on you should only modestly increase your present head sentence and not interfere at all with your non-parole period.
31 In the circumstances of your criminal antecedents, I am unable to accede to this submission. You are an appropriate vehicle for the application of the principles of general deterrence and specific deterrence. In particular, you need to be specifically deterred from further offending.
32 You had a contested committal and this matter resolved by you offering to plead guilty to the present charge at a further final Directions Hearing on 14 August 2018. Accordingly, your plea was not entered at the earliest opportunity; however, you are entitled to the benefit of your plea, in that it has utilitarian benefit and it is some evidence of your remorse. Will you please stand.
33 By this sentence I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must look to the protection of the community. I must also look to your rehabilitation.
34 Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence that reflects and promotes the purpose of sentencing in a manner appropriate to you, I sentence you to five (5) years’ imprisonment. I direct that eighteen (18) months of this sentence be served cumulatively upon the sentence imposed by his Honour Judge Meredith on 25 May 2018. I fix a new global non-parole period of three (3) years and two (2) months.
35 I cancel any licences or permits that you have to drive a motor vehicle under the Road Safety Act 1986 and I disqualify you from obtaining any such licence or permit for a period of two (2) years.
36 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to six-and-a-half years’ imprisonment and ordered that two-and-a-half years of that sentence be served cumulatively upon the sentence imposed by his Honour Judge Meredith. Further, I would have fixed a new global non-parole period of four years and two months’ imprisonment.
37 The effect of this sentence Mr Mohamed is to add 18 months’ imprisonment to the total effective sentence imposed upon you by His Honour Judge Meredith and to increase your non parole period by eleven and a half months.
38 Would you please be seated. Is there anything else that remains?
39 MS HAMILL: No, Your Honour.
40 MR MAN: No, Your Honour.
41 HIS HONOUR: Would counsel be so kind as to check those figures to make sure they're right, they've been checked and rechecked.
42 MR MAN: Your Honour, can I just clarify the disqualification, the license.
43 HIS HONOUR: Two years.
44 MR MAN: From today?
45 HIS HONOUR: Correct.
46 MR MAN: Thank you.
47 HIS HONOUR: The relevant period to be checked, is the new global non-parole period. I have imposed a new global non-parole period of three years and two months, that effectively increases the non-parole period imposed by His Honour Judge Meredith by 11 and a half months, plus or minus a couple of days.
48 MS HAMILL: Your Honour, my notation of Judge Meredith's non-parole period was three years.
49 HIS HONOUR: Correct, but there was 76 days of PSD.
50 MS HAMILL: Yes, Your Honour.
51 HIS HONOUR: So based on the information that you've provided to me, that his non-parole period will expire on 9 February of 2021. By imposing a new global non-parole period of three years and two months today, that has the net effect of increasing his non-parole period imposed by His Honour Judge Meredith by 11 and a half months. That is by my calculation till 22 January, or thereabouts, of 2022.
52 MS HAMILL: Your Honour, the short answer is I'm not sure, I'm just discussing it with my instructor, and I'm conscious that Your Honour is sitting there. Would it be possible for Your Honour - - -
53 HIS HONOUR: No, please check the figures.
54 MS HAMILL: Yes, Your Honour.
55 HIS HONOUR: I have a trial to commence in nine minutes.
56 MS HAMILL: I appreciate that Your Honour.
57 HIS HONOUR: Just take your time and work it out, if I've made a blue, tell me, if I haven't, tell me. The simple mathematics are when will a non-parole period end if a non-parole period of three years and two months commences today.
58 MS HAMILL: See I think that might be where I'm confused Your Honour.
59 HIS HONOUR: I set a new global non-parole period because he presently has - is still serving a non-parole period.
60 MS HAMILL: Yes, Your Honour.
61 HIS HONOUR: Right.
62 MS HAMILL: For the purposes of the calculation of the sentence, the period that he has spent in custody to date, serving the Judge Meredith sentence, Your Honour, does not intend to be counted for the purpose of calculation of the non-parole period that Your Honour has just set. Is that correct?
63 HIS HONOUR: I set a non-parole period that commences today.
64 MS HAMILL: Yes.
65 HIS HONOUR: Right, so by setting a non-parole period, which I have, of three years and two months, commencing today, if my maths are correct it should conclude on or about 22 January of 2022.
66 MS HAMILL: Yes Your Honour, that is when it concludes.
67 HIS HONOUR: Correct.
68 MS HAMILL: Thank you, Your Honour.
69 HIS HONOUR: And increases the non-parole period as imposed by His Honour Judge Meredith by a period of approximately 11 and a half months.
70 MS HAMILL: Thereabouts, Your Honour, yes.
71 HIS HONOUR: Right, so I say once again, Mr Mohamed would you please stand.
72 The effect of this sentence is to add 18 months imprisonment to the total effective sentence imposed on you by His Honour Judge Meredith, and to increase your non-parole period by 11 and a half months.
73 Are there any other matters?
74 MS HAMILL: No, Your Honour.
75 HIS HONOUR: Remove the prisoner please. I will stand down until the trial is ready.
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