Director of Public Prosecutions v Mohamed-Ali
[2023] VCC 1184
•6 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 23-00468
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| RAYAN MOHAMED-ALI |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2023, 20 June 2023, 3 July 2023 | |
DATE OF SENTENCE: | 6 July 2023 | |
CASE MAY BE CITED AS: | DPP v Mohamed-Ali | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1184 | |
REASONS FOR SENTENCE
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Subject: Criminal Law. Sentence upon plea of guilty.
Catchwords: Armed robbery - Commit an indictable offence whilst on bail – Offences
committed in company with the use of weapons – Youthful offender –
Early plea of guilty – Remorse - Significant criminal history – History of
drug abuse – Prospects of rehabilitation.
Legislation Cited: Sentencing Act 1991.
Cases Cited:
Sentence: Total Effective Sentence of 1 year and 3 months detention in a Youth
Justice Centre.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Hotchkin | Mr R. Cashmore |
| For the Accused | Ms. A. Sutherland |
HIS HONOUR:
1
Rayan Mohamed-Ali, you pleaded guilty to armed robbery committed on
28 September 2022. You also pleaded guilty to a related summary offence, having accepted that the matter be dealt with in this court, that being a charge of committing an indictable offence whilst on bail. The circumstances of your offending were contained in a prosecution summary which outlined them. I shall refer to them briefly. They are in effect agreed facts. You were 20 years old at the time of the offending. Your co-offenders in this matter are Ajak Ahmed[1], who was aged 17 at the time, Charlie Bol[2], aged 17 at the time, and Bilal Allir[3], aged 16 at the time.
[1] A pseudonym
[2] A pseudonym
[3] A pseudonym
2 The victim in the matter is Rahmatullah Haidary. He was 19 years old at the time of the offending. You, the victim, and co-offenders were vaguely known to one another through a mutual friend. On Tuesday 27 September 2022, the victim was staying at a short-term rental apartment in the Quest at the Docklands. He was introduced to a group of males through his friend, Jok Gar, who was also intermittently staying with the victim. Two of the males that were introduced were Richard Deng[4] and John Chol[5].
[4] A pseudonym
[5] A pseudonym
3 The victim described them as being of African appearance. Deng and Chol attended at the victim's apartment at about 4 to 4.30 for around 30 minutes. At approximately 8.30 pm, Deng and Chol returned to the victim's apartment with four other males. The group of six then left at approximately 9 pm, leaving the victim and Gar in the apartment. Around midnight, Gar invited the victim to an apartment at the Mantra Hotel located on Exhibition Street. A group of males, including Deng and Chol, were at that address. Soon after, the victim returned to his apartment and at around 1.30 am, he was contacted by you and your co-offenders via the intercom, and he brought all of you up to his apartment. Once inside, you all began abusing him.
4 You assaulted him by hitting him over his head with the handle of a bladed weapon. You and some of your co-offenders made demands to the victim to contact his sister via Instagram and ask her to transfer to you $4,000 from his bank account. Some of your co-offenders stole the victim's Apple iPhone 13 Pro Max, forcing him to unlock it so that they could access his bank account, which was empty. You then left with the phone and the victim's brand-new pair of grey Nike Air Jordans, which were worth about $550. You and your co-offenders then left the premises.
5 The incident lasted for approximately an hour. He sustained a 3-centimetre laceration to his left calf, which required stitches, as well as abrasions and swelling to his forehead, chin, neck, arms, and ribs. Immediately after the incident at about 2.30 am, the victim, who was wearing only his underwear, went to the lobby area and told a concierge about the assault, and the concierge called Triple 0 to request police and ambulance assistance. Police officers and paramedics attended to him, and he was taken to the Royal Melbourne Hospital by ambulance for treatment.
6 You were on bail to appear at Melbourne Magistrates Court on 3 October 2022 at the time of this offending. When the police entered the victim's apartment, they noted that it appeared to have been ransacked, with all the drawers open and blood smears on the bedding and the floor, and some items containing bloodstains were collected and photographs taken, as well as CCTV footage from the premises. The footage shows you entering the building at 8.54 pm, wearing a black puffer jacket, black tracksuit pants, a satchel bag and white runners.
7 The footage shows Allir entering the building with you, Bol and Ahmen, enter shortly after, and then the four of you leave at about 9.50. Later, it depicts the victim exiting his apartment to let you and your co-offenders into the building at 1.45 am, and the four of you are shown entering at about 1.42. You are seen wearing the same clothing and satchel bag as seen earlier. You, Ahmed and Bol are all depicted with your faces deliberately covered, with Allir entering with his hood up and face down, and this shows you are aware of the camera and it probably formulated the idea for what was to come. The footage also shows the victim entering into his apartment with the four of you, and the four of you exiting the apartment at about 2.36 am, and then the victim exiting the apartment some two minutes later.
8 The footage from the Mantra Hotel in Exhibition Street shows that at 12.51, the victim and Gar were inside the foyer. At 1.24, you are seen wearing a black puffer jacket, black tracksuit pants, satchel bag and white runners, and each of these items had been identified by the popular brand logos on them. Investigators conducted checks on your mobile phone, and this number is registered to another person, but the number is used by you. Location and movement details related to your mobile phone were obtained, and at relevant times, your mobile utilised a tower in the vicinity of Docklands at the relevant times.
9 The victim's stolen property was not recovered by police. You and Ahmed were arrested on 5 October 2022 in relation to another matter. You were searched and the following items were seized: A satchel with green and red stripe; and a black Apple iPhone. Subsequent to the unrelated arrest on this day, you and Ahmed were identified for your involvement in this offending via the footage obtained. The satchel seized from you on 5 October is the same satchel you were carrying on the footage obtained from the Docklands address. A search warrant was executed at your address, and during that search, the police seized clothing worn by you at the time of the offending bearing the relevant logos.
10 You were located in the rear bedroom at the premises and you were arrested and transported to Melbourne West police station for interview, where you made a no-comment interview. In relation to your co-offenders, on 2 March 2023, Bol pleaded guilty to armed robbery at the Melbourne Children's Court and was convicted and sentenced to 30 days' detention in a youth justice centre. Allir was also presented to the Melbourne Magistrates Court and pleaded guilty to armed robbery and, without conviction, he was placed on a youth supervision order for nine months.
11 Ahmed, in February 2023, pleaded guilty to armed robbery at the Children's Court and he was sentenced without conviction to a youth supervision order for a period of nine months. At the time of the offending, you were subject to both a community corrections order and an adjourned undertaking as a result of sentences imposed at Werribee Magistrates Court in March 2022 and Sunshine Magistrates Court in May 2022. The victim of this armed robbery, Mr Haidary, provided a victim impact statement. He wrote he was worried that he would die that night.
12 He had trouble sleeping, for which he took medication for over two months. He feels ashamed and has lost his sense of fun for life. His social life has been impacted. His motivation has decreased. He travels to Melbourne only with his family and his scar reminds him of the events. He feels traumatised by the events of that evening and I take the impact into account as the contents of the victim impact statement. Armed robbery is a very serious criminal offence. It carries a maximum of 25 years' imprisonment.
13 It can occur in a wide variety of circumstances, but this maximum is an indicator of how seriously the offence is regarded by the legislation on behalf of the community. Such criminality, when committed in company with the use of weapons at night in the private home of a victim, has all the hallmarks of how grave this conduct was. That the victim then is injured and assaulted in the course of it in his own home is not only cowardly, but enhances the culpability of the offending.
14 These kinds of armed robberies, accompanied by knives and violence by groups, is all too prevalent and leaves the community perturbed and very concerned, and it looks to the court to punish and denounce such conduct, and deter not only you, but also those like-minded individuals from similar criminal behaviour. I take your plea into account. It was an early plea and there was no cross-examination of the victim at the appropriate time. The plea will attract a reduction of your sentence. It is also made at a time in which the criminal justice system is endeavouring to recover from the impacts of the pandemic in terms of delays and the backlog accruing to it. It therefore carries a utilitarian benefit, but one which is enhanced during this still extant period of uncertainty.
15 Indeed, your remand in adult custody has also been during the pandemic period, and so your plea entered during this period with an expectation of imprisonment should attract a more pronounced amelioration than another time. You have already experienced the restrictions and more constrained conditions that the pandemic requires. The amelioration must therefore be palpable. Although the plea is an indication of acceptance of responsibility for your actions and a willingness to facilitate the course of justice, the question of whether it is accompanied by remorse is harder to evaluate.
16 Having read all of the material made available to me during the plea hearing and the evidence given, on balance, I am satisfied that you are remorseful for your behaviour. Remorse, however, is often a sentiment which develops over time into an appreciation, an insight into the effect of your conduct on the community, on your family and on the victims. I accept that you have expressed some remorse to a number of people and that you have a growing awareness of the wrongfulness of your behaviour, sufficient to hopefully motivate a desire to not behave in that way again.
17 Armed robbery is a category 2 offence pursuant to s3 of the Sentencing Act 1991. If one or more of the circumstances outlined in the section apply, in this case, that the offence was committed by an offender in company with one or more other persons, this enlivens the classification of this charge as a category 2 offence. Pursuant to s5(2H) of the Sentencing Act, in sentencing you for a category 2 offence, the court must impose a term of imprisonment, unless one of the exceptions referred to in s5(2H) applies. It was conceded on your behalf that your circumstances are not able to satisfy the exceptions in this context.
18 Imprisonment, as was conceded by the prosecution in the opening during the plea, means reclusion in an adult prison or detention in a youth facility. As the prosecution said, either of those options are available to the court. It is noted that you were on bail at the time of this offending for an unrelated matter to appear at the Melbourne Magistrates Court on 3 October 2022. Section 16, sub-s3C of the Sentencing Act provides a presumption of cumulation of a term of imprisonment for an offence committed whilst on bail, unless otherwise directed by the sentencing court.
19 The offending was alleged to have been committed in September 2021. You were arrested on these matters on 25 October 2022 and have remained in adult custody, accruing on my calculations some 300, sorry, 254 days, excluding today, by way of pre-sentence detention. You have a significant criminal history for a young person of 20 years of age. The formal record begins with a series of dishonesty and violence offences in 2019. However, aged 16, you had been charged and remanded and spent 102 days at a youth justice centre before the Supreme Court granted you bail.
20 The charges were ultimately withdrawn, except for a matter of handling stolen goods for which you were placed on probation without conviction, and other matters in the Children's Court summary stream. You were ordered to engage functional family therapy. The 2019 matter was a Children's Court disposition of probation for robbery, affray, handling stolen goods, assault and possession of a weapon, and committing an indictment offence on bail. Later that year in 2019, you appeared in the Children's Court for drug possession and bail offences, and without conviction, you were released on a good behaviour bond for a month.
21 By April 2020, you had breached the probation order by other disorderly driving and violence offences - that should be dishonesty - where the Children's Court without conviction released you on a youth supervision order for nine months. A few months later, you were back in the Children's Court for theft of a car, bail offences, theft, driving offences, dishonesty offences, as well as a failure to comply with public health orders. You were again released on a supervision order for 12 months, in which you were to commit to engage in offending behaviour programs. Later in 2020, in the Magistrates Court, you were placed on a community corrections order for one year to be supervised and attend programs to reduce reoffending.
22 That sentence was for theft of a car, reckless conduct, endangering serious injury, bail offences, handling stolen goods, possession of a weapon and possession of drug of dependence. That order was also breached, and in March 2021, the order was varied for 12 months, but on that day, further offences having been committed of robbery, recklessly cause injury, failed to stop a vehicle on request and affray, assault by kicking, assault in company, attempted aggravated carjacking, you were ordered to be detained in a youth justice centre for four months.
23 You had already served 97 days. There were further appearances in December 2021 and March 2022 - which were dealt with by fines and another variation of the order, having been breached by you. Finally, in May 2022, for possession of a prescription drug and of a weapon, as well as bail offences and theft, you were without conviction placed on an adjourned undertaking to continue to engage with Ms Morrissy at O Street and to comply with the varied community corrections order of 3 March 2022.
24 These priors are noted not because you are to be punished for them again, but they inform the court as to your recent progress through the criminal justice system, highlight the issues that beset you, and aid in an assessment of your prospects of rehabilitation and the need for specific deterrence. Clearly, you have had an ongoing problem with drug use, particularly prescription drugs of dependence. The prior offences demonstrate a concerning pattern involving the disregard of bail conditions, court orders generally, reckless conduct, reckless driving, recurring dishonesty and violent behaviour, often in the possession of a weapon.
25 This history is very concerning and has brought you frequently before a court in just four short years. However, apart from some justice centre detention periods, courts have tried to endeavour to give you the opportunity to reform by the imposition of community corrections orders. While it appears you have not used any of those orders to best advantage, instead, you have repeatedly breached those orders. These sentences were no doubt primarily motivated by your youth in an endeavour to help you to change your ways. I note also that in May 2022, the court again varied a community corrections order and ordered that you engage with O Street on a regular basis, probably to again promote rehabilitation.
26 You committed this offence only some short months after that decision. Your record and your age present a recurring difficult dilemma in sentencing you. It is tempting to promote a youthful offender's rehabilitation as against the need to deter you and protect the community from you by imprisoning you. In order to arrive at a reasoned decision, I have considered in detail the material available to the court, reports and submissions tended. Even here, the court has found a contradictory analysis and opinion.
27 Before turning to these matters, I will set out briefly your background, which I take into account. You were born and raised in Springvale. Your parents had emigrated from Eritrea, particularly, in Ethiopia, in the late 1990s. Their separation, when you were seven years old, was amicable and you had regular visits with your father whilst living with your mother. You experienced no violence or substance abuse in the home. Your childhood was unremarkable otherwise. Your father was a community health worker but lately not working. Your mother is a childcare worker.
28
You have three siblings with which you have reasonably good relationships. Both of your parents have been present at different hearings as this matter has progressed. You were schooled at Victoria University Secondary College in
St Albans until Year 9, when you were expelled for theft. In Year 10, you completed at O Street, Parkville College. Your academic record you describe as disrupted and below average. At age 15, you became involved with unhelpful peers and criminal behaviour.
29 At 16, you spent some months on remand in a youth justice centre at Parkville before the charges eventually were dropped. This was said to have been a turning point in your life, with the impact of that period leading you into a mental frame of mind which effectively catapulted you into the following years that I have described by your criminal history priors. I will deal with this in a moment. You were first sentenced at 17 in 2019 and as late as 2022, when you briefly moved to South Australia. You were convicted there too and incarcerated for driving offences but more importantly for carrying an offensive weapon on two occasions.
30 At age 15, you began to use cannabis and it became a heavy daily use until the time of your arrest for these matters. At 16, you began to use Xanax, which by the time you were 17, had turned into heavy daily use, again until your arrest. You used other drugs too recreationally, including cocaine, ecstasy and MDMA. At 16, you witnessed a violent assault. You were initially charged with involvement in that but as I mentioned, the charges were dropped. You trace your drug use and criminal conduct and mindset to that experience and the consequent remand in custody.
31 In those years and also later in 2021, you lost a number of friends and relatives, and in 2021, one of your close friends committed suicide. This, you told the psychologist, provoked significant anxiety in you. In 2020, you were struck by a car as a pedestrian and that exacerbated your generally anxious state. In August 2022, you had a seizure you believe was triggered by Xanax use but which cause was unidentified medically. You reported that your priors were related to your substance use and criminal peers. You were drawn into criminal conduct together with others who regularly engaged in criminal behaviour. You stole to have and display things which you could not otherwise afford.
32
You have had no significant intimate relationships or children. You told
Gina Cidoni, a psychologist, for a report dated 26 May 2023, that your continued use of substances was a way to numb your anxiety and emotional pain. Your brother has also had a history of substance abuse. In her report, Ms Cidoni includes your account of the armed robbery as fuelled by Xanax and alcohol, leaving you with little or no memory of the crime. She had previously evaluated you in October 2022 for court purposes and had found you to be below average to borderline intellectual capacity, and diagnosed you with post-traumatic stress disorder and a generalised anxiety disorder with substance use disorders.
33 She wrote that despite a lack of recollection, you demonstrated remorse for the harm inflicted on the victim and expressed an understanding of the effects, both physical and psychological, of your actions. Your clinical presentation appeared to her to be dejected, with a desire to see your life trajectory improve. Your depression and anxiety appeared high. She administered a number of psychological and risk assessments. The trauma system inventory reflected exposure to traumatic stressors and events resulting in fear and helplessness.
34 Symptoms such as irrational fear, distressing memories, recurring thoughts and hypervigilance, insomnia, irritability and high levels of depression inter alia were set out at paragraph 54 of her report. These experiences were said to be related to traumatic events involving threatening situations and severe injuries which resurface with intense fear and anxiety. Drug use appears, she wrote, to medicate this low mood and anxiety, and bolster feelings of self-esteem and wellbeing. As was noted during the plea, what these traumatic events were, were not really clarified, and remained rather opaque and vague.
35 They may relate to the deaths experienced around you, or the participation in criminal conduct, or the past injuries suffered being struck by a motor vehicle, or the effects of a substance abuse that has lasted for many years, or a combination of these factors. The risk assessment was somewhat difficult to decipher in terms of the score itself but her summary discloses you present as moderate risk. Your prior drug abuse struggles contribute to an increased risk of re-offending. Supportive family relationships do provide you with some emotional and positive stability.
36 Your cognitive function is beset by low average verbal comprehension and borderline working memory, which impacts on understanding and processing spoken language, leading to difficulties in expressing yourself verbally. Your borderline working memory may impact on decision-making. Your cognitive function is further impacted by substance abuse. The use of Xanax, notes Ms Cidoni, would impact to intensify emotional detachment, cloud your thinking, and contribute to impulsive and risky behaviour. Your youth also contributed to this impulsivity, susceptibility to peer influence and impaired judgment.
37
You reported aspirations to pursue an apprenticeship and to remain linked to O Street, a familiar and supportive environment which would facilitate your rehabilitation. It would do this through positive interaction and engagement with the resources and services available through that agency's programs.
Ms Cidoni reports that you have not actively participated in programs offered at Port Phillip Prison in order to keep a low profile in that setting.
38 Ms Cidoni emphasised your youth, highlighting in paragraph 75 how this stage is characterised by heightened risk-taking tendencies and incomplete brain development, making young individuals more susceptible to engaging in criminal behaviour without a full consideration of the long-term consequences. She recommends cognitive behavioural therapy, trauma-focused therapy and other interventions at paragraph 79. She opines that due to your age, you are more susceptible to the influence of older prisoners. You exhibit, she writes, higher levels of impressionability and immaturity, making you more vulnerable to the manipulation and influence of older inmates.
39
The prison environment, in her view, creates conditions which have discouraged you from seeking help and participation in some programs, and the fear and apprehension surrounding seeking support within the prison system, as opposed to something like O Street, may lead to a reliance on
self-medication upon your release. Ms Emily Hurley is an assistant principal at O Street Flexible Learning Centre and Student Transitions. She is a well qualified teacher since 2014, with a Master of Education in 2016.
40 The Parkville College campus is in effect a government school providing education to students who are detained in custody and work in collaboration with the Department of Justice and Community Safety and other departments. She provided a letter dated 26 May 2023 and gave evidence before me on your behalf. She has known you for over five years, having met you when you first entered the Parkville Youth Justice Centre at age 15. In her letter, she outlines O Street's approach as assisting students to transition to further education, training and employment, together with support and structural learning.
41 You began attending in May 2020 and remained engaged with O Street since, up until your October remand. O Street staff have remained in contact during this period with you whilst on remand. During the period since she has known you, Ms Hurley writes of significant growth of insight, expressing frequently a desire to become better and underlying barriers and strategies to take up. According to Ms Hurley, you have reflected on the harm your behaviour has brought about. You have identified a conjunction between your mental health and substance use for your offending.
42 You have begun dual diagnosis support with Jesuit Social Services before your remand. You have continued to wish to reconnect with the Connections councillor to support your mental health and address your drug use. You are said to have demonstrated a commitment to work and getting a job, engaging with Jobs Victoria Employment Support Program. A youth centre disposition, Ms Hurley wrote, would allow greater capacity to support you and facilitate pathways through the court. Adult custody would mean a very much reduced level of support. Ms Hurley spoke of the challenging work of sustainable change, which you still have not completed.
43 She opined that a sentence to adult prison would impact significantly on your prospects of rehabilitation. O Street also provides contact and support to your mother. She believes your steady growth at O Street are strong indicators of significant potential for future development. Ms Hurley gave evidence before me and confirmed the contents of her letter. In that evidence, she clarified that after your initial engagement with O Street, the pandemic had curtailed meaningful further contact until the end of 2021.
44 In her opinion, the remand before charges were dropped was very harmful to you, being your first time in custody. This period was very counterproductive and harmful. You discussed that period with Ms Hurley and Ms Cara Morrissy. You asked to be referred to Connections, which is a program to focus on post-traumatic stress disorder and self-medication. Imprisonment in an adult environment makes it very difficult for the O Street unit to arrange any participation or meetings, which vary significantly from programs which would be available, for example, at Malmsbury if you were there. She was greatly concerned that you were in custody with adults.
45 You had been allocated to her as a key worker and she met with you on a daily basis, setting educational goals and more general planning before your remand. She acknowledged that your progress has some way to go, but was clear that in her view and experience, a much better outcome could be achieved outside an adult prison. You were receiving regular counselling, participating in group meetings and saw a psychologist.
46 The defence, based on this material, argued that it enlivens limb 2 of Verdins, bearing on the kind of sentence to be imposed; that the underlying disorders diagnosed enliven limbs 3 and 4 of Verdins to moderate general and specific deterrence; that Ms Cidoni's findings enliven limb 5 as to a specific sentence weighing more heavily on an offender of normal health; and limb 6 as to a serious risk that imprisonment will have a significant adverse impact on your mental health and therefore a mitigating factor.
47 I agree with these submissions. I sought a suitability report from the Department of Justice and Community Safety as to a youth justice centre order, which found you unsuitable. It was authored by Adrees Shah, a court advice worker, and endorsed by the Northwest metropolitan regional general manager, Kathy Taylor, and dated 7 June 2023. This report relied on an interview, consultation with a youth justice team manager, with youth justice custodial services classification and placement unit, senior assistant manager, the Department of Justice and Community Safety file and case notes, as well as the brief of evidence and Ms Cidoni's report.
48 It did not, however, include Ms Hurley's letter or evidence, nor your mother's letter. The tenor of the report is generally negative. The report comments that you appear to dissociate yourself from the offending, mostly attributing it to substance use and an offence you went along with. This is contrasted by a cursory note about post-past offending while affected by substances or not in some cases. This was referred in the context of a sceptical view as to your attitude. I confess to not understanding the non sequitur that on some prior offending you were not or you were substance affected. I am not at all sure how the latter observation places in doubt the statements as to how the offence came about.
49 Despite asserting remorse for the offending and that, 'you wouldn't wish on anyone because of the traumatic impact to the victim', the writer again emphasised a seemingly nonchalant or non-emotional state. This was said to show limited accountability or insight or a lack of remorse. I am unpersuaded of this assessment based on demeanour and by comparison to another report of 2020 and 2021 which suggested a lack of insight into your offences then, having recited your personal history and past involvement with youth justice, broadly described as, 'inadequate engagement from April 2019 to July 2021'.
50 It goes on to describe your remand at Port Phillip in terms of having obtained employment as a unit billet but otherwise being bored and a bit scared at times. The report alleged your involvement in two incidents during the period and suggested likely gang associations. As to suitability for youth justice centre detention, the writer outlined what he took into account, that is, your prior, previous incarceration and breaches of orders, and a lack of awareness and empathy for the victim, and accountability.
51 In order to assess the first requirement under s32, sub-s(a) of the Sentencing Act and under s32, sub-s(b), he took into account your age; the diagnosis from the Ms Cidoni; your past history of youth detention, which it was said was replete with incidents as an active participant. The writer was provided with Ms Hurley's letter and evidence as well as your mother's letter to the court but that material did not change the writer's opinion. He gave evidence to that effect. He was cross-examined and conceded that as to the incidents, none of them were referred for prosecution and that the matter of affiliation to a gang was not really fully explored.
52 The report's assessment appears to me to fall significantly short of advising the court on proper grounds why you are unsuitable for detention in a youth justice centre. The section referred to in evidence and in the report, s32, refers to the court making an order if it has received the report and it has formed a belief as to 1(a) and (b) matters. The opinion of the writer as to these two aspects is of no great relevance as a foundation for the recommendation.
53 The factors are all known to the court in sufficient detail. What the report lacks is an analysis of what the person being assessed, you in this case, requires in terms of sentencing principles, that is, the reasons why Youth Justice is unable or inadequately able to detain you with a view to enhance your prospects of rehabilitation; and the reasons why you are not impressionable, immature or likely to be subject to undesirable influence in an adult prison by contrasting and comparing the kind of reclusion which Youth Justice could provide by comparison to an adult system.
54 I was not greatly assisted by it. I note for completeness that your mother wrote a letter to the court in which she describes you as a child and in adolescence, and the experience of custody as a 16-year-old, which in her words, decimated your self-worth and confidence. Past the age of 16, she notes a developing sense of hopelessness, shame and worthlessness. She says you have withdrawn in the last four or so years. She asserts that attendance at O Street school assisted you to seek mental health and employment off your own initiative.
55 The further offending left her disappointed and hurt. She writes you feel guilt over this and for your offending. She will provide a place to live upon your release and she will support any effort to engage with clinical and social supports. You also wrote a brief note to the victim which was tendered. In that note, you apologised to him and expressed the hope that he can eventually be all right in his life in the future. I take these two letters into consideration. The prosecution provided me with a prior history of your co-accused, Allir, Ahmed and Bol. No arguments as to parity were raised before me by either defence or prosecution.
56 I was told, as I have already recited, of the outcome of their court appearances over this matter. It is notable that Ahmed was 17 years old and pleaded guilty to armed robbery. He was placed on a youth supervision order. He had priors for a number of armed robberies, intentionally cause injury, aggravated burglary, kidnapping, driving offences and theft, five pages of prior history. Bol was 17 years old. He pleaded guilty to armed robbery. He received 30 days in a youth justice centre from the Children's Court. He had priors for affray, theft, a number of armed robberies, recklessly cause injury, kidnapping, assaults and theft, ten pages of prior convictions.
57 Allir was 16 when he pleaded guilty to armed robbery and received a youth supervision order for nine months from the Children's Court without conviction. He had nine pages of priors for theft, assaults, a number of armed robberies, assault with weapons, affray, thefts, assault by kicking, recklessly cause injury and aggravated burglary. You were not keeping good company. As can be seen from this summary, your co-accused had formidable and concerning criminal histories. You were 20 at the time of the offence and you now turn 21 tomorrow.
58 You are to receive a sentence involving detention of one kind or another. In my view, your criminal history is comparable to those of your co-offenders, with the notable exception that you are without priors for armed robbery. The question is whether you should now be sent back in effect to youth justice centre detention or you should continue into adult imprisonment. In my view, the considerations of deterrence, both special and general, after moderation, per Verdins, and the need to punish and denounce this unacceptable conduct and offer some community protection, is very finely balanced with the principle of rehabilitation for young offenders, which is a fundamental policy in the criminal law.
59 Some of the past work that O Street was able to do with you and Youth Justice generally point to some reasonable hopes of rehabilitation. You remain young, immature and likely to be subject to undesirable influences the longer you are in adult prison. You seem to have taken a path of low resistance but in any event, the question for me is in which environment of detention is there greater capacity to enhance any prospects of rehabilitation while still providing the other sentencing principle, scope for application, by supervised detention. In the long term, the community and the interests of the offender coincide.
60 They coincide in your rehabilitation. I am persuaded that the detention to come should be served in youth detention in order to provide that level of assistance and engagement which in adult prison is limited. This is really your last opportunity to make real changes to your life, Mr Mohamed-Ali, and changes to your future. If you fail to take up this opportunity, the next time there will not be any option to send you to a Youth Justice Centre. You will just be sent to gaol with other adult criminals. Do you understand? If you fail to take up this opportunity, you will end up wasting the next 10 or more years of your life in and out of gaol, achieving nothing except misery for yourself, for your family and for the community generally.
61 On the charge of armed robbery, you are sentenced to 15 months, which pursuant to sub-s4 of Division 2, Part 3, I direct that you serve by detention in a Youth Justice Centre. On the bail offence, the summary offence, you are convicted and sentenced to one month imprisonment concurrently. Pursuant to s35 of the Sentencing Act, I declare that a period of 254 days of pre-sentence detention be reckoned as already served under the sentence. I will cause that declaration to be noted in the records of the court. But for your plea, I would have sentenced you to 19 months in prison.
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