Director of Public Prosecutions v Munkayilar and Hassen
[2022] VCC 204
•1 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02129
CR-19-02128
CR-21-00879
CR-21-00883
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HALIMA MUNKAYILAR & OVESSA HASSEN |
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JUDGE: | His Honour Judge Hannebery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2022 | |
DATE OF SENTENCE: | 1 March 2022 | |
CASE MAY BE CITED AS: | DPP v Munkayilar & Hassen | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 204 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: robbery - non-prohibited person possessing a general category handgun without licence – theft – parity
Legislation Cited: Crimes Act 1958; Firearms Act 1996; Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269
Sentence: Hassen: 176 days imprisonment followed by a community corrections order of 18 months duration; Munkayilar: 79 days imprisonment to be followed by community corrections order of 18 months duration
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Dickens | Solicitor for the Office of Public Prosecutions |
For Hassen For Munkayilar | Mr A. Schwartz Mr J. Mortley | Emma Turnbull Lawyers Papa Hughes Lawyers |
HIS HONOUR:
Introduction
1Ovessa Hassen, on Indictment C1912607.C, you have pleaded guilty to one charge of robbery contrary to s75 of the Crimes Act 1958. The maximum penalty for this offence is 15 years' imprisonment.
2On Indictment C1912607.B, you have pleaded guilty to one charge of non-prohibited person possessing a general category handgun without licence contrary to s7(1) of the Firearms Act 1996. The maximum penalty for this offence is four years' imprisonment or 240 penalty units.
3Halima Munkayilar, on Indictment C1912607.3, you have pleaded guilty to one charge of robbery contrary to s 75 of the Crimes Act 1958, and one charge of theft contrary to s74(1) of the Crimes Act 1958. The maximum penalty for each offence is 15 years and 10 years respectively.
Summary of Offending
4A summary of prosecution opening was tendered[1] and read aloud in court. The summary covers the offending across all three indictments. Your offending can be summarised as follows:
[1]Prosecution Exhibit 1
5On 31 March 2019, the victim arrived in Melbourne from Queensland. At the airport, he withdrew $500 in cash. At 11.30 pm, you, Ms Munkayilar, asked the victim to give you a lift from the city back to your address in Sunshine. The victim drove you back to his hotel. He suggested having a drink together in the hotel bar. You, Ms Munkayilar, wanted to go to the victim’s room to use his bathroom. The victim then invited you to his room.
6Once in the hotel room, Ms Munkayilar began texting Mr Hassen. You, Mr Hassen, shortly thereafter entered the lobby of the hotel and travelled up the lift on to the fifth floor. You, Ms Munkayilar, opened the hotel room door. You, Mr Hassen, entered the hotel room, grabbed the victim by the collar, and told him to sit down on the bed.
7You, Ms Munkayilar, locked the door and turned up the volume on the television, whilst you, Mr Hassen, closed the blinds. You then took the victim’s Huawei phone, Suncorp debit card and $500 cash. You, Mr Hassen, asked the victim to withdraw more money using his cardless cash function but the victim told you he did not have this function activated.
8You, Ms Munkayilar, then left the room with the victim’s card and withdrew $500. You then waited until after 1.00 am that night to withdraw another $1,000 as the victim’s daily withdrawal limit had been reached. You returned to the hotel room and took some more documents from the victim’s laptop bag.
9You, Mr Hassen, told the victim that you would be watching the hotel and not to call the police. You both left at 1.20 am. You left with $2,000 in cash, the mobile phone, and the personal documents (Charge 1 – robbery on both Indictment C1912607.C and C1912607.3).
10On 1 of May 2019, a search warrant was executed on Ms Munkayilar's home. Police seized the following items:
(a) A printed photograph of a Medicare card and a driver’s licence in the victim’s name;
(b) A receipt made out to the victim from the Queensland office of Births, Deaths and Marriages;
(c) A certified copy of a Medicare card in the victim’s name;
(d) A Queensland birth certificate of the victim;
(e) A photocopy of that birth certificate;
(f) Various passports, licences, bank cards and government issued identification cards in various names (Charge 2 – Theft on Indictment C1912607.3).
11On 1 May 2019, a search warrant was executed on Mr Hassen’s home. Police seized the following items:
(a) A white and rose coloured Apple iPhone;
(b) A firearm with 15 shotgun shells located in a wooden box with a Victorian DHS ID card in the name of Tanya Tot and Ovessa Hassen; (Charge 1 on Indictment C1912607.B, non-prohibited person possessing a general category handgun without licence)
(c) The police also located assorted identification cards in various names.
Nature and Gravity of Offending
12The victim was afforded an opportunity to provide a victim impact statement but declined.
13
Both accused put on the plea the proposition that the victim was known to
Ms Munkayilar and that the offending was committed because the victim owed
Ms Munkayilar a substantial sum of money.
14By entering pleas of guilty to the charge of robbery, both of you are accepting that your acquisition of property from the victim that night was not a lawful expression of your claim of right.
15Beyond that, there is simply no evidence before the court to either support, or exclude, the background context as it has been presented.
16The appropriate approach to the factual background is to look at what the evidence can and cannot establish. The evidence cannot establish on the balance of probabilities that the victim owed Ms Munkayilar money, nor that the offence was motivated by this. To the extent that this would be a matter in mitigation, it is not made out on the evidence.
17Neither can the evidence establish the contrary proposition. It is not established beyond reasonable doubt that the robbery was a premeditated action against a person who had not had any dealings with the accused before. To the extent that this would be a matter in aggravation, it is not made out on the evidence.
18I accept that the victim was known to Ms Munkayilar, and as such the robbery occurred in the context of personal dealings between the two.
19
The robbery involved a level of actual physical violence towards the victim.
Mr Hassen pushed the victim and grabbed him by the collar. The theft component of the robbery involved not just the money and phone in the victim’s immediate possession. Cash was withdrawn from the victim’s account some minutes after the initial demands were made.
20The volume of property taken, however, was relatively modest.
21Overall, this is a significant but by no means top end example of the offence of robbery.
22Charge 2 for you, Ms Munkayilar, relates to the various passports, licences, bank cards and government issued identification cards in various names located at your home premises. There is little that can be discerned about the circumstances in which you came to steal these items, nor the purpose of the theft. They are of moderate intrinsic value and as such this is a moderate example of the offence of theft.
23You, Mr Hassen, also face a charge of being a non-prohibited person in possession of a general category handgun without a licence. This relates to the firearm located during a search warrant at your home premises.
24There is no context provided for the circumstances in which you came to possess that firearm, nor any evidence suggesting a particular purpose for its ownership. You have previously been before the court in 2010 for possessing an imitation general category handgun and in 2016 and 2017 for possessing cartridge and ammunition without a licence or permit.
25The regulation of gun possession by a licensing system is an important safeguard for the community. Whilst I cannot infer adverse to your interests any nefarious purpose for your possession of the gun, in any circumstances it is conduct to be taken seriously as reflected by a maximum penalty of 4 years imprisonment.
Circumstances Personal to Mr Hassen
26Mr Hassen, you are 37 years old and were born in Somalia. You arrived in Australia when you were 10 years of age, with your four older brothers.
27Upon arrival in Australia, you and your brothers lived with your aunt in a two-bedroom flat in Sunshine. You remained there until, at the age of 15, you found yourself homeless because of conflict between your aunt and her new husband.
28Despite these difficulties, you completed Year 12 at Keilor Downs College. You then commenced a management course at Swinburne University of technology, but only completed one semester.
29Since then you have been employed as a factory hand, warehouse and transport employee. You are presently in receipt of Centrelink benefits.
30You became a father at age 19 and now have 3 children aged 18, 15 at 12. You separated from your wife two years ago. You recently moved out of the family home and live alone in a rental unit in Hoppers Crossing.
31You are close to your children and see them often. You report a reasonably amicable relationship with your ex-wife. You instruct that your then partner suffered serious postnatal depression after the birth of your youngest child.
32Your partner’s difficulties and subsequent stress that it relayed on to you lead you to self-medicate with illicit drugs. You have, however, never accessed a mental health care plan. I note that it is recommended that mental health condition to be mandated on your community corrections order.
33Your prior use of drugs is reflected in your criminal history, in which you have been convicted of possessing drug dependence on six previous occasions, as well as multiple charges in relation to matters of dishonesty. I note, however, that you have never previously been sentenced to a term of imprisonment.
34You reported to the author of the CCO assessment report that at the time of the offending you were under the influence of drugs and or alcohol.[2] It is not contended, however, that your offending was motivated by any ongoing addiction issues. You report that since your release from prison you have “only taken a small amount of cannabis” and are insistent that you will not recommence the use of any other substance.
[2]Defence of Hassen Exhibit 2.
35You instruct that you had previously been in a relationship with Ms Munkaliyar but that this had ceased 3 months prior to the offending, though self-evidently some kind of ongoing contact between the two of you had persisted. The unchallenged prosecution opening states that you were in a relationship at the time.
36Whilst this offending is a significant escalation on the matters that have previously brought you before the court, there is still a significant basis to conclude that you can successfully engage with rehabilitation services and avoid any further descent into criminality. I consider your prospects of rehabilitation to be reasonable.
37Mr Schwartz, who appeared on your behalf, submitted that combination sentence of time served and a Community Corrections Order was appropriate in the circumstances of this case.[3] You were assessed and found suitable for such an order.
[3]Defence of Hassen Exhibit 1.
Circumstances Personal to Ms Munkaliyar
38Mr Munkaliyar, you are 37 years old. You have one sister who requires additional support and nine step-siblings who are unknown to you. Your father has been married five times and has lived in Ghana for the past 17 years. You instruct you had a chaotic childhood marred with exposure to violence and psychological abuse. You have three children who are aged between 17 and 9 years old. They reside with your paternal grandparents in Queensland.
39You commenced schooling at Sacred Heart Primary School in Preston until your mother left you with your father and travelled to Indonesia. Your father then sent you to an Islamic school. Your mother returned and moved you and your sister to Adelaide with her. You completed your Year 12 schooling in Adelaide before completing the first year of a Bachelor of Arts at the University of South Australia.
40You then travelled to Africa and South-East Asia before returning to Australia in 2005, whereupon you fell pregnant. Your mother died in July 2006 and you commenced using heroin sometime toward the end of 2006.
41You returned to Ghana in 2009 and fell pregnant with your second son. You report being in a violent relationship at that time. Your third child was born in 2013, and you moved to Queensland. You managed to cease heroin use at that time for nearly two and a half years.
42In 2016 you came to Melbourne with your children to escape your relationship. You found temporary housing however when funding ceased you began work as an escort. The DoHHS were contacted, and your children were removed and sent to live with their paternal grand-parents in Queensland. Following this you engaged in daily intravenous heroin usage and sporadic methamphetamine usage.
43You reported that you have had an intermittent heroin habit since the age of 23. You told the CCO assessment report author that you had used heroin once since your release from custody, and had “regretted that terribly”. Clearly your capacity to remain abstinent is fundamental to your prospects of rehabilitation.
44The father of your children lives in Queensland. He has significant substance abuse issues. He is significantly unwell and on dialysis.
45You currently have stable accommodation in Flemington with your 15-year-old daughter.[4] You told the author of the community corrections order assessment report that she moved from Queensland back to your care very recently.
[4]Defence of Munkaliyar Exhibit 2.
46You were diagnosed with depression at age 10. You have previously been prescribed antidepressant medication. You have not however, been registered with the Victorian public mental health database nor with Forensicare, and no reliance was placed during your plea on any of the principles of Verdins.[5]
[5]R v Verdins & Ors (2007) 16 VR 269
47You have been the subject of upsetting childhood experiences with a consequent sense of loss and grief. The assessment report determined that your mental health issues should be the subject of mandated care as part of any community corrections order.
48Whatever challenges you have been faced with throughout your life have not, it seems, translated into criminal offending until the matters of the current indictment. You have no prior criminal history. With appropriate assistance provided through a community corrections order, you retain good prospects of rehabilitation.
49Mr Mortley, who appeared on your behalf, submitted that combination sentence of time served and a Community Corrections Order was appropriate in the circumstances of this case.[6] You were initially found unsuitable for such an order as you failed to complete a pre-sentence assessment. However, you were granted the opportunity to complete that assessment and were subsequently found suitable for a community corrections order.
[6]Defence of Munkaliyar Exhibit 1.
Plea of Guilty
50Your trials were listed to commence on 1 February 2022. On 31 January 2022, you applied for a Sentencing Indication, and I indicated that you would not likely receive a period of imprisonment commencing immediately. You accepted that indication and were subsequently arraignment on the current indictments. Whilst your pleas of guilty were not entered until the trial was due to commence, they are still of significant worth.
51By your pleas of guilty you have saved the time and resources that would otherwise have been expended upon contested proceedings. You have spared the victim the experience of giving evidence. Your pleas of guilty have substantial utilitarian value, especially in circumstances where pandemic restrictions have resulted in extreme pressure being placed on court listings.
52I accept in relation to both of you that your pleas of guilty show some remorse, though there is no other material to reveal any deeper contrition.
Sentencing Principles
53Mr Hassen, you have spent 176 days on remand. Ms Munkayilar, you have spent 79 days on remand. Your periods on remand have been served during a period that the prison environment has been made more burdensome by virtue of pandemic restrictions. I take this into account in mitigation of sentence.
54I must impose sentences on both of you that serve to deter others from similarly offending. Specific deterrence plays a somewhat lesser role, especially with regard to you, Ms Munkayilar, given your lack of prior criminal history, but still retains some weight.
55I must impose sentences that denounce your conduct and protect the community. I must also foster your prospects of rehabilitation as I have found them to be.
56I must have regard to the principle of parity to ensure consistency of punishment. When co-offenders are sentenced, any significant difference in sentences imposed upon them should be capable of rational explanation. In this case, the offending was undertaken as a joint criminal enterprise between the two of you. Whilst your individual actions in the course of the offending were not identical, there is no reason to differentiate the culpability that attaches to each of you.
57It is appropriate, however, that there be some disparity in your sentences to reflect the fact that Mr Hassen has some prior criminal history whereas Ms Munkayilar has none.
Sentence
58Mr Hassen, I sentence you as follows:
59On Indictment no. C1912607.C, Charge 1, robbery, you are convicted and sentenced to a period of 176 days imprisonment, to be followed by a community corrections order of 18 months duration.
60Pursuant to s 6AAA Sentencing Act 1991, I declare that but for your plea of guilty I would have imposed a total effective sentence of 2 years imprisonment with a 15 month non-parole period.
61On Indictment no. C1912607.B, Charge 1, non-prohibited person possessing a general category handgun without license, I sentence you to one month’s imprisonment.
62Pursuant to s 6AAA Sentencing Act 1991, I declare that but for your plea of guilty I would have imposed a total effective sentence of 2 months imprisonment.
63I declare the sentence imposed on Indictment no. C1912607.B be concurrent with the sentence imposed on Indictment no. C1912607.C.
64This makes for a total effective sentence on both indictments of 176 days imprisonment followed by a community corrections order of 18 months duration.
65Pursuant to s 18(1) of the Sentencing Act1991 I declare that there are 176 days of pre-sentence detention reckoned as already served applicable to both indictments.
66Ms Munkaliyar, I sentence you as follows:
67On Indictment no C1912607.3, charge 1, robbery, you are convicted and sentenced to 79 days imprisonment to be followed by a community corrections order of 18 months duration.
68On Charge 2, theft, you are convicted and sentenced to one months imprisonment, to be served concurrently with the sentence imposed on Charge 1.
69The total effective sentence is 79 days imprisonment to be followed by community corrections order of 18 months duration.
70Pursuant to s 18(1) of the Sentencing Act 1991 I declare that there are 79 days of pre-sentence detention reckoned as already served.
71Pursuant to s 6AAA Sentencing Act 1991, I declare that but for your plea of guilty I would have imposed a sentence of 21 months imprisonment with a 12 month non-parole period.
72The prosecution made application for disposal and forfeiture, this was not opposed by counsel on your behalf and I make the order in the terms sought.
73Ms Munkaliyar, on Indictment C1912607.3, Charge 1, and Mr Hassen on Indictment C1912607.C, Charge 1, I intend to record a conviction and place you on a Community Corrections Order for a period of 18 months from today's date.
74Before I ask if you to consent to such an order being made, I have to tell you a little bit about the order, so you know what it means.
75The following Core conditions apply to all Community Correction Orders:
(a) You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
(b) You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.
(c) You must report to the Community Correction Centre within 2 clear days from today. Ms Munkaliyar you must report to the Melbourne Justice Service Centre and Mr Hassen you must report to Werribee Community Corrections Services.
(d) You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.
(e) You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
76There are a number of other conditions attached to this Order, and they apply to you.
77Ms Munkaliyar the conditions that will apply to you are:
(a) You must be under the supervision of a Community Corrections Officer for a period of 18 months.
(b) You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).
(c) You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s48D(3)(a)).
(d) You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
(e) You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s48D(3)(e)).
78Mr Hassen, the conditions that will apply to you are:
(a) You must be under the supervision of a Community Corrections Officer for a period of 18 months.
(b) You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).
(c) You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s48D(3)(a)).
(d) You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
(e) You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s48D(3)(e)).
79I can only impose a Community Correction order if you agree to such an Order being imposed. So I need to tell you just a little bit more about that.
80I should advise you that if you contravene or breach that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s83A(d)).
81You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment (s83A(s)).
82So you have got to be extra careful for the next 18 months. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the Court and you will be re-sentenced on these two charges that are before me. So you have to be extra careful.
83I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, worker if you like, as part of this order, a substantial fine can be imposed (s83A(e) and A(f)).
84Now you are aware of all of that?
85Ms Munkaliyar, do you consent to the Community Corrections Order on the conditions I have just outlined?
86MS MUNKALIYAR: Yes.
87Mr Hassen, do you consent to the Community Corrections Order on the conditions I have just outlined?
88MR HASSEN: Yes.
89I will not require Ms Munkaliyar or Mr Hassen to sign the Community Corrections Order, your verbal consent will be recorded.
90Any other orders?
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