Director of Public Prosecutions v Mursal

[2015] VCC 682

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00540

DIRECTOR OF PUBLIC PROSECUTIONS

v

OSMAN MURSAL

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JUDGE:	HIS HONOUR JUDGE JORDAN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 and 22 May 2015
DATE OF SENTENCE:	22 May 2015
CASE MAY BE CITED AS:	DPP v Mursal
MEDIUM NEUTRAL CITATION:	[2015] VCC 682

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. S. Holmes	Office of Public Prosecutions
For the Accused	Ms. J. Smith	Robert Stary Lawyers

HIS HONOUR:

1Mr. Osman Mursal, you have pleaded guilty to one charge of robbery.  The maximum penalty for this offence is 15 years imprisonment.  You pleaded guilty at the earliest opportunity.  I take that into account.

2The circumstances of your offending are set out in the prosecution opening, Exhibit A, the facts of which are admitted by you.  The CCTV film, Exhibit B, also shows the circumstances.  The facts need no great elaboration.  You and three other males robbed the male pedestrian in Collins Street late at night on 26 December 2015.  He was not physically injured, but on any view, he experienced very frightening events.  The victim's mobile phone, bag and wallet were taken from him.  Police were on the scene quickly.  You were arrested on 9 January 2015 and have been in custody since. 

3Mr Brett Atkinson pleaded guilty to the more serious charge of armed robbery in view of his producing a knife.  On 14 May 2015, he was sentenced to three years imprisonment with a non-parole period of two years.  Mr Mohammed Osman has not yet been sentenced.  The fourth offender, Mr Louis Asanughwa-Onoduame, has not answered bail.  A warrant has been issued for his arrest.    

4All the victim's property was recovered.  He declined to provide a victim impact statement. 

5The Crown sensibly conceded you played a lesser role than the others and that you indicated, very early, your remorse for what occurred.  You also attempted to retrieve the victim's passport due to his concern about its loss.  You apologised to the victim at the scene for what occurred.  Evidence of remorse is found in your record of interview as well as in what you said to Dr. M. Barth, Psychologist, in April this year.

6The offence is serious.  It was late at night.  There were four of you.  The victim was a single pedestrian in the street.  Fortunately for you, there is no evidence before the court of any ongoing consequences for the victim. 

7You have admitted the contents of a criminal record here and in New South Wales which discloses a number of court appearances.  They do not include robbery offences and are not as extensive or as serious as the records of your co-offenders, Mr Atkinson and Mr Osman.  

8I was informed and it was agreed by the Crown that there is a period of some 104 days "dead-time' referable to a Magistrates Court appearance in October 2014.  The defence and Crown submitted it was appropriate to take this "dead-time" into account and in arriving at the appropriate sentence in your case I have done so.

9You are 27 years of age.  Your personal history is one of hardship of the most extreme kind.  Born in the Sudan, you have been exposed to brutality and trauma, in particular in the infamous refugee Ogujebe camps in Uganda, as well as in Kampala.  Exhibit 1 on your plea included extensive material regarding some of the horrors of the experiences in these camps.  These included witnessing people being murdered by rebels. 

10In Australia, you have suffered two head injuries.  Organic head injuries were recorded in relation to your being punched and kicked in the head on 22 August 2014.  You suffered approximately five minutes lost consciousness.  This followed an earlier assault in 2012 when internal head injury was recorded in a number of areas, including in the left fronto-temporal region.  These matters lessen your moral culpability when your formative years have been so marred.  Cannabis and alcohol abuse have also been part of your life. 

11Two psychology reports have been tendered.  The co-authors of The Alfred report of 7 October 2014 describe your pre-morbid intellectual abilities in the low average range.  Your performance at testing likely reflected both organic and psychiatric factors.  Closed head injury was consistent with some reductions in function, due probably to frontal trauma.  Psychiatric factors were likely to be exacerbating the organic cognitive problems. 

12The more recent report is from Dr. M. Barth, psychologist.  On 9 May 2015 he reported you qualified for a diagnosis of "Alcohol Use Disorder."  It has not been treated and requires treatment.  You have an adjustment disorder with depressed mood also needing treatment.  Cognitive function is largely reduced by both organic and psychological factors.

13These reports lead me to agree with defence counsel that the principles of Verdins are not activated with respect to your actual offending.  They do though support the submission about prison weighing heavily on your health, more so than it would for a person with normal mental health.  Also there is a serious risk of imprisonment significantly affecting you adversely and that has already been manifest.  You have been attacked with boiling water thrown on you and are currently in the medical unit at Port Phillip Prison, Exhibit 2. 

14You have isolated yourself from other prisoners and that is consistent with prison weighing more heavily on you than on others.  Clearly, your time in custody has seen you injured in circumstances that should not have happened. 

15You do have prospects of rehabilitation at your age in my view, guarded though they may be.  Your guilty plea is consistent with genuine remorse, indicated virtually from the outset to the victim.  I have alluded to a number of mitigating factors.  Your criminal record is not extensive but it does include breach of a previous community corrections order.  Your guilty plea, of course, also has the obvious utilitarian benefits.  There is no need to elaborate on the objective and subjective criteria of those benefits, but you have spared witnesses, as well as the time and expense involved in a trial.  There is no evidence before the court that the victim was injured either physically or mentally. 

16Your counsel submitted a Community Corrections Order with all its' benefits as set out in the guideline judgment was appropriate.  The terms attached to every Community Corrections Order can be added to by way of treatment, rehabilitation and other conditions.  It was submitted by the defence that given the time in custody, no further imprisonment need be combined with the CCO to satisfy the demands of the sentencing exercise.

17The Crown submitted a term of imprisonment combined with a Community Corrections Order was an appropriate disposition.  I agree.  A Community Corrections assessment report has been provided on 22 May this year, Exhibit 2.  You have been assessed as suitable for a Community Corrections Order with conditions, in spite of you being assessed as a high risk of re-offending. 

18As well as matters personal to you to which I have referred, I must take into account other relevant sentencing considerations.  General and specific deterrence must be given weight in the sentence I impose.  The Community cannot and will not tolerate offending which so seriously compromises a citizen's right to feel safe walking along a major city street. 

19The message must be clear that appropriate punishment will result in these circumstances.  Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must protect the community from any repetition of this type of offending.  I must seek to deter you and others.  In the circumstances, I have no option but to impose an immediate term of imprisonment together with a Community Corrections Order. 

20You are convicted and sentenced to six months imprisonment, together with a Community Corrections Order of two years duration.  You will be required to perform 150 hours community work with further conditions as to alcohol treatment and rehabilitation, mental health, re-offending reducation and supervision. 

21I declare 133 days pre-sentence detention, pursuant to s.18 of the Sentencing Act 1991.

22Pursuant to s.6AAA of the Act, I declare that but for your plea of guilty, I would have imposed a sentence of 12 months imprisonment with a Community Corrections Order of three years. 

23I will make some comments with respect to custody management issues, Ms Smith. 

24MS SMITH:  Yes, Your Honour.

25HIS HONOUR:  Now we'll need to go through the formalities with respect to the Community Corrections Order. 

26MS SMITH:  Yes, that will be need to be signed, Your Honour.

27HIS HONOUR:  I will wait until that's prepared. 

28MS SMITH;  May I approach the dock, Your Honour.

29HIS HONOUR:  Yes, certainly.   Now, with respect to the custody management issues, I was going to note that medical assessment and attention was required.

30MS SMITH:  Yes, Your Honour. 

31HIS HONOUR:  Make a note about the physical injury.

32MS SMITH:  Yes, Your Honour.

33HIS HONOUR:  He is vulnerable due to age and/or appearance.

34MS SMITH:  Yes, Your Honour. 

35HIS HONOUR:  And that the prison authorities should note that he may require mental health assessment following any injury that he has suffered.

36MS SMITH:  Yes, Your Honour, I'm grateful for those notations.

37HIS HONOUR:  All right.  Now, Madam Associate, can you attend to that Community Corrections Order.   Madam Prosecutor, there were no ancillary orders sought against Mr Mursal, were there?

38MS HOLMES:  No, nothing is sought.

39HIS HONOUR:  Yes, adjourn the court.