Director of Public Prosecutions v Muse
[2013] VCC 1363
•26 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-01599
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUSNI MUSE ABDI FARAH |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 August 2013 | |
CASE MAY BE CITED AS: | DPP v. Muse & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1363 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Todorov | Office of Public Prosecutions |
| For Accused Muse | Ms C. Morris | Robert Stary Lawyers |
| For Accused Farah | Mr J. Taaffe | Doogue, O'Brien George |
HIS HONOUR:
1 Abdi Farah and Husni Muse, on 26 July 2013, a jury found you guilty of armed robbery, false imprisonment and a threat to kill.
2 You, Mr Farah, have pleaded guilty to two charges of obtaining property by deception and the jury announced verdicts of guilty in respect to those charges as well.
3
The jury were satisfied beyond reasonable doubt that on 30 December 2011, in Carlton, you, Mr Muse, produced a knife to a taxi driver, Mr Singh. You,
Mr Farah, joined in the making of demands of the driver. What was stolen remains unclear. I will sentence you on the basis that you men stole the taxi driver's wallet from his car following a search of it. In the end, there can be no doubt about this, because you, Mr Farah, used Mr Singh's credit card some short time later. Your use of the card was the basis of the obtaining property by deception charges.
4
To return back to the circumstances. When you, Mr Farah, were searching the taxi, Mr Singh took the opportunity to run. You, Mr Farah, took off after him and caught him, after he had gone only a short distance. You then used your belt, tying it around Mr Singh's neck, in order to drag him back to the area of the taxi. This conduct amounted to the false imprisonment. You,
Mr Muse, were complicit in this crime.
5 When he was brought back, that is Mr Singh was brought back to the taxi, you men told him that if he tried to run again he would be killed. This was the basis of the charge of threat to kill.
6 These offences are plainly serious. The whole experience was frightening for Mr Singh. The use of the belt was degrading. The threat in all the circumstances was chilling. Taxi drivers are entitled to get through a shift without confronting a knife, being robbed of their valuables and subjected to violence. The courts must deal with the perpetrators sternly so as to properly punish them and deter them and others.
7 Both you men have confronted difficulties in your life. Commencing with you, Mr Farah, in respect of your personal circumstances, you witnessed violence in your native Somalia. This included the assassination of your father when you were about eight years old. Understandably, this has had a significant effect upon you. You and your family fled to Kenya and from there you were settled in New Zealand. You attended school there and did well, completing the equivalent of Year 12. You moved to Australia with other members of your family when you were about 18 or 19. A number of your siblings have settled in Western Australia. Your mother and your sister, Themo, settled in Melbourne, as you did.
8 You gained work in the warehouse of Logistics Industry. You formed a relationship and have two children now, six and five years old. In 2010 the relationship collapsed and there has been a degree of animosity thereafter. This has resulted in limited contact with your children. Your response to this was by taking to alcohol by way of binge drinking.
9 Your sister gave impressive evidence of the desperate strait you were in and the shame that you had of using alcohol, given your cultural standards. She continues to support you and will do so when you are released.
10 You have had a work history that is impressive and overall it seems to me that you have good prospects. Your character up until this matter works in your favour. As I say, overall, it seems you have reasonable prospects of reform when you are released. You are now 30 and were 29 at the time of the offence. As Indicated, you had the benefit of your good character up until these offences.
11 I take into account in mitigation the delay between the offending and your trial. You have had this matter hanging over your head for far too long. You have worked for a good deal of the time, though you have been on remand for now 278 days. I also take into account in your favour, in respect of the obtaining property by deception charges, that you pleaded guilty to them and did so at an early point.
12 Turning now to your personal circumstances, Mr Muse. You are a younger man, 23 now, and were 22 at the time the offences were committed. Your family fled Somalia and ultimately arrived in Indonesia as refugees. It was in that country that you were born. Your father came to Australia by boat. In 1991, the rest of the family joined him in Australia. There were difficulties and your father left and is now settled in Dubai. Your mother raised you and your siblings in Melbourne. You and your siblings did well, gaining a good education. Your siblings now work in a range of professions. I heard from your brother, Hansi Muse, he was an impressive young man. I will return to his evidence shortly.
13 After completing Year 12, you travelled back to Somalia. You met a young woman who you married. She and you have a daughter now four years old. However, your wife and child are not able to join you in Australia. They now live in the United Arab Emirates. You take the responsibility of assisting them very seriously. Although you have support from your own family, the pressures seem to have worn you down in 2009 and 2010. You took up excessive drinking and as a consequence you left the family home. You were for a time homeless and at the time of this offending were living in Ministry of Housing accommodation.
14 You have prior appearances in the Children's Court in 2006 and 2007 and the Magistrates' Court in 2009 and 2010.
15 Subsequent to the offences for which I am dealing with you, you have reunited with your family and are now stable. Your brother spoke of the serious problems of alcohol abuse among young Somalian males, indeed males from other African countries as well. The use of alcohol has the effect of isolating young men from the stabilising environments of their families. Drinking alcohol is not accepted and you, like many other males, including Mr Farah, separated from your family and sought out other young males who were likewise abusing alcohol. Alcohol was a key factor in this offending. Your brother, who has received national recognition for his efforts in establishing and operating mentor type programs, has now taken you under his wing. It seems although he was helping others, you, as his brother, could not or would not open up to him. This has now changed and all for the better.
16 You wish to take up your project management course at Swinburne University which has been on hold while these proceedings have been on foot. It seems to me that your prospects of permanent reform are positive. I have, likewise, factored in the delay in respect of you, in this case coming to trial. It is a significant mitigatory matter for all the reasons that delay is mitigatory.
17 You have been on remand now for 113 days. Part of that was your return to prison on remand once the verdict was returned.
18 I must also deal with you, Mr Muse, and Mr Farah, for the related summary offences of failing to appear.
19 Dealing now with both you men together, both your counsel, or respective counsel, sensibly conceded that the time you men have spent on remand is not sufficient punishment for the offences. The prosecution put forward a range from three years up to six years' imprisonment. Mr Goldberg, on behalf of you, Mr Muse, contended these figures were excessive.
20 In order to appropriately punish you, deter both you, and more particularly others, and yet at the same time facilitate your rehabilitation, I must sentence you both to further time in prison. It is a grave step to send young men to gaol but there is no other option. There needs to be some cumulation, but it can, in my view, in all the circumstances, be modest. It will mark the chilling nature of the threat to kill and the degrading aspect of the false imprisonment, but I am mindful that this was one singe event.
21 I am also mindful of the principles of parity. In accordance with those principles, there needs to be some recognition of the slightly different roles played by each of you. You, Mr Muse, initiated the armed robbery by producing a knife, while you, Mr Farah, used your belt in order to perpetrate the false imprisonment. Also, I cannot overlook the younger age of you, Mr Muse, but you have prior court appearances and Mr Farah does not. In the end, it seems to me, balancing all matters, that justice is achieved by identical sentences. I will deal with each of you separately.
22 Abdi Farah
23 In respect of the armed robbery, you are sentenced to a term of imprisonment of three years and six months.
24 In respect of the charge of false imprisonment, you are sentenced to a term of imprisonment of 12 months.
25 In respect of the threat to kill, you are sentenced to imprisonment for a term of six months.
26 In respect of the obtaining property by deception matters, you are convicted and I impose an aggregate fine of $500.
27 In respect of the fail to appear, the summary matter that you have consented that I deal with, you are convicted and fined $250.
28 I order that two months of the second charge, the false imprisonment, and one month of the threat to kill be cumulative upon the sentence I impose in respect of the armed robbery.
29 This gives a total sentence of three years and nine months and I order that you serve two years before being eligible for parole.
30 I make a declaration that you have served 278 days of the sentence that I have just imposed. I will ensure that this declaration is entered into the records of the court so the prison authorities can be left in no doubt that you have served 278 days of the sentence that I have just imposed.
31 Had you pleaded not guilty to the obtaining property by deception matters, that you did plead guilty to and ultimately were found guilty of them, I would have convicted and fined you $1,000.
32 Husni Muse
33 In respect of the armed robbery, you are sentenced to a term of imprisonment of three years and six months.
34 In respect of the charge of false imprisonment, you are sentenced to a term of imprisonment of 12 months.
35 In respect of the threat to kill, you are sentenced to imprisonment for a term of six months.
36 In respect of the fail to appear, the summary matter that you have consented that I deal with, you are convicted and fined $250.
37 I order that two months of the false imprisonment, and one month of the threat to kill be cumulative upon the sentence I have imposed on the armed robbery.
38 This gives a total effective sentence of three years and nine months and I order that you serve a minimum period of two years before you are eligible for parole.
39 You have served 113 days and I will make a declaration about that. I will ensure that the declaration that I have just made is entered into the records of the court so the prison authorities can be left in no doubt that you have already served 113 days of the sentence that I have just imposed.
40 There is an application made in respect of compensation for property that was the subject of the trial. As a consequence of the difficulties that confront me in respect of the evidence, I decline to make the order in respect of compensation. If Mr Singh wishes to pursue that matter, of course he has got rights under the civil law to sue the men for his property.
41
A further application has been made the prosecution that there be, in respect of Mr Farah, a retention. There is an application in respect of you, Mr Farah, that you undergo a forensic procedure, that is the taking of a scraping from your mouth, so that a sufficient sample can be obtained and your DNA extracted and placed on a database. I have considered that application and I am satisfied that in all the circumstances I should grant that application.
I make the following order that you be subject to a forensic procedure. Perhaps I should indicate that the reason I am granting that application is the seriousness of the circumstances warrant the making of the order and the granting of the order is in the public interest. I have to inform you, Mr Farah, at the time that authorities seek to take the sample from you, that they are authorised to use reasonable force to enable that forensic procedure, the scraping from your mouth is satisfactorily conducted. The way through it of course is just simply co-operate with it.
42 (Section 464ZF order signed and acknowledged.)
43 Mr Muse, in respect of the same topic, the application is that the authorities retain the sample already taken from you. I have considered that application and I propose to grant that application. The reason why I am doing so, again is the seriousness of the circumstances of the offending warrant the order. In your case the prior convictions are such to, in combination, warrant the making of the order and the granting of the order is in the public interest. Again, what will occur is that the sample will be simply retained on the database.
44 (Section 464ZF signed and acknowledged.)
45 Is there anything further required?
46 MS MORRIS: Nothing further, Your Honour.
47 MR TAAFFE: No.
48 HIS HONOUR: Thank you. Gentlemen, there is no facility within this court room to allow those that care for you and who you care for to spend any time with you. It might sound brutal, but it is the only way that we can deal with these matters. So you gentlemen will now be removed and I will proceed on to other matters. Thank you. Just bear with me for a minute. There will be a copy of those documents available. Again, I thank counsel, as I have done, for their assistance in this matter, but I pause, Mr Taaffe, to also indicate the thanks of the court in trying circumstances in this matter.
49 MR TAAFFE: Thank you, Your Honour.
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