Director of Public Prosecutions v Muuse
[2017] VCC 515
•4 May 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-16-02252
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BULAALE MUUSE |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 April 2017 |
| DATE OF SENTENCE: | 4 May 2017 |
| CASE MAY BE CITED AS: | DPP v Muuse |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 515 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – attempted armed robbery – attempted robbery – guilty plea
Legislation Cited: Crimes Act 1958 (Vic); Criminal Procedure Act 2009 (Vic); Bail Act 1977 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: Kelly v R [2011] VSCA 10; R v Ismunandar [2002] NSWCCA 447; Lowe v R (1984) 154 CLR 606; R v Rexhaj (NSWCCA, unreported, 29 February 1996)
Sentence:Convicted and sentenced to 3 years’ and 6 months’ imprisonment with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms. A. French | Office of Public Prosecutions |
| For the Accused | Mr. C. Farrington | Patrick W. Dwyer |
HIS HONOUR:
1Mr Muuse, you can stay seated. You have heard a number of issues that have been referred to, as have your family, in regard to what your sentence should be.
2It is necessary for me, in pronouncing this sentence, to consider all of those matters, and I will. Most importantly, you must understand why you are being sentenced, and also that such is on the public record. When I finish, I will ask you stand up and I will pronounce the sentence. Then, I will ask both counsel if there are any matters that are not correct, to advise me accordingly.
3Mr Bulaale Ahmed Muuse, is now aged 24, having been born on 25 December 1992, and age 23 years at the time of committing the crimes in this Indictment.
4The plea took place on 6 April 2017, when Ms French appeared on behalf of the Director, and Mr Farrington appeared on behalf of Mr Muuse.
5In Indictment No. G12641324, as I said, Mr Muuse pleaded guilty to two charges. The first is an attempted armed robbery charge, laid pursuant to the provisions of ss.75A and 321M of the Crimes Act 1958 (Vic), for which the maximum penalty prescribed is 25 years gaol.
6The second charge was an attempted robbery, laid pursuant to ss.75 and 321M of the Crimes Act 1958 (Vic) for which the maximum penalty prescribed is 10 years gaol. Insofar as this crime is concerned, albeit not charged as a co-accused, he did have a fellow participant in this crime, Mr Morrison, who was dealt with in the Magistrates’ Court, the circumstances of which I will come to.
7In addition, pursuant to s.145 of the Criminal Procedure Act 2009, I have been asked to also pronounce sentence in regard to a summary crime, which is to commit an indictable offence while on bail, a breach of s.145 of the Bail Act 1977 (Vic), for which the maximum penalty prescribed is one of 30 penalty units and/or three months gaol.
8The circumstances of these crimes and, as a consequence, the summary matter, are bizarre to say the least, and quite scary. Mr Farrington accepted the facts as set out in Exhibit A, which is the summary of prosecution opening prepared by Ms French, as being facts upon which I am to sentence you.
9This offending, as I said, took place on 23 September 2016. It took place at 8.50 a.m. in the centre of Melbourne in A' Beckett Street. The victim was Jie Pan, a student, aged 20 years of age, who was on her way to University, when she was brazenly attacked in the manner and circumstances, set out in Exhibit A, when Mr Muuse committed the attempted armed robbery upon her.
10You were standing in front of her and would not let her pass. You said to her, "Do you have money? Give me your money, motherfucker" and tried to grab her bag. She resisted telling you she did not have any money. You then opened your shoulder-bag and showed the contents to her, saying, "Do you know what’s in there?" She then observed the handle of a gun which was black and white.
11She said, "No" apparently, in response to the question and walked away from you. Exhibits B and C show not only the bag, but in particular, what was inside the bag, being an imitation fire-arm.
12For a young student, in the centre of Melbourne on a Friday morning at 8.50 a.m., to be subject to this ordeal, simply cannot be tolerated.
13As to the second charge, again Jie Pan was the victim, because after the attempted armed robbery, she went across into a store called, ‘Tokyo Hometown Japanese Supermarket.’
14While she was in there, and indeed, trying to ring the police, she saw Mr Muuse walking up and down outside the shop. Mr Muuse and Mr Morrison, then entered the supermarket. She was first approached by Mr Muuse who grabbed her and said words to the effect, "Don't run." Mr Morrison then also approached her. Both of them grabbed her bag and Mr Muuse took everything out of the bag, and said, "You only have books, no money." Mr Muuse then put her items back in the bag, and walked out of the store with Mr Morrison. Apparently, as they were walking out, they said, "Wrong person, wrong person."
15The victim waited in the supermarket for the police to arrive. Mr Muuse and Mr Morrison moved to another part of the city in their car, and were apprehended at approximately 9.30 a.m.
16At the time of committing these offences, Mr Muuse was facing two separate charges for which he had been given bail, respectively granted on 17 August 2016 and 13 September 2016, only ten days prior to these offences occurring.
17There is no victim impact statement. The victim in this matter, I am advised, has gone back to China. However, one can imagine the circumstances and her reaction with being confronted in this manner.
18Once arrested, Mr Muuse has served on remand, as agreed, 223 days imprisonment.
19While the prior history of Mr Muuse could not be seen to be good, it is not dramatically bad. Certainly there are no offences to this degree. Further, he had not been sentenced to gaol. There are, however, prior offences for assault, affray, reckless cause injury, handle stolen goods, theft and drug matters.
20Mr Morrison who assisted him, is approximately the same age. He has priors for theft and traffic offences similar to Mr Muuse, albeit not as many. However, he has a more serious offence, that Mr Muuse does not have, for which he was convicted in November 2011. That is an offence of armed robbery for which he was given a sentence of detention in a Youth Training Centre for a period of 20 months. Apart from that, he has received fines.
21I am not too sure how this occurred, but Mr Morrison was able to have the attempted robbery matter heard before a Magistrate, who apparently, in the circumstances, determined it was appropriate to hear that matter summarily. That matter was heard in the Magistrates' Court on 15 December 2016 when Mr Morrison, for the same charge for which Mr Muuse faces, Charge 2 in the Indictment, was given a sentence of 85 days imprisonment. I will have a little more to say about that in due course.
22The prosecution have sought a disposal order, which I have already signed, and they also seek an order under 464ZF for forensic sample, and I will sign that order as well.
23The plea was conducted by Mr Farrington, and Exhibit 1 was tendered, being the written submissions of Mr Farrington.
24As to the personal circumstances of Mr Muuse, he arrived in Australia with his father when he was aged five. They apparently spent a period of some seven months in the Villawood Detention Centre and thereafter, were issued a Protection Visa.
25Mr Muuse lived with his family, that is, either his father or mother, in either New South Wales or Victoria and attended a number of primary schools. His education was completed at Year 9.
26However, Mr Muuse has made a success insofar of the employment aspect of his life, because he completed an Apprenticeship in Plastering, and has been self-employed for some time. Indeed I am told that at the time of these crimes, he was employing three staff in a business which essentially was sub-contracting to a large builder.
27Insofar as matters to be taken into account, Mr Farrington stressed the plea, and the utilitarian aspects about that, which meant that the victim did not have to give evidence. Also the service of justice by that plea and the effecting of remorse by that plea, which I accept.
28The background to this offending seems to be, taking into account the submission and in particular the opinion of Ms Cidoni, psychologist, as set out in Exhibit 2, the impact of drugs upon Mr Muuse.
29Mr Muuse has a background of taking cannabis from the age of 16, and unfortunately, from the age of 22, became addicted to amphetamines, or ice. As reported to Ms Cidoni, he was habitually using ice at the time of this offending.
30Mr Muuse has an IQ that is relatively high, which indicates how he has been so successful in business. He does, however, have some anti-social traits, but the major factor that came from that report of Ms Cidoni, was the issue of drugs.
31Mr Muuse requires, in particular, as set out in p.5 of her report, treatment for drug addiction and anger management to ensure that his future is not further beset by crime. She also expressed some concern, insofar as for the impact on him of being in gaol, given that he is still a relatively young man. At p.4 of the report, she indicates that the background for this criminality, or the explanation, not excuse, is the habitual ice addiction.
32As to rehabilitation, Mr Farrington put to the Court that this was always a factor, and of course it is, with a young man who has essentially done well, and is still relatively young. It was put that Mr Muuse’s intent is to reform his life, that gaol has had an impact upon him. That is the intent that he expressed to Ms Cidoni, that it is indeed his intent to change his life. However, of course, his rehabilitation, as Ms Cidoni said, is problematic, and depends totally upon his ability to free himself from the effect of drugs, and that unfortunately, is the reality.
33Parity, is a matter that the Courts are always at pains to ensure is effected. I have already referred to the issue as to Mr Morrison, and the issue of parity relates, of course, only to the Charge 2 in the Indictment.
34The sentence given in the Magistrates' Court to Mr Morrison was 85 days. Now, there are differences obviously, the maximum penalty here, of course, is much larger than was available to the Magistrate. In the Magistrates' Court the maximum individual penalty that could have been given for this offence, is two years, however, as it was a one of a number of other offences, as I understand it, a maximum penalty for the totality of the offences was five years.
35There is no written reasons before me as to the Magistrates' decision. I can only take the view that the Magistrate accepted that Mr Morrison played a much lesser role. Indeed when talking about this second charge, said that he was the one creating most of the drama to do with the phone.
36
Mr Muuse said that Mr Morrison had no idea of what was going on,
at questions and answers 105 to 107, and 126 to 131 said ([12] Exhibit A):
"Joshua, my mate, he has no idea what's going on. He just rocked up, he was coming to get me.” He arrived about five minutes before the police had arrested them.
37I am not sure how these matters were put to the Magistrate and what he accepted, but it may well be the explanation for the decision below. Whatever his role, it was obviously not a lengthy role and I assume the Magistrate took that into account.
38The submission, insofar as parity is concerned, put by Mr Farrington, as I said, relates only to charge 2, and insofar as his submission was concerned, I accept the general principles that he set out, at paragraph 4.36. He quoted from the Victorian Court of Appeal decision of Kelly v R [2011] VSCA 10, which talks of the general principle that disparity is to be discouraged.
39This is of course, another example where the issue of parity has come up because the Magistrate heard the matter of Mr Morrison. In my view, that was totally inappropriate, Mr Morrison should have been heard here. But at any rate, we now have to deal with it.
40There is no doubt about the general principle quoted by Mr Farrington. However, co-existent with that, is the fundamental requirement that justice is done, and the community interest is protected.
41In my view, the sentence below is derisory. It appears to be wrong, although I cannot exactly say why it is wrong. As I said, doing as best as I can, it must have been a determination by the Magistrate that there was a marked difference in roles, despite Mr Morrison's prior being more serious than Mr Muuse.
42Albeit, the general principles relevant to parity, given the circumstances of this case, I find that it is not in the interest of justice to totally effect the principle in this case.
43This is based upon the principles set out by the Court of Criminal Appeal of New South Wales in R v Ismunandar [2002] NSW CCA447. In particular, I want to quote from [32] and [38], perhaps I will start with [25]:
"The narrow question for decision is whether to substitute for the sentencing Judge's sentences the sentences requested by the appellants would be to select sentences so gravely inadequate that any grievance in [the people in this case], which might be engendered cannot be regarded as legitimate, so that using this means of removing the disparity between the sentences left after the reduction in [the] appeal, would be an affront to the proper administration of justice."
44This principle, as I said, is more particularly detailed in [32] of Ismunandar, when there is reference to the general principles set out by the High Court in Lowe v R (1984) 154 CLR 606 at 623, in particular the comments of Dawson J:
"The law puts up with this difficulty in conventional parity cases. But to take the step of reducing the sentences … so as to bring them in line with that of … was itself, erroneous, in part, because of an innocent error in relation to … is to take a step so much based on a repetition of error, that the resultant sentence is an affront to the proper administration of justice, and any sense of grievance arising from the maintenance of the existing sentence, would not be justifiable."
45At [38] of Ismunandar, the Court expresses the issue this way. The appellants argued before the Court, that to pronounce different sentence in the circumstances of that case, would undermine the public confidence in the consistency of a senior Court of the State.
46That is, the District Court and that two different sentences were being considered in that case. As the Court said, at [38] in Ismunandar:
"There are, however, more important things than consistency. It is better that this Court, constituted as it is, arrive at the correct result in the … appeal, than that it arrive at the wrong result merely because this Court, constituted as it was in the … appeal, arrived at a wrong result. To adapt an ancient aphorism, it is not better that this Court should be perpetually wrong, than that it should be sometimes right."
47The Court then referred to a further statement of the Court of Appeal in R v Rexhaj (NSWCCA, unreported, 29 February 1996) as follows:
"The principle which underlies … [intervention for disparity] … is that inconsistency in punishment may lead to an erosion of public confidence in the administration of justice. … There are, however, other things that may also lead to the erosion of public confidence in the administration of justice, and they include the multiplication of manifest errors. That is why numerous Judges have stressed the unattractiveness of responding to one wrong decision by making another wrong decision."
48In my view, that is exactly where this Court is. For the very unfortunate situation of this plea not being heard together with Mr Morrison's plea, this Court is in a position, where, while I cannot precisely ascertain, because there are no reasons why this decision is so wrong, but in my view, the fundamental principle of justice must prevail in this case, and I find, the role to be given to parity in this case, is limited.
49Mr Farrington also relied on the support for Mr Muuse, from his family. I have indeed re-read Exhibit 3, the statement of his mother, and the statement of the Somalian-Australian Council set out in Exhibit 4, and I note that his family are here, and I also note the successful manner in which the family have adopted in Australia, and the success they have made of their lives.
50Mr Farrington finally, on the basis of those factors, submitted to the Court that a combined sentence by way of a period of imprisonment and a community correction order, is the appropriate sentence to be passed, albeit that, as discussed, that period of imprisonment, due to recent Parliamentary enactment, is limited to 12 months.
51In support of such today is the Community Correction report dated 24 April 2017, prepared by Sarah McKenna, Exhibit E. Albeit the number of times that Mr Muuse had breached prior CCOs, albeit with hesitation, he was found suitable for a CCO.
52The prosecution in response to such submission, submitted that given the seriousness of these crimes, the importance of the principle of general deterrence, in particular the seriousness of the two indictable matters, that it is not appropriate for a combined order to be passed.
53I have considered both submissions with concern and deliberation. As I say, Mr Muuse is a man who has come from a limited education to establish himself with good qualifications, who is well employed, has a family here who has done well in Australia, and are prepared to support him.
54Against that, however, is the serious nature of these offences. I have been at pains, to talk about the serious nature of the first charge. An attempted armed robbery, in the circumstances of this case, committed as it was, and given the ordeal that must have been incurred by the victim, which was then perpetrated to a lesser degree by the continuation of the circumstances which I detailed insofar as the attempted robbery, and the brazen nature of the action of Mr Muuse in committing both of those crimes, and taking into account his own background and the fact that he was on bail most recently for offences, lead me to the conclusion, especially given the recent limitations imposed by Parliament, that it would be an inappropriate punishment to pronounce a combined sentence.
55I therefore reject the submission of Mr Farrington. I do accept the submission of the prosecution, that a combined period of imprisonment with a Community Correction Order is not the appropriate sentence taking into account all proper principles.
56Mr Muuse, if you would stand up please.
57On the indictable matters, the first charge, you will be sentenced to a period of imprisonment of three and a half years.
58On the second charge, a period of imprisonment of ten months.
59I do not intend to impose any period of cumulation, so that the maximum period of imprisonment that is to be imposed on you for these two charges in the Indictment is a period of three and half years.
60Insofar as the summary offence, I impose a period of imprisonment of one month. Again, I will not make that cumulative so again, the maximum period of imprisonment you will face is a period of three and a half years.
61I order that the period that you must serve before being eligible for parole is a period of two years.
62I further order that 223 days which you have spent on remand shall be deemed service of this sentence and the declaration pursuant to that be recorded in the records of this Court.
63As I said, I will sign the forensic order and I have signed the disposal order. Are there any other matters that counsel either want to correct or that I need to attend to.
64MS FRENCH: Your Honour, with respect to a declaration under s.6AAA.
65HIS HONOUR: Yes. Can I indicate that - now this is important insofar as you're concerned, Mr Muuse, because Parliament has prescribed that it is necessary for this Court to indicate to you what would have been the consequences had you not pleaded guilty in this matter.
66It is a somewhat difficult determination for a Court to make because one does not only take into account in sentencing you, the fact that you have pleaded to these matters.
67However, doing as best I can, pursuant to s.6AAA of the Sentencing Act 1991 (Vic) can I indicate to you that had you not pleaded guilty, the sentence I would have pronounced upon you, would have been a period of five and a half years as the head sentence, with a minimum period to be served before being eligible for parole of three and a half years. Hence, you will see the benefit that you have obtained by pleading guilty that as against a maximum of five and a half years and a minimum of three and a half years, you have been sentenced to a maximum penalty of three and a half years, with a minimum period to be served before being eligible for parole of two years.
68As I have said, the period that you have served to date, is to be deemed service of that sentence.
69MS FRENCH: Your Honour, there is just one other matter with respect to the maximum penalties Your Honour declares towards the start of your remarks.
70HIS HONOUR: Yes.
71MS FRENCH: I may have misheard you, but with respect to attempted armed robbery, the maximum penalty is 20 years.
72HIS HONOUR: You did not mishear me. I made a mistake. I put 25.
73MS FRENCH: Just to clarify, the penalty with respect to committing an indictable offence whilst on bail is 30 penalty units or three months' imprisonment, not and/or.
74HIS HONOUR: I thought it was - I think I took that directly off your summary didn't I?
75MS FRENCH: My summary says 30 penalty units or three months' imprisonment.
76HIS HONOUR: Or three months' is it?
77MS FRENCH: Yes, rather than and/or.
78HIS HONOUR: So it is 30 penalty units or three months.
79MS FRENCH: Yes.
80HIS HONOUR: Thank you for those alterations.
81MS FRENCH: Thank you, Your Honour.
82HIS HONOUR: Yes, anything else.
83MR FARRINGTON: No, Your Honour,
84HIS HONOUR: Yes, thank you Mr Muuse, good luck. I am sure that you will realise that for you to do well in this community and go back to the way you were doing, drugs cannot be part of your life, all right, so I wish you well. Yes, the prisoner can be taken away.
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