Director of Public Prosecutions v Nur
[2019] VCC 1601
•30 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01462
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KHALID NUR |
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JUDGE: | HER HONOOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 September 2019 | |
DATE OF SENTENCE: | 30 September 2019 | |
CASE MAY BE CITED AS: | DPP v Nur | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1601 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing
Catchwords: Aggravated burglary, armed robbery, theft and kidnapping – youthful offender – good rehabilitation prospects – genuine remorse – immediate custodial sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Livingstone Clark Mr S. Devlin (sentence) | John Cain Solicitor for the Director of Public Prosecutions |
| For the Accused | Dr T. Alexander | Starnet Legal |
HER HONOUR:
1 Khalid Nur, you have pleaded guilty to five charges, being: Charge 1, aggravated burglary; Charge 2, theft; Charge 3, armed robbery; Charge 4, kidnapping; and Charge 5, theft.
2 The offences were committed on 30 and 31 January 2019. You were arrested on 31 January 2019 and have been in custody since that date. This is your first time in custody in adult prison.
3 The offending is serious and that is reflected in the maximum penalties that are prescribed by Parliament, and they are: armed robbery, 25 years' imprisonment; kidnap, 25 years' imprisonment; aggravated burglary, 25 years' imprisonment; and theft, 10 years' imprisonment.
4 I shall proceed to sentence you on the basis of the opening that was read by the prosecutor at the plea hearing.
5 Kidnapping is a category 2 offence. When sentencing an offender in relation to a category 2 offence, a court must impose a custodial sentence under Division 2, Part 3 of the Sentencing Act 1991 (other than a sentence of imprisonment imposed in addition to a community correction order, pursuant to s.44) unless one of the provisions in s.5(2H)(a)-(e) of that Act applies. In the circumstances of this case, your counsel, Dr Alexander, did not rely on there being an exception. Therefore, you must receive an immediate custodial sentence in respect to that charge.
6 You were aged 20 at the time of the offending. You are now 21.
7 The first incident occurred on Wednesday, 30 January 2019 and relates to Charge 1 and 2, the aggravated burglary and theft charges.
8 You were travelling in a vehicle in the Footscray area with witnesses, Carlie Jones and Joel Kulumba, together with a unknown co‑offender, known only as 'Ace'.
9 At about 10.15 pm, the vehicle stopped in Southampton Street, Footscray. You and the unknown offender got out of the vehicle and crossed Essex Street, walking north on Southampton Street. You then are shown on some CCTV footage interfering with glass louver windows of a milk bar that was situated on that corner. You then walked to the rear of the milk bar with your unknown co‑offender. Adjacent to the rear of the milk bar was the address occupied by the first and second victims, and they are Tobias Jones and his partner, Jessica Jones.
10 You and the unknown co‑offender then gained entry to their home by climbing through the open sash window into a living room. (Charge 1 – aggravated burglary).
11 Once inside, you both stole the first victim's work backpack which contained a laptop, a Samsung smartphone, the first victim's wallet, and the key to his work vehicle. You then left the house through the open window. The taking of the various items constitutes the circumstances of Charge 2, theft.
12 Tobias Jones and Jessica Jones were awake in bed and heard your disturbance. After looking around their home and front porch and onto the street, Mr Jones realised that his work backpack was missing.
13 After leaving the house with the unknown co‑offender, you both ran back towards Essex Street and travelled towards Swan Street. CCTV footage shows your unknown co‑offender carrying the backpack.
14 The unknown co‑offender then returned to the Jones' home and used the car key to steal the first victim's work vehicle, a white Subaru with reflective strips and amber flashing work lights on top.
15 The Jones' observed the vehicle being driven past and immediately called 000.
16 Shortly afterwards, you went back to the vicinity of your friend's car. Ms Jones is not related to the victims in Charges 1 and 2, and it is not suggested that she was in any way part of this criminal enterprise. She had been waiting for you for about 15 minutes and had not known whether you and the co‑offender were returning.
17
She was driving up Southampton Street when she saw you, and you then got back into her vehicle and you all left the area. You were in company with
Ms Jones and Mr Kulumba.
18 You then went to the Ashley Hotel, Braybrook.
19 A short time later, the first victim's work vehicle, being driven by the unknown co‑offender, arrived at the Ashley Hotel. You then got into that vehicle and left the area. Those events were captured on CCTV footage at the Ashley Hotel.
20 The second incident occurred shortly before 1 am on 31 January 2019.
21 You and the unknown co‑offender and a third unknown co‑offender entered a property at 10 Beachley Street, Braybrook, via an open back door.
22 Mr Stirrup, the third victim, was in his bedroom and heard a noise coming from the back of the house near where a beer fridge was located. He had not seen you or the other two but shouted towards you to take the beer and leave.
23 He then looked into the corridor. He saw one of the unknown co‑offenders and he shouted at that person, 'What the fuck are you doing?' The unknown co‑offender said something in a language unknown to Mr Stirrup, at which point he then saw you and the other second unknown co‑offender. He immediately retreated back towards his bedroom and was followed by you and the two other offenders.
24 Mr Stirrup could see that you had a black knife in your hand, which he described as an Asian throwing knife. The second unknown co‑offender had something similar to a hammer in his hand. You said to Mr Stirrup, 'Give me the money', and also asked for drugs and valuables. You were told to take the beer and leave because he had no money. The other two unknown co‑offenders began to get agitated, indicating that they wanted to fight with Mr Stirrup.
25 Mr Stirrup then showed you all, by opening up his drawers, that he had nothing of value. One of the co-offenders asked him for his wallet and so he took his wallet out to show you. He gave a $10 note to your co-accused, as well as a bank card that was in his wallet. The co-offenders continued to shout and demand more, all the while, he was asking you three to leave. That constitutes Charge 3, the armed robbery.
26 You then told Mr Stirrup that he was going to go with you all to an ATM and empty out his bank account. Mr Stirrup told you he had very little money in the bank. But ultimately, he complied with your request because of his fear that if he did not do so, he would be stabbed.
27 Mr Stirrup left the house, wearing only shorts and a T-shirt, with no socks or shoes. Whilst outside, you three surrounded him and compelled him to get into the rear passenger seat of the vehicle. And that constitutes Charge 4, kidnapping.
28 He was driven to a Commonwealth Bank ATM at the Central West Shopping Centre, Braybrook, where he was then escorted to the ATM, and demands were made for him to provide his PIN code, which he gave. Ultimately, after one unsuccessful attempt, one of the unknown co‑offenders withdrew $150 from his account. And that was captured on CCTV footage at the bank. (Charge 5 – theft). Mr Stirrup was told to get back into the car and driven towards the entrance/exit of the car park. You ascertained that he did not have a mobile phone on his person. He was let out of the car at the entrance/exit of the car park. He ran barefoot back home and called police.
29 The vehicle that was used to drive him to the ATM was the Subaru work vehicle belonging to the first victim. That was later found abandoned in the emergency lane of the Monash Freeway, just west of the East Link interchange at about 9 am on 31 January 2019.
30 You were arrested on that date at about 2 pm when police intercepted a vehicle being driven by your friend, Ms Jones, in the car park of Central West Shopping Centre.
31 Ultimately, Mr Stirrup identified you from a photo board containing images of you and 11 other men of similar appearance on 2 February 2019. Other evidential material, including a mixed DNA profile found on a Subaru remote control key in Ms Jones' vehicle was matched to you, and also police discovered the black double-edged knife in the rear seat in Ms Jones' vehicle, where you had been sitting, that was similar to one that had been described by Mr Stirrup.
32 When you were formally interviewed, you denied any involvement in this offending.
33 Mr Nur, the circumstances of this offending are appalling. Your behaviour was unacceptable and intolerable. In sentencing you, denunciation, deterrence and the protection of the community are important sentencing considerations.
34 Your counsel, Dr Alexander, agreed that this was serious offending and highlighted further that it was unacceptable for anyone to confront a person at their home, armed with weapons. You were in company at the time you attended Mr Stirrup's home, and that is another aggravating feature. The fact that you kidnapped him and forced him to provide you with his PIN number and took him to the ATM is very disturbing.
35 I accept the matters put on your behalf in mitigation. You read a written apology at the plea hearing, and that apology states that you have now had time to reflect on your conduct whilst you have been in prison. You apologised to both the victims and your family, who, through your actions, were affected.
36 I accept that the written apology is genuine. It does demonstrate that you now have some insight into the impact of your offending behaviour. You realise that your actions were not welcome in any community. You state that the past nine months spent in prison has been the hardest time of your life, you have lost many privileges, you have missed your family and you consider that you may have jeopardised your future. You express a willingness to change and state that you are remorseful. You are looking forward to a family of your own in the near future with your partner, and you do not want your children to experience what you have in prison.
37
The impact of your offending upon Mr Stirrup has been very serious, and that is as set out in his victim impact statement, that was declared on
19 September 2019. He has requested that that not be read out aloud and I acknowledge that I have read that statement and I have had regard to the turmoil and hurt that he suffered as a consequence of your actions.
38 You entered a plea of guilty following resolution of this matter at the committal case conference on 22 July 2019. It is accepted that the plea of guilty was entered at the earliest opportunity, and the plea has real utilitarian value. You have spared the victims of having to come to court to give evidence in your trial, and you have saved the cost and expense of a trial, so you have facilitated justice and your sentence will be discounted accordingly. I accept the pleas are also indicative of your genuine remorse.
39 You are a person who otherwise has no prior criminal history, and you are entitled to rely on your previous good character.
40 Your father gave evidence at the plea hearing, which demonstrated that your time spent in custody has meant that you have spent that time to reflecting on your bad behaviour, and that you are now reconciled to being a more law abiding person. You are supported by him and also your mother, as well as other family members. He has committed to you to help you for the future to get you back on track and to support you upon your eventual release.
41 You were born in New Zealand. Your parents are refugees from Somalia. They initially settled in Auckland, New Zealand, but ultimately relocated to Australia in 1998/1999. Your father has worked hard in the past in a meat packaging factory, and since 2002 has worked as a taxi driver. Your mother remained at home to care for each of the four children from the marriage.
42 Your schooling was disrupted to an extent. You finished Year 10 at King Khalid College and then left to undertake Year 11 VCE program at Mount Ridley High School, Craigieburn. During that time, you began to truant and commenced using cannabis and alcohol. And your behaviour was described as being rebellious and disaffected.
43 During 2015, your paternal grandfather became sick in Somalia. Your father, therefore, decided to return to Somalia to be with his father. He took you with him, so as to try to break the connection between you and your negative peer group. You arrived in Somalia in September 2015, and ultimately, it was decided that you would remain there to become familiar with your large extended family and also to learn your traditions and culture. You remained in Somalia until 2017 and completed schooling there. Whilst in Somalia, you lived with aunties and uncles, and it was during this time that you spent in Somalia that you were exposed to some atrocities that have left their mark upon you.
44 You returned to Australia in February 2018. There was friction in your family home upon your return because you were not abiding by the family rules. Prior to your arrival back in Australia, your father had discussed with you his desire that you decide to either continue to study or to obtain employment upon your eventual return to Australia. You did undertake a pre-apprenticeship course in electrics at RMIT but did not achieve a certificate. You did not find an apprenticeship, and you were mixing with peers that he was not familiar with, and this all led to growing conflict between yourself and your father. Ultimately, he put it to you that you could only stay at home if you were to comply with his rules, otherwise you would have to leave the home. He was worried about the impact of your behaviour upon the younger children.
45 You then decided on 13 August 2018 that you would leave, and you went to live with friends in Maidstone.
46 After leaving home, you saw your family at times, but the visits were irregular, once or twice a month, and there was a period of four weeks where you did not go home at all. You parents were concerned greatly about your welfare, and it was whilst your father was trying to find out where you were, that he was informed by your mother that you had contacted her from prison and had told her about what had happened.
47 Notwithstanding the conflicts and the difficulties in your relationship at home, your parents have stood by you and have regularly visited you in the prison, and they remain supportive of you and have been present at all the plea hearings.
48 Your father was very anxious and concerned about your offending and apologised for the trouble that you have caused. You have brought real shame upon your family, and your father stated clearly that this sort of conduct is not part of what he considers to be his own personal values.
49 In the lead up to the offending, you were using cannabis, mixed with OxyContin, Valium and Xanax. You were using up to a gram daily of ice and intermittently using GHB. You were effectively couch surfing, and there was no stability in your life. Whilst providing a context to the offending, it does not in anyway provide an excuse for your offending behaviour.
50 I accept that prison has been a difficult and salutary experience for you. You are currently being held in a unit as a protected prisoner, and I have had regard to the contents of the affidavit that has been sworn by Brendan Money, sworn 26 September 2019, that sets out your history whilst in custody.
51 Mr Money is the Assistant Commissioner Sentence Management Division, Corrections Victoria. From 25 July 2019 until today's date, you have been held in the Forbes Management Unit where you have received between one and two hours out of the cell each day. That has been a very strict regime and no doubt the weeks that you have spent in that restricted regime have impacted greatly upon you, and I have taken that into account.
52 In prison, you have worked as a kitchen hand at times, but you have not been able to access any courses or programs.
53
Mr Cummins, consultant psychologist, prepared a report dated
9 September 2019 and also gave evidence at the plea hearing, and I have taken into account his evidence.
54 He interviewed you for about an hour and a half, and in his report he confirms your background. He notes that you have symptoms of post-traumatic stress disorder ('PTSD'), relating to the trauma that you were exposed to whilst in Somalia. To date, you have not received any trauma-related counselling. He noted that there was an occasion whilst you were in Somalia that you were physically abused at gunpoint whilst there, and you were the subject of an armed robbery. You were very scared about that, and that incident has caused you nightmares. Sadly, that experience has not prevented you from acting in a not dissimilar manner towards the victim, Mr Stirrup, in this matter.
55 Mr Cummins recommends that you participate in an intensive anger management program, that you have treatment for your illicit drug use, and also treatment for your post-traumatic stress disorder. And I commend all those recommendations to the correctional authorities.
56 Importantly, you did acknowledge to Mr Cummins that by your offending, not only have you let yourself down, but you have also very significantly let your parents down. You acknowledged the victims of your offending and confirmed that you understand that they would have been traumatised by your behaviour.
57 During the course of the plea hearing, Dr Alexander disavowed any reliance on the Verdins principles. I have, however, had regard in the general sense to the comments and expressed opinion of Mr Cummins. I accept his description that you are a relatively immature person, who now expresses appropriate insight into his offending behaviour and who understands the risk of further offending. Currently, you have formed a better relationship with your father, but your relationship with your mother is still very tenuous, having regard to the shame that you have brought upon your family.
58 Mr Cummins states that you are currently at risk of committing further offending of a violent nature, and that is moderate, which indicates that you must participate in an intensive anger management program.
59 You have now expressed a desire upon your eventual release to return home, reconcile with your family and accept the offer of help that has been provided to you from your family. You state that you now want to be more future focussed.
60
Having regard to those expressed opinions, and also the findings of
Mr Cummins, and your expressed attitude, I consider that your prospects of rehabilitation are reasonable.
61 I have had regard to your relative youth and the application of the principles in Mills, and the need to emphasise rehabilitation in the sentence.
62 Your rehabilitation prospects will be enhanced by you committing to all the recommendations that have been made by Mr Cummins, that is that you undertake intensive anger management program, that you receive treatment in respect to your drug use and dependence, and also intensive counselling for your post-traumatic stress disorder.
63 You have completed a drug and alcohol course whilst in custody, which is a good start to your rehabilitation program, but having regard to the nature and extent of your drug abuse at the time of this offending, that is really just the beginning of your rehabilitation.
64
In formulating the appropriate sentence, I must impose just punishment.
Mr Nur, your offending is serious and troubling, it has had lasting impact upon the victims, especially Mr Stirrup. It is important that people should be able to feel safe in their own homes and not be subjected to the sort of violence that you exposed Mr Stirrup to. A message must be sent to would-be offenders that if they commit aggravated burglaries in company, armed robberies or kidnapping type offences, that courts will impose stern punishment. Overall, I do consider that your moral culpability is high.
65 In formulating the appropriate sentence, there is also a need for community protection to be emphasised.
66 You have, however, indicated through your plea of guilty, your apology and your more mature attitude to life, that you are aware of the impact of your offending, and you acknowledge that you must be punished for your offending.
67 It is accepted that the appropriate disposition to be imposed is a period of imprisonment to mark the seriousness of this offending.
68 I will now proceed to impose the formal court orders, and I will ask that you do stand while I do so. Mr Nur, in relation to:
(1)aggravated burglary, you will be convicted and sentenced to three years' imprisonment;
(2)theft, you will be convicted and sentenced to six months' imprisonment;
(3)armed robbery, you will be convicted and sentenced to three years' imprisonment;
(4)kidnapping, you will be convicted and sentenced to one year imprisonment and;
(5)theft, you will be convicted and sentenced to one year imprisonment.
69 Charge 3 is the base sentence, that is three years. I make the following order for cumulation, six months of the sentence imposed on Charge 1 and six months of the sentence imposed on Charge 4 are cumulative upon each other and upon the sentence imposed upon Charge 3, which makes a total effective sentence of four years' imprisonment. I fix a non-parole period of two years' imprisonment. I have fixed a non-parole period shorter than it would otherwise have been because of your effort towards and/or prospects of rehabilitation.
70 I make the following declaration of pre-sentence detention, I declare that you have spent 242 days in custody and direct that that be entered into the records of the court.
71 I make the order for the disposal of the property.
72 And there is a s.464ZF(2) application as well, is there not? No, all right. All right, I just have to make the order for the disposal of property, so I have made that. And that completes the sentence.
73 COUNSEL: As Your Honour pleases.
74 HER HONOUR: Thank you.
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