Director of Public Prosecutions v Nur
[2018] VCC 857
•8 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-18-00073
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASAD NUR |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2018 | |
DATE OF SENTENCE: | 8 June 2018 | |
CASE MAY BE CITED AS: | DPP v Nur | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 857 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Armed robbery – Plea of guilty.
Legislation Cited: Sentencing Act 1991.
Cases Cited: R v Verdins [2007] 16 VR 269.
Sentence:4 years’ imprisonment with a non-parole period of 2 years’ and 6 months’ imprisonment; 249 days pre-sentence detention; Section 6AAA declaration: 6 years’ imprisonment with a non-parole period of 4 years’ imprisonment; Disposal order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr L. Harrison | Office of Public Prosecutions |
| For the Accused | Ms A. Wong | Victoria Legal Aid |
HIS HONOUR:
1 Asad Nur, on 23 May 2018 you came before me to conduct a plea in mitigation in respect to one charge of armed robbery committed by you in company on 27 June 2017. The maximum penalty for this offence is 25 years' imprisonment.
2 You admitted your criminal record which includes prior convictions for driving whilst disqualified but of concern a prior conviction for two charges of unlawful assault. Subsequent to the instant offending, you were charged with further offences of violence, and whilst on remand for the instant offending, you were sentenced on 12 December to 90 days' imprisonment. See Exhibit C.
3 Tendered and read aloud in court was Exhibit A, the summary of prosecution opening which together with Exhibit B, closed circuit television footage, of the offence.
4 At 11.36 am on 27 June 2017, a call was made to 13CABS from a mobile phone for a taxi to attend at 26 Kent Street, Yarraville, to pick up a fare. You together with your co-accused, Mr McCaw, got into the taxi with you sitting in the front seat and Mr McCaw sitting in the back seat. After travelling a short distance you told the taxi driver to pull over because you had forgotten something back at your house. The driver stopped his taxi and you told him to put the car into park and then reached over and put the transmission into park yourself. At this time your co-accused produced a large knife and demanded that the taxi driver provide both of you with all of his belongings. The taxi driver handed you his wallet whilst you threatened him with a bottle opener. The driver gave your co-accused his mobile phone. After relieving the taxi driver of his mobile phone, valued at $700, his wallet and its contents and his house key, you got out of the taxi and ran along Kent Street before turning into Stephen Street to a waiting vehicle.
5 You were arrested on 4 July 2017 when police executed a search warrant at your home. Police located clothing that you had worn during the course of the armed robbery. You were interviewed under caution and effectively said that it was your co-accused's plan to commit the armed robbery and that you went along with him. You knew you were going to get money from the taxi driver. You told police that you did not really know your co-offender.
6 Prior to the commission of the armed robbery, you conducted a reconnaissance of the streets in and around Yarraville and determined the location of the armed robbery. You told police that you believed your co-accused had a fake knife. At the conclusion of the record of interview you were charged and remanded in custody on 4 July 2017.
7 As at the date of your plea you had completed 233 days by way of pre-sentence detention, together with having undergone a 90 day sentence to which I have already referred and which I must take into account in the application of the sentencing principle of totality.
8 Tendered as Exhibit D was the victim impact statement of the taxi driver. He is plainly a man of limited English. However he deposed to the fact that he lost his job as a result of this armed robbery because he could no longer concentrate on his job. He had difficulty sleeping after the incident. He simply wrote, "I am scared." Because of the loss of his job he has been affected financially and he is a family man. Plainly Mr Nur, your conduct has adversely affected your victim.
9 It is your belief that you are 28 years of age although you are unsure of the exact date of your birth. You were born in Somalia. You are a citizen of New Zealand and are presently in Australia as a permanent resident. You are one of 13 children and were initially raised by your father and older siblings in Somalia Your mother left Somalia in 1996 when you were aged approximately six years. Your father died when you were seven years of age. You escaped with your sisters to Ethiopia where you stayed until you were aged 11 or 12 years which equates to the years 2001 and 2002. For several years you lived in a refugee camp in Ethiopia and you were exposed to the violence of that environment. This included witnessing your aunt and uncle being shot as well as the murder of a neighbour in circumstances where you were at risk and escaped by jumping into a river. At age 13 you joined your mother in New Zealand and eventually became a citizen of that country. I was told that your mother currently lives in Africa although you have siblings living in New Zealand and in Melbourne as well as other parts of the world.
10 On arriving in New Zealand you underwent two years of English language education. Thereafter you commenced mainstream education at Year 9 level. You completed your high school education and entered TAFE type tertiary study, studying business administration. However you completed only one year of that course of study. Thereafter you worked as a factory hand in New Zealand and experienced periods of unemployment and as a consequence were in receipt of unemployment benefits.
11 You arrived in Melbourne in December 2013 and found work fairly quickly, being employed on a casual basis working in a warehouse. You were made redundant in mid 2015 owing to your job becoming automated. You lost your rental accommodation and began to spiral into homelessness and drug abuse. However despite this, in July 2016 you obtained a factory job in Noble Park and this lasted until your contract came to an end in February 2017.
12 I was informed that when you arrived in Australia you were a teetotaller. You first began to use drugs and alcohol during periods of unemployment in 2015. During these periods of unemployment you commenced couch surfing and were introduced to alcohol and methylamphetamine and cannabis. You instructed your counsel that at the peak of your drug abuse, you were taking on a daily basis:
a) up to a carton of beer or mixed drinks;
b) 1.7 grams of methylamphetamine; and
c) cannabis when required when coming down from your abuse of methylamphetamine.
13 During this period of your life you effectively lost contact with your family and your counsel informed me that you committed this offence whilst you had been awake for three days on a methylamphetamine binge.
14
Tendered as Exhibit 2 was the report of Carla Lechner, psychologist, dated
1 May 2016. Apart from giving a history in respect of you, her report provides no basis for the application of any of the principles enunciated in Verdins' case.
15 Whilst it was submitted that you became estranged from your family when you lost employment and commenced to abuse drugs and alcohol there was no suggestion that you could not have sought the solace of members of your family who lived in Melbourne.
16 I was told that should you be released from prison there would be a spare room available for you in your sister's home in Deer Park. I was further informed that your sister is stridently opposed to the abuse of alcohol and drugs and that this would assist in your rehabilitation. Further, there is a prospect of employment through an uncle.
17 Your counsel submitted on your behalf that you had cooperated fully with police during the course of the investigation and made full admissions in your record of interview. You entered your plea at an early stage and accordingly you are entitled to the benefits that flow to you from your plea, being that it is some evidence of your remorse and that it has utilitarian benefit. It was further submitted that you have good prospects for rehabilitation, primarily because you have demonstrated an ability to overcome adversity throughout your life. It was further submitted that your time on remand has had a salutary effect on you and has worked as a circuit breaker in respect to your drug abuse. To that end a number of drug screens were tendered as Exhibit 5 on the plea to indicate that you were drug free in the months of September, October and November last year whilst in custody. You have used your time in custody well, having undertaken a number of courses. See Exhibit 4.
18 Mr Riordan of counsel who appeared on your behalf conceded that your offending was serious. Your offending was committed on a soft target, namely a taxi driver who was merely going about his lawful employment. It was conceded on your behalf that deterrence and denunciation are relevant factors in the exercise of my sentencing discretion. However it was submitted that specific deterrence in your case had largely been achieved by your period of pre-sentence detention and that rehabilitation within the community was the best means to ensure long term protection of the community. It was put on your behalf that a sentence exceeding 12 months will result in the automatic cancellation of your visa and the knowledge of this will increase the burden of your incarceration.
19 Armed robberies committed on soft targets in our community are all too prevalent. You, together with your co-offender, robbed using offensive weapons that included a knife, a taxi driver who was merely going about his lawful employment. There have been serious consequences to your victim as a result of your conduct.
20
Armed robbery is a serious offence punishable by 25 years' imprisonment. You are an appropriate vehicle for the application of general deterrence. Likewise you need to be specifically deterred from further acts of violence as there has been an escalation in your violent behaviour from unlawful assault for which you were sentenced on 18 January 2016, to affray committed on
14 November 2016 for which you were sentenced to a term of 90 days' imprisonment, to armed robbery, the instant offence.
21 Until the age of 14 your life experience was one of poverty, uncertainty and constant exposure to violence. This too must be taken into account when arriving at an appropriate sentence in your case.
22 Would you please stand.
23 By this sentence I must punish you, publicly denounce your conduct and deter you and others from committing this kind of crime. Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purpose of sentencing in a manner appropriate to you and your offending, I sentence you to four years' imprisonment. And I fix the period of two years' and six months’ imprisonment as the period that you must serve before you will become eligible for parole.
24 I declare that you have spent 249 days by way of pre-sentence detention not including today.
25 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to a head sentence of six years' imprisonment with a non parole period of four years' imprisonment.
26 Please be seated.
27 The Crown have made application for a disposal order in respect to the knife that was used by your co-offender and I have granted that application. I hand down three copies of the order.
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MR HARRISON: If Your Honour pleases.
HIS HONOUR: So Mr Nur, so that you understand, you have been sentenced to a period of four years' imprisonment and I have fixed a period of two years and six months before you will become eligible for parole. And you have already spent 249 days by way of service of that sentence by way of pre-sentence detention. You may remove the prisoner.
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