Director of Public Prosecutions v Omar

[2023] VCC 2090

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01278

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDI OMAR

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2023
DATE OF SENTENCE:	15 November 2023
CASE MAY BE CITED AS:	DPP v Omar
MEDIUM NEUTRAL CITATION:	[2023] VCC 2090

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW- Sentence

Catchwords:             Attempted Armed Robbery- Causing Injury Intentionally – Significant

Criminal History- Drug use

Sentence:                 Aggregate sentence- 2 years 9 months imprisonment, Non-parole

Period 1 year 6 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit	Office of Public Prosecutions
For the Accused	Mr H. Moodie	Stary Norton Halphen

HIS HONOUR: 

1Abdi Omar, you pleaded guilty on arraignment to a charge of attempted armed robbery and intentionally causing injury.

2The crimes were committed on 3 January 2022. 

3You were with a co-accused, Mr Mohamed Ahmed.  I sentenced Mr Ahmed for these offences, and some others that he had committed, on 5 June 2023.

4I set out in my sentencing reasons, published on 5 June 2023, the following brief outline of what you two men did. 

5On 3 January 2022, you and the co-accused drove to Windsor in a stolen car.  You then went to a bottle shop in the early hours of the morning and bought some vodka, walked out, and into a laneway.

6The victim of your crimes had fallen asleep in the laneway a few hours earlier.  You came to the sleeping victim and demanded his phone.  He resisted.  Both you men drew weapons, that is, knives.  The victim held his phone and ultimately was able to run to get away.

7As he did, you, Mr Omar, stabbed him in the buttocks.  The co-accused, Mr Ahmed, swung his knife but did not make contact. 

8All of this was captured on CCTV footage.  I have watched the whole frightening episode.  I did so in June this year.  I have looked again at the still photographs taken from that CCTV footage. 

9The victim was bleeding badly and ultimately, he himself called an ambulance.  He was taken to hospital and required surgery to stem what was significant bleeding from a deep wound, which later became infected.  As can be appreciated, this offending is very concerning.  It was violent and perpetrated on a vulnerable man who ended up in hospital, needing surgery to stem the bleeding from the deep knife wound.

10The injury was caused almost gratuitously as he ran to escape what was the attempted armed robbery.  You were the offender that stabbed the victim.  As I said, your co- accused swung his knife but did not connect.

11Your co-accused was arrested a few days later on 6 January 2022.  You had left Victoria to return to New South Wales where you had grown up and had significant family support.

12You were arrested in New South Wales on 12 January 2022, for other offences that you committed in New South Wales in that brief time.  You underwent a sentence of imprisonment, of incarceration for 12 months in New South Wales.  You were then extradited to Victoria, coincidentally on 12 January 2023.

13You have been in custody since that time in Victoria.  You have 307 days of pre-sentence detention which can be declared as part of the sentence I will shortly announce.

14You have been in continuous custody in Victoria and New South Wales for 675 days.  These amounts of time have been calculated by the parties.

15Your co-accused's sentence imposed in June 2023 was for this offending, but also for another armed robbery and intentionally cause injury, where a knife was used both to enforce the demand and to cause injury.  I imposed an aggregate sentence for this attempted armed robbery, the intentionally cause injury and a further offence of a theft of car, and some summary offences.  The sentence for that group of offences was two years and nine months. 

16For the other armed robbery and intentionally cause injury I sentenced the co-accused to 16 months' imprisonment and ordered that six months be cumulative.  Thus, his total effective sentence was three years and three months and I fixed a single non-parole period of two years.

17I set out the co-accused's sentence in detail as it is necessary that I endeavour to ensure his sentence and yours are broadly consistent.  Of course, personal circumstances and criminal history may mean a different sentence is justifiable.

18Your counsel's submission was that, given Mr Ahmed faced more offending and was on bail, and a community corrections order at the time, a lower sentence for you was not merely justified, it was warranted.

19The prosecution contended that as you were the one who actually stabbed the victim, and have more extensive prior criminal history in Victoria and New South Wales, and are an older man, that there was justification for a longer sentence to be imposed on you, than was imposed on Ahmed.  I will return to this issue of parity.

20What remains clear from any analysis is that this is serious offending and an outburst of gratuitous violence committed by you when you stabbed the victim as he ran to escape.  What that requires is deterrence and denunciation be given primary weight.

Personal Circumstances

21As to your personal circumstances, you are now 35.  As I have said, you were born and raised in New South Wales in a large and loving family.  You moved out in your late teens and your drug use escalated.  Your schooling was too brief, and you did not gain as much as you could have from education.  You were disruptive.

22You moved into an electrician's apprenticeship with your father, who did his best to keep you settled, but you did not complete that apprenticeship.  You have little work history thereafter.

23Your use of drugs commenced in your early teens and has been an acute problem for you lifelong.  You have now had two years of enforced abstinence while in prison, and it is said that you are now gaining some insight into the detrimental effects of drugs.

24Just prior to going into custody in New South Wales, you met your current partner who has a young child.  She continues to support you; you hope to be able to settle with her on your release.

25You have a very significant and concerning criminal history in Victoria and New South Wales.  There are many relevant offences, weapons offences, dishonesty offences and some for pure violence.  You have been sentenced to prison in Victoria and New South Wales all too regularly.

26Your prospects of permanent reform are not strong.  It all depends, as your counsel said, on your capacity to remain drug free.  Your counsel emphasised that with the stability your partner provides, this may be the time that you will be able to, after two years of abstinence, stay off drugs permanently.

27The Crown point out that you were with your partner at the time of the offending it seems. 

28In any event, I have read a very comprehensive psychological report from Ms Fakhri[i].  She had you undergo a range of tests which she explained in particular how each related to the diagnoses. She found you were depressed, anxious and had complex Post Traumatic Stress Disorder.  Although you are now more clear headed, free of drugs in prison, it is an environment that is not good for anxiety, depression and Post Traumatic Stress Disorder.

29As Ms Fakhri explained, the testing she did for adult ADHD was a screening test only and more testing and clinical analysis would be required before any diagnosis or treatment were indicated, thus there is little to be made of the proposition that you may have adult ADHD.  In the end, I acknowledge that you have as your primary problem or pathology, addiction to drugs. There are consequential, and perhaps in the past, some difficulties that you have had, but your main problem, as I have emphasised is, that you have been addicted to drugs, and have not had the capacity to stop taking drugs.  This has led to a wasted life of crime and the waste of time in custody.

30But in order to properly punish and deter you a sentence of imprisonment, in my view, with a non-parole period is the only option.  Your counsel urged that there be a sentence of further imprisonment, and a community corrections order to follow.  His secondary submission was that a non-parole period be fixed that allowed for you to be paroled in Victoria to ensure that you stayed steady in the community. 

31The prosecution of course indicated the gravity of the offending was such that there needed to be a head sentence with a non-parole period.

32It is hoped of course that you can on your release maintain abstinence from drugs. 

33Your early plea of guilty is important.  It has meant that a lesser sentence is imposed, one with still an augmented utilitarian benefit in all the circumstances. 

34In the matter of your co-accused, I imposed an aggregate term for the offences that he faced, one indictable offence less than you, and I then made the aggregate sentence for that the base sentence, and added the six months to it.

35I intend to impose an aggregate sentence for these offences which flowed obviously one upon the other.

36So for the offences of attempted armed robbery and intentionally cause injury, I impose upon you a sentence of two years and nine months.  I fix a non-‑parole period of one year and six months.

37You have done 307 days in custody in Victoria.  That figure having been reckoned, I now declare it is part of the sentence I have just imposed.  I ensure the declaration is entered into the records of the court, so the prison authorities know that you have done 307 days of the term of imprisonment that I have just imposed.

38Had you pleaded not guilty to the offences, I would have imposed a sentence of three years and 10 months with a non-parole period of two years and eight months.

39Is there anything else required?

40MS ZAMMIT:  No, Your Honour.

41MR MOODIE:  No, Your Honour.

42HIS HONOUR:  Thank you.   very much for all the hard work that has gone into this matter.  I hope the parties don't think that an ex-tempore decision means I didn't take it all into account, because I did.  Thank you.

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[i]Report of Rebecca Fakhri dated 15 September 2023- tendered on the plea.