Director of Public Prosecutions v Omar
[2013] VCC 1177
•14 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01669
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMED OMAR |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Horsham 27 March 2013 | |
DATE OF SENTENCE: | 14 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Omar | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1177 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law - Sentencing - Armed Robbery & Threats To Kill - Youthful Offender
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms R. Richter | Office of Public Prosecutions |
| For the Accused | Mr B. Newton | Randles, Cooper & Co. |
HIS HONOUR:
1 Mohamed Omar, you have pleaded guilty to one count of attempting to obtain property by deception, one count of handling stolen goods, one count of armed robbery, two counts of threats to kill, two counts of criminal damage and one summary count of stating a false name.
2 The relevant penalties are: maximum penalty of five years for attempting to obtain property by deception, 10 years for handling stolen goods, 25 years for armed robbery, five years for threats to kill, 10 years for criminal damage, and five penalty units for stating a false name and address, and those penalties were set out in the Crown opening, which I incorporate by reference.
3 The circumstances of the offences were set out in the Crown opening, which was read in open Court on the plea, and I will briefly summarise them.
4 Essentially, at about 10.40 pm on Friday 30 December 2011, when you were about two days shy of your 21st birthday, you and two other males attended a bottle shop at Deer Park Hotel on Ballarat Road, Deer Park, selected a number of items of alcohol, spirits to a total value of $235, went to the counter and proceeded to produce a Westpac Bank card and attempted to pay for the purchase, but the transaction was rejected.
5 You then left the store empty-handed. That Westpac card was in a wallet or purse that had been stolen from St Albans shortly before Christmas, and the use of the card constitutes the first count of attempting to obtain property by deception.
6 About five minutes later, you and two other males re-attended the bottle shop. You then produced an automatic handgun and pointed it at Mr Allen, who was one of the bottle shop attendants, and slid the slide back and slapped him on the side of your face with your other hand.
7 A second male entered the bottle shop at the same time and selected four bottles of spirits to the value of about $200, while saying to the two counter people there, "Don't move, don't do anything, let us take whatever we want." You then asserted to Mr Allen, "I hope you haven't pushed the button," meaning the alarm button, and you then said, "If you hit the hold-up button, I'll shoot you." The two of you then proceeded to take the liquor and decamp.
8 The events were partially captured on CCTV footage, and the event constitutes the count of armed robbery, Count 3.
9 The background to the balance of the counts on the presentment commences on 29 December 2011, a day or so prior, when you were involved in a verbal altercation with a person outside the premises at 5 Deer Street, Deer Park, and during that altercation the son of a male named Jason Lasota intervened. At the time you were staying in the vicinity of a block of units that were located at 3 Deer Street, Deer Park.
10 After you returned from the armed robbery on the night of 31 December, you were at a party at Unit 1/3 Deer Park, and throughout the night you were showing other young people, mainly of African and Maori descent, a handgun to various people. One of the girls says in her deposition that she could see it was a plastic handgun; an imitation pistol.
11 In the depositions, one witness who lived in the same block of units said that for the previous two weeks there had been virtually all-night drinking parties at that unit, and obviously that was what was happening at the unit that night.
12 At about 3.30 am on 31 December, which is about four or five hours after the armed robbery, you were outside the unit at No. 5 Deer Street leaning on a vehicle. The owner of the vehicle was the person that you had been involved in the verbal altercation with on the night a couple of days before. He indicates that you appeared drunk and stoned. As he approached you, you were leaning on his vehicle, you asked, "What are you doing?" You stepped towards him and slapped him in the face before producing the automatic imitation pistol and began to tap his forehead four times with that object. You said, "You're not a hero now, are you, you little bitch."
13 He was in fear of his life, but managed to push you away and ran towards his home. You followed and grabbed him, and said, "I'll show you how we do it, I'll show you how serious I am, I'm dead fucking serious." As you did this, you held the gun in front of him, pointed towards the ground, and slid the top back to cock it. You again put the gun to his head and put pressure on it enough to push his head down. Those events constitute Count 4, the threat to kill.
14 Several people from the house who were at No. 3, ran up and sought to intervene and drag you and asked you to go back inside. Mr Lasota went into his own home and called the police. Mr Lasota and his wife hid inside the house, retreating into the attic space, and he then heard the house being smashed and someone kicking his car, and he heard you say, "Fuck it, we'll just go over and get it done with, fuck him, we'll get - we'll get him now." He heard more banging and bottles smashed against the front of the house, he was terrified, and heard you say that you were coming back. He heard someone saying, "You're an idiot," and you respond, "Fuck him, the little bitch."
15 After he called the police they arrived and set up a siege around the property. They observed broken beer bottles inside the house that had been thrown through the windows of Mr Lasota's house and told him to stay inside. The broken windows in Mr Lasota's house, including a broken window screen, constitutes Count 5, and damage to his vehicle constitutes Count 6, and the damages set out in the photos that were exhibited in the plea.
16 The Crown have sought compensation orders of $500, being the insurance excess on both of those counts, and I will make those orders.
17 From inside his house, Mr Lasota watched the siege and heard you say various things like, "Come out to the window and I'll show you whether or not I have a gun, I've got an AK and I'll spray you all." He later noticed the two broken fly screens on his lounge window had been bent and three windows had been smashed and the front door was damaged.
18 Police arrived at the premises at Deer Park, and as I said, established a siege cordon and decided to wait it out. Over the next few hours, a number of police officers that are named in Charge 7 observed you pointing the gun at them and saying, "I'm going to put a fucking gun to your head, dog, you fucking white dog, you can suck my black dick, dog, I'll kill you dog," and various other expletives. You also said, "If I had a gun in here, I would have fucking shot you already, pig." These threats went on for some hours, constantly repeated.
19 At about 8.30 am the occupants left the premises, including you, and you were immediately arrested. When you were arrested you gave a false name to the police, and that constitutes the summary charge of giving a false name. You were in an agitated mood and spat at the informant several times as you were escorted to the police station.
20 A search warrant was executed on the premises, and some of the liquor, or what was left of it, stolen during the armed robbery was located inside, and the Westpac credit card that had been used for the attempted obtaining property by deception was found on your person, and that gives rise to Count 2 on the presentment of handling stolen goods.
21 You were interviewed and denied any of the offences, and also said that you were drunk when you were being interviewed. You have been in detention since that time.
The seriousness of the offences.
22 Armed robbery is a serious offence. It carries a 25-year maximum. In this case you were in the company of two other people, the target was a soft target, namely a bottle shop attached to a hotel. The bottle shop staff, the two of them, were not to know that the firearm you were using was an imitation pistol. The amount of goods stolen, $200, places the offence down the scale, and there was an element of amateurishness in that you were not seeking money but just the alcohol.
23 I accept the submission of your counsel that there was little planning and that the armed robbery occurred shortly after you had failed to obtain the alcohol using the stolen credit card. Adding to the seriousness of the offence of armed robbery here is the fact that the two shop staff have filed victim impact statements.
24 Mr Allen, who was the person in charge, in his victim impact statement said he was also punched by you at the time, he had to take a week off his job, and he has been having counselling. He now finds he cannot work along and at night, and he always feels anxious, looking over his shoulders, and he has had sleepless nights and flashbacks. He has added weight due to the stress.
25 The other officer there, Mr Myers, has also filed a victim impact statement, and again, he says that every time he goes to work, he is instantly worried about the possibility of a further robbery. He says, "I'm constantly on edge while at work and experience feelings of nervousness and anxiety." "It's happened before to me, therefore it can happen again." He has time off work due to nervousness and anxiety, and he is worried about not meeting his KPIs. He is suffering from lack of sleep and he has lost trust in other people, and he is worried about his job due to his KPIs and he has lost motivation.
26 So those victim impact statements indicate the seriousness of that offence of armed robbery and the impact it has had on those two innocent men just going about their business, and that adds to the seriousness of the offending here.
27 In relation to Counts 1 and 2, the attempted obtaining property by deception, and the handling stolen goods, they are of lesser seriousness due to the amounts of money involved, but again, still dishonesty offences.
28 I turn to the balance of the counts, Counts 4 to 7. These counts involve a course of conduct. Count 4 is serious. The complainant, the next-door neighbour was not to know that the firearm you were using was imitation. You invaded his personal space, tapped his head with a firearm, forced him backwards, pushing the firearm on his forehead while you were making these threats against him. You effectively assaulted him. You were only charged with making a threat to kill, and that is all you are being sentenced for, but you chased him towards his own home and made the threat against him. Notwithstanding that he has not submitted a victim impact statement, it must have been a frightening experience for him.
29 Your conduct in relation to Count 4, threat to kill the next-door neighbour, was reinforced or aggravated by your conduct in damaging his house, house windows, and his vehicle, Counts 5 and 6. That was just wanton, unprovoked damage, and these offences occurred at about 3.30 am. The armed robbery of the bottle shop, as I said, occurred at 10.45 pm. It is a reasonable inference that after you had stolen the alcohol from the bottle shop you proceeded to continue to drink it over that intervening period, which would add to your intoxication.
30 Count 7 is the further count of making a threat to kill to the named police officers who were surrounding the premises, waiting for you to give yourself up. This is effectively a rolled-up count relating to your appalling and defiant conduct in the period after the police establish the siege cordon around your house.
31 All in all, the two events were serious, they are a course of conduct, and they are to be totally condemned.
32 I turn now to matters in mitigation. You have pleaded guilty. You pleaded guilty to the armed robbery at the committal and not guilty to the charges involving the siege at the committal and it was a contested committal on those matters, and subsequently there was a plea presentment and a trial presentment and the matter then resolved in about March of this year.
33 You are entitled to the benefit of a relatively early plea. You have taken responsibility of your conduct by your plea, and you have facilitated the course of justice. In the course of the plea you sought to apologise to the two employees of the bottle shop. They did not accept that apology, but I accept that as part of your remorse and I regard your plea of guilty as also evidence of your remorse.
34 The explanation for your offending here is relatively easy to see; alcohol and drugs. You gave that explanation to the forensic psychologist, Pamela Matthews. According to the victim, Mr Lasota, you appeared drunk or stoned. It is a reasonable conclusion that at the very least alcohol released your inhibitions and gave rise to the threat to kill in Count 4 and the property damage in Counts 5 and 6 and in relation to Count 7, the threats emanated from the house that was surrounded by the police.
35 Your counsel submitted that you had a vague memory of being tasered and verbalised your infuriation and frustration after that occurred. The Prosecutor conceded that the presence of the police on the scene had some connection with the behaviour that ultimately ensued, namely all your veiled verbal threats.
36 I turn now to other matters in mitigation. Your counsel put a number of matters of mitigation, which I will consider and I have taken into account. First, he put the plea of guilty, and I have already referred to that. He then referred to the offer of apology to the bottle shop attendants, and I also take that into account as evidence of remorse, and I do regard your plea of guilty as significant, in that you are taking responsibility, and indicates insight.
37 Your counsel also made particular reference to your age. As I said, you were two days shy of 21, you are now 22 and a half, but being just 21 when these events occurred, you are regarded as a youthful offender, which is a very major matter of mitigation in relation to sentencing.
38 The case of Mills has indicated that relative youth is an important sentencing consideration, although it does give way when there are serious offences. So there is a tension between your youth and the seriousness of the offences here that has got to be resolved in the sentencing process.
39 Your family background was set out in the Pamela Matthews report. Your country of birth is Somalia. Your father was unfortunately killed when you were aged two; you were brought up by your mother and arrived in Australia when you were aged nine. You attended school in Victoria for some period. According to the report of Pamela Matthews you were the subject of some bullying at school, and at some stage you went with your mother across to Western Australia where you were able to continue in high school and left school in Year 10. Your mother had re-partnered at that point, and it appears that her then husband was able to get you a job in the mining sector in a laboratory analysing core samples, and you worked for a couple of weeks at KFC, and also in this job for some months.
40 It appears that you did not get on with your step-father, which is a very significant factor in a person of your age, teenage, where you need a significant male figure in your life. Obviously not getting on with your step-father would explain why you went off the rails in Western Australia, and that is why your mother, in order to get you back on the rails, sent you back to Somalia. You were back in Somalia between 2009 and 2010. You went back for a couple of years, and there was the usual mayhem in that state.
41 In the course of that you were the subject or exposed to blood and gore and mayhem which, on your counsel's submission, desensitised you to life and to the use of weapons, that he submitted to me was relevant to your offending and your moral culpability.
42 While you were in Somalia and even before you left Australia you got into drinking alcohol, using cannabis and using harder drugs like methylamphetamine. You were also using cocaine in 2010 and 2009 when you were in Somalia. You then returned to Australia and from the age of 19 were smoking methylamphetamine fortnightly, and when you were back, by the age of 20 you were using it daily. The heaviest period of your use was around the time of the offending. Adding to that you were also abusing alcohol, and it was in circumstances that you were intoxicated and had been using drugs that these offences occurred.
Reduction in your moral culpability?
43 Your counsel sought a reduction in your moral culpability for this offending on the basis of Pamela Matthews' report. She found that as a result of your exposure to violence in Somalia, you suffer from post-traumatic stress disorder.
44 She then opined at p.5 and 6 of her report:
"In the writer's view Mr Omar's extensive substance use appears to be a method of self-medicating for post-traumatic stress symptoms as evident by the chronology of events. During his visit and following his return from war-torn Somalia his substance use has significantly increased. Mr Omar admits to using substances to avoid thoughts, feelings and distressing nightmares related to his traumatic experiences. Nonetheless such substance use has tended to provoke and maintain such symptoms.
At the time of his offending Mr Omar further met the DSM-IV criteria for diagnosis of Alcohol Dependence, Methylamphetamine Dependence and Cannabis Dependence. Consequently, at the time of his offending Mr Omar was severely intoxicated on multiple substances whereby he was disinhibited, acting impulsively with increased irritability and outbursts of anger.
In summary Mr Omar's, (a) aggression towards others, being a function of irritable mood, trauma re-enactment and detachment from others, and his self-medicating substance use, both arise from his experience as a child in Somalia and Kenya, and more recently, between 2008 and 2010 in Somalia.
As a result of these experiences, Mr Omar suffers from Post-traumatic Stress Disorder as defined in DSM-IV. In the writer's opinion, Mr Omar's offences are intimately linked to his experiences and his mental state."
45 Ms Matthews' analysis appears to be that you have been exposed to a number of traumatic events, both before you left Somalia and then when you returned while residing there between 2009 and 2010. Your substance abuse is a form of self-medication for that trauma, or what she has diagnosed as PTSD.
46 When you committed these offences you were suffering from substance abuse, and particularly using alcohol and methylamphetamine. At the time, therefore, you were severely intoxicated, whereby you were disinhibited and acting impulsively with increased irritability and outbursts of anger. And I have read her conclusion.
47 On the basis of her opinion, your counsel invoked principle 1 of Verdins to seek a reduction on your moral culpability for this offending, particularly the offending that occurred back at the unit of Counts 4 to 7. He submitted that there was a realistic connection between your PTSD and the offending.
48 The Crown responded that the necessary connection was not there, alternatively, if it was, it would call into consideration the need for community protection against you. Here, the central thread of Ms Matthews' analysis is that your drug use and intoxication was a form of self-medication for the PTSD.
49 Ms Matthews does not consider whether the ingestion of methylamphetamine and alcohol in and of itself resulted in the disinhibiting effect that contributed to the offending. Here, the string of the offending commences with an attempt to obtain alcohol. It ended with a siege, and later, some of the stolen alcohol bottles were found at the premises. You admitted that you were intoxicated when you were interviewed by the police.
50 While I am prepared to accept that you have PTSD, and further, that due to your prior exposure to weapons and general mayhem in war-torn Somalia has resulted in your desensitisation, I am unable to accept that this provides for a reduction in your moral culpability for the offending.
51 I regard disinhibition as a result of alcohol as the principal explanation for this offending. A further explanation for the events at the unit is in fact group behaviour. You were there with all your peers, under the influence of alcohol, and you under the influence of drugs. When alcohol ran low, you sought to get some more alcohol in company. When that failed, you then committed the armed robbery and then you returned to the premises and when the next-door neighbour asked about you touching his car, you then arced up, and the rest of the offences occurred.
52 Your disadvantaged background and the untreated PTSD is, however, relevant to sentencing and calls for some moderation in general deterrence, and that you come from a totally different background to the bulk of the community and thus are less of a vehicle to send a signal to others for this type of offending, particularly the armed robbery, which in any event is totally unacceptable.
53 I have also taken into account that your untreated PTSD, and indeed, your immigrant background will make imprisonment more burdensome than the general run of the community.
54 I turn to your prospects of rehabilitation. You speak reasonable English, and despite being bullied at primary school, have continued at school in Western Australia and left at Year 10 and did have the two jobs that I have mentioned. So therefore, you do have an ability to participate in the work force, and you have shown that.
55
Since you have been on remand, for a considerable period, you have completed a number of courses, which again shows insight and an attempt to better yourself and prepare yourself for ultimate release. According to
Ms Matthews you are gaining insight into your psychological condition.
56 Given your relative youth, it is very much in the community's interests that you do be rehabilitated back into the community. You need to have the symptoms of your PTSD addressed. You must address the alcohol and drug addiction, and you must get back into the work force.
57 Ms Matthews recommends that you be provided with ongoing counselling for drug and alcohol dependence, post-traumatic stress, emotional regulation, anger management and coping skills. She indicates that you need a case worker support and to be assisted to get stable employment and accommodation, and she recommends reference to a particular agency. She notes that you have a supportive family, and your mother has come over from Perth to support you on the plea.
58 On your release you hope to return to Perth. I have also noted a reference that was tendered from a Somalian community organisation that is prepared to assist you upon your release.
59 I turn to the purposes of sentencing. The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that offenders are rehabilitated and reintegrated into society.
60 There are number of matters that must be addressed. First, in relation to the offence of armed robbery, general deterrence is always an important consideration. Similarly in relation to threat to kill counts. Next, specific deterrence is a consideration here notwithstanding that you have no prior convictions alleged against you. Your problems with alcohol and drug addiction make specific deterrence a factor. Your relative youth is an important sentencing consideration, as I said earlier. It is clearly in the community interests that you become a productive member of our community.
61 The community will be better served by a sentence that does not seek to crush you. It will also be served by a sentence that will allow a longer period than usual over which various support mechanisms will be available to assist your reintegration into the community, and in particular, to address the post-traumatic stress disorder that obviously you carry through no fault of your own, and the substance abuse problems that have emerged, and you must be provided with accommodation and other support.
62 You have now been on remand since these offences. During that period you served a three-month sentences for robbery and a number of other offences that had occurred before you were arrested for these offences. That sentence does not of course qualify as pre-sentence detention, but under the principles of Renzella, I have taken it broadly into account in fixing your head sentence and a non-parole period.
63 The Crown have sought a number of ancillary orders, and I will make those compensation orders and a retention order on the forensic sample.
64 Mr Hutton, the learned Crown prosecutor, provided a sentencing range of head sentence of four to five years with a non-parole period of three years. Your counsel, Mr Newton, did not really cavil with the head sentence but submitted that a lower non-parole period was appropriate. I am not bound by the Crown range, but I have taken it into account.
65 I have taken into account all the submissions made by Mr Newton and I have considered all the cases he has referred me to.
Sentence.
66 On the attempt to obtain property by deception, you are sentenced to one month's imprisonment.
67 Count 2, on the count of handling stolen goods, the credit card, you are sentence to one month's imprisonment.
68 On Count 3, the armed robbery, you are sentenced to three years' imprisonment. That is the base sentence.
69 On Count 4, the threat to kill, you are sentenced to nine months' imprisonment.
70 On Count 5, criminal damage, you are sentenced to three months. imprisonment.
71 On Count 6, criminal damage, you are sentenced to three months' imprisonment.
72 On Count 7, the threat to kill, you are sentenced to one year's imprisonment.
73 On the summary charge of stating a false name, you are fined $200.
74 Count 3 is the base sentence. I direct that Counts 1 and 2 be served concurrently with the sentence on Count 3. I direct that six months of the sentence on Count 4 be served cumulatively on the sentence on Count 3, and one month each of the sentences on Counts 5 and 6 be served cumulatively on each other and on the other sentences. On Count 7, you are to be sentenced as a serious offender with a presumption of cumulation unless the court otherwise orders, and the protection of the community is to be the primary sentencing consideration. The Crown did not seek a disproportionate sentence. On Count 7, 10 months of the sentence is to be served cumulatively on the other sentences. This makes a total effective sentence of four years and six months' imprisonment and I fix a non-parole period or two years and three months. I declare that I have sentenced you as a serious offender on Count 7 and I direct that it be entered in the records.
75 Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have imposed a total effective sentence of six years with a minimum term of four years.
76 I declare presentence detention of 441 days.
77 I will make the ancillary orders downstairs, Madam Prosecutor. I will sign them and hand them up. Are there any other matters that have not been addressed? Mr Newton, any matters?
78 MR NEWTON: No, Your Honour.
79 HIS HONOUR: I thank counsel for their assistance on the plea, Mr Hutton, and Mr Newton for his helpful submissions.
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