Director of Public Prosecutions v Osamah Slim
[2018] VCC 2126
•20 December 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00632
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OSAMAH SLIM |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 December 2018 | |
DATE OF SENTENCE: | 20 December 2018 | |
CASE MAY BE CITED AS: | DPP v Osamah Slim | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2126 | |
REASONS FOR SENTENCE
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Subject:Armed Robbery, prohibited person possess imitation firearm, commit indictable offence whilst on bail, possess prohibited weapon
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Gray | John Cain Solicitor for Public Prosecutions |
| For the Accused | Ms J Swiney | Matthew White & Associates |
HER HONOUR:
1 You, Osamah Slim, have pleaded guilty before me to two charges of armed robbery and two charges of prohibited person possess an imitation firearm. The maximum penalty for each charge of armed robbery is 25 years imprisonment. The maximum penalty for each charge of prohibited person possess imitation firearm is 10 years imprisonment.
2 In addition you consented to this court dealing with related summary offences of two charges of committing an indictable offence whilst on bail and one charge of possess prohibited weapon. The maximum penalty for each charge of commit indictable offence whilst on bail is 3 months imprisonment. The maximum penalty of possess prohibited weapon is 2 years imprisonment.
3 At approximately 3.57 am on 18 October 2017 an armed robbery occurred at the 7-Eleven store located at 813 High Street, Thornbury. You and co-offender Adam Palmer entered the store dressed in identical hooded tops, black pants and black shoes with Velcro closure. You were also wearing black and grey gloves and covered your faces with light coloured material.
4 You were armed with a silver coloured imitation handgun and were carrying a black bag. You approached the counter and pointed the imitation handgun at the store attendant Nisham Shukla and demanded “all the cash you’ve got.” Palmer, who was armed with a large dark machete, remained by the front door.
5 Shukla then removed the cash drawer from the register and placed it on the service counter. You took the cash drawer (which contained approximately $250) and both of you left the store on foot, running west on Hutton Street. (charge 1 – armed robbery).
6 Greg Carter, one of the three customers in the 7-Eleven store at the time, followed you and the co-offender out onto the street where he observed Palmer run across to the south side of the road towards a white sedan. You called out to him, then both of you ran north up Plow Street, and out of the sight of Carter.
7 Police attended a short time later and spoke to Shukla and Carter. Shukla described you as being thin and approximately 160 cm tall. You were described by the witness Carter as being approximately 5’ 2” (157.5 cm) tall. Shukla also provided the police with a DVD with CCTV footage. The CCTV depicts you and Palmer inside the 7-Eleven store.
8 A line search was conducted by police. The stolen cash drawer and $3.20 in coins were located at the intersection of Hutton Street and Plow Street.
9 At approximately 1.03 pm on the same day (18 October 2017), you and Palmer went to the ‘Bunnings’ store in Preston. You each selected a set of blue disposable overalls and walked to the counter. Palmer paid for both sets of overalls by cash. The attendance of both of you at the store and the purchase of the overalls was captured on CCTV.
10 At approximately 1.36pm on the same day, an armed robbery occurred at the ‘BWS’ drive through bottle shop at 1 Cramer Street, Preston.
11 A white 1991 BMW 525i sedan (BMW), with Victorian registration QRB044 was parked in Mary Street within 10 metres of the exit of the Bunnings drive through. Palmer, who was wearing a black balaclava, blue overalls (that match those purchased from ‘Bunnings’, Preston some 30 minutes earlier), got out of the passenger seat of the vehicle and ran into the store. He was carrying a dark machete behind his back.
12 Two witnesses, Ben Hudson and Anna-Louise Greed were driving on Cramer Street, about to turn into Mary Street. They observed Palmer getting out of the BMW and were suspicious as he was wearing the blue overalls and carrying a large machete. Hudson and Greed then drove past the BMW and observed that the driver was the only other occupant of the vehicle.
13 Meanwhile, Palmer entered the ‘BWS’ bottle shop and walked towards the complainant, Daniel Mackay, (who is the store manager at the ‘BWS’), whilst displaying the machete. He walked straight around the counter wielding the machete and demanded that Mackay give him all the cash. Mackay opened the cash register and Palmer pushed him aside and took the entire cash drawer out (which contained approximately $300 in notes and coins), then ran back to the BMW and got in the front passenger seat. The car drove off south on Mary Street at a fast speed. The events that occurred inside the store were captured by CCTV cameras.
14 The manager of ‘Cramer’s Hotel’, a Justin Richmond, was made aware of the armed robbery and downloaded and provided CCTV footage of the streets surrounding the ‘BWS’ and ‘Cramer’s Hotel’ to police.
15 A white BMW sedan is depicted on the CCTV footage parking in Mary Street (adjacent to the ‘Cramer’s Hotel’ car park) for approximately 1 minute, then driving through the Cramer’s Hotel’ car park, then back along Cramer Street towards Mary Street.
16 You are the registered owner of the BMW registration QRB044 and were the driver of the BMW at the scene and complicit in the armed robbery with Palmer. (charge 2 – armed robbery).
17 At approximately 12.22am on 19 October 2017 police observed the BMW QRB044 travelling south on Gilbert Road, near Bell Street, Preston. The vehicle was intercepted at approximately 12.30 am. You were driving the vehicle.
18 Detective Senior Constable Basile conducted a pat down search and located a set of knuckle dusters (summary charge 5: possess prohibited weapon).
19 A small dark ‘EM-GE’ starter pistol with a brown handle was located in the vehicle, wrapped in a light-coloured handkerchief. The handkerchief matched the colour of the material used to cover one of the offender’s faces during the armed robbery committed at the 7-Eleven store. (charge 3: prohibited person possess imitation firearm). Your Apple iPhone 6 mobile phone was also seized.
20 The BMW was seized and taken to the Preston police Station. Detective Senior Sergeant Rooney conducted a further search of the vehicle. He located a plastic bag containing a black hoodie, black tracksuit pants and grey gloves. These clothing items appear to be depicted in the CCTV footage from the armed robbery committed at the ‘7-Eleven’. A silver imitation handgun was also located wrapped in the clothing items. The handgun appears to be the same as the one displayed by you as you approached the counter during this armed robbery (charge 4 – prohibited person imitation firearm).
21 Your DNA was detected on the inner waistband of the black tracksuit pants referred to above.
22 Your shoes were seized while you were in custody. The shoes also appeared to be depicted in CCTV footage from the armed robbery at ‘the 7 Eleven’.
23 You were interviewed by police on 19 October 2017 and stated that the armed robbery committed at the ‘7-Eleven’ was committed by two people you knew as ‘Adam’ and ‘Steve’. You also stated that later that day you dropped ‘Adam’ off in the street between the ‘BWS’ bottle shop and football oval in Preston. You stated that you did not know that an armed robbery was about to be committed when you dropped Adam off. You stated that the loose coins located in the front passenger foot well of your vehicle came from the cash register tray that ‘Adam’ had returned with. You stated that you had no knowledge of the starter pistol wrapped in the handkerchief that was located in your vehicle. You stated that you had not been in phone contact with Adam at any time before the morning of 18 October 2017. However records from your mobile phone obtained by police show that you were in contact with the accused in the days prior to 18 October 2017.
24 You were on bail at the time of the commission of the armed robberies. On 3 September 2017 you were charged with 6 charges which included 2 charges of possess controlled weapon without excuse, possess drug of dependence, possess cannabis, possess methylamphetamine. You were bailed at the Melbourne Police station on 3 September 2017 to return to the Melbourne Magistrates' Court on 14 December 2017.[1]
[1] Exhibit E.
25 The facts in this case are very serious. The aggravating aspects include the element of pre-planning, the disguise and that you were on bail at the time of the commission of the armed robberies.
26 No victim impact statement has been tendered in this matter. You were in possession of an imitation pistol in relation to the first armed robbery. One of the victims to the first armed robbery, Nisham Shukla, has returned to India. In his statement Mr Shukla described the whole experience as very scary.[2] The victim in the second armed robbery, Daniel Mackay, said that it all happened in about 45 seconds. His heart rate was elevated, he was in shock and worried about what could happen.[3] It is clear from the depositions and the evidence I do have before me that there was considerable suffering on the part of the victims as a result of your actions.
[2] Depositions p 22.
[3] Depositions p 30.
27 As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial.
28 You were arrested in the early hours of the morning on 19 October 2017. The contested committal in this matter was conducted on 23 March 2018. Only the informant was cross-examined at the committal. None of the civilian citizens were called. There was no dispute that the offence occurred. The only issue was identity. You were committed for trial to be heard on 26 November 2018. You instructed your solicitors to offer to plead guilty to the armed robbery on the BWS bottle shop on 29 January 2018. However this offer was rejected by the Crown because your offer to plead guilty to the second armed robbery was conditional on the first armed robbery not proceeding. The Crown submitted that your offer to plead guilty to the second charge was not an early plea.
29 The trial began with the defence making an application that the armed robberies be heard as separate trials. On 28 November 2018 it was ruled that the charges were to be heard in the one trial. Shortly after this you indicated that you would plead guilty to all the charges on the indictment and you were arraigned on the charges in the indictment and related summary offences. A jury had not been empanelled.
30 You made admissions in your record of interview. You admitted that you were driving your BMW near the Cramer Hotel. You also said that Adam Palmer asked you to stop and he ran out of the car carrying a knife.[4] In the circumstances I accept that your pleas indicate some remorse for your actions.
[4] Depositions questions 745 and 746.
31 I have been told something of your personal history and your circumstances. You were born on 28 January 1984 and are 34 years old.
32 You are the youngest of four children to parents of Lebanese descent. Your older brother Daniel is 46, Ray 45 and David 40. Your parents immigrated to Australia in 1968 or 1969. Within 6 months of arriving in Australia, they opened the first of a series of restaurants in Carlton and Collingwood. Your parents worked extremely hard to open further restaurants.
33 You and your family returned to Lebanon to visit in 1980. However war broke out and you were unable to return to Australia until 1987. Your father no longer felt accepted in the Lebanese community and returned to Lebanon when you were 8 or 9 years old. Your father passed away 8 years ago and you felt a great loss although you were much loved and cared for by your mother and older brothers.
34 You were introduced to heroin by some older peers in the Carlton flats when you were 15 years old. You became addicted very quickly and were smoking heroin almost every day. By the age of 17 you had begun injecting heroin and were severely addicted.
35 You worked for Coles; for your brother and as an Uber driver from 2013 to 2017.
36 At the time of your arrest you were living with your mother, girlfriend and brother. Prior to this offending your mother had been overseas. You relapsed into drug use while she was away. Your mother returned home within a day or so before the offending. By that time you had reconnected with Mr Palmer.
37 You have admitted before me to prior convictions. There are 34 such convictions, involving 9 court appearances between 2003 and 2013. The nature of some of those prior convictions and in particular the convictions for theft, burglary, aggravated burglary and 3 prior convictions of possession of controlled weapon without excuse are such that they are highly relevant to my task of sentencing you today.
38 Your counsel submitted that your addiction to heroin is reflected in your criminal history. The offending was explained, though not excused by your heroin addiction. Up until 2003 you had been through the Children's Court system and the Magistrates' Court system without detention until you were detained in a Youth Training centre on 3 October 2003 for burglary, theft and use heroin. Your offending then escalated and on 17 November 2003 you were sentenced for offences including aggravated burglary, burglary and theft. You spent most of your time at the Malmsbury Youth Detention Centre and were released in 2004. There was then a gap in your offending until 2008 and another gap in 2013 to the date of this offending.
Rehabilitation
39 Your mother attended court to support you. Although your partner Melissa Douthwaite and your brother Daniel Slim have attended previous hearings in court to support you on earlier occasions, they were unable to attend court on the hearing of the plea. You continue to have unconditional support from your mother, girlfriend and brothers.
40 I take into account the references by your partner Melissa Douthwaite,[5] your mother Lou Lou Slim[6] and your brother Daniel Slim.[7] These references indicate that your family are aware of your offending, are conscious that you will have to spend time in prison and remain supportive. Your brother Daniel Slim runs a tech services company which currently has a contract with the NBN and will be able to provide work for you when you are released from custody.
[5] Exhibit 2.
[6] Exhibit 3.
[7] Exhibit 4.
41 Your counsel submitted that you have prospects for rehabilitation because you have the support of your family and can break the nexus between drug taking and offending. You have most recently had over a four year gap in offending which indicates your capacity for offence-free living.
42 In my view your prospects for rehabilitation remain guarded and are inextricably linked to your ability to remain drug free when you are released from custody.
43 Your co-offender has not been charged or dealt with by a court and as a result I am unable to take into account parity of sentence with your co-offender.
44
As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your
re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
45 You were placed in protective custody shortly after you were placed on remand. The reason for that is that you had been assaulted by associates of Mr Palmer. Your hand up brief was stolen from your cell which included your record of interview with the police which contained references to Mr Palmer. As a result you did not have the same access to jobs and courses as mainstream prisoners. There is continual concern for your safety. You were in 23 hour lock down in MRC. This only recently changed in the last couple of weeks when you were moved to MAP just before the trial. I take into account in your favour in mitigation of sentence that your conditions of incarceration in protective custody were more onerous than those for mainstream prisoners.
46 The Crown makes an application pursuant to s32 of the Confiscation Act 1977 that the property referred to in the schedule of the forfeiture order dated 20 December 2018 be forfeited to the Minister. The property includes your white BMW sedan, Victorian registration QRB 044 (the BMW). The prosecution submits that the BMW is tainted property in that it was used in the commission of the offences and was an essential ingredient of both armed robberies in that it provided transport to and from the location of the commission of the offences.
47 Your counsel conceded that the BMW is tainted property but submitted that the confiscation of the car would cause you hardship because you are experiencing financial hardship and having the use of the car would put you in a better financial position and assist you to find employment when you are released from custody. Having the use of the car would facilitate the prospects for your rehabilitation.
48 I am satisfied that the BMW is tainted property. Having considered the submissions made by your counsel, the use made by the BMW in the commission of the crime and the matters referred to in s33(5) of the Confiscation Act, I order that the BMW be forfeited to the Minister together with the other items of property referred to in the forfeiture order. In accordance with s5(2A) of the Sentencing Act, I have taken the forfeiture of the BMW into account when fixing an appropriate sentence.
Submissions on sentence
49 Your counsel conceded that the offending is serious and that denunciation and just punishment are relevant sentencing considerations in relation to offending that includes firearms. Your counsel conceded that the only appropriate sentence is a term of imprisonment. However she submitted that a longer parole period will allow for a significant period of supervision in the community and within your committed family unit.
50 The prosecution submits that in terms of categorising these two armed robberies on a scale of highest, high, medium and low, this offending falls within the medium range and that an immediate custodial sentence should be imposed.
51 I accept the prosecution’s submission that the armed robbery offending falls within the medium range. There were two offenders to the first armed robbery each carrying a weapon. There was a moderate level of planning in the sense of disguises being used and you were present when you purchased the clothing at Bunnings. The armed robberies were committed on soft targets. You were on bail and have relevant criminal history.
52 These are without doubt serious offences. In all the circumstances I have no alternative to the imposition of custodial sentences. I propose to record convictions on all counts and sentence you to be imprisoned as follows:
Charge 1 – armed robbery – 3 years.
Charge 2 – armed robbery – 3 years.
Charge 3 – prohibited person, imitation firearm – 12 months.
Charge 4 – prohibited person, imitation firearm – 12 months.
Summary charge 2 – commit indictable offence whilst on bail - 1 month.
Summary charge 4 – commit indictable offence whilst on bail – 1 month.
Summary charge 5 – possess prohibited weapon (knuckle dusters) – 6 months.
53 Although the offences were committed in a 24 hour period, you were on bail during the commission of charges 1-4 and summary charge 5. Accordingly the presumption of cumulation under s16(3C) of the Sentencing Act applies.
54 The base sentence is the sentence imposed on charge 1. I direct that 6 months of the sentence imposed on charge 2, 4 months of the sentence imposed on charge 3, 4 months of the sentence imposed on charge 4, one month of each of the sentences imposed on summary charges 2 and 4 and 2 months of the sentence imposed on charge 5 be served cumulatively upon each other and upon the sentence imposed on charge 1. That results in a total effective sentence of 4 years and 6 months. I direct that you serve a minimum term of 3 years before becoming eligible for parole.
55 I order that the property referred to in the schedule to the forfeiture order which I have signed this day be forfeited to the Minister.
56 Lastly I order that the property referred to in the schedule to the disposal order, which I have signed this day, be forfeited to the State and direct that it be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date and then destroyed.
57 As prescribed by s18(4) of the Sentencing Act, I declare that the period of time you have already spent in custody is 427 days. I declare that such be noted in the records of the court.
58 I declare pursuant to s6AAA of the Sentencing Act that but for the plea of guilty, you would have been sentenced to a total effective sentence of 6 years with a non-parole period of four years.
MS SWINEY: As Your Honour pleases.
MR GRAY: As Your Honour pleases.
HER HONOUR: I'll hand those orders. Yes, thank you. Any further matters?
MR GRAY: No, Your Honour.
MS SWINEY: I was just going to say, Your Honour, that I have the original of those references and I'll e-file them at some point today.
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