Director of Public Prosecutions v Osman
[2015] VCC 1280
•15 September 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-00541
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMAD OSMAN |
---
| JUDGE: | HIS HONOUR JUDGE JORDAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 May 2015 and 7 September 2015 |
| DATE OF SENTENCE: | 15 September 2015 |
| CASE MAY BE CITED AS: | DPP v Osman |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1280 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – offence – Robbery (one charge)
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited: R v Verdins; R v Buckley; R v Vo [2007] VSCA 102
Sentence:Convicted and sentenced to a term of imprisonment of 18 months together with a Community Corrections Order of 2 years
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Holmes | Office of Public Prosecutions |
For the Accused | Mr G Thomas | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
1Mohammad Osman, you have pleaded guilty to one charge of robbery. The maximum penalty for this offence is 15 years' imprisonment. You pleaded guilty at the earliest opportunity, and I take that into account.
2The circumstances of your offending are set out in the prosecution opening, Exhibit A. The facts of which are admitted by you. The CCTV footage, Exhibit B, also shows the circumstances. The facts need no great elaboration. You and three other men robbed a male pedestrian in Collins Street, late at night, on 26 December, 2014. He was not psychically injured, but on any view he experienced a frightening event. The victim's mobile phone, bag and wallet were taken from him. Almost immediately the police were involved, you were arrested shortly after.
3Mr Brett Atkinson has pleaded guilty to the more serious charge of armed robbery in view of him of producing a knife. On 14 May 2015 he was sentenced to three years' imprisonment, with a non-parole period of two years.
4Mr Osman Mursal also pleaded to the lesser charge of robbery. He was sentenced on 22 May 2015 to six months' imprisonment, with a two year Community Correction Order with conditions. Another offender, Mr Louis Assagua Onawardomi failed to attend court and has since passed away.
5All the victim's property was recovered. He declined to provide a victim impact statement. The offence is serious, it was late at night and there were four of you. The victim was a lone pedestrian. Fortunately you were apprehended very promptly and there was no evidence before the court of any ongoing consequences for the victim.
6You have admitted the contents of a criminal record, which discloses appearances before the criminal courts from 2002 and 2011. Armed robbery, robbery and attempted robbery appear and you have been imprisoned for that offending. In particular, an armed robbery saw you sentenced to three years and nine months in July 2011 and an attempted robbery resulted in 12 months' imprisonment in September 2011.
7I am told you were in custody for 51 months until you were released on 19 December 2014. Alarmingly, you then committed this offence only seven days later, on 26 December 2014. Clearly imprisonment had no material deterrent effect upon your ongoing behaviour. You have been in custody since.
8Your previous releases from prison saw you released with nowhere to live, no professional or family support, and on one occasion with nothing but a bus ticket. You just went on the streets for the seven days, since that last release.
9Your personal history could hardly be sadder. At 29 years of age when this offence occurred, you were the oldest of the offenders. Exhibit 1 illustrates the extreme disadvantage you have had in life, a very serious mental impairment you suffer, as well as the shocking brutality you were exposed to in Somalia. You were witnessing daily murders, involving beheadings there, as well as torture when forced to join a terrorist group and learn the Quran. Then in the Somalia Army, you were forced to witness similar atrocities, including people being burnt alive.
10You are a man with effectively no support at all in the community. The short seven days you were in the community before being arrested again is glaring testimony to this.
11Of particular relevance is that you have an IQ of only 52. Mr Gina Sidoni, consultant psychologist, gave the last of three professional reports. She said on May 8 2015, you have attempted to end your life a number of times. You consumed bleach in prison, you tried to sever an artery in your neck, swallowed a razor blade, and in the past have leapt in front of the car, as well has thrown yourself off the Flinders Street Railway bridge. You are on suicide watch in Port Philip Prison. Your personal circumstances and in particular your mental health problems can only be described as desperate.
12In addition to your impaired cognitive function, you suffer depression, post-traumatic stress disorder and paranoid schizophrenia, with possible drug abuse connections. The evidence is clear that your impaired mental function contributed to the offence on Boxing Day. It is also relevant in a number of other respects to the sentencing exercise.
13Your prospects of rehabilitation are very limited. They depend virtually entirely on the success or otherwise of treatment for your mental health problems, where it is clear you need very extensive professional help.
14In mitigation, I take your early plea as evidence of remorse in your case. It also has the obvious utilitarian benefits. There is no need to elaborate on the objective and subjective criteria of those benefits, but you have saved witnesses, as well as the time and expense involved in the trial. All of the victim's property was recovered, there was no evidence he was injured physically or harmed mentally before the court.
15Your counsel submitted that an assessment for a Community Correction Order (“CCO”) with a Justice Plan to try and address these concerns was appropriate. The Crown agreed. That course has been followed. The Crown also provided a number of materials in regards to sentencing for these offences.
16On the further plea, on 7 September 2015, a Presentence Report, dated 24 August 2015, Exhibit C, and a Client Overview Report and Justice Plan, both dated 3 September 2015, Exhibit D, were tendered. In Exhibit C you were described as having a high risk of reoffending.
17It was "with hesitancy" you were found to be suitable for a CCO with special conditions, in addition to those attached to every CCO. These additional conditions address the causes of your offending. I do not agree that unpaid community work with your serious mental impairment is appropriate. Exhibit D records how you were assessed back in 1997 as meeting the criteria for intellectual disability. Your history of substance abuse was also described.
18You have no friends or family you can reside with, even on a temporary basis. I also heard oral evidence from one of the co-authors of the Client Overview Report and the Justice Plan. It is clear from these reports, and her evidence, that it is in the interests of protecting the community that these CCO conditions be given the opportunity to afford protection better than imprisonment alone has done in the past. Conditions such as these operate punitively for every day the CCO is in force. It is imperative that in the future some accommodation support and professional treatment be available to you on your release. She provided evidence of the arrangements that will be put in place in order to arrange appropriate accommodation and for you to be taken to professional visits, for assessment and treatment of your various conditions.
19Your counsel submitted that in view of your time in custody, now approaching nine months, that a sentence of ten months, with a CCO upon release together with a Justice Plan was appropriate. I do not agree that period of imprisonment is adequate.
20The Crown sensibly submitted the appropriate sentencing disposition was imprisonment, together with a CCO and Justice Plan. The Crown also sensibly agreed that a sentence cognisant of the need for treatment and support was appropriate.
21As well as matters personal to you, I must also take into account other relevant sentencing considerations. General and specific deterrence must still be given weight in the sentence I impose, in spite of your mental impairment.
22The community cannot, and will not tolerate offending which so seriously compromises its citizens right to feel safe walking a major city street at night. The message must be clear that appropriate punishment will result in these circumstances. Your sentence must manifest the community's denunciation of your conduct and then impose just punishment. I must protect the community from any repetition of this type of offending.
23It seems that protection of the community in the long term is linked in your case to extensive professional help and support in order to hopefully rehabilitate you. I must also seek to deter you and others.
24In your case, a number of Verdins principles[1] are activated. As to moral culpability, your organic mental impairment and serious psychiatric illnesses mean that I cannot assume your offending and your past offences demonstrate any conscious disregard for the law or the community. You are also not as appropriate a vehicle for general deterrence as other cases. Your time in prison will weigh more heavily on you than it would for a person in normal health. There is a serious risk imprisonment will adversely affect your mental health and it has already done so it seems. You are on suicide watch, which is meant you are seeing a health professional in that regard on a weekly basis.
[1]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102
25In the circumstances I impose a term of imprisonment of 18 months, together with a CCO of two years duration with the following recommended conditions. Section 48D Sentencing Act 1991, conditions of assessment and treatment, including testing for drug and alcohol abuse or dependency, mental health assessment and treatment as directed, any program that addresses factors related to your offending behaviour program, supervision pursuant to s.48E and a Justice Plan pursuant to s.80.
26I declare 263 days pre-sentenced detention, pursuant to s.18 of the Sentencing Act 1991 (“the Act”). Pursuant to s.6AAA of the Act, I declare, but for your plea of guilty, I would have imposed a sentence of four years with a non-parole period of three years.
27Now just the attendance to that paper work, if I leave the Bench that can be faxed through can it, for Mr Osman to sign the CCO that you requested?
28MR THOMAS: Yes, Your Honour. I think if Your Honour signs it and it can be faxed through to him to sign.
29HIS HONOUR: All right. Well I believe the procedure is that my associate would normally read the terms formally to the prisoner of the CCO, so I think that still should be done.
30MR THOMAS: Yes, Your Honour.
31HIS HONOUR: I think that ought to be done. I will leave the Bench and I will wait out the back if there is any difficulty with the paperwork going through or not going through, so I will be available. I will just leave the Bench while that is being brought up, but I am readily available.
32(Short adjournment.)
33HIS HONOUR: Yes Madam Associate.
34(Particulars put.)
35No Mr Osman if you agree to that there is some paperwork that will come through to you to sign.
36OFFENDER: Yes, I agree with that.
37HIS HONOUR: You understand? So there will be some paperwork faxed through to where you are, which will be signed.
38OFFENDER: Yep.
39HIS HONOUR: And then that will come back to me.
40OFFENDER: Yep.
41HIS HONOUR: And then I will sign the orders, do you follow?
42OFFENDER: Yes, I do.
43HIS HONOUR: Is there anything you need from me? I will just attend to that now and if there is any difficulty, well just let me know. All right. Thanks for your assistance.
44MR THOMAS: As Your Honour pleases.
45MS HOLMES: Thank you Your Honour.
46HIS HONOUR: I will just adjourn temporarily.
‑ ‑ ‑
0