Director of Public Prosecutions v Saed
[2023] VCC 1771
•27 September 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01178
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| IBADO SAED |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 February 2023, 27 September 2023 |
DATE OF SENTENCE: | 27 September 2023 |
CASE MAY BE CITED AS: | DPP v Saed |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1771 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Home invasion – category 2 offence – exceptional circumstances satisfied - criminal damage
Legislation Cited: Sentencing Act 1991; s5(2H), s5(2HC)
Cases Cited:Boulton v The Queen [2014] VSCA 342; Worboyes v Crown [2021] VSCA 169
Sentence:Convicted and ordered to serve a Community Corrections Order for a period of 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Riordan | The Director of the Office of Public Prosecutions |
For the Accused | Ms S. Whittle | Law and Advocacy Centre for Women |
HIS HONOUR:
1On 6 February 2023, Ibado Saed, you pleaded guilty to the following charges on indictment no.M11601009.
Charge 1, home invasion of a unit at Hoddle Street, Collingwood. This charge has a maximum penalty of 25 years' imprisonment. It is a category 2 offence.
Charge 2, criminal damage of a television and radio at that same premises. This charge has a maximum penalty of 10 years' imprisonment.
2You have admitted your prior criminal history. On 21 January 2013 at
Sunshine Magistrates' Court you were dealt with for shopping theft and released without conviction on a good behaviour bond as it was then called.3You have more recently attended at the Fairfield Local Court, New South Wales on 19 March 2020 for two charges of assaulting police and you were placed on a 12 month CCO. On the same day you were convicted of offensive language and offensive behaviour and given no further penalty.
4In the context of the offences before this court your prior criminal history is minor, but relevant, in the sense of dishonesty and violence are features of your history and current offending.
Circumstances of your offending
5The prosecutor tendered a Summary of Prosecution Opening dated
11 January 2023 which is Exhibit “A”, and was read it into the record of the court.6At the time of the offending you were 28 years old. You did not know the victim of your offending, Ayen Akot. Your co-accused, Ayan and Fatima Mohamed are sisters and you had known them for about six years prior to this offending.
7On 13 June 2021 at about 9.30 in the morning, Ayan Mohamed and you went to his address in Hoddle Street in Collingwood. You caught the lift to level 14 and briefly got off and then caught it back down to level 11. A few minutes after that Fatima Mohamed arrived with a long thin object in her hand. The three of you then caught the lift to the 14th floor.
8All three of you then went to level 14 where you then gained entry to an apartment through an unlocked window. Once inside Fatima Mohamed assaulted the victim, Akot, by using the long object. Whilst the victim was being assaulted you and Ayan Mohamed damaged items inside the premises including a television and a radio. Also present at the premises was
Emmanuel Chan who witnessed the victim being assaulted. As a result of the incident Ms Akot sustained a slash to her face.9The prosecution case is put on the basis that it is accepted that you did not intend to assault the victim on entering the premises. It is that you entered the home in company and that you had an intent to damage property and there was a person present at the time. It is not alleged that you personally caused the injury sustained to Ms Akot.
10On the same day at a 9.45am the three of you then re-entered the lift. Whilst in the lift you took the long object from Fatima Mohamed and concealed it in your jumper. The time between you initially exiting the lift on level 14 and re-entering the lift was about four minutes. You then exited the rear of the building at the ground floor and walked towards Vere Street.
11Ms Akot has reported the assault to the building supervisor who observed blood on her face and the police investigation commenced in earnest on 7 July 2021. Your co-accused were arrested and charged in July 2021.
12On 30 July 2021 you were located by police in Collingwood. You were arrested and transported to Melbourne West police station where you were interviewed by police. During the interview you identified yourself in the CCTV still images and you stated that you were invited to Ms Akot's apartment to drink.
13You also stated that your co-accused, Fatima Mohamed, remained outside the apartment. You stated that there was a physical altercation initiated by Ms Akot and that you were just defending yourself. All of that, of course, was a fiction.
Personal circumstances
14You are 30 years of age. At the time of the offending you had just turned 28 years old. You are of Somalian background. You were born in a Kenyan refugee camp. Your parents had fled to Kenya from Somalia to escape persecution of the Isaaq Somalis.
15You are the fourth child of a family of 11 children. You came with your family to Australia as a refugee when you were a young child. You attended primary school in North Melbourne. You then attended University High School but did not complete your Year 12 level.
16When you were 17 years of age you commenced using cannabis. Your mental health deteriorated, and this resulted in your admission to Footscray Orygen. At the age of 17 you were a victim of sexual assault.
17After secondary school you completed a Certificate III in Aged Care. Unfortunately you have never utilised this qualification. When you were 18 years of age you were diagnosed with a drug induced psychosis. Following this initial diagnosis your family sent you to Egypt to reconnect with your African culture. You were then 19 years of age.
18You were admitted to a psychiatric facility in Egypt and treated with electroconvulsive therapy. Upon return to Australia you were diagnosed with schizoaffective disorder at the Inner West Adult Mental Health Service.
19When you were 20 years of age you were sent by your family, particularly your mother, to Somalia and married to your first husband as an arranged marriage. You gave birth to your first child in December 2014. Your mother rescinded that agreement for your marriage and as a consequence there was a divorce.
20After the birth of your first child you were subject to a number of compulsory treatment orders, and I do not propose to list them all.
21At the age of 24 you were sent back to Kenya for a second arranged marriage. This marriage was of short duration. Whilst in Kenya you were admitted to a psychiatric facility. You were sexually assaulted in that hospital. You discharged yourself from hospital and attended at the Australian Embassy barefoot and desperate. You were repatriated to Australia and again placed on involuntary psychiatric treatment under a compulsory treatment order.
22You are currently on a compulsory treatment order until 4 January 2024. You have stable housing through the Department of Families, Fairness and Housing. You have mental health support from St Vincent's Hospital which administers the compulsory treatment order. You are on a waiting list for rehabilitation treatment at UnitingCare ReGen Odyssey House.
23You have used cannabis since you were 17 years of age. In your 20s you commenced methylamphetamine use. You have also consumed alcohol. None of these substances combine well with your prescribed medications for your mental health treatment.
24It is clear you need assistance to overcome your drug use problems. Your family is hardworking and follow the Muslim traditions strictly. Your mental health diagnosis and drug and alcohol use do not fit with their beliefs and their Somalian culture.
25Your mother looks after your two children, a son aged nine and a daughter, I think, aged three years of age. Your daughter was born from your third relationship which you have described as being “on and off again”.
26In July 2021 Victoria Police obtained a family violence intervention order after you were assaulted by your then partner, Yussef. That intervention order is still in place.
27Your two aunties died in 2015 and 2016 which has caused you considerable grief. You have a close relationship with your father, but your mother is less sympathetic to your condition and your lifestyle. You have a limited criminal history for a person with your mental health condition in combination with your drug use.
Sentencing considerations
28The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.
29I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you, as an offender, are rehabilitated and reintegrated into society.
30I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed, particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics of those sentences at the time. I have considered the statistics, short and all as they are, given this offence and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. Of course, current sentencing practices is only one of the considerations I have to take into account.
31Charge 1 on the indictment in this case is a category 2 offence as set out in the Sentencing Act. This directs a court for the charge of home invasion to impose a term of imprisonment unless an exception under s5(2H) is established by you, the prisoner, on the balance of probabilities.
32Your counsel submitted the special reasons are made out under s5(2H)(c)(ii) and s5(2H)(e). I will deal with them in turn.
33The first basis is that you have an impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risk of imprisonment. The prosecution submit this basis is not made out by you.
34Your counsel relied on the following matters to establish the exception under s5(2H)(c)(ii):
·Your mental health history and diagnosis which is set out in Exhibit 3 helpfully summarises your complex mental health diagnosis with the following: paranoid schizophrenia, schizoaffective disorder (manic type); bipolar affective disorder, mental and behavioural disturbance due to polysubstance abuse and complex post-traumatic stress disorder. Each of the examiners, that is Dr Glowinski, (Exhibit 4), Warren Simmons, (Exhibit 5) and Dr Paul Grech, (Exhibit 6) have made various diagnoses all‑inclusive of those matters just mentioned before.
·You are currently on a compulsory treatment order at St Vincent's Hospital which is current until 4 January 2024.
·Between 2011 and 2023 you have had no less than 10 involuntary admissions. Since 2015 you have had greater than that compulsory treatment orders.
·Your latest involuntary admission at the RMH and St Vincent's covering the periods of 1 June 2023 to 22 June 2023 and 28 June 2023 to 1 August 2023 respectively. So it is the RMH first and St Vincent's second. You are clearly very unwell and require very close and directed mental health care.
35I accept that you have established, on the balance of probabilities, that a term of imprisonment would subject you to substantially and materially greater than the ordinary burden or risks of incarceration.
36The second basis for the exception to a term of imprisonment is that there are substantial and compelling reasons that are exceptional and rare pursuant to s 5(2H)(e). In making the assessment of this ground, a court must have regard to the sentencing principles of general deterrence and denunciation of your conduct. I am required to give less weight to your personal circumstances than to your actual offending and a court must not have regard to your prior good character or in your case limited criminal history, your early plea of guilty, your prospects of rehabilitation or parity with other sentences.
37The provisions of s5(2HC) remove the majority of common law considerations a court would normally engage in to assess compelling reasons that are exceptional and rare. Given that I have made a finding under s5(2H)(c)(ii) it is unnecessary for this court to make an assessment under s5(2HC).
38The learned prosecutor submitted that the principle of parity does not apply in this sentencing process because the co-accused, the Mohamed sisters, did not face the charge of home invasion. The prosecution summary, Exhibit “A”, sets out the roles of each offender that includes the basis for the charge of home invasion against you.
39Your co-accused elected to contest their charges of home invasion by the committal process. The complainant victim did not appear at either of the committal hearing dates on 1 September 2022 or 18 October 2022. You had entered your plea of guilty to home invasion at committal mention on
6 July 2022. That is months before these committal hearings.40As the prosecution could not get the complainant to give evidence against the Mohamed sisters, negotiations between the prosecution and your co-accused resulted in dispositions at the Magistrates' Court on different dates.
41In respect of Ayan Mohamed, the prosecution summary refers to an affray charge and other matters on 2 November 2022 as part of a large consolidated plea and the disposition attached to it. I note from the criminal history of Ayan Mohamed dated 5 January 2023, on 2 November 2022 Ms Mohamed was dealt with for the following charges: intentionally cause injury, obtain property by deception, burglary and affray. There were other charges dealt with on that day for Ayan Mohamed. Ms Mohamed had 11 pages of criminal record.
42The police summary which is Exhibit “B” does not depart from the general tenor of the summary in this case, as stated Exhibit “A”. By the general tenor I mean general description of the offending that took place. It does not attribute the roles to the respective offenders in the detail of Exhibit “A”.
43The criminal history of Fatima Mohamed, which is set out in Exhibit “B”, is nine pages in length. The last entry for 29 June 2023 includes a charge of affray and an attempt to commit an indictable offence. She was convicted and placed on a CCO for 12 months. On the same day she was dealt with for assault.
44The roles of the three offenders as described in Exhibit “A” place Fatima as the main offender, Ayan as the next in line and you at the lowest level role for that offending on the day. The prosecutor accepted this characterisation of the respective roles of each offender.
45Whilst the Mohamed sisters have not pleaded to the charge of home invasion, I find that they are true co-offenders in the offence to which you have pleaded guilty. Indeed they were each charged with home invasion but prosecutorial pragmatism has resulted in them pleading to the charge of affray in the absence of the complainant's evidence against them.
46I accept there would be a justifiable sense of grievance if you were to be sentenced to a lengthy term of imprisonment particularly where the principal offender had a significant prior criminal history and was 40 years of age and subsequently sentenced to a 12 month community corrections order. I find that the principle of parity has a role to play in your sentencing process.
47I am mindful of the provisions of the Sentencing Act and in particular s5(4C) which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.
48I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case and as you know, I have had you assessed for a community corrections order. You have been assessed as suitable. That is not the end of the matter but you are suitable.
49You have pleaded guilty to this charge. Your plea of guilty was indicated at a very early stage. Your plea does have the utilitarian value of allowing for the orderly and effective administrative of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending.
50Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
51Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal conduct on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these two charges indicates and demonstrates remorse on your part.
52You were prepared to spare Ms Akot the agony and trauma of giving evidence in a committal or a trial. You have also expressed your remorse to the reporters, Glowinski, Grech and Simmons.
53Your early plea has been given when on bail and at a time when the courts are labouring under long delays for trial proceedings as a result of the COVID-19 pandemic. You are entitled to a perceptible amelioration of sentence as set out in the Worboyes case by the Court of Appeal.
54The offences of home invasion and damage to property are serious offences. The indicators of the seriousness in your case are:
(a) you entered the premises when a person was in there which, of course, is no longer the offence;
(b) you did not know that person, so you had no basis for ever being there;
(c) you were not disguised in any manner;
(d) it occurred during the daytime; this was in the morning hours;
(e) you wilfully damaged the TV which gives rise to the inference that your intention on entering the house was to do that; and
(f) there is no allegation of assault or theft against you.
55I assess your involvement in this offending at the low end for this type and category offence.
56I take into account your personal history and the circumstances of your mental health which has necessitated numerous involuntary admissions to hospital. Your present position, as outlined in Exhibit 2, is the best you have experienced for years. You have to deal with your drug abuse so that your mental health and life can be stabilised.
57I assess your prospects of rehabilitation as guarded. You need to control your drug and alcohol use to maximise your rehabilitation. You need structured support for that to occur and the best way for that to be imposed is under a community corrections order.
58The sentencing considerations are satisfied by a community corrections order because you are not a good vehicle to carry the sentencing consideration of general deterrence. Specific deterrence is marked out in this manner by the process in general and the unpaid community work that you will be asked to do.
59The protection of the community is enhanced if you are stabilised and allowed to live in the community in stable housing with mental health support rather than the cycle of prison, followed by homelessness, followed by offending, followed by back to prison. Denunciation of your actions and just punishment are also satisfied by the imposition of a community corrections order.
60Will you stand please?
61In respect of Charges 1 and 2 you are convicted and placed on a community corrections order for a period of 12 months commencing today. The conditions of that order are supervision, unpaid community work of 100 hours, drug and alcohol treatment and rehabilitation, mental health treatment and rehabilitation, judicial monitoring on 15 December 2023 at 9.30 am and the final matter is that the unpaid hours of work can be satisfied by the hours you spend in treatment and rehabilitation.
62If you consent to that community corrections order then I will impose it.
63OFFENDER: I agree.
64HIS HONOUR: Yes.
65OFFENDER: Your Honour.
66HIS HONOUR: Sorry 'I do' did you say?
67OFFENDER: I agree, Your Honour.
68HIS HONOUR: Agree. Yes. Thank you. Sorry, I did not hear you. And you are to attend at Melbourne Corrections.
69OFFENDER: All right.
70HIS HONOUR: Collingwood Corrections.
71OFFENDER: Yes, Your Honour.
72HIS HONOUR: Yes, s6AAA, that is if you did not plead guilty to this offence and ran a trial I would have sentenced you to three years with a two year non‑parole period.
73OFFENDER: Yes, Your Honour.
74HIS HONOUR: That's all right. You can take a seat now.
75MR RIORDAN: If the court pleases.
76HIS HONOUR: No other orders required?
77MR RIORDAN: No further orders.
78HIS HONOUR: Thank you.
79MS WHITTLE: No, thank you.
80HIS HONOUR: You're all done as they say at the auctions?
81MS WHITTLE: Yes, all done.
82HIS HONOUR: Yes.
83MS WHITTLE: That's right.
84HIS HONOUR: Thanks. I'll just have the paperwork prepared, Ms Saed.
85OFFENDER: Yes, Your Honour.
86HIS HONOUR: And I'll hand it to your counsel and they'll come down to see you.
87OFFENDER: Yes, Your Honour.
88HIS HONOUR: Thanks. Just check the order's right, Ms Whittle. Ms Saed, I have had two copies of that order handed to your counsel. One of them you will be given by her. The reason I have given you one is so that you know what your responsibilities are and I suggest you put it up on the inside of your cupboard or whatever. When you get dressed every morning you will have a reminder of what you have got to do and what hangs over your head.
89But at the minute what I have been told today and these papers that have been handed up to me, this is your best chance at the moment. If you stay close to St Vincent's medical help, the people that have got you in your place in
Fitzroy Street there and drug rehabilitation. You have got to give the poisons away.90OFFENDER: Yeah.
91HIS HONOUR: They are no good for you.
92OFFENDER: Yes, Your Honour.
93HIS HONOUR: All right?
94OFFENDER: Yes, Your Honour.
95HIS HONOUR: Otherwise good luck. I'll see you in December.
96OFFENDER: Yep. Thank you, Your Honour.
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