Director of Public Prosecutions v Sheikh
[2022] VCC 1332
•12 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-20-00880
CR-20-00881
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDINASIR SHEIKH |
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JUDGE: | Her Honour Judge Hawkins | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2022 | |
DATE OF SENTENCE: | 12 August 2022 | |
CASE MAY BE CITED AS: | DPP v Sheikh | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1332 | |
REASONS FOR SENTENCE
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Subject:Criminal Law - SENTENCING
Catchwords: 3 charges of aggravated burglary – 1 charge of armed robbery – 2 charges of theft – guilty plea – relevant prior criminal history – inherently serious offending – significant moral culpability – Worboyes’ principles – limited remorse – Bugmy principles – Verdins’ principles – major depressive disorder – post traumatic stress disorder – alcohol and drug use disorders – denunciation – some rehabilitation prospects – totality
Legislation Cited: Crimes Act 1958 (Vic), s77, s75A, s74(1)
Cases Cited:Worboyesv The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; Marrah v The Queen [2014] VSCA 119; R v Verdins [2007] VSCA 102; Youil v The Queen [2013] VSCA 228; Dirbass v The Queen [2018] VSCA 272; DPP v Alsop [2010] VSCA 325; DPP v El Hajje [2009] VSCA 160
Sentence: Total effective sentence of 4 years and 6 months imprisonment with a non-parole period of 2 years and 8 months. Section 6AAA declaration of 8 years imprisonment with a non-parole period of 6 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L Cameron | Office of Public Prosecutions |
| For the Accused | Mr A Patton | Valos Black & Associates |
HER HONOUR:
1Abdinasir Sheikh, on Indictment No. L10782957.1 (‘Incident 1’), you have pleaded guilty to:
·1 charge of aggravated burglary;[1] and
·1 charge of armed robbery.[2]
[1]Crimes Act 1958 (Vic), s77
[2]Ibid s75A
2On Indictment No. L10782946.1 (‘Incident 2’), you have pleaded guilty to:
·2 charges of aggravated burglary;[3] and
·2 charges of theft.[4]
[3]Ibid s77
[4]Ibid s74(1)
3The crimes of aggravated burglary and armed robbery each carry a maximum penalty of 25 years’ imprisonment.[5] The crime of theft carries a maximum penalty of 10 years’ imprisonment.[6]
[5]Ibid s77(2), s75A
[6]Ibid s74(1)
4You have admitted your prior criminal history.[7]
[7]Exhibit B
Circumstances of Offending
5The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 11 July 2022,[8] the accuracy of which you have accepted through your counsel.
Indictment L10782957.1
[8]Exhibit A
Incident 1 – Clarke Street, Abbotsford
Charge 1 – Aggravated Burglary
Charge 2 – Armed Robbery
6In the early hours of the morning on Saturday 29 February 2020, Mr Daniel Beggan was woken in his bed to see you standing over him, holding a large knife towards him. You had a blue hoodie over your head with the strings pulled tight to cover your face. You had entered the house via a kitchen window, turned the bedroom light on and demanded the keys to a white Toyota Corolla parked in his front driveway.[9]
[9]Exhibit A, at paragraph [4]
7Mr Beggan told you the car did not belong to him and the keys were in a different room. You told him to get the keys or you would go in there with a knife. Mr Beggan complied with your demand and retrieved the keys for you.[10]
[10]Ibid at paragraph [7]
8You fled the house and drove away in the Toyota Corolla, with Mr Beggan’s wallet containing $500 in cash, automatic teller machine cards, an ID card, driver's licence, healthcare card and his mobile phone.[11] The owner of the Corolla had left a distinctive skateboard in her car.
[11] Ibid at paragraphs [8], [11]
9Forensic evidence, possibly saliva, was obtained at the scene. It was determined to be 100 billion times more likely to have come from you than anyone else.[12] A thumb print that matched your left thumb was also found inside of the kitchen window frame.[13]
[12]Ibid at paragraphs [12]-[14]
[13]Ibid at paragraph [15]
10In March 2020, the white Toyota Corolla was located at a Laverton address, which was later determined to be your cousin’s house.[14] A search warrant was executed there and the Corolla owner’s skateboard was located. Your cousin informed police that you had come over 2-3 weeks earlier and gave the skateboard to her daughter.[15]
[14] Ibid at paragraph [19]
[15] Ibid at paragraph [20]
11CCTV footage obtained on the night of your offending from a neighbouring house to Clarke Street depicted a man matching your description entering the house and later driving away in the Toyota Corolla.
Indictment L10782946.1
Incident 2 – Nicholson Street, Fitzroy North
Charge 1 – Aggravated Burglary
Charge 2 – Theft
12At approximately 5.00am on 28 March 2020, you were seen by police running along Newry Street, Carlton North, and entering the rear of a property on Nicholson Street, Fitzroy North.[16]
[16] Ibid at paragraphs [22]-[23]
13At that address you stole a yellow jumper, keys, a Bose portable speaker, two smart watches, an Apple iPhone, a mouse, an iPod Nano, a charging cord, a keyboard, an Apple iPad Pro in a grey case, a silver Apple MacBook Pro, a steak knife and a six pack of Heineken beers.[17]
[17] Ibid at paragraph [25]
14The resident of that address was present but asleep at the time you entered the house and was not initially aware that you were there.[18]
[18] Ibid at paragraph [24]
15At 5.00am that morning, a police member entered that house with his police dog, Razor, searching for you.[19] Approximately 20 minutes later, two other police saw you drop something. The canine unit were patrolling the laneway when Razor indicated towards the yellow jumper, the six-pack of Heineken beers and the steak knife that you had stolen from the property on Nicholson Street.[20] The resident of that address later identified these items as his.[21]
[19] Ibid at paragraph [28]
[20] Ibid at paragraph [29]
[21] Ibid at paragraph [30]
Incident 3 – Freeman Street, Fitzroy North
Charge 3 – Aggravated Burglary
Charge 4 – Theft
16
At approximately 5.50am that same morning, you entered the rear yard of a property on Freeman Street, Fitzroy North. This address is approximately
110 metres and only two minutes on foot from the property on Nicholson Street.[22]
[22] Ibid at paragraph [32]
17You forced open a rear security grill and entered through the unlocked back door. Inside, you stole a silver knife, kitchen scales and a bottle of gin.[23]
[23] Ibid at paragraph [33]
18Razor and his handler followed your scent from the Nicholson Street address and after traversing several rear yards of addresses on Freeman Street, arrived at the rear yard of the Freeman Street property. Razor indicated towards the fence and his handler saw that the rear door was ajar. Police entered the house and Razor led his handler to the bathroom, where you were located and arrested.[24] The police found you in possession of a red glass-breaking hammer, as well as most of the items stolen from the Nicholson Street address.[25] You did not confront the occupants who were asleep in bed and they were unaware until woken by Razor and other police members.
[24] Ibid at paragraph [34]
[25] Ibid at paragraphs [35]-[39]
19You made a ‘no comment’ interview with police.[26]
[26] Ibid at paragraph [42]
Personal Circumstances
20You were born in October 1990 in the Somali capital, Mogadishu, during the early months of the civil war. You are the youngest surviving son in your family. Four of your siblings passed away during your childhood, including one sister who passed away while sleeping next to you. Your father did not live with your family, visiting only intermittently.
21In 1994, your family fled the civil war in Somalia to a refugee camp in Kenya where you spent two years. Your father did not travel to Kenya with you, leaving the family without a breadwinner or provider.
22Ultimately your family emigrated to the western suburbs of Melbourne in around 1997. Your parents separated and your mother raised the family as a sole parent, under significant financial and other stress.
23You were educated in Australia but were expelled from two schools due to your involvement in petty thefts. You left school after the second expulsion.
24You began drinking on a regular basis and your life revolved around alcohol consumption. Alcohol soon led to cannabis use and later methamphetamine addiction.
25You have a limited employment history and your brief periods of employment were terminated by alcohol abuse.
26Mr Shiekh, I am told that you bear the physical scars of your drug and alcohol abuse, numerous assaults, and repeated hospital admissions for falls, violent injuries and alcohol poisoning.
Nature & Gravity of Offending
27Mr Sheikh, you fall to be sentenced for what you concede is inherently serious offending. There are three incidents of offending committed on two separate dates approximately one month apart. You were the primary and sole identified offender and while there is no evidence of sophisticated planning, the incidents were certainly more than fleeting.
28The aggravated burglaries occurred across three separate residential dwellings in the early hours of the morning whilst the victims were likely to be, and in fact were, present and sleeping. They were defenceless and resting in their beds. You forced entry to their homes via windows or a door.
29The factors relevant to assessing the gravity of the charge of armed robbery committed during incident 1 overlap somewhat with the factors relevant to the charge of aggravated burglary, also committed during that incident. You confronted a vulnerable victim who was asleep in his own bed whilst you were brandishing a knife and wearing a disguise. You threatened to enter the bedroom of another victim with a knife if your demands for keys to her motor vehicle were not met.
30The offence of aggravated burglary in incident 1 was completed upon your entry to the home. The offence of armed robbery was completed after you produced a knife, demanded keys to the vehicle and took the keys.
31In respect of the charges of theft, the items stolen were relatively low value household items including portable electronics.
32You did not confront the occupants in incidents 2 and 3.
Moral culpability
33You were released from custody following a drug court sentence in February 2020 before this offending. A chance encounter with a former drinking companion led to a relapse into drinking and methamphetamine abuse. You quickly descended into your previous itinerant lifestyle and began committing offences to feed your addiction. You were 29 years of age at the time.[27]
[27] Exhibit A, at paragraph [1]
34Your offending occurred in the context of heavy drug use and to fund a gambling habit. Your criminal history reflects that you were well aware of your propensity to make poor decisions when influenced by drugs. Accordingly, your moral culpability remains significant even in light of the impact of your upbringing which I will discuss shortly.
Victim impact
35Mr Sheikh, you breached the privacy and sanctity of your victims’ homes. You woke the victim in incident 1 from his sleep and confronted him with a knife. Whilst no victim impact statements have been provided, your offending was objectively terrifying and clearly interferes with a person's rightful sense of safety in their own home and will likely impact them for the rest of their lives.
Plea of guilty
36You entered your plea after a contested committal and following protracted negotiations. Nevertheless, your plea carries a meaningful utilitarian benefit which warrants the moderation of the sentence to be imposed upon you. This moderation will be increased for the reason that it was entered during the COVID-19 pandemic.[28]
[28]Worboyesv The Queen [2021] VSCA 169
Remorse
37Your plea of guilty is some demonstration of remorse. You have also expressed some remorse for your offending to psychologist Ms Carla Ferrari and to your sisters. However, Mr Sheikh, your remorse is not in any way fulsome and only comes after the resolution of these matters. It will therefore not weigh heavily in this sentencing exercise.
Burden of imprisonment
38You have been on remand since the outbreak of the COVID-19 pandemic. I accept that this would have made your time in custody more burdensome than it would have been otherwise.
Bugmy and Verdins principles
39It is well acknowledged that the effects of social disadvantage do not diminish with time and may have profound and lasting consequences which may assist in explaining offending.[29] You have tendered material to the court, including the report from Ms Ferrari,[30] which explains that you experienced an exceptionally challenging and difficult childhood. You were born into civil war and raised in refugee camps before coming to Australia. You also experienced significant childhood trauma whilst in Australia.[31] These experiences impacted your mental health into adulthood, and you continue to suffer from a major depressive disorder, post-traumatic stress disorder and are now in remission for alcohol and drug use disorders.[32] Your sentence will be somewhat moderated to account for this.
[29]Bugmy v The Queen (2013) 249 CLR 571 at paragraphs [42]-[44]; Marrah v The Queen [2014] VSCA 119 at paragraph [16]
[30]Exhibit D5
[31]As outlined in the report of Ms Ferrari, but not articulated in open court at the request of the accused
[32]Exhibit D4
40
I note the comments made more fulsomely by Ms Ferrari in her report which I have taken into account but do not intend to recite for the purposes of this sentence.
Mr Patton on your behalf does not submit that the Verdins principles have application here,[33] despite the connection between your diagnoses and the index offending. However, I accept that the existence of these conditions are relevant and ought be applied to moderate your sentence. Ms Ferrari opines that due to the amount of time you have spent in custody you are at risk of becoming institutionalised. I am mindful to avoid imposing a sentence that worsens your prospects of rehabilitation and reintegration into society upon your inevitable release. Whilst you are not technically a young man in the eyes of the law, at age 30 you still have most of your life to live.
[33] R v Verdins [2007] VSCA 102
Criminal history
41Mr Sheikh, you have an extensive criminal history for which you have spent most of your adulthood in prison. You have not been at liberty for longer than five months over the past 10 years of your life. Your present period on remand is your longest period of confinement to date. Your history relevantly includes multiple prior incidents of aggravated burglary, armed robbery and theft which have clearly been committed in the context of substance abuse.
42Mr Sheikh, you also have a long history of non-compliance with court orders. Most notably, you contravened a drug treatment order by this offending shortly after it commenced in 2020. This past disregard for court orders is one of the reasons why I am not prepared to consider the imposition of a combination sentence involving a further community corrections order in this case.
Sentencing purposes
43Mr Sheikh, offending such as yours terrifies the community. People should feel safe sleeping in their own beds without facing the nightmare of waking up to face an armed intruder. In sentencing you I must denounce your behaviour, protect the community and send a clear message to others to deter them from seeking to make a quick drug fuelled buck by defiling the sanctity of a residential home.
44Ms Ferrari assesses that you currently pose a moderate to high risk of reoffending.[34] Your significant relevant criminal history, entrenched drug issues and psychological issues also elevate the need for this sentence to specifically deter you from engaging in such behaviour in the future.
[34]Exhibit D4; Exhibit D5
45You are no longer a young man, as I have said, Mr Sheikh, and in your letter to me you say that you are ready to make a change.[35] I am told that you have reconnected with your faith in prison and have now been abstinent from alcohol and drugs for a significant period of time. Your letter demonstrates insight and recognises that when a person comes out the other side a better person for themselves, that it is automatically better for those around them. You realistically note and I quote you, “[i]t takes one step at a time to climb the ladder of change, some make it and others not, and then there are some who trip and fall but then get themselves back up and try again…”.[36] Your insight is commendable, but I am concerned that you do not appear to have engaged with many opportunities for treatment and rehabilitation in the past.
[35] Exhibit D7
[36] Ibid
46As a man in your early 30s you are at risk of institutionalisation having spent most of your young adulthood in prison. Your family remains supportive of you and they offer you accommodation upon your release, and I note the references that they have tendered to the court.[37] You have now spent your longest and most burdensome period in custody and you have made productive use of this time, engaging in as many programs as possible and apparently abstaining from the use of illicit substances.
[37] Exhibit D2; Exhibit D3
47Mr Sheikh, you demonstrate the hallmarks of someone who is ready to make a change and accordingly I conclude that you still have some prospects of rehabilitation. To promote your rehabilitation to the greatest extent possible I will incorporate a shorter than usual non-parole period to assist your supervised engagement and appropriate treatment in the community upon your release.
Current sentencing practices
48I have regard to current sentencing practices for the offences with which you are charged. It is but one consideration amongst others that informs my instinctive synthesis of the just sentence to be imposed upon you. I have been referred to the latest Sentencing Snapshots, which demonstrate that most offenders charged with aggravated burglary and armed robbery are sentenced to a form of imprisonment with a declaration of a non-parole period. Sentencing statistics by their nature are of relatively limited assistance and accordingly I treat them with caution. I do have regard to the appellate decisions said to be somewhat comparable to which I was referred.[38]
[38] Youil v The Queen [2013] VSCA 228; Dirbass v The Queen [2018] VSCA 272; DPP v Alsop [2010]
VSCA 325; DPP v El Hajje [2009] VSCA 160
Totality, concurrency and cumulation
49There is an overlap between the type of conduct forming the basis of the charges within each of the three incidents. However, it is an aggravating feature that you continued to commit similar offences on the second occasion, approximately one month after the first. I will give effect to the principle of totality by making orders for partial concurrency between these incidents.
50Relevantly, you also served an unrelated term of imprisonment of 182 days during the course of your remand and I would take into account that you have been continuously held in custody since your arrest on 28 March 2020.
Pre-sentence detention
51You have 685 days of pre-sentence detention not including today available in relation to this matter.
52Mr Sheikh, you have been on remand during that pre-sentence detention from the time that the COVID-19 pandemic broke out. You are now held at Marngoneet prison and urine screens tendered to the court confirm that you have remained abstinent from illicit drugs whilst in custody. You have used your time in custody well; engaging in a number of vocational and rehabilitative courses despite the privations endured by prisoners during the pandemic. You have held a position as a food billet within your unit, re-engaged with your faith which you identified as being of assistance to your longer term rehabilitation, as well as regaining the trust of your family. I note that you have only been able to receive a single personal visit throughout your period on remand and it has been difficult to maintain contact with your mother via video due to difficulties she faces using technology.
53Mr Patton on your behalf submits that during this protracted period of remand you have developed significant insight into the causes and effects of your offending and have developed a more positive outlook focused on your rehabilitation. I note that this is reflected in your letter to me.
Just Punishment
54Mr Patton submits that whilst your offending is serious at face value, the mitigatory features of your plea and your personal circumstances are such that a sentence of imprisonment coupled with a community corrections order upon your release is appropriate. Mr Sheikh, your sentence must punish you in a way which is just in all the circumstances. In my view, your offending is far too serious for a man with your antecedents for such a disposition to be appropriate. I do however find force in Mr Patton's submissions that I impose a sentence comprising a shorter than usual non-parole period to support your self-stated commitment towards rehabilitation.
Sentence
Imprisonment
55Abdinasir Sheikh, I sentence you as follows:
Indictment L10782957.1 (CR-20-00880) (“the first indictment”)
56On Charge 1 (aggravated burglary at Clarke Street), you are convicted and sentenced to 2 years and 6 months imprisonment.
57On Charge 2 (armed robbery), you are convicted and sentenced to 36 months imprisonment. This will be the base sentence.
58The armed robbery is distinct offending, but occurs immediately after the aggravated burglary. Accordingly, these sentences will be partially concurrent with each other. 9 months of the sentence on Charge 1 is to be served cumulatively or on top of that in Charge 2.
59That is, the total effective sentence in the first indictment is three years and nine months imprisonment.
Indictment L10782946.1 (CR-20-00881) (“the second indictment”)
60On Charge 1 (aggravated burglary at Nicholson Street), you are convicted and sentenced to 2 years and 6 months imprisonment.
61On Charge 2 (theft), you are convicted and sentenced to 6 months imprisonment.
62On Charge 3 (aggravated burglary at Freeman Street), you are sentenced to 2 years and 6 months imprisonment.
63On Charge 4 (theft), you are sentenced to 3 months imprisonment.
64Given the close temporal connection between the offending, these four sentences are to be served concurrently with each other, giving a total effective sentence on the second indictment of two and a half years imprisonment.
Concurrency/Cumulation between Indictment L10782946.1 and Indictment L10782946.1
656 months of the sentence in Charge 1, and 3 months of the sentence in Charge 3 of the second indictment are to each be served cumulatively upon the base sentence imposed on Charge 2 of the first indictment.
66In effect this means that 9 months of the sentence in the second indictment is to be served cumulatively upon the sentence imposed in the first.
67The overall total effective sentence on both indictments is four and a half years imprisonment.
Non-parole period
68I set a single non parole period of 2 years and 8 months.
Pre-Sentence Detention
69
Pursuant to s18 of the Sentencing Act 1991, the period of 685 days of
pre-sentence detention (not including today) is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered into the Court records.
Section 6AAA Declaration
70Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a total effective sentence of a term of 8 years imprisonment with a non-parole period of 6 years.
Ancillary Orders
71I make the ancillary orders sought by the prosecution by consent.
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