Director of Public Prosecutions v Shire

[2018] VCC 809

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00040

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDULLAHI SHIRE

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2018
DATE OF SENTENCE:	31 May 2018
CASE MAY BE CITED AS:	DPP v Shire
MEDIUM NEUTRAL CITATION:	[2018] VCC 809

REASONS FOR SENTENCE
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Subject:  Criminal Law - Sentence
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S Locke	OPP
For the Accused	Mr J Van Arkadie	Victoria Legal Aid

Pages 1 - 10

 

HIS HONOUR:

Introduction

1. Abdullahi Shire you have pleaded guilty to 1 charge of armed robbery contrary to section 75A(1) of the Crimes Act 1958 which carries a maximum penalty of 25 years imprisonment.

2. You have also pleaded guilty to one related summary charge, charge 3, dealing with property suspected of being the proceeds of crime contrary to section 195 of the Crimes Act 1958, which carries a maximum penalty of two years imprisonment.

Circumstances of the offending

1. A prosecution opening was tendered on the plea which may be summarised as follows:

Summary charge

1. On 17 August 2017, at approximately 11 am, you Abdullahi Shire, attended Get Smart Loans in Flemington and pawned a stolen Samsung Galaxy S8 mobile phone, which was stolen from its owner on 15 August 2017. These facts relate to summary charge 3 - dealing with property suspected of being the proceeds of crime.

Charge 1

1. On Monday 9 October 2017, at approximately 9.30 pm, Kevin Huynh was walking from the Yarraville Railway Station to his car which was parked on Buninyong Street. Mr Huynh was wearing his light blue Nike backpack, which contained his Bose headphones, a black Uniqlo puffer jacket, his swipe card for work and a couple of notebooks.

2. Mr Huynh was approximately 10 metres from his car when he heard someone say, "Give me your bag.” 

3. Mr Huynh turned around and saw two African males standing in front of him. You were holding a large machete and said "Give it to me or I'm going to hit you”. 

4. Mr Huynh said, "No" and started running back towards Yarraville Railway Station. As he ran Mr Huynh stumbled and his bag slipped down his arm. Because you were chasing him, Mr Huynh dropped his bag on the road. He then watched as you picked up his backpack and then ran to a white car, which he described to police as looking like a 90s model Toyota Camry. These are the facts that relate to charge 1, armed robbery.

5. On 16 August 2017, Detective Senior Constable Olivia Dennison, the informant in this matter, was assigned as the primary investigator in an unrelated matter. As a result of that investigation, she had a number of conversations with Grant McKay, the owner of Get Smart Loans in Flemington.

6. On 5 October 2017, Mr McKay advised the informant of the information related to summary charge 3, namely, that you had pawned the stolen Samsung Galaxy S8 phone on 17 August 2017. Mr McKay advised the informant that you had produced your driver licence as identification at the time.

7. On 9 October 2017, Mr McKay contacted the informant and advised her that you had just attended Get Smart Loans driving a white Toyota Camry registration 1JG4HO. 

8. The informant made enquires on the VicRoads database and determined that the correct registration of the vehicle was 1JG9HO.

9. On 10 October 2017, the informant was assigned as the primary investigator for the armed robbery, the subject of charge 1. The informant reviewed Mr Huynh's statement and noted his description of a white Toyota Camry.

10. On 11 October 2017, the informant observed the white Toyota Camry 1JG9HO parked outside your home at 43 Adelaide Street, Albion. At 11.50 am that day Detective Acting Sergeant Jeremy Hart and Senior Constable Gareth Mullins, on duty in an unmarked police car, observed you approach the white Toyota Camry. 

11. They observed you removed a backpack and black jacket from the rear passenger seat and put those items in the boot. You then drove the white Toyota Camry towards Ballarat Road.

12. At 12.05 pm, Detective Acting Sergeant Hart and Senior Constable Mullins intercepted your vehicle. Detective Acting Sergeant Hart found a Nike bag containing a pair of Bose headphones and a black puffer jacket in the boot of the vehicle. You had a conversation with Senior Constable Mullins during which you admitted that you had committed an armed robbery in Yarraville on 9 October 2017 using a machete.

13. You were arrested and taken to Altona North Police Station for a record of interview by the Informant. During transportation, you told the Informant that you recalled throwing the machete out of the window of your vehicle on Simpson or Tarrengower Streets, Yarraville on 9 October 2017. The informant stopped and searched the area however the machete was not located.

14. During the record of interview, you made full admissions to the armed robbery of Mr Huynh. You admitted driving your mother's white Toyota Camry vehicle 1JG9HO during the armed robbery. You admitted carrying the machete and disposing of it in the Yarraville area. 

15. In relation to pawning the stolen Samsung Galaxy S8 phone, you stated that you had been given the phone by an acquaintance, ‘Said’, on 17 August 2017 and had taken the phone straight to the pawnbroker.

16. Following the record of interview, you were held in custody to appear at a filing hearing at the Melbourne Magistrates' Court the following day. You were granted bail at the filing hearing having served one day of presentence detention.

Objective seriousness of the offence

1. This offence occurred at 9.30 pm at night in circumstances where the victim was simply walking from the railway station to his car. You approached him brandishing a large machete in company with another male. You made a demand of Mr Huynh to give you his backpack with the threat that you were going to hit him. Whilst initially resisting your demand and attempting to run, you then chased him whilst still carrying the machete in your hand. Mr Huynh stumbled as a result of you chasing him causing his bag to slip from his arm which was then grabbed by you.

2. There can be no doubt that being chased by a man carrying a machete who had already made a demand and a threat would have been an extremely frightening experience for the victim in this case. You had no regard for him or the effect of your actions. You simply wanted to get his bag presumably to obtain money to fuel your then drug addiction.

3. In all the circumstances, in my view this is a serious example of this type of street armed robbery. The victim was an innocent person simply going about his daily routine. It was 9.30 pm at night, it was dark and you were on the street, in company and carrying a dangerous weapon.

Personal circumstances

1. You are now 19 years of age and were 18 at the time of the offence. 

2. Your parents came to Australia from Somalia in search of a better life. As part of that journey from Somalia your parents travelled to Kenya before coming to Australia. It was in Kenya that you were born and ultimately you came to Australia when you were about one or two months of age. Your parents settled in Australia and you have a brother that was born soon after.

3. When you were about two years of age, your parents separated and later divorced.  Your father moved to the United States but has since returned to Australia. Your mother remarried when you were approximately three or four years of age and had a further seven children. Your stepfather works full-time and your mother is studying to obtain a business qualification. You have the benefit of a close and supportive family and, despite the shock that they have expressed upon hearing of your offending, they continue to support you. You are in a stable relationship and have recently married.  You now live together with your wife in Kensington. Your wife undertakes full-time study at Victoria University with the intention of a career in social work.

4. You completed your VCE and obtained good marks. You were accepted into Victoria University’s undergraduate program and you are now in your second year completing a Bachelor of Building and Construction Management. Ultimately, you would like to use that qualification in the construction industry to work as a surveyor or estimator.

5. In addition to your education you have a number of other commitments. You work as a casual picker and packer for labour hire agencies and have been undertaking this work for about one year.

6. Prior to the offending you had been a hard-working and studious young adult and had spent a great deal of time playing sport. You are a talented soccer player. In a letter from Mr Ahmad Dinni from the Australian Somali Football Association, he attests to your long involvement with volunteering with youth programs connected to that group.  You are involved in working with the Association on its annual leadership conference. In addition you compete in the competition as a player for Seddon Football Club.

7. Despite the stable life you had, for reasons which seem unexplainable, you were tempted into the world of drugs and specifically, methylamphetamine. You were mixing with people who used that drug and ultimately, you used it yourself. I was told that you only used for about a month however you quickly fell victim to the addictive nature of that drug and your life dramatically changed in a short space of time. It was in this context that you committed the offence.

8. After you were arrested and made full admissions, you were bailed with a condition that you obey all lawful directions of youth justice. You engaged with the programs that were provided and it is clear from reading the reports tendered on the plea, that you have a genuine commitment to address the issues that led you to this offence. You were connected to a negative peer group which you have since abandoned. The writers of the bail report and the YSAS reports all speak very positively of the progress you have made demonstrating a sustained period of rehabilitation.

Sentencing considerations

1. Mr Van Arkadie who appeared on your behalf, highlighted the matters in mitigation that he relies on. First and foremost is your plea of guilty which was entered at the earliest opportunity. Further, I note that even on your arrest before interview, you confessed to the police as to your involvement in this offence. The plea of guilty in this instance is in my view indicative of remorse. It also facilitates the course of justice as it avoids the time and cost of a trial and most particularly, avoids the need for the victim in this case to give evidence in court and relive the event.

2. Over and above your plea of guilty I accept that you have genuine remorse. It is clear when reading the various reports and letters tendered that you have demonstrated insight and remorse in relation to the effect your crime had on the victim. You have also been greatly effected by the shame that you have brought on your family and your community and I have no doubt that this has had a salutary effect on you.

3. As noted, you are 19 and were 18 at the time of the offence. You were a very young man when this occurred and I take into account the sentencing principles in relation to youthful offenders. In this instance although the offending was serious and therefore the effect of those principles may be somewhat diminished, in my view given the stable environment from which you came and to which you have now returned, supports that you should be given an opportunity to focus on the positive aspects of your future as in my view you have great potential to be completely rehabilitated. In my opinion this is a case where a period of imprisonment would have an entirely negative effect in relation to your rehabilitation.

4. Ms Locke who appeared on behalf of the Director of Public Prosecutions also accepted that the circumstances of someone like you being involved in an offence such as this is bewildering. However she rightly acknowledges that this is a serious offence committed on the street at night and normally the starting point is a term of imprisonment. General deterrence and denunciation of your conduct are always important sentencing considerations in relation to this type of armed robbery.  Nonetheless, in the unique circumstances of this case she submitted that a community correction order is an appropriate disposition that would adequately deal with the sentencing considerations relevant to this case.

5. I had you assessed for a community correction order and you have been assessed as suitable. The writer of that report not surprisingly, has found you to be a low risk of reoffending.

Sentence

1. Mr Shire please stand.

2. Abdullahi Shire, on charge 1, armed robbery, you will be convicted and placed on a Community Correction Order for a period of two years.

3. On summary charge 3, dealing with property suspected of being the proceeds of crime, you will be convicted and placed on the same Community Correction Order.  

4. The Community Correction Order will be an order with punitive and therapeutic components. You will be required to complete 200 hours of community work and engage in programs to further address your drug use. 

5. Further, pursuant to section 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation condition may be credited as hours of unpaid community work.

6. Pursuant to section 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 18 months imprisonment with a non-parole period of 12 months.

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