Director of Public Prosecutions v Sidi

[2023] VCC 184

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-02176

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIDI MOHAMED SHEKHE SIDI

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JUDGE:	HIS HONOUR JUDGE TIWANA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2022
DATE OF SENTENCE:	13 February 2023
CASE MAY BE CITED AS:	DPP v Sidi
MEDIUM NEUTRAL CITATION:	[2023] VCC 184

REASONS FOR SENTENCE
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Subject:Criminal law – Sentence

Catchwords:              Attempted armed robbery – Obtain a financial advantage by deception – Possess a drug of dependence – Handling stolen goods – Committing an indictable offence whilst on bail – Serving prisoner – Totality – Youthful offender – Relevant criminal history – Guarded prospects of rehabilitation

Legislation Cited:      Crimes Act 1958; Drugs, Poisons and Controlled Substances Act 1981; Bail Act 1977; Confiscation Act 1997

Cases Cited:R v Mills [1998] 4 VR 235; Bugmy v The Queen (2013) 249 CLR 571; The Queen v Verdins (2007) VR 102

Sentence:                  16 months’ imprisonment in respect of this offending. New head sentence of 5 years’ imprisonment with a non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Cookson	Office of Public Prosecutions
For the Accused	Mr D. McGlone	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1Sidi Sidi, you have pleaded guilty on indictment to seven charges. Charge 1 is an offence of attempted armed robbery, contrary to s 321M and s 75A of the Crimes Act 1958. This offence carries a maximum penalty of 20 years’ imprisonment. Charges 2, 3, 4 and 5 are offences of attempting to obtain a financial advantage by deception, contrary to s 321M and s 82 of the Crimes Act 1958. This offence carries a maximum penalty of five years’ imprisonment. Charge 6 is an offence of possessing a drug of dependence, contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981. This offence carries a maximum penalty of five penalty units.[1] Charge 7 is an offence of handling stolen goods, contrary to s 88 of the Crimes Act 1958. This offence carries a maximum penalty of 15 years’ imprisonment.

[1]In the circumstances of this case.

2You have also consented to the Court hearing and have pleaded guilty to a summary charge of committing an indictable offence whilst on bail, contrary to s 30B Bail Act 1977. This offence carries a maximum penalty of 30 penalty units or three months’ imprisonment.

3On 18 November 2022, you were sentenced by His Honour Judge Wischusen to a term of four years and six months’ imprisonment with a non-parole period of three years in respect of a single charge of rape. Pre-sentence detention of 51 days was declared. You are currently serving this sentence.

Circumstances of the offending

4The circumstances of your offending are set out in the prosecution opening dated 7 December 2022.[2] Your counsel indicated that the opening was an agreed document. I will set out the facts of your offending briefly.

[2]Exhibit A.

5At the time of this offending you were on bail in respect of the charge of rape. You were 20 years old and living with your mother in Point Cook.

6On 3 February 2021 at 1:32am, CCTV footage showed a silver Audi SUV park in Albert Street, Footscray. You were in that vehicle, along with two others. Your unidentified co-offender exited the front passenger door and walked to a Commonwealth Bank ATM. He appeared to make a number of transactions between 1:33am and 1:40am. Footage from the bank showed the victim, Adnan Mirza walking past the ATM. Your co-offender approached Mr Mirza and asked him for assistance with withdrawing money. Your co-offender and Mr Mirza walked together for some 50 metres.

7At 1:42am, you exited the Audi and walked towards your co-offender and Mr Mirza. Your co-offender placed his arm around Mr Mirza’s shoulders and said ‘Give me whatever you have’. He told Mr Mirza that he had a weapon and told him ‘to feel it’. Mr Mirza felt your co-offender’s pocket and believed it to be the handle of a knife. He pushed your co-offender away and ran from the scene. These facts give rise to charge 1, attempted armed robbery. At the time of this offending you were on bail (summary charge – commit indictable offence whilst on bail).

8Mr Mirza took refuge in a laundromat and called triple zero and reported the matter to the police.

9In the early hours of 3 February 2021, the credit card of the victim, Sean Breasley, was stolen by unknown individuals. It is not alleged that you were involved in that theft.

10A number of unauthorised transactions were identified by Mr Breasley on his Commonwealth bank account. You were identified as attempting to transfer money from Mr Breasley’s account. Two of the attempted transfers were made out to a PayID in your name with a mobile service also in your name. Each of the transactions were reversed before you were able to obtain a financial advantage. The attempted transactions were as follows:

·        $3865 transferred via PayID 014[3] to ‘Skye Angel Turnbull’ at 1:46am. Ms Turnbull is your partner (Charge 2).

·        $200 transferred via PayID 625 to ‘Sidi Sidi’ at 1:51am (Charge 3).

·        $222,786 transferred from Mr Breasley’s smart access account to his complete access account at 1:52am[4] (Charge 4).

·        $10,000 transferred via PayID 625 to ‘Sidi Sidi’ at 2:01am (Charge 5).

[3]Only the last three digits are revealed in these reasons.

[4]Intention being to ultimately transfer the money to yourself.

11Checks conducted by the police on phone number ending with 625 revealed that it was registered in your name. Analysis of all charge records on this number indicated the service was ‘polling’ from Chetwynd Street, North Melbourne at 1:20am on 3 February 2021 and at Sunshine Road, Footscray West at 1:46am.

12At approximately 3:36pm on 3 February 2021, you were arrested from your home address.

13A small snap lock bag containing cannabis was seized from inside a leather satchel located in a rear bedroom of your house (Charge 6).

14Following a pat-down search of you, an iPhone 8 belonging to a Stuart McGushin was seized from your trouser pocket (Charge 7). This phone had been stolen by persons unknown at around 1:10am on 3 February 2021. It is not alleged that you were involved in this theft.

15Photographs from Mr McGushin’s phone taken at 4:18am on 3 February 2021 by you, captured images of the debit cards, Medicare card and drivers licence belonging to Adam Lodders. Mr Lodders’ cards  were also  stolen in the early hours  of 3 February 2021. They were not recovered. Again, it is not alleged that you were involved in their theft.

16You were taken to Melbourne West police station and interviewed in respect of a number of offences, including the ones to which you have ultimately pleaded guilty. No relevant admissions were made by you.

17You were remanded in custody and were granted bail on 12 November 2021.

Personal circumstances

18I have taken into account your background as set out in Ms Cidoni’s psychological report dated 31 October 2022.[5]

[5]Exhibit 2.

19You were born in Australia and are of Somali background. Your parents came to Australia to escape the war in Somalia. You have one half-brother who was born in Kenya. You have five younger biological siblings, all born in Australia. You grew up in an environment of family violence. Not only did you observe your mother being physically abused by your father, but you were also the victim of his abuse. Your parents separated when you were aged 10. You remained living with your mother and your siblings. Your father returned to Africa. You were resentful of your father’s absence from your life. Your half-brother has endured mental health issues. As your mother worked long hours, you were required to care for your siblings.

20You attended a number of different schools, including three primary schools and two high schools. You struggled academically and were subjected to bullying. You were suspended on a number of occasions due to your involvement in fights.

21At the age of 14, you were involved in a serious motor vehicle accident and were concerned as to whether you would be able to walk again. During this period of some 18 months, you were home schooled. You left school in Year 10. You then worked in retail and in a warehouse. You commenced but did not complete a pre-apprenticeship course in carpentry in 2018. More recently, you worked with your cousin for some five months in a carpentry job. You have indicated an intention to complete your apprenticeship in carpentry.

22You have a significant history of substance abuse. You were introduced to cannabis by your older half-brother at the age of 17 and have been using it regularly for at least four years. You have also regularly abused cocaine and MDMA.

23The family moved from Malvern to Tarneit due to your mother’s employment in the aged-care sector. You began associating with African peers and became embroiled in drugs and criminal activity.

24You have suffered several traumatic events in your life. This includes violence at home, the motor vehicle accident at the age of 14, the loss of close friends in car accidents and through drug overdoses, and the recent loss of your grandmother.

25Ms Cidoni has diagnosed you with a generalised anxiety disorder with depressed mood, post-traumatic stress disorder, and substance use disorder. She has assessed you as having a low IQ and dependant personality traits with a lack of initiative and autonomy. Whilst your counsel did not make any submissions in respect of Bugmy[6] or Verdins[7] principles, I take into account your background and your mental health in the sentencing process.

[6]Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy’).   

[7]The Queen v Verdins (2007) VR 102 (‘Verdins’).

Criminal History

26You have a relevant criminal history. You have two appearances before the Children’s Court for offences of retention of stolen property, commit indictable offence whilst on bail, theft and deal with property suspected to be proceeds of crime. On each of your two appearances, you were sentenced without conviction to an adjourned undertaking. You appeared before the Melbourne Magistrates’ Court in October 2019, for a single offence of theft in respect of which you were fined without conviction. You appeared before this Court on 18 December 2019, and  were sentenced to 18 months in a Youth Justice Centre for offences of home invasion, armed robbery and attempted armed robbery. As mentioned earlier, you were sentenced by this Court on 18 November 2022, for an offence of rape to a term of four years and six months’ imprisonment with a non-parole period of three years.

Objective gravity

27The maximum sentence of 20 years’ imprisonment for attempted armed robbery makes plain the seriousness of this offence. The offending occurred in the early hours of the morning and involved you targeting an innocent passer-by. It was committed in company which would have heightened the fear your victim felt.[8] Whilst your co-offender played the prominent role in the offending, by your plea you accept that you were complicit. A threat was made to your victim to induce him to part with his property, in circumstances where he was led to believe that your co-offender was in possession of a knife. The victim was able to run away. At the time of this offending you were on bail.

[8]No victim impact statement has been filed.

28The sentence I impose in respect of the attempted armed robbery must send out a message to anyone who may be inclined to commit similar offending, that such offending will be met with stern punishment. The community must be protected and your conduct denounced.

29The offences of attempting to obtain a financial advantage by deception, charges 2 through to 5, related to a single victim and were committed in close proximity to the attempted armed robbery. Over a period of some minutes, you attempted to transfer money from the victim’s bank account. I accept that the offending was unsophisticated. Two of the transfers were made using your own Pay ID. One of the transfers was made into your partner’s account. These three transactions were reversed before you were able to obtain the financial advantage. The transfer in respect of charge 4, involved you transferring $222,786 from one of the victim’s accounts to another but the money did not make it into your account as you intended.

30You have a relevant prior history involving offences of dishonesty and violence. In particular, this offending was committed by you following your release from a sentence of 18 months in a Youth Justice Centre. That sentence was imposed in respect of a home invasion, armed robbery and an attempted armed robbery. Accordingly, deterring you from further offending has a role to play in the sentencing exercise.

31Your youth and fairly limited, although serious, criminal history requires the Court to give you every opportunity to rehabilitate. I must pay regard to the well-established principles in R v Mills.[9] 

[9][1998] 4 VR 235.

32However, at this stage I cannot be overly optimistic as far as your rehabilitation is concerned. It is encouraging that you have maintained a close relationship with your mother. You have also been in a settled relationship with your girlfriend since the age of 18.

Matters in mitigation

33This matter resolved at a directions hearing on 13 July 2022. I was told that a number of other alleged charges were withdrawn. In those circumstances, it is not contended that you pleas of guilty were not early. Your pleas of guilty entitles you to a significant discount. You have saved valuable court time and expense, facilitated the course of justice and have accepted responsibility for your actions. Your plea of guilty must be accorded an additional and palpable discount at a time when the Court is facing an increased backlog of trials.

34At the time of the offending you were aged 20. You are now 22 years old. As I have already observed, I must pay regard to your youth and rehabilitation.

35On your behalf, Mr McGlone highlighted your difficult background and your mental health issues. He emphasised your pleas of guilty, your youth and the importance of totality. He submitted that the 283 days that you have done on remand for these offences should be considered sufficient to meet all the sentencing objectives in your case. In the alternative, he submitted that if a longer sentence of custody was required, I should not interfere with the non-parole period.

36Mr Cookson, on behalf of the prosecution took no issue with the matters raised in mitigation which included your pleas of guilty, youthfulness, and the importance of fostering rehabilitation. He took no issue with your background and mental state.

37Mr Cookson submitted that general and specific deterrence were important considerations. The attempted armed robbery was committed in company against a background of relevant priors for dishonesty and violence, Further, this offending was committed whilst you were on bail. He submitted that the offending called for a term of imprisonment that would require a non-parole period.

Sentencing

38I have carefully read and considered the sentence imposed by His Honour Judge Wischusen in respect of the rape charge on 18 November 2022. It is not clear why His Honour was not made aware of this matter. Bearing in mind you had indicated an intention to plead guilty in July 2022, and were arraigned on these matters on 6 September 2022, this matter should have been heard along with the charge of rape. I must bear in mind the principle of totality in sentencing you. This principle not only applies to the offending before me but also totality with the current sentence you are serving. In considering totality, I must also give effect to the promotion of your rehabilitation. The charges before me represent separate and distinct offending from the sexual offending in respect of which you are serving a sentence. In addition, this offending was committed whilst you were on bail. Accordingly, in giving effect to the principle of totality and your rehabilitation, in addition to the other sentencing purposes, a degree of cumulation is appropriate. Pursuant to s 14 of the Sentencing Act 1991, I am required to set a new non-parole period. However, I do not intend to interfere with your current non-parole period.

39Having taken into consideration all relevant sentencing factors and principles, you are sentenced as follows:

40On charge 1, attempted armed robbery, you are convicted and sentenced to 15 months’ imprisonment.

41On charges 2, 3, 4 and 5, attempting to obtain a financial advantage by deception, you are convicted and sentenced to an aggregate term of 5 months’ imprisonment.

42On charge 6, possessing a drug of dependence, you are convicted and fined $200.

43On charge 7, handling stolen goods you are convicted and sentenced to 3 months’ imprisonment.

44In respect of the summary charge of committing an indictable offence on bail, you will be convicted and fined $300.

45The sentence on charge 1 will be the base sentence. One month of the aggregate sentence in respect of charges 2, 3, 4 and 5 will be served cumulatively upon charge 1.

46This results in a total effective sentence of 16 months’ imprisonment.

47I direct that 6 months of this sentence be served cumulatively upon the sentence you are currently serving. In other words the head sentence imposed by His Honour Judge Wischusen of 4 years and 6 months will now be a head sentence of 5 years’ imprisonment.

48The non-parole period will remain 3 years commencing on the 18 November 2022, the date you were sentenced in respect of the rape. I have not interfered with your minimum term. This will give you the opportunity of structured support and treatment in the community in order to maximise your rehabilitative prospects. Of course, the granting of parole is a matter for the Adult Parole Board.

49In respect of the sentence you are currently serving you were credited 51 days of pre-sentence detention. You are entitled to further pre-sentence detention in respect of this offending.

Pre-sentence detention

50Pursuant to s 18 of the Sentencing Act 1991, the period of 283 days of pre-sentence detention is hereby declared as having already been served in respect of this sentence, and I order that such declaration and its details be entered in the Court’s records.

Section 6AAA declaration

51Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty, I would have sentenced you to a term of 2 years and 6 months’ imprisonment with a non-parole period of 18 months’ imprisonment.

Disposal orders

52Pursuant to s 78(1) of the Confiscation Act 1997, I grant the disposal order sought in respect of the cannabis.