Director of Public Prosecutions v Wasame

[2017] VCC 191

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01097

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEK WASAME

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 March 2017
CASE MAY BE CITED AS:	DPP v Wasame
MEDIUM NEUTRAL CITATION:	[2017] VCC 191

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill
For the Accused	Mr M. Thomas

HER HONOUR:

1Dek Wasame, you have pleaded guilty to one charge of recklessly causing serious injury, and one charge of being a non-prohibited person using a unregistered Category A or B long arm.

2You have also sought to appeal a six-month prison sentence imposed upon you at the Magistrates' Court on 18 April 2016 on four charges, they being:  possession of cartridge ammunition; possession of an unregistered firearm; trafficking methylamphetamine, and; possession of a prohibited weapon.

3I will turn to the factual scenario underlying the charges of recklessly causing serious injury, and use of the unregistered long arm. 

4This offending occurred on 26 January 2016.  You and the victim had met through friends in about 2014.  It is agreed that both of you were drug users, and had met in that context, and associated in that context.  The drug used by each of you was methylamphetamine. 

5You had developed an aggressive and bullying approach towards the victim, and in the days leading up to the offending, you had been continually trying to contact him via his mobile phone.

6The complainant, who was scared of you, was not returning either your calls or your many SMS messages.  Often the text messages you sent were threatening in nature, and at least on one occasion, you threatened to kill him.

7At about 7.15 am on 26 January 2016, you were driven by your cousin to a house in McLennan Street, Braybrook, which was a recognised "drug house".  At that time, you were armed with a 12-gauge sawn off shotgun, which you were carrying in a black bag.  On your arrival at the house, you took the gun from the bag and sat in the lounge room, cleaning the weapon.

8About half an hour later, three women attended the premises, and you returned the gun to the bag.  Soon after the arrival of those three women, the victim arrived, he being unaware that you were in the house.

9The victim quickly heard your voice once he entered the premises.  You confronted him, and angrily asked him why he had not been returning your calls.  The two of you moved into the kitchen, where you produced the shotgun from the bag.

10The complainant at that stage became fearful, believing he would be killed, and you threatened him with the firearm and then struck him about the head with the stock of the weapon, causing pain.  Your actions in assaulting the victim in that way underlie Charge 2 on the indictment, use of an unregistered long arm.

11Some of the other people in the house tried to calm you, but you would not be calmed, and you threatened to shoot the victim.  Another person at the house approached you to intervene, but you threatened him as well, saying you would shoot him if he touched you. 

12You and the victim were in the kitchen, at which stage you were both yelling at the victim and angrily waving the shotgun around.  During those actions, the shotgun discharged and lead shot from that shotgun struck the victim in the left knee, causing serious injury.

13Immediately afterwards, you fled from the premises, although it is agreed that you called out to other people to call an ambulance, and that the victim had been seriously hurt.  In any event, after doing this, you fled the scene.

14Police and ambulance arrived, and you were identified to police as the person who had fired the shot, and an investigation was commenced immediately.  The victim was conveyed by ambulance to the Royal Melbourne Hospital, where he was treated for a gunshot wound to his knee, and remained in hospital for a number of weeks. 

15Photographs of that injury were tendered on the plea.  It is quite clear the shot was extremely serious, and indeed the learned prosecutor on the plea categorised that injury as a serious example of a serious injury.  It is an assessment that I agree with.  It is quite clear that there is a very large shotgun wound to the front and at the back of the knee, where the ammunition exited.  And it is quite clear from the medical report that very great physical damage was done to that knee joint.

16No further medical material was able to be produced as to the progress of the victim, although he attended court about a week ago in relation to proceedings arising from these charges,  that is, on a contested plea matter, if you like, ultimately resolving in the charge of recklessly causing serious injury. It was agreed by both counsel that the victim was still at that stage, more than a year later, walking with a cane.  It can only be assumed that the injury will be an ongoing and long-lasting one.  The victim has never compiled a victim impact statement.

17Ultimately, you were arrested by police about three hours after the shooting, when you presented to the Sunshine Police Station watch house to report on bail for other matters which were in fact the subject of the appeal.  You were arrested and interviewed later that day, and indeed in that record of interview, made a number of denials about your role, telling police you had left the house, and played no part in it.  It was conceded by your counsel that that record of interview was a pack of lies.

18I now turn to the circumstances underlying the appeal also before this court.  On 20 June 2015 at about ten to 5 in the morning, two police conducted a patrol of the Deer Park Hotel car park.  A check was conducted on a white Mercedes Benz, registration of which was found to be false.  Police located you asleep in the car in the front passenger seat.  You were wearing a black-coloured satchel bag.  You were awoken and told to get out of the car, and a search of the bag located a small container with 322 rounds inside, a homemade handgun without a serial number, a double-bladed Smith & Wesson knife, and a knife with a black handle. 

19You gave police a false name.  You were then taken to the Sunshine Police Station, where you made partial admissions in a record of interview.  You were not the holder of any category firearm. 

20On 7 July 2015, you attended the Sunshine Police Station and made a statement to police regarding your involvement in the incident, during which you made admissions to trafficking, on one occasion, about 6 grams of methamphetamine.  This information, resulting in the charge against you, was entirely voluntary, and arose in the context of you giving information to police about other persons who owned the car, who had provided you with the weapon, and who it would appear, in a criminal sense, you were working for at the time.

21I now turn to your personal circumstances.  You are 27 years of age.  You and your family came from Somalia to Australia when you were seven, in about 1996.  Your family has had a traumatic history.  Your father was gaoled by the military for a period of about ten years.  You have a number of uncles who were executed by the regime before you were born.

22At the time that your family fled Somalia in 1991, you were the youngest of their six children, aged only two, and for about five years, lived in a refugee camp in Kenya.  This, your counsel informed me, was an extremely violent experience for you and all your family.  Rape and violence were common in the camp, as was standover brute force, if you like, and these are memories, it would appear, that have bedevilled you, as they no doubt have bedevilled the rest of your family, ever since.

23On your family's immigration to Australia, you settled in the Braybrook area. 

24HER HONOUR:  Two further siblings were born in the years your family were in the camp, and one further child was born in Australia.

25Your family, it appears, has done well here.  Your father, and I received references to this effect, is active in the Ethiopian community, and is a respected elder person, who has worked on a voluntary basis for many years, assisting other refugees from his country who have settled here.

26You are the only member of your family to get into any trouble with police.  I was informed also by your counsel that your family is a religious family of the Islamic faith, a law-abiding family and a close family. All of those who are not still at school are engaged in lawful and gainful employment. 

27And indeed, this is a path you began.  You attended both primary and secondary school in the Braybook area, completing Year 12 at Braybrook High School.  You then began a civil engineering course at Victoria University, but decided that you would rather work and earn money and for the next five years, were gainfully employed as a forklift driver at two warehouses, Fosters Logistics and Chain Logistics.

28You have a limited prior criminal history, which begins in 2013 with a threat to kill, which apparently arose out of an argument you had with an instructor in a course that you required for your forklift ticket, without which you were unable to be employed.  It appears, obviously, things escalated and you were charged in that way.

29In 2012, you had an accident whilst driving your forklift, causing damage to stock.  Your counsel informed me that you believed it was not your fault, but you were sacked.  You found yourself in a position where, despite your best efforts, you were unable to be further employed. In the years that you were working, you had bought a car on finance.  After you lost your job, you fell behind in your payments and the car was repossessed. You became depressed and visited a GP, who put you on antidepressants.  You trialled them for about two months, which is far too short a time, as that is about how long they take to have any effect, and discontinued their use.  So you were eventually wandering around, depressed and unemployed, met up with old associates from the area who you had gone to school with, who were in a similar situation, and were ultimately introduced to methamphetamine in about September or October of 2012.

30This was described by your counsel as your gateway drug.  That is, there was no introduction to it via what might be seen as less potent drugs, such as marijuana.  In ten months, you apparently went from occasional use to daily use.  And drugs became the focus of your life. 

31Like so many before you, your drug use ultimately resulted in personality change, and in you, you having always lived at home, spending more and more time away from your family.  Ultimately there was a break, and you were effectively made homeless.  Your family did not want you home, and at that stage you became very much part of the drug world, so that by 2015, you were effectively in the employ of criminal enterprises, selling drugs, and by 2016, had been living in that world for at least a couple of years. Then you became involved in the shooting on Australia Day.

32I received references from persons within the - if I can put it this way, African community.  I recognise African is not the correct term for your own nationality, you are Somali.  But large numbers of people from Sudan, from Ethiopia, from Somalia, have settled in the western suburbs, and so there is sort of a general organisation.  However, the references spoke to the volunteer work you had been involved in over the years, the respect in which your family is held within the African community, and the sporting activities you had undertaken.  You played basketball and soccer.  I am satisfied you come from a law-abiding and close, supportive family. 

33Once you were arrested for the offending on 26 January, you were placed in custody, and you have remained there ever since.  I am satisfied that you have used your time there well.  I received a number of certificates as to courses undertaken by you through the Kangan Institute.  And they are, in my view, quite meaningful.  One is a certificate in construction, and another is a Certificate II in Cleaning Operations. 

34Significantly, you have undertaken three drug and alcohol courses, in particular the highly-respected and quite demanding Caraniche 24-hour Stream Treatment Program, which as I note from Ms Bowers, who is the Caraniche clinician overseeing the implementation of this program, is a structured program focusing on prisoners who have problems with drug use, alcohol use, or both.  And I note here that apparently you were also abusing alcohol to some extent. 

35She stated:  "The sessions deal with education, beginning the change process and moving forward, as well as introducing some of the underlying emotions, struggles and beliefs that are common to prisoners who use drugs."  It was noted that you had successfully completed the 24 drug and alcohol treatment program. 

36Your counsel also informed me that at the height of your use, you were suffering from auditory as well as visual hallucinations, in particular auditory hallucinations being voices of the dead, that is, those who were killed, that you saw being killed, when you were living in the camp as a little boy.  You have never had treatment for the trauma that you would have experienced and undergone in those years.

37You have, throughout your stay at both the MAP, at Loddon Prison, and at Port Phillip Prison, held positions as a billet, which is a trusted position.  At the MAP, you were a floor-billet.  That is impressive, because MAP is the first stop.  So you almost immediately, once you have been placed in custody, and detoxed fairly quickly, it would seem, been given a position of trust.  You have worked as a painting billet, a kitchen billet, and you are now a bin billet.

38Most importantly, during your time in gaol, you have re-established your relationship with your family, who visit you weekly, and in particular with your father, who has, I am informed by your counsel, not missed a visit.  I also note that your parents, two sisters and a brother attended to support you during the plea today. 

39It was submitted to me by your counsel that I should consider a combination disposition, that is, a disposition which involved both gaol and a community corrections order, but ultimately in my view, the offending on 26 January is simply too serious for me to consider, or to impose this in this case.  The very serious injury that you inflicted upon your victim, the very criminal nature of the weapon that you used, in my view, mean that a combination disposition does not sufficiently reflect the principle of general deterrence that is necessary in this case, that is, the need for the court to send a message to the community that criminal behaviour of this kind will not be tolerated and will be met with a very severe response.

40At the same time, it is my view that you have good prospects of rehabilitation.  You did not offend in a particularly serious way until you were in your late-20s.  Once removed from the criminal milieu that you were involved in, you have responded quickly and well, as indicated by the positions of trust you have held within the gaol, and by the courses that you have undertaken, and by the fact that you clearly re-established a good relationship with your family.  And that is important, because a court can be confident that you have good, strong, law-abiding structure awaiting you once you leave gaol.

41In my view, the appropriate way for this court to deal with you in a way which reflects both the seriousness of your offending, and the mitigatory factors.  That is, the factors in favour in this case is by way of a head sentence with a minimum term, with a more-than-usual period between maximum and minimum term.

42In sentencing you, I take into account your plea of guilty, which it is conceded by the prosecution was made at an early stage.  Notwithstanding that there was a contested plea hearing, the offer of a recklessly causing serious injury plea was made at a very early, pre-committal stage.  I also take into account your relative lack of prior convictions, your progress since arrest, your very good family, as I have stated, and the other positive circumstances in your life, which I have already referred to.

43I therefore sentence you as follows, could you stand up please, sir?

44On the charge of recklessly causing serious injury, I sentence you to a term of imprisonment of three years and three months' imprisonment.  On the charge of non-prohibited use of an unregistered firearm, I sentence you to four months' imprisonment. 

45I order that two months of that sentence be imposed cumulatively to the sentence imposed on Charge 1.

46In relation to the appeal, I set aside the order of the learned magistrate, and I sentence you to a term of three months.  One month of that sentence will be served cumulatively to the sentence imposed on Charges 1 and 2 on the indictment.  It should give a total effective sentence of three years and six months.  Does that add up?

47COUNSEL:  Yes Your Honour.

48HER HONOUR:  I order that you serve a minimum term of two years and three months before becoming eligible for parole.

49I declare that 404 days of that sentence have already been served by way of presentence detention.

50MR HAMMILL:  Does Your Honour make the orders that were sought?  Disposals, forfeitures?

51HER HONOUR:  Yes, I do make those orders, of course I do.  Yes, thank you.  Do you understand?

52OFFENDER:  Yes Your Honour.

53HER HONOUR:  All right.  So you have got a bit more time to go, all right?  So two years and three months.

54MR HAMMILL:  Does Your Honour make a s.6AAA declaration?

55HER HONOUR:  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a maximum term of five year, and ordered that you serve a minimum term of three years and six months.

56I also make the point that I note that at the time you made your record of interview, you were under the influence of methamphetamine, and your counsel informed me, had not slept for several days.  Have a seat sir, thank you.

57MR HAMMILL:  As Your Honour pleases.

58MR THOMAS:  Sorry Your Honour, just - as I understand it, Charge 2, it is a fine only on the appeal, but if I am wrong, I am happy to be wrong.

59HER HONOUR:  No, thank you for that.  It is very, very easy to do that.  Yes, all right.  So which one is it?

60MR THOMAS:  On the appeal?  Possess cartridge ammunition.  I believe that there is ‑ ‑ ‑

61HER HONOUR:  I thought you could do a gaol sentence for that one?

62MR THOMAS:  Forty penalty units.

63HER HONOUR:  Forty penalty units.  All right.  So in relation to Charges 2, 3 and 4, it is an aggregate term of - I think I said three months?

64MR HAMMILL:  Three with one, yes.

65HER HONOUR:  Yes.  And in relation to the charge of possessing cartridge ammunition - I am imposing a fine of $100.

66COUNSEL:  As Your Honour pleases.

67HER HONOUR:  You can convert that to time, if you wish,
Mr Thomas will explain that to you.  All right, now I will just sign those - you can fill in, counsel, on the form.

68COUNSEL:  Yes Your Honour.

69HER HONOUR:  Thank you.  Is there a s.464ZF application in this?

70MR HAMMILL:  There should be one up there, Your Honour.

71HER HONOUR:  I just need to explain that.  Could you stand up again please, Mr Wasame?  I am ordering the police take a forensic sample from you, which will basically be a swab from your mouth.  I need to tell you that if you resist police taking this, they are entitled to use reasonable force to take it, all right?  So you just open your mouth and they will take a swab.  All right thank you, have a seat sir.

72That should be all.  I will just hand your certificates back to you, Mr Thomas.  Thank you.  Does that take care of everything?

73MR THOMAS:  Yes Your Honour.

74MR HAMMILL:  Yes Your Honour.

75HER HONOUR:  Thank you.  I thank counsel for their assistance in this matter.

76COUNSEL:  If Your Honour pleases.

77HER HONOUR:  Thank you, we will adjourn to - yes, 10.30 tomorrow.  Thank you.

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