Director of Public Prosecutions v Yousif

[2017] VCC 968

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00531

DIRECTOR OF PUBLIC PROSECUTIONS

v

GIRGIS YOUSIF

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 July 2017
CASE MAY BE CITED AS:	DPP v Yousif
MEDIUM NEUTRAL CITATION:	[2017] VCC 968

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mytytowycz
For the Accused	Ms L. Torres

Pages 1 - 12

 

 

HIS HONOUR: 

1Girgis Yousif, you have pleaded guilty to the following offences; 

·Armed robbery which carries a maximum of 25 years' imprisonment;

·Driving whilst disqualified which as a first offence carries a maximum penalty of four months or 30 penalty units;

·Driving an unregistered vehicle which as a second offence carries a maximum of 50 penalty units;

·Careless driving which as a first offence carries a maximum of 12 penalty units;

·Failing to assist at an accident which as a subsequent s.61 offence carries not less than 14 days and not more than one month or ten penalty units as a penalty; and

·Exceeding the concentration of prescribed alcohol within three hours after driving with a reading of .082.  This was a second offence and that carries a period of up to six months' imprisonment or 60 penalty units.

2The Crown tendered a summary of prosecution opening on plea as Exhibit A.  A brief summary of your offending is as follows. 

3On 24 December 2016 at about 7.30 pm, you and your co-offender David Tong went to the 7-Eleven on Flemington Road, Flemington.  You drove your car which was previously registered in your name.  You were not disguised and on the contrary, your appearance was distinctive as you had a comb fixed in your beard.  You entered the 7-Eleven and asked the attendant for a packet of cigarettes.  As he turned around, you pulled a knife from under your shirt.  Your co-offender Tong joined you at the counter.  

4As noted by the prosecutor, although you produced a knife and demanded money from the attendant, you did not wave or brandish the knife in any particular manner.  I pause to note and say this was borne out by the CCTV footage.  In fact, as noted during the plea, it was your co-offender who seemed more agitated or animated than you.  Nevertheless, the attendant told police he was frightened by the production of the knife and he complied by giving you all the large notes contained in the till.  That is the basis for Charge 1. 

5The attendant was able to give a comprehensive description of both you and Tong to the police.  That description included the fact that you had a comb fixed in your beard.  You and the co-offender returned to your car and drove off towards Footscray.  Shortly after leaving the 7-Eleven, you were involved in a car nose-to-tail accident which rendered your car undrivable. 

6You got out of the car and felt dazed.  You walked or ran a short distance and then lay down on the grass at the side of the road and waited for the police.  When the police found you, the comb was still attached to your beard.  You were breath-tested by police and returned a reading of 0.082 per cent.  At the time you were driving, you were disqualified from driving, your vehicle was unregistered and due to the fact that you had run into the rear of the other car, you were charged with careless driving.  When you left the car, you did nothing to render assistance to the other driver.

7The police made several attempts to conduct a record of interview with you.  The answers you gave to the police indicated that you were still under the influence of alcohol and/or drugs.  You were remanded in custody and you have now spent 202 days’ in pre-sentence detention. 

8I also note at this point also that in November 2015, you were remanded in custody after you were arrested on the suspicion of having committed an armed robbery.  That charge was continued at some point in 2016.  In June 2016, you were sentenced to a period of six months' imprisonment for other offences.  You were released from custody on 6 December 2016 and then arrested for these offences on 24 December 2016. 

9The net effect of all of this is that between November 2015 to December 2016, you spent seven months on remand doing "dead time".  This period is in addition to the 202 days that you have served on remand.  I will return to the question of the effect of this seven months later in these remarks. 

10The offence of armed robbery is a serious one.  This is reflected in the fact that it carries a maximum period of imprisonment of 25 years.  Your offending was serious as you chose a soft target.  The victim of your armed robbery was working in a convenience store by himself.  The store itself and the victim were the classic soft targets.  In other words, there was little chance that any resistance would be offered.  In fact, the victim stated he was frightened, and therefore, he did all he could to comply with your demands. 

11The community is sick and tired of these types of offences being committed against people who perform a valuable service, often at all hours of the day and night.  All workers are entitled to feel safe in their workplace and those who serve the public should be able to do so without the threat of frightening and violent crimes being committed against them.

12Sentencing principles of general deterrence, denunciation and protection of the community must loom large in the sentence I impose upon you.  Nevertheless, it was submitted by the prosecution and of course, by your counsel that your offending on this occasion was unsophisticated.  You were not disguised, you drove your own car and you were arrested with your still distinctive comb lodged in your beard.

13I turn to your personal circumstances.  You were 28 years of age and born in March 1989.  You are the second oldest of four children.  Although you were born in Sudan, you came to Australia at an early age.  You had a traumatic childhood.  Your father was addicted to gambling which meant that the family was constantly and chronically short of money. 

14As a consequence, you moved houses and schools many times.  Your father was constantly violent towards your mother.  You intervened on many occasions and so you yourself were assaulted.  Sometimes, your father would assault your mother in a locked room so that you were powerless to act.

15You had significant behavioural problems as a child and as a teenager.  It is likely that you also suffered from significant learning disabilities.  You told the psychologist, Alison Mynard, that you can barely write.  With this, I am not sure even how much you can read and I suspect that you also have difficulties with reading.  You were disruptive at school and you felt that you did not learn whilst you were there.  As a consequence, you left school early in Year 10 but you have had only limited work as a labourer over the years. 

16You have been a drug user since an early age.  You started with cannabis and alcohol and then in your late teens, you moved to heroin.  By the time you were 22, you had started using methylamphetamines and until you were placed in custody on 24 December 2016, you had used most days.  You found the grip of this drug almost impossible to break. 

17It is necessary to return to your family dynamics.  Although your family life was very much disrupted by your father's gambling addiction and violence, you remained close to your mother and younger sister over the years.  You had an older sister with whom you constantly fought.  She moved to Sydney and she married a Sudanese man.  You had been arguing with her over a family matter and you had not resolved your differences when you learned that your sister's husband had brutally stabbed her to death.  He is now serving a sentence in New South Wales for manslaughter.  You were only 23 years of age at the time of your sister's death. 

18It goes without saying that your sister's death had an devastating impact on your family.  It seems that your drug use, combined with a constant intake of alcohol only increased after this terrible event. 

19You have a very long list of prior convictions dating back to 2008.  For the most part, you have committed offences of dishonesty which I am told were committed in order to feed your various addictions. 

20Significantly, you have two priors for robbery and one for attempted robbery.  You have also failed to comply with community corrections orders in the past.  However, I do note that of recent times, it appears that you have complied with and completed orders in 2014 and 2015.  Nevertheless, it is apparent that I must impose a measure of specific deterrence in the sentence I impose. 

21I was provided with a psychological report of Ms Alison Mynard dated 2 July 2017.  Ms Mynard assessed you in custody on 30 June 2017.  Ms Mynard tested you and found that you suffer from a major depressive disorder, a generalised anxiety disorder and post-traumatic stress disorder.  She also considers that arising from your chronic drug abuse, you suffered disorders relating to your dependence on alcohol, cannabis and methylamphetamine.

22In discussions with your counsel and the prosecutor, I stated that I would not rely on the psychologist's findings that you suffer from an intellectual disability or from psychosis. Ms Mynard formed the view that you suffered from an intellectual disability based on her impression of you rather than on testing.

23I further consider that the psychosis conclusion is to be found within the province of a medical specialist rather than a psychologist.  Whereas
Ms Mynard considered that you may have suffered from learning disabilities, this appears to be an opinion based on what you told her rather than the conclusion from specific testing. 

24I should note that your counsel, Ms Torres, specifically disavowed any reliance on the principles in Verdins as influencing your offending or making your time in custody harder.  To the contrary, it appears that you have made the most of your time in custody.  In fact, you told Ms Torres that you welcomed your arrest as it broke the cycle of drug taking.  You expressed remorse to your counsel and to the psychologist. 

25In this respect, the prosecutor submitted that your remorse is somewhat generalised.  It is probably as much an expression of insight that you were sick of the cycle of your life to date.  I will take it as a limited expression of remorse.  Your determination to educate yourself in prison has been commendable.  A large number of certificates of completion were tendered on the plea.  They indicate that you have undertaken a wide variety of courses in an effort to maximise your opportunities upon your release not only to work but to show greater awareness of the society around you. 

26In addition to this, you completed ten individual sessions of counselling in relation to substance abuse and offending behaviour with a psychologist in prison.  Your urine analysis results show that you have remained drug free whilst in prison.  The letter of Dr Min Yun Seh shows that you have good potential to "unlearn poor offending behaviours". 

27All of these self-starting initiatives give me some hope that you have started a path which may just lead to you breaking the drugs offending cycle.  It is however necessary to remain realistic.  It is a very difficult path and you have only just started it.  It will be necessary to provide you with a full framework of support upon your release from custody to assist you in your reintegration back into society. 

28Ms Torres submitted that the nature of the offending was serious but your level of offending was relatively low on the scale of a serious offence.  The Crown took me to the sentencing principles applicable in this case and noted from your prior convictions that although you had breached community orders in the past, you had also complied with orders in more recent times.  It was submitted on your behalf that the following matters should mitigate the sentence I impose upon you. 

29First, your early plea of guilty has a utilitarian effect.  Second, in addition to other expressions of remorse, the plea of guilty was itself an expression of remorse.  Next, you have shown more insight into your offending during this period of imprisonment than previously.  You have good family support upon your release from prison.  You still have the love and support of your mother who was present for your plea hearing. 

30Next, it was submitted you have taken great efforts to educate yourself whilst in prison.  Next, it was submitted that you have remained drug free.  And finally, that this will represent your first time in the original jurisdiction of this court and this represents your first long sentence. 

31The Crown submitted that the nature of the offence was serious but that the level of your offending was relatively low and certainly unsophisticated.  After taking me to the applicable sentencing principles, the Crown submitted that your prior convictions for previous robberies and your non-compliance with community orders were of some concern.  But I note that you have not breached community orders in 2014 and 2015. 

32Ms Mykytowycz submitted that the Crown accepted that you had a troubled childhood and you had suffered when your sister was murdered.  The Crown further accepted that you had gone to great lengths to educate yourself in custody.  Ms Mykytowycz submitted that a combination sentence was within the range for your offending.  A combination sentence allows a court to impose a period of up to 12 months' imprisonment in combination with a community corrections order. 

33In my opinion, such a disposition is inappropriate in this case.  It is necessary for me to explain why I believe this to be so.  As I have already noted, you have served a period of seven months, which I have called "dead time imprisonment", on remand.  Under the principles enunciated in the Court of Appeal in the case of Karpinkski, at paragraphs 39 and 66, I am able to take into account the fact that time was served.  In addition, in this case, it is particularly pertinent as it was served immediately before you were arrested for this offending and it was a period of 205 days.  Furthermore, you have been on remand for this offending for nearly seven months. 

34Section 44 of the Sentencing Act enables me to impose a combination sentence of imprisonment and a CCO if the prison portion to be served does not exceed
12 months.  Whilst there are cases such as DPP v Grech, R v Hutchinson and R v Hewl which enable me to impose a further period of up to 12 months from this point, I could only do so by in effect ignoring the "dead time" and by not making a declaration as to the time you had served in prison for this offending already. 

35In this case, I do not consider that there are compelling reasons to ignore the time you have done already.  In fact to order a further period of imprisonment of up to 12 months and then to impose a CCO on top of that, and without taking into account the nearly 14 months you have served since late 2015, would be in my opinion to impose a sentence that was disproportionate to your offending and to your personal circumstances. 

36In the circumstances, I have decided to impose a period of imprisonment with a head sentence and a non-parole period.  The prospect of applying to be released on parole is one that many prisoners find daunting.  However, it is clear to me that you are working very hard towards your rehabilitation and that you are maintaining a high standard of behaviour whilst in prison. 

37As I indicated earlier, parole if granted could provide you with the opportunity to step back into society with a solid framework of support and supervision to guide you in your efforts to reintegrate and normalise back into society.  In doing so, I broadly take into account the period of time you spent on remand where the charge was not pursued.  So the sentences that I impose on you, Mr Yousif, are as follows;

·On the charge of armed robbery, you are convicted and sentenced to a term of imprisonment of 24 months.

·On the charge of driving whilst disqualified, you are convicted and sentenced to one month's imprisonment. 

·On the charge of unregistered driving, you are convicted and fined $200.

·On the charge of careless driving, you are convicted and fined $150.

·On the charge of failing to assist, it being a further offence, you are convicted and sentenced to 14 days' imprisonment. 

·On the charge of exceeding the prescribed concentration of alcohol, you are convicted and sentenced to one month's imprisonment. 

38Now, Mr Yousif, all of those other terms of imprisonment are concurrent with the term for the armed robbery. The total effective sentence that I impose upon you is a period of two years' imprisonment and I order that you serve a period of 15 months before you are eligible for parole. I am giving you a nine-month opportunity for parole. 

39I declare that the period of 202 days' pre-sentence detention (excluding today’s date) is already served.  But for the plea of guilty, I would have imposed a sentence of three and a half years with 30 months to serve.