Director of Public Prosecutions v Youssef

[2015] VCC 1364

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01012

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALI ALI YOUSSEF

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2015
DATE OF SENTENCE:	29 September 2015
CASE MAY BE CITED AS:	DPP v Youssef
MEDIUM NEUTRAL CITATION:	[2015] VCC 1364

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Armed Robbery – Use of imitation hand-gun – Addicted to “ ice” at time of offending – Substantial delay – Totality principle

Sentence:Total Effective Sentence of 61 days’ imprisonment to be served wholly concurrently with the sentencing being undertaken – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Stefanovic (Plea) Mr K. Maddess (Sentence)	Acting Solicitor for Public Prosecutions
For the Offender	Mr A. Malik	Victoria Legal Aid

HER HONOUR:

1Ali Ali Youssef you have pleaded guilty to one charge of armed robbery which has a maximum penalty of 25 years imprisonment. The maximum penalty reflects the seriousness with which Parliament regards this offence.

2The Prosecution Opening is Exhibit A and I incorporate it into my sentencing remarks.

3Briefly, on 20 March 2014, you robbed the victim of $1200 and his mobile phone, threatening him with an imitation handgun when doing so. There had been a series of meetings with the victim leading to this offence, in which you had agreed to sell a car to him which was in your father’s name. You threatened the victim with the gun after he refused to hand over payment when you were unable to provide him with paperwork for the car’s transfer. You had however offered to allow him to take the car a short time before this and to clear up the paperwork later, but he was not prepared to do this.

4I sentence you on the basis that the offending was not premeditated, and that the imitation gun was something that you apparently carried around at that time, although not expressly for the purpose of this incident.

5To threaten the victim with an imitation gun, which he obviously believed was real, when in such close proximity to him, as you were both in a car, is a serious example of armed robbery. Although there is no victim impact statement, it does not take any imagination to determine that the victim must have been terrified by your conduct.  On the other hand, I take into account that the gun was not real and therefore was not a dangerous item in itself. 

6Your conduct must be appropriately punished and denounced, and strong weight must be given to general deterrence in a bid to deter others from behaving as you have.

7You have the following prior matters, which I referred to from my previous sentencing remarks where I said:

“You have one previous Court appearance where you were convicted of theft, unlawful assault, and an aggravated burglary where the circumstance of aggravation was possessing an offensive weapon. These offences were committed in the context of a dispute between your father and a neighbour, which led you to intervene.  You were sentenced to a Community Corrections Order which was to endure for 12 months and involved 150 hours community work and programs to reduce re-offending such as anger management.”

8Clearly, the previous offending has some relevance to the matters before me, as do the matters for which I have previously sentenced you.

9The offence for which I now sentence you took place at a time when you were addicted to “ice” and were behaving like a drug-crazed hoodlum. During the same period, you committed other offences for which I imposed a total effective sentence of 3 years imprisonment with a non-parole period of 18 months on 19 November 2014.  Those offences comprised four charges of armed robbery, one charge of blackmail and some summary offences including assault with a weapon and committing an indictable offence whilst on bail.  The dates upon which the other offences were committed were 5 April 2014, 9 June 2014 and 16 June 2014, so that the offence for which I now sentence you was committed just before the first of these other offences.

10For some reason, there was substantial delay in respect of the matter now before me, even though it seems to me that it could have been readily investigated and then dealt with all at the same time in November of last year.

11Had this matter, which is now before me, been dealt with at the same time, there is little doubt that a measure of cumulation would have been entirely appropriate, and indeed there is still a valid argument that a measure of cumulation is warranted, albeit that there has been some delay in this matter, none of which was of your making.  There was a significant delay in the matter being charged and then there was further delay caused by listing issues.  The delay, in particular, between the commission date and charge, has meant that you have been serving a good deal of your sentence in the expectation that your earliest release date would be in November this year. In saying this, there is of course no guarantee that this would have occurred and one cannot speculate about this, but that was your state of mind, and you have been working towards that date.

12The other aspect of the delay is that you have shown, albeit in a controlled environment, that you are capable of rehabilitation. You have engaged in a number of courses to improve yourself, equipping yourself with some skills. You have also completed, or are about to complete, some courses which are designed to address your issues with drugs and with anger.  I also received a bundle of drug screens which were tendered on the plea hearing and they attest to the fact that you have not been using drugs.

13Your family strongly supports the assertion that you are now a changed man. They are very supportive of you and will provide you with stable accommodation upon release from gaol and you also have some employment to go to, which is available through a relative.

14In sentencing you, I take into account your background which is set out in my previous sentencing remarks. I have also taken into account the matters set out in the report of Ms Lechner insofar as they are of assistance. As I observed in my sentencing remarks last year, the combination of youth, immaturity and limited cognitive capacities when further impacted by the drug “ice” made for a most dangerous cocktail.  If you resort to drug use in the future and commit further offences then your decision to take drugs may well be viewed as an aggravating factor, exposing you to a higher sentence than might otherwise be the case.  Do you understand that?

15ACCUSED:  Yes, Your Honour.

16HER HONOUR:  I take into account your early plea of guilty which entitles you to a substantial discount in the sentence you would otherwise receive as you have saved the witnesses, especially the victim, the time and trauma of giving evidence and you have saved the community the time and expense of contested proceedings.  I accept that this is also a manifestation of remorse, although I am not too sure as to how heartfelt this is in relation to the victim.  I hope that you do feel sorry about what you did to him and the effect this would have had upon him.

17It is still early days for someone who was addicted to “ice”, but all the signs are good so far.  It also appears that you may have matured somewhat.  In view of your limited criminal history and the positive signs at this fairly early stage, albeit in a controlled environment and accepting that gaol has already had a deterrent effect upon you, I give some weight to specific deterrence and protection of the community and find that your prospects of rehabilitation are guardedly good.

18In your case, the principle of totality looms large and I must also factor in that you are still a young man who has done what he can since being incarcerated to change for the better. The challenge for you, Mr Youseff, will be to maintain that change when you are released, whenever that may be. If you do resort to your old ways, then you are almost guaranteed to return to gaol for ever increasing periods, if indeed you are able to stay alive.  You owe it to yourself and to your family to go from strength to strength as a contributing member of the community and not as someone who takes from it or terrorises it.  You must finally take responsibility for what you have done to yourself and to your family, who have been through so much suffering because of you, by living a good life which contributes positively to the community.

19I am most mindful of the fact that this matter was first listed for Plea in August 2015; however, because of listing problems, it is only now that the matter finally concludes.

20In the end, although further time in gaol would ordinarily be justified for another offence, I am of the view that to impose a further term at this late stage where you, a young man of 22 years, appear to have changed for the better, would be a retrograde step in your rehabilitation.  This would not advance the community’s interests in reclaiming you or your interests.   Make no mistake: if you continue to re-offend upon release, and I do not speculate about when that will be, you will be facing more gaol terms. The gaol term which I impose is designed to run parallel with the non-parole period which you are currently serving, bearing in mind the principle of totality and taking into account the extensive delay.  I have very much borne in mind that this matter could have been dealt with at the time that I imposed the previous sentence upon you and, for a variety of reasons, the gaol term I would have imposed would have been different and there would have been a measure of cumulation.  Of course, totality was a principle that also had application at that time. 

21Please stand up, Mr Youssef.

22You are convicted and sentenced to 61 days’ imprisonment, to be served wholly concurrently with the sentence you are undergoing.

23If not for your plea of guilty I would have sentenced you to 12 months’ imprisonment, 6 months of which would have been served cumulatively upon the sentence you were undergoing, and I would have fixed a new non-parole period which would involve you being eligible for parole in 6 months’ time.

24Just take a seat for the moment, please.

25Are there any matters arising?

26COUNSEL:  No, Your Honour.

27HER HONOUR:  Very well, yes, thank you.  I am just wondering if counsel for Mr Youssef wants to have a word with him?

28MR MALIK:  Yes, if that's all right with Your Honour.

29HER HONOUR:  Yes, very well.  I will leave the Bench and Mr Youssef, if you could just remain there for a moment.  Your counsel will have a word with you before we turn off the transmission.

30MR MALIK:  Thank you, Your Honour.

31HER HONOUR:  We will clear the court otherwise.

32ACCUSED:  Thank you, Your Honour.

33HER HONOUR:  Very well.  Yes, I will leave the Bench. 

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SUMMARY OF PROSECUTION OPENING

Background

1. In March 2014 the Fawkner Embona Task Force commenced an investigation an armed robbery that was committed in Mickelham on the 20^th of March 2014 codenamed Operation Suborbital.[1]

[1] Set S/C Ryan Forde – p.52[3].

2. The victim in this matter is Amandeep Sharma.  He was 18 years at the time of the offence.  He is currently a student.[2]

[2] Amandeep Sharma – p.20[1].

3. The accused in this matter is Ali YOUSSEF.  He was born on the 5^th of September 1993.  At the time of the offending he was offending he was residing with his parents at Unit 1 of 7 Holly, Preston.[3]

[3] S/C David Bradley – p.36.

Events leading up to the 20^th of March 2014 – Charge 1 – Armed Robbery

11^th March 2014

4. On the 11^th of March 2014 at 11.34am, the accused placed an advertisement[4] on an auction website ‘Gumtree Australia.’  It was advertising a 2000 Holden Vectra CD motor vehicle for sale in the Reservoir area.  The price advertised was $1400.  The phone number 0421 834 635 was shown in the text of the advertisement.

[4] Gumtree website – See p.57.

5. At about 5.30pm on the 11^th of March 2014 the accused was contacted by the victim, Mr Sharma, on the phone number listed, who was enquiring about the vehicle for sale and requested to inspect it.   Mr Sharma said he was unable to recall the full phone number however did recall that the last digits were ‘635.’ The accused told him to meet at 6.30pm at the Reservoir Railway Station.[5]  Mr Sharma’s phone number has two numbers listed to it, 0469 339 205 and 0401 775 890.[6]  

[5] Amandeep Sharma – p.20[3 to 4].

[6] Amandeep Sharma – p.23[19].

6. At about 6.40pm the accused arrived at the train station in the Holden Vectra which he had advertised for sale.  He observed Mr Sharma waiting at the bus shelter and pulled up next to him.  He asked Mr Sharma his name and told him to get in the car.   The accused told Mr Sharma that his name was ‘Alen.’[7]

[7] Amandeep Sharma – p.20[5].

7. Once inside the car the accused told Mr Sharma that the car was $1500.  A conversation took place where it was agreed that Mr Sharma would pay $1400 for the car and another $300 for a Roadworthy Certificate.   The accused told Mr Sharma that he would need to pay the $300 up front.   Mr Sharma agreed and requested the accused drive him home so he could collect the money, which he did.   After receiving the $300 from Mr Sharma the two agreed to meet on the 20^th of March 2014 for the rest of the money to be paid.[8]

[8] Amandeep Sharma – p.21[7 to 8].

13^th of March 2014

8. On the 13^th of March 2014, the accused was contacted by Mr Sharma who said he might be able to pay the remainder of the money on the 18^th of March 2014.   The accused told Mr Sharma that he now required a further $100 as he needed to change the windscreen of the car.   The accused told Mr Sharma to meet him at the Reservoir Railway Station to give him the money.   At 2.15pm the accused met Mr Sharma at that location.   Mr Sharma got into the accused’s car and handed him $100.  Mr Sharma asked the accused if he was sure he wanted to sell the car.  He said he did.   Mr Sharma then got out of the car.[9]

[9] Amandeep Sharma – p.21[9].

18^th of March 2014

9. On the 18^th of March 2014 the accused spoke to Mr Sharma on the phone.  Mr Sharma agreed to pay the remaining money on the 20^th of March 2014.[10]

[10] Amandeep Sharma – p.21[10].

20^th of March 2014

10. On the 20^th of March 2014, sometime between 11.00am and 12.00pm, the accused was contacted by Mr Sharma.  The accused said that Mr Sharma could buy the car after 4.30pm and that he would drive the car to Mr Sharma’s house to complete the deal.   Numerous phone calls were made by Mr Sharma to the accused during the afternoon.   The accused finally arranged to meet Mr Sharma at his house, situated in McCrae Street, Reservoir, and arrived at approximately 6.30pm with the transfer papers.  The accused put his own name on the document.[11]

[11] Amandeep Sharma – pp.21[11] to 22[12].

11. Mr Sharma observed that there was no number plate on the rear of the car.   When questioned about it the accused said that he had removed it to fix the boot.   Mr Sharma later told police that he observed the plate in the boot and recalled the registration began with ‘Q.’[12]

[12] Amandeep Sharma – p.22[12].

12. The two had a conversation about the documentation for the car.    Mr Sharma was concerned that the car may not belong to the accused.   The accused told him that it was his father’s car, his father lived in Craigieburn, and he then suggested they go and meet him to obtain all the documentation.  Mr Sharma agreed and he got in the car.[13]

[13] Amandeep Sharma – p.22[12 to 13].

13. The accused then drove him to Mount Ridley Road, Mickleham.  He parked the car about 200 metres from a school, believed to be the Mickleham Primary School.[14]   He then said he would call his father to come to their location and he would provide the documentation.   He made multiple calls on his mobile phone which went unanswered.   He then asked to use Mr Sharma’s mobile phone.   Mr Sharma handed the accused his Samsung Galaxy mobile phone.   He made further calls but they went unanswered.   He then placed Mr Sharma’s phone in his lap.[15]

[14] Amandeep Sharma – p.22[13];  Det S/C Dennis Cunha – p.29[5].

[15] Amandeep Sharma – p.22[14].

14. He then asked Mr Sharma if he had the $1200.  He said he did.   The accused then told him to give him the $1200 and that he could take the car, informing him to call him later to obtain the Roadworthy Certificate and other documentation.  Mr Sharma refused to hand over the money, stating he required the documents before he would pay for the car.  He also asked for the cash back he had already given the accused.[16]

[16] Amandeep Sharma – p.22 to 23[15].

15. The accused has then become angry and demanded Mr Sharma give him the money.   Mr Sharma again refused.  The accused then produced a handgun.   Mr Sharma described it as silver with a red handle.   The accused put the barrel of the gun against Mr Sharma’s hip and said, “You don’t need to worry, just give me the money and you can have the car otherwise I can shoot you also.[17]

[17] Amandeep Sharma – p.23[15 to 16].

16. Mr Sharma grabbed the door handle and tried to get out of the car but was told not to.[18]

[18] Amandeep Sharma – p.23[16].

17. Mr Sharma then removed $1200 in cash from his wallet and handed it to the accused.   The accused demanded to see what else was in Mr Sharma’s wallet.  Mr Sharma said there was nothing else and put the wallet back in his pocket.   He then asked for his phone to be returned.   The accused told him he could have the phone back when if Mr Sharma came around to the driver’s side of the car.   When Mr Sharma got out of the car the accused locked the doors and drove away.[19]

[19] Amandeep Sharma – p.23[17].

18. Mr Sharma sought assistance from members of the public who were nearby and contacted police.[20]

[20] Amandeep Sharma – p.23[18].

19. On the 20^th of March 2014 Detective Senior Constable Markus Koch attended 1/7 Holly Street, Preston to make enquiries about an unrelated matter.   Upon arrival Detective Koch observed a 2000 model black coloured Holden Vectra sedan, bearing Victorian registration plates: QDU 650, reversing out of the driveway.   This car was registered to the accused’s father, Hussein Youssef of that address.   Detective Koch intercepted the car and identified the driver as the accused.   When asked by Detective Koch what his phone number was the accused provided 0421 834 635.[21]

[21] Det L/S/C Markus Koch – pp.31 to 32.

20. Enquiries with Gumtree revealed that on the 11^th of March 2014 an advertisement was created from Internet Provider (IP) Address 49.183.180.210.  The email listed for the creator was [email protected].   The accused’s date of birth is 05/09/1993.   The advertisement was for a black 2000 Holden Vectra CD sedan for sale with the listed price of $1400.   The phone number listed in the advertisement was 0421 834 635.[22]

[22] Det S/C Ryan Forde – p.53[6 to 8].

17^th of June 2014

21. On the 17^th of June 2014 the accused was intercepted for unrelated matters driving vehicle ZOR 948, a 1994 red coloured BMW sedan.  The car was subsequently impounded.[23]

[23] S/C David Bradley – p.33 to 42.  Interception at p.35[11].   Impounded at p.40[16].

18^th of June 2014

22. At 1.30pm on the 18^th of June 2014 police investigating an unrelated matter conducted a search of vehicle ZOR 948[24] under warrant[25] at the Vehicle Impound Unit Preston.   A search of the vehicle located an imitation handgun which had been painted black.[26]   The original colour of the handgun was silver.  The handle had also been painted over with black paint however a maroon colour was visible beneath the paint.  This is consistent with the description given by Mr Sharma.[27]

[24] See photographs 1 & 2 at p.61;  Registered to Hussein Youssef in Certificate at p.82.

[25] Det S/C Anthony Soccio – p. 44[3].

[26] Black imitation handgun – photographs 12 & 13 on pp.66 to 67.

[27] Amandeep Sharma – p.23[16].

22. The accused did not participate in a Record of Interview and declined an identity parade.[28]

[28] Det S/C Anthony Soccio – p.46.

23. The accused was remanded into custody on the 18^th of June 2014.

4^th of September 2014

25. On the 4^th of September 2014 investigators attended Mr Sharma’s home.  He was shown a photo-board[29] of images and asked if he could identify any person.   He immediately identified the accused from the images, pointing to him and saying, “Yeah I got it, number three.  He was the one trying to sell me a car.  He robbed my money and showed me a gun.”[30]

[29] Photoboard – See p.59;  Compiled by Renae Parker.  She placed the suspect Ali Youssef at number 3 of 12 – p.48;  Shown to Mr Sharma by S/C Megan Fisher – p.50.

[30] Identification made by Amandeep Singh of person number 3 out of an array of 12 faces.