Director of Public Prosecutions v Youssouf

[2017] VCC 1983

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01228

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMAR YOUSSOUF

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November 2017
DATE OF SENTENCE:	20 December 2017
CASE MAY BE CITED AS:	DPP v Youssouf
MEDIUM NEUTRAL CITATION:	[2017] VCC 1983

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords: guilty verdicts for one charge of armed robbery and one charge of intentionally causing serious injury in circumstances of gross violence – planned attack with another offender - vicious assault resulting in surgery with complications – reasonable recovery – offender with prior convictions for violence – drug abuse – anti-social personality disorder - poor prospects for rehabilitation.    

Legislation Cited: s.15A Crimes Act 1958; s.10 Sentencing Act 1991

Cases Cited: Charles Hi v R [2017] VSCA 315; DPP v Dalgleish [2017] HCA 41

Sentence: TES 8 years, non-parole period 5 years. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	OPP
For the Accused	Mr M. Pena-Rees                 Armour Legal

HER HONOUR: 

1Omar Youssouf, you have been found guilty by a jury of one charge of armed robbery and one charge of intentionally causing serious injury in circumstances of gross violence.  These are very serious crimes which attract potentially long prison sentences.  For armed robbery, the maximum penalty is 25 years' imprisonment.  For intentionally causing serious injury, the maximum penalty is 20 years' imprisonment with a mandatory minimum period of four years to be served when committed in circumstances of gross violence[1], as is the case here. 

[1] S.15A Crimes Act 1958 and s 10 Sentencing Act 1991

2The circumstances were as follows.  In the early hours of August 4 2014, you and an unknown co-offender approached a parked car in Palmerston Street, Carlton.  Brett Madigan was seated in the driver's seat.  A woman named Alisha Yousuf was in the front passenger seat.  At 3 am you had sent a text message to her, stating, "I'm on the way". 

3You went to the driver's window, which was open.  You struck Mr Madigan repeatedly to the right side of his head and face with a steering lock, causing serious injuries to his head and face and an injury to his wrist.  Madigan got out of his car and tried to run towards Drummond Street but you stopped him and demanded his ring and bracelet while still holding the steering lock. 

4He initially refused to hand them over but you persisted, saying, "Give it to me or I'll give it to you even more".  He then handed over a nine carat gold ring and a nine carat gold bracelet with diamond specs.  You told your associate to remove any items of value from the car and he took Mr Madigan's bag, containing $2,000 in cash.  You and the other man then ran towards
Lygon Street, dropping the steering lock in a garden bed.  It was later analysed and blood found on it showed extremely strong support for being that of Madigan. 

5A fingerprint found on Madigan's car at the scene was found to be yours.  CCTV footage from the nearby Ministry of Housing estate showed you and the other man running into the car park at 510 Lygon Street at 3.03 am.  You can be seen carrying a black shoulder bag, matching the one Madigan had in his car, and wearing a white jacket, blue jeans with a white discolouration down the front of each leg and a dark-coloured beanie.

6Shortly afterwards, a black Toyota Kluger was seen leaving the car park. 
This car is registered to your mother.  Clothing was found at her home at 510 Lygon Street, which was consistent with that which you had been wearing in the car park and bore bloodstains which were analysed.  The analysis showed extremely strong support for the DNA to be yours.

7The mobile phone found there, which was connected to your telephone number, was registered to “Reggie Hammer” and investigations revealed communications between this phone and other parties, placing you in the area at relevant times that night and in other relevant areas. 

8Madigan was taken to hospital and was found to have a 3 millimetre depressed skull fracture, an extradural brain haemorrhage, several lacerations to his face, including two that were deep, a laceration to the right wrist, which included the tendon, an underlying zygomatic fracture and left vitreous haemorrhage.  These injuries were described as severe and potentially life-threatening. 

9Mr Madigan described problems in stopping the bleeding at the time of his admission in the emergency department.  He was admitted to the hospital and was discharged on 7 August.  It appears he recovered fairly well but no victim impact statement was able to be obtained.

10It was a very violent, indeed vicious attack on Mr Madigan, who was the victim of your plan to attack and rob him with the other man.  Seated in his car, he had no means of escaping you and so was immediately vulnerable in a physical sense.  The evidence disclosed the possibility that Ms Yousuf was also involved in that plan.  Your own moral culpability is of a very high order. 

11Turning now to your background, you are now aged 27 and you were 24 at the time of the offending.  You were born in Somalia, your date of birth being
1 January 1990.  You are the only child of your parents, your father having been killed in the war in Somalia when you were aged two.  Your mother brought you to Australia when you were five and you completed your education at University High School, passing Year 12 as an average student but excelling in English.

12You enrolled consecutively in two diploma courses at RMIT but made little progress and stopped studying at the age of 19.  Thereafter you worked for Linfox for 18 months and were then unemployed for about five years, having fallen in with the wrong crowd, as you described it to the psychologist, Jeffrey Cummins, when he assessed you recently.  After some further sporadic work, you remained unemployed at the time of this offending.

13It appears that during the five year period of unemployment, you began using methamphetamine although you did not consider yourself dependent on it and you had not previously abused alcohol or drugs apart from regular cannabis use at what you considered to have been manageable levels until you became addicted later, and were so at the time of the offending.

14Indeed, you appear to have had no physical or mental health problems at all during your teenage years and throughout your 20s.  However, you told
Mr Cummins that you had been a bit “feisty” at high school and you may have done an anger management course at some stage.

15Following two appearances in the Children's Court in your late teenage years, you appeared in the Magistrates' Court in relation to various reasonably minor offences incurring a short prison sentence, and although by 2015 your offending had escalated, you avoided severe penalties for repeated offending including assault and recklessly causing injury.

16I was provided with a plea summary and a summary of prosecution opening, prepared for the County Court in May 2016, both of which disclose increasingly aggressive violent behaviour.

17It is apparent from a close look at your criminal history that you downplayed the role of illicit drugs in your escalating criminal behaviour when assessed by
Mr Cummins, and that the much more serious drug use of recent years and the company you kept as a result, have brought you here today.

18The anti-social personality disorder diagnosed by Mr Cummins is, he says, not apparent in your presentation but can be deduced from your criminal history. 
It also appears that you deceived your mother, and perhaps other family members, as to your drug use and the life you were leading away from her home. 
You now have to face the tragedy she feels in losing you, her much loved son, to prison.  She made that clear in the evidence she gave during the plea hearing. 

19Mr Farrah, a social worker with Somali Australian Council of Victoria, provided a letter in which he described the shame your mother feels in the community, having done her best to bring you up despite her difficult personal circumstances. 

20One day you will have to face the task of attempting to repair that damage you have caused.  Perhaps that may only be possible when you have acknowledged your violent propensities and the need to address them. 

21As things stand, there is no indication that your prospects for rehabilitation are more than guarded.  Little has emerged about your early background and that of your wider family, but the difficulties of settling in a new country, and growing up without your father speak for themselves to some extent.  Those factors indicate some deprivation but there is little more to inform me of that.

22Mr Farrah has indicated that your community will to try to assist you upon your release, and indeed the beginnings of a concrete plan seem to have been discussed.  Clearly, you are intelligent and have the capacity to undertake education and training for the workforce but those opportunities are now a long way off.

23Part of the aim in sentencing in this case must be for the court to denounce your offending as an extremely serious crime with the potential to place members of the public in danger or in fear given that it was committed in a public place not far from a popular tourist destination.

24General deterrence is therefore important and in your case so is the need to deter you specifically from offending of any sort.  So far, prison or the threat of it, has not deterred you, but the prison term I impose today may have that effect.

25You have been removed from the community already for these crimes for the last 608 days which is about 16 months. 

26I take into account as a mitigating factor the delay which occurred through no fault of yours, when you were not charged until March 2016, about seven months after the offending. 

27You are still a relatively young man and your rehabilitation remains an important goal with a need to avoid a crushing sentence.

28I was referred to the very recent decision in Charles Hi v R[2] in which the relevant authorities are discussed, in particular the High Court decision of DPP v Dalgliesh[3] and in sentencing you I take into account the range of factors I must consider including current sentencing practices in order to impose a sentence that is just and appropriate.

[2] [20`7] HCA 315

[3] [2017] HCA 41

29Would you stand now please Mr Youssouf?  I sentence you as follows:

30For armed robbery, six years' imprisonment.

31For intentionally causing serious injury in circumstances of gross violence,
I sentence you to five years' imprisonment.  Two years of that sentence will be served in cumulation upon the six year sentence resulting in a total effective sentence of eight years.

32I order that you serve a minimum period of five years before becoming eligible for parole.

33The prosecution seeks an order for compensation to be paid for the victim for his losses, a sum of $6,700.  Mr Pena-Rees, is that opposed or unopposed?

34MR PENA-REES:  Not opposed, Your Honour.

35HER HONOUR:  Not opposed.  I make that order.  A disposal order is also sought by the prosecution in relation to several items; is that opposed or not opposed?

36MR PENA-REES:  Not opposed.

37HER HONOUR:  Thank you.  I make that order also.

38HER HONOUR:   I declare 607 days of pre-sentence detention to be reckoned as already served and I shall note that on the court record.  Are there any other matters?

39COUNSEL:  No, Your Honour.

40HER HONOUR:  You may take Mr Youssouf now, thank you officer.

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