Director of Public Prosecutions v Youssouf

[2016] VCC 1042

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01068

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMAR YOUSSOUF

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 July 2016
CASE MAY BE CITED AS:	DPP v Youssouf
MEDIUM NEUTRAL CITATION:	[2016] VCC 1042

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper
For the Accused	Ms G. Connelly

HER HONOUR:

1Omar Youssouf, you have pleaded guilty before me to one charge of assault and one charge of theft.  The circumstances underlying your offending are as follows.  At the time of this offending, you were in a relationship with your co-accused Nima Abdi. 

2The complainants in this matter, Tendai Hwarta and Renske Van Der Heyde were housemates living in an apartment in Docklands which was rented by Hwarta.  You had known Hwarta for a few months and met Ms Abdi once.  Ms Van Der Heyde had known you for about 12 months and had lent her car to you on a number of occasions, recently having moved into the apartment, her mother having provided money to her for the rent she gave to Hwarta.  She did not know Ms Abdi.

3On 16 October 2014, Ms Van Der Heyde told you her mother had given her money for rent and agreed to lend her car to you for a few hours, giving you her car key on a key ring.  Also on that ring were a key to the apartment and an electronic fob to access the apartment building.

4You did not return the car that night and Ms Van Der Heyde tried to contact you, eventually speaking to you the next day, Tuesday 7 October 2014, you saying you would bring back the car that evening.  At about 11.30 pm on 7 October 2014, you picked up Ms Abdi in Ms Van Der Heyde's car, drove to the apartment building and used the fob to go into the building and enter the apartment with a key.

5Mr Hwarta and Ms Van Der Heyde were at home and they all sat on the couch.  You told Mr Hwarta and Ms Van Der Heyde that you were upset with them and you then elbowed Mr Hwarta to the nose, causing a blood nose and scuffling with him.  Mr Hwarta fell off the couch and you directed some punches to his torso.  These actions underlie Charge 1 on the indictment, common assault of Mr Hwarta.

6You were apparently yelling that Mr Hwarta and Ms Van Der Heyde had stolen money the previous week from Ms Van Der Heyde's ex boyfriend but she was denying this.  Ms Van Der Heyde told you and Mr Hwarta to calm down at which stage Ms Abdi threw Ms Van Der Heyde to the floor, causing her to hit her head on the floor and hearing glass breaking as she fell and the two of them ended up on the floor fighting.

7During this time, Ms Abdi apparently struck Ms Van Der Heyde in the face and pulled her hair, kneed her once and kicked her in the ribs once as she attempted to stand.  She too was yelling at Ms Van Der Heyde that she had stolen money from her friend, to return the money and stop wasting time.

8Mr Hwarta then directed you to Ms Van Der Heyde's bedroom to be able to talk calmly and you told Mr Hwarta Ms Van Der Heyde had taken money and you wanted Hwarta to organise its repayment.  Ultimately Ms Abdi left the apartment taking with it Mr Hwarta's mobile phone and bank card, ultimately using it to withdraw $1000 from his account.

9Her actions in doing this, even though you remained at the apartment, you being part of that arrangement, underlie Charge 3 on the indictment, theft.  Shortly after Ms Abdi returned to the apartment with the money you left with Ms Abdi, she carrying Ms Van Der Heyde's bag.  As a result of the incident, Mr Hwarta had a blood nose and headaches and soon after you left he called police.

10Mr Hwarta then cancelled his card and then police on 8 October 2014 found Ms Van Der Heyde's car outside your residence in Carlton where you had left it.  The two of you, you and Ms Abdi were then arrested at Docklands and police searched you finding $2850 in your satchel bag in $100 and $50 denominations which appeared new and were all recently withdrawn and they are part of the charge of theft against you on the indictment.

11In your record of interview with police, you admitted attending the apartment in Ms Van Der Heyde's car and that arguments occurred with Mr Hwarta and Ms Van Der Heyde but denied that any assault occurred.  You told police you had loaned $1200 to Mr Hwarta about two weeks before, he needing it for rent, and that you had attended the apartment to obtain repayment although Mr Hwarta denied ever borrowing money from you.

12You told police you did push Mr Hwarta first, that there was some pushing and shoving between the two of you but you denied that there was any hitting.  You told police you probably punched Mr Hwarta in the chest and stomach but not in the face, you agreed you asked Mr Hwarta for money and that eventually Mr Hwarta threw his Bankcard at you and gave you his PIN.  You said you did not know about a bag being taken from the apartment. 

13You were charged and the matter proceeded by way of contested committal which was listed for hearing on 5 February 2015 but was adjourned because Ms Abdi was unrepresented and Ms Van Der Heyde failed to attend.  Then it was further adjourned on 15 April 2015 due to representation problems with Ms Abdi and the non attendance of Ms Van Der Heyde.  On 17 June 2015, the committal proceeded as a contest and you and Ms Abdi were committed to the County Court.

14Initials directions hearing were listed for a final directions on 4 March 2016 with a trial on 2 May 2016 which neither you or Ms Abdi attended and on 11 March 2016 you were arrested and remanded in custody where you have remained since.  A plea offer was made on 22 March 2016 which was then accepted.

15You are now 26 years of age.  You arrived in Australia as a refugee from Somalia at age 5.  You have two older siblings and a younger sibling.  You moved here with your mother and your brother and sisters but when you were aged 10, all your siblings bar you emigrated to Canada to live with a relative there, you remaining with your mother.

16She worked as a child care worker and you were raised in the Carlton Housing Commission flats, attending ultimately University High, obtaining your VCE and essentially performing well academically.  You began a marketing degree at RMIT which you ultimately decided you did not want to continue, abandoning this and taking over the years a series of unskilled jobs which in no way reflected your academic ability.

17You appear, it seems to me, to have been a slightly lost young man in those years and ultimately you ended up in about 2012/2013 engaging in drug use and indeed it is clear that this offending occurred in the context of use of methamphetamine by you, the expectation being that night when you went round there that you would probably use ice with the victims in this matter.

18You have a limited prior criminal history.  In 2008 you were convicted and discharged in relation to being drunk in a public place.  You were involved in a fight in 2009 for which you were placed on a good behaviour bond.  Again you were dealt with for affray and robbery for which you were fined $1000 and about which you are unable to give counsel instructions.

19On 11 December 2015 you were dealt with on charges of possessing and using cannabis, unlicensed driving, carrying cartridge ammunition, possessing cartridge ammunition without a licence or permit and failing to answer bail.  These matters occurred or were committed by you prior to the offending which I have described although you were dealt with for them after and you were placed on a community corrections order for 12 months for which you are apparently to be breached for non-performance of conditions.

20On 11 December 2015, you were dealt with for recklessly causing injury, threatening to destroy or damage property, possessing amphetamine and ecstasy, possessing ammunition without a licence, storing ammunition in an unsecure manner, two charges of possessing a prohibited weapon, one charge of dealing with property suspected of being the proceeds of crime, unlicensed driving and using an unregistered vehicle, all of which were matters which were clearly committed again prior to this offending, given that the magistrate dealt with you by way of a suspended sentence which the courts have only been able to do for offending committed up until May of 2014.

21You are currently in custody and are facing charges which are to be heard by way of trial in the County Court and on which you were denied bail.  I had considered having you assessed for a community corrections order but your current situation is one where you are not able undertake a community corrections order, therefore it has been conceded by your counsel that the only way I could deal with you is by way of a term of imprisonment.

22To date you have been in custody on remand for 133 days.  The offending, although nasty, in one sense was minor offending and is ultimately being dealt with in this court because of negotiations that took place in relation to far more serious charges that were originally laid.

23It has been submitted that the 133 days more than covers the seriousness of the appropriate response to this offending and I agree with that.  Could you stand up, please sir.

24The offending arose from the same set of circumstances so I am going to deal with you by way of a term of imprisonment.  I am going to sentence you to an aggregate term of 42 days' imprisonment, which is about six weeks' imprisonment, and I declare that this term has been served by way of pre-sentence detention.

25MS HARPER:  Your Honour, there is also a restitution order in the sum of $1000 to Mr Hwarta.

26HER HONOUR:  All right.  I will make that order.  So I am going to be ordering that you restore $1000 to Mr Hwarta.  So you can have a seat, thank you, Mr Youssouf.

27Pursuant to s.6AAA I declare that had he not pleaded guilty, I would have sentenced him to a term of three months' imprisonment.

28MS HARPER:  If Your Honour pleases.

29HER HONOUR:  Thank you.  That's perfectly right.

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