Director of Public Prosecutions v Youssuf

[2024] VCC 1321

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -23-00355

DIRECTOR OF PUBLIC PROSECUTIONS

v

DULLA YOUSSUF

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATES OF HEARINGS:	6 August 2024 & 21 August 2024
DATE OF SENTENCE:	26 August 2024
CASE MAY BE CITED AS:	DPP v Youssuf
MEDIUM NEUTRAL CITATION:	[2024] VCC 1321

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW – Sentence

Catchwords:  Plea of guilty – false imprisonment – extortion with threat to kill – blackmail – criminal record – co-offenders – complicity – parity – firearm – gangster-like behaviour

Cases Cited:                   R v Verdins 16 VR 269

Sentence:Total effective sentence of four hundred and twenty three days imprisonment and a community correction order of two years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Goetz	Office of Public Prosecutions
For the Offender	Ms C. Khoury	SLKQ Lawyers

HIS HONOUR: 

1Dulla Youssuf, you have pleaded guilty before me to charges of false imprisonment, extortion with threat to kill and blackmail.  The maximum penalties for these offences are ten years for false imprisonment, 15 years for extortion with threat to kill and 15 years for blackmail.

2You have admitted a criminal record which discloses a relevant matter.

3Your victim in this matter, was known to you and I was told that you and he used to be good friends but you had not seen each other for some time.  Your co-offenders are your cousins.  I have already dealt with them, Mr Ahmed and Mr Aden.

Circumstances of Offending

4Events started at the Bosnian Islamic Centre in Deer Park when the victim attended there.  He got out of his car and he was approached by your co-offender, Ahmed, who said that he wanted to talk to him.  He steered him to a gold coloured Toyota Camry sedan where you were.  Mr Ahmed got in and he did not feel safe, he asked what for, but he was ushered in by Mr Ahmed and you and your cousin, Aden, were also inside.  Aden was in the driver's seat and you were in the front passenger seat.  Ahmed also got in the vehicle and sat in the rear with the victim sitting behind Mr Aden who was the driver.

5Mr Ahmed produced a firearm and said, 'We can either do this the easy way or the hard way.'  He said, 'Don't worry, this clip is full.'  He removed the clip showing it to the victim before putting it back in the firearm.  He continued to say, 'It's up to you, easy way or hard way.'  As this was happening the four of you were in the vehicle which was being driven around.

6Mr Aden drove this vehicle to the other side of Station Road where it was parked out the front of Millstream Circuit, Cairnlea.  The allegations are that your group was saying 'You know what we want' and started making demands to the victim for half a million dollars, to which he replied, 'What you're asking for is ridiculous, I don't have that much', but you and your co-offenders kept repeating the demand over and over saying 'It looks like you want it the hard way.'  Ahmed then said 'We're gonna go for a long drive.'  The victim said he did not want to leave his car at the Mosque and Ahmed said, 'Give us the keys', and then gave them to you who took them and you then left in the victim's car. 

7They were waiting for you to return.  Events took place while they were waiting for you to return, Ahmed retrieving a plastic bag from the boot of the Camry, removing cable ties.  Ahmed cable tied the victim's wrists together and told him to hand over his mobile phone, which he did.  You drove the car back to Millstream Circuit.  Aden drove the gold Camry along with Ahmed, and the victim, towards Footscray whilst you followed in the victim's car.

8Both vehicles then stopped outside a block of units at Geelong Road, Seddon.  The victim was removed from the car, walked up the stairs and taken inside the second unit.  Once inside the unit he was forced to sit on the couch and he was questioned then by you and your co-offenders, asking how he was going to get the money.  There was pressure being put on him to get the amount of money wanted.  He kept saying he did not have what was being asked for.  Ahmed kept repeating, 'Give us what we want.'  The victim was understandably very frightened and feared for his safety.

9You made your victim take his shoes off.  He was continually questioned, being asked where it is and 'What can you give us.'  He was threatened that he was going to be shot in the knees, that he was going to be stabbed.  He believed that he was going to be very badly hurt.

10Ahmed told the victim, 'Don't worry, it hasn't started yet' and he said he was waiting for Aden to get back with all the tools.  He told the victim that he was going to knock his teeth out and cut his fingers.  Aden returned with a plastic bag and said, 'What, this guy's still waiting, time I took charge.'  Aden then told you and Mr Ahmed to leave the room because he was going to chat to the victim.  It is at that point that Mr Aden was saying to the victim, 'Look at me, I'm not playing around, you better make a move right now to figure out how to meet our demands' and that discussion continued on with him injuring the victim, and Mr Aden was dealt with in respect of the assault and assaults he perpetrated on Mr Aden during that interlude.

11You and Mr Youssuf came back into the room.  Aden told the victim to take all of his clothes off and made him sit in the middle of the kitchen naked.  The three of you were taking photographs of him whilst he was naked, threatening to send them to his friends and his family on social media.  You said, 'I've got a better shot' and produced an ice pipe, handing it to Ahmed.  Ahmed handed it to the victim and told him to put it in his mouth whilst holding a lighter.  Once the complainant had the ice pipe in his mouth and was holding the lighter numerous photographs were taken of him.  At one stage you attempted to blow cigarette smoke to make it appear as if he was actually smoking the ice pipe.  Mr Ahmed was then standing in front of the victim, throwing a medium sized kitchen knife at him.  This happened approximately six or seven times.  Each time he dodged the knife. 

12He was forced to log onto his online Commonwealth banking account and there were efforts made at making transfers, also through his online ANZ bank account.  He was forced to log into his Coinbase account and several transactions were made into Mr Aden's Coinbase account from the victim's.  Five of the transactions were delayed and stopped by the victim, however, two transactions were successfully transferred to Aden's Coinbase account.

13He also received – this is the victim – email notification from his Up Banking in relation to a new device being registered to his account, being an iPhone.  Details also included the verification mobile number being changed to a mobile ending in 630, which coincides with your mobile number.  No money was transferred though from the Up Banking.

14You and your co-offenders continued to discuss things and asked the victim how much more money he could give if they took him to his house.  He said that if he was taken home he could give you all $15,000, and it was agreed.  Ahmed said, 'I'm gonna give you a timeline, in two weeks you need to come up with $100,000 or things will get ugly.  We're gonna come and shoot up your house, we'll kidnap one of your brothers too.'

15The victim agreed to the demands.  Ahmed continued to make demands saying every two weeks, after the $100,000 transfer the victim was going to have to give them $5,000 every two weeks until they had another $50,000.  The victim agreed and said 'Let's go to my house.'  You, along with your two co-offenders and the victim, left Geelong Road, Seddon, and drove around to Sydenham Street, Seddon.  The victim was told to get in the driver's seat of the silver Toyota Corolla, accompanied by Aden in the passenger seat. 

16You all ended up at and address in Clarence Way, Taylors Hill.  Aden discussed with the victim how he would get the money.  The victim advised that he would go into his address to get the money.  Mr Aden did not like that suggestion and said he would go in with him.  However, he was then convinced by the victim to let the victim go in alone, but only after Mr Aden had made a phone call to Mr Ahmed and yourself.  The victim was made to hand over his mobile phone and keys before going in. 

17He went inside his house and called Triple 0 from his brother's phone.  He retrieved $11,000 in cash from his residence.  He went back out to Mr Aden and handed the $11,000 cash to him, stating that was all the money he had.  Mr Aden got angry and asked where the rest of it was.  He told the victim to go back and get the rest.  The victim started walking back.  He was signalled to come back with the car's high beam.  He returned.  He was given back his mobile phone and keys.  He was told that he had until tomorrow at 5.00 pm to come up with the rest and leave.

18The victim was later able to contact police and the gold Toyota Camry was intercepted with you and Mr Ahmed and Aden inside.  You were all conveyed to Sunshine police station.  Each of you made 'no comment' interviews.

19It is very serious offending, that summary that I have provided.  The full circumstances of your offending are set out in the Summary of Prosecution Opening for Plea which was Exhibit A on your plea and forms part of these reasons for sentence. That brief summary I have given touches on most of the serious aspects that you were involved in.  It would have been terribly frightening for your victim.

20I have received a victim impact statement and I take the impacts upon your victim into account.

21There are several very worrying features about the offending.  This sort of standover planned extortion in company designed to yield a high return is high level criminal activity – I have described it as ‘gangster-like’ behaviour.

22General deterrence is very significant for offending of this type, as is community denunciation – and indeed specific deterrence. 

23Your criminal history is not as lengthy as that of your co-offenders, but your history does reveal someone who has been predisposed to offending of this type, if not of this seriousness previously.  Your role is considerably more confined than either of your co-offenders.  Unsurprisingly, their criminal histories also reflect the disparity in roles.

Personal Circumstances

24I go to your personal circumstances now and of significance is your refugee background, that has had impacts upon you and your experience in your formative years, trying to fit in and trying to deal with what seems to be an anxiety disorder that commenced in your younger years.

25Your parents arrived in Australia from Ethiopia in 1992.  Both parents have been good role models and your father works full-time as a taxi driver.  You have an older sister who is 31 years and works in customer service from home.  You have two younger brothers, one studying sport science and works as a security guard and a younger brother who is still a student.  You have another older sister who lives in Point Cook and works as a nurse.

26From the difficult beginnings that your parents had in this country they have made a stable and solid family home and been good examples and role models to you.  It seems that your siblings have followed the right path and for whatever reason you have been one who has drifted from that path in a very serious way and shown indications, in the context of drug addiction and drug use, that you are interested in this sort of serious offending.

27You lived with your family in North Melbourne, in Kensington, in high rise living, as I understand it, in high density living with other migrants and refugees.  You did not speak English until you were six years of age.

28Your family moved from those living circumstances to Hoppers Crossing when you were in primary school.  That had some benefits of removing you from the daily exposure to negative experiences and witnessing people using drugs intravenously, witnessing violence and witnessing criminal activity, generally being in a less safe environment than when you moved to Hoppers Crossing.  The downside of moving to Hoppers Crossing is you were disconnected from others who had a similar ethnic background and experience to you.  You were subject to bullying and racial abuse.

29I was told that you were a good student in high school.  You endeavoured to establish friendships and companionships.  I was told that you are a people pleaser, and I have assessed this aspect of your background in light of what I have concluded were some understandable difficulties in adjusting, settling and fitting in. 

30I was told you felt anxiety and stress trying to fit in with a group and you drifted towards groups who engaged in drinking alcohol and other less studious pursuits, which seemed to compound your anxiety and experience because your father, understandably, was strict and did not want you engaging in those sorts of pursuits,  You kept to yourself, you could not discuss your feelings or issues, you withdrew into yourself and I was told alcohol became an escape.  You then went on to Xanax and Valium and hence the drift into negative experiences.

31You decided to complete a Certificate 3 in fitness at Victoria University in your 20s with a goal to start working group fitness for elderly people in your community.  This was probably due to your close association with your grandmother.  You lived with your grandmother for a significant period of time.  You were very close to your grandmother and I accept that her passing was a traumatic event in your life which contributed to your anxiety and your predispositions of vulnerability to substance abuse, which seems to be the real issue in your case and your inability to deal with that substance use.  It has clearly been involved in your prior matter and it has been well and truly involved in the offending before me.

32You told Ms Fakhri that at the time of the offending you had consumed four Alprazolam pills, Diazepam and three or four Oxycodone pills.  Your account to Ms Fakhri of your offending is at paragraphs 61 and 62 and I accept generally that consistent with your role you were not a major player in the offending before me.  Notwithstanding, you were complicit, and it is very serious offending, as I have stated.  I also accept generally what was said at paragraph 56 of Ms Fakhri's report in relation to your prior matter and I accept the diagnosis of generalised anxiety disorder set out at paragraphs 39 and 96.

33I received a number of character references, principally from family members.  I accept that you have strong family support and support in the community.  Those loved ones and other supporters are very disappointed in you engaging in this sort of activity and they highlight the positive aspects of your personality, which I do accept. 

Other Sentencing Considerations

34What needs to be understood is that for serious offending like this there is a price to pay and a price to pay back to the community, to act as a deterrent to others but also to denounce this conduct, and in particular in your case, to remind you that any other escapades into this sort of gangster-like activity would certainly see you receiving a head sentence and a non-parole period.

35You have pleaded guilty.  You are entitled to a discount in relation to your plea of guilty and I apply appropriate mitigation for your plea of guilty and your stage of pleading guilty. 

36I take into account your progress on bail.  You have been on strict bail conditions for over a year.  Totality is another important principle to apply in your case in consideration, given the three charges before me arise out of the one transaction.  I have already commented upon your role and I am mindful of sentencing you on the basis of complicity but also taking into account the passages that you were particularly involved in and your particular role at those points.

37I have taken into account parity, in particular disparity given the roles, the criminal histories and the current circumstances of your co-offenders.  I have also moderated the sentence I impose in your case based on my acceptance that Limb 5 of Verdins[1] has some application in your case, that due to your generalised anxiety disorder that your experience of custody will be harder than for another who does not have that experience. 

[1]R v Verdins 16 VR 269.

38For reasons articulated during the plea hearing, I have not formed the view on balance that the sort of mitigation that flows under Verdins Limbs 3 and 4 has application in your case.

Sentence

39Turning to sentence, and drawing the sentencing factors together as best I am able, in particular general deterrence, denunciation and community protection, but also taking into account your prospects of rehabilitation and particular circumstances, I sentence you as follows, Mr Youssuf:

40On Charge 1, false imprisonment, you are sentenced to 12 months' imprisonment.

41On Charge 2, extortion, you are sentenced to 12 months' imprisonment.

42Fifty-eight days of the sentence imposed on Charge 2 will be served cumulatively on the sentence imposed on Charge 1, which makes a total effective sentence of 423 days' imprisonment.  I declare that you have served 423 days' imprisonment.

43On Charge 3, you are sentenced to a two-year community corrections order with the following conditions:

·     Supervision;

·     You are to perform 200 hours of unpaid community work for the duration of that order;

·     Drug treatment and rehabilitation;

·     Mental health treatment and rehabilitation; and

·     Programs to reduce reoffending.

44I direct that 50 hours of treatment and rehabilitation hours can be credited towards community work hours – that is a community corrections order with conviction.

45Pursuant to s6AAA, were it not for your pleas of guilty I would have sentenced you to three and a half years' imprisonment with a non-parole period of two and a half years.

46I don't think there were any particular orders - were there other orders.

47MR GOETZ:  Your Honour will recall I foreshadowed ‑ ‑ ‑ 

48HIS HONOUR:  That's right ‑ ‑ ‑ 

49MR GOETZ:  A forfeiture order.  My instructor sought the attitude of the other co-accused's legal teams but regrettably they haven't responded as yet.  This accused has said he has no objection to the order being made.  I would then ask Your Honour to not make the order yet but it could be provided to Your Honour's associate and signed in chambers, if the other accused consent to the making of the order.

50HIS HONOUR:  So what's the order for.

51MR GOETZ:  It will be for the weapons, mobile telephone and exhibits generally.

52HIS HONOUR:  Yes, alright, I will get that order and make it in chambers if there's no issue from the others.

53MR GOETZ:  Thank you, Your Honour. 

54HIS HONOUR:  Do you consent to the community corrections order, Mr Youssuf.

55OFFENDER:  Oh, yeah.

56HIS HONOUR:  Alright, we will now prepare that and we'll give you a look at it.  Ms Khoury's instructor can help you have a look at it when it's ready, I'll sign it and you'll bet a copy of it if it's all good to go.

57MS KHOURY:  As the court pleases.  Your Honour, might my instructor be permitted to approach the dock, just to go over the document with my client.

58HIS HONOUR:  Yes, that can be done now.

59MS KHOURY:  Thank you.

60HIS HONOUR:  Alright, well you're now on that order Mr Youssuf.  I have to tell you that if you commit further offences whilst on that order or if you do not comply with the conditions of that order you can be brought back before me for re-sentence.  Do you understand that.

61OFFENDER:  Yes.

62HIS HONOUR:  You will get a copy of that order and Ms Khoury and her instructor will get a copy as well, as will Mr Goetz and his instructor.  Nothing else.

63MR GOETZ:  No, sir.

64HIS HONOUR:  Thank you, we will adjourn the court.

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