Director of Public Prosecutions v Yunus
[2022] VCC 76
•4 February 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 21-02382
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUSLIM YUNUS |
---
JUDGE: | Her Honour Judge Hawkins | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2022 | |
DATE OF SENTENCE: | 4 February 2022 | |
CASE MAY BE CITED AS: | DPP v YUNUS | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 76 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentencing.
Catchwords: Pleas of guilty – one charge of theft of a motor vehicle – one charge of causing injury intentionally – no prior convictions – use of violence to recoup unpaid drug debt with co-accused – largely defenceless victim – offences committed as a result of peer pressure, but not duress – reasonable prospects of rehabilitation – early plea – COVID considerations – general deterrence and community protection.
Legislation Cited: Crimes Act 1958 (Vic) s74(1), s18; Sentencing Act 1991 (Vic) s18, s6AAA.
Cases Cited:Worboyes v the Queen [2021] VSCA 169.
Sentence: Total effective sentence of 9 months’ imprisonment.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr E. Dober | Office of Public Prosecutions |
| For the Accused | Mr J. Shaw | Pica Criminal Lawyers |
HER HONOUR:
1Muslim Yunus, you have pleaded guilty to:
·One charge of theft of a motor vehicle, contrary to s74(1) of the Crimes Act1958; and
·One charge of causing injury intentionally, contrary to s18 of the Crimes Act1958.
2The offences to which you plead guilty are each punishable by a maximum term of 10 years imprisonment.
3You have no prior convictions.
Circumstances of the Offending
4Through your counsel, you accept the accuracy of the majority of the circumstances of your offending as set out in the Summary of Prosecution Opening for Plea dated 25 January 2022.[1] The following facts are drawn from that summary.
[1]Exhibit P1
5The victim, Timothy Yong, was a heroin addict. He was friendly with Piriho Abela (known to him as ‘Chevy’). Mr Abela had associates who were known to Mr Yong. They were you, Mokoenga Tuati (known as ‘Moko’), Robert Eman (known as ‘Rob’), and Amani Shbaro (known as ‘Gucci’).
6The prosecution rely on circumstantial evidence to establish that in the early morning of 19 March 2021, Mr Tuati and you exchanged messages with Mr Yong. In this exchange, Mr Yong was invited to an address in Dandenong. I conclude on the basis of the materials your counsel took me to, that there is no direct evidence that you issued Mr Yong this invitation. However, I do conclude that it can be inferred from the circumstances that you were involved in the group chat which proceeded this invitation being issued.
7After driving around with a friend named ‘Mack’, Mr Yong drove alone to the Dandenong address in a white 1998 Honda Accord (registration OVB 368) that belonged to him. Mr Abela lived at that address and you were staying there with him.
8When Mr Yong arrived and entered the garage of the property, he was punched by Mr Abela. Mr Abela demanded payment of a $40,000.00 debt that Mr Yong owed him. Mr Abela took Mr Yong’s car keys and mobile phone and continued to assault and to threaten him over the next two hours. Mr Abela prevented him from leaving the garage in that time.
9While Mr Abela was committing these offences against Mr Yong, you and Mr Tuati were also in the garage. However, Mr Yong gave evidence at the Committal hearing of this matter that you did not take part in what occurred. He told the court that you gave him a 'burn' (a small amount) of heroin to help abate the withdrawal symptoms he was experiencing.
10Mr Abela then ‘put’ Mr Yong into the back seat of his Honda. Mr Abela gave you Mr Yong’s car keys and instructed you to drive the Honda to a nearby address in Noble Park.[2] Mr Yong had stayed there with Mr Eman and Mr Shbaro for two weeks in 2020.
[2] Depositions, Yong statement dated 27.3.21 at paragraphs [7], [17]-[18]; Committal transcript at page
31 lines 18-31
11You followed Mr Abela’s instructions and parked the Honda in the driveway next to the footpath.
12When you arrived at the Noble Park address, there were other people present. Mr Yong did not know them. Amongst these people was a man named ‘Mike’, who purported to act as a collector of a debt owed by Mr Yong to Mr Eman and Mr Shbaro.
13At the Noble Park property, Mr Abela and Mike assaulted and threatened Mr Yong over several hours.
14At some point in the course of the morning, Mr Eman and Mr Shbaro attended at the Noble Park property. On their arrival, Mr Eman and Mr Shbaro participated in the assault, threats to, and detention of Mr Yong against his will by Mr Abela and Mike.
15You participated in the assault of Mr Yong after you were 'peer pressured' by the others. Mr Yong was forced to kneel and following direction, you delivered two deliberate and forceful closed fist punches to Mr Yong’s face in quick succession. Mr Yong immediately spat blood on to the floor.[3]
[3] See Committal transcript at page 35 lines16-27; page 36 lines 5-15; page 85 line 26-page 86 line 13
16At some time in the afternoon, you, Mr Abela and the others who were known to Mr Yong, left the Noble Park property. Other unknown persons then continued to detain Mr Yong in a caravan at the rear of the Noble Park property, before they took him to another address in Noble Park.
17As he left the Noble Park property, Mr Yong saw that his Honda was not where you had parked the car on arrival at the address.[4] His Honda has never been located and this forms the basis of the first charge before this court, to which you have pleaded guilty.
[4] Depositions, Yong statement dated 29.3.21 at [4]-[5]
18On 20 February 2021 at 9:37 am, an unknown person took Mr Yong to Dandenong Hospital where he presented himself. A physical examination of Mr Yong revealed extensive injuries, including bruising and swelling to his face.
19The prosecution do not allege that the two blows you delivered to Mr Yong are responsible for all of the injuries he sustained. However, your blows did contribute to the injuries he sustained.
20On 8 April 2021, police executed a search warrant at the Noble Park property. You were present at the address and were arrested.
21You were taken to the Dandenong police station where you were interviewed with the assistance of a Malaysian interpreter. You gave no comment answers to the allegations made.
Nature and Gravity of the Offending
22The use of violence in recouping unpaid drug debts is often associated with extremely grave offending. In your case, a group of people offending against a single, largely defenceless victim is an example of such offending. The victim’s car was stolen and he was seriously assaulted and unlawfully imprisoned for an extended period of time. I note that you are not charged with offences relating to this extended period,
23On the basis of Mr Yong’s evidence, it is accepted that you were peer pressured into stealing the victim’s car and assaulting him. The prosecution concede, however, that your role specifically was less than that of your co-accused as a result.
24I accept that the depositions reveal that you demonstrated a degree of empathy for the victim during the offending. Your empathy was illustrated by giving Mr Yong a 'burn' of heroin when he was suffering from heroin withdrawal. Mr Yong also confirmed the pressure you were under from others to offend in the manner that you did. This, however, does not give rise to any absolute defence to the charges.
25Your involvement in this offending demonstrates that you were well and truly caught up in the vicious cycle of drug abuse and related violent offending, and the peer pressure which is often brought to bear on those captured by the vice of drug addiction. Whilst the evidence of peer pressure upon you does not amount to a finding that you were under duress, it does give rise to the appropriate conclusion that your moral culpability for this offending ought be somewhat reduced. The court notes, however, that you still fall to be sentenced for the elements of each offence to which you have pleaded guilty.
Personal Circumstances
26You were 29 years of age at the time of your offending and are now aged 29. You were born in Malaysia where your parents still reside. They, and your two younger sisters who also live in Australia continue to support you. I note that your sisters have joined this hearing, and one has provided a character reference to the court which speaks of your love of family and support of your community.[5]
[5]Exhibit D1
27You completed Year 12 equivalent in Malaysia and after leaving school, worked in your father’s business. You were married in 2018 and have a daughter and a son. You divorced in 2019 and came to Australia shortly thereafter to commence a new life and seek to leave a history of drug addiction behind. You have maintained FaceTime contact with your children prior to imprisonment and hope to continue your relationship upon your eventual release from custody.
28You initially came to Australia on a tourist visa in November 2019. After being placed on a bridging Visa, you engaged in employment and worked for three to four months in a factory.
29You have functional understanding of English, but you struggle with the spoken language.
30Unfortunately, after a number of months in Australia, you relapsed into drug use.
31Your use of ice began at aged 19 and your habit had increased to the use of five points per day by the time you arrived in Australia. After your relapse, you were using at a similar level prior to your arrest.
32Mr Shaw submits to the court that your time in custody has been a useful circuit breaker and that you have been drug free since the time of your arrest.
33Mr Shaw also submits on your behalf that you are likely to be deported if you receive a sentence of 12 months' imprisonment or longer. This is however, somewhat a matter of speculation and not a factor that I specifically take into account in sentencing you today.
Rehabilitation
34Mr Shaw submits that your prospects of rehabilitation are good, however no evidence of your drug-free status or prospects of rehabilitation were tendered to the court to allow a specific conclusion to be drawn.
35If you choose to avoid your previous associates upon release, engage in drug counselling and find gainful employment, I assess your prospects of rehabilitation as reasonable.
Sentencing Considerations
Early Plea & COVID-19 Considerations
36This matter resolved shortly after committal hearing. This committal hearing had great utility and the evidence given at it provided the basis for appropriate resolution of your case. I therefore accept that you offered a guilty plea at an early opportunity and accordingly you are entitled to a sentence discount reflecting the utilitarian value to the justice system.
37This is particularly so during the COVID-19 health pandemic. In Worboyes’ case,[6] the Court of Appeal stated:
'a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time.'
[6]Worboyes v the Queen [2021] VSCA 169
38I note that a victim impact statement was sought by the prosecution but not provided.
Parity
39You are the first amongst your co-accused to be sentenced and accordingly the issue of parity is not applicable at this point.
Current Sentencing Practices
40I have had regard to current sentencing practices in respect of the offences for which you are charged.
Sentencing Purposes
41It is accepted by the prosecution that the principle sentencing purposes in your case are general deterrence and protection of the community.
42There can be no doubt, given the circumstances in which the offences were committed, that an immediate term of imprisonment must be imposed to deter others from engaging in similar offending. Such a sentence is necessary to protect the community from drug-related offending such as yours.
Counsel’s Submissions
43Mr Shaw on your behalf seeks that you be sentenced to a term of imprisonment which does not exceed the time you have already served on remand. Mr Dober for the prosecution does not contend against this disposition taking into account your particular circumstances and importantly, your relatively minor role in the overall offending. I concur with these submissions.
Sentence
44Accordingly, Muslim Yunus, I turn to sentence you as follows:
45On Charge 2 (causing injury intentionally) you are convicted and sentenced to nine months' imprisonment. This is the base sentence.
46On Charge 1 (theft of a motor vehicle) you are convicted and sentenced to six months' imprisonment.
47These terms are to be served concurrently. That is, they are to be served at the same time. The total effective sentence is nine months' imprisonment.
Pre-Sentence Detention
48Pursuant to s18 of the Sentencing Act 1991, the period of 303 days of pre-sentence detention (including today) is hereby declared as having already been served in respect of this sentence. I order that such declaration and its details be entered in the court records.
Section 6AAA Declaration
49Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of 14 months' imprisonment.
0