Director of Public Prosecutions v Yussuf

[2024] VCC 663

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised
Not Restricted
Suitable for Publication

CR-23-01640

DIRECTOR OF PUBLIC PROSECUTIONS

v

AHMED YUSSUF

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JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February and 17 April 2024
DATE OF SENTENCE:	14 May 2024
CASE MAY BE CITED AS:	DPP v Yussuf
MEDIUM NEUTRAL CITATION:	[2024] VCC 663

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentence.

Catchwords:              Pre-meditated attempted armed robbery on Commonwealth Bank immediately followed by relatively spontaneous armed robbery on Foodworks store – Brandishing of large knife – Crude use of disguise – Early plea and remorse – Previous diagnosis of schizophrenia – Verdins limbs 1, 3 and 4 engaged – Relevant but limited criminal history – 43 days of Renzella time – Fair but guarded prospects of rehabilitation.

Legislation Cited:      Crimes Act 1958, ss 75A, 321M; Sentencing Act 1991, ss 6AAA, 18.

Cases Cited:R v Verdins (2007) 16 VR 269; R v Renzella [1997] 2 VR 88.

Sentence:                  Total effective sentence of 3 years and 3 months imprisonment with non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Wilson	Office of Public Prosecutions
For the Offender	Ms T. Casey (Plea) Ms I. Siriwardana (Further Plea & Sentence)	Victoria Legal Aid

HIS HONOUR:

Introduction

1Mr Yussuf, you have pleaded guilty to an indictment[1] containing one charge of attempted armed robbery[2] and one charge of armed robbery.[3] The maximum penalty for those offences are 20 years and 25 years’ imprisonment, respectively.

[1] Indictment P11353268.

[2] Charge 1 pursuant to ss 75A and 321M of the Crimes Act 1958 (Vic).

[3] Charge 2 pursuant to s 75A of the Crimes Act 1958 (Vic).

2Those offences occurred within minutes of each other on the afternoon of 21 June 2023, when you were aged 29. You are now 30, having been born in September 1993. At the relevant time, you were living in an upper level flat in the Flemington High Rise Commission Flats.

Circumstances of the offending

3The circumstances of that offending are set out in the typed prosecution opening[4] and were discussed during the plea hearing. For present purposes, it can be briefly summarised as follows.

[4] Exhibit A.

4At 1:41 pm on 21 June, you exited your flat and caught the lift to the ground floor. You were wearing a Puma-branded green hooded jumper, blue tracksuit pants with an orange drawstring and a pair of black and white Adidas shoes. You wore the hood of your jacket over your head and a facemask over your face.

5After walking south along Errol Street, North Melbourne, you entered the Errol Street branch of the Commonwealth Bank building at about 2:23 pm. You approached a male teller, Konstandinos Paschalis, who had been counting money.

6When you likely became aware of the presence of two Armaguard security officers, you turned and walked out and crossed the road, where you then remained.

7At about 2:33 pm, those officers exited the branch and, a few minutes later, left the general area.

8Once they had left, you re-crossed the road and re-entered the branch. Upon entering, you were greeted by a female staff member who asked you if she could be of assistance. You replied ‘no, teller’ and continued walking towards where the teller Mr Paschalis was sitting near another staff member, Rosa Comiso. As you approached the counter, Ms Comiso left the teller area, leaving Mr Paschalis alone. You then pulled out a 30-centimetre knife from the right sleeve of your jumper and then brandished it at Mr Paschalis through a gap in the clear security screen.

9You demanded money from him, saying ‘money, money’ and ‘money, money, give me the money’. He repeatedly told you that he did not have any money and then activated a duress alarm under the teller counter. By this point, you had taken a hold of his computer screen and keyboard. During an ensuing struggle, you retained possession of the knife in your hand and often waved it at Mr Paschalis by pointing it through the gap in the security screen. Your conduct as just described forms the basis for the offence of attempted armed robbery, alleged in Charge 1 on the indictment.

10Mr Paschalis then took a step back from the counter and again activated the duress alarm. Another staff member also pressed their silent security alarm.

11Having failed to obtain any money, you then turned and ran out of the branch, leaving your fingerprints on the internal glass sliding doors as you exited. At this time, the metal security screens around the teller were activated and the area was shut down. Police were then called and duly attended.

12After exiting the branch, you ran west along Queensberry Street towards the local Foodworks store which was located approximately 130 metres away from the bank. After initially running past, you turned around and then went inside that store.

13At this time, a female named Lia Egli was working alone at the fridge area of the store, pricing stock.

14You approached the front counter, pulled a knife from the front of your hooded jumper and then pointed it towards her. She later described the knife as being approximately 25 to 30 centimetres in length with a finely serrated blade.

15You then demanded money from her, saying ‘give me the money’. She initially told you that she did not have any but on realising that you were referring to the money in the register, then walked towards the counter. You then grabbed her left arm and guided her to the register behind the counter. After she opened the register, you stole approximately $140 in notes, which you put in the front pocket of your jumper together with the knife.

16You then ran from the store and escaped on foot.

17Ms Egli immediately reported the matter to management who then notified the police.

18Your conduct as just described forms the basis for the offence of armed robbery, alleged in Charge 2 on the indictment.

19After travelling the approximately 2.7 kilometres from the Foodworks store, you arrived back at the Flemington Flats at about 3:05 pm. The CCTV footage of you catching the lift up to your upper-level flat depicts you wearing the same clothing as you had worn while offending and holding a knife which appeared similar to the one you had produced at the bank and Foodworks store.

20In due course, police obtained the relevant CCTV footage from each of those businesses. Relevant portions of that footage were played to this court during the plea hearing.[5]

[5] Exhibit B.

21As a result of viewing the CCTV footage from the bank, investigators arranged for the internal glass sliding door to be fingerprinted. When that was done, your left palm print was detected.

Arrest and interview

22On 23 June 2023, you were arrested at your Flemington flat which was then searched by police under warrant. They located and seized your mobile phone and a pair of black and white Adidas sneakers of similar appearance to the ones you appear to be wearing in the relevant CCTV footage.

23You were later taken to a police station and interviewed. You answered ‘no comment’ during that police interview, as was your legal right.

Pre-sentence detention

24Following the interview, you were charged and remanded in custody where you have remained. The total period of pre-sentence detention for this matter is therefore 326 days, up to but not including today’s date. A formal declaration to that effect will be made shortly.

Guilty plea

25I note that this matter resolved at the first committal case conference and proceeded by way of a straight hand-up brief, thereby avoiding the need for any witnesses to give evidence. Your plea is therefore to be viewed as having been entered at the earliest opportunity. As such, you are entitled to and will receive a significant sentencing discount for pleading guilty as and when you did.

Victim impact

26In his victim impact statement, which was declared on 19 January this year,[6] Mr Paschalis explains the adverse emotional and psychological effects that your offending have caused him. He no longer feels safe in his workplace. He suffers from anxiety and is wary of anyone wearing a hoody or a facemask. He still feels angry about what you did to him.

[6] Exhibit C.

Prior criminal history

27As evidenced by the criminal record filed with this court, you have a fairly limited but nonetheless relevant prior criminal history.

28On 18 September 2014, you successfully appealed to this court in relation to a combination sentence you had received in the Melbourne Magistrates Court three months earlier. You were re-sentenced on a total of seven charges, including two of theft and two of recklessly causing injury, to a stand-alone 18 month community correction order with conviction which included conditions relating to supervision, unpaid community work and undergoing assessment and treatment.

29You ended up breaching that order by way of non-compliance with the supervision and work components. At the breach hearing on 21 November 2016, the breach offence was found proven but no further action was taken.

30The last of your prior convictions were imposed in the Sunshine Magistrates Court on 13 April 2021, at which time you were sentenced to an aggregate term of 35 days’ imprisonment in respect of a total of 16 offences, including one of use threatening words in public, three of assault emergency worker on duty and one of unlawful assault. A period of 78 days was formally declared as pre-sentence detention. I note the fact that you served 43 days more than you were ultimately sentenced to was understandably relied on by your counsel in this matter as a basis for a Renzella type discount.[7]

[7] R v Renzella [1997] 2 VR 88.

31At the plea hearing of this matter, I was informed that part of the offending for which you were sentenced in 2014 had occurred in 2013 and included an incident in which you and a co-offender had physically confronted the owner of a milk bar at night, causing her some injury, after which you stole money from the till. Whilst not involving the use of a weapon, that offending appears to have some similarities to the current charge of armed robbery in the sense that you targeted a vulnerable female victim in her workplace.

Subsequent criminal history

32For the sake of completeness and for necessary context, I note that at the time you committed the current offences, you were facing a charge of contravention of a family violence intervention order for which a warrant had been issued for your arrest on 5 October 2022.[8] That warrant was executed when you were arrested on the current charges, after which you were remanded on both matters.

[8] The fail to appear charge related to a failure to attend court on the day that the warrant was issued, namely 5 October 2022.

33You ultimately pleaded guilty to the contravention of family intervention order charge as well as to a charge of failing to appear in answer to bail on that charge. For those offences, you were recently sentenced in the Werribee Magistrates Court to a four month Good Behaviour Bond, with conviction.

Personal circumstances

34I now turn to consider your personal circumstances, Mr Yussuf.

35You were born in Kenya but travelled to Australia with your mother in 1995, when you were only two years old. Your parents were born in Somalia and your father remains living in Africa. You and your mother are now Australian citizens.

36You mother re-partnered and had six more children. For some reason, you were singled out in a way that your stepsiblings were not. You were subjected to physical and emotional abuse at the hands of your stepfather and mother, which resulted in a number of hospital admissions. The authorities were never notified and so you remained living in a frightening and abusive home. You seem to have internalised your emotions during that period. You later described yourself as being an ‘angry’ child.

37Despite those difficulties, you continue to have contact with your family here in Australia and speak to them on the phone regularly.

38You also experienced racism and bullying as you were growing up.

39As Dr Trainor notes, the difficulties that you experienced in your formative years were likely to have had an impact on your personality development.

40After you left school in Year 11, you worked at Nando’s and then at McDonald’s. You then started but did not complete a tiling apprenticeship. Your longest period of employment was for three years, packing at a warehouse. During that period, you were able to abstain from methylamphetamine use.

41However, at age 24, you relapsed into using that drug after returning from a visit to your father overseas, an experience which you have described as ‘eye opening’.

42Prior to being remanded in custody, you were being treated for your mental health on a voluntary basis at the Waratah Clinic. You are open to the idea of resuming treatment there on your discharge from custody.

43Before being remanded, you were in receipt of a disability support pension although not registered with NDIS. You were also engaging with a disability work provider named Matchworks, in Flemington. On release from custody, you plan to re-engage with that organisation. You have your driver’s licence and hope to obtain employment as a courier. Failing that, you are open to the idea of working in a warehouse again.

44You had a rapid entry into the mental health system when you were incarcerated in 2021. You were transferred to Thomas Embling Hospital and subjected to electro-convulsive therapy following a Mental Health Tribunal decision. You were not represented at that hearing and you found the whole experience very confusing. Due to adverse side effects, the therapy was ended after only six of the planned 12 sessions. Your counsel submitted that it was not surprising that in those circumstances your understanding of and insight into your mental illness was impaired and that you harboured a distrust in the system.

45However, as she also submitted, you now accept your diagnosis and have improved understanding and insight into your condition and the need for treatment. It was also acknowledged that you now have a better understanding of the adverse effects that drug use can have on your mental health. Currently, you are being treated on a voluntary basis. Your medication includes a monthly injection of Haloperidol and a 10-milligram nightly dose of Olanzapine taken orally.

46You currently have a pending application for NDIS assistance. The benefits that would accrue to you in the event that your application is approved were outlined by your counsel and are discussed by Ms Lechner in her report.

47The chances of you having stable accommodation on your eventual release from custody somewhat depend on whether you can retain the Flemington flat in which you have been living since you were a young child. A decision will be made in that regard by the relevant department once you have been sentenced for this matter.

48On a positive note, you appear to have an ongoing offer of support for up to two years post-release from the Bridge Centre Program run by GEO.[9]

[9] See exhibit 5 for the details.

Matters in mitigation

49Your counsel was able to rely on a number of matters in mitigation on your behalf, Mr Yussuf.

50You pleaded guilty at the earliest reasonable opportunity, thereby saving the victims from the ordeal of having to give evidence. By taking that course, you saved the community the cost and time of a trial and facilitated the course of justice. A modest allowance should be made by way of a Worboyes discount as you offered to plead guilty to these charges about five to six weeks before this court managed to erase its trial listing backlog.

51I am satisfied that you are remorseful for your offending based on that early plea and the sentiments that you expressed to the psychologist Carla Lechner,[10] and to the psychiatrist Dr Trainor.[11]

[10] See report dated 15 November 2023, exhibit 1.

[11] See report bearing due date of 10 April 2024.

52Carla Lechner assessed you on 23 October last year. She noted your existing diagnosis of paranoid schizophrenia and the fact that you had previously been under the care of an Area Mental Health Service, namely Waratah Clinic. In her view, you also evidenced symptoms of stimulant and cannabis disorder (in early remission) and major depressive disorder.

53In her report she notes that your prior history of offending has arisen in the context of a long-standing drug addiction problem and a serious mental illness. You have previously been placed on a Compulsory Treatment Order and a Community Treatment order, the latter expiring on 12 November last year. Your compliance with prescribed medication has been variable and you tend to relapse to illicit drug use within months of your release from hospital or prison. In her view, you appear to be caught in a cycle of using drugs to quell your psychotic symptoms only to find that they are aggravated and so you use even more drugs, and the cycle goes on. In the period leading up to this offending, you had ceased your oral anti-psychotic medication and continued to use drugs. In those circumstances, your symptoms increased and included auditory hallucinations urging you to buy a radio.

54In a court commissioned report, the forensic clinical psychiatrist, Dr Trainor, set out your contact with Thomas Embling Hospital (in 2021) and the Royal Melbourne Hospital (in 2021 and again in 2022), and your discharge onto a Community Treatment Order. He noted that you have a diagnosis of schizophrenia, complicated by medication non-adherence and illicit substance use. Apparently, you have no side effects from the medication you are currently being prescribed.

55Dr Trainor allowed for the possibility that whilst not directly causally related, you experienced hallucinations commanding you to obtain money by illegal means, and that the offending occurred partially as a result of this, in combination with other indirect factors, such as your personality style, substance use leading to disinhibition and poor judgement, poor social supports, unemployment and financial stress.

56Both Ms Lechner and Dr Trainor refer to the need for you to be supported in the community on your release, including by way of appropriate treatment and counselling in relation to your mental health and drug addiction.

57A significant part of the plea discussions revolved around whether, as submitted by your counsel, Limbs 1, 3 and 4 in Verdins case were engaged. Ultimately, the defence and prosecution agreed that the net effect of what Ms Lechner and Dr Trainor had said in their reports, would enable this court to find your level of moral culpability reduced to a modest extent and to effect a modest reduction in the weight to be attached to deterrence, both general and specific.

58Having considered those submissions and those reports, I am prepared to approach the matter in the manner suggested by the parties. In light of the confluence of a number of factors, including your deteriorating mental state, problems with your compliance with treatment and medication and your ongoing drug use, it is simply not possible to now unscramble the egg, so to speak. Whilst all factors were likely at play as contributing factors, this court is unable to find, with any degree of precision, the extent to which your mental illness in the form of schizophrenia, played a part in this offending.

59The suggestion that Limb 5 of Verdins was also engaged was but faintly advanced by your counsel and only by way of brief oral submissions. At the highest, the submission was founded on a less than emphatic and somewhat speculative risk referred to by Ms Lechner in her report. But as defence counsel also acknowledged, you appear to have benefitted to some degree as a result of being on remand for this matter. Not only have you detoxified in relation to your drug use, but you have also been compliant with the mental health treatment and medication that you have been receiving while in custody. Ultimately, I am not satisfied the defence have discharged the necessary evidentiary onus in relation to this issue.

60However, that said, I readily accept that you would find the adult prison system a difficult environment to navigate given your relative inexperience with that system. I have taken that matter into consideration in your case.

61I accept that you have attempted to use your time on remand productively by working in the prison kitchen. You have also completed two drug related courses, which I accept will assist you to try and remain drug free once you are released back into the community.[12]

[12] See exhibit 4. Mr Yussef has also completed a course titled ‘Certificate II in Skills for Work and Vocational Pathways’ (also part of exh 4).

62I accept that it is appropriate to have general regard to the relevant period of 43 days that you served in custody in 2021, in accordance with the principles discussed in Renzella’s case. It is a matter to which I have had regard when fixing the appropriate sentence in this case.

63I have also had regard to your difficult and disadvantaged upbringing as part of your relevant personal circumstances, although I am unable to conclude that it rises to the type of profound disadvantage that the High Court referred to in Bugmy’s case.

Gravity of the offending

64This court must also have regard to the objective gravity of your offending.

65The offences that you committed must be viewed as inherently serious given the significant maximum penalties that apply, particularly for armed robbery.

66The offences that you committed were serious and included the following features.

67The first of those offences involved a pre-meditated and very persistent attempt to steal money from a bank teller at knifepoint. The weapon that you chose to produce and brandish was no doubt one that instilled fear in the victim and in the other persons who were unfortunate enough to witness your crime. It was a brazen offence, carried out in broad daylight and in the presence and sight of a number of witnesses. It is clear that you knew that what you were doing was seriously wrong. You took the trouble to disguise your appearance and waited until the security guards had left the area. It was an attempt only because your victim refused to hand over any money and activated an alarm. It is clear from the victim impact statement that your offending has had an ongoing and deleterious impact on Mr Paschalis, which is hardly surprising.

68By contrast, the second offence was rather spontaneous in nature and likely to have been committed because of your earlier failed attempt to get money from the nearby bank. However, once you decided to get money from the Foodworks store, you appear to have been committed to that task. Your victim was particularly vulnerable as a female working alone. She was, on any view, a very soft target. Your behaviour, especially your brandishing of a large knife at close quarters, must have been a very frightening experience for her.

69I consider each of these offences to be mid-range on the spectrum of seriousness for those types of offences. I also consider that while your level of moral culpability ought to be reduced to a modest extent on account of your mental illness, it was still fairly significant.

70All relevant matters considered, I do not consider it appropriate to differentiate between these two offences in terms of the individual sentences to be imposed.

Relevant sentencing principles

71In this case, the sentencing principles of general deterrence and denunciation have a role to play, as does specific deterrence.

72Protection of the community assumes some significance in your case. Your prior convictions relating to the 2013 milk bar incident are very relevant, as is the fact that you told a registrar in January 2024 that you did not have an illness and did not need medication.[13] In that context, I also note that Ms Lechner was of the view that you have limited insight regarding the need to remain connected with psychiatric services.

[13] See report of Dr Trainor at [34].

73As required by law you must be punished to an extent and in a manner that is just in all the circumstances. Given the serious nature of these offences, such a punishment must be relatively significant.

74This court must also have regard to your age and prospects of rehabilitation, which I have concluded are fair but also quite guarded. So much will depend on your motivation and ability to remain drug free and treatment and medication compliant on your release from custody. Addressing those twin and interconnected issues will be essential if you are to have any realistic chance of achieving medium to long term rehabilitation.

Sentencing submissions

75Your counsel urged the court to impose a combination sentence with a lengthy and suitably tailored community correction order. In the event that time already served on remand were considered insufficient, it was suggested that a combination sentence involving some further time in custody would be appropriate and still capable of adequately addressing the punitive and therapeutic requirements of any sentence.

76When I raised the possibility that any such disposition may not be within the range, your counsel in effect urged the court to impose the minimum sentence that the justice of the case would permit and a relatively disparate non-parole period.

77For their part, the prosecution highlighted the more serious aspects of this offending, the need for a degree of cumulation as between the two charges, your relevant criminal history and some of the relevant sentencing principles. Their ultimate submission was that nothing other than a head sentence with a non-parole period was open in all of the circumstances.

Analysis

78In my view, nothing short of a head sentence with a non-parole period would be appropriate for this offending. Any lesser type of sentence would simply fail to accord the necessary weight to a number of relevant sentencing principles, including deterrence, denunciation and protection of the community and would not represent a just punishment.

79Whilst you have a relevant criminal history, it is not lengthy and it does not include any prior offences of armed robbery or attempted armed robbery.

80Furthermore, the time that you have previously spent in custody has been limited.

81Given those and other relevant factors, the parity principle assumes some significance. Whilst a custodial sentence is unavoidable, the length of any sentence should be kept to the minimum that the justice of this case requires, no more and no less.

82The circumstances of this case and of Mr Yussef are such that I consider it appropriate to impose a somewhat disparate non-parole period as compared to the head sentence. By taking that course, this court is endeavouring to maximise Mr Yussef’s prosects of rehabilitation. In the event that the Adult Parole Board finds Mr Yussef eligible for release on parole, he will be assisted and the community protected by what no doubt will be a strictly tailored set of parole conditions aimed at ensuring, so far as possible, that he abstains from further drug use and complies with any recommended treatment and medication for his mental health.

Sentence

83Mr Yussuf, after having carefully considered, balanced and weighed the relevant sentencing considerations in your case, I have decided to sentence you as follows.

84You will be convicted on each charge and sentenced to the following terms of imprisonment.

85On Charge 1, attempted armed robbery, two years and six months.

86On Charge 2, armed robbery, two years and six months.

87The sentence of two years and six months imposed on Charge 1 will be the base sentence.

88Nine months of the sentence imposed on Charge 2 is to be served cumulatively on the base sentence.

89The total effective sentence is therefore three years and three months’ imprisonment.

90In respect of that head sentence, I fix a non-parole period of two years.

Pre-sentence detention

91Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served a total of 326 days of pre-sentence detention, not including today’s date, in respect of today’s sentence. I order that such period is to be reckoned as already served under that sentence and that the declaration and its details be entered in the records of this court.

Section 6AAA indication

92Pursuant to s 6AAA of the Sentencing Act1991, I indicate that but for your plea of guilty you would have been sentenced to a total effective sentence of four and a half years with a non-parole period of three years.

Other matters

93Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Ms Siriwardana?

94MS SIRIWARDANA: No, thank you Your Honour.

95HIS HONOUR: Mr Wilson?

96MR WILSON: No, Your Honour. Thank you.

97HIS HONOUR: Ms Siriwardana, once I leave the Bench you will be permitted to have a brief conversation with your client utilising the current video link, if you wish.

98MS SIRIWARDANA: Thank you, Your Honour, for the opportunity.

99HIS HONOUR: I will now stand down until the next matter is ready to proceed at 11.00 o’clock, thank you.

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