Hussein v The Queen

[2010] VSCA 257

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2009 0874

ZAKARIE  OMAR HUSSEIN

v

THE QUEEN

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JUDGES:	BUCHANAN and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2010
DATE OF JUDGMENT:	4 October 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 257
JUDGMENT APPEALED FROM:	R v Zakarie Hussein  (Unreported, County Court of Victoria, Judge Jenkins, 23 October 2009)

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CRIMINAL LAW – Sentence – Armed robbery – Recklessly causing serious injury – Parity – Offences committed in concert – Appellant did not physically participate in crimes – Co-offenders sentenced to be detained in Youth Justice Centres – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J E McLoughlin	Victoria Legal Aid
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

1. The appellant was arraigned in the County Court and pleaded guilty to a presentment containing one count of armed robbery, (count 8), one count of recklessly causing serious injury, (count 1), and six counts of recklessly causing injury, (counts 2 to 7). 

1. After a plea, the appellant was sentenced to be imprisoned for a term of three years on the count of recklessly causing serious injury, for a term of three years and six months on the count of armed robbery and for a term of six months on each of the counts of recklessly causing injury.  With the measure of cumulation, a total effective sentence of four years and six months imprisonment was fixed and the sentencing judge ordered that the appellant serve a minimum term of two years' imprisonment before he was to become eligible for parole.

1. The appellant has been granted leave to appeal against the sentence by a single judge of this Court. 

1. The offences were committed in company with five youths, all younger than the appellant, whose ages ranged between 14 and 17 years at the time of the commission of the offences.  The appellant was then aged 20 years.

1. The offenders gathered in a park in Sunshine on a summer's evening.  They consumed a number of cans of beer.  Later the gang became involved in an argument with two Indian men in front of the Indian Impex store in Sunshine.  The argument was racist in nature and the offenders made racist remarks about the Indians.  The offenders then left. 

1. The offenders returned a few minutes later and entered the store.  Four of the youths, including the appellant, were armed with pieces of wood which they had removed for a seat at a nearby bus shelter.  Another of the youths was armed with a fluorescent light tube.  The Indian owner of the shop described the attack as follows:

It was at this time that approximately ten Islanders ran into the shop.  They all ran into the shop yelling 'Are you Indian?'  All of a sudden they started hitting everything and everyone with the sticks and metal rods.  While they were hitting us they were yelling 'Bloody Indians.  Fuck off'. 

1. The youths attacked a number of persons present in the store.  The Crown case was that the offenders acted in concert.

1. Inside the store, one of the offenders asked if the persons present were, ‘Singh or Desi’.  The persons present replied they were, ‘Singh’.  Thereupon one of the offenders punched one of the victims in the face and launched himself at one of the other persons present, holding a piece of wood, forcing the victim into shelving, which caused the shelving to collapse.  The offender proceeded to strike a number of the victims with the piece of wood.  Another offender punched one of the persons in the shop and the other offenders assaulted other victims.  Two of the offenders removed the cash register from the counter.  The offenders ran from the store carrying the cash register which contained between 600 and $700.

1. Some eight people were assaulted.  One of them suffered serious injuries and was taken to the hospital where he remained in a coma for 15 days with head injuries, numerous skull fractures and facial fractures.  In a report to the Court, a medical practitioner said that in his opinion the long-term effect of the injuries would be severe and permanent including loss of fulfilment of intellectual potential, epilepsy, disordered heart functioning, insight, memory, judgment and ability to concentrate.  Other victims suffered cuts and bruising.

1. The Crown case was that the victim who sustained the most serious injuries was attacked by a person other than the appellant.  Each of the offenders, however, actively supported each other in the commission of the offences.  The appellant was armed and entered the store with the others in an organised show of force while intoxicated.  He was not identified as physically participating in any of the assaults or the armed robbery.

1. The appellant is now 22 years old.  He was born in Somalia and he migrated to Australia with his mother and older brother when he was only six or seven years old.  The appellant's mother became ill when  he was nine years old and was subsequently diagnosed as suffering from bipolar mood disorder.  Her affairs are administered by the State Trustee. 

1. The appellant left school after completing Year 12 and worked in telemarketing for some six months and than at a butcher shop for about three weeks. 

1. The appellant  had been convicted in one hearing in the Magistrates' Court on charges of being drunk in a public place, resisting a police officer, assaulting a police officer and using indecent language.  He was fined $500.

1. The appellant began smoking marijuana in his mid teens and by Year 12 was using amphetamine on a regular basis.  He also drank alcohol nearly every day.  While in remand awaiting sentence, the appellant attended Alcoholics Anonymous and was given drug and alcohol counselling. 

1. In the course of the plea a report by a psychologist was tendered.  The psychologist was of the opinion that the appellant exhibited a number of symptoms consistent with clinical depression although that was, to some extent, reactive to his current predicament.  He expressed regret and shame at his offending and demonstrated some insight into his drug use.

1. A ground of the appeal is that the sentence imposed upon the appellant breached the principle of parity.  Each of the co-offenders was sentenced to 12 months' detention in a Youth Justice Centre.  In R v Evans Vincent J said:

The parity principle can have only limited application in the case of an adult offender where a younger offender has been dealt with according to different principles and practices.  An elaborate system has been developed to deal with the problem of offending by children and young persons in our community with a separate court, separate detention facilities, supervision systems and so forth. 

Whilst broadly speaking normal sentencing principles can be said to remain applicable when dealing with youthful offenders, as a matter of law and practice it is recognised that the respective weight to be given to relevant factors will vary.  These considerations can and do lead to dispositions which would be regarded as entirely inappropriate in the case of older and presumably more mature individuals.

Nevertheless, the sentences imposed upon the co-offenders are part of the relevant background and were to be considered in determining an appropriate sentence to be imposed upon the appellant. 

1. Counsel for the appellant drew attention to the role played by the appellant in the offending.  The co-offenders were charged with intentionally causing serious injury on the basis that they physically participated in the assault.  The appellant was present but did not strike any of the victims, nor did he actively participate in the armed robbery.

1. In my opinion the disparity between the punishment imposed upon the appellant and his co-offenders is significant.  Allowing for the fact that the co-offenders were subject to a quite different regime, it does nevertheless appear that the appellant suffered as a consequence of his age.  This ground should be considered together with the ground that the sentence was manifestly excessive.

1. The crime itself was serious.  A number of defenceless persons were subjected to a violent, racially motivated, terrifying attack by a gang of youths and one of the victims was severely injured.  On the other hand, the appellant can rely upon a number of significant mitigating factors.  He pleaded guilty, he was a youthful offender, he had a limited criminal history, his role in the offending was limited, he was an immature youth from a disadvantaged background who mixed with much younger people, the initiators of the offending, and he was remorseful.  The psychologist’s report also dealt with the co-offenders and expressed the opinion that the appellant did not exhibit the same problems with anger as his co-offenders.

1. I have concluded that the sentence was manifestly excessive.  I would allow the appeal, set aside the judgment passed below, and in lieu thereof sentence the appellant to be imprisoned for a term of two years and six months on the count of recklessly causing serious injury, to a term of two years and six months on the count of armed robbery and to a term of six months on each of the counts of recklessly causing injury.  I would cumulate one year of the term on the count of recklessly causing serious injury, on the counts of armed robbery, creating a total effective

sentence of three years and six months' imprisonment.  I would fix a minimum term of 18 months' imprisonment before the appellant is to be eligible for parole. 

1. Pursuant to the provisions of s.6AAA of the Sentencing Act 1991, I state that I would have imposed a total effective sentence of fours and six months' imprisonment with a minimum term of two years' imprisonment but for the plea of guilty.

NEAVE JA:

1. I agree.

BUCHANAN JA:

1. The orders of the Court will be as follows:

1.        The appeal is allowed. 

2.        The sentence passed below is set aside and in lieu thereof the appellant is sentenced to be imprisoned for a term of two years and six months on the count of recklessly causing serious injury; to a term of two years and six months on the count of armed robbery, and to a term of six months on each of the counts of recklessly causing injury.  One year of the term on the count of recklessly causing serious injury is to be cumulated - on the sentence on the count of armed robbery, creating a total effective sentence of three years and six months' imprisonment.  A minimum term of 18 months' imprisonment is fixed before the appellant is to be eligible for parole.

4.        It is declared that a period of 574 days is to be reckoned as already served under the sentence and it is ordered that the fact of that declaration has been made, and its details be entered in the record of the Court. 

5.        I confirm the ancillary orders made below.