Mustafa Muhumed v The Queen

[2020] VSCA 91

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0054

MUSTAFA MUHUMED	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and OSBORN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2020
DATE OF JUDGMENT:	17 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 91
JUDGMENT APPEALED FROM:	[2019] VCC 134 (Judge Trapnell)

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CRIMINAL LAW – Appeal – Sentence – Co-offenders – Parity – Applicant convicted on 3 charges of armed robbery and commit indictable offence whilst on bail – Throw a missile to injure – Unlawful assault – Applicant sentenced to 4 years, 6 months and 28 days’ imprisonment with non-parole period of 3 years’ imprisonment – Co-offender convicted  on 2 charges of armed robbery and one charge of commit indictable offence whilst on bail – Co-offender sentenced to 1 year and 6 months’ imprisonment and a 2 year community correction order – Whether disparity between sentences offended parity principle – Whether disparity manifestly excessive – Differences in personal circumstances and role taken in offending – Age – Similar traumatic backgrounds as refugees – Applicant had substantial criminal history – Co-offender principal offender – Co-offender youthful offender with very moderate criminal history serving first sentence in adult jail – Co-offender pleaded guilty at first opportunity – Remorse – Applicant only pleaded guilty to related summary charges and offered to plead guilty to certain lesser alternative charges – Disparity reasonably open – No manifest excess – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms M Brown	Ann Valos Criminal Law
For the Respondent	Ms M Mahady	Ms A Hogan, Solicitor for Public Prosecutions

WEINBERG JA
OSBORN JA:

1. Following a trial before a jury in the County Court, the applicant was convicted in February 2019 of three charges of armed robbery. 

1. On 19 February 2019, the applicant was sentenced by his Honour Judge Trapnell in respect of these charges together with five related summary offences as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment No: H13048900.1
1.	Armed robbery [s 75A(1) of the Crimes Act 1958]	25 years’ imprisonment [s75A(2) of the Crimes Act 1958]	2 years’ imprisonment	6 months
2.	Armed robbery [s 75A(1) of the Crimes Act 1958]	25 years’ imprisonment [s75A(2) of the Crimes Act 1958]	30  months’ imprisonment	Base
3.	Armed robbery [s 75A(1) of the Crimes Act 1958]	25 years’ imprisonment [s75A(2) of the Crimes Act 1958]	30 months’ imprisonment	18 months
Summary charges:
5.	Throw a missile to injure [s 7(g) of the Summary Offences Act 1966]	25 penalty units or 6 months’ imprisonment	7 days’ imprisonment	Served concurrently
6.	Unlawful assault [s 23 of the Summary Offences Act 1966]	15 penalty units or 3 months’ imprisonment	14 days’ imprisonment	7 days
9.	Commit indictable offence whilst on bail [s 30B of the Bail Act 1977]	30 penalty units or 3 months’ imprisonment	30 days’ imprisonment	7 days
10.	Commit indictable offence whilst on bail [s 30B of the Bail Act 1977]	30 penalty units or 3 months’ imprisonment	30 days’ imprisonment	7 days
11.	Commit indictable offence whilst on bail [s 30B of the Bail Act 1977]	30 penalty units or 3 months’ imprisonment	30 days’ imprisonment	7 days
Total effective sentence		4 years, 6 months and 28 days’ imprisonment
Non-parole period:		3 years
Pre-sentence detention		474
Other relevant orders: -            Charges 1 and 2: pay compensation in aggregate sum of $140.43 to The Thirsty Camel Bottle Shop -            Charge 3: pay compensation in the sum of $200.00 to Subway

1. On 29 May 2018, the applicant’s co-offender, Deng Akon (‘Deng’), had pleaded guilty to two charges of armed robbery and a related summary offence arising out of the same incidents as those giving rise to the applicant’s convictions. 

1. Deng was sentenced on 1 June 2018 by his Honour Judge Mason as follows:

Charge	Offence	Maximum	Sentence	Cumulation
Indictment No: H12988297
1.	Armed robbery [s 75A(1) of the Crimes Act 1958]	25 years’  imprisonment [s 75A(2) of the Crimes Act 1958]	12 months’ imprisonment and a 2 year community correction order	Base
2.	Armed robbery [s 75A(1) of the Crimes Act 1958]	25 years’ imprisonment [s 75A(2) of the Crimes Act 1958]	12 months’ imprisonment and a 2 year community correction order	6 months
Summary charges:
9.	Commit indictable offence whilst on bail [s 30B of the Bail Act 1977]	30 penalty units or 3 months’ imprisonment	1 month imprisonment
Total effective sentence		1 year and 6 months’ imprisonment
Non-parole period:		N/A
Pre-sentence detention		218 days
6AAA statement: 4 years imprisonment with a non-parole period of 3 years
Other relevant orders: -            Order for compensation: $400.00 to Subway and $140.43 to the Thirsty Camel -            Forensic sample order

1. The applicant now seeks leave to appeal on the single ground that the sentence imposed upon him did not give effect to the principle of parity. 

Circumstances of the offending

1. At the time of the offending, the applicant and Deng were staying with Deng’s girlfriend in a flat in Flemington. 

Armed robbery 1

1. At approximately midnight on 24 October 2017, the applicant and Deng walked from the flat to the Thirsty Camel bottle shop which forms part of the Quiet Man Irish Pub in Racecourse Road, Flemington.  Deng threatened the bottle shop attendant, Fitzsimmons, with a screwdriver, which he swung at him, grazing him.  Deng and the applicant then took a six pack of Carlton Draught beer for which they did not pay.  Closed circuit television (‘CCTV’) footage shows the applicant leaving the bottle shop with the beer. 

Armed robbery 2

1. Fitzsimmons ran from the bottle shop into the main bar and alerted the manager, Boyce, and a regular patron of the hotel, Hoare, to what had occurred. 

1. Shortly afterwards, the applicant and Deng returned to the bottle shop and confronted Fitzsimmons, Boyce and Hoare.  Boyce tried to keep the applicant and Deng away from Fitzsimons and Hoare.  Boyce ushered Deng towards the spirits section of the bottle shop.  Deng was holding and waving a screwdriver.  Deng demanded alcohol and Boyce gave him two bottles of Jack Daniels bourbon.  Deng demanded more alcohol so Boyce gave him a third bottle. 

1. Whilst this was occurring, the applicant was standing in the drive-through area of the bottle shop.  He approached the group and threw a stubby of beer in their direction (Summary Charge 5 – throw missile to injure).  The applicant then went to the fridge whilst Deng was with Boyce.  The applicant removed a six pack of Victoria Bitter cans, moved up into the service area and threw another stubby of beer at Boyce striking him on the thumb (Summary Charge 6 – unlawful assault). 

1. The applicant and Deng then left the bottle shop and went back to the flat where they were staying.  The total value of the alcohol stolen was $140. 

Armed robbery 3

1. At 10:00 pm on the same day, the applicant and Deng entered a Subway store on Racecourse Road, Flemington.  The attendant told the applicant the store was closed.  Deng went around the service counter and showed the attendant a knife which he had concealed up the sleeve of his jacket.  Deng demanded that the attendant open the till.  Whilst the attendant was trying to open the till, the applicant walked around the service counter and pulled the till from under the counter.  CCTV footage shows the applicant removing the cash drawer and walking out of the store with it.   The till contained approximately $400 cash.

1. At the time of committing these offences, the applicant was on bail in relation to charges of shoplifting.  Accordingly, there were three related summary charges of commit indictable offence whilst on bail (Summary Charges 9, 10 and 11), one in respect of each armed robbery. 

1. Some days later the applicant was identified by police.  When interviewed, the applicant denied committing any offences and denied that he was the person depicted on the CCTV footage.

1. On his trial, the applicant pleaded guilty to alternative charges of theft in respect of Charges 1 and 2 and robbery in respect of Charge 3.   He also pleaded guilty to the related summary charges. 

1. We note for completeness that Charge 1 to which Deng pleaded was a rolled-up count relating to the conduct comprised in Charges 1 and 2 against the applicant. Deng and the applicant had been involved in an incident at a local supermarket on 20 September 2017 and both were on bail for stealing from a shop.  As a result of the subject offending, Deng was also charged with commit indictable offence whilst on bail. 

Personal background

1. The applicant was 30 years old at the time of offending.  He is an Australian citizen born in Somalia.  He spent most of his childhood in refugee camps where he was exposed to traumatic violence.  He came to Australia when he was 17 years of age with his mother and six siblings. 

1. Whilst in the refugee camps, the applicant attended school and learnt basic English.  He also showed some aptitude as a soccer player.  He left school at 15 and travelled to South Africa with one of his sisters in order to try and earn income for the family.  Whilst in South Africa he was seriously injured in a stabbing attack.  He ultimately obtained some employment there as a helper to taxi drivers, assisting customers into taxis. 

1. Since arriving in Australia, the applicant has never worked and has struggled to maintain Social Security benefits. 

1. Between 2014 and 2016, the applicant returned to Somalia where he discovered his father, whom he had thought was dead, was still alive.  The applicant spent time with him and whilst there married.  His wife gave birth to a daughter but the applicant was unable to bring his wife and child back to Australia with him and has not had any contact with them since he has been in custody.  The applicant’s mother does not condone his behaviour but still supports him. 

1. On the plea hearing, a report was tendered on behalf of the applicant from Ms Mynard, a clinical psychologist.  The report demonstrates that the applicant suffers from a series of serious problems. 

(a)       Ms Mynard assessed the applicant’s full scale IQ as only 71.  This means that he falls within the lowest 3 per cent of the population and within the category of ‘borderline cognitive function’. 

(b)      At the time of the offending the applicant’s normal practice was to drink alcohol each day until he passed out.  He also consumed cannabis daily.  Ms Mynard diagnosed him as suffering from alcohol dependence disorder and cannabis use disorder. 

(c)       On the basis of self-report questionnaires, Ms Mynard diagnosed the applicant as suffering from post-traumatic stress disorder, a major depressive disorder and generalised anxiety disorder. 

1. The sentencing judge accepted that matters personal to the applicant reduced his suitability as a vehicle for general deterrence and reduced his moral culpability.  He also accepted that the applicant’s very difficult background should be regarded as a mitigating circumstance. 

1. As against this, however, the applicant had a substantial criminal history dating back to 2006.  That history commenced ominously with a sentence to three years in a youth training centre for rape, assault with intent to rape and common law assault. 

1. After release from the youth training centre, the applicant had accumulated a long list of convictions for offences of violence, dishonesty, damage to property and resisting and assaulting police.  Significantly, he had a prior conviction for robbery in September 2013 for which he was sentenced to 14 months’ imprisonment. 

1. As the sentencing judge further noted at the time of the present offending, the applicant was the subject of a community correction order imposed in May 2017 for charges which included attempted burglary and theft from a shop.  He was also on bail for theft from a shop.

Deng’s comparative circumstances

1. The sentencing judge carefully considered the issue of parity and expressed the following conclusions:

Deng had pleaded guilty at an early opportunity to the charges he faced. Pursuant to s 6AAA of the Sentencing Act 1991 his Honour declared that but for Deng’s plea of guilty he would have imposed a total effective sentence of four years’ imprisonment with a minimum non-parole period of three years’ imprisonment.

Deng was aged 22 at the time of sentence; he therefore fell to be sentenced as a youthful offender.  Moreover, he had a very moderate prior criminal history, consisting of mainly street offences and breaches of bail, for which he had received only fines by way of disposition.  Accordingly, he effectively fell to be sentenced as a youthful first offender who had pleaded guilty at the earliest opportunity and demonstrated true contrition and remorse.

You have none of these considerations in your favour; however, you do have your deprived background and impaired intellectual functioning, the latter of which was not relevant in sentencing Deng.  Moreover, Deng was the principal offender, being the person armed with the screwdriver in the Thirsty Camel armed robberies and the knife in the Subway armed robbery.

I am very cognisant of the need to impose a sentence on you which is not unfairly disparate with the sentence imposed on Deng; however, it is clear from the mitigating circumstances relevant in his case that you will receive a sentence greater than that imposed on Deng.

Deng had also suffered a similar history in Sudan to yours [sic] history in Somalia.  Deng was also seen by a psychologist who diagnosed Alcohol Use Disorder Analysis and Stimulant Use Disorder in his case.  Deng was also on bail at the time of committing these offences.

In sentencing Deng, his Honour specifically took into account in mitigation the following matters:

(i)        his youthfulness,

(ii)his plea of guilty at the earliest opportunity, which his Honour held was indicative of remorse,

(iii)his personal circumstances in Sudan and Egypt, his subsequent migration to Australia as a refugee, and the difficulties he suffered adjusting to life in this country,

(iv)     his lack of maturity and longstanding polysubstance addiction,

(v)      his expressions of remorse,

(vi)     the efforts he had made to rehabilitate himself whilst in custody, and

(vii)     the support he had from his partner and his family.

It is clear that the fact that Deng was effectively a youthful first offender serving his first sentence in an adult prison weighed heavily on his Honour, and no doubt moved him to impose what some might regard as a lenient sentence.  It is also relevant that his Honour applied Boulton’s case to Deng’s sentencing exercise; a case which your counsel agreed has no relevance in sentencing you.  Her submission was that the only appropriate sentence in your case was a sentence of imprisonment with a non-parole period.  The prosecutor agreed.[1]

[1]DPP v Muhumed [2018] VCC 134, [59]–[62] (‘Reasons’) (citations omitted).

Analysis

1. Parity in the sentencing of co-offenders is an aspect of equal justice.  There should be no unjustifiable difference in the sentences imposed upon similar offenders for similar offending.  Like cases should be treated alike.  If the disparity between the sentence imposed on equivalent co-offenders is marked or manifestly excessive, then the Court will interfere.[2] 

   [2]Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295.

1. In a series of decisions, Maxwell P has expressed the central issue from an appellate court’s point of view as being whether it was reasonably open to the sentencing judge to differentiate between the offenders in the way that he or she or did.[3] 

   [3]See R v Lewis [2008] VSCA 202, [15] (Maxwell P); R v Wolfe [2008] VSCA 284, [9] (Maxwell P); Teng v The Queen (2009) 22 VR 706, 710 [17] (Maxwell P, Ashley JA and Lasry AJA).

1. It is inherently difficult to directly compare a sentence of imprisonment on the one hand with a sentence involving both imprisonment and a community correction order on the other (as was imposed on Deng).  In making the relevant comparison, it must be recognised that that compliance with the terms of the community correction order would itself involve a significant burden and challenge for Deng. 

1. In our view, no specific error has been demonstrated in the approach of the sentencing judge in the approach to the question of parity.  The issue on appeal is simply whether the sentence at which he arrived is excessively disparate from that imposed on Deng. 

1. Whilst Deng was the offender armed with a weapon in each of the armed robberies, it is plain that the applicant also participated actively in them and did so in a way that must have contributed to the stress and fear caused to the victims.  The offending in each instance was joint in nature. 

1. The conduct of both offenders required denunciation and just punishment, and raised significant issues of general deterrence.

1. Nonetheless, the different matters personal to the two offenders gave rise on the one hand to significant factors of mitigation which were open to Deng but not the applicant and, on the other, gave rise to a greater need to give weight to considerations of deterrence and protection of the community in the applicant’s case, than in Deng’s case.  The most significant matters differentiating the two offenders were the following:

(a)       Deng’s pleas of guilty at an early stage;

(b)      the lesser scale of the charges to which Deng pleaded;

(c)       Deng’s significantly more youthful age compared with that of the applicant which opened the door to a sentence focused upon rehabilitation;

(d)      Deng’s materially less serious criminal record as against that of the applicant;

(e)       the fact that the applicant had previously been in prison;

(f)       Deng’s suitability for a composite sentence including a community correction order intended to maximise his prospects of rehabilitation; and

(g)      the fact that the applicant’s record combined with his personal characteristics and the offending in issue gave rise to significant issues of specific deterrence and protection of the community. 

1. Taken together these matters mean that it was reasonably open to the sentencing judge to impose the sentence upon the applicant which he did.  Put another way, the disparity between the sentences is not manifestly excessive when regard is had to these matters in total. 

1. In the circumstances, we would refuse leave to appeal.

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