R v Hersi

[2010] NSWCCA 57

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
R v Abdisimi Hersi, R v Abdirazak Hersi [2010] NSWCCA 57

FILE NUMBER(S):
2008/17390
2008/17388

HEARING DATE(S):
04/02/2010

JUDGMENT DATE:
15 April 2010

PARTIES:
Regina v Abdisimi Hersi, Regina v Abdirazak Hersi

JUDGMENT OF:
McClellan CJatCL Howie J Harrison J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2008/17390, 2008/17388

LOWER COURT JUDICIAL OFFICER:
Knox DCJ

LOWER COURT DATE OF DECISION:
24/07/2009

COUNSEL:
S Dowling - Crown
G Jauncey - Respondent Abdirazak Hersi
C Loukas - Respondent Abdisimi Hersi

SOLICITORS:
S Kavanagh - Crown
T Heenan - Respondent Abdirazak Hersi
Andrew Harris and Associate Solicirtors - Respondent Abdisimi Hersi

CATCHWORDS:
CRIMINAL LAW - Sentence - Crown Appeal - sentences imposed after trial for robbery in company - whether sentences manifestly inadequate - respondents resentenced

LEGISLATION CITED:
Crimes Act 1900 - S 97(1)
Crimes (Appeal and Review) Act 2001 - s 68A
Crimes (Sentencing Procedure) Act 1999 - ss 21A(1), 21A(3)(a)

CATEGORY:
Principal judgment

CASES CITED:
R v Henry (1999) 46 NSWLR 346
R v Murchie [1999] NSWCCA 424; 108 A Crim R 482
R v Stanley [2008] NSWCCA 233
Legge v R [2007] NSWCCA 244
R v Nair [2003] NSWCCA 368
R v JW [2010] NSWCCA 49

TEXTS CITED:

DECISION:
1. The appeals are allowed and the sentences imposed in the District Court are quashed.
2. Abdirazak Hersi is sentenced to a term of imprisonment consisting of a non-parole period of 3 years and a balance of term of 2 years. The sentence is to commence 20 August 2008 and the non-parole period to expire on 19 August 2011 the date upon which the respondent is eligible for release to parole.
3. Abdisimi Hersi is sentenced to a term of imprisonment consisting of a non-parole period 2 years 6 months and a balance of term of 18 months. The sentence is to date from 7 August 2009 and the non-parole period is to expire on 6 February 2012.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/17390
2008/17388

McCLELLAN CJ at CL
HOWIE J
HARRISON J

THURSDAY 15 APRIL 2010

REGINA v Abdisimi HERSI
REGINA v Abdirazak HERSI

Judgment

1. McClellan CJ at CL:   I agree with Howie J.

2. HOWIE J: The respondents, who are brothers, were each convicted after trial of an offence of robbery in company contrary to s 97(1) of the Crimes Act. The maximum penalty for that offence is imprisonment for 20 years. Knox DCJ (the Judge) sentenced Abdirazak Hersi to a term of imprisonment comprising a non-parole period of 12 months and a balance of term of 8 months. The sentence commenced on 20 August 2008 and the respondent was released to parole on 19 August 2009. Abdisimi Hersi received the same sentence but the Judge ordered that it be served by way of periodic detention. That sentence commenced on 7 August 2009 and the respondent’s non-parole period expires on 6 August 2010.

3. The sentences were imposed on 24 July 2009 and Notices of Appeal were filed on 17 August 2009. The matters were listed for hearing in this Court on 30 October 2009. They did not proceed on that date because a Court of five judges was to hear two Crown appeals in order to consider the effect of the introduction of s 68A of the Crimes (Appeal and Review) Act 2001. That section retrospectively purported to remove the Court’s discretion to consider the effect of double jeopardy when determining an appeal by the Crown. Questions had arisen as to the constitutionality of that amendment and hence a special Court was to be convened to determine that and other issues arising from the legislation. The appeals involving these respondents were eventually heard on 4 February 2009 when the Court reserved its decision.

4. The Judge took a somewhat unusual course in his sentencing remarks. They contain no statement of the facts upon which the respondents were sentenced. The sentencing proceedings commenced on 31 March 2009 with the tender of some prosecution material. The respondent Abdirazak was in custody because bail had been refused on 30 September 2008. The Judge granted the respondent Abdisimi bail and the matter was stood over to 29 May 2009. On that date documents were tendered including pre-sentence reports on each of the respondents and material relating to two co-offenders who had been sentenced in the Children’s Court.

5. On that date the Judge asked the prosecutor whether she wished to be heard against a sentence of 12 months imprisonment as a non-parole period in respect of the respondent Abdirazak. The prosecutor was unenthusiastic and his Honour stated:

   You see if there was a finding of special circumstances of 60 per cent based upon his age, his family situation, the fact that the family is here and has been here during – certainly the brother was here during the trial – what is disclosed in the pre-sentence report- it would seem to me that – I have yet to hear obviously from counsel for the offender and the offenders plural – but that would – a 60 per cent finding with a non-parole period of 12 months would reflect a head sentence of some 20 months.

6. Despite the fact that his Honour later received further material on behalf of the respondents, and the sentencing proceedings were further adjourned in order for a psychological report on the respondent Abdisimi to be obtained, the sentence ultimately passed was that which the judge had indicated on 29 May 2009. The prosecution never accepted that the sentence proposed was appropriate.

7. When his Honour came eventually to impose the sentences and delivered sentencing remarks he requested his “comments to be added to the comments I made on the earlier occasion this matter was in court”. Therefore, in order to understand why his Honour imposed the sentences that he did, it is necessary to have considerable regard to the sentencing proceedings and the dialogue between the Judge and the representatives for the respondents and the prosecution. With respect, I do not believe this is a proper manner in which to deliver sentencing remarks. Both the offender and members of the public in court when the sentences are pronounced should understand the basis for the sentences from what is said at the time of sentencing. Further this Court should not have to read transcript of addresses and dialogue between the Bench and counsel in order to understand the reasons for sentence.

8. However it is clear, from the passage of the transcript quoted above, that the Judge determined the non-parole period and then worked back to determine the head sentence based upon what his Honour thought was an appropriate relationship between the non-parole period and the balance of the term. That sentence was proposed before the Judge had received a significant amount of material tendered on behalf of the respondents, including psychological reports on each. With respect that was not an appropriate method to determine the sentence to be imposed.

   The facts

9. To find the facts it is necessary to have regard to what the Judge said in the sentencing proceedings on 29 May 2009. His Honour stated:

   On 17 April 2008, the victim Jamal Singh was walking outside near his apartment in Homebush West.  He was talking on his mobile phone and as he finished the call he was pushed from behind and he turned and saw five or six people.  The people began to circle him.  The victim started to run towards his apartment but the group pursued him, stopping him approximately ten metres from his home.

   The group began circling again, two people held his arms behind his back while another person hit him.  They punched him in the stomach and on the face near the left eye.  They kicked him and pushed him to the ground.  The same person who is unidentified who punched him in the face, stood on his arm and leg.

10. The Judge interrupted his statement of the facts to confirm with the prosecutor that it was not proved beyond reasonable doubt that it was either of the respondents who had physically assaulted the victim.  He then went on:

    One of the members of the group was saying "Give me your wallet" and asking the victim what else he was carrying and the victim gave him his phone and his wallet containing two debit cards and $200 cash.  One told him he should give them whatever else he had.  When he told them he had nothing else, he was punched again.

    The shiny weapon was produced from the pocket of one of the offenders.  What it was is unclear beyond reasonable doubt.

    One of them said "if you don't give us what we want, we will stab you in the stomach".  Throughout the robbery the offenders continued to circle the victim and asked them what else the victim was carrying. The victim said that they were scaring him.  His injuries consisted of some injury to his eye, a swollen lip, a bruise on the arm and bruises to both knees.  The offenders eventually ran off towards Flemington train station where they were captured on CCTV footage, entering the station covering their faces with clothing.

11. There was considerable discussion about the victim’s evidence and what the Judge should make of statements made by the respondents to the effect that they were not involved. However, his Honour stated that he could not find beyond reasonable doubt who had the “shiny weapon” or what any particular member of the group did. There was also considerable discussion about what factors under s 21A(1) of the Crimes (Sentencing Procedure) Act 1999 were to be applied.

    Subjective consideration

12. The respondent Abdirazak Hersi was born on 3 March 1987 and was aged 21 at the date of the offence. He was born in Somalia and migrated with his family to Australia in 1998. There was little in his background in Australia of any relevance. He had a supportive family despite the separation of his parents. He completed Year 12 and began a TAFE course in information technology but left after 3 months and worked as a labourer. At the time of the offence he was on a bond for larceny that had been imposed in the Local Court on 30 August 2007.

13. There was little in the psychological report tendered of relevance. The respondent asserted that he was a binge drinker and that he was “hanging around with mates who exerted a bad influence on him”. It should be noted that in the present case the co-offenders included his brother and three youths aged in their early teens, none of whom had any significant criminal record. The psychologist could not properly evaluate his intelligence because she believed he had completed the test very rapidly and without “due care”.

14. The respondent Abdisimi Hersi was born on 16 March 1989 and was aged 19 at the date of the offence. He had no prior convictions. He had left school at the age of 18 after completing year 12. He was undertaking a TAFE Diploma of Telecommunications and worked part-time with his father at the time of sentencing. He did not consume alcohol or drugs. He had parental support and there was nothing in the psychological report prepared that was particularly relevant to the sentencing of him for the offence.

15. Both respondents continued to deny that they were involved in the offence.

    Sentencing remarks

16. In respect of the respondent Abdisimi Hersi the Judge found there were special circumstances “on the basis of his age, his background, the fact that time in custody would be very difficult for him but importantly, he also has a supportive family structure available to him…”.

17. In respect of the respondent Abdirazak Hersi the Judge took into account the prior matter and the fact that he was on a bond.

18. The very significant part of the formal sentencing remarks went to the question of whether there were special circumstances in the case of the respondent Abdisimi that would permit his Honour to impose a sentence other than by way of full time custody. The Judge took into account the respondent’s age, his lack of prior offences and the fact that he had not offended since the commission of the offence. He took into account the fact that the respondent was “a person from a background of Somalian refugees” but noted the family support from his mother and brother.

19. His Honour noted the nature of the offence and stated:

    And for that there should be a mark of condemnation which is in many ways achieved by the trial process but particularly by the general penalties imposed.

20. The Judge said this:

    Importantly also, I think in terms of exceptional circumstances warranting a non-custodial period or a non full-time custodial period, he is a young man of slight, almost delicate appearance, and there is something of an air of bewilderment about him.  I do not think [it] was manufactured for the purposes of being observed by me but took place at times when it was clear that he was bewildered by what was going on in the trial and in court.

21. His Honour took into account that there was no evidence of his participating in any actual violence on the victim, there was no financial gain for him and he was not handling the “shiny object” the victim saw.

22. The Judge took into account that two co-offenders, who were aged 14 and 15, were dealt with in the Children’s Court and that the respondent was “just 19” and “there is not a huge range of difference”.

    Crown submissions

23. The Crown relies upon the following grounds of appeal:

    “1.The sentencing judge erred by failing to assess the objective seriousness of the offence and by giving undue weight to the subjective circumstances of the respondents.

    2.The sentencing judge erred by misapplying the guideline judgment in R v Henry (1996) 46 NSWLR 346.

    3.The sentencing judge erred by finding exceptional circumstances in the case of Abdisimi Hersi.

    4.The learned sentencing judge failed to have regard, or any proper regard, to general and specific deterrence.

    5.The learned sentencing judge wrongly treated the absence of lasting consequences for the victim as a mitigating factor (ROS 6).

    6.            The sentences are manifestly inadequate.”

24. The Crown argued grounds 1 and 2 together. In effect the argument is that the sentences imposed fell too far short of the guideline judgment in R v Henry (1999) 46 NSWLR 346 with no justification for doing so having regard to the objective facts of the offence or the subjective considerations of the respondents. Although Henry was concerned with armed robbery offences it is also applicable, with moderation because no weapon is used, to offences of robbery in company: R v Murchie [1999] NSWCCA 424; 108 A Crim R 482; R v Stanley [2008] NSWCCA 233 at [40]. Although the Crown accepts that the victim was not in a vulnerable position, such as a shopkeeper, the Crown points to the actual use of violence and the fact that the respondents did not plead guilty. These are two facts, it was argued, that take the case outside the normal offence considered in the guideline. The range in the guideline is between 4 and 5 years full-time custody and yet here the sentences imposed were 20 months.

25. The Crown complains that the Judge did not attempt to determine the seriousness of the offence and yet the sentence imposed would indicate that he must have regarded it as being towards the lower end of seriousness. The Crown submission is that the offence was more serious than that considered in the guideline judgment in Henry.

26. The Crown submits that his Honour was too focused on the subjective features of the respondents, some of which were of little, if any, significance. For example, the Crown argues there was no evidence to support his Honour’s finding that both respondents would find gaol particularly difficult and that their background as Somalian refugees had little or no relevance as they both came to this country at a young age. It was submitted that the subjective factors were taken into account both in determining the sentence and then again when fixing the non-parole period such that there was an inappropriate degree of double counting.

27. Under Ground 3 the Crown contends that there was nothing in the case of Abdisimi Hersi that could amount to “most exceptional circumstances” that would permit the court to impose less than a full-time custodial sentence on him. It was submitted that the judge spoke only about “exceptional circumstances” and it was not open to him to find that they existed. A number of decisions of this Court were referred to and it was submitted that none of them could support his Honour’s finding.

28. It was noted that his Honour’s initial position was that there were no exceptional circumstances but he was persuaded to change his view after receiving a psychological report concerning the respondent Abdisimi that itself contained nothing to support his Honour’s ultimate finding. The Crown specifically argued that the Judge was in error in taking into account the physical attributes of the respondent and his bewilderment during the proceedings.

29. Under Ground 4 the Crown contends that insufficient, if any, regard was given to general deterrence by the sentences imposed or in his Honour’s sentencing remarks.

30. Ground 5 refers to what is alleged to be a particular error by his Honour having regard to the fact that the victim “did not suffer from any lasting consequences”. It was submitted there was no basis for that finding but in any event it was an error to treat the absence of a matter of aggravation as mitigating.

    Respondents submissions

31. On behalf of the respondent Abdirazak Hersi it was submitted that his Honour appreciated that the objective seriousness of the offences was “quite high” as he accepted a submission of the prosecutor to that effect. Notwithstanding that submission it was argued that the offence was in the “low to medium range” of objective seriousness. It was submitted that the absence of a weapon and the fact that the victim was not vulnerable took the offence well below the type of offence to which the guideline was applicable. The respondent notes that the discount applicable under the guideline was 10 per cent for a late plea so the fact that the respondent pleaded not guilty should not have made a significant impact upon the sentence to be imposed.

32. Insofar as the Crown agued that there is no reference to general deterrence in the sentencing remarks, it was submitted that it should be borne in mind that his Honour was an experienced judge who would have understood the significance of that factor.

33. In respect of the injury to the victim, it was submitted that, because the victim had given evidence in the trial, it was open to the Judge to conclude there were no lasting effects of the commission of the offence and thus could take into account as a mitigating factor “that the injury was not substantial”: s 21A(3)(a) of the Crimes (Sentencing Procedure) Act 1999.

34. It was submitted that although the sentence was lenient it was not outside the range of sentences available to the Judge.

35. In respect to the respondent Abdisimi Hersi, it was submitted that it was open to the Judge to determine that there were exceptional circumstances and that, in any event, the guideline was no more than that and did not unduly restrict the Judge’s sentencing discretion: Legge v R [2007] NSWCCA 244 at [40].

36. It was submitted that the applicant was not a principal offender and the role of the offender in the commission of the offences was a significant matter: R v Nair [2003] NSWCCA 368 at [15]. The Judge stated that there was no suggestion of the respondent participating in actual violence to the victim.

37. The respondent relied upon the following as matters giving rise to exceptional circumstances: the respondent’s age, his prior good character, his good behaviour since the offence, his background as a refugee, his family support, his education, his slight appearance, his disassociating himself from his co-offenders, his references, and TAFE reports. These subjective considerations had to be taken into account with his lesser role in the offence.

    Sentences manifestly inadequate

38. In my opinion both sentences were manifestly inadequate. As his Honour appeared to accept, this was a serious offence of robbery in company by reason of the number of persons involved and the actual violence inflicted upon the victim. It may be the case that the Crown could not prove that it was either of the respondents who actually assaulted the victim but it does not follow that their roles were therefore minor. Because the respondents denied the offence, they never gave any account of their involvement. They were, according to the jury’s verdict, participants in the robbery that involved actual violence inflicted upon the victim and that was the criminal activity for which they were to be sentenced.

1. I accept that, where the role of an offender in a common purpose can be identified, the role may be a significant consideration in determining the particular offender’s criminality and, therefore, in assessing the appropriate sentence: see R v JW [2010] NSWCCA 49 at [161]. But where, as in this case, the role the offender played cannot be determined, it does not follow that the offender is sentenced on the basis of the least participation in the common purpose consistent with his guilt. The respondents were found to be party to the joint enterprise that involved at least five persons accosting the victim, following him as he tried to escape to his home, and then surrounding him when at least three persons of the group physically assaulted him. There was no basis upon which the Judge could find that either of the respondents played a minor role in the offence or that they were not party to a common enterprise that involved physical assaults upon the victim.

2. I do not understand on what basis his Honour could find that either of the respondents was not involved in any pre-planning or premeditation, let alone using that as a mitigating factor to reduce the culpability of the respondent Abdisimi. One of the relevant factors in respect of both of the respondents is that they were the eldest of the five offenders who were identified. Two of them were aged 14 and 15 at the time of the offending yet these respondents were aged 21 and 19. There was nothing identified by his Honour about the two juveniles that indicated they were any more or less culpable than the respondents.

3. In my opinion the judge’s discretion miscarried because he took into account in assessing the respondents’ culpability for the offending mitigating factors that had not been proved on the balance of probabilities. He could not sentence them as the principal offenders because their roles in that regard had not been proved beyond reasonable doubt. But neither could he sentence them on the basis that they had minor roles in the offending because that had not been proved on the balance of probabilities. He could not determine their roles so they were to be sentenced simply on the basis they were party to the joint criminal enterprise committed by the group. It is not the law that an offender is to be sentenced on the basis of the least serious facts consistent with a jury’s finding.

4. His Honour’s error in this regard affected the sentence for both respondents but seems to have been particularly significant in determining that the respondent Abdisimi should not serve a sentence of full-time custody.

5. As I have already indicated, his Honour derived the sentence for the respondent Abdirazak Hersi by considering what the non-parole period should be and then determining what balance of parole resulted based upon that period being 60 per cent of the total term. This approach may explain why the offender’s sentence is so inadequate because it distracted him from the principal consideration that was the head sentence, which should reflect to a substantial degree the objective seriousness of the offending. Even without a consideration of the Henry guideline a sentence of 20 months for what was a serious robbery involving terrorising and assaulting a lone pedestrian on a public street, was manifestly inadequate against a maximum sentence of 20 years.

6. I believe this offence was significantly more serious than the normal offence to which the Henry guideline applied. Pedestrians on public streets are entitled to protection from groups of young men and general deterrence was a very significant element of determining the appropriate sentence. The failure by his Honour to mention that aspect of sentencing once during his dialogues with counsel or in his sentencing remarks is indicative that his approach was insufficiently directed at marking the seriousness of the conduct of the respondents by an appropriately severe sentence. In my opinion His Honour could not have agreed with the prosecutor that the objective seriousness of the offence was “quite high” and yet have imposed the sentences that he did. Further, I simply do not understand his Honour’s statement that condemnation for the offence is “in many ways achieved by the trial process”. But in any event, a sentence of 20 months does not in my view in any way sufficiently condemn the conduct of the respondents.

7. In my opinion an attack by five males on an isolated pedestrian that included chasing him, surrounding him and inflicting actual physical violence upon him was objectively more serious than a brief threat made to a shopkeeper by a single man armed with a weapon, the type of offence considered in Henry. There was no discount of any kind warranted and the respondents should be taken as having no remorse for their offending because they denied it. That fact should have coloured his Honour’s view of the likelihood of their reoffending and their prospects of rehabilitation.

8. In my opinion it was not open to his Honour to find on the balance of probabilities or otherwise that there would be no longstanding emotional injury to the victim. He did not indicate upon what basis he made that finding. Judges should not be too willing to find that serious acts of criminality, such as took place in this case, do not have any substantial impact upon the victim. If there was no evidence one way or the other, as I understand the position to be, then the Judge should not treat any injury as an aggravating factor but he should not find it to be a matter of mitigation.

9. In my opinion the sentence that should have been imposed upon the respondent Abdrazak Hersi was five years in light of the fact that he was on a bond for an offence of violence when he committed the offence. He should have been given a non-parole period of no less than 3 years.

10. In the case of Abdisimi Hersi his Honour should not have been in the position of having to consider whether there were exceptional circumstances because the sentence should have exceeded three years. A judge should not be considering whether exceptional circumstances exist for not imposing a full-time custodial sentence until he or she has determined what the term of the sentence should be. But there were no exceptional circumstances here. First, as I have indicated, his Honour wrongly approached the assessment of the objective seriousness of the offence by making findings that were not open to him about the respondent’s role in the offence. There was nothing in the conduct of the respondent in the commission of the offence that could lead to a finding of exceptional circumstances either by itself or in combination with the respondent’s subjective factors.

11. Secondly, there was nothing in the respondent’s subjective factors that could lead to a finding of exceptional circumstances. Some of the matters had no relevance at all as matters of mitigation. It was not in the applicant’s favour that he had not re-offended since the commission of the offence when he was on bail since that time. It was a condition of his bail that he be of good behaviour. It was also a condition of his bail that he not associate with certain named persons, who were no doubt his co-offenders. It was therefore irrelevant that he had ceased contact with these persons. There was nothing exceptional in the fact that he had not offended before. That was a factor found to be common to offenders in Henry.

12. The fact that the respondent was of slight appearance was irrelevant considering that he was party to an offence of violence, whether he actually inflicted the violence or not. Nor was there any relevance in the fact that he may have seemed bewildered during the proceedings. There was no basis for the Judge to determine that the respondent would find gaol more difficult than any other young man of no previous criminal record would find it. It was irrelevant that he came to Australia as a refugee from Somalia given the age at which he arrived in this country. There was no evidence that his experiences in Somalia had any influence upon his conduct in his offending.

13. The sentence that ought to have been imposed upon Abdisimi Hersi was 4 years with a non-parole period of 2 years 6 months.

    Discretion

14. In my opinion the sentences imposed on the respondents were manifestly inadequate to a very significant degree. The real question is whether this Court should intervene in the exercise of its discretion. It is clear that the Court retains a discretion in relation to whether to allow a Crown appeal notwithstanding that the Court can no longer takes into account the effects of double jeopardy upon the respondent to a Crown appeal: JW at [141].

15. On behalf of the respondent Abdirazak Hersi there was an affidavit filed. It indicates that he was released to parole on 19 August 2009. On 7 December 2009 he commenced a course at TAFE that he completed on 18 December. He was hoping to commence an apprenticeship with a food retailer in a bakery. It had not commenced as at the date of the affidavit being 2 February 2010. He states that he was informed that his parole may be suspended because of his good conduct.

16. On behalf of the respondent Abdisimi Hersi there was an affidavit filed and dated 21 January 2010. He has been serving his sentence since 24 July 2009 at a periodic detention centre. He stopped attending his TAFE course in August 2009 to obtain money from employment. He worked with a friend in roofing insulation until December 2009. At the date of the affidavit he was working casually as a painter 3 or 4 days a week. He has had the assistance of a Youth Support Worker with Barnados.

17. There has been considerable delay in finalising these appeals through no fault of the respondents. They were sentenced in July 2009. The delay has been the result of issues arising from the passing of s 68A that had to be determined by a specially constituted five judge bench. Abdirazak Hersi was released to parole on 19 August 2009 but that was because the non-parole period was so manifestly inadequate.

18. Both parties were offered the opportunity to make written submissions on the effect of the decision in JW. On behalf Abdisimi Hersi the Court was urged to refrain from intervening by reason of the delay in determining the appeal and his progress toward rehabilitation since the date of sentencing.

19. In my opinion the sentences are so inadequate they cannot be allowed to stand. The sentences that should have been imposed at first instance should now be imposed but dated from the dates fixed by his Honour. That gives the respondents a considerable degree of leniency by allowing them the benefit of the periods that they have been either on parole or serving the sentence by periodic detention. That leniency is due to the delay in having these appeals finalised.

20. Therefore the orders I propose are:

    1.The appeals are allowed and the sentences imposed in the District Court are quashed.

    2.Abdirazak Hersi is sentenced to a term of imprisonment consisting of a non-parole period of 3 years and a balance of term of 2 years. The sentence is to commence 20 August 2008 and the non-parole period to expire on 19 August 2011 the date upon which the respondent is eligible for release to parole.

    3.Abdisimi Hersi is sentenced to a term of imprisonment consisting of a non-parole period 2 years 6 months and a balance of term of 18 months. The sentence is to date from 7 August 2009 and the non-parole period is to expire on 6 February 2012.

21. HARRISON J:   I agree with Howie J.

    **********

LAST UPDATED:
15 April 2010