| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0049
| THE KING | Crown |
| v | |
| MOHAMED AHMED MOHAMED | Accused |
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JUDGE: | BEALE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16-17 May 2024 |
DATE OF SENTENCE: | 7 June 2024 |
CASE MAY BE CITED AS: | R v Mohamed |
MEDIUM NEUTRAL CITATION: | [2024] VSC 318 |
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SENTENCE – Manslaughter – Youthful offender – Deceased fatally shot in home invasion by several masked intruders – Purpose of home invasion was to steal drugs and/or money – Intruders armed with loaded gun, machete and a taser – Offender transported the intruders to and from the scene of the crime in his mother’s car – Offender aware prior to home invasion that gun was loaded – Where parental separation and Covid 19 lockdowns impacted severely on offender around time of offence – Where offender had no relevant criminal antecedents – Where offender held in isolation for approximately 10 months of the 2.5 years spent on remand in an adult prison – Whether exceptional circumstances existed justifying a sentence of detention in a Youth Justice Centre – 4 year sentence of detention in a YJC – Presentence incarceration not counted as time served – Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372; Boulton v R (2014) 46 VR 308; [2014] VSCA 342; R v Hill [1996] 2 VR 496; Markovic v R (2010) 30 VR 589; [2010] VSCA 105; Yat v R [2024] VSCA 93 – Sentencing Act 1991, s 32.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R Gibson KC Mr P Pathmaraj | Office of Public Prosecutions |
| For the Accused | Ms R Shann SC Ms A Wang | Galbally Parker Lawyers |
HIS HONOUR:
CIRCUMSTANCES OF OFFENCE
Mohamed Mohamed, you pleaded guilty to manslaughter, the maximum penalty for which is 25 years’ imprisonment.
On 24 August 2021, you were party to a joint criminal enterprise with at least three others (including Daniel Sisal) to burgle the home of one Christopher Habiyakare and steal drugs and/or money. You drove yourself and your co-offenders to the scene of the crime in your mothers Astra. Three of your party were armed, one with a loaded gun, the other with a machete and the third with a taser. You claim you stayed in the car and that you were unaware the gun was loaded (matters to which I will return shortly). Mr Habiyakare and five of his friends or associates were watching TV just before the home invasion. There was knocking at the front door which Mr Habiyakare answered, at which point several intruders, all wearing face masks, burst into the house, smashing a front door glass panel in the process. The intruders brandished their weapons and yelled at Mr Habiyakare. Some of his friends escaped through the loungeroom window, hurting themselves in the process. One of the intruders went up to Mr Habiyakare who said words like “Woah woah, you’re going to shoot me?” The…
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- AGLC
- R v Mohamed [2024] VSC 318
- Case
- [2024] VSC 318
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether Mohamed’s personal circumstances constituted exceptional circumstances warranting a sentence in a Youth Justice Centre. The court considered his youth, lack of criminal antecedents, and the severe impact of parental separation and Covid-19 lockdowns on his life. The court also took into account the fact that Mohamed had been held in isolation for approximately 10 months during the 2.5 years he spent on remand in an adult prison. The appellant argued that these factors warranted a sentence of detention in a Youth Justice Centre.
The court acknowledged the exceptional circumstances surrounding Mohamed’s background and the impact of his environment on his actions. However, it ultimately determined that while these factors were significant, they did not reach the threshold of being truly exceptional. The court relied on precedents such as Azzopardi v R, Boulton v R, R v Hill, Markovic v R, and Yat v R to assess the weight of these mitigating factors against the gravity of the crime. Given the nature of the offence and the need for general deterrence, the court found that a sentence of detention in an adult prison was more appropriate, albeit with a reduced term of four years to reflect the mitigating circumstances. The court also ruled that the presentence incarceration would not be counted as time served.
The final orders of the court upheld the sentence of four years of detention in a Youth Justice Centre, but with the clarification that the time spent on remand would not be counted as time served. This decision reflects a balanced approach, considering both the mitigating circumstances of Mohamed’s background and the need to uphold the seriousness of the crime committed.
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Background
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Evidence
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