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R v Mohamed

R v Mohamed

Case [2024] VSC 318 7 June 2024

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Mohamed

Details

AGLC: R v Mohamed [2024] VSC 318
Case: [2024] VSC 318
Decision Date: 7 June 2024

CaseChat Overview and Summary

The appellant, Mohamed, was convicted of manslaughter following a fatal shooting during a home invasion. The case was heard in the Victorian Court of Appeal. The deceased was fatally shot by several masked intruders who had intended to steal drugs and/or money. Mohamed assisted the intruders by transporting them to and from the crime scene in his mother’s car. He was aware that one of the intruders had a loaded gun prior to the home invasion. The appeal focused on the sentencing, particularly whether exceptional circumstances existed to justify a sentence of detention in a Youth Justice Centre rather than an adult prison.

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.

Orders