DPP v Diallo [2025] VCC 1814

(a) You and your co-offender walking east on Scott Street then entering the Maiwand Bakery;

(b) You and your co-offender exit the store with the victim at approximately 7:21pm where you both walk in opposite directions on Scott Street;

(c) The victim knocks on the door of Kabul Takeway to get help; and

(d) Mr Reyazee comes to the victim's aid and confronts you on Scott Street.

1. You were later identified by way of a circular by Senior Constable Nerdin Efendic.
2. You were arrested for unrelated matters on 25 October 2023 in the Mornington area and participated in a recorded interview in relation to the attempted armed robbery. In your recorded interview you claimed that you were forced by your co-offender to rob the victim, and that you were at the door of the bakery, not your co-offender.

1. Attempted armed robbery is a very serious offence which is reflected in the maximum penalty of 20 years imprisonment.
2. In this instance you entered a public area of a bakery at night in company, approached the shop attendant and immediately produced a large knife pointing it at him. While he was able run to the door and go to the next shop, there is no doubt that your conduct which involved a physical confrontation would have been a frightening experience for him. In every respect he, like many others who work as shop assistants are viewed as soft targets, because they are vulnerable and exposed.
3. As Kellam AJA noted in The Queen v Alashkar[1],:

There is no need to recite any of the many statements by this Court concerning the gravity with which the robbery of persons who are sometimes termed "soft targets" is viewed. It is both a reality and a necessity in our community for many people to work in isolated situations that render them vulnerable to criminal attack. Taxi drivers, service station and convenience store attendants, and persons operating small family businesses, such as milk bars, spring readily to mind in this context. They must be able to rely upon the full protection of the law and those who contemplate exploiting their vulnerability in the fashion of the appellant, must anticipate that the consequences for them may very well be the imposition of a substantial gaol term.

1. I respectfully adopt the comments of Justice Kellam.
2. While accepting that the offending is serious, your counsel highlighted the fact that the offending was brief, that you did not attempt to conceal your identity and that you did not achieve your goal of obtaining money. Nonetheless, in my view your offending falls towards the mid range of offences of this nature involving an attempt to rob a soft target using a knife.

1. You were born in a small town in Senegal where you were raised by both of your parents in a large middle class family. You describe your childhood in positive terms, denying any early trauma or abuse and maintain regular phone contact with your family who remain in Senegal.
2. You were raised speaking Wolof as your primary language and learned to read and write in French at school. You completed your formal education up until you were 18 years of age and have worked in a variety of roles including as a cleaner, a care assistant, and as a hairdresser.
3. You met your now ex-husband in Gambia and together you share three children. Your eldest daughter who is now 21 was born in Gambia before your family migrated to Australia when you were around 30 years old. Prior to your offending you maintained good relationships and daily contact with all three of your children however that has ceased since your remand. You and your ex-husband divorced around 10 years ago which occurred in the context of your alcohol use.
4. You have a history of excessive alcohol use which commenced when you were around 12 years of age and progressively increased to you consuming two to three bottles of wine per day. You further account a habit of intermittent poly-substance use including cannabis, methamphetamine and GHB.
5. Regarding your future use, you have expressed a desire to attend residential rehabilitation following your release from custody. You are motivated to achieve sobriety and want to make your children proud, however, acknowledge that your current social circles will facilitate your drug use.
6. A neuropsychological report of Dr Rachel O'Meara dated 26 September 2025 was tendered on the plea alongside a psychological report of Laura Fleming dated 24 June 2024.
7. Dr O'Meara administered a wide range of neuropsychological and cognitive testing which ultimately revealed performances that consistently fell severely below most age-matched peers (in the Extremely Low range), suggestive of a very low level of general intellectual functioning. Dr O'Meara opines that such a cognitive profile, in conjunction with your Full Scale IQ score of 46, is most consistent with an intellectual disability of moderate severity.
8. Moreover, Dr O'Meara states that your history of polysubstance use, including your heavy, long-term use of alcohol from a young age, would place you at serious risk of a substance-related brain injury.
9. Dr O'Meara is of the opinion that your profound cognitive deficits make you highly vulnerable to the influence of others and any suggestion by others to be involved in criminal or antisocial activities. She explains that your cognitive deficits will make a term of incarceration more difficult relative to an individual of typical cognitive functioning specifically as you would struggle to learn the rules and routines of the prison and adapt to any changes. This, in conjunction with your impulsivity, will place you at a high risk of transgressions and associated disciplinary action in custody. That said, Dr O'Meara is also of the view that certain aspects of your cognition may improve in custody with enforced abstinence from drugs and alcohol.
10. You have had brief encounters with community-based mental health services in recent years and throughout your time in custody. In August 2023, you were assessed for anxiety, symptoms of depression and auditory hallucinations. This assessment noted a reported history of anxiety and Post Traumatic Stress Disorder and a suicide attempt via self-immolation.
11. You were admitted to the Marrmak Unit from the 24 February to the 14 March this year after a statement of suicide and commenced on an antipsychotic medication (olanzapine) that was prescribed to assist with your agitation. This prescription ceased on 21 May due to concerns related to weight gain and raised cholesterol. You were also prescribed melatonin to assist with your sleep.
12. Ms Fleming opines that from a psychological perspective, your reliance on self-harm statements to seek support indicates maladaptive coping strategies and that you would benefit from intensive psychological intervention to increase your resilience and coping strategies when facing distressing situations.
13. Regarding your risk, Ms Fleming asserts that you are a vulnerable person with limited support and a lack of stable housing who will require long-term intensive support to promote your wellbeing and deter future offending.
14. Supporting material from the Women's Justice Diversion Centre and the Australian Community Support Organisation were tendered, which confirm you will have access to housing assessment and referral support post your release from custody. You have also successfully registered as a participant of the NDIS and a scheduled meeting with a Disability and Complex Needs Practitioner has been confirmed. These services will assist in your transition from custody to the community.

1. I first take into account your plea of guilty. You pleaded guilty at the committal mention stage and no witnesses have been cross examined. Your acceptance of responsibility has brought the matter to an early conclusion, saving court time and money and you have thereby promoted the course of justice.
2. Relying on the findings of Dr O'Meara, it was submitted that Verdins principles have some application. Dr O'Meara noted:

Ms Diallo's global severe cognitive deficits will have a significant impact on her capacity to think clearly and make calm, reasoned decisions and appropriate judgments. As previously noted, she will struggle to attend to, comprehend, learn and remember any information that extends beyond basic, repeated, or well learnt information in order to make fully informed decisions. She will also struggle to hold and work with information in mind in order to consider the range of options available to her when making a decision and due to her poor abstract reasoning skills and inflexible thinking, will be unable to determine the likely consequences of any such options in unfamiliar scenarios or to shift approach to a decision once finding an inadequate solution. These deficits are likely to impact her ability to understand the wrongfulness of her actions in novel circumstances where there is no direct or observable consequence of her actions on another person.

1. I accept that to a degree your moral culpability is informed by your intellectual disability which is an enduring condition. I am also of the view that general and specific deterrence is able to be moderation to a degree. As to Verdins principle 5, I accept that based on Dr O'Meara's opinion, prison will be more burdensome for you relative to an individual of typical cognitive functioning. However, for the reasons noted above by Dr O'Meara in relation to the prospect of some improvement in cognitive function in custody, the evidence does not support the application of Verdins principle 6.
2. As to your prospects of rehabilitation, it is clear that you will require significant support when released in the community. You have expressed a high level of motivation to change to Dr O'Meara, your main motivation being your children and your desire to reconnect with them. You have taken some steps in preparation for your release including importantly, liaising with Women's Housing Ltd who will assist you in obtaining safe and affordable housing. You have also registered with the NDIS and a plan is being prepared for you. Nonetheless you come before the court with some prior history and you have a number of issues to contend with. If you engage with the various services that will be offered to you upon your release, in my view your prospects can be considered to be at least reasonable.
3. Turning to other relevant sentencing principles.
4. General deterrence remains the prominent sentencing consideration. People working in small businesses are vulnerable soft targets which is the very reason they are chosen as targets. A strong message must continue to be conveyed to those contemplating such conduct that it will not be tolerated and will be met with stern consequences. As to specific deterrence, while you are making positive steps towards your rehabilitation, you have a relevant and recent prior criminal history. As such specific deterrence still has a role to play.
5. You were remanded in relation to this matter on 30 May 2025, however on 30 October 2025 you were sentenced to 21 days for unrelated offending which is unable to be declared for the purposes of this sentence. As such you have been in continuous custody for some 186 days of which only 165 days is able to be formally declared. I take this into account, applying the principle of totality.
6. It was submitted that a combination sentence is within range and would provide you with support and structure upon your release. Mr Pickering who appeared on behalf of the Director of Public Prosecutions submitted that in the circumstances a combination sentence is within range.
7. I had you assessed for a community correction order and you have been found suitable. In my view in all the circumstances, a combination sentence is able to meet the relevant sentencing considerations.

1. Ms Diallo, would you please stand.
2. Ousmame Diallo, on Charge 1, attempted armed robbery, you are convicted and sentenced to 7 months imprisonment as the prison component of the combination sentence.
3. Upon your release you will be placed on a community correction order for a period of 2 years. While all correction orders are punitive in nature, the focus of the order is therapeutic. You will be subject to special conditions requiring you to undergo treatment and rehabilitation in relation to drug use and alcohol use, your mental health, and programs to reduce reoffending. You will also be subject to supervision.
4. Pursuant to s 18 of the Sentencing Act 1991 ('Sentencing Act'), I declare that 165 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
5. Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty, I would have sentenced you to a period of 3 years imprisonment with a non-parole period of 2 years.

[1] [2007] VSCA 182 at [36].