DPP v Sidi [2019] VCC 2177

1. I turn now to Charge 3, which occurred on 14 December 2018. On 13 December 2018, you responded to an ad in Gumtree where your victim was selling a mobile phone. You gave a false name and you and another male attended the victim's address on 14 December 2018.
2. You went inside the house whilst the unknown male waited outside. Inside the house the victim asked to see the cash to purchase the phone. You pulled out a knife with an approximately 30-centimetre long blade and held it close to his eyes and demanded he hand over his phone. The victim gave you his phone and you and the other male ran off. The victim and his flatmate identified you from a photo board.
3. You were already in custody when police went to speak to you about this matter. You refused to be interviewed.
4. The offence of attempted armed robbery is a serious offence. This is demonstrated by the fact that it carries a maximum period of 20 years' imprisonment. Although the circumstances in which the offence may be committed vary widely, this is a serious instance of this crime. Likewise, the offence of home invasion is a serious offence as demonstrated by its maximum penalty of 25 years' imprisonment. In short, your two crimes were audacious. The circumstances here involved walking into the home of a complete stranger and his family, including two young children.
5. The attempt to rob him was brazenly carried out in the presence of his wife and children. Moreover, you were in the company of two others; one of whom you knew was armed. Your threat to the victim was made in front of his wife and young children. The threat to harm the children was cowardly, thuggish and despicable.
6. It is fortunate that no one suffered any physical injuries. Nevertheless, objectively speaking, this was a terrifying incident for the four victims involved. I respect the wishes of the victim, who did not want the victim impact statement read in open court. I can say, and it is sufficient to say, that this offending will stay with all victims, adults and children alike, for a long, long time
7. People who advertise on Gumtree and similar platforms are what is known as 'soft targets'. The community rightly expects to be able to carry out this type of transaction without the fear of such threats or intimidation being made in their own home. The idea that strangers will walk into a person's home with the object of robbing them under threat of violence is obnoxious and abhorrent.
8. There is no evidence as to what part you played, if any, in the preplanning of this offending. Nevertheless, at some level, you were aware of and must have participated in a degree of planning this crime. You were aware of the soft target and the involvement of another or others. You were also aware that the crime was to be committed at or inside the victim's home. Moreover, once you were inside you played a leading and initiating role. Your moral culpability for this offending is high.
9. Much of the same analysis applies to the earlier armed robbery. Of course, this incident has its own features. Again, it took place inside the victim's home, a place where everyone is entitled to feel safe. The fact that you pulled out such an intimidating weapon and held it so close to the victim's face must have been a terrifying ordeal for him. This is in no small part evidenced by the fact that he immediately complied with your threat and handed you his phone.
10. I also conclude that although this offence (charge 3) was committed in the company of another male, you were the prime instigator and leader. I do so from the fact that you took the only speaking role and responded to the victim as if you were the caller. It was you who entered the house to make the transaction and you who pulled out the weapon and held it to the victim in execution of the crime. Your moral culpability for this offence is very high.
11. Your use of the ruse of being a genuine Gumtree buyer in order to threaten and intimidate soft targets with the object of stealing from them was, as I have already said, cowardly and thuggish. You deliberately chose targets who you anticipated would offer no resistance and in both instances you met them with threats of violence and intimidation. In both instances you had company available to you in addition to weapons.
12. In these circumstances, your crimes attract the principles of general deterrence, just punishment and protection of the community. Ordinarily, offending such as this attracts a period of imprisonment and a period well beyond the period you have already spent on remand.
13. I note up front that both the prosecution and defence submit that your age, that is 18 years at the time of the offending and 19 years old now, together with your limited prior convictions, should be taken into account as an important sentencing principle in your favour. These two factors will figure significantly in the sentence I impose on you. I note also that your overall offending requires me to apply the principle of totality.
14. I turn now to consider your personal circumstances. As I have just said, you are 19 years of age and you were born on 8 July 2000. You were 18 at the time of this offending. You are the second oldest of six siblings. You and your four younger siblings all live at home with your mother. Your father is currently in the United States and has been for some months since the death of his mother. Your parents are Somali born. You and your younger siblings were all born in Australia.
15. I received a letter dated 4 April 2019 from Glenda G. from IPC Health in Wyndham Vale. It is apparent that your mother suffers from significant health issues including diabetes and severe vision impairment. She is under financial and emotional stress and relies heavily on the money you brought in to help support the family. She has now had to get by without that support, and presumably with nothing from your father, for over 10 months or more.
16. Your father works or worked as an accountant (it is not particularly clear his present circumstances are), and the family moved several times through suburban Melbourne during your childhood. Your primary schooling commenced at Malvern East Primary and you attended another three primary schools after that, then your family purchased a home in Tarneit. Your parents separated and then divorced in 2011. You attended Year 10 at Grange Secondary College and then left school. You completed a carpentry pre-apprenticeship in 2018 at Victoria University.
17. A letter dated 25 October 2019, addressed to the presiding magistrate and in relation to your mother, refers to the fact that your mother has been the subject of family violence and 'circumstances beyond her control' and in contact with Women's Health West in 2011, 2014, 2017 and 2019 through police reports. It appears that your family life, although painted as being difficult due to the absence of your father, may have had another significant level to it of which I was not informed on the initial plea. I do not understand how it is that the report was dated 25 October, but I only receive it now. But it is a matter I take into account as another layer to your childhood and your mother's family experience.
18. I was told you were involved in a serious motorbike accident when you were 14 years of age. I understand that you were wheelchair-bound for 12 months and it took 18 months for you to fully recover. You suffered damage to your femur and to your jaw.
19. After completing the pre-apprenticeship course in 2018 at Victoria University, you took a job with Action Workforce DHL. I was told you earned a significant amount of money in that job, some $1,400 a week after tax. Initially you used your money to help your mother meet household expenses. Thereafter, I was told, you drifted into significant cocaine use and your addiction to that drug was costing you about $1,200 a week. I make the observation that I do not know when you got the job or how long you had it for, but the pre-sentence report that I received was from 16 April 2018 and you were still to do the pre-apprenticeship at that stage I believe.
20. So it seems that if you went from the pre-apprenticeship to DHL, then you could not have worked at DHL for more than a few months. In any event, the youth justice report speaks of your desire to undertake the pre-apprenticeship course at Victoria University. It makes no mention of drug use or drug history at that time. The fact is I have got nothing but your counsel's submissions as to your drug use, and now I have got the report of Mr Bell.
21. It is significant that your counsel sets out that you started using cannabis at 13, pills after leaving school, and at 18 you were using cocaine in significant quantities, and yet none of this was known to Youth Justice back in 2018. The presentence report was received in relation to a charge of retention of stolen goods, which was dealt with by a without conviction adjournment at the Children's Court on 17 April 2018.
22. The report notes that the pre-apprenticeship course was to commence on 23 April 2018. The report noted your then remorse and victim empathy and your proactive plans for a prosocial lifestyle. These offences were committed within eight months of that report and whilst you were in the adjourned undertaking period to the Children's Court. I note that you were then dealt with by the Children's Court again on 2 October 2018 for theft, dealing in property suspected being the proceeds of crime and committing an indictable offence on bail and you were again placed on an adjourned undertaking. Accordingly, the offences for which you are now facing sentence were committed during the currency of those undertakings.
23. Since you have been in custody, you have been removed to various prisons. You started at MAP and then moved to Ravenhall. At Ravenhall you completed courses in traffic management, maths and first aid. I was told there was 'an incident between two rival gangs', and that is expanded upon in some little detail in Mr Bell's report. You spent five months in management as a result at Port Phillip prison. This involved 22-hour lockdown. Apparently when you were to be moved back to mainstream, you were offered the opportunity to go to either the remand centre or to Barwon and you chose Barwon prison. You have remained at Barwon for some months.
24. I have references from your partner, her father and your father. Skye Turnbull and her father Troy Turnbull speak of you using drugs but more importantly speak of the fact that you have not use drugs since you have been on remand. I was told on your plea that there are drug screen reports which I have now seen and they indicate negative results to drug use.
25. Your counsel Ms Casey submitted that you have demonstrated remorse by the instructions you have given her and that was, 'I feel very sorry for the victims for what I've done', and by your plea of guilty to these offences. I have also been provided with a letter written in the last few days which I have now received. I have on previous occasions expressed my reasons why the late receipt of these letters is not to be necessarily encouraged.
26. In my view, neither of these are sufficient indicators of remorse upon which I may act. The report of Mr Bell and the work he has done with you even in a short period, however, falls into a different category. In the work that he has done with you already you speak candidly of your drug use and you said:

'It was a big step for me coming down off drugs and coming down in custody. 'm not going to lie, I felt tempted before but chose not to stuff up my soberness and waste precious time that I won't get back. That's why I put drugs down, because they made me senseless and now I've come to my senses. The way I've been proceeding is how I want to be in the future and I have a positive outcome in life, not a negative one'.

1. You say that it took you until you got to Barwon before you learned to treat the prison staff with respect. There is no benefit in you arguing and wasting their breath as well as yours. You speak of the brawl you got into at Ravenhall and that you were provoked and you say that you should have swallowed your pride but your ego got the better of you. You say this also:

'This is my first time in custody and to be honest I needed a wake-up call. I'm still shattered that this unfolded, but I'm glad at the same time because God knows what mischief I would be getting up to. I want to make this the last time I come into custody and, upon my release, become an electrician'.

1. You said you initially started using drugs and you loved the thrill and adrenaline and the rush of doing crime and you wanted to feel popular, but you say also that you want the opportunity to change. Whilst you do not speak about the victims of your crime directly in the work that you have done with Mr Bell to this point, I consider that a real and positive if only initial step in the right direction. As a consequence I am going to find that your plea of guilty is attended not only by a utilitarian benefit but that there is at least some expression of remorse.
2. In Ms Casey's other submissions she urged that due to your age, all things being equal, I should emphasise your prospects for rehabilitation in the overall sentence that I impose. Importantly, as you are a young offender, the law recognises the desirability in structuring a sentence which presumes from your youth that you have prospects for your rehabilitation and that I should promote those prospects.
3. Building on this and other submissions as to totality, proportionality and parsimony, Ms Casey principally submitted that I should have you assessed for a community corrections order. Ms Thorpe, who prosecuted this matter on behalf of the OPP, agreed that your age was a significant factor in the sentencing consideration and that I should give emphasis to your prospects for rehabilitation. From that, Ms Thorpe submitted that a combination sentence of imprisonment was within range, but that the period of imprisonment served already was insufficient. Alternatively, the Crown submitted that a period of detention in a youth justice centre was also open and appropriate as a sentencing option.
4. Principally, the Crown pointed to the objective gravity and recurring nature of your offending. In respect to Charges one and two, Ms Thorpe submitted that the offending was very serious as it occurred within the victim's home and occurred in the presence of two young children and that you were in the company of two others. Ms Thorpe submitted in respect to Charge three that the offending again occurred in the victim's home and that you produced a 30-centimetre long life which had potential to cause significant harm. Moreover you held the knife in a manner that was a show of aggression and intimidation.
5. Ms Casey provided written submissions on the plea. In those submissions, Ms Casey submitted that the offending occurred with a degree of planning by targeting the victims through the Gumtree ads, and that the impact on the victims of these two incidents was likely to be high. She also submitted that the offending occurred as a consequence of the desire to obtain money by selling the phones that were stolen, or to be stolen in one case, for drugs.
6. I have taken into account all of the factors relating to your offending and your personal factors. I conclude that although the prospects for your rehabilitation may be presumed from your youth, there are indeed actual prospects for your rehabilitation as shown by the report of Mr Bell dated 17 December 2019. Nevertheless I consider that, given your previously stated good intention to Youth Justice in April 2018, there must be a continuous structure required for your progress towards rehabilitation. Moreover, as you are still at such a young age, I want to take the emphasis off the adult corrections system and give you the opportunity to participate in the youth justice system.
7. According to the report of Mr Bell you are suitable for a youth justice centre order. In this respect I have regard to the conclusion that you have reasonable prospects for rehabilitation and the conclusion that whilst you have acquired a greater level of maturity whilst on remand you continue to present as an immature 19-year-old with simplistic views of life and success. In this respect I am satisfied that you are particularly impressionable, immature or likely to be subject to undesirable influences in an adult gaol.
8. I note that Mr Bell made his recommendations with Bridget McGeoch and that they had read the material supplied to the court, that they had consulted with the relevant authorities in the youth justice system regarding your suitability, and it is the view of Youth Justice that you meet all of the criteria stipulated in the Sentencing Act and are therefore considered a suitable candidate for a youth justice centre order.
9. All right, thank you. Mr Sidi, if I can ask you to stand, thank you.
10. On Charges 1, 2 and 3 you are sentenced to a period of detention in a youth justice centre for a period of 18 months. I have taken into account the fact that you have served 340 days on remand in an adult gaol in the sentence that I have imposed. The sentence of 18 months is to impose not only a further period of punishment on you but is also designed to give the youth justice system the maximum opportunity to put programs in place that will allow you to hopefully flourish and blossom whilst you are in the youth justice system.
11. You will note that I am not imposing any minimum term. I cannot do that when I impose a youth justice centre order. That is the work of Youth Justice. They will tell you when you are able to be released on parole and day release and the like.
12. With that, Mr Sidi, I just want to wish you the best of luck going forward into the future. I hope you realise your ambition of becoming an electrician.
13. Now, 6AAA you require. Were there other orders you sought?
14. MS THORP: Yes, Your Honour, there's also the 464ZF order that's requested.
15. HIS HONOUR: Ms Casey, I think you said initially it wasn't opposed. Is that right?
16. MS CASEY: I think what I said was I'd need to get instructions and I've neglected to do that, Your Honour. If I can approach the dock briefly.
17. HIS HONOUR: I thought that you had. All right, given that - just take a seat for a moment, please, Mr Sidi, and I'll just work it out. Ms Casey, he's committed two diverse offences of the same nature.
18. MS CASEY: Yes, Your Honour.
19. HIS HONOUR: On members of the public. I would consider it in the public interest to make the order but notwithstanding his young age.
20. MS CASEY: Yes, Your Honour.
21. HIS HONOUR: But if you want the opportunity to take instructions, I'll give you that opportunity.
22. MS CASEY: Thank you, Your Honour. I'll just do that. Not opposed, Your Honour.
23. HIS HONOUR: All right. Thank you. I'll make that order in chambers. I don't think we've received the ‑ ‑ ‑
24. MS CASEY: The draft.
25. HIS HONOUR: The draft. So if you can send that through.
26. MS CASEY: We'll make sure ‑ ‑ ‑
27. HIS HONOUR: Disposal order is not being proceeded with?
28. MS THORP: No, Your Honour, it only refers to the clothes. We're going to give those back, I understand.
29. HIS HONOUR: All right, 6AAA, but for the plea of guilty I would have imposed a period of imprisonment of three with two.