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R v Mohamed [2024] VSC 318 (7 June 2024)

Last Updated: 11 October 2024

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0049

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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] VicRp 81; [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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HIS HONOUR:

CIRCUMSTANCES OF OFFENCE

1 Mohamed Mohamed, you pleaded guilty to manslaughter, the maximum penalty for which is 25 years’ imprisonment.
2 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 gun discharged, striking Mr Habiyakare in the chest, fatally. Your group decamped soon after the shooting, returning to the Astra and driving away.
3 The agreed facts were set out in the prosecution opening as follows:

5. Mohamed Mohamed and Daniel Sisal have each pleaded guilty to the manslaughter of Habiyakare.

6. In doing so, both Mohamed and Sisal acknowledge that:

1. They entered into an agreement or a plan to commit a home invasion at Habiyakare’s home with their co-offender Mustafa Alhassan;
2. The purpose of the home invasion was to steal drugs and/or monies that they believed would be present in Habiyakare’s home;
3. Mohamed drove people to, and from, an area near Habiyakare’s home for the purpose of the home invasion being carried out;

d. Sisal was one of the intruders who entered Habiyakare’s home;
e. Another intruder, Alhassan, possessed a firearm;

6. Both Mohamed and Sisal were aware that Alhassan was armed with a firearm at the time the home invasion took place;
7. It was intended, and both Mohamed and Sisal knew, that Alhassan’s firearm would be employed to threaten Habiyakare;
8. Some of the intruders were armed with a taser and a machete, but the prosecution cannot say which intruders were armed with these weapons;

i. In the course of the incident, Habiyakare was shot by Alhassan;

10. The threatening of Habiyakare with a firearm in the course of a home invasion was an unlawful and dangerous act and was consistent with the elements of the offence of manslaughter;
11. The fact that the killing took place in Habiyakare’s home, during the course of a planned home invasion, amounts to an aggravating feature of the offence of manslaughter.

Matters in Dispute

4 In relation to the offending itself, you disputed the following matters at your plea hearing:

• Whether you were aware that the gun was loaded;
• Whether you were aware that your co-offenders had a machete and a taser;
• Whether you were aware that there were other people in the house as well as Mr Habiyakare;
• Whether you entered the premises.

5 In relation to your post offence conduct prior to your arrest, you also disputed the following matters at your plea hearing:

• Whether you were in possession of a machete;
• Whether you genuinely agreed to be involved in another home invasion with Mr Sisal.

6 I will deal with this disputed post offence conduct later and I will also deal later with another matter in dispute, namely, whether you pleaded guilty at the first reasonable opportunity.

Whether MM aware gun was loaded

7 Turning to the disputed matters in relation to the offending itself, the prosecution submitted, and you denied, that your plea of guilty to manslaughter necessarily implied that you were aware that the gun was loaded. The prosecution submitted that it was the fact that the gun was loaded which made its presentation “dangerous”^[1] in the technical sense. Your counsel submitted that the presentation of an unloaded firearm can itself be dangerous, because of how the victim might react — for example, flight or fight — and so it was submitted your plea of guilty cannot be properly construed as an admission that you were aware the gun was loaded.
8 I accept your counsel’s submission but I am nonetheless satisfied beyond reasonable doubt that you were aware the gun was loaded. You and your co-offenders targeted Chris Habiyakare because you believed he was a drug dealer who was likely to have a significant amount of drugs and/or money at his premises. As it turned out, he had drugs and over $40,000 cash in a safe, although that was only discovered by police about a week later. Mr Habiyakare’s occupation as a drug dealer in itself made it prudent for your group to have a loaded gun, in case he had a firearm himself. You knew you were not planning a home invasion on a little old lady. Furthermore, as confirmed by a subsequent intercepted conversation, you were aware that there had been a fight between him and another person at his home two days before the home invasion.^[2] If he did not already possess a weapon with which to defend himself, the prospect of a retaliatory attack by those associated with the individual who came off second best in that earlier incident gave him a reason to remedy that state of affairs. Indeed, as confirmed by a subsequent intercepted conversation, you planned to use that incident as cover for your own crime, anticipating that Mr Habiyakare and the police would suspect it was a revenge attack for that earlier incident.^[3] It seems to me that it is nothing more than a remote possibility that you believed your co-offender was bringing an unloaded gun to the scene of the crime.

Whether MM aware of machete and taser

9 The next issue is whether you were aware of the machete and taser. The intercepted conversation to which I have already referred bespeaks careful planning on your part. In those circumstances, it is most unlikely you would have been unaware of the weapons that were to be utilised. I am satisfied beyond reasonable doubt that you were aware that the other weapons were a machete and a live taser.

Whether MM entered the premises

10 The next issue is whether you entered the premises. I am not satisfied of that beyond reasonable doubt. That your group might have agreed that you would stay in your mother’s car to act as getaway driver does not seem implausible. Having a getaway driver ready and waiting has obvious benefits.
11 The prosecution, arguing that there was only one car involved and that there would have only been four persons in a little Astra, emphasised the fact that according to the occupants of the house who survived the home invasion, there were not less than four intruders. Ergo, it was submitted, you must have entered the house. But whilst an Astra is a small car, it is not unknown for young people to cram three people in the back of such a car. That would have meant there were four others to carry out the home invasion whilst you stayed in the car.
12 The fact that there is nothing in the intercepted conversations to suggest a fifth offender is, I think, the strongest point for the prosecution but in my submission it does not negate as a reasonable possibility that five offenders travelled in the Astra to the crime scene and that you stayed in your car to ensure a fast getaway for your group. I note too that in an intercepted conversation sometime after the offence, where Sisal was suggesting a further home invasion, he suggested that you play that very role.^[4]

Whether MM aware of other people at the premises

13 As I am not satisfied that you entered the premises, I am not satisfied that you were aware in advance that there were other persons present at the house apart from Mr Habiyakare.
14 I will deal with the other matters in dispute later in these sentencing reasons.

Victim Impact Statements

15 Chris Habiyakare was the principal but not the only victim of your offending. Victim impact statements have been tendered by his father as well as his friends and associates who were present at his home at the time of the home invasion.
16 His father Belthrand Habiyakare is devastated by the loss of his son. He writes that it has profoundly affected his mental health. He has difficulty concentrating, he suffers panic attacks, he feels he failed to protect his son and he is fearful for his other children. He now struggles in his leadership role in the Burundian community and withdrew from his Masters at Melbourne University.
17 The victim statements of Aasha Beasley, August Niranyibagira, Maya Wolkoski and Tiggy Atakelt, friends of the deceased who were present at the home invasion, powerfully portray the terror of their ordeal, and the enduring impact it has had on each of them. One theme is their loss of a sense of safety, even at home. August Niranyibagira, a close friend of the deceased, writes, referring to you and your co-offenders: “How do they live with themselves knowing that my life and all the others will never be the same, the hurt and trauma lingering on?”.

Objective seriousness of offending

18 I will assess the objective seriousness of your offending on the basis that you remained in the car to act as a getaway driver. Whilst that fact reduces the seriousness of your offending somewhat,^[5] you were nonetheless party to a carefully planned joint criminal enterprise which involved the invasion of someone’s home at night by multiple offenders with multiple weapons. As I have found, you were aware that the weapons were a loaded firearm, a machete and a taser. In the course of that invasion, Mr Habiyakare, a young man,^[6] was shot and killed and the other young people present were terrified, some injuring themselves in their efforts to escape. Although I am not satisfied that you were aware of the presence of Mr Habiyakare’s friends, their presence, and plight, is not irrelevant to the assessment of the seriousness of your offending, which I consider falls at the upper end of the mid-range of manslaughters.

CIRCUMSTANCES OF OFFENDER

19 I turn now to your personal history and circumstances.

Personal history

20 You were born in Melbourne on 10 June 2003, making you 18 at the time of your offence and 20 now. You turn 21 this coming Monday.
21 Your parents are from Eritrea in north-east Africa. They came to Australia about 25 years ago to escape the Ethiopian-Eritrean war. You have a younger sister and a younger brother.
22 From a very young age, you lived in the housing commission flats in Ascot Vale. That is where you were living at the time of the offence.
23 Your parents are loving parents who tried to shield you and your siblings from the drugs and violence around the flats. You indicated to the clinical psychologist Guy Coffey, who provided a report, that your home life was “harmonious and supportive”.^[7] Indeed, I have received very supportive and moving character references from your father and mother as well as from your sister, two uncles, a cousin and a friend.
24 Your behaviour and performance at primary school was positive but you encountered racism and bullying (including physical violence), which led to several changes of schools. You attended high school at Essendon Keilor College where you had similar problems but you continued to do well academically and you hoped to one day become an engineer.
25 Unfortunately, you began using cannabis when you were in Year 8 and, by year 10, you were a daily user. You were also using Xanax.
26 You commenced your VCE in 2020. Around this time, your parents separated. Your father, who had been working in Colac at an abattoir for some time, moved there. Your mother remained with you and your siblings in your small two bedroom flat in Ascot Vale. Your maternal grandmother also lived with you, sharing your room.
27 Not long into your VCE, the coronavirus lockdowns began and you had to take your classes online. The difficulties of trying to do VCE online in a small crowded flat were massive. The internet connection was so poor that you needed to leave the door of your bedroom open. Your engagement with classes and study fell away, understandably. Your use of illicit substances increased. In Year 12, the school recommended you should leave and you reluctantly enrolled in a pre-tertiary course at Victoria University in mid-2021. Lockdowns continued and again you struggled with online classes.

Circumstances around time of offence

28 At [60] of his helpful report, Mr Coffey summarised the circumstances that he believes led to your offending:

I have described Mr Mohamed’s transfer to Victoria University and his loss of direction after the second lockdown commenced in early July 2021. He still had ambitions to enter a tertiary course in 2022 but had lost motivation to study. He found the flat claustrophobic and was missing his father. He was often dysphoric and anxious. He was eating erratically and was underweight (he weighed 65kgs when remanded; he now weighs about 82kgs). His primary social contacts outside his family were his friends on the estate, all of whom, he said, were committing crimes. He spent several hours with them each day, smoking up to seven joints and taking a few tablets of Xanax which he said made him “mellow and sleepy”. He said when with his friends he felt he belonged somewhere and protected by them. He said he consciously made an effort to mimic the way they “walked, talked and appeared” in order to fit in. He obtained a driver’s licence in June 2021 upon turning 18 and he enjoyed driving members of the friendship group around in his mother’s car.

29 At [116] and [117], Mr Coffey adds:

In my opinion neither mental disorder nor anti-social personality characteristics explain the offending. A convergence of variables – peer and environmental influence, disaffection with school, a degree of psychological instability, substance use, social isolation, and lack of a structured daily life contributed to the commission of the offence.
It is commonly the case that the influence of criminally inclined peers is emphasized as the most significant reason for criminality by those who wish to preserve a view of the young person as essentially of good character, when in fact many other factors, including anti-social personality traits, have contributed to the offending. In Mr Mohamed’s case I do believe that peer influence contributed very significantly to his offending. The history of bullying he experienced and his struggle to obtain a peer group he belonged to probably contributed to his willingness to join a group of young people whom he knew were committing crimes and who did not share his ambition to acquire a good education. His involvement with these peers coincided with restrictions on his social contact with others, his school friends and community organisations, due to extended lockdowns.

I find Mr Coffey’s analysis of the factors that contributed to your offending persuasive.

Post offence conduct

30 Your post-offence conduct included getting new numberplates for the Astra and trying to sell it. You wanted to distance yourself from the crime. As previously mentioned, there are other aspects of your alleged post offence conduct which are in dispute. The prosecution seek to rely on these aspects as bearing upon two questions — whether you are genuinely remorseful and whether you have good prospects of rehabilitation.

Whether MM agreed to another home invasion

31 The first matter is whether you agreed to be a party to another home invasion.
32 On 18 November 2021, in intercepted conversations, Daniel Sisal indicated to you that he was contemplating another home invasion on a house in Maribyrnong where he believed they had “a kilo”. Later that day, you boasted to him that the Astra was the “ultimate getaway vehicle, zero to 100 in three seconds”. On 21 November 2021, Sisal told you he was going to do a “job” and had got his mate to ‘sus’ the place out. He told you that you could wait down the road. You said ‘All right. Easy. What time?’.^[8]
33 You told the psychologist Guy Coffey, and your counsel submitted, that this, and other talk seemingly approving criminal activity, was just bravado so that your co-offender would not think of you as a weak link, but in the absence of a proper evidentiary foundation for that submission,^[9] I am satisfied beyond reasonable doubt that you were willing to be a party to another home invasion, even though you knew that Mr Habiyakare had been killed in the earlier home invasion. That does you no credit.

Whether MM possessed a machete

34 Another matter in dispute regarding your post offence conduct was whether you were in possession of a machete. In an intercepted conversation on 11 October 2021, you asked an unknown male “Why did you take my chete?” Your counsel pointed out that later in that same conversation you said “They’re not mine, cuz” and “It’s my homeboy’s”.^[10] But just as the unknown male you were speaking to on 11 October 2021 was plainly not the owner of it but had taken possession of it for his illicit purposes, the fact that it may have been someone else’s property is not inconsistent with you having been in possession of it. And on 17 November 21, police observed a machete in the footwell of your Astra.^[11] I am satisfied beyond reasonable doubt that you were in possession of a machete in the months after the index offence and that does you no credit either.

Whether MM remorseful

35 This is a convenient point to deal with the disputed issue of whether you are genuinely remorseful for your crime. It is for you to satisfy me of that matter on the balance of probabilities.
36 You have expressed remorse for your offending to the psychologist Mr Coffey who saw you multiple times in April and May this year, in your letter of apology to Chris Habiyakare’s father and friends and to the writer of the Presentence Report. Your referees also speak of your remorse.
37 By contrast, in an intercepted conversation on 16 October 2021, when discussing with a friend whether the police had any leads, you said this:

I feel like the askars [the police], they didn’t give a fuck about the cunt, he is a piece of shit to society.^[12]

And I have found that you were planning a further home invasion in November 2021, not to mention the possession of the machete.

38 I accept that even though there may have been no signs of remorse prior to your incarceration on 30 November 2021, you may have changed since that time. But in my view you have a credibility problem, which has been of your own making.
39 When assessed by Mr Coffey in April and May of this year, you made false self-serving statements that you were not aware of the plan to carry out a home invasion until your co-offenders got in your car on the evening of the offence and mentioned the idea.^[13] You made out that you were a belated and reluctant participant. You also made false self-serving statements to Mr Coffey that you were not involved in planning any further crimes and had no intention to commit any.^[14]
40 In your letter of apology tendered at your plea hearing, and written a day or two before that hearing, you stated, when addressing the deceased’s father:

There hasn’t been a night or day that I haven’t felt ashamed, guilty, embarrassed and disgusted with myself for my involvement in your son’s death.

If that was true, one might have expected you to make a formal offer to plead guilty to manslaughter much earlier than you did. One might have also expected your letter of apology to have been proffered much earlier. The submission by your counsel that the lateness of the written apology was attributable to the lateness of the victim impact statements is unpersuasive. The witness statements of the deceased’s friends who were present at the home invasion formed part of the brief, which you have had for a long time. You have also been aware for a long time of Mr Habiyakare’s father’s grief, not least from his participation in a press conference organised by investigators after his son’s death.

41 Whilst contesting a charge and genuine remorse are not necessarily mutually exclusive, I am not persuaded on the balance of probabilities that you are genuinely remorseful given your post offence conduct, your recent self-serving lies to Mr Coffey and the lateness of your letter of apology.
42 But neither am I persuaded beyond reasonable doubt that you have no remorse, as was submitted by the prosecution.
43 I hope you are genuinely remorseful, for your sake and for the community’s sake.

Time on remand

44 You were arrested and remanded in custody on 30 November 2021.You have been in custody since that time. A substantial portion of that time on remand has been spent in isolation. On 2 March 2023,^[15] you were placed in a management unit at Port Phillip Prison (PPP) after being assaulted and you remained there for approximately 4 months. You were confined to your cell for 23 hours per day with no access to other prisoners, even during your daily one hour “run out” in a concrete caged area. You were not permitted contact visits with your family and no visits were permitted on weekends, which made it very difficult for your father, who lived and worked in Colac, to visit you.
45 On 30 June 2023, you were transferred to an intermediate unit at Melbourne Remand Centre (MRC) where you remained for approximately 2 months. Whilst your conditions were better, your solicitor states in her affidavit, which was not challenged, that the intermediate unit did not “include the level of freedom of movement and association as a mainstream unit”.
46 You were sent back to the management unit at PPP on 5 September 2023 where you remained for approximately 5 months. According to your instructions, that was because you had refused to provide a urine sample at MRC.
47 On 28 January 2024, you were returned to the MRC and placed in a transitional unit. Your solicitor says you were permitted a cell mate, allowed freedom to move around the unit, permitted to enter the prison yard and had more access to phone calls and visits. This arrangement lasted approximately one week.
48 On or around 5 February 2024, you were placed in a management unit at MRC after (according to your instructions) half a Seroquel tablet was found in your cell. As at PPP, you were confined to your cell for 23 hours per day.
49 On 26 February 2024, your solicitor commenced proceedings in this Court to challenge the MRC’s decision to place you in a management unit. She states that not long after the proceedings commenced, you were removed from the management unit. She does not indicate the precise date, or the nature of the unit into which you were shifted, but states you were advised you would not be permitted contact visits with your family for a further 12 months, having been denied contact visits since 2 March 2022.
50 In summary, you have been held in solitary confinement for approximately 10 months between March 2023 and March 2024 and have not been permitted contact visits with your family for approximately 2 years and 2 months. For a young person, having their first experience of jail, that is very harsh extra- curial punishment.
51 Two mental health experts — the consultant psychiatrist Dr David Thomas and the clinical psychologist Guy Coffey — have commented on the impact of this punishment on your mental health.
52 Dr Thomas said this in his report dated 28 March 2024:

I note that a significant amount of his time spent so far on remand has been spent under management regimes. During my clinical assessment of Mr Mohamed [on 5 January 2024], I was concerned enough about his very low mood, his sense of hopelessness and helplessness and the emergence of psychotic symptoms including auditory hallucinations, to request that he be urgently referred to the mental health service at Port Philip Prison.

53 According to Ms Parker’s affidavit, you had still not been seen by a prison psychiatrist as at 14 May 2024.
54 In Mr Coffey’s report at [32] & [33], he said this about your time in management units:

It appears therefore that between March 2023 and March 2024 Mr Mohamed was largely confined to his cell for about 23 hours a day with brief periods of normal prison lockdown time. Mr Mohamed described his experiences of confinement under these arrangements. He said he often felt lonely and bored. There was a lack of human contact, meals were passed through a “trap”, and the only meaningful conversation he had was a telephone call to his family during runout. The cell window looked onto another wall a few metres away. He often overthought things and [became] preoccupied with his future and distressing events in the past, including violent assaults on himself or others and self-harm (for example a suicide he witnessed when 12 years old involving a person jumping from high rise flats. He said he became in (sic) these experiences and felt he was reliving them. He experienced breathlessness, panic and racing heart every couple of days.
For most of the time in separation he had abnormal perceptual experiences: for a few minutes a day he heard a voice speaking to him, he said it consisted of ordinary conversation spoken by a family member or someone from his past; he also heard sounds such as banging on his cell door. He would cover his ears. He had difficulty creating an order to his day; he tried to read or watch TV or lay on his bed. He did not sleep for more than a few hours; his sleep was broken by nightmares often about being violently assaulted in the past or suffering violence in jail. He said sometimes he was reluctant to fall asleep because of these dreams.

Despite your credibility issues, I find those accounts of your experience in isolation plausible.

Procedural History

55 Turning to the procedural history of this matter, as mentioned, you were arrested on 30 November 2021. You were charged with murder. You conducted a contested committal in February 2023. You indicated that identity was in issue. Having been committed on murder, you filed a defence response in October 2023, again putting identity in issue. It was not until 9 November 2023, that you made a formal offer to plead guilty to manslaughter. You were arraigned and pleaded guilty to manslaughter on 24 November 2023. Your counsel submitted that it was not a late plea because an informal inquiry had been made by your lawyers prior to the committal and they were given to understand informally that the Crown were not interested in a plea to manslaughter but that changed in late 2023 when the Crown inquired whether you would plead guilty to manslaughter. I note that at the time of that informal inquiry prior to the committal, the prosecution were advised that your lawyers did not have instructions from you to plead guilty to manslaughter. As I indicated in the course of the plea hearing, there is a significant difference between your lawyers making such inquiries and you instructing them to make a formal offer. I consider yours to be a late plea but it is still of significant utilitarian value and you will receive a significant discount for having pleaded guilty.

Pre-Sentence Report

56 In the wake of the Court of Appeal’s recent decision in Yat v R,^[16] which dealt with the significance of an offender having been kept in extended isolation whilst on remand, your counsel submitted that I should impose a sentence of youth detention, even though your counsel’s original submissions conceded that a sentence of imprisonment was the only appropriate sentence.
57 I ordered a pre-sentence report from Youth Justice. Whilst the report ultimately concludes that you are suitable for such an order, the report is a mixed bag, which is not meant as a criticism. It documents a large number of incidents involving you during your time on remand, incidents that have led to you being placed in management units. The author summarises those incidents in this way:

Since being remanded into adult prison, Mr Mohamed has been involved in multiple incidents which are characterised by a range of various behaviours including; refusal to undertake drug screen/test, unable to take drug test, found with substance, received a positive drug test, adulterate/substitute/interfere with sample (drug sample), being verbally abusive toward prison officers, having unauthorised electronic devices, non-compliance with staff directions, being assaulted by a peer and incidents affecting the good order of a jail.^[17]

On the other hand, the author states:

Mr Mohamed has been involved in various incidents whilst in adult custody which are characterised by substance use, non-compliance, verbal abuse toward prison officers and affecting the good order of the jail. Between March 2022 and March 2023, Mr Mohamed was not involved in any incidents. He then became a victim of an assault which sees his involvement in incidents increase in relation to, substance use and becoming heightened for not being enrolled in an educational program. Since being at MRC, as per departmental records indicate, Mr Mohamed’s last incident was in January 2024. It is assessed that since commencing Opioid replacement treatment with Buprenorphine, Mr Mohamed’s incidents in custody have decreased where he appears settled.^[18]

She also notes, encouragingly that:

Departmental records indicate that Mr Mohamed has completed a few educational programs and attended the Adapt Program with his engagement being noted as positive. Departmental records also confirm that Mr Mohamed is involved in the Alcoholics and Narcotic Anonymous programs...^[19]

58 Whilst the author concludes that you are not impressionable, immature or likely to be subject to undesirable influences in adult custody (the last of these findings being surprising, to say the least), she writes that you are suitable for a sentence of detention in a Youth Justice Centre because, in the assessment of youth justice, you have reasonable prospects of rehabilitation.
59 I also consider that you have reasonable prospects of rehabilitation because you are a youthful offender, you have no relevant criminal antecedents, your behaviour in custody seems to have finally settled and you have a very supportive family.
60 I note also that Mr Coffey said this:

I believed the probability of future offending, either violent or general offending, is low to moderate and should he fully undertake the required rehabilitation and treatment, I believe the likelihood of recidivism will then be low.^[20]

Comparable cases

61 I was referred by counsel to a number of other sentences for manslaughter.^[21] They were of some limited assistance in working out what sentence I should impose on you but of course every sentencing case has to be decided on its own distinctive features and other sentences are not binding precedents.

WHETHER TO IMPOSE A SENTENCE OF YOUTH DETENTION

62 As to whether I should impose on you a sentence of detention in a Youth Justice Centre, there are conflicting considerations.
63 Those which militate against such a course include:

• First, the objective seriousness of your offending is in the upper mid-range;
• Second, the significance of your youth is diminished by the seriousness of your offending;^[22]
• Third, the maximum period of youth detention that I can impose is only four years;
• Fourth, I am not satisfied on the balance of probabilities that you are genuinely remorseful;
• Fifth, you have not been a model prisoner whilst in custody;
• Sixth, you are now 20 years of age, apparently settled in adult custody, and according to the Youth Justice Report, not impressionable or immature;
• Seventh, there is a risk that you may be a negative influence in a Youth Justice Centre, given your age and the length of the time you have now spent in adult custody.

64 Those considerations which militate in favour of youth detention include:

• First, you were only 18 years of age at the time of your offence;
• Second, you pleaded guilty. Whilst it was not a plea of guilty at the first reasonable opportunity, it was not a very late plea;
• Third, you fall to be sentenced on the basis that you were not one of the armed intruders;
• Fourth, your offending occurred at a highly challenging time of your life where you seem to have lost your way due, in no small measure, to a combination of circumstances beyond your control, in particular the separation of your parents and the impact of coronavirus lockdowns on your studies;
• Fifth, you have endured extremely harsh conditions in adult custody over an extended period. That has been very significant extra curial punishment;
• Sixth, there has been considerable delay in the finalisation of your matter. In other word, you have had this matter hanging over your head for a long time and for much of that time you were facing a murder charge;
• Seventh, you have no relevant criminal antecedents, notwithstanding growing up in a difficult environment once you left the safety of your family’s flat;
• Eighth, you have reasonable prospects of rehabilitation;
• Ninth, although the maximum sentence of detention I can impose is four years,^[23] I have the discretion not to declare time served on remand as presentence detention;^[24]
• Tenth, as the Court of Appeal in Boulton v R^[25] makes clear, time spent in an adult prison can have very negative effects on a person’s character, and especially a young person’s;
• Eleventh, rehabilitating you is as much in the community’s interest as it is in your interests. I consider that the chances of rehabilitating you will be greater in a Youth Justice Facility than an adult prison where one finds much more hardened criminals.

65 It seems to me that two things emerge from this break down of competing considerations. First, in my view, the considerations in favour of youth detention outweigh those against. Second, the considerations in favour, when taken in combination, amount to exceptional circumstances^[26] justifying a sentence of detention in a Youth Justice Centre, especially the unfortunate circumstances beyond your control that contributed to your offending and the extra- curial punishment you have undergone whilst in custody.

SENTENCE

66 I sentence you to 4 years detention in a Youth Justice Centre.
67 For the avoidance of doubt, I purposely do not count any of the time you have served on remand as pre-sentence detention. That means you have 4 years from today before your sentence of detention expires.
68 But for your plea of guilty, I would have imposed a sentence of imprisonment of 7½ years with a minimum term of 6 years.

1. ^[1] “Dangerous”, in this context, means that a reasonable person in the position of the accused, performing the fatal conduct, would have realised that he was exposing the deceased to an appreciable risk of serious injury.

^[2] See Summary of Prosecution Opening dated 3 May 2024 (‘SPO’), [12]–[14], [62].

3. ^[3] See telephone intercept material D05470-00 CSN 619 for 16 October 2021 – “Like, me and Que [referring to Sisal] had this nigga out in our heads for a long time. We were just waiting, patience is key, patience is key, then boom dude he gets in that beef with those niggas and fucked around with those niggas, pow/bah, this is how we avoid Police right here, now it looks like those niggas are out for get back”.

^[4] SPO, [87].

^[5] Markovic v R (2010) 30 VR 589; [2010] VSCA 105, [62].

^[6] Mr Habiyakare was aged 24 at the time he was killed.

^[7] Report of Guy Coffey dated 8 May 2024, [15].

^[8] SPO, [82]–[90], [101]–[109].

^[9] I note that you did not give evidence at your plea hearing. I do not consider self-serving hearsay statements to a psychologist, whom you knew was preparing a report for the court, to constitute a proper evidentiary foundation for claims that intercepted remarks by you suggesting that you were willing to participate in another home invasion were mere bravado.

^[10] Call No 324.

^[11] SPO, [75], [78].

^[12] SPO, [62].

^[13] Report of Guy Coffey dated 8 May 2024, [62].

^[14] Ibid, [68].

^[15] In the affidavit of your solicitor Ruth Parker, affirmed 14 May 2024, she gives the date as 2 March 2024 at [6] but that is clearly a typo.

^[16] [2024] VSCA 93.

^[17] Pre-Sentence Report of Kayla Del Monte, dated 5 June 2024, pp 5-6.

^[18] Ibid, pp 8-9.

^[19] Ibid, p 5.

^[20] Report of Guy Coffey dated 8 May 2024, [103].

^[21] R v Atesok  [2017] VSC 599 ; DPP v Belmore [2024] VSC 213; R v Biba [2021] VSC 327; R v Cicekdag [2017] VSC 781; R v Johnson [2022] VSC 681; R v KV [2022] VSC 805; DPP v Latuhoi [2024] VSC 136; DPP v McDonald [2017] VSC 465; DPP v Robinson [2017] VSC 56; R v Samaras [2019] VSC 120; DPP v Williams [2020] VSC 483.

^[22] Azzopardi v R (2011) 35 VR 43; [2011] VSCA 372, [44].

^[23] Sentencing Act 1991, s 32.

^[24] R v Hill [1996] VicRp 81; [1996] 2 VR 496.

^[25] (2014) 46 VR 308; [2014] VSCA 342, [104]-[112].

^[26] Sentencing Act 1991, s 32 (2C). Manslaughter is a category A serious youth offence, necessitating exceptional circumstances to be shown to permit a sentence of detention in a Youth Justice Centre.