Director of Public Prosecutions v Abikhair

[2013] VCC 1076

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-00803

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYEL ABIKHAIR

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 July 2013
CASE MAY BE CITED AS:	DPP v Abikhair
MEDIUM NEUTRAL CITATION:	[2013] VCC 1076

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Bhai	Office of Public Prosecutions
For the Accused	Ms A. Centrone

HER HONOUR:

1       Mr Abikhair, I am about to deliver my reasons for sentence.  You can remain seated whilst I deliver my reasons, but just before you sit down I want to tell you one thing.  I want you to listen very carefully to what I am saying, but I am going to tell you now what I am going to do.  I am going out on a big limb and I am going to release you on a Community Corrections Order on very strict conditions, including your immediate attendance at the Raymond Hader Clinic.  I will explain my reasons for doing that as I go through my reasons, but I think in the circumstances it is fairer to you if you know that is what is going to happen so that you, I hope, will listen carefully and with an open mind to what it is that I have to say to you.

2       On the afternoon of 19 July last year, two men, gloved and concealing their faces, went into the Mahi Indian Grocers in Station Street in Bayswater.  One of them, your co-offender Daniel Aitken, produced a sawn-off shotgun from his backpack.  The other was you, Kyel Abikhair.  The two of you approached the store manager and Mr Aitken pointed the gun at him. You demanded, the two of you, that he give you the money from the till. 

3       The manager opened the till and each of you, Mr Aitken and you, Mr Abikhair, held one of his arms whilst he got the money out and it was eventually put into the backpack.  You were, each of you, looking behind the counter for more money, not satisfied with the amount that was in the till, and demanded to be taken to the safe. The two of you marched the manager to the back of the shop and into a private area at the back, at gunpoint.  The manager had told you there was no safe and no further money up the back, but you took him up there anyway.  There was not anything there, just as he told you, and the two of you turned to leave. As you left, you, Mr Abikhair, pushed the computer screen and some other things that were on the counter of the shop on to the floor.  That was just a random act of unnecessary property damage at the end.

4       Mr Aitken put the gun in the backpack and got on to a motorbike.  You got on to the back of it, and the two of you drove away.  The motorbike had been stolen earlier that afternoon from the Coles car park in Maroondah Highway, Ringwood.  It would appear from the material that was in the agreed summary that Mr Aitken was the actual stealer of the motorbike, but you were actively involved keeping lookout during the theft, and certainly then taking advantage of it as he had by riding on it.

5       A short distance from the scene of the armed robbery, Mr Aitken, still with you riding pillion, crossed the road and drove down the incorrect side of the road.  He locked the brakes and collided with a car that was coming out of the car park of the Boronia Medical Centre. The two of you came off the bike and ran away.  You jumped a fence and you hid, each of you, your outer clothing and the backpack containing the shotgun and the cash that had been obtained from the armed robbery in a nearby property.  The two of you got away, but the police arrived soon afterwards and the backpack that you had stashed in the hope of getting back to it later was recovered.  The shotgun was found in it, as was the money from the armed robbery.  For all of that effort and for all of that fear, the return was very small indeed, only $430. 

6       It was not until 21 October that Mr Aitken was arrested and questioned.  Some of what he said later identified by description you as the co-offender, but it was not until 1 January this year that you were arrested.  When arrested, by contrast to Mr Aitken, you made full admissions to your involvement in the theft of the motorbike and the armed robbery.  You said that you were the lookout whilst Mr Aitken stole the bike, and that you and Mr Aitken together had discussed how to carry out the armed robbery.  You were frank about the way you discussed sharing the roles and why you took the roles you had.  The only thing you were not prepared to be forthcoming about was naming the identity of the person you had offended with.  It is as a result of that that you have pleaded guilty to one charge of theft of the motorbike and one charge of armed robbery.

7       The store manager, Mr Francis, in his victim impact statement said that he was no longer able to work independently in the shop, and he has been suffering insomnia due to the emotional trauma of being held up.  The driver of the car that the motorbike ran into was a young mum with a 10-month old baby.  Her fear about what happened as a result of the madness in the getaway was, of course, obviously compounded by the fear that something was going to happen to her young child, and she is still suffering from the effects of that.  Although you have not been charged with any dangerous driving offences, Mr Aitken was.  You were clearly actively involved in the getaway and you should understand that you, too, must bear some responsibility for the harm suffered by Miss Corneille, the driver of the car, as a result of the manner in which the two of you escaped.

8       There is obvious financial loss that flows from the armed robbery as well as the effect on the sense of safety and wellbeing of your victims.  There was money stolen, Mr Francis was unable to go back to work at all for two weeks, so that is two weeks' lost wages for him, and you damaged the till and the computer screen.

9       The owner of the bike, although insured, lost his bike.  The insurance company had to pay out for that and he had to pay the excess.  And, of course, Miss Corneille, the owner and driver of the car, was obviously inconvenienced and either she or her insurers also suffered financial loss.  It is much more than just going into a soft target like a shop and stealing money.  The ripple effect to the people affected by it and the sorts of harm they suffer are quite significant and something that really needs to be thought about.

10      Crimes like this, armed robberies on soft targets, little shops in suburban shopping centres, are too often committed by people like you, young men with a drug habit driven by a desire to feed their drug habit and absolutely thoughtless about the consequences and the harm caused to those people who are the subject of it.  They are far too prevalent, and this offending has many features which are deserving of condemnation and which demonstrate the need to impose a sentence which properly reflects denunciation and deterrence.

11      You committed this in company, it was a two on one, and the two of you waited outside the shop to make sure it was free of customers before you went in, so you used your superiority in numbers to help achieve it.  There was a degree of planning involved, and what you told the police about your involvement indicated that: talking about the roles that you would play, checking out what was the easiest shop to do, waiting until it was empty of customers.

12      

Mr Aitken had obtained the firearm.  That meant thinking about what weapon was to be used and going to get it, and then planning to use it.  Although a later examination revealed that the gun was unloaded and may not have been capable of firing, that clearly was not known to the victim at the time in the way the gun was used, and although you did not use it, you are a party to it and you share responsibility for it.  Clearly, it was meant to indicate to

Mr Francis that it was loaded and was capable of being used and capable of harming him.

13      The gun was pointed not only at him but in his face, and then it was pointed in his back as he was marched up to the back.  He was taken out to an area that was no longer in view of and close to the street when he was taken up to that back area.  That must have added to his fear of what could happen to him.  You were not prepared to believe him when he said the money in the till was the only money in the shop, and forced him to look for more, looked for more yourself, used a bit of force on him, pushed him at one stage and put him in a position where he was obviously afraid of what could happen to him.  No doubt his sleeplessness and his inability to sleep properly at night is compounded by not only what actually happened, but the fear of what else could have happened.  All of this means, therefore, that the sentence must reflect those needs of deterrence and denunciation that I have referred to.

14      You were 21 at the time of the commission of this armed robbery and you are now 22.  By contrast with your co-offender, Mr Aitken, you have almost no criminal history.  You had been before a court on only one occasion at the time of the commission of this offence, just a couple of months earlier in May 2012.  Without a conviction being recorded against your name, you were placed on a Community Corrections Order for a period of 12 months.  There, you faced four single charges of burglary, theft, going equipped to steal, and criminal damage. The imposition of that penalty for those offences was no doubt a reflection of the matters that I was told about too. 

15      

Your childhood and upbringing were even more deprived and subjected you to even greater instability and disadvantage than that of your co-accused,

Mr Aitken.  You were your mother's fifth and youngest child.  You have four stepsiblings.  They are all considerably older than you.  Your mother struggled with schizophrenia and prescription drug addiction all her life.  She was often hospitalised for extended periods.  You were only two when you were first removed from her care and placed into the care of the Department of Human Services.

16      By the time you were 14, your mother's health had deteriorated to such an extent that she required permanent care in a nursing home.  Up until that time you moved between living with her and some or all of your siblings, living with one or more of your siblings, or living in foster care.  More often than not, in foster care you were separated from your siblings.  There was no stability of housing, and your schooling and your ability to make friends was significantly impaired as a result. 

17      You have also been assessed as having a low level of intellectual functioning.  Even if you had had the advantages of a stable home and an absence of physical and emotional neglect, that would have made engagement with schooling difficult.  As it was, with those other factors your capacity to cope with these multiple adversities was significantly impaired.

18      By the age of 14, when your mother had to go into the nursing home, you ended up homeless and without family support.  Your schooling came to an end.  It apparently had been thought that you were going to live with an older brother and that he would be able to provide care or the authority of an older person for you.  That did not happen, and it would appear that you slipped through the cracks of the child welfare and support system at that  stage, as it would appear you had often done before that as well.  But by the age of 14 you were already, and perhaps not surprisingly, given what you had been exposed to, abusing a remarkably large number of substances:  cannabis, alcohol, and amphetamines.  You added other drugs to the mix as you moved from one transient accommodation to another. Your next year or so was spent couch surfing, squatting, or living rough.

19      By the time you were 15, your older sister, Shay, had reconnected with you, and she took you in.  The next three years of your life appear to have been the most stable period of your life in terms of family, accommodation, and support.  Although I am told Shay has had problems of her own in relation to cannabis use, she clearly did her best to provide you with as much of a semblance of family as could be provided to you in the circumstances, with, as much as she could give it, a stable environment and some basic comforts that most people take for granted.  As she put it in the lovely letter that she wrote, she tried to provide you, amongst other things, with a hot meal every night.  The fact that she describes that indicates that that was not part of what you had been used to experiencing in earlier years.

20      In some ways, you responded very well to that. You got a job and you were able to maintain employment for close to three years, but you continued to abuse drugs and you added others to the mix.  You were mixing, not surprisingly, given the drug use that you were experiencing, with undesirable people, and eventually your behaviour led to your sister saying you could no longer live with her.  You lost your job and your stability of housing and the support that Shay had been able to provide you.

21      As if the cocktail of drugs you had abused during that time had not been bad enough, before you left Shay's care it would appear you had already started abusing heroin.  You became quickly addicted to that, and you continued to abuse it all through the time until your arrest on these charges.

22      In March last year your mother died.  She was very young, only in her early fifties.  Although in some ways it might be said that it was her difficulties that had in large part led to the significant disadvantages that you had suffered, it was clear that she was your mother and you loved her and you suffered great grief and what has been described as unresolved grief as a result of her death.  You felt lonely, isolated, as if you had nobody else.  I accept the evidence before me that you found it really difficult to cope with her death and that added to your feelings of isolation and loneliness. Your heroin use increased.  It is at this period, shortly before your mother died, that you had your first contact with the criminal justice system, the matter to which I have already referred that led you to being placed on that Community Corrections Order.

23      I was told that you were living with a brother at the time that you were placed on that first Community Corrections Order, but that accommodation or that placement broke down shortly after you were placed on the Community Corrections Order.  You became homeless again, and your capacity to comply with your order was obviously adversely impacted, not just by your homelessness but by your limited intellectual capacity and the other disadvantages that surrounded you.  Most of them or many of them were not of your making or many of them were the product of a pattern that had been established long before you were able to make conscious and mature choices yourself.  It was only months after your first appearance before the Magistrates' Court that you committed this armed robbery and the associated theft that brings you now before me.

24      Between the time you committed that offence and your coming before me to be dealt with, you had been dealt with for breaching the original Community Corrections Order by non-compliance and by commission of other offences, you had been sentenced for other offences, some committed before the original Community Corrections Order was imposed and some committed after, and in March of this year, on the breach of the original Community Corrections Order and on the other offences, you were sentenced to two further, in effect, concurrent Community Corrections Orders.

25      From the material before me, the first three months of the Community Corrections Orders you were placed on in March of this year. your compliance was by and large good.  There were four non-attendances, some of which may have some excuse, but by late May you were in serious breach of your Community Corrections Orders and you were in serious breach of the bail that you had been granted in respect of these offences as well.  However, up until late May your compliance with the bail that you had been released on, which was ultimately CISP bail, was good.  You had complied with your bail conditions and some stability had re-entered your life. 

26      A comprehensive and very helpful psychological report has been provided by Dr Julie Janev, the psychologist who supervised you whilst on your CISP bail.  She describes you as a severely depressed and detached young man, with prominent mood and motivational issues.  Your presentation during the majority of her counselling sessions she said were those of a defensive, severely depressed and anxious young man with chronically low motivation, entrenched hopelessness, and suicidal ideation.  She introduced you to a range of cognitive behavioural and solution-focused strategies, but sadly you got little help from those and little improvement was observed by her over the time of counselling.

27      However, she also introduced you to risk monitoring and relapse prevention strategies to address your substance abuse and your offending, and they were much more successful.  Of particular significance is her indication that you are able to effectively maintain your abstinence from heroin and MDMA, which were two of your three main substances of abuse by the time you were placed on CISP bail, and you did not commit any further offences whilst you were on bail.  She reported that you were open with her about your continued use of cannabis, which you described as using in order to help you relax and sleep.  She encouraged you to attend a general practitioner who prescribed antidepressant medication, and you reported some, although not great, improvement in mood whilst on that.  She also encouraged you to go to your GP and to obtain a referral to a psychiatrist, but you were not prepared to do that, indicating that you were afraid about what you might discover about yourself.

28      During your last sessions with Dr Janev, she noted that you had changed from being a quiet, depressed, cynical person to a depressed, aggressive person.  You seemed angry with the world for your past traumas and angry with yourself for allowing what she described as the development of a dependent and submissive personality style.  Clearly, you hated yourself and did not think well of yourself or think well of your future.

29      Your biological father appeared in your life for the first time about two years ago.  It would appear from the materials before me that, although he had tried to find you and have contact with you, he had been thwarted, partly by just the fact that your mother was constantly moving and you were constantly in and out of care, and partly because your mother had a desire not to encourage any contact between you and him.  Although there have been some positive features that resulted from your connection with your father, you reported difficulties to Dr Janev as time went on in developing a relationship with him.  That was in part due to feelings of anger that you had about the abandonment and neglect in your childhood.

30      When you were released on bail, he was prepared to offer you a home with himself, his new partner and their young child, and that was made a bail condition.  Initially that worked well, but your conflicted feelings and no doubt the pressure of expectation, living with him and trying to forge a relationship with him after not having him feature in your life throughout your childhood, and living with him, his partner and a young child, although having some rewarding features, became more difficult for you as your time on bail went on.

31      Despite those obvious difficulties, he and your sister, Shay, have maintained contact with you and have been supportive of you.  They have been at court on every occasion when the matter has been listed, although I notice your father is not here today, but he has been here every other day, and they were here even on the day the plea was first listed when you failed to appear on bail.

32      Dr Janev, based on her counselling sessions with you and her assessment of you, expresses the view that you meet the DSM5 criteria for a number of significant conditions: a major depressive disorder with suicidal ideation; other specified anxiety disorder with severe social anxiety, post-traumatic stress, and paranoid symptomatology, opioid, MDMA and cannabis use disorders, (although the opioid and MDMA are in early remission, the cannabis use disorder still is active), a past history of amphetamine and hallucinogenic drug abuse, reduced intellectual capacity based on that previous assessment of your intelligence as being in the borderline range, a history of symptoms in childhood of ADHD and symptoms of hypersomnia.  That is a significant constellation of problems and many of them clearly directly related to the deprivation and disadvantage you suffered in your childhood.

33      On axis II disorders, she diagnosed you as having a dependent and depressive personality disorder, with antisocial traits.  Again, not surprisingly given the background on your history and upbringing,  Dr Janev said that your offending behaviour is best understood in terms of your current psychological diagnoses and points out that they were undiagnosed and untreated at the time of offending.  She said your depression, your reduced intellectual functioning, the anxiety disorder, and the opioid use disorder are the factors that were likely to have had the greatest impact on your offending behaviour, with factors such as negative peer influence, limited opportunity, socioeconomic disadvantage, unemployment, abandonment issues, and unresolved grief and loss aggravating the situation significantly.  I accept all of those opinions.  She expressed the opinion that your offending could have been avoided had you been properly diagnosed and treated.  Again, I accept that.

34      You stopped attending Dr Janev and stopped complying with your bail conditions and with your Community Corrections Order from late May, about six weeks before your plea was listed, and you failed to appear on bail on the listed date of 8 July.  You had been in contact with your lawyers, with your sister, and your father in the time leading up to the plea, although you were in breach of those orders, and you had told them that you were afraid of facing court and afraid of the consequences that would be visited upon you in light of the seriousness of the charges that you faced.  Given this history of significant disadvantage that I have recounted, this is a significant step up the scale from your earlier and relatively insignificant offending, so it is not surprising that you did feel the way you said.

35      A warrant was issued.  You were aware of that because you were obviously still in contact with family members, and you told your family and your lawyer  that you would come to the County Court and surrender yourself, and you did that ten days later.  You were unable to be taken into custody at the County Court, no doubt because the warrant was issued and in the hands of Victorian Police, and were told that you would have to take yourself to a police station to surrender yourself.  Despite that setback, you had the courage and the commitment to continue on, to take yourself straight off to the City West Police Station where you surrendered yourself, and you were then taken into custody and you have remained there since.

36      It is clear from the matters that I have recounted that you are, at least, at moderate to high risk of re-offending.  Dr Janev succinctly summarised the risk factors in this way: your criminal history and antisocial attitudes; your limited education, qualifications and unemployment; family issues; unsatisfactory accommodation arrangements; limited recreational pursuits; history of negative peer connections; substance abuse; your mental health diagnoses and emotional problems, and your disconnection from treatment with Intrinsicare, that is with Dr Janev, in the six weeks or so before the plea.

37      However, balanced against those matters must be seen areas of real strength: your successful completion or engagement with CISP for the period that you did; your demonstrated ability to commit to treatment with Intrinsicare for what, with your history, must be seen as a significant period of time; your detachment from negative peer influences, and your pursuit during that time of a more solitary lifestyle, including spending time reading and listening to music, things that help calm you and give you a better sense of life in the future.

38      You developed, perhaps for the first time, identified recreational and vocational interests and aspirations, and also started to talk about wanting to have a normal future, a girlfriend, a partner, a family.  In addition, and significantly, you appear to have remained opioid free, both whilst under treatment from Dr Janev, and after that, and although you did fail to appear on bail you had the courage to realise you had to come to terms with your past offending, and your courage then in surrendering yourself, not being put off by the setback of not being able to be taken into custody here and having to go to the police station, all showing an acceptance of the need to shoulder responsibility despite that initial fear.

39      Dr Janev said, and again I accept her on this, that you are poorly equipped to deal with a custodial sentence because of the severity of your mental illnesses and your reduced coping skills, that is your IQ and your coping skills are both below the norm by reason of all of these factors that she has identified.  She also expressed concerns about your dependent personality disorder and your level of suggestibility.  In her view, and I accept this, you would be extremely vulnerable to contagion if you were imprisoned, because the prison environment is overpopulated with what she correctly described as domineering and antisocial personality types.  She said incarceration was likely to further entrench your personality and that would significantly worsen your long term rehabilitation prospects.

40      Your co-offender, Mr Aitken, despite his much more extensive criminal history, was able to be sentenced by me to a period in a Juvenile Justice Centre because he was under 21 at the time of sentencing.  Like you, he is properly characterised as young, immature, impressionable, and likely to be subjected to undesirable influences in an adult prison.  Had you been under 21, or had Juvenile Justice Centre orders been available to a person of 22, your age, then I would have considered that you would have satisfied the criteria for the making of a Youth Justice Centre order.  When one compares your circumstances to those of Mr Aitken, it appears grossly unfair and arbitrary to deny you, with your much lesser criminal history, your much greater disadvantage and your much greater needs, the same opportunity that the system enables him.

41      I have already referred to the letter that your sister, Shay, wrote.  It is eloquent and moving.  She had the letter prepared for court on that first day when she attended in the hope that you might have the courage to attend, and she has been here every time.  Some things that she said in the letter I want to put on record.  She said,

"Kyel did not have the same opportunities as other children did. Our mother was severely dependent on prescription medication.  He lived in a low income household.  He went without food, as the food supply was very low.  He would have no clothes or shoes for schooling, no school books.  There were no class excursions and no extracurricular activities such as sport or family holidays and outings.  He had limited or no dental or medical services.  Most of all, Kyel was taught no values and never encouraged to do good.  A child needs to have pride and self-worth.  Again, Kyel was given none of these."

None of that was your fault.  Shay went on to say,

"With the right guidance and support, Kyel can achieve great things, as well as being a productive member of society.  He is a well-mannered young man, who has demonstrated time and time again to myself he is capable of having a good, honest life.  He is not a criminal, he just involved himself with the wrong people, drugs, and then made poor life-altering decisions".

42      She finished with this plea.

"Please let him have the opportunity to grow into a man.  Our mother passed away last year at the age of 54.  Her liver could no longer tolerate the abuse of prescribed medications and her body just gave up, and when that happened I think Kyel gave up.  I believe he felt he simply had nothing to lose, as all was already lost."

She is realistic.  She said,

"I understand Kyel's crime cannot go unpunished, but my plea with the court is to show empathy and leniency as it may well be the difference between Kyel having a full, happy and honest life or a life of crime, drugs, and suicide".

43      What she does is sum up the sentencing principles that I have to consider; on the one hand the need to punish you for what you have done, to denounce and deter the behaviour, but at the same time to understand and give proper weight to the disadvantage that put you in the position where you found yourself and that led you to make such poor and wrong decisions, and to give weight to your youth and to your prospects of rehabilitation.  You are young and the law makes it very clear that much greater weight should be given to a young person to encourage their rehabilitation, and in my view much greater weight needs to be given to somebody who has not had advantage than needs to be given often to those who have had good advantage but have squandered it.

44      In her careful and considered plea, Ms Centrone submitted that this was a case where all six limbs of Verdins properly applied.  In her equally carefully and considered submissions, Ms Bhai acknowledged that this was the case.  As Ms Centrone said, the tragedy in your case was that the system has failed you all along the way, and yet, despite that, you have shown remarkable resilience in many aspects, in particular in remaining opoid-free and not committing any further offences since being charged with these. You have shown an ability, despite the significant disadvantages, to comply for a time with your second Community Corrections Orders and with your CISP bail.  I consider you to be a young man desperately in need of structure, something that you have never really had before.

45      At the stage that the plea was presented, I was not satisfied that all options other than imprisonment immediately served had been fully explored, having regard to the extensive disadvantages that you had faced, and the fact that you had had, despite that, a remarkably limited criminal history and the evidence of your displays of resilience, particularly having regard to your past, and also having regard to the significance that needed to be given to all six principles in the case of Verdins.  In particular, I was not satisfied that the possibility of release on a Community Corrections Order, initially into a secure, therapeutic community with a focus on not only drug rehabilitation but also on providing you with psychiatric and psychological care and cognitive behavioural therapies to try and redress some of the significant emotional and social disadvantages that you had faced, had been explored.  I wanted to see whether the possibility of a tightly monitored secure therapeutic community, with a graduated movement into a freer but still tightly structured supervised and monitored environment, could be explored, and the plea was adjourned in order to enable that possibility to be considered.

46      Despite the difficulties that you had encountered in living with your father whilst on bail, he has remained very supportive.  I was told that he had recently inherited some money, and without hesitation he offered to place moneys into paying the fees for your placement in a secure therapeutic community if a publicly-funded place were not available. 

47      You have now been assessed and found to be suitable for admission to the Raymond Hader Clinic and there is a place available for you from today.  Mr Jackson Oppy, the general manager of the Raymond Hader Clinic, gave evidence that there is place for you in their 25-bed, 24-hour care intensive rehabilitation centre in Geelong.  It is proposed that you stay a minimum of three months there, receiving primary care.  That is an intensive rehabilitation program which includes one-on-one counselling, cognitive behavioural therapy, participation in educational groups in relation to addiction, participation in therapies, art, music and physical therapy, daily Narcotics Anonymous meetings and weekly or fortnightly treatment with the consulting psychiatrist to the Raymond Hader Clinic, Dr Hickey.  These would be to address your ongoing mental health issues.  The primary care program also involves a family program which provides family counselling to family members in order to, as Mr Oppy put it, clear the wreckage of the past and to set boundaries for your engagement with your family once your time at the clinic is over.

48      The clinic offers a secondary care program once the primary care program goals have been achieved.  That is administered through the clinic's centre in Moonee Ponds.  It is still a residential program where you are provided with supported accommodation in a clinic house.  It has a live-in manager, where there is constant supervision.  The secondary care program is still a seven-day a week program, which still requires daily attendance at Narcotics Anonymous and daily attendance in the programs, twice-weekly random urine drug screening, counselling, and psychiatric and psychological care  The program provides for the flexibility to move a participant back to primary care if they are struggling in the secondary care program and provide significant supervision. 

49      Mr Oppy said that the Raymond Hader Clinic has worked with Corrections with clients who are subject to Community Corrections Orders in the past, and that he had every confidence he would be able to work with Corrections in terms of the supervision and monitoring of you under a Community Corrections Order and with appropriate liaison and reporting to Corrections.  He said there was no impediment to a person performing unpaid community work once the primary care phase of treatment was over.  He said that, subject to the direction of Corrections and consistently with practices in the past, Community Corrections Orders conditions such as drug and alcohol testing, assessment and treatment for drug and alcohol abuse, and participation in counselling or psychiatric or psychological assessment and treatment or other offence prevention or offence reduction programs could be administered by the Raymond Hader Clinic under the direction of Corrections.

50      I am satisfied, having heard from Mr Oppy, and in particular having heard the matters that were elicited from him in cross-examination by Ms Bhai, that there are proper and appropriate steps in place for very intensive monitoring and for dealing with breaches of any of the clinic's terms and for reporting breaches to Corrections.  All of this means that placement on a Community Corrections Order with a condition that you live at and receive treatment at the Raymond Hader Clinic under the direction of Corrections is not an easy option.  It is in some ways a more tightly structured and supervised environment than prison, and certainly would provide much more than a prison can provide for a person in your circumstances in terms of treatment and therapy designed to address the underlying causes of offending.  That is particularly so for somebody who I would assess as being somebody likely also to slip under the radar within the prison system.  Although you present as being severely depressed and having had a long history of severe depression, it is clear that you are quiet and not the sort of person who would be likely to have the confidence to present himself to the prison authorities when he needs help and would be likely to be a quiet, depressed and therefore apparently not troubling prisoner, rather than one whose active or florid behaviours would be more likely to bring them to the attention of the authorities and perhaps to get them some extra care and mental health treatment.

51      I had you assessed for suitability for a Community Corrections Order, once satisfied that a placement was available at the Raymond Hader Clinic and it could provide those supports.  As I have earlier noted, you were first placed on a Community Corrections Order in 2012.  Your compliance with that order, both in terms of attendance for supervision and for compliance with the unpaid community work component, was poor, and you have been breached on that and you have been dealt with for that.  There are breach proceedings pending in respect of the later two concurrent orders that you were placed on early this year.

52      Corrections notes that your non-compliance for the earlier orders and the more recent ones were explained by you on the basis that on each occasion you found yourself without stable accommodation and that you were experiencing ongoing difficulties with substance abuse.  By contrast, on this occasion if I imposed a Community Corrections Order with the conditions that I have in mind, you would be in stable and tightly regulated supervised accommodation in residential rehabilitation at the Raymond Hader Clinic, and then, when you were ready to leave that and assessed to be ready to leave that, you have the offer of stable accommodation with your sister, Shay.  In my view, these are significantly different circumstances to those which applied at the time you were placed on your earlier Community Corrections Orders, and the conditions that I have in mind are vastly different from the conditions that were imposed under the previous orders.  It means, therefore, that I have a greater degree of confidence with your capacity to comply and with there being supports around you to assist you to comply than the objective fact of your previous history of non-compliance would otherwise indicate.

53      It was because of your non-compliance with the previous Community Corrections Orders, and the pending contravention proceedings for the most recent ones, that Corrections assessed you as being unsuitable for a further Community Corrections Order or saying you could not be recommended for a further one.  Whilst I understand that position, having regard to those past non-compliances, the factors that I have identified give me much greater hope that your prospects of compliance this time will be significantly enhanced by the requirement that you undertake treatment at the Raymond Hader Clinic and that the full range of treatment and rehabilitation programs, supervision and judicial monitoring conditions are imposed.

54      There are many people who come before this court who have had many more advantages than you have had.  Your circumstances deserve much more sympathy than many other people, and your needs are much greater than those of others. In my view, providing you with a structured and supportive opportunity to rehabilitate yourself carries much greater weight than it does for those who have had advantage but have squandered it.

55      However, I want to make it very clear to you, Mr Abikhair, that if you are unable to abide by the conditions of the Community Corrections Order that I propose to impose, that you will be brought back before me for breach of that order and I would then have to re-sentence you, and the sentencing options that would be available to me would clearly be much more limited than they are today.

56      Can you now please stand.  On each of Charges 1 and 2, of theft of the motorbike and of armed robbery, you are convicted and you placed on a Community Corrections Order for a period of three years.  That order commences today and ends on 24 July 2016.  It has the following core conditions.  You must attend at the Geelong Community Correctional Services at the State Government Offices, that is Level 5, 30A Little Malop Street in Geelong, within two clear working days after the commencement of the order.  You must not commit another offence for which you could be imprisoned during the time the order is in force.  You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations.  That means you must not be affected by drugs or alcohol when you attend for any meeting or supervision with Corrections during the order.  You must report to and receive visits from the Secretary or delegate.  You must let a Community Corrections officer know within two clear working days if you change your address or your job.  You must not leave Victoria without first getting permission to do so from the Secretary or delegate, and you must obey all lawful instructions from and directions of the Secretary or delegate.

57      In addition to those core conditions that apply to all Community Corrections Orders, the following conditions apply for you.  You must perform 100 hours of unpaid community work over the period of three years of that order.  That unpaid community work is not to commence until after the completion of the primary care phase of treatment at the Raymond Hader Clinic.  You must undergo assessment and treatment, including testing, for drug abuse or dependency and for alcohol abuse or dependency as directed by the regional manager.  You must undergo assessment and treatment, including testing at a residential facility for withdrawal from or rehabilitation for drug abuse or dependency or alcohol abuse or dependency as directed by the regional manager.  Specifically, you must attend and undergo assessment and treatment, including testing at the Raymond Hader Clinic, from the commencement of this order, that is from today, and you must remain at the Raymond Hader Clinic for such time as is directed by the regional manager or delegate.

58      You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the regional manager, and you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager.

59      I am going to impose a condition of judicial monitoring because I want the matter to come back before me so you have the opportunity and Corrections and the Raymond Hader Clinic have the opportunity to report to me about how you are going.  The purpose for that is to see what progress you are making and to see whether any variation needs to be made to the order.  That is with a view to not only giving you an incentive to report progress, but also to try and head off any problems before they turn into difficulties with compliance that lead to breach proceedings.  I have set an initial period of eight months for that judicial monitoring, or close to eight months.  You must attend for review on 4 March next year at 9 am at this court and there will be judicial monitoring for every six months thereafter on the order.

60      Do you understand the effect and conditions of the order?

61      OFFENDER:  Yes, Your Honour.

62      HER HONOUR:  And do you consent to it being made?

63      OFFENDER:  Yes, Your Honour.

64      

HER HONOUR: I am going to have that handed down and ask

Ms Centrone to go down with you and for you to sign that, indicating you do understand those conditions and you consent to it.

65      (Order signed and acknowledged.)

66      HER HONOUR:  I note that you have signed that order, Mr Abikhair, and so have I.  I want you to understand I have gone out on a limb for this.  You heard the prosecution submit that the only sentence appropriate in the circumstances was one of imprisonment.  I hope that, with these supports around you, you will be able to see this order through and that you will be able to come to terms with the disadvantages you have suffered in the past and to build on those strengths that you have shown so that you can have a life that is free from a life of drugs and you can have a real future to look forward to with the love and support of your father and your sister; that you can think about forming a relationship, having a family of your own, having a job, having all the normal things that everybody looks forward to.  You have got promise and I think this is the best prospect that a court can give you to see how you can be helped to achieve that promise.  I look forward to seeing you in March and having a positive report on your progress.

67      There are ancillary orders.

68      MS BHAI:  Yes, Your Honour.

69      HER HONOUR:  You can take a seat just while I sign the ancillary orders.  It is my expectation that Mr Oppy will be able to take you from your release today and that you will immediately be taken to the Raymond Hader Clinic, or, if you are going to be taken by him straight to Geelong, that you will be taken to Community Corrections.  Arrangements will be made as you leave this court so you can go to Community Corrections in Geelong, have your first visit today, and then go on to the Raymond Hader Clinic and start your time there.  Is that correct, Mr Oppy, that you are able to take Mr Abikhair from here?

70      MR OPPY: Yes, he will be coming to our office in Commercial Road for assessment by a doctor and the admission procedure, and then direct to Geelong, so we'd expect him to be settled in Geelong by late afternoon, Your Honour.

71      HER HONOUR:  In that case, it may not be possible to fit in the appointment with Corrections, but the arrangement will be made then to get him to Corrections tomorrow as early as possible so that he can settle in and start to concentrate on treatment.

72      MR OPPY:  Yes, Your Honour.

73      HER HONOUR:  Thank you, Mr Oppy.  Mr Abikhair, there are extra orders I have to make.  One is an order for the forfeiture of the firearm, one is an order for disposal of items that were taken from you and from Mr Aitken at the time of your arrest or found at the time of the search of the back yard near the scene of the armed robbery, and an order for compensation to Mr Germain, the owner of the motorcycle, for $550.  That is the excess on his insurance, the amount he had to pay his insurance company, so his actual out of pocket loss.  All of those orders are clearly authorised by law and I have made all of those.

74      Can I make an enquiry of the police officer as to whether Mr Abikhair has to be taken downstairs and processed from there?

75      CORRECTIONS OFFICER:  Yes, that's correct, Your Honour.  He will be taken downstairs.

76      HER HONOUR:  All right, thank you.  Will Mr Oppy then be able to go down and collect him from there?

77      MR OPPY:  I believe so, yes.

78      MS CENTRONE:  I will accompany him downstairs.

79      

HER HONOUR:  Thank you, Ms Centrone.  In that case, can you take

Mr Abikhair out.  I will see you on 4 March, Mr Abikhair.

80      OFFENDER:  Thank you, Your Honour.

81      HER HONOUR:  Can I thank counsel for their assistance and their patience, because this has been a protracted process.  I have been indebted to both of you for the way you have assisted me.  I should include the solicitors in that as well.

82      COUNSEL:  Thank you, Your Honour.

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