Director of Public Prosecutions v Aday

[2014] VCC 227

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01572

DIRECTOR OF PUBLIC PROSECUTIONS

v

OKTAY ADAY

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JUDGE:	HER HONOUR JUDGE NICHOLSON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 March 2014
CASE MAY BE CITED AS:	DPP v ADAY
MEDIUM NEUTRAL CITATION:	[2014] VCC 227

REASONS FOR SENTENCE
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Subject: Criminal Law:  Aggravated Burglary.
Catchwords:  Plea of guilty: Youthful Offender: Mills case.
Legislation Cited:      Significant Rehabilitation:  Remorse.  Diagnosis of Adult ADHD:    Impact of offending on Victims.  General and specific Deterrence
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P Moran - Plea Ms A French - Plea and Sentence	OPP
For the Accused	Ms J Hardy - Plea Mr J Dowsley - Plea and Sentence	James Dowsley and Associate

REASONS FOR SENTENCE

HER HONOUR:

1You Oktay Aday, have pleaded guilty before me to one charge of Aggravated Burglary which is Charge 1 on the Indictment. 

2On 28 September 2012, at Malvern East in Victoria, you entered as a trespasser, a building at 907 Dandenong Road with the intent to steal therein. At the time of entry, you had with you an offensive weapon, namely a garden stake, and a person was present in the building and you knew that a person was so present, or you were reckless as to whether or not a person was so present. They are the facts and circumstances giving rise to the charge of Aggravated Burglary, contrary to s.77(1) of the Crimes Act.

3Parliament has fixed a maximum penalty of 25 years' imprisonment for the very serious crime of Aggravated Burglary.  I have taken into account the maximum penalty fixed by Parliament in determining sentence in all the circumstances of this case. 

4The learned prosecutor, Mr Paul Moran, who initially appeared to prosecute this matter on behalf of the Director of Public Prosecutions, on 29 November 2013, opened the case in detail and also set out in a helpful written Prosecution Opening (Exhibit A), the facts and circumstances giving rise to your offending.

5At approximately 1.35 a.m. on 28 September 2012, you and an unknown accomplice, who is yet to be identified, or cannot be identified, went to the house at 907 Dandenong Road in Malvern East.  There were six young people living there and the property was situated across the road from the Monash University Caulfield Campus.  Those occupants of the property were asleep in the house and were awoken by a loud banging on the front door.  That banging went on for some several minutes.  One of the occupants, a girl sleeping in the front bedroom was scared, she got up and got dressed.  She then heard a male's voice saying "Let's go around the back".

6She got her male companion out of bed and they both headed for the back door.  Another girl in the room at the side of the house was woken by what sounded like a fist banging on the front door.  Afterwards she heard the side gate, next to the bedroom window, opening.  Soon the banging was coming from the back door.  The offenders, including you, Mr Aday had covered their faces with scarves as make shift balaclavas and they got into the house by kicking open the backdoor and breaking the lock.  They had with them a garden stake, a claw hammer and a broken brick as weapons.

7Mr Aday as I understand the prosecution case you admitted that you were the one who carried the garden stake and you indicated during the course of your Record of Interview, that you had picked up the stake at the back of the house, prior to entering the property.

8You also yelled out words to the effect "Where is the money, where is the stuff?"  At least one of the victims, assumed you meant "weed" or cannabis.  Two of the male occupants had also armed themselves by that time, one had a baseball bat, the other had a stick.  Your victims answered that they did not know what you were talking about. 

9However, you grabbed a skateboard that was nearby and threw it at two of them, but missed them.  Then two of your victims ran from the house in fear and one of them ran into the middle of the road to flag down help from any passing motorist.  I am also told that a female inside the house was also threatened with a brick.  It appeared that the offenders wanted to look in every room, according to the occupants of the house.  The intruders, including you, moved through the house, and one opened a hallway cupboard and then kicked the door shut. 

10After someone had yelled at you that the police were coming, one of you said "We are going now".  You headed out to the front of the house with your unknown accomplice.  One of you smashed the glass in the front door with a hammer. 

11The whole episode left your victims shocked, frightened, scared and shaken.  I have had the opportunity of reading the Depositional material including your victims' statements to the police.  I am satisfied that each of your victims has suffered considerably as a result of the offending. 

12Madam Prosecutor, on the earlier occasion, on 29 November 2013, as I recall Mr Moran indicated to the Court that no Victim Impact Statements had been made, although each of the victims had been given an opportunity to make such a statement.  Is that correct? 

13MS FRENCH:  That is correct Your Honour.

14HER HONOUR:  All right, thank you.  I have also had the opportunity of reading your Record of Interview Mr Aday.  Your mobile phone was found next to the front door after you and your unknown accomplice had left.  The property and that phone led the police to you.  You were arrested at your mother's home on 21 March 2013 and interviewed at the Springvale Police Station straight afterwards.

15To your credit, you admitted you had gone into the house and angrily demanded money, because you felt you had been "ripped off" in a marijuana transaction, by one of the occupants, some hours earlier.  You also admitted you had armed yourself with a wooden garden stake from the backyard in order to look "intimidating and more aggressive".  You also admitted you had damaged the backdoor.

16You also accepted that the girl you confronted, would have been scared and defenceless.  You further admitted throwing the skateboard, but you denied having your face covered or carrying a piece of brick or a hammer.  You said you had no recollection of the breaking of the window on the way out.

17You repeatedly insisted, to the police, that you had acted alone on the night.  As I said, your unknown accomplice has not been identified to date.  You stand alone to face the charge on the Indictment.  To your credit you have also entered a Plea of Guilty to the very serious crime of Aggravated Burglary. 

18I proceed to sentence you on the basis of the facts and circumstances as outlined by the learned prosecutor, and contained in Exhibit A, as well as the Depositional material, all appropriate matters discussed during the course of the plea hearing, and relevant exhibits and the Written Submissions of counsel.  Your offending is very serious and the aggravating aspects include the use of a weapon namely the possession of a wooden garden stake. 

19I have referred to the pronouncements made by the Court of Appeal in Hogarth's case.  The learned prosecutor, Ms French today referred to those pronouncement:  A home invasion is a particularly nasty form of criminal conduct.  Typically a home invasion involves multiple offences, entering a person's home, carrying weapons, intending to rob or injure the victims, in revenge for some actual or perceived wrong.  The entry of offenders acting in anger, and often fuelled by alcohol, and cannot be  It is not suggested you were under the influence of alcohol or drugs at the time of the offending.  That is correct, Mr Dowsley?

20MR DOWSLEY:  Yes Your Honour, that's right.

21HER HONOUR:  However, your offending occurred in the context of a drug transaction, and in itself was a terrifying experience for the householders, irrespective of what occurred after entry into the house.  I have set out, in detail the facts and circumstances giving rise to the offending on that night.

22It must be said home invasion is not a legal term and the offence which a home invader commits is the offence of Aggravated Burglary which is constituted by an act of Burglary, entering the building as a trespasser with intent to steal or commit an assault, or cause damage which has one or other aggravating features.  In your case, at the time of entry, you were carrying a weapon and you were also aware or reckless as to whether any person was present therein.

23However I have considered the circumstances of your offending and of this case and after embarking upon an instinctive synthesis.  I consider it appropriate to allow you an opportunity to remain in the community.  However a Community Corrections Order does have a punitive and deterrent effect. 

24I have also taken into account the other pronouncements set out by the Court of Appeal in Hogarth's case.  Further I have taken into account Sentencing Statistics and other comparative sentences including the Table of Cases set out in Hogarth's case.  However, each case turns very much on its own facts and circumstances.

25I now turn to Mitigating Factors which are considerable.  Your counsel, Ms Hardy and subsequently Mr Dowsley, placed before the Court many mitigating factors.  I turn firstly to your Plea of Guilty and Remorse.  You have pleaded guilty and you are entitled to have that fact taken into account in your favour and I do so.  I accept your counsel's submission that your plea of guilty is significant in all the circumstances. 

26Your plea was entered at the Committal Mention stage and it was acknowledged by the Crown that plea was entered at the first reasonable opportunity.  Your plea of guilty has utilitarian value and has spared witnesses including your victims, the trauma of giving evidence upon your trial.  It has also saved the expense of running a committal and trial.  I consider, in all circumstances, given your plea of guilty, your remorse and its utilitarian consequences your plea has facilitated the Course of Justice.  You are entitled to a significant discount.  As I said, I am prepared to accept, in your case, your plea does indicate true remorse for your actions. 

27You were arrested on 21 March and I have referred to aspects and parts of your Record of Interview.  You made full admissions about your involvement and I take into account your operation with the police. 

28I have also taken into account your compliance with bail condition over the period of these proceedings.  I turn to the Chronology.  Your offending was committed on 28 September 2012.  You were arrested on 21 March 2013 and the committal was listed, and you were committed for a Plea Hearing on 29 November 2013.  The matter was adjourned because on your behalf, to obtain various reports.  On 11 December, your Plea proceeded before the Court and was further adjourned to today's date for further plea and sentence.  Over that period of time, and since the offending, you have been able to demonstrate a commitment to rehabilitation and you have made efforts to remain drug free and to deal with your mental health issues which were only recently diagnosed.  You are now receiving treatment and you are committed to that treatment path.  You have the support of your mother, family and friends and that has been significant.  There is no doubt your offending has brought shame on your family, including your mother and your grand-mother and brothers and your friends.  I am sure you are aware of that and you are making every effort to address your problems and to avoid further offending.

29I have also taken into account your lack of prior convictions.  You come before this Court a young man without prior convictions.  You previously had a good reputation and I sentence you as a person of previous good character.  However, I am also mindful of the principles of general and specific deterrence and I have balanced those matters relevantly.

30I have also taken into account that you are a Youthful Offender.  You were 21 years old at the time of the offending.  You were born on 13 December 1990 and you are now some 23 years of age.  I have taken into account the relevant pronouncements made by the Court in R v Mills, [1998], 4 VR 235 at Page 241 namely "The youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises. A Youthful Offender is not to be sent to an adult prison if such a disposition can be avoided, especially if that person is beginning to appreciate the effect of the past criminality".

31I have also taken into account other pronouncements made by the Court in Mills' case.  This is a very serious offence and of course General Deterrence can outweigh the pronouncements in relation to sentence of a Youthful Offender.  However I have accepted your counsel's submissions in relation to that aspect of matters.  I have also considered and applied the principles enunciated by President Maxwell in MALAKOVSI namely that it is in the interest of the community that a Youthful Offender, particularly a first time offender (like you), where they have set on a path of rehabilitation and dealt with their problems, should be given the opportunity to remain in the community, and to become a useful member of the community and to continue on their path of rehabilitation. 

32I have also taken into account your Personal History and Circumstances.  There are many matters that have been set out on the record and contained in the relevant materials tendered on your behalf including the report from clinical and forensic psychologist, Carla Lechner, dated 22 November 2013; the psychiatric report from Dr Joel Aizenstros dated 3 December 2013, and the matters set out in the Community Corrections Pre-Sentence report assessing you as suitable for a Community Corrections Order.

33Much has been set out on the record about your rehabilitative efforts since the time of the offending, and you have made significant steps in that regard and throughout considering sentence in this case I have kept upper most in my mind and balanced the significant steps in your rehabilitation, your personal circumstances and other relevant matters, with the principles of General and Specific Deterrence. 

34I have also taken into account your counsel's submission, that is initially Ms Hardy's written submissions particularly at Paragraph 6.  Ms Hardy also referred to your continuing attendance upon Dr Mulroney at the Toorak Medical Centre.

35I further take into account that you were not diagnosed or treated for ADHD whilst at school  You have been currently assessed, during the course of this hearing, Dr Aizenstros diagnosed you as suffering from ADHS.  I shall come to that matter shortly. 

36It is the first time you have been the subject of appropriate assessment and treatment for your many problems that have caused issues throughout your life.  In all the circumstances of this case, I consider, that if you were to be required to serve, even a portion of time in immediate custody, that time in custody would place you in a difficult and vulnerable and would interrupt your significant steps at rehabilitation.  Further prison would make you more vulnerable to adverse influences whilst in custody and would make it more likely that you would reoffend.

37Given your age, your mental issues, and your past drug addiction, I consider in all the circumstances that despite your series offending that it is in your interests and the community's best interests that you be given the opportunity to remain in the community and to continue to address those issues.  You continue to be employed with your brother in the construction industry, and those matters have been confirmed today.

38Much detail was placed before the Court about your family history and your own personal history and circumstances.  You have good family support from your mother, your older brother and other members of the family and friends.  You continue to reside with your mother and paternal grandmother.  Much has also been set out about your drug and alcohol history.  You began smoking marijuana intermittently at the age of 19.  At the age of 20 you commenced the use of "Speed" and later moved on to the hideous drug "Ice" which is now a scourge on others in our community.  You used "Ice" and "Speed" interchangeably for some months and eventually graduated to almost daily use, throughout this time.  I have taken into account the matters set out on the record and in the materials about your time at school and with your family, and that you had not been diagnosed or treated for ADHD and other issues.

39To your parents credit they took you to Turkey and to Greece in mid 2011 in order to help you rehabilitate yourself from drug use.  To your credit and there is nothing before the Court to suggest otherwise, you have not relapsed into the use of "Speed or Ice".  Upon your return to Australia, after spending nine months overseas, you did relapse into heavy marijuana use and also began to use Xanax when it was available.  Contrary to what was said previously Mr Dowsley, your client was under the influence of marijuana at the time of the offending..

40MR DOWSLEY:  He was Your Honour.  It's in Carla Lechner's report.  Sorry Your Honour the prosecutor just pointed that out.

41HER HONOUR:  Yes.  When I had the short break I reread my reasons for sentence and the materials ‑ ‑ ‑

42MR DOWSLEY:  Yes Your Honour ‑ ‑ ‑

43HER HONOUR:  It is indeed the case, and that is one of the matters I have taken into account ‑ ‑ ‑

44MR DOWSLEY:  Yes.

45HIS HONOUR:   It was not put forward by the learned Prosecutor that your drug addiction was an aggravating feature nor can it be put forward that it was a mitigating factor.  However it does go to explain and place into context your offending, although it does not in any way provide justification or a defence for that offending. 

46To your credit you obtained employment in November 2012.  You sought to cease your drug use and you gradually reduced your consumption of marijuana and completely ceased use of illicit substance in August 2012.  As far as alcohol is concerned I am told there are no issues, and you rarely drink.  Your future prospects of rehabilitation have been squarely placed on the record and they are also set out in Ms Lechner's report, who referred to you as presenting with promising rehabilitation prospects. 

47Over the course of this hearing and over the time since the offending, you have demonstrated a commitment and an ability to maintain a path of rehabilitation and to become involved with work, and to remain drug free.  You consolidated that promising start in your initial efforts at rehabilitation.

48I am told that school years were difficult years for you in many have been told that you went through school, they were difficult years for you in many ways given your problems were not diagnosed.  You also undertook a Plumbing apprenticeship for approximately two years and you worked for a particular Plumbing firm for 9 to 12 months.  You then went to Turkey and Greece with your parents.  Upon returning to Australia, there were difficult circumstances in the family and your parents separated.  You had a difficult relationship with your father and I have heard much about that acrimonious circumstances.  It was in that context you relapsed into drug use at the time.  You were under immense stress and it was at that time you committed the offence. 

49The learned Prosecutors, Ms French and initially Mr Moran submitted that specific deterrence was a relevant consideration in this case and that general deterrence of paramount consideration given the nature of the offending.  I have taken into account you are now 23 and hopefully you are starting to mature.  You are to be sentenced as a Youthful Offender.  I consider, in your case, that rehabilitation is important whilst general deterrence is nevertheless a relevant consideration.

50As I said, I am concerned that by requiring you to spend time in prison, such a sentence may lead to further offending.  Therefore you are suitable for individual treatment focusing on rehabilitation.

51It was submitted that a Community Corrections Order is an appropriate disposition in this case, not simply because you are to be sentenced as a Youthful Offender without prior convictions, but also because of the reports contents of the tendered including Ms Lechner's report, and in particular Dr Joel Aizenstros report in which he sets out much about your personal history and background and diagnosis.  I have taken into account all your personal history and circumstances which are consistent with contents of the reports and with matters placed before the Court. 

52Dr Aizenstros diagnosed you with adult ADHD with comorbid anti-social traits, poly substance abuse currently in remission, effective dysregulation on a background of childhood paternal physical and emotional abuse with result to a Detachment Disorder.  He also recommended a medication trial of Strattera which you have been taking.  Dr Mulroney also provided a number of reports and on the last occasion, a detailed report from Dr Mulroney was provided setting out your medication regime.  He also confirmed that regime and treatment in a brief report tendered today.

53I also accept that it would be appropriate for you to engage in weekly counselling with a Psychologist or a Psychiatrist utilising the various therapies and strategies that have been referred to by Dr Aizenstros as well as anger management issues and that you also engage in appropriate processes that will assist you to deal with your issues with functioning and emotional stability.  There is still a current risk of substance misuse, and relapse, but it is considered as low in the short term.  Those issues will also be able to be addressed under the Community Corrections Order programs.

54Dr Aizenstros is of the view, and I accept his opinion that incarceration is not likely to assist in your rehabilitation.  He opined that incarceration is like to cause you further risk of disengagement in health seeking activities and a potential for offending.  I agree with that opinion and have taken it into account.  I also accept his opinion that treatment of your ADHD is likely to reduce the risks your (indistinct) impulse control hyperactivity and other issues.  Therefore, it is hoped that the Community Corrections Order, as well as having a punitive effect will have a rehabilitative effect and assist you to maintain the efforts and strategies you have put into place.  Various programs as set out in the report including the various programs set out in his report. 

55Pre-sentence report to assess your suitability for a Community Corrections Order was ordered by the Court and that report was received on 16 December 2013.  Given the matters that have been placed before the Court today, and that since 16 December, you have continued on your path of rehabilitation.  You have been working.  You have been participating in treatment to deal with your problems, and you still have the ongoing support of your family.  There has been no further offending.  I considered it was not necessary to seek a further assessment of you by Community Corrections and that it is appropriate to place you on the conditions as recommended and also to require you to undertake unpaid community work.  Is there anything Mr Dowsley, that would prevent that from taking place?

56MR DOWSLEY:  Yes that's right Your Honour.

57HER HONOUR:  I have taken into account all that material.  It is twenty to two and I need - it but I am going to have to adjourn and these are some reasons for sentence that I need to complete and I then need to go through the conditions of the Community Corrections Order and each of you will need to be given a copy of that Community Corrections Order.  It must attend a meeting 2 to 3 and I would expect I would be back here before twenty past three.

58MR DOWSLEY:  Yes Your Honour.

59HER HONOUR:  So would 3.30 suit everyone?

60MR DOWSLEY:  Yes Your Honour.

61HER HONOUR:  There is no objection to bail continuing in the circumstances.  All right, Mr Aday can you please stand.  As you have heard, it is not possible to conclude these reasons for sentence.  Regrettably I need to adjourn the reasons to sentence until 3.30 this afternoon.  At that stage, your counsel will be given the form of Community Corrections Order and will go through that with you.  Mr Dowsley, do you have a copy of the Pre-Sentence report?

62MR DOWSLEY:  I do, with me yes Your Honour.

63HER HONOUR:  It is proposed that he undertake 200 hours of unpaid community work over a three year period.

64MR DOWSLEY:  Yes.

65HER HONOUR:  Supervision would be for three years.  Go to, the length of the Community Corrections Order, it will be with conviction and it will be for four years.

66MR DOWSLEY:  Yes.

67HER HONOUR:  There will be conditions including treatment and rehabilitation assessment and treatment including testing and drug problems, mental health assessment and treatment, offending behaviour programs and a Judicial Monitoring condition.

68MR DOWSLEY:  Yes.

69HER HONOUR:  Madam Prosecutor, are there any other conditions you would consider to be appropriate in the circumstances?

70MS FRENCH:  No Your Honour.

71HER HONOUR:  I appreciate your submissions today urging an immediate term of imprisonment.  All right, 3.30 p.m. thank you.  I do thank everyone sitting through the luncheon adjournment today as well, thank you.

72(Short adjournment.)

73UPON RESUMING AT 3.52 PM:

74HER HONOUR:  All right, thank you.  The matter of Oktay Aday.  I thank everyone again for their patience.  Mr Dowsley and Ms French, you have each been provided with a copy of the proposed form of Community Corrections Order.  As I said prior to the luncheon adjournment, if I can refer to it in those terms, supervision would be for three years, however I intended supervision would be four years. 

75MR DOWSLEY:  Four years, yes Your Honour.

76HER HONOUR:  That is reflected in the materials.  So, Mr Dowsley you have had the opportunity of going through that form of Order and the conditions, and what they mean and the consequences of a breach of the Order with Mr Aday. 

77MR DOWSLEY:  Yes Your Honour.  I did that just a moment ago and he understands Your Honour.

78HER HONOUR:  There is the Retention Order to be made.  I need to ensure I have placed all appropriate matters on the record.  I may need to retrace steps a fraction ‑ ‑ ‑

79MR DOWSLEY:  Certainly Your Honour.

80HER HONOUR:  Anything from you at this stage Madam Prosecutor?

81MS FRENCH:  No Your Honour.

82HER HONOUR:  All right, thank you.  Mr Aday, as I said prior to the adjournment, I ordered a Pre-sentence Report to assess your suitability for a Community Corrections Order, and of course now you are aware that you will be placed on such an order and Mr Dowsley has now had the opportunity of going through that Order with you. 

83I have also taken into account the Mitigating factors including your Plea of Guilty, your Remorse, the utilitarian consequences and facilitation of the Course of Justice, as well as the chronology of these proceedings.  There has been some delay through no fault of yours and an application for an adjournment was made to obtain a psychiatric report which was sadly and urgently needed.  Thankfully for you, and all concerned, that assessment and diagnosis has been made and as a result you have received help with your mental health issues. 

84I have taken into account your Personal History and Circumstances, your prospects of rehabilitation, all the tendered material, including the report of Carla Lechner including her assessment and options to which I have referred on a number of occasions, her assessment and opinions.  I have also taken into account the outline of Defence Submissions tendered on 29 November 2013, the first report from Dr Christopher Mulroney, Toorak Medical Centre dated 28 November 2013, the material from Shaun Briggs about The First Steps program dated 28 November 2013, and a document from Dirk Frank,  the Clinical Manager at Salvation Army, Counselling Services in Dandenong dated 28 November 2013.  The Psychiatric report from Dr Joel Aizenstros dated 3 December 2013, the further report from Dr Mulroney dated 16 December 2013 and the latest report from Dr Mulroney tendered today.

85As I said, I have accepted the assessments and opinion of Ms Lechner although they were made in some vacuum given Ms Lechner was not privy to the diagnosis made by the psychiatrist.  However that material, as I said, has been now placed before the Court.  I accept Dr Joel Aizenstros' opinions and assessments of you and recommendations and the contents of Dr Mulroney's reports.

86I have referred to your good character and evidence of good character and the fact you are to be sentenced as a Youthful Offender and I have taken into account the relevant principles enunciated by the Court in Mills case.

87As far as the Pre-sentence Report assessing your suitability for a Community Corrections Order is concerned, you have been assessed as suitable for such an order with the varying conditions.  You are now aware of those conditions which are stout in the form of Order. 

88The Community Corrections Officer assessing you has taken into account the recent diagnosis of an Adult Attention Deficit Hyperactivity Disorder, ADHD, Major Depression and generalised Anxiety Disorder, the fact you are under the care of Dr Christopher Mulroney and the medications you have been prescribed.  Of course it will be important for you to continue to see not only your GP Dr Mulroney, but a psychiatric professional and also a psychiatrist where possible and to participate in programs and treatment where necessary. 

89There has been some delay and over that period of time, you have had the anxiety hanging over your head of an immediate term of imprisonment and you have also had the opportunity to further demonstrate your commitment to your path of rehabilitation and to addressing your problems. 

90It is also significant that your assessment particular diagnoses have been made, at the time they were and that has allowed the Court the opportunity of  information concerning the further and full information placed before the Court.  that has also been a critical matter in determining sentence in this case. 

91I have taken into account all the other material placed before the Court.  I have already mentioned that you have the ongoing support and love of a caring family, including your mother, grandmother and your brothers as well as good friends, and all who have been in Court in support of you over the period of this proceeding and that stands you in good stead.  You have a stable background, a stable close and loving family and friends and it is important you have maintained fulltime and ongoing employment.

92However, you must remember Mr Aday that your commitments to your employment with your brother and Tercan Construction is concerned, must be subject to your obligations under your Community Corrections Order are paramount.  You must place your obligations to the over your work with your brother and Tercan Construction.  There is a balance that can be achieved and the Community Corrections Officer, who will be managing your case will be aware of your employment, and every effort will be made to accommodate you and your needs as best as they can. 

93You have been in no further trouble as I previously mentioned, and that is of credit to you.  On balance I am satisfied that your chances of rehabilitation are more than reasonably good.  I accept your commitment and motivation and your acceptance of the treatment that now has been provided to you as a result of your recent assessment and diagnoses. 

94In fixing an appropriate sentence, I have sought to maximise your chances of rehabilitation.  If you were ordered to serve an immediate term of imprisonment it would be your first time in prison in adult custody and that is obviously a matter I have taken into account.  I have balanced many matters including a need for General Deterrence.  Your counsel on the previous occasion, Ms Hardy argued that General Deterrence could be moderated given the principles in Mills case.  I have accepted her submission in relation to General and specific Deterrence, particularly given the efforts you have made over the period of time this matter has been before the Court, to address your problems and to commit yourself to a path of rehabilitation. 

95I have been told about an unknown accomplice.  No one else has been identified and charged in relation to this matter.  I have also heard you maintain you were the only offender involved.  However, I do not draw an adverse inference against you.  I cannot embark upon speculation. 

96I turn to the purposes of a Sentence.  As well as those matters personal to you Mr Aday, to which I have referred, including your prospects of rehabilitation and many other relevant matters, I also take into account such matters as Deterrence especially General Deterrence which is considered important in a case such as this, particularly given the very serious offending.   I have had the principle of General Deterrence uppermost in my mind when exercising my discretion in determining sentence in this case.

97As Mr Dowsley has correctly said, it is an instinctive synthesis particular circumstances and facts before the Court, and there are many matters in law that I must balance, and I have balanced.  I have also had to consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending and I have addressed specific deterrence and your prospects of rehabilitation.

98I am further called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. I have also taken into account the relevant provisions of the Sentencing Act, including s.5 that a sentence of an immediate term of imprisonment is a sentence of last resort.

99Having balanced all those matters, I consider it appropriate to take the course I have outlined. 

100Before I finally conclude the reasons for sentence, I must return to the decision of Barbaro v R; Zirilli v R, (2014), HCA 2 where the majority of High Court accepted the Director of Public Prosecutions' submissions that R v MacNeil-Brown was wrongly decided.  In particular, the High Court decided that the Court should not seek and the Crown should not provide numerical submissions about the appropriate sentencing range.  It is now history that when this matter first came before the Court, the then learned Prosecutor, Mr Moran placed before the court, on instructions a numerical range of appropriate sentence.

101Of course the learned prosecutor Ms French today has submitted on this further hearing, that the Court should not have any regard to that original submission made on sentencing range to the extent it included a quantified numerical range.  I have disregarded that quantified range of sentence.  However, she did maintain to her instructions, that you should be required to serve at least some time in immediate prison. 

102I have considered the provisions of s.44 of the Sentencing Act and for the reasons I have stated that I do not consider it appropriate in all the circumstances of this case to require you to serve a term of immediate imprisonment, nor do I consider that a disposition under S.44 of the Sentencing Act would be appropriate.

103If there are any matters I have neglected to mention, I can assure everyone that I have taken into account all relevant matters including submissions placed before the Court and materials. 

104

If you could please stand, Mr Aday.  In relation to the charge of Armed Robbery, once this order has been acknowledged and consented to

‑ ‑ ‑

105MR DOWSLEY:  Aggravated burglary Your Honour.

106HIS HONOUR:  Sorry?

107MR DOWSLEY:  Aggravated burglary.

108HIS HONOUR:  Take a seat for a moment Mr Aday.  More haste, less speed as they say.  I am acutely aware that you have been charged with and entered a Plea of Guilty to a charge of Burglary, and I am about to sentence you on that charge of Aggravated Burglary.  Unfortunately, I have picked up the wrong copy of Sentencing Order.  Here it is, thank you.

109Can you please stand, Mr Aday and we will start again, thank you.  In relation to Charge 1, the charge of Aggravated Burglary on Indictment D10866623, in all the circumstances the Court considers it appropriate to sentence you as follows:  You are convicted and ordered to serve a Community Corrections Order for a period of four years.  The Order commences on today's date and finishes or ends on 2 March 2018.  You must attend at Moorabbin Community Correctional Services by 4 p.m. on 5 March 2014.  In addition to the usual mandatory terms, which have been explained to you, they include that you are not to commit another offence for which you can be imprisoned during the time the Order is in force.  You must comply with all lawful instructions and directions and accept visits from the relevant Secretary or Delegate.  You must let the Community Corrections Officer know, within two clear working days, of you changing your address or job, and you must not leave Victoria without permission of a Community Corrections Officer.

110In addition to those mandatory terms, (some of which I have not particularly referred to) you are also required to perform 200 hours of unpaid community work over a period of three years as directed by the Regional Manager.  You must be under the supervision of a Community Corrections Officer for a period of four years.  There are also other conditions including treatment and rehabilitation conditions and you must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the Regional Manager.

111You must also undergo mental health assessment and treatment including, but not limited to, mental health and neuropsychological and psychiatric, in either a hospital or residential facility, as directed, if necessary.  You must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the Regional Manager and including an Anger Management program. 

112Further, you are to attend Court for Judicial Review.  That is a review hearing to ascertain what is happening with your Community Corrections Order on 3 June 2014 at 10.30 a.m. in the County Court of Victoria at Melbourne. 

113I have gone through those conditions and I am assured by Mr Dowsley that he has gone through them with you.  I now hand down the form of Order to my Associate Mrs Baldwin.  You have leave to approach the dock Mr Dowsley to go through that Order with Mr Aday.  Ms French, you did say previously there is nothing further, but do you wish to double check that form of Order? 

114MS FRENCH:  Unless the order has changed since it was first brought to us, the Prosecution's content with everything in the Order and it reflects what Your Honour has said in open Court.

115HER HONOUR:  Well you looked at it earlier.  

116MS FRENCH:  I did, yes, thank you.

117HER HONOUR:  All right, so Mr Oktay Aday, do you understand the effect and conditions of the Order, the Community Corrections Order and you have had that explained to you by Mr Dowsley and do you consent to it being made?

118ACCUSED:  Of course.

119HER HONOUR:  And is that your signature on the order?

120ACCUSED:  Yes it is.

121HER HONOUR:  All right, just remain standing for the moment, thank you.  That Community Corrections Order is now made on today's date. 

122Further, I order pursuant to s.464ZF B(i) of the Crimes Act that a forensic sample, and any related material and information, obtained, pursuant to the informed consent given by you on 21 March 2013, be retained for placement on the database.

123I have considered the seriousness of the circumstances of the offending, your consent to the Order, and that the making such an Order is in the public interest.  That Sample Order is now made on today's date.  There are three signed orders to be handed down.  All right, please take a seat for a moment.  Any other matters at all?

124MS FRENCH: Your Honour there's just the matter of s.6AAA ‑ ‑ ‑

125HER HONOUR:  Sorry, just a moment.

126MS FRENCH:  Sorry.

127HER HONOUR: My understanding is that s.6AAA is not necessary if a Community Corrections Order, or has that changed?

128MS FRENCH:  If Your Honour will allow me, I'll just double check ‑ ‑ ‑

129HER HONOUR:  Sorry, it's been a rush today ‑ ‑ ‑

130MR DOWSLEY:  That's right, (indistinct) changed.

131HER HONOUR: It may well be required if it is a S.44 of Sentencing Act order.

132MR DOWSLEY:  I think Your Honour's right, I think it's ‑ ‑ ‑

133HER HONOUR:  I'm sorry Mr Dowsley, have you got ‑ ‑ ‑

134MR DOWSLEY:  I think that's right, I think if you're not sentencing to gaol.

135HER HONOUR: It's different if it's a s.44(1) disposition. Although the Commonwealth at times have suggested that a Court should make a s.6AAA declaration however we won't worry about that. I should have canvassed that with you earlier Madam Prosecutor. I note for the record there is no Pre-sentence Detention to be reckoned in relation to this matter.

136MS FRENCH: Your Honour, thank you for that opportunity. I've reread s.6AAA and it appears Your Honour is quite correct, you don't need to make a declaration under that section in this hearing.

137HER HONOUR: Yes, all right. I propose not to make such a declaration or statement of discount for the plea of guilty pursuant to s.6AAA of the Sentencing Act, given the disposition that has been made in this case.

138MS FRENCH:  As Your Honour pleases.

139HER HONOUR:  It is always wise to check matters given the rate of changes in various legislative provisions.  All right, is there anything further? 

140One last thing Mr Aday, can you please stand. You do understand what the Order means. If you commit any further offences, relapse into drugs and commit offences, or if you fail, without any reasonable excuse or explanation to do what you are told to do under that Community Corrections Order, that will mean you will be brought back before the Court for a breach of the Order. It is known as a Contravention offence under the Sentencing Act. If the offence is found proven, that is this Contravention Offence, and you are found guilty, you can be fined for that offence or sentenced to a term of imprisonment of up to three months.

141Over and above that, if you are found guilty of breaching the Community Corrections Order, you can also be resentenced on the original charge of Aggravated Burglary, and unless there are exceptional circumstances you will be facing an immediate term of imprisonment.  I have given you a rare opportunity in all the circumstances.  It is a very serious offence and you have heard the learned Prosecutor call for an immediate term of imprisonment.  So I cannot make it any clearer than that.

142Madam Prosecutor does that Outline of Contravention proceedings accord with obligations under the Sentencing Act?

143MS FRENCH:  I believe it does Your Honour, thank you.

144HER HONOUR:  Thank you.  All right, thank you for your assistance Madam Prosecutor and Mr Dowsley.  Mr Aday you do have to return to Court for the Judicial Review hearing on 3 June 2014 at 10.30 a.m.

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