Director of Public Prosecutions v Albera and Kon
[2017] VCC 1784
•27 November 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-17-01891
CR-14-01893
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ESKNIDERR ALBERA & PATRICK KON |
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JUDGE: | Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2017 | |
DATE OF SENTENCE: | 27 November 2017 | |
CASE MAY BE CITED AS: | DPP v Albera & Kon | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1784 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N Goodenough | OPP |
| For the Accused | Ms C Blakeney Ms S. Wallace | Greg Thomas, Solicitor David Barresse & Associates |
HIS HONOUR:
1 Eskinder Albera and Patrick Kon you have both pleaded guilty to one charge of car theft and one charge of armed robbery.
2 The maximum penalty for car theft is ten years' imprisonment.
3 The maximum penalty for armed robbery is 25 years' imprisonment.
4 The prosecution has presented a summary of your offending. I do not intend to repeat the whole summary. It is Exhibit A in these proceedings.
5 Briefly, at approximately 2.55 am on 7 July 2017 you attended at the Caltex Service Station at 75 Mount Derrimut Rd, Deer Park. You travelled to that address in a stolen Mitsubishi Lancer. Your associate, Cockrin Kuchath, was the driver. You were also in the company of Angony Mabour.
6 You both exited the vehicle with Mabour. The three of you had your faces covered and were wearing gloves. Mr Albera, you were armed with a hammer. Mabour was carrying a large machete in a green sheath and you, Mr Kon, carried a bed sheet.
7 Mr Albera you smashed one of the front glass sliding doors and forced them apart so you could enter the store. Kuchath drove the stolen vehicle into the doors to assist the entry of Kon and Mabour.
8 Whilst this was occurring, the victim, who was working in the store stacking shelves, fled to the rear storeroom where he sought refuge. He called the police.
9 Mabour climbed over the counter and opened a door that allowed you, Mr Albera to enter behind the counter.
10 You then went to the storeroom door and began kicking and banging the door. You yelled at the victim to open the door. He refused to do so. You then moved to assist Mabour who was busy stealing cigarettes and emptying them into the sheet held by Mr Kon. You removed the cash register and ran to the front of the store with Mabour. Mr Kon, you followed carrying the sheet containing the cigarettes.
11 You stole $558.55 in cash and 137 packets of cigarettes with an approximate value of $6,000.
12 You all left the building, got into the motor vehicle and fled the scene.
13 At approximately 3.30am on the same night you were all arrested and remanded in custody.
14 I have read the victim impact statement. As a result of the frightening ordeal of that evening, the victim suffered emotional distress that stopped him working for three weeks. He has continued to suffer from a lack of confidence and a feeling of distrust towards others.
15 This is obviously serious offending. It was planned. You gathered the items you needed to facilitate your criminal acts and you decided on a soft target. You used a stolen vehicle. The vehicle was used to assist entry into the store. In effecting the armed robbery, you disguised yourselves and you used force to gain entry to the building. Mr Albera, your behaviour in banging on the storeroom and demanding entry was frightening for the victim. As I have said, he has suffered emotional harm as a result of the events of that night.
16 With this offending, general deterrence, denunciation and just punishment are all relevant sentencing considerations.
17 You both have prior convictions.
18 Mr Albera, you have a large number of prior convictions in the Children’s Court. On 25 August 2016, when you were 17 years old, you appeared on charges that included affray, behave in a riotous manner in a public place, aggravated burglary (3 charges), intentionally cause injury (5 charges), reckless conduct endangering life and car theft. You were placed on an 8 month Youth Attendance Order.
19 On 1 March 2017, you appeared at the Children’s Court for offences of armed robbery, attempted armed robbery, unlawful assault and theft of a car. You were also charged with breach of the Youth Attendance Order. You were sentenced to a total effective term of 12 months at a Youth Justice Centre.
20 At the time you committed the current offences you were on Youth Parole.
21 Mr Albera, your history of relevant prior offending means that specific deterrence and protection of the community are relevant sentencing considerations.
22 Mr Kon, you also have relevant prior convictions. In November 2015, you appeared at the Sunshine Magistrates’ Court where you were fined for offences of theft and breach bail. In September 2016, you appeared at court for offences of exceed the prescribed concentration of alcohol and refuse to accompany the police for a breath test. On 31 March 2017, you appeared at the Melbourne Magistrates’ Court for offences that included affray and recklessly cause injury. You were released on a Community Corrections Order with conditions that were designed to assist your rehabilitation. On 6 April 2017, you appeared in the Children’s Court for offences that occurred in 2015. The offences included recklessly cause serious injury, affray, assault by kicking and recklessly cause injury. You were placed on a bond to be of good behaviour. The current offending breached the community corrections order and the good behaviour bond.
23 In your case, specific deterrence and protection of the community are also relevant sentencing considerations.
24 I now move to matters relevant to your backgrounds and those matters in mitigation.
25 Mr Albera, you are 18 years old. You are a young offender. For a young offender, rehabilitation is a very important consideration in the sentencing process. However, whilst I acknowledge the need to give appropriate weight to your young age, the serious nature of this offending together with the opportunities you have been given in the past to address your criminal behaviour mean that the other sentencing considerations that I have already mentioned must also be given appropriate weight.
26 You were born in South Sudan in 1999. Your family fled the fighting that ravaged that young country and found their way to Egypt. You were 5 years old when the family came to Australia as refugees. Initially, the family stayed with relatives in the Ringwood area before moving to the Cranbourne area in 2009. In 2011 you commenced your secondary schooling at St Peter’s College in Cranbourne West. You completed year 11.
27 Your offending commenced in 2016. All of your offending has been committed in the company of other young men. Your counsel submitted that your association with negative peers provides the primary explanation for your offending.
28 There is very little that can be said to mitigate your offending.
29 You have pleaded guilty at the earliest opportunity. The plea is an acceptance of responsibility. The plea has also saved the victim from the trauma of giving evidence and saved the community the cost and expense associated with a criminal trial. You will be given credit for all of these matters.
30 Mr James Taylor, from Youth Justice, who assessed you at my request, stated in his report that you expressed strong remorse for your offending. This is a matter in your favour. Another, is the strong support you have from your family. Even though your behaviour over the last two years has caused your parents great distress, your father attended court to offer his continued support. It is concerning that their support has not stopped you from offending. Perhaps now that you have spent time in adult custody, the full extent of what you have thrown away in rejecting your parent’s guidance will become apparent to you.
31 I also note, as a matter to your credit, that while you were on youth parole you attended the Parkville College Flexible Learning Centre two or three days per week. The team leader of that Centre noted that you engaged well in class and that you were always respectful. You were due to commence VCE at the Chisholm TAFE College on 17 July 2017. Your remand in custody, for these offence, put pay to that plan.
32 Mr Albera, I have some reservations about your prospects for rehabilitation. Over the last two years you have been involved in high end serious criminal offending. You have been the beneficiary of orders in the Children’s Court designed to facilitate your rehabilitation. Those orders have not been successful. The ongoing support of your family has not stopped your offending. Nor has the ongoing support of the education system. It appears that your peers have been able to easily persuade you to participate in their serious offending. These are matters of concern.
33 However, I accept that you are still a young man capable of reformation. I accept that you are immature and impressionable. I also accept Mr Taylor’s assessment that your experience in adult custody has had a salutary effect upon you. Whilst in remand you have completed a number of courses and expressed a desire to continue your education. In his report, Mr Taylor assesses your prospects of rehabilitation in this way – “However, given that Mr Albera is a relatively young man and has the support of his family, a solid level of secondary educational achievement and participates in recreational activities his prospects of rehabilitation are considered reasonable, should he desist in engaging in criminal behaviour and associating with negative peers in the community.”
34 Mr Albera, it was your age and immaturity that persuaded me to seek an assessment from Youth Justice about your suitability to undergo a Youth Justice Centre Order. You have been found suitable for such an order.
35 So even though this is very serious offending, I intend to make such an order in your case. I recognise that given your age, immaturity and impressionability, a sentence in an adult prison is more likely to impair rather than improve the prospects of your successful rehabilitation.
36 Mr Albera, will you stand, please. You will be convicted on the offences and sentenced as follows: Charge 1, car theft, convicted and sentenced to be detained in a Youth Justice Centre for a period of six months. In addition, all licences are cancelled and you are disqualified from driving for a period of 12 months. On the charge of armed robbery, you are convicted and sentenced to be detained in a Youth Justice Centre for a period of 3 years.
37 I make a declaration that you have served 143 days by way of pre-sentence detention.
38 Had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to an effective term of 4 years and 3 months imprisonment with a minimum term of 2 years and 9 months before you would be eligible for release on parole.
39 I make the forfeiture order sought by the prosecution.
40 Mr Kon, you are 21 years old. You are still a young offender and, as I have already said rehabilitation is still an important consideration in sentencing. However, the serious nature of this offending, your prior history and the fact that the current offending was in breach of a CCO and a good behaviour bond, are matters that require me to give appropriate weight to the other purposes of sentencing that I have already identified.
41 You were born in Kenya in 1996. You came to Australia with your family in 2002. After finishing primary school, you attended Emmanuel College High School in Altona North. You commenced year 12 but then moved to a TAFE College to do a bricklaying and construction course. You have a very good work history. You were working as a brick layer up until the time you committed these offences.
42 You have been in a relationship for over three years. You have an 18-month-old child.
43 Like your co-offender, the explanation for the offending seems to be an inability to resist peer pressure.
44 You have pleaded guilty at the earliest opportunity. You accept responsibility for your criminal offending. The plea has saved the victim from the trauma of giving evidence and saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.
45 In determining your matter I take account of the fact that this will be your first sentence of confinement of any sort.
46 I have some reservations about your prospects of rehabilitation. The fact that this offending occurred in breach of two other court orders is a matter of concern. It is also concerning that you engaged in this offending whilst being in full time employment and having the responsibility of caring for your partner and child. Employment and parental responsibility are usually factors that operate as protective factors against serious offending. They did not have that affect in your case. If it is the situation that you find it hard to resist the urgings of your friends to participate in serious crime, then it can only be hoped that you will start to think about your responsibility towards your family and make your responsibilities towards your family the focus of your future behaviour.
47 I accept that you are still capable reformation. You are only 21 years old. Your good and consistent work history is one factor that speaks to a potential to rehabilitate. The time you have spent in adult custody may have also had a salutary effect.
48 Mr Kon, because of your age, you are not eligible for a sentence of Youth Justice. This is an important fact that distinguishes you from Mr Albera. You are older than him and you will be treated as an adult. It is also important that I explain to you (and Mr Albera) why your orders are very different to the orders made in the case of the offender Mabour. He was a young offender appearing in the Children’s Court. The principles that govern sentencing in that court are very different to the sentencing principles for adults. The orders made in that court are generally not comparable with the orders made for adult offenders.
49 In sentencing you I do take account of the fact that you were not as vigorously involved in the offending as Mr Albera. You did not enter the premises armed with a weapon and you did not bang on the storeroom door where the victim had taken refuge. Nor is your prior history quite as bad as Mr Albera’s. However your counsel’s submission that it would be appropriate to impose a gaol term followed by a CCO must be rejected. The seriousness of the offending, your prior history and your breach of court orders make such an order inappropriate.
50 Will you please stand.
51 On the charge of car theft, you are sentenced to a term of 6 months' imprisonment. All licences are cancelled and you are disqualified from driving for a period of 12 months. On the charge of armed robbery you are sentenced to a term of 2 years and 6 months' imprisonment. As this is your first sentence of imprisonment, I do not intend to order any cumulation of Charge 1 on Charge 2.
52 I order that you serve a minimum term of 18 months before you will be eligible for release on parole.
53 Had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to a term of 3 years and 9 months' imprisonment with a minimum of 2 years and 3 months.
54 I make a declaration that you have served 143 days by way of pre-sentence detention.
55 I make the forfeiture order sought by the prosecution.
56 I also order that you undergo a forensic procedure for the taking of a buccal swab. If you fail to cooperate with the authorities in the taking of the sample, reasonable force may be used to obtain it and indeed, the sample that can be obtained may be a blood test.
57 Yes, thank you. Is there anything else?
58 MS BLAKENEY: As Your Honour pleases.
59 MR GOODFELLOW: Please the court. Just the - - -
60 HIS HONOUR: I'll sign those orders if you pass them up.
61 MR GOODFELLOW: Thank you, Your Honour.
62 HIS HONOUR: Thank you. The prisoners can be removed.
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