Director of Public Prosecutions v Arale
[2015] VCC 1937
•18 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-01614
CR-15-02137
CR-15-01569
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDULWALI ARALE |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 November 2015; 1,2, 4 and 11 December 2015 |
| DATE OF SENTENCE: | 18 December 2015 |
| CASE MAY BE CITED AS: | DPP v Arale |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1937 |
REASONS FOR SENTENCE
---Subject: Sentencing; aggravated burglary; armed robbery; summary charges
Catchwords: Pleas of guilty (mostly late); young offender; no prior convictions; alcohol affected; offending in company; 3 incidents in one week; using knuckledusters; immigration consequences of sentence; Somalian-born New Zealand citizen
Legislation Cited: Sentencing Act 1991 (Vic) ss 11, 18, 32, 44, 6AAA; Bail Act 1977 (Vic) s 30B
Cases Cited:DPP v Hutchison [2015] VSC 405; R v Renzella [1997] 2 VR 88; Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342; R v Hill [1996] 2 VR 496
Sentence:TES 11 months imprisonment followed by CCO for a period of 12 months with conditions of supervision, assessment and treatment for alcohol abuse or dependency and programs to reduce re-offending, together with further concurrent CCO for 3 months with condition of 30 hours of unpaid community work.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B Stougiannos | OPP |
| For the Offender | Mr J Miller | Armstrong Legal |
HER HONOUR:
1Abdulwali Arale, you have pleaded guilty to a number of offences arising out of three separate incidents that occurred in the same week in April of this year.
2You have pleaded guilty to intentionally causing injury to Mr Harjit Singh and obtaining property by deception from him. You have also agreed to have heard with these charges and have pleaded guilty to summary charges of committing an indictable offence whilst on bail, and possessing a prohibited weapon, that was knuckledusters. Those arise out of the same incident on 7 April 2015.
3You have also pleaded guilty to a charge of aggravated burglary and a charge of intentionally causing injury to Mr Jason Robertson, arising from an incident on 11 April 2015.
4Finally you have pleaded guilty to one charge of armed robbery of Mr Muhammed Aslam, arising from an incident on 13 April 2015.
5The maximum penalty for aggravated burglary, and for armed robbery, is 25 years' imprisonment. For each charge of intentionally causing injury, and for obtaining property by deception, it is 10 years' imprisonment. For possessing a prohibited weapon, that being one of the summary charges, it is 240 penalty units or two years' imprisonment, and for committing an indictable offence whilst on bail, 30 penalty units or three months' imprisonment.
6You will not be receiving the maximum penalty on any of those charges but they do reflect the relative seriousness with which Parliament on behalf of the community regards offences of these types. When it comes to aggravated burglary and armed robbery, the maximum penalty for each of those of 25 years' imprisonment is the second highest penalty, short only of life imprisonment, that is provided for under the laws of this state.
7In early April of this year, you were aged 20, living with your family in Ascot Vale and apparently mixing with some other young African men who were getting into trouble, abusing alcohol and drugs, and engaging in antisocial behaviour.
8On the night of 7 April, you were with another young man and hailed a taxi in Ascot Vale. The driver was Mr Harjit Singh, who was employed as a taxi driver for Silver Top Taxis. You asked to be driven to a street in Flemington, and whilst riding in the taxi can be seen on CCTV to be wearing metal knuckledusters on your right hand. On alighting from the taxi, the young man with you approached the driver's side window and with a closed fist punched Mr Singh three to four times in the face, causing his nose to bleed. At the same time, still in the taxi, you punched Mr Singh to the back of his neck and left shoulder, four or five times, with the knuckledusters. This conduct comprises the charge of intentionally causing injury to Mr Singh.
9You and your co-offender then ran off without paying the $12 taxi fare, and that is the basis of the second charge of obtaining a financial advantage by deception.
10After the assault, the taxi driver was shocked and dazed and could not see for a couple of minutes. He then drove to Moonee Ponds police station and reported the incident to police. That police constable observed that Mr Singh had dry blood around his nose and on the palm of his hands.
11At the time of this incident, you were on bail for some other matters. This circumstance is the basis of the summary charge of committing an indictable offence whilst on bail in breach of s.30B of the Bail Act.
12Knuckledusters are a prohibited weapon under the Control of Weapons Act 1990, and that is the basis of the other summary charge.
13Your co-offender in this incident, Mr Ahmed, pleaded guilty on 22 October to a charge of assault in company, and was sentenced to an aggregate of 178 days' imprisonment. However, that was part of a consolidated plea so I do not know what part of the sentence was attributable to his role in this incident. The charge against him from this incident was also different from those against you. He was ordered to pay compensation of $12 - that is for the taxi fare - and I am going to be making the same order against you too.
14You had indicated a plea of guilty to this matter - that is the two charges arising out of this incident - at committal mention stage earlier in the year, so you are entitled to the leniency for an early plea of guilty on these charges, reflecting that you accepted responsibility for this offending relatively early, and saved the community the time and cost of disputed hearings and the need for witnesses including Mr Singh to give evidence at all.
15The second incident in time gave rise to a set of charges which came before me for trial on 30 November of this year. On the second day, and before a jury was empanelled, the matter resolved on the basis that you would plead guilty to the charges of aggravated burglary and intentionally causing injury to the victim Mr Robertson. The lesser alternative charge of recklessly causing injury to Mr Robertson was withdrawn, as was a charge of armed robbery arising from the same incident.
16Therefore, although the plea of guilty came late, it was for a more limited number of charges, and in particular not for armed robbery. It still attracts some utilitarian value. What I regard as more significant in the circumstances of this case, is that your plea of guilty, although late, spared the victim Mr Robertson from having to give evidence and potentially be cross-examined about matters concerning his mental health history. Although he was called and cross-examined at the committal hearing, he was potentially to be more extensively questioned after his medical records had been obtained, and in front of a jury, and that would have been more invasive for him and would have been likely in my view to have been much more stressful for him. I give you credit for sparing him that.
17The circumstances of this offending were that on the night of 11 April, you went with another young African man to the home of Mr Jason Robertson. You had been there on a number of previous occasions but there had apparently been a falling out between you and Mr Robertson and you were no longer welcome there. You and your companion were both known to Mr Robertson, but by nicknames. He expected your co-offender, known as “Teflon”, to be coming to pay him $50 that was owed to him, so answered a knock at the door, but you and your co-offender pushed your way into his unit. You had a pair of knuckledusters on your right hand, and you and your co-offender threw Mr Robertson onto the lounge room floor. The entry and that conduct is the basis of the charge of aggravated burglary.
18You then hit Mr Robertson several times with your knuckledusters, causing bleeding to his face and breaking his dentures. This is the conduct that is the basis of the charge of intentionally causing injury to Mr Robertson.
19Once you had fled, Mr Robertson called 000 reporting the incident and requiring an ambulance to take him to hospital. During this incident, a friend of Mr Robertson, Ms Jenkins, had been asleep in his bedroom and awoke while he was on the telephone to police. She saw blood on his face and his dentures broken and she participated in the 000 call. When police arrived, they found some bloodstains in the lounge and hallway.
20At the hospital emergency department, Mr Robertson was observed to have a mild abrasion to his left cheek, dried blood on the side of his face and complained of being assaulted with knuckledusters. His injuries are listed in the prosecution opening and I will not repeat them here. There was apparently no loss of consciousness and his Glasgow coma score was normal. He was given medication for pain, and a CT scan of his brain and face was taken with no fractures or haemorrhaging shown, and he was discharged from hospital the next morning.
21The third incident occurred in the early hours of 13 April when you were in company with two other young African males. A taxi driven by Mr Muhammed Aslam was hailed on Chapel Street Prahran, and Mr Aslam was paid $20 to drive the three of you to the Men's Gallery in Lonsdale Street. On reaching that destination, it looked closed, and the driver was told to take you all to Maidstone and given another $20 cash. There was reluctance to give him an address, but once near the corner of Ballarat Road and Richelieu Street, he was given directions to make numerous turns. Eventually he pulled up and stopped his meter because the amount it had reached was the approximately the amount he had been paid. He was told to drive to the next street which he did. That was in darkness, and when he pulled over, your co-offender grabbed the driver's white mobile phone from the centre console. As he did this, the driver tried to grab the phone back. At that point, you reached from the backseat and punched the driver three or four times to the head using your knuckledusters. The punches caused scratches to the driver's right temple behind his ear. This conduct is the basis of the charge of armed robbery.
22Following your hitting of the driver, you and your companions got out of the taxi. When the driver went to get out of the taxi as well, you started punching his driver's side window which scared him so he started to drive away, and as he drove you kept punching his window whilst you could reach it. Mr Aslam had pressed his duress alarm and was advised to go straight to the Footscray police station where he reported the incident. The same day, police received the CCTV images from inside the taxi which showed you with the knuckledusters.
23On the following day, you surrendered yourself to Flemington police station where you were arrested. You were then transferred to Moonee Ponds police station where a record of interview was conducted. You answered no comment to the allegations as was your legal right.
24This matter was the subject of a contested committal hearing in September. Mr Aslam was cross-examined and you entered pleas of not guilty. It was when the trial for the offences against Mr Robertson was resolved, two and a half weeks ago, that you also pleaded guilty to this charge of armed robbery against Mr Aslam. In doing so, you have saved your part in the trial listed to commence in the middle of next month. I am told that your co-accused, Mr Ahmed, has pleaded not guilty, and is set to go on trial commencing 18 January 2016 on that charge.
25Following your arrest on 14 April, you were remanded in custody in relation to all three incidents. You were bailed in relation to all matters on 16 July. Following the contested committal hearings for the second and third incidents, on 16 September 2015, you were not granted bail again, and you have been on remand since then. You have spent a total of 187 days on my calculation not including today in custody; that, of course, has been in adult custody and I have taken that into account towards your sentence.
26Neither of the taxi drivers whom you assaulted has made a Victim Impact Statement, but I have taken into account that each incident would have been frightening and most upsetting for each man. These men were doing their jobs, and are entitled to the protection of the law against people who, like you, seem to think they are acceptable targets for robbery or assault. It does not seem to have occurred to you and your companions that just as you wanted the convenience of being able to hail a taxi to take you where you wanted to go late at night, so do many other members of the community, and if attacks such as these continue, they will discourage taxi drivers from working under such conditions. That may well lead to there being fewer taxis available for people to use, especially late at night.
27It is not suggested that the injuries to either man were severe, nor that there are any long-term physical consequences for them, but I infer that incidents such as these will have made them less comfortable in working driving taxis at night.
28Moreover, it was staggering to me to learn that your own father works as a taxi driver. If this was some type of revenge against your father - and I have not been told that that was the reason for it - it was very cruel to Mr Singh and Mr Aslam.
29I have read a Victim Impact Statement from Mr Jason Robertson, the victim of the second of the incidents. I had already read the statements he made to police at the time and shortly after the incident at his home as I needed to do that in relation to a preliminary issue on which I made a ruling for the trial. Mr Robertson says that he already felt unsafe living in his unit because of previous experiences or confrontations with you and others. I am not aware of prior circumstances between you and I do not assume that there were any confrontations that were offences at law. He says that this incident on 11 April caused him further stress.
30He suffered loss of top teeth and broken lower denture as a result of being punched by you in the face with knuckledusters. It was clearly a very upsetting incident for him and whatever the history between you and him, he was entitled to feel safe in his own home. By invading it and subjecting him to violence there, you have caused not only stress at the time but undermined his sense of security in his own home.
31There is no explanation of your invasion of Mr Robertson's home or your violent attack on him. I regard it as a serious incident which requires a sentence which conveys to you personally and to others who might be tempted to do similar that the community's denunciation of such conduct requires that a stern punishment be imposed. That is, I must apply what the law calls general deterrence to deter others, specific deterrence to deter you from repeating such an offence, and denounce the conduct on behalf of the community.
32I turn now to your personal circumstances. You are now aged 20. You were born in Mogadishu and migrated with your family to escape war. You went first to Kenya and then to New Zealand, the latter being when you were aged 5. You are one of seven siblings. You went to school in New Zealand and finished Year 11 there.
33I am told that it was in New Zealand that you first started drinking alcohol and staying out late, at about age 16 or 17. That was with other young males. This was a matter of distress for your family, specifically the alcohol for practising Muslims, but it was brought under control relatively quickly because of the small Somalian community in Wellington and matters being quickly reported to your family. I am told that you attended an eight-week course to reduce alcohol use, run by the Salvation Army there, and did become abstinent after that.
34Your family moved to Melbourne in 2013 when you were 18, after your eldest brother had already moved here and started a business. I am told that your father does not live with your family now and is not part of your life, but I am unsure when that separation occurred. You live with your mother and at least some of your siblings, and there is no family still living in New Zealand. You are, however, still a New Zealand citizen without permanent residence in Australia.
35Unfortunately, after arrival in Australia and there being a larger community here in Melbourne, you took up with other young African men who were drinking alcohol and stretching behavioural boundaries and getting into trouble. It was in such company that you committed these offences.
36I am told that in childhood, you had suffered some injuries in a bicycle accident and then when assaulted in your mid-teens, the latter causing you to be in hospital for three weeks. Although you apparently saw a psychologist at the time, there was no further treatment and I have not been provided with any evidence that suggests that you are suffering from any mental health issues, nor, for that matter, any physical impairments.
37There are several factors which I take into account in mitigation - that is towards leniency in your sentence. First, as I have already said, your pleas of guilty to each set of charges do entitle you to some leniency for saving the time and cost of trials. The early plea to the offences against Mr Singh attracts the most, and the sparing of Mr Robertson from appearing before a jury and having his mental health history is of value on the second set of charges. You have by these pleas of guilty accepted responsibility for your role in these offences. I am told that you have now expressed remorse for each of them although that was not apparent until recently. I will tell you after I have imposed your sentences what they would have been if you had not pleaded guilty to each of these sets of charges.
38At age 20, you are to be treated as a young offender and in particular, as you come before the court with no prior criminal record, your rehabilitation should be treated as the principal sentencing factor. There were, of course, three separate incidents giving rise to these charges, but I am dealing with them all at the same time so it can be said that you have no prior offences.
39Although your offending was serious and occurred on three separate occasions, there are some positive signs in my view for your potential rehabilitation.
40When released on bail for about three months - that was from June until September - that was under the Youth Support and Advocacy Service supervision. You complied with strict conditions of bail imposed including abstinence from alcohol, and also working and being required to work at and not leave the premises of your brother's business.
41From what I have read in a pre-sentence report prepared at my request as to your suitability for a Youth Justice Centre order, you have expressed appropriate remorse and some insight into your offending, and for the impact on your victims as well as on your family.
42I also consider that the strong support from your mother and siblings is positive for your prospects of rehabilitation. I have read references from some members of the family. In my view, if you can abstain from alcohol abuse, learn to assess which friends to associate with and which to avoid because they might lead you into poor behaviour, and if you can apply yourself to obtaining work, your prospects for rehabilitation are quite good.
43Further, although my sentence should recognise that serious offending occurred on three separate days and against three separate victims, the fact that all of these offences occurred over a relatively short period of time and two of the three incidents were of similar type, that is, against the taxi drivers, and all three involved you assaulting someone with knuckledusters, a considerable degree of totality should apply, that is, moderating each individual sentence and the cumulation of the sentences so that the total effective sentence reflects the totality of the offending in that week through those three incidents.
44Submissions on your behalf were centred on urging me to impose a sentence of less than 12 months' imprisonment or detention. The reason for that is that, if sentenced to 12 months' or more imprisonment, or detention, you will face the harsh consequences that stem from the Migration Act 1958 (Cth) and the ministerial direction of last December. Those would almost certainly lead to a decision to cancel your visa and your deportation to New Zealand. It would not return you to Somalia, but I am told you have no family or support network left in New Zealand. The high risk of deportation as a result of your sentence is relevant for me to consider in determining your sentence. What is pressed upon me, in this case, is that all members of your family are in Melbourne and not only is there no support for you to return to in New Zealand, but the support of your immediate family here would best assist your rehabilitation.
45Your family has clearly made a new life, first in New Zealand and away from the dangers in Somalia and, over the last two years, in Melbourne. You have told youth justice officers, from whom I received a presentence report, that moving to Australia has been the best thing for your family, and you have expressed your embarrassment and upset that you have let your family down. You told them that you are very concerned that you may be deported and that you would have to go back to New Zealand by yourself, as you would not think it fair if any of your family went back with you, and had to leave Melbourne.
46It is clear that you have brought upon yourself this prospect of having your visa cancelled, as you knew that what you were doing was wrong on each of the occasions of offending. Even though you are said to have been affected by alcohol at the time, there is nothing to indicate that you were not able to understand that you were committing serious offences. Nevertheless, your age goes some way to explain your lack of forethought about this consequence, and is also relevant in that it is a comparatively young age for you to face the consequence of living in a different country from every other member of your family.
47I have taken into account that you have been in adult custody for what is now a little more than six months and, at your age, that is likely to have been confronting, especially as it has been your first time in custody at all. I am told that you were not subject to the total lockdown conditions that followed the disruption at Metropolitan Remand Centre at the end of June, as you were not present on the day, but had been taken to court. As a result, you were kept in police cells for about three weeks until return to MRC. I am told that the conditions under which you have been kept since then have been more restricted than usual, but not as severe as the 22 or 23-hour lockdown conditions in which some other prisoners have been kept during this period while on remand.
48I have taken into account that even the three weeks in police cells would have been harsher conditions than mainstream imprisonment and that the more restrictive conditions since then have made custody more onerous. Therefore, I have made some reduction in your sentences to take those conditions into account.
49I had you assessed for a Youth Justice Centre Order, and the report I have received raises some persuasive issues as to why such a sentence would be suitable for you. You were assessed as having reasonable prospects for rehabilitation, and also on the alternative basis for eligibility under s.32 of the Sentencing Act 1991, being an impressionable young person likely to be subjected to undesirable influences in an adult prison. The latter is hard for me to assess, given that you have already spent a little over six months in adult custody, but I accept that you have found that very confronting, and that you are still young and likely to be vulnerable if that continues, compared with a Youth Justice Centre custodial environment, which is likely to be more conducive to your prospects for rehabilitation.
50I also had you assessed, and you were found suitable for a Community Corrections Order to follow imprisonment, and that is the course that was urged on me by your counsel.
51The dilemma I face in sentencing you is that an order for detention, whether in adult prison or a Youth Justice Centre, if for 12 months or more, will attract the same consequences for your visa and result in likely deportation. Further, in order for you to have the benefit of supervised release in the community which, in my view is very important on your release from custody, if that were to be by way of a Youth Parole Order, it would need to commence well within that maximum of a little under 12 months of a sentence of detention. In contrast, it would be possible to impose a sentence of imprisonment, which means adult prison, for almost 12 months, to be followed by a community corrections order with rehabilitative conditions and supervision.
52Also of relevance in constructing your sentence is s.18 of the Sentencing Act which requires that time already spent in custody as presentence detention must be declared as reckoned served towards the sentence imposed unless the court otherwise orders. I have a wide discretion to order other than that, although the mandatory nature of the words of s.18, that it “must” be declared, indicates that the reasons for not ordering that that be reckoned served should of real substance. You have, as I said, been a little over six months in adult custody and some of that under more restrictive conditions than usual. That time would normally be fully reckoned served and, given the harsher conditions, given more weight.
53There is a decision made in August of this year by Osborn J, in the case of the DPP v Hutchison[1], which discussed the interplay of s.18 of the Sentencing Act, with s.44 relating to community corrections orders following terms of imprisonment, and also s.11. On considering the issues in that case, Osborn J decided that he should direct that the presentence detention in that case not be reckoned served in order to make the person he was sentencing eligible to have his term of imprisonment followed by a community corrections order. It is clear that if the time in prison is not reckoned served, it should be taken into account under principles in the case of R v Renzella[2].
[1]DPP v Hutchison [2015] VSC 405
[2] R V Renzella
54There is an artificiality in using those provisions to try to bring about the sentence that the judge considers most appropriate to meet all sentencing requirements in the case, but that is an approach, as I have said, taken in Hutchison's case by Osborn J or, indeed, in line in the context of bringing a person under the limit for a Youth Detention Order, in an earlier case of Hill[3].
[3] Hill
55Given the seriousness of the offending for which I sentence you, and the need for general deterrence, given the use in each of those cases of a knuckleduster by you, which is the core, in some ways, of the seriousness with which I view each of those incidents, it is my view that a sentence of detention in a Youth Justice Centre of less than 12 months, even if additional to the period of six months which you have already served in adult custody if it were to be not reckoned served, is not sufficient to achieve the sentencing purposes that I must take into account, having regard to the number and nature of the offences that occurred here.
56A Community Corrections Order following a term of imprisonment of less than 12 months is also a significant punishment. Indeed, under the principles and explanations in Boulton's case[4], it must be considered as real punishment with or without the condition of unpaid community work. I also take into account what the Court of Appeal said in Boulton's case, that the use of community corrections orders should be considered especially where rehabilitation for the offender in question, such as a young offender, is an important sentencing factor, as it is in this case.
[4] Boulton
57I have decided, therefore, to impose terms of imprisonment, which means in adult prison, and that you must serve longer than you have already served, but that the ultimate term will be followed by a Community Corrections Order. Would you stand up now please.
58Abdulwali Arale, I have to go through each of the indictments separately and then I will tell you the total effect of the sentence.
59On the indictment dealing with the first incident, on the charge of intentionally causing injury, I impose five months' imprisonment.
60On the charge of obtaining financial advantage by deception, one month's imprisonment.
61There were also summary charges on that indictment. On the charges of possessing a controlled weapon and committing an indictable offence while on bail, I impose a community corrections order to last for three months, with the sole condition that you perform 30 hours of unpaid community work. That means that on that indictment, the total effective sentence is five months' imprisonment, with a community corrections order for three months, with 30 hours of unpaid community work. The usual terms of a community corrections order also apply, and I will explain those shortly.
62On the second indictment, dealing with the aggravated burglary, on that charge of aggravated burglary I impose a sentence of eight months' imprisonment, to be followed by a Community Corrections Order of 12 months. On that community corrections order you will be subject to conditions of supervision, and that you must submit to assessment and treatment, as directed, for alcohol abuse; and that you must attend for any programs to reduce the risk of you reoffending as directed. I am not imposing further unpaid community work on that order because it follows imprisonment. There will also be the usual terms of CCO, and I will explain them shortly.
63On the second charge of intentionally causing injury, I impose six months' imprisonment. That means the total effective sentence on that indictment is eight months' imprisonment to be followed by a community corrections order for 12 months.
64On the third indictment of armed robbery, I impose a term of imprisonment of eight months.
65I direct that one month of the sentence from the first indictment and two months of the sentence from the third be served cumulatively on each other and on the sentence imposed on the second indictment, being those for the second incident. That leads, overall, to an effective total sentence of 11 months imprisonment to be followed by a community corrections order of 12 months. The shorter community corrections order will be concurrent with the community corrections order for 12 months.
66I am going to order that part, but not all, of the time you have already spent in prison be declared reckoned served. I am going to order that you - it is my intention - no, I am sorry - I think I rejigged my calculations and it is difficult because of the coming leap February. I am sorry to put everyone through this, I have lost my calculations or I have got them wrong. I order that what I calculate to be 125 days of presentence detention be reckoned served. My intention is that there be two months, in effect, not reckoned served, so that the overall time in custody, although not all specifically imposed as a sentence, is 13 months, or that is what it should be. I will need those to be checked, those calculations.
67I apologise to everyone for this. I thought I had it finalised and I think I may still have an earlier set of figures in front of me.
68On my calculations it means that a little under seven more months needs to be served in prison, but I will need everybody to check the numbers of days. That will be followed by a community corrections order of 12 months with rehabilitative conditions, but with the 30 hours of unpaid community work on the shorter community corrections order that is concurrent to cover the summary offences.
69I need to tell you, Mr Arale, the usual terms of the Community Corrections Order. I know they have been explained to you when you were assessed, but I will repeat them here. You must, within two working days of being released from prison, attend at the nearest community corrections office to where you are living, and that will be clarified where that is and put on the order. You must report to Community Corrections officers within two clear working days of any change of address, of where you are living, or where you are working throughout the whole - in other words, throughout the whole 12 months. You have to keep them up-to-date with the address of where you are living and, if you are working, the address of that.
70You have to obey all lawful instructions and directions of community corrections officers, you have to submit to visits from them if they so require, and you must not leave the State of Victoria without prior permission of Community Corrections officers. Most importantly, you are not to commit any further offences during the time that you are on that order and that is 12 months.
71If you contravene - that is, breach - that order, either by committing any further offences or by not complying with the conditions, you can expect to be brought back in front of me for a contravention hearing. A contravention is, itself, another offence, and I could penalise you for that, but my powers are that, depending on the circumstances of the contravention and what your personal circumstances were at the time, I would either confirm the community corrections order, vary it - that means I could extend its terms, extend the conditions or the time it lasts - or I could cancel it and resentence you for that part of the overall sentence that you have not yet fulfilled. Now, do you understand the terms, and the conditions I have imposed on those orders?
72OFFENDER: Yes.
73HER HONOUR: Do you agree to comply?
74OFFENDER: Yes.
75HER HONOUR: All right. You can take a seat now. Actually, before you do I need to - there is some more to the order. I have decided to make the forensic sample order which was sought against you. That is to enable your DNA to be placed on the State's database. I will limit that order to being one of, what they call a scraping from the mouth, but it is a swab on the inside of your cheek and it is not intrusive and not painful. I must warn you, however, that if you resist the taking of that, authorised officers can use reasonable force to take it. But it should not require such force if you do not resist. The reasons I make that are the circumstances and seriousness of the offending.
76I also make the order that I mentioned, order for compensation, that is the $12 to be paid to the taxi driver. Now, the taxi driver does not get it twice, that is, from both you and Mr Amhed, but it is appropriate that the order be made against each of you.
77I finally must say what your sentence would have been if you had not pleaded guilty to all of these charges. It is an artificial statement, because the degree of - well it is artificial, always, in these cases, and in your case, because I have to divide it between the three indictments, it seems a little more so. But I state that for the first incident, I would have imposed 10 months detention, for the second incident, 18 months detention and for the third, 12 months detention. With cumulation - four months of the first incident and six months of the third incident onto the second incident. That would have led to an effective total of two-years-and-four months, which I would have ordered you to serve by way of a Youth Justice Centre Order. From that, there would have been the entire pre-sentence detention deducted - a little over six months - 187 days. But, in essence, that would have given a substantially longer period for the processes of the Youth Justice system to have been applied to you.
78You can take a seat now while the orders are prepared. Just before that, could we just have confirmation of the address to which - I assume it is his mother's address - to which he is likely to be released from prison. That has to go into the order. Perhaps your instructor, Mr Miller can obtain it from the client's ‑ ‑ ‑
79MR STOUGIANNOS: It's 1/95 ‑ ‑ ‑
80HER HONOUR: My associate needs it to put in the Order.
81MR STOUGIANNOS: Quinn, Quinn Street in Deer Park. Q-u-i-n-n.
82HER HONOUR: While that is being prepared, I do apologise, I have had so many sets of figures here and I got tired with the calculations and I think I lost track of them. Am I correct that it was - the actual presentence detention was 187 days up to and ‑ ‑ ‑
83MR MILLER: Yes.
84HER HONOUR: ‑ ‑ ‑ and not including today.
85MR MILLER: Yes, I agree with that Your Honour.
86MR STOUGIANNOS: Yes.
87HER HONOUR: All right. Now I have imposed a sentence of 11 months, which commences today and that means it embraces a 29-day February of 2016. So there were - so 336 days is the sentence from now and of the 187 days, to add - sorry I have lost my train of thought again. It has driven me rather in circles this one.
88MR MILLER: Well it's three - I don't if I'm going to be helpful but as I read it, 336 days is the 11 months.
89HER HONOUR: Yes.
90MR MILLER: You declared that the 125 days of presentence detention will be already served, so it leaves 209 days which is approximately seven months, which is what you were saying.
91HER HONOUR: Is that ‑ ‑ ‑
92MR MILLER: Yes.
93HER HONOUR: So that -
94MR MILLER: Yes.
95HER HONOUR: But has ‑ ‑ ‑
96MR MILLER: So they marry up with what you'd said prev ‑ ‑ ‑
97HER HONOUR: So does it marry up with what I said. I ‑ ‑ ‑?
98MR MILLER: Yes.
99HER HONOUR: I know it looks, it's very artificial.
100MR MILLER: Yes.
101HER HONOUR: And it was ‑ ‑ ‑
102MR MILLER: Your intention is that he serve another seven months and that comes out to that 209 days, on my reckoning of it.
103HER HONOUR: Taking into account the nature of the six months he's ‑ ‑ ‑
104MR MILLER: Yes.
105HER HONOUR: ‑ ‑ ‑ served, but acknowledge, artificially, keeping the total under 12 months. I toyed with three weeks and it was all too hard to try and construct that.
106MR MILLER: Well, I think that intention's been clearly stated by Your Honour.
107HER HONOUR: All right, thank you.
108MR MILLER: I don't see it being a problem.
109HER HONOUR: Thank you.
110MR MILLER: Unless my friend disagrees.
111MR STOUGIANNOS: No, I take no issue.
112HER HONOUR: Now, do I need to specifically state, I think I do, although I don't think it goes into the order pursuant to s.18, that I am not declaring the balance of the - sorry 187 ‑ ‑ ‑
113MR MILLER: Yes, Your Honour's clearly ‑ ‑ ‑
114HER HONOUR: Mine.
115MR MILLER: ‑ ‑ ‑ got that discretion. It says ‑ ‑ ‑
116HER HONOUR: Yes.
117MR MILLER: ‑ ‑ ‑ declare the PSD or otherwise.
118HER HONOUR: Yes.
119MR MILLER: And Your Honour's electing ‑ ‑ ‑
120HER HONOUR: Yes, so I specifically state there are 62 days of presentence detention which I have not - which I order not be reckoned served, - - -
121MR MILLER: Yes. Your Honour's stated it. I don't know ‑ ‑ ‑
122HER HONOUR: All right.
123MR MILLER: ‑ ‑ ‑ that you need to say anymore.
124HER HONOUR: No. All right.
125MR MILLER: It's clear that that's your intention, so seven months' more that he has to serve.
126HER HONOUR: All right. Now we'll - there should be two community correction orders produced. Again, the summary charges were difficult to build in. Thank you. Yes. Can they be shown to both counsel just to check they reflect what - that's the CCO. One each.
127All right. Mr Arale, my associate's going to bring these to you to sign. If your instructing solicitor wants to approach too, that's fine. They have been checked but I invite you to read them and check that you understand what they require of you.
128Mr Arale, one's for three months and one's for 12 months, but they'll be - the total's 12 months. They will be running side-by-side. On one of them, the usual terms all apply of not committing offences, not leaving Victoria without prior permission, reporting any change of address, but the only condition imposed is 30 hours of unpaid community work, so that when that unpaid community work's done - and it must be done within that three months - that community corrections order is then, really, fulfilled. But the other one is for supervision and the rehabilitation and treatment programs and I haven't put further unpaid community work on that one, but that 12 months, you have to keep trying to fulfil what you've said you intend to do, to turn over a new leaf, leave those associations behind and get on with starting a new and constructive life.
129(Community-based orders signed and acknowledged.)
130HER HONOUR: I've signed both of those. Those will be copied and copies- I'm well aware Mr Arale can't be removed from the building until I've signed the orders. I have another sentence to commence straight away, although I have to go downstairs and get it hot off the computer press, and it's a question of the timing. This one with the three indictment is requiring PhD-level flexibility from my associate to enter into the system.
131Mr Arale's family's in court. I will allow a minute or so if they want to have a very quick word with him. They're not to have contact, just a quick word with him, if they wish, before he's removed from the court.
132MR STOUGIANNOS: As Your Honour pleases.
133HER HONOUR: Sorry, I wasn't watching. He's been taken from the court. I'll stand the court down for five minutes thank you.
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