Director of Public Prosecutions v Aseri

[2017] VCC 1758

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01435

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADEN ASERI

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 & 24 November 2017
DATE OF SENTENCE:	24 November 2017
CASE MAY BE CITED AS:	DPP v Aseri
MEDIUM NEUTRAL CITATION:	[2017] VCC 1758

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:             Sentence – Plea of guilty – Armed robbery
Legislation Cited:     Sentencing Act 1991 - Crimes Act 1958

Sentence:12 months Youth Justice Centre detention; 16 days pre-sentence detention; Section 6AAA declaration: 2 years Youth Justice Centre detention; Compensation order; 464ZF order; Forfeiture order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms I. Andrews	Solicitor for the Director of Public Prosecutions.
For the Accused	Ms S. Seoud	Mel Walker

HIS HONOUR:

1On 15 November 2017, Aden Aseri, you pleaded guilty to one charge of armed robbery committed on 31 January this year.  Tendered as Exhibit A and read aloud in court was an amended summary of prosecution opening. 

2While aged 18 you were residing with your girlfriend in a caravan park in Laverton North.  Together with your co-accused King who was staying with you at the time you agreed to commit an armed robbery.  According to your record of interview King needed money so that his mother would be able to pay her rent and so avoid being evicted.  You agreed to commit the armed robbery with him. 

3Initially you went to a nearby BP service station but you found that it had too many people inside and you moved on to a Caltex service station.  You did a limited reconnaissance of that place then entered and committed the armed robbery and in doing so you threatened the young female attendant with a hammer, saying "I'll smash your hand".  You demanded cigarettes and money.  You left with $375 in cash.  Initially you also took the attendant's mobile phone but when she pleaded for its return you gave it back to her.  In your record of interview you told police "I just thought, fuck, I wouldn't want anyone to take my phone so I gave it back to her". 

4You had used ice prior to the armed robbery.  After the armed robbery you used your share to purchase some drugs and the balance you gave to your
co-accused to give to his mother with the advice that he was not to tell her where the money came from. 

5Tendered as Exhibit B was the CCTV of the armed robbery.  As a result of your actions the female attendant collapsed on the floor in a state of distress. 

6You are now 19 years of age and without prior conviction.  You were arrested on 24 February 2017 after returning to the Caltex service station and being identified by your female victim.  You were interviewed under caution and made full admissions.  You were remanded in custody for seven days until you were granted bail.

7Tendered as Exhibit 1 on the plea was a bundle of documents that include:

(1) Outline of plea submissions.

(2) Report from Ms Alice Crole, psychologist, dated 10 November 2017; and

(3) A letter from YSAS, dated 13 November 2017.

8You were born in New Zealand.  Your father was a violent alcoholic who brutalised your mother often in your presence. 

9According to Alice Crole at paragraphs 18 through to 20 you reported as follows:

"Prior to his parents' relationship Aden informed the writer that his mother was in a lesbian relationship for six years.  During that time her girlfriend had a son named William who Aden calls his brother.  After his parents separated in 2010 Aden's mother recommenced a relationship with her former girlfriend who Aden now refers to as his stepmother.  After completing Year 9 Aden moved to Australia with his mother and sister where they resided in the outer western suburbs of Melbourne with Aden's stepmother.  The couple had a baby girl who is now one year of age. 

"Aden described a difficult relationship with his stepmother.  He recalled that she was once beating his mother behind their locked bedroom door and that he had to break down the door to protect his mother.  He also recalled that he asked his stepmother to take his mother to the doctor the day before she died.  However she did not and he woke up to his mother being deceased the following morning.

"Following his mother's death Aden reported that his stepmother quickly moved into another relationship and evicted him from her house leaving him homeless earlier this year."

10You were diagnosed with ADHD in Grade 1.  You completed Year 9 in New Zealand and moved to Australia with your mother.  You failed to complete Year 10 in Australia in 2013.  In 2014 you commenced a relationship and there was a child born of that relationship in May 2014.  In 2015 you broke with your partner and commenced to use ice. 

11Shortly after being bailed for the instant offence your mother unexpectedly died.  You returned to New Zealand for your mother's funeral but were ostracised by your extended family. 

12Through the Magistrates' Court supervised bail system you were referred to YSAS. You received support from your case worker who gave evidence on your behalf at your plea.  He spoke of his regular contact with you and your commitment to being abstinent from the drug ice.  You were referred to the youth mental health team Headspace and then to Orygin where you came into contact with Ms Crole on a therapeutic basis and had some sessions with her. 

13As it turned out an unfortunate step was taken by you for you moved to Geelong where you could find accommodation and work with a relative.  However, the consequence of this was to disengage you from the support agencies that had previously been performing that very function, support  of you. 

14You have a history of ADHD, post-traumatic stress disorder and depression and have had repeated suicide attempts, the first of which occurred when you were aged but 13 years.  There are two further attempts on your life at your own hands that came about as a result of the death of your mother.  Ms Crole noted in her report:

"Despite this pattern of behaviour however, it has been the observation of the writer that when Aden has secure accommodation, employment, a relationship with his daughter and her mother and a healthy exercise routine, that his mood improves and he is less likely to engage in risk taking and criminal activity."

15Whilst living and working in Geelong you were evicted from your accommodation on or about 30 August in circumstances that were not explained to me.  From that time you were effectively homeless.  On
3 November you were charged with aggravated burglary and remanded in custody and have been so ever since. 

16At the time of your initial plea I was told that you intend to contest this charge.  Your initial plea was adjourned from 15 November to 24 November so that you could prosecute a bail application at the Geelong Magistrates' Court on
23 November.  The bail application was adjourned to 28 November on the magistrate's motion to see what disposition I would impose upon you.  To my mind, the learned magistrate abandoned his responsibility to perform his function uninfluenced  by any disposition that I may arrive at or possibly arrive at in respect of you. 

17I was informed by your counsel that you have no place to live and to my mind this is a precondition to any hope of compliance with a community correction order.  Mr Bell was called once again and advised me of the unavailability of emergency housing for you and persons in your position.  In reality there is no prospect of available stable housing for you. 

18I had you assessed for suitability for both a community corrections order and for a youth justice centre order and I have received reports in respect of the community corrections order under the hand of Ms Radywonik.  She found you suitable.  However, she did so in the knowledge that the community corrections service could only access one night's accommodation for you, a Myki card and a food voucher.  To my mind that situation is scandalous and as I said earlier during the plea would only set you up for failure should a community corrections order be made in your case. 

19In respect to the report of Mr Bell, he finds you suitable for a youth justice centre order.  In my view such an order is appropriate in all the circumstances.  Having read Ms Crole's report on more than one occasion and indeed the contents of the brief, it is my view that you are immature, that you would be at risk if sentenced to a term in adult prison which I regard as being out of the range of appropriate sentences in all respects. 

20The youth justice centre order will be able to provide you with a number of supports to assist you in rehabilitation and to provide you hopefully with the skills which will allow you to be released into the community in circumstances where there is stability in your life with the object being that subject to the supervision of the Youth Parole Board you will not offend again. 

21I take into account as I must the period which you have spent in adult remand since your arrest on 3 November 2017.  I also take into account your plea of guilty and the stage at which it was entered.  Accordingly you are entitled to the benefits that flow to you from that plea which is that it is some evidence of your remorse of which I am satisfied and that it has utilitarian benefit. 

22Doing the best I can, taking into account the objective circumstances of the offending which I regard as serious and your personal circumstances which I regard as parlous and applying sentencing principle I sentence you to
12 months in a youth justice centre and I declare that you have spent seven days by way of pre-sentence detention. 

23MS SEOUD:  Your Honour, the pre-sentence detention is a bit more than that because Your Honour remanded him on the last plea date.

24HIS HONOUR:  Thank you very much.

25MS SEOUD:  So my friend and I have calculated that the appropriate number is 16 days.

26HIS HONOUR:  Thank you very much for that.

27MS SEOUD:  As Your Honour pleases. 

28HIS HONOUR: I will amend my sentencing reasons when they are returned to me as I declare that you have spent 16 days by way of pre-sentence detention. Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have sentenced you to two years in a youth justice centre.

29Now, Madam Prosecutor, is there anything that needs to be done further in respect of this young man?

30MS ANDREWS:  Yes, Your Honour.  A number of ancillary orders are sought.  They are a forfeiture order in relation to the meat cleaver and hammer.

31HIS HONOUR:  Yes.

32MS ANDREWS:  An application for a forensic sample order and a compensation order is also sought in the sum of $375 for the service station.

33HIS HONOUR:  What do you say to each of those orders, Ms Seoud?

34MS SEOUD:  No, none of them are opposed. 

35HIS HONOUR:  Now, Mr Aseri, I have granted the application in respect to the forensic sample and that is what is known as a buccal swab.  It is a scraping of the inside of your mouth.  I have granted that order because of the seriousness of the circumstances of your offending warrant it, that it was not opposed and the granting of the order is in the public interest.  I need to inform you that if at the time of the request for the forensic sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the Victorian police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.  I doubt very much, Mr Aseri, whether it will prove to be a problem.  I have also made the other orders and I hand them down.

36MS ANDREWS:  If the court pleases.

37MS SEOUD:  As Your Honour pleases. 

38HIS HONOUR:  Mr Bell, I want to sincerely thank you for your assistance. 
Mr Aseri, the regime at the youth justice centre is something that you can take advantage of.  I want you to suck it dry.  I want you to use everything that is there to assist you not to come back to court again.  All right.  Just use it up so it improves you and it helps you get along with your life, all right.  Thank you very much.  Remove the young prisoner.  I would like to thank counsel for their assistance.

39COUNSEL:  As Your Honour pleases.

40HIS HONOUR:  What time Monday?  We will adjourn until 10.30 Monday. 

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