Director of Public Prosecutions v Ashweel

[2017] VCC 2023

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-17-01624

DIRECTOR OF PUBLIC PROSECUTIONS

v

Kual ASHWEEL

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JUDGE:	DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	5 December 2017
DATE OF SENTENCE:	15 December 2017
CASE MAY BE CITED AS:	DPP v Ashweel
MEDIUM NEUTRAL CITATION:	[2017] VCC 2023

REASONS FOR SENTENCE
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Subject:  Criminal law
Catchwords:            Theft; Robbery; Breach of CCO; Sentencing considerations
Legislation Cited:     Crimes Act 1958
Cases Cited:            R v Evans [2003] VSCA 223; Poutai v R [2011] VSCA 382
Sentence:                 4 years 1 month imprisonment with 2 year minimum

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms R. Champion	Office of Public Prosecutions
For the Accused	Mr R. Melasecca	Melasecca Kelly & Zayler

HIS HONOUR:

1On 5 December 2017 you, Kual Ashweel, pleaded guilty to an indictment containing two charges of theft and three charges of robbery.  Details of your offending are set out in the Amended Summary of Prosecution Opening dated 21 November 2017.[1] 

[1]Exhibit A

2At the time of your offending you were subject to a community correction order which had been imposed upon you on 9 March 2017.  You have pleaded guilty to a further charge of breaching that community correction order.

3

The offending to which you have entered pleas of guilty occurred on 20 April 2017 in the evening, over a relatively short space of time.  The circumstances of your offending in broad terms involved you driving, in a stolen car, a number of younger co-offenders, firstly, to a service station and, later, to two McDonald's restaurants where thefts and armed robberies occurred.  It is not alleged against you that you were aware that any of your co-offenders were armed, and

I specifically exclude any consideration of your knowledge of that level of offending in imposing sentence upon you.  I also take into account the fact that, as the driver of the vehicle, you were not able to control the level of offending that occurred by the co-offenders inside the various premises. 

4Nevertheless, the circumstances of your offending involved wearing masks, gloves and head coverings and strongly suggests that the offending was pre‑planned and could in no way be described as opportunistic.  Further, the attempts that you made to evade capture by police in the circumstances of your arrest suggest, to my mind, a high level of culpability insofar as your own behaviour was concerned. 

5A further aggravating factor is that your offending occurred only six weeks after you had been sentenced to a two-year community corrections order which was imposed upon you for similar offending in company with other offenders in April 2016.  Those circumstances warrant the court being far more cautious in terms of your prospects of rehabilitation than was previously the case.

6

The maximum penalty for each of the offences of theft is ten years' imprisonment.  The maximum penalty for each of the offences of robbery is

15 years' imprisonment.  The maximum penalty for breaching a community correction order is three months' imprisonment.  Notwithstanding these maximum offences, I must be mindful of current sentencing practices which, in relation certainly to the offences of theft and robbery, show that far lesser levels of sentence are actually imposed upon offenders. 

7Nevertheless, the offending in which you were involved is most concerning to the community, as it not only involves a disregard of other people's property, but it has the real potential to strike fear and terror into your victims and other members of the community who witness such outrageous and potentially violent conduct at close quarters.

8I have read the victim impact statements of one of the young women working in a McDonald's restaurant who clearly bears long-term emotional scars which is at least indirectly related to your involvement in this overall offending.[2]

[2]Exhibit B

9Your criminal history record was tendered in evidence before me.  I note that apart from the offending to which you were sentenced to a community correction order earlier in 2017, you have no prior criminal history.

10You are 20 years of age.  I take into account your pleas of guilty that, to my mind, offer more than utilitarian benefit, and I note also the submissions that were made on your behalf by Mr Melasecca forcefully submitting that the circumstances of you not seeking to apply for bail indicated a realisation on your part that your offending was unacceptable to the community and would justly warrant a significant prison term.  I accept this submission made on your behalf, and I also accept that your family and other members of the Sudanese community have rallied to support you and to assist in your rehabilitation.  I am particularly impressed with the attempts made by your father, Balbek, to ensure that in future you will resist temptations to again fall into this highly antisocial and unacceptable criminal behaviour.

11I have also noted positively the comments made by Ms Anne Hooker, the youth development officer at Port Phillip Prison.  I note that whilst in custody you have been, in recent times, a member of the Young Offenders Program, and her evidence that the mentors available to you have made a great change in your attitude and your behaviour are taken into account on your behalf.

12I was also impressed by the evidence given on your behalf by Mr Crewdson, psychologist, who prepared a report dated 1 December 2017.[3]  I am also prepared to accept, as put by Mr Melasecca, that your co-offenders, although younger, had in some cases far more extensive histories of criminal offending than yourself. 

[3]Exhibit 1

13

Mr Melasecca also tendered on your behalf a bundle of certificates relating to the educational courses that have been undertaken by you,[4] including a letter from RMIT University, noting that you had been previously enrolled as a second year full-time student studying for an advanced diploma in electrical engineering technology.  Sadly, your academic placement appears to have been discontinued since August of this year due to a failure to pay fees. 

I, nevertheless, accept as a positive in your case that you do have a capacity for further study, and again this is a matter that can be relevantly considered in terms of your prospects of rehabilitation.

[4]Exhibit 2

14You have been assessed as suitable for a community correction order notwithstanding your earlier contravention by this present offending.  You were assessed as being of medium risk of re-offending when you were interviewed on 8 December 2017.  Notwithstanding the Corrections' assessment, I regard your offending as serious and I am of the view that it warrants an immediate term of imprisonment.

15

I take into account the sentences imposed on your co-offenders, although I note they were all sentenced under the youth justice system where very different considerations must apply to a sentencing court.  Although the appellate courts have stated that some regard can be had to the sentence imposed to

co-offenders in the Children's Court, there is considerable difficulty in ensuring any true parity between sentencing when one co-offender is sentenced as an adult and the other as a child. 

16I have considered, in particular, the submissions made on your behalf, both orally and in writing, by Mr Melasecca.  I have also been guided by reference, in particular, to the appellate decisions in Evans[5] and Poutai.[6]  Whilst I accept the parity principle must be given some regard in imposing a just sentence upon you, it is of less relevance than if your co-offenders had also been sentenced as adults.  Although your behaviour whilst incarcerated suggests a reasonable prospect of rehabilitation and lessens the need for specific deterrence in your case, I am nevertheless of the view that just punishment for this nature of offending must involve considerable emphasis on protection of the community and general deterrence. 

[5]R v Evans [2003] VSCA 223

[6]Poutai v R [2011]VSCA 382

17I will pass sentence on you now.  If you would please stand up.

18Mr Ashweel, you are sentenced as follows.

19On Indictment H11095260, on the first charge of theft involving a motor vehicle, you are convicted and sentenced to a term of imprisonment of one year. 

20On Charge 2, being robbery of the Caltex service station in Mount Waverley, you are sentenced to 18 months' imprisonment, and Charge 2 forms the base sentence.

21On Charge 3, being theft at the Caltex service station, Mount Waverley, you are sentenced to 12 months' imprisonment.

22On Charge 4, the robbery at McDonald's Restaurant in Springvale, you are sentenced to imprisonment for 18 months.

23On Charge 5, the robbery at McDonald's Restaurant in Chelsea Heights, you are sentenced to imprisonment for 18 months. 

24The offending in relation to each of these charges occurred within a short space of time, but it did involve individual victims.  Some degree of cumulation is therefore appropriate.

25I direct Charge 2 as the base sentence, that six months of the term of imprisonment imposed for both Charges 1 and Charges 3, Charges 4 and Charges 5 be served cumulatively upon each other and cumulatively with the sentence on the Charge 2.  That is a total effective sentence in relation to that indictment of three years and six months.

26I declare that you have served 238 days in pre-sentence detention not including this day - is that figure correct, Ms Champion?

27MS CHAMPION:  Yes, Your Honour.

28HIS HONOUR:  And I direct that that be noted in the records of the court.

29In relation to the charge of breaching the community correction order, you will be convicted and sentenced to a term of imprisonment of two months.  I direct that one month of that sentence be served cumulatively on the sentence already imposed in relation to Indictment H11095260. 

30I should just pause there.  I propose to set a minimum term of two years' imprisonment in relation to that indictment, and I think I should specify that now before I move to the other indictment.

31I should also make a declaration pursuant to s.6AAA of the Sentencing Act that but for your guilty plea, I would have imposed a total effective sentence in relation to that offending in that indictment to five years with three years and three months as a minimum before being eligible for parole. 

32In relation to Indictment G11097701, I order that the community corrections order imposed upon you on 9 March 2017 be cancelled.  I re-sentence you in relation to the seven counts on that indictment to an aggregate term of imprisonment of 12 months, and I direct that six months of that be served cumulatively upon the sentence imposed in relation to the earlier indictment, and the total effective sentence in relation to both indictments is, therefore, four years and one month. 

33I declare that you have served 33 days pre-sentence detention in relation to Indictment G11097701. 

34I further order, pursuant to s.89(4)(c) of the Sentencing Act, that upon your conviction for the theft of a motor vehicle, any driving licences or permits held by you are cancelled and you are disqualified from obtaining a driver's licence or learner's permit for a period of two years from today's date.

35Now that concludes my sentencing remarks.  I have fixed a minimum term of two years' imprisonment and I have taken into account pre-sentence detention of 238 days, and on my calculation the total effective term upon cumulation for both indictments is four years and one month.

36MR MELASECCA:  May it please Your Honour.

37HIS HONOUR:  Is my maths correct, Mr Melasecca?

38MR MELASECCA:  It is, Your Honour.  I'm just wondering whether the declaration - I know that Your Honour has made a declaration of 238 days on the first presentment.

39HIS HONOUR:  That's on the current one, yes.

40MR MELASECCA:  But just to avoid confusion, it would appear that the total pre-sentence detention, once Your Honour imposes the minimum of two years, would then be 238 plus 33.

41HIS HONOUR:  That's correct.

42MR MELASECCA:  So that would make a total PSD of 269 days, I dare say.

43HIS HONOUR:  No, 271.

44MR MELASECCA:  Two seventy-one.  Yes.  I think that even though Your Honour has done it as you have, it may well be, for the record, it might be more effective to say that overall the end result would be that the sentence that Your Honour has declared with a minimum of two years and pre-sentence of 271 days, yes?

45HIS HONOUR:  Yes.  Look, that's the ‑ ‑ ‑

46MR MELASECCA:  That's the intention.

47HIS HONOUR:  That's the intention, Mr Melasecca.

48MR MELASECCA:  May it please Your Honour.

49HIS HONOUR:  Mr Melasecca, in a perfect world I would have liked to have seen Mr Ashweel ready to go back to his studies by the next year, but it's going to be the year after ‑ ‑ ‑

50MR MELASECCA:  I understand, sir.

51HIS HONOUR:  ‑ ‑ ‑ taking it into account, but it's ‑ ‑ ‑

52MR MELASECCA:  Yes, I understand, Your Honour, and I am sometimes concerned about Corrections, Your Honour, and whether they get it right, but I ‑ ‑ ‑

53HIS HONOUR:  Yes, I'll just ‑ ‑ ‑

54MR MELASECCA:  Now that Your Honour has emphasised that, I know that we will be able to act on that.  Thank you, sir.

55HIS HONOUR:  I think that's probably right.  Ms Champion, I thought it appropriate to declare the PSD separately in relation to both indictments ‑ ‑ ‑

56MS CHAMPION:  Yes.

57HIS HONOUR:  ‑ ‑ ‑ but it nevertheless amounts to - it's not as though the PSD is taken off concurrently.

58MS CHAMPION:  No.

59HIS HONOUR:  It's a total amount of PSD.

60MS CHAMPION:  Yes.

61HIS HONOUR:  So the figure that Mr Melasecca and I had just discussed of 271 days in total ‑ ‑ ‑

62MS CHAMPION:  Yes.

63HIS HONOUR:  ‑ ‑ ‑ is to be applicable in relation to the total sentence that I have imposed.

64MS CHAMPION:  Yes, Your Honour.

65HIS HONOUR:  Thank you.

66MS CHAMPION:  I agree with that.

67HIS HONOUR:  All right.

68MR MELASECCA:  May it please Your Honour.

69HIS HONOUR:  All right, thank you.  Mr Ashweel, it is always difficult sentencing anyone, particularly a young man, and I hope that you learn by this and you can carry on with your life productively later on.  You can now go with the Corrections officer, please.

70MS CHAMPION:  Just one matter, Your Honour.  It's a bit technical, and I don't know the answer off the top of my head, but Your Honour did make a 6AAA declaration in relation to the first indictment ‑ ‑ ‑

71HIS HONOUR:  I'm sorry, I didn't do it.  Yes.  In relation to the earlier indictment, I had my sentencing remarks and the 6AAA would have been 15 months.

72MS CHAMPION:  Thank you, Your Honour.

73HIS HONOUR:  Mr Ashweel, you can now go with the Corrections officer.

74I am sorry about the difficulty.  It's particularly tough when you have got an offender waiting to be sentenced if these delays occur.

75MR MELASECCA:  May it please Your Honour.

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