Director of Public Prosecutions v Ashweel

[2017] VCC 223

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01903

DIRECTOR OF PUBLIC PROSECUTIONS

v

KUAL ASHWEEL

---

JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	9 March 2017
DATE OF SENTENCE:	9 March 2017
CASE MAY BE CITED AS:	DPP v Ashweel
MEDIUM NEUTRAL CITATION:	[2017] VCC 223

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Stefanovic	Director of Public Prosecutions
For the Accused	Mr R. Melasecca	Melasecca, Kelly & Zayler

HIS HONOUR:

1Mr Ashweel, you can remain seated and I will tell you at the end to stand up when I impose a sentence on you.  I am going to read out something, but I will tell you at the start that I am not going to send you back to gaol on this occasion, and I emphasise that because, when I have finished my sentence, I am going to tell you that if you come back to court again you will be
re-sentenced on these offences, and it is unlikely that another court would be so lenient.  So this is the one chance that I am going to give you, and hopefully it will be in your interest.  I will just begin the sentence now.

2On 9 March 2017, you, Kual Ashweel, pleaded guilty to an indictment containing seven charges as follows.

·    Charge 1, theft of a motor vehicle (maximum penalty, ten years' imprisonment);

·    Charge 2, robbery (maximum penalty, 15 years' imprisonment);

·    Charge 3, attempted robbery (ten years' imprisonment);

·    Charge 4, armed robbery (25 years' imprisonment);

·    Charges 5 and 6, attempted armed robbery (20 years' imprisonment); and

·    Charge 7, handling stolen goods (15 years' imprisonment).

3Tendered as Exhibit A and read aloud in court was the prosecution opening.  In summary form, on Sunday 10 April 2016, you in company with other offenders, used a stolen car to effect robbery and armed robbery, and attempt a further robbery and two further armed robberies before a division of the proceeds of this offending saw you receive an amount of $50, which forms the basis for Charge 7.

4I accept that you were not the ring leader involved in this offending, a matter conceded by Mr Stefanovic, who appeared on behalf of the Director of Public Prosecutions.  Nevertheless, even while you were present at the scene, or driving the other offenders on that night, your involvement was significant.  On seeing you in court today, you are an imposing individual, and in some circumstances, would present as very threatening.

5Offending of this type is sadly very common in the community, and the consideration of factors of both specific and general deterrence, and the court's denunciation of your conduct must feature prominently in any sentencing considerations.

6Most fairly in my view, the prosecutor tendered into evidence, a criminal history sheet relating to one of your co-offenders.[1]  This person received a sentence of youth detention of two years and eight months.  He was a person with an extensive criminal history for similar offending, whereas you have no prior offences.

[1]      Exhibit B

7The support network available to you is, in my view, suggestive of you having excellent prospects for rehabilitation, and a low risk of reoffending.

8You are presently 19 years of age and were 18 at the time of the offending.  Notwithstanding your relative youth, the prosecution summary paints a chilling picture of your offending insofar as it clearly impacted upon vulnerable victims.

9There were no victim impact statements available to the court, but it is clear in my assessment, that the overall summary suggests that the offending involving you and your co-accused would have struck considerable fear into the minds of those who were your victims.

10Evidence was called on your behalf from your father, with whom you reside.  I also heard evidence from the community leader, Mr Fayed Moa Altayeb, who has a personal involvement with your family in addition to his role as a leader within the Dinka community.

11You are currently involved as a full time student at RMIT University, studying an Advanced Diploma in Engineering Technology.  Material tendered on your behalf[2] satisfies me that you are due to complete this course at the end of 2017 academic year.  I am also satisfied on the basis of the material from your father and as put by Mr Melasecca on your behalf, that you are working with your father, generally two days per week.

[2]      Exhibit 1

12Also put into evidence on your behalf was a psychological report from
Mr Francois Joubert dated 11 November 2016.  Mr Joubert’s opinion is that a period of pre-sentence detention served in the adult system has been, for you, “a significant eye opener”.  He further comments:

"I believe he has the necessary characteristics and temperament to integrate acceptably with society and contribute positively towards his future goals.  He understands his family and social obligations and has made significant progress since the incidents."[3]

[3]      Exhibit 5

13You indicated a willingness to enter guilty pleas prior to the commencement of the committal proceeding against you on 28 October 2016. The Crown concedes that your early indication of a guilty plea attracts the benefit to you contained in s.6AAA of the Sentencing Act 1991.

14Of further significance to the sentencing disposition is the information that you have provided to police to assist in the prosecution of your co-offenders.  I note also, that you have served pre-sentence detention of 19 days within the adult system.  I accept the submission put on your behalf, that this was for you, very much a wakeup call.

15Although there is no clear reason given for your offending on this night, I am satisfied that your involvement with undesirable co-offenders and the use of cannabis contributed substantially to you, a young man with no prior involvement with police, offending in such a dramatic fashion on this particular day.

16You have been assessed as suitable for a community correction order.  Ordinarily, the type of offending in which you had engaged would demand a sentence of imprisonment, or at the very least, a combined sentence of imprisonment, together with a community correction order.

17I am satisfied in your case, particularly taking into account the authority of Boulton,[4] that a community correction order of a significant period of time, together with appropriate conditions, will provide adequate punishment for your offending, and promote your ongoing rehabilitation.

[4] [2014] VSCA 342

18If you stand up please, Mr Ashweel.  I therefore sentence you as follows.

19You will be convicted of all seven offences and I impose an aggregate sentence of a community correction order for a period of 24 months, with the following special conditions.

20Firstly, that you perform 100 hours of unpaid community service, and secondly, that you attend for drug and alcohol monitoring.  These conditions will be in addition to the usual core conditions attaching to a community correction order.

21I further order in relation to Charge 1, that all driving licences held by you are cancelled and you will be disqualified from obtaining a further licence for a period of one year.

22For the purposes of s6AAA of the Sentencing Act 1991, I state that, had you not pleaded guilty but be convicted after a trial, I would have imposed a sentence of 18 months' imprisonment with a 12 month minimum term.

23Now Mr Ashweel, I am going to hand you the community correction order.  I am just going to reinforce what I said earlier.  If you do not abide by the terms of that community correction order, and you come back to court, you will be re‑sentenced on these offences.

24You have heard what I have said, that if you had not pleaded guilty and I had sentenced you after a trial, and that is not taking account of the matters, I would have sentenced you to a term of imprisonment of a total of 18 months, with a minimum time of 12 months in prison.  So you have, in my view, been dealt with very leniently here today.  You have been given a chance and I urge you to take that chance and to demonstrate to the community and your family and to all of us in Victoria that you can become a useful contributing member of our society.

25OFFENDER:  Thank you, Your Honour.

26HIS HONOUR:  I will give you that community correction order and if that can be signed.  Mr Melasecca, do you want to approach or you have got an instructor here?

27MR MELASECCA:  No.  I will do that, Your Honour, thank you.

28HIS HONOUR:  Thank you.

29MR MELASECCA:  Sorry sir, we are trying to clarify one sentence.

30HIS HONOUR:  Is there a minimum?  I could not find a minimum on that,
Mr Stefanovic.  Is there ‑ ‑ ‑

31MR STEFANOVIC: The licence cancellation under s89.4 of the Sentencing Act 1991 is a must be convicted.

32HIS HONOUR:  Yes.

33MR MELASECCA:  Yes.  That's indeed what my friend says is correct.

34HIS HONOUR:  That is what I thought each - look.  Theft of a motor car, for some reason - well obviously there should be an order and I will just state this.

35It is not particular to Mr Ashweel's case.  There have obviously got to be orders on licences in a variety of offences but it seems to me, there is no point in a court cancelling someone for a very long period because it really just promotes the often irresistible temptation for someone not to get a licence or to breach an order, which I do not want to see.  With the background of this offending, it is really not driving, but robberies and attempted robberies and that is what we want to stop.  The driving can take care of itself but I thought a period of a year's disqualification seemed to me it was reasonable in the circumstances.

36MR STEFANOVIC:  My pleasure.

37MR MELASECCA:  If Your Honour pleases.

38HIS HONOUR:  I will sign that community correction order.

39ASSOCIATE:  Kaul Ashweel, do you agree to abide by the conditions of the community corrections order?

40OFFENDER:  Yes.

41ASSOCIATE:  And is that your signature?

42OFFENDER:  Yes.

43ASSOCIATE:  Thank you.

44HIS HONOUR:  Thank you, Mr Ashweel.  Well you have got your chance.  I urge you to take it with both hands.

45OFFENDER:  Thank you.

46HIS HONOUR:  I do not want to see you back in court again, unless you decide to study law later on.  All right, are there any further matters, gentlemen?

47COUNSEL:  No, Your Honour.

48HIS HONOUR:  Thank you again for your assistance , Mr Stefanovic, and it is nice to see you again, Mr Melasecca, you have not lost your touch.

49MR MELASECCA:  Thank you sir.

‑ ‑ ‑