Director of Public Prosecutions v Basa
[2024] VCC 851
•6 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01731
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDIRAHMAN BASA |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 & 28 May 2024 | |
DATE OF SENTENCE: | 6 June 2024 | |
CASE MAY BE CITED AS: | DPP v Basa | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 851 | |
REASONS FOR SENTENCE
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Subject:Criminal Sentence
Catchwords: Armed Robbery, Imprisonment, Substance Abuse, Young offenders
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:R v Renzella [1997] 2 VR 88; Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) VSCA 62; Mills v R [1998] 4 VR 235; Azzopardi v R (2011) 35 VR 43; DPP v Basa [2024] VCC 158
Sentence: 12 months' imprisonment - four month non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Plummer | Office of Public Prosecutions |
| For the Accused |
HER HONOUR:
1Abdirahman Basa, you have pleaded guilty to:
·One charge of armed robbery contrary to s75A of the Crimes Act 1958 (Vic), which carries a maximum penalty of 25 years' imprisonment (Charge 1).
Sentencing Act Provisions
2Armed robbery is a category 2 offence pursuant to s3(1) of the Sentencing Act 1991 (Vic), where the offence is committed in company. As a result, when sentencing an offender for a category 2 offence, the court must impose a term of imprisonment, unless the offender falls within one of the exceptions set out in s 5(2)(H) of the Act.
Circumstances of offending
3The circumstances of your offending were set out in the Summary of Prosecution Opening tendered as Exhibit A on the plea. This offending occurred on 16 September 2022.
4There are five co-offenders in this matter, Elliot Rayion,[1] Maurice Beck,[2] Van Hill,[3] Cesar Hart[4] and Donald Kim.[5] You were the oldest of the offenders, being 18 at the time.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
5The victims in this matter are Sean Kelly, Archie Wright, Ashley Welander, and Jayden Lynch. At the time of the offending they were all aged between 15 and 16.
6On Friday 16 September 2022, at about 1 pm, the four victims met up at Eastland Shopping Centre. It was school holidays. They visited various shops and the food court over the course of a couple of hours.
7At about 1.50 pm, a silver Toyota wagon, registration ending in 1CU was captured by Eastlink toll records, travelling from Springvale Road towards Ringwood on the Ringwood bypass.
8At about 3 pm, Kelly, Wright, Welander and Lynch walked from Eastland to the bus stop on Warrandyte Road in Ringwood. While waiting, they sat on a bench at the bus stop. They noticed six males wearing masks or balaclavas nearby.
9A short time later, you and your co-accused approached the victims. Your group demanded their mobile phones. You and Rayion each gestured to the complainants to indicate that you each had a large knife or machete concealed in your waist bands. You threatened to stab and slap them if they did not comply.
10During the incident, Kelly was told to log out of his Apple ID. He was having some difficulty remembering his passwords. He was panicking and shaking. He believed that if he did not do what he was told, he would be beaten or stabbed. An unknown male from your group kicked Kelly in the head. Kelly then gave his Apple iPhone and PIN to Rayion. Wright also gave his Apple iPhone X to Rayion.
11You then told Lynch to provide the PIN to unlock Lynch's phone. You told him to log out of his Apple ID. Lynch tried to log out but got his password wrong. Lynch heard you say, 'Should I stab him?'. He was very scared. He could see the handle of your knife. He feared he would be stabbed. He managed to log out of his Apple ID and subsequently gave his phone and Apple Airpods to you. You and your co-accused then ran away, north on Warrandyte Road.
12Your victims were shaken up. They walked back to Eastland to the food court because they felt safer there amongst lots of people. Welander called his father who picked them up and drove them to the Ringwood police station.
13At about 3.20 pm the Toyota was again captured by Eastlink tolls, travelling this time from Ringwood past Springvale Road, north towards the city on the Ringwood bypass.
14Call charge records show that phones belonging to you and a number of the co-accused were used in the Ringwood area around the time of the alleged offence.
15On 16 September 2022 at about 3.30 pm, Kelly's mother used 'Find my iPhone' to track Kelly's mobile phone. At about 4 pm, Nicole Kelly phoned her son’s iPhone. Beck answered the call and spoke to her briefly before ending the call.
16At about 4.10 pm Beck called Nicole Kelly from a private number. He demanded money for the mobile phone and verbally threatened her. At about 4.50 pm Beck again called Nicole Kelly from a private number. Police intercepted and recorded this call.
17Call charge records of you and your co-accused indicated the location of your phones shortly after the alleged armed robbery, tracked to Werribee, Hoppers Crossing and Wyndham Vale. This coincides with the location of Kelly's stolen Apple iPhone shortly after the alleged armed robbery.
Search Warrants
18On 12 October 2022, police executed a search warrant at your address in Tarneit. Items were found including an Apple iPhone with a red cover on the bed in the front bedroom. The phone was examined. It contained:
· a photograph of you in a vehicle wearing a balaclava, brandishing a machete in a green sheath;
· a message sent by you to your employer on 16 September 2022 advising that you would not be coming to work, saying 'I fractured my elbow boss'; and;
· a video recording depicting Beck's phone conversation with Nicole Kelly. Beck can be heard demanding money from Nicole Kelly for the return of Kelly's mobile phone and threatening that he knew where she lived.
19On the same day, during a search of Cesar Hart’s premises, police found a machete in a green sheath on a bed.
20On 22 November 2022, during a search of Donald Kim’s premises, police found a mobile phone. It contained:
·
a video titled 'Demon time', recorded using your Instagram account name 'Steppa030'. This video was recorded from inside the Toyota, on
16 September 2022. You are depicted in the video, wearing a surgical mask and brandishing a black machete. Beck is also depicted, brandishing a small tomahawk axe. Other co-accused and another unidentified male also appear in the video; and
· there was also a video recorded at 4.10 pm from inside the Toyota, which shows Beck’s phone conversation with Nicole Kelly whose phone number is visible on the phone being used by Beck. (This video is the same footage that was found by police on your phone, though it was originally recorded on Donald Kim’s phone).
Arrest and Record of interview
21On 12 October 2022, you were arrested at your home and taken to the Werribee police station where you were interviewed by police. During the interview you said that you didn't know anything about the alleged armed robbery. You stated that you had never been to Ringwood. You provided police with your phone number. You identified the red phone that police had seized as belonging to you. You provided the PIN to this phone. You confirmed that the iPhone 12 was in a red case and that was also yours.
Victim Impact
22None of the teenagers that you robbed have provided a victim impact statement. Archie Wright’s father provided a meaningful victim impact statement on his son’s behalf.
23Mr Wright describes his observations of the significant changes that have occurred in his son Archie following the attack. He details how Archie left school following the incident, and how he spends his time isolated and disengaged from his social group and other aspects of his life. He discusses how Archie continues to struggle with his mental health and maintains irregular sleep patterns.
24Clearly, your offending has had a profound and lasting impact on not only Archie Wright, but self-evidently it would have been the case in relation to your other victims. That your victims, all young teenagers, were genuinely terrified for their safety, goes without saying. Your offending strikes at the heart of our community’s expectations of safety and security. People, especially young and vulnerable people, should be free to go about their lives, free from harm or fear of attack.
Procedural History
25This matter came before me initially as a sentence indication hearing. That I was to be the presiding judge was by agreement of the parties prior to the matter coming before me. I have previously sentenced you on 27 February 2024 for other subsequent offending on case number CR-23-01344.
26On the morning of the hearing in the current proceedings, you indicated your intention to plead guilty before the sentence indication hearing began. At that stage you had the benefit of experienced legal representation. Your counsel, in anticipation of the sentence indication hearing, had prepared submissions on your behalf. However, after indicating your intention to plead guilty, but before you were formally arraigned, you elected to represent yourself. Your counsel, being no longer briefed in the matter, withdrew from the hearing but remained in the body of the court as a courtesy. She was also present upon the resumption of the plea the following week, but she did not represent you.
27Pausing there, I note that not only did you determine that you intended to represent yourself upon entering your plea, but you indicated that you did not wish to make any submissions or say anything further on your own behalf. I had given you the opportunity to consider this further when the plea returned before me a week later and I invited you to take further time to reconsider, should you wish. Furthermore, on each occasion, you indicated that you did not wish for me to have regard to the submissions made on your behalf in preparation of the sentence indication hearing.
28Accordingly, they have not been tendered into evidence and I will not refer to them throughout my reasons for sentence. However, there are matters that I must and will take into account in mitigation pursuant to legal principles.
29I also note that upon the return of the matter last week, I indicated it was my intention to have a further Forensicare assessment of you. I note that you were earlier assessed by Forensicare in February of this year. A further report has been prepared by the Mental Health Advice & Response Service, which indicates that you are currently participating in regular reviews of your mental state and risks by the Forensicare Metropolitan Remand Centre-based medical team. This team includes a psychiatric registrar and a consultant psychiatrist. The report indicates that, should there be any concerns about a change in your mental state or risks, then you could be classified to transfer to another correctional facility where more assertive multi-disciplinary mental health review and treatment interventions are available.
30When I sentenced you in February this year, I took into account a number of the principles that I have already alluded to a moment ago. These principles, and your personal circumstances, were set out in my previous reasons for sentence. Having sentenced you a few months ago, I am obviously familiar with your personal circumstances and the legal principles that have specific application in sentencing you. As I raised in court with yourself and the prosecutor, I intend to have regard to my earlier reasons for sentence. As I understand it, you did not object to this. Again, however, you do not wish to say anything on your behalf. As a matter of fairness to you, I take the mitigating matters, already known to the court by virtue of the earlier proceedings, into account
Prior Criminal History
31You have admitted your prior criminal history. Specifically, you were sentenced (following appeal from the Melbourne Children’s Court to this court) on 28 February 2022 to 18 months' detention in a Youth Justice Centre for a variety of offences including armed robbery, robbery, affray, intentionally cause serious injury in circumstances of gross violence, theft of motor vehicle, drive motor vehicle without permit, unlawful assault and robbery. You were granted parole in April 2022, after serving 9 months of that sentence. Having been provided with the summaries for these offences when I sentenced you earlier this year, I observed in my sentencing remarks that they reflect concerning, violent behaviour.
32Since then, you spent time on remand for two other matters, where the charges were later withdrawn. You were remanded in custody on 16 May 2022 and released on Youth Justice supervised bail on 29 July 2022. You were also remanded on 18 November that year and released on 6 March 2023. You spent 185 days in custody regarding these two matters. This time in custody was taken into account pursuant to principles in R v Renzella[6] when I sentenced you in February this year.
[6] [1997] 2 VR 88
33You were on bail and youth parole at the time of this offending. This is an aggravating feature. As I said a moment ago, on 27 February 2024, you were sentenced by me on indictment CR-23-01344 to a total effective sentence of 4 years and 5 months, with a non-parole period of 2 years and 10 months for two counts of armed robbery, dangerous driving while pursued by police and conduct endangering persons which occurred on 23 March 2023. Pre-sentence detention of 336 days was declared and reckoned as time served.
34On 4 March 2024, you were sentenced at the Werribee Magistrates’ Court to three months' imprisonment to be served cumulatively on the sentence imposed by me in February this year.
35The offending here pre-dates the offending for which you are currently undergoing sentence and I must treat it as such. However, the fact that the armed robbery, for which I sentence you now, occurred before the other offending for which you are serving sentence, does not mean that I disregard the fact that you have been sentenced for other violent offending. It is relevant when considering the question of totality, and the time you have spent in custody for that offending and for offending for which you were sentenced in the Magistrates Court. It is also relevant to your prospects of rehabilitation. Corrections Victoria have advised that you will be eligible for parole on 24 April 2026. Your sentence will lapse on 25 November 2027.
Co-offenders
36Turning to the details of your co-offenders.
37Mr Rayion was aged 16 at the time of the offences. He pleaded guilty at the Melbourne Children's Court to armed robbery, commit indictable offence whilst on bail, possess controlled weapon as well as 28 other unrelated charges. He was convicted and ordered to be detained in a Youth Justice Centre for six months.
38Maurice Beck was 17 at the time of the offending and pleaded guilty in the Melbourne Children's Court to a number of briefs. He was sentenced without conviction to a youth supervision order.
39Cesar Hart’s charges were struck out to due him being found to be doli incapax.
40Van Hill had a contest mention on 20 February 2024 regarding the issue of doli incapax, which is yet to be determined.
41
Donald Kim was born in February 2006, and had all charges struck out on
23 January 2024.
42The prosecution submits that parity is less of an issue here given the age of your co-offenders, the fact that you were on bail and youth parole at the time of offending, and having regard to your antecedents. I accept this, but nonetheless I must have regard to issues of parity, and I do so.
Plea of Guilty
43Your guilty plea came following a contested committal, where three of the complainants were cross-examined. You made no prior offers to resolve the matter by way of a plea of guilty. Your plea of guilty occurred on the date of the sentence indication hearing. It is therefore not an early plea. Notwithstanding this, I accept that your plea of guilty has some utilitarian benefit. You have accepted responsibility for your actions, and this is indicative of some degree of remorse. Although not at the earliest opportunity, your plea has spared the public the expense of a trial and has spared your victims from having to give evidence again and indeed has spared one of the victims from having to give evidence.
Nature and Gravity of Offending
44The offence of armed robbery is serious. This is reflected in the maximum penalty applicable. That the parliament has seen fit to impose a mandatory term of imprisonment where the offence is committed in company, reflects the seriousness with which this type of offending is regarded.
45The prosecution submitted, and I accept, that this armed robbery was relatively serious. There was a degree of pre-planning, although it was somewhat opportunistic. You targeted vulnerable school-aged teenagers. It was brazen and reflects the utter disregard that you had at the prospect of being apprehended in the commission of the offence. You attacked in the company of a number of other offenders. This was cowardly behaviour, designed to instil fear in your victims. You and your co-accused attempted to conceal your faces using masks or balaclavas.
46Significantly, you and one other member of your group were armed with either large knives or machetes, weapons that you chose to incite fear in your victims. These weapons carry great potential for injury and the victims you chose were ‘soft’ targets. No young teenager should have to endure a frightening experience like this, resulting in a loss of their possessions, whilst out for a trip to a shopping centre with their friends.
Personal Circumstances
47In setting out your personal circumstances, I have had regard to my previous sentence on indictment CR-23-01344.[7] I note that when setting out my reasons for sentence, I made reference to a Forensicare report prepared by Dr Joseph Sakdalan, as well as a Youth Justice report. Matters raised in those reports cover both your personal history, including your mental health and substance abuse issues. I intend to adopt those matters here and will refer to them again now.
[7] DPP v Basa [2024] VCC 158
48You were born in December 2003. You were 18 at the time of the offending. You are now 20 years old. You were born in Ethiopia to parents of Oromo ethnicity. When you were two years old, your family left Ethiopia due to the persecution of your father who had been a soldier defending the Oromo ethnic group against the Ethiopian government. Your escape from the county was tumultuous, as you passed through multiple war zones, which caused you and your family great distress. At one stage, you were separated from your family, and you were subsequently hospitalised. Your family spent three years in harsh conditions at the Dadaab refugee camp near the Kenyan-Somali border.
49There you witnessed war and many violent and horrific acts. Your father suffered a pierced lung whilst you were in the camp which was not properly treated. He passed away whilst you were in the refugee camp. After his death, your mother re-partnered with Mr Hassan Noor, who was also in the same camp.
50You eventually arrived in Australia with your family and stepfather in 2009 on refugee visas and settled in Hobart. At the time, you and your family did not speak English. You were initially placed in temporary accommodation before successfully obtaining a rental property. Your stepfather worked in various jobs as a mechanic, taxi driver, interpreter, to name a few, in order to financially support to family.
51After settling into Hobart, conflict within the family home, perpetrated by your stepfather against your pregnant mother, forced you with your mother and siblings to flee to Adelaide, where you had no familial contacts or friends. Your family stayed in a hotel and then eventually in the homes of members of the local African community. During this time, you spent a short time at a primary school in Adelaide. Your mother and your siblings eventually returned to Hobart with your stepfather after approximately four months, along with yourself.
52
In 2015, your family moved to Victoria. Eventually, when you were around
14 years old, your mother finally separated from your stepfather.
53You are the eldest of six children. Before your remand and detention in a Youth Justice Centre in 2021, you resided in the family home with your mother and other siblings. You have also spent a short time in a residential facility in Footscray. You have continued to receive support from your mother whilst in custody.
54You commenced grade 1 in Tasmania, although you did not yet speak English, and likely as a result, you experienced bullying and racism from an early age.
55Your education in Australia has also been tumultuous. You attended three different primary schools and three different high schools as your family moved around. I take this into account, and I do so bearing in mind the principles set out in Bugmy v The Queen.[8]
[8] (2013) 249 CLR 571
56You completed up to year 10 at Manor Lakes College in Wyndham Vale in 2019. You purportedly enjoyed going to school however, like many, disengaged in 2020 and 2021 due to the COVID-19 pandemic when you and your fellow peers switched to online learning.
57You have a limited but not absent employment history. Your first started work during high school in a fish and chip shop, and whilst subject to a Youth Justice parole order, you worked as a labourer in steel fixing.
Childhood Deprivation
58Your childhood was characterised by significant deprivation, disadvantage and exposure to extreme violence. In Australia you have experienced family violence, and unstable living environments, which has also disrupted your education. As per my previous findings, I accept that your profound deprivation and exposure to violence during childhood, is relevant to the court’s assessment of your moral culpability and general deterrence, consistent with what the High Court said in Bugmy v The Queen.[9]
[9] (2013) 249 CLR 571
59The effects of childhood deprivation do not diminish with time and early childhood trauma can be very significant and enduring. However, whilst a disadvantaged background may have the effect of reducing moral culpability, it will also increase the importance of protecting the community. I have taken this into account and moderated your sentence accordingly.
Forensic History and Custodial Experience
60As I said previously, it is clear that you have had more than a fleeting contact with the criminal justice system. You have had involvement with Youth Justice and there is something of a complex history regarding the supports made available to you.
61In November 2021, you were sentenced to an 18-month Youth Justice Centre Order for what can only be described as serious offending. Some of the offences are particularly relevant here, notably two priors for armed robbery, one of which involved the use of a knife held to a Coles Liquorland female employee’s stomach in the commission of a robbery when you were 17, another involving an armed robbery in company whereby a knife was brandished by one of the offenders in the robbery of a milk bar at 8:30 am when the owner was present with his two primary school aged children.
62Significantly, your prior history includes charges of causing serious injury intentionally in circumstances of gross violence. This related to a pre-arranged confrontation with others, which resulted in you giving chase to two victims onto a bus, culminating in you stabbing one with a machete and another stabbed by a co-offender. In that case, the offending occurred in the presence of passengers on the bus. One of your co-offenders filmed the attack. One of your victims suffered a perforated bowel and his finger was partially severed.
63You served nine months in a Youth Justice Centre and you were released on youth parole on 28 April 2022. According to a pre-sentence report, your time in youth detention was marred by a number of incidents.
64However, as you were remanded twice during the youth parole period, the first in May and again in November 2022, you reportedly did not get the full benefit of supports and supervision within the community. It seems you were held on remand for six and a half of the nine months on youth parole, and so you completed your parole in custody. During this period you made attempts on your life.
65You have spent periods on remand in adult prison for offences which were ultimately discontinued, or charges withdrawn. You spent a period on Youth Justice Supervised Bail from 29 July 2022 before your further remand.66You were ultimately bailed on 6 March 2023 after four months on remand, you reportedly engaged well with CISP. However, when the charges were withdrawn within a fortnight of your release, the CISP support was also withdrawn before treatment could commence. To that end, you have had very little opportunity to make the most of the supports offered to you.
67You were arrested again, as I said earlier, in March 2023 following further offending for which I sentenced you in February this year and you have been in custody since then. Whilst on remand for that offending, you were in isolation at Port Phillip Prison. I note from my earlier reasons for sentence that psychologist Gina Cidoni considered this time in isolation had significantly exacerbated your mental health symptoms. She recorded severe levels of psychological distress, intensified anxiety, a re-experience of traumatic memories and suicidal ideations. According to a pre-sentence report prepared for your earlier sentence, a psychiatric review did not identify any acute mental health concerns. You have since been moved to a different prison.
Substance Abuse and Mental Health
68As a child, you began drinking alcohol at the age of 14, eventually using it as a form of self-medication. You have also used Xanax to counter depressed moods and at one point in 2022, you overdosed on Xanax in an attempted suicide.
69You were first diagnosed with anxiety and depression whilst serving sentence at Malmsbury Youth Detention Centre. You struggled upon release with the transition back into the community and this led to an overdose of Xanax.
70Psychologist Gina Cidoni has diagnosed you with Major Depressive Disorder, Generalised Anxiety Disorder, Post Traumatic Stress Disorder and Borderline Personality Traits. Dr Joseph Sakdalan, who conducted the Forensicare assessment this year, is also of the opinion that you meet the criteria for the diagnosis of these conditions, although he did not diagnose you with Borderline Personality Traits nor make mention of this in his report.
71He noted the significant impact that your upbringing, marked by violence and trauma, has had upon you. He notes that you presented with mental health issues at an early age, aggravated by the trauma experienced, and as a consequence you were brought up experiencing that violence was an acceptable means of self-protection. He considers that you carry a high risk of committing future violent offences similar to previous offending, having regard to the HCR-20 risk assessment.[10]
[10] Forensicare report dated 13 February 2024 prepared by Dr Joseph Sakdalan [54]
72Dr Sakdalan opined that your isolated condition in custody had contributed to a further deterioration in your mental health. He considers that a sentence of imprisonment would have an adverse effect on your mental health. He considers that you are a young and impressionable person who can be considered vulnerable especially when placed in an adult prison. Exposure to the prison environment he opines would aggravate your PTSD symptoms and would result in an increased risk of violence towards other prisoners.
73It is the opinion of Ms Cidoni that your mental illness has worsened in custody which has had a detrimental effect on you. I have previously accepted that limbs 5 and 6 of the principles espoused in R v Verdins[11] have application here, and this is still the case. That is, a sentence may weigh more heavily upon you as a result of your mental health than it would on a person in normal health, and there is a serious risk that imprisonment will have a significant adverse effect on your mental health.
[11] (2007) VSCA 62
Youth
74You are currently 20 years of age and, by definition, you are a young offender. Your youth enlivens the principles enunciated in Mills v R.[12] Accordingly, your rehabilitation assumes primacy in the sentencing process. The community has a very strong interest in the rehabilitation of all offenders, but especially of young offenders.
[12] [1998] 4 VR 235
75You were 18 when you committed this offence. As Redlich JA recognised in Azzopardi v R [13] at [34]-[35] young offenders ‘may lack the degree of insight, judgment and self-control that is possessed by an adult. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct'. The courts also recognise the potential for young offenders to be redeemed and rehabilitated.
[13] (2011) 35 VR 43
76Furthermore, as was discussed in Azzopardi, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation, given potential exposure to corrupting influences. Previously, having regard to reports received by Youth Justice, I had found you unsuitable for Youth Detention.
77Here, again, rehabilitation assumes considerable importance given that you are a youthful offender. But general deterrence is not irrelevant. Far from it. All too frequently, young people are committing armed robberies on soft targets in circumstances where knives are involved. It is unacceptable and the community must understand that it will not be tolerated. In most cases, it will result in jail.
78Consequently, the weight to be attached to your youth is correspondingly reduced as the level of seriousness of the criminality increases. You also need to be specifically deterred from further offending given your prior criminal history.
79The court must denounce this sort of behaviour, and for the avoidance of doubt of uncertainty, I do indeed denounce your conduct. Furthermore, I must have regard to community protection, which is an important factor having regard to the offending here.
80I have had regard to each of the sentencing objectives set out in the Sentencing Act 1991. In determining the appropriate sentence, I have taken into account the gravity of the offending, your culpability, which I consider to be high, the impact on the victims, balanced with your personal circumstances and other mitigating matters. In this case, I have had regard to the maximum penalty applicable, whilst being mindful of the principle of parsimony.
81I have also had regard to current sentencing practices with respect to the charge before me. Self-evidently, no two cases are alike, and this is just one of the matters to be considered.
Prospects of Rehabilitation
82There is no evidence of your remorse for this offending other than your plea of guilty, and you have declined to address me in relation to this. Given your prior criminal history, and the fact you appear to have very little community supports, I consider your prospects of rehabilitation to be guarded. This is consistent with my earlier finding, for which I also had regard to the Youth Justice report regarding case worker interactions with you whilst you were in a Youth Detention Centre and whilst on parole in 2022. I do not propose to go through those matters again. But I recognise that you are young, and if you accept appropriate treatment and counselling, then your prospects of rehabilitation are improved.
Totality
83Importantly, I must take into account the principle of totality, bearing in mind that you are currently serving sentence in an adult gaol, a sentence imposed by me, and there is a further sentence imposed in the Magistrates court of three months cumulative on the County Court sentence. Had you fallen to be sentenced for this offending at the same time I sentenced you in February, I would have imposed a sentence which involved some degree of concurrency with the other sentences that were imposed on that occasion.
84The prosecution submits that some cumulation is warranted here given that your offending involved distinct and serious conduct. However, the prosecution accepts there should be a degree a concurrency appropriate to satisfy the principle of totality. I must ensure that a just and proportionate sentence is imposed to meet the principles of parsimony and also totality. Therefore, I have both moderated to a degree the length of the sentence and the period of cumulation. This is necessary to avoid a crushing sentence.
85Given your young age, and the sentence you are undergoing, I have given consideration as to whether the sentence I impose should interfere with the non-parole period that you are currently serving. Again, whilst I am mindful of totality, I am also of the view that adding to your non-parole period is warranted and indeed necessary, in order to properly reflect the gravity of the offending, whilst meeting the need for deterrence, denunciation and community protection. It is my intention to add a number of months to your existing non-parole period.
Sentence
86Could you stand up please, Mr Basa.
87On the charge or armed robbery, you are convicted and sentenced to 12 months' imprisonment. That makes an effective sentence of 12 months.
88I direct that six months of the sentence imposed today is to be served cumulatively on the 4 years and 5 months' sentence previously imposed by me on indictment CR-23-01344.
89That makes a global total effective sentence of 4 years and 11 months' imprisonment.
90Having regard to the global sentence, I direct that you serve a period of 3 years and 2 months' imprisonment before being eligible for parole, to commence on 27 February 2024, that being the sentence date of the previous matter, indictment CR-23-01344.
91The effect of this is that as a result of this offending, I have added four months to the non-parole period that you are currently serving.
92There is no pre-sentence detention on this indictment CR-23-01731[14].
[14] Indictment P11037526.1
93For completeness, I confirm that the declaration as to pre-sentence detention made by me in February of this year continues to apply.
S 6AAA Sentencing Act 1991
94Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I indicate that had you not pleaded guilty to this offending, I would have sentenced you to 18 months' imprisonment on this charge. The total effective sentence I would have imposed would have been 5 years and 3 months. That is, an additional 10 months more on your existing sentence, with a period of 3 years and 8 months to serve before becoming eligible for parole.
95Mr Plummer, are there any matters that need to be corrected or that I have overlooked? Are there any applications made or any ancillary orders sought?
96MR PLUMMER: I'll just check. No, Your Honour.
97
HER HONOUR: Yes, thank you. That concludes this matter. You can take
Mr Basa back into custody. Adjourn the court, thank you.
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