Director of Public Prosecutions v Basa
[2024] VCC 158
•27 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01344
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABDIRAHMAN BASA |
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JUDGE: | Her Honour Judge Ellis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 October 2023, 13 November 2023, 19 December 2023 & 20 February 2024 | |
DATE OF SENTENCE: | 27 February 2024 | |
CASE MAY BE CITED AS: | DPP v Basa | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 158 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: two charges of armed robbery- one charge of theft of motor vehicle- one charge of dangerous driving in police pursuit- one charge of conduct endangering persons- two related summary offences- plea of guilty- prior criminal history- two co-offenders- youth-childhood disadvantage and deprivation
Legislation Cited: Crimes Act 1958 (Vic); Road Safety Act 1986 (Vic); Sentencing Act1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; R v Renzella [1997] 2 VR 88; R vMills [1998] 4 VR 235; Azzopardi v R (2011) 35 VR 43; R v Verdins [2007] 16 VR 277; Butler v The Queen [2019] VSCA 132
Sentence: Term of imprisonment of 4 years and 5 months, with a non-parole period of 2 years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. E. Strugnell | Office Public Prosecutions |
| For the Accused | Ms. N. Low | Victoria Legal Aid |
HER HONOUR:
1Abdirahman Basa, you have pleaded guilty to:
·Two charges of armed robbery contrary to s 75A of the Crimes Act 1958 (Vic), which carries a maximum penalty of 25 years imprisonment (charges 1 & 2);
·One charge of theft of a motor vehicle contrary to s 74(1) of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment (charge 3);
·One charge of dangerous driving in police pursuit contrary to s 319AA(1) of the Crimes Act 1958, which carries a maximum penalty of 3 years imprisonment (charge 4);
·One charge of conduct endangering persons contrary to s 23 of the Crimes Act 1958, which carries a maximum penalty of 5 years imprisonment (charge 5).
2You have also pleaded guilty to two related summary charges. The first, being a learner driver driving without appropriate supervisor contrary to s 18AB(1) of the Road Safety Act 1986 (Vic) which carries a maximum penalty of 6 months imprisonment or 60 penalty units;[1] the second, a charge of refusing to undergo a preliminary oral fluid test, contrary to s 49(1)(eb) of the Road Safety Act 1986 which carries a maximum penalty of 12 penalty units for a first offence.[2]
[1] Summary charge 3.
[2] Summary charge 12.
Sentencing Act Provisions
3Armed robbery is a category 2 offence pursuant to s 3(1) of the Sentencing Act1991 (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 2H of the Act.
Circumstances of Offending
4The circumstances of your offending were set out in the Summary of Prosecution Opening tendered on the plea as Exhibit A. This offending occurred primarily on 28 March 2023.
5There are two co-offenders in this matter, Mr. Aaron Kingsada and Mr. Elliot Rayion[3]. The three of you were known associates of the Brotherhood Street Gang – a gang which operates primarily in the Wyndham area. Mr. Kingsada was aged 18 and was on bail at the time of offending. Mr. Rayion was aged 16 and, you being 19 were the oldest.
[3] A pseudonym.
6Turning now to the offending. The victim on the theft is Tayla Warren. On 27 March 2023, Ms. Warren was at her home at Folkestone Road, Werribee. Also present was Ms. Warren’s 6 month-old child, and her friend, Brooke O’Donnell .
7The residence is a 4 bedroom home with a double garage. There is a side gate at the front of the residence which allowed for entry down into the side of the property. Inside the garage was a grey 2008 Hyundai i30 hatchback (registration ending 5UK), registered in Ms. Warren’s name. At the time, the car was locked.
8At around 3.50am, an unknown offender gained entry to the residence whilst Ms. Warren, her child and Ms. O’Donnell were asleep. CCTV footage depicts the offender looking into the windows of the property, before eventually gaining entry into the residence via an unlocked rear laundry door.
9The offender then located the keys to the vehicle in a glass bowl in the hallway and made their way to the garage door, granting Mr. Rayion entrance into the residence. Rayion, along with the unknown offender, then stole the car parked at the premises and left the residence, reversing over the letterbox. The occupants awoke to discover the theft. (Charge 3 – Theft of a Motor Vehicle). You have pleaded guilty to this charge on the basis that you later drove the vehicle knowing that it was stolen.
10On 28 March 2023 at 8.40am, you and your two co-offenders, Kingsada and Rayion, arrived at the NQR Supermarket at 31 Watton Street, Werribee in the stolen Hyundai vehicle.
11CCTV footage from the supermarket depicts you and Rayion wearing gloves and masks upon entrance to the supermarket. Notably, you are depicted wearing a black ‘Kenneth Cole’ puffer jacket; black ‘Nike’ tracksuit pants; and black and orange runners. You had a black glove on your left hand, and a blue glove on your right hand. Mr. Rayion is depicted wearing a black ‘Nike’ puffer jacket; black tracksuit pants; black ‘Nike’ shoes with green writing; and blue gloves on both hands. Mr. Kingsada remained inside the stolen vehicle.
12There are two victims in relation to charge one. The first is Tiare Johnson. At the time of the offence, Ms. Johnson was 16 years old, and was working in the NQR supermarket. The second is Michael Wood, who was also working at the NQR supermarket.
13Upon entering the store, you approached Ms. Johnson and demanded that she open the cash register. Mr. Rayion then called out to Mr. Wood and demanded that he open another register.
14You then produced a large machete that you had concealed in your pants, and further demanded that Mr. Wood open the cash register whilst waving the machete at him. Mr. Wood complied with your demands, and your co-offender leaned over and stole the till drawer. It contained $300 in cash. Mr. Rayion then left the store with the cash register. (Charge 1 – Armed Robbery).
15You then proceeded to the liquor section of the store, and selected a bottle of alcohol, which you threw on the floor causing the bottle to smash. You then selected and stole three other bottles of alcohol, before leaving the store.
16Upon exit, Mr. Rayion entered the driver’s seat of the stolen vehicle, and you entered the rear passenger seat behind the driver’s side. At this time, Mr. Wood pressed the store’s duress alarm and contacted police.
17You and your co-offenders then made your way in the stolen vehicle to the Foodworks supermarket at 92 Cottrell Street, Werribee.
18You arrived at the Foodworks at approximately 9.20am. You entered the store with a machete in your hand, still wearing the gloves and a mask that was partially covering your face.
19The victims in relation to charge 2 are Shelley Everitt, Freda Zammit, and Robert Manitta. All three victims were employees of the Foodworks, working at the time you committed these offences.
20Upon entering the store, you approached Shelley Everitt who was working at the front counter. You pointed your machete towards her, threatened her, and demanded that she give you money. Ms. Everitt screamed in fear and yelled out to her manager, Robert Manitta. Freda Zammit, who could hear the screams of Ms. Everitt, made her way to the office entrance, saw you wielding the machete and heard you say something along the lines of, “it’s okay”.
21Mr Manitta slammed the office door and held it shut with both hands. Ms. Zammit attempted to call 000 but was forced to hang up as you began banging on the door in an attempt to gain entrance into the office.
22Whilst you were inside, Mr. Rayion was waiting outside of the store. He knocked on the store window, signalling for you to leave. You then left the store with approximately $500 in cash. (Charge 2 – Armed Robbery).
23Upon exit, you made your way back into the stolen vehicle, where Mr. Kingsada had been waiting for the duration of the robbery. You and your co-offenders then fled the scene.
24Shortly after leaving the scene, Detectives Stevens and Rayner, who were in an unmarked police vehicle, observed the stolen vehicle that you were in, and activated their lights and sirens.
25Police then commenced a pursuit of the vehicle. At the time, Mr. Rayion was driving. The vehicle was first observed turning right through a red traffic signal on Bolton Road, Wyndham Vale. The vehicle then overtook multiple civilian vehicles, and was seen travelling on the wrong side of the road on Ballan Road. Police also observed civilian vehicles taking evasive action on McGraths Road to avoid the car.
26At the intersection of Galvin and Bulban Roads, Mr. Kingsada, (who was in the rear passenger seat of the vehicle) leant out of the vehicle and threw a bottle of Smirnoff Vodka at the Police vehicle. Detective Stevens took evasive action to avoid the bottle.
27At the intersection of Browns Road and Alfred Road, Mr. Kingsada again leant out of the window and threw a wheel brace/tyre iron wrapped in cloth at the police vehicle. Further evasive action was required by police to avoid the object.
28Whilst driving along Alfred Road and in pursuit by police, the stolen vehicle you were in was observed travelling at speeds between 80-100km per hour through an area marked for road works with a speed limit of 40km per hour. The vehicle then continued through a further red traffic light at the intersection of Alfred Road and Geelong Road.
29The police pursuit continued onto the Princess Freeway where the vehicle was observed swerving in and out of lanes, and travelling at speeds of up to 150km per hour. At this stage, police were forced to terminate the pursuit given the danger posed to the community. Detectives returned to collect the items thrown by Mr. Kingsada and photographed the scene.
30Upon termination of the pursuit, you and your co-offenders continued your erratic driving along the Princess Freeway city bound, towards Millers Road. Due to the driving on display, multiple civilians called 000. One reported at 10:22am that a car was observed to be driving erratically at the intersection of Geelong Road and Ballarat Road, Footscray. The driver was described as a dark skinned male, wearing a mask and a blue latex glove. Another reported at 10:45am the vehicle driving erratically 10 minutes prior in the Flemington area, and described the driver as wearing a balaclava.
31A short time later, the Police Airwing located the vehicle on Racecourse Road, Flemington, and continued to track the vehicle throughout Flemington and Ascot Vale.
32At 10:35am, police located the vehicle at the BP service station at 105-113 Mt Alexander Road, Flemington. Mr. Rayion was attempting to fill up the stolen car with petrol. Upon sighting police, Mr. Rayion entered the passenger seat of the vehicle, where you were observed in the driver’s seat. You then fled the scene. (Summary Charge 3 - learner driver driving without appropriate supervisor).
33Police activated their lights and sirens, initiating another pursuit of your vehicle along Mt Alexander Road, Ascot Vale. They were in a marked police vehicle.
34You Mr. Basa as the driver then continued to drive through residential streets, failing to stop on multiple police directions. (Charge 4: Dangerous driving while pursued by police). During your display of erratic driving you were observed by police and footage depicts you overtaking a tram by travelling on the wrong side of Mt Alexander Road, and overtaking an incoming vehicle by travelling on the right hand side of the road. You then turned into Moonee Street driving quickly over speed humps, as police followed, before turning into Ascot Vale Road.
35Whilst travelling southbound on Ascot Vale Road, you appear to have driven in part on the wrong side of the road. You eventually collided with a vehicle driven by Mr. Ayan Robile. Mr. Robile’s vehicle was pushed approximately 20m, and as a result, Mr. Robile suffered multiple injuries to his neck and head.
36Your car then veered off the road and crashed into a power pole and part of a residential premise located at 193 Ascot Vale Road, Ascot Vale. This collision brought your car to a standstill, and caused significant damage to the stolen vehicle, the vehicle driven by Mr. Robile, the power pole and the residence. Mr. Rayion also suffered injury as a result of the collision. (Charge 5: Conduct Endangering Persons)
37You and your co-offenders remained in the vehicle until you were apprehended by police moments later. Due to the extensive damage to the vehicle, police needed to force the doors open to carry out your arrest.
38The three of you were then removed from the vehicle. Given the damage to the driver’s side, you needed to be removed via the front passenger side. Multiple items of clothing were also seized by police from each of you.
39Ambulance attended the scene and you and your co-offenders were each assessed by paramedics. Mr. Rayion was transported under police guard via Ambulance to the Royal Melbourne Hospital with what was a suspected fracture to a vertebrae in his neck and a broken rib.
40He remained in hospital until 30 March 2023 and was immediately arrested upon discharge.
41Police conducted a search of the stolen vehicle, in which a number of items were located and seized:
·A machete with a black handle, with 3 distinctive holes embedded in the blade;
·A wooden pole/club;
·A balaclava;
·A white head rag;
·Bottles of vodka;
·$445.80 in various small notes and coins;
·A red Apple iPhone (registered to Sha Tha Shway);
·Multiples cards in the name of Tayla Warren, including Medicare cards and drivers licences.
42On 1 May 2023, Victoria Police executed a warrant on Corrections Victoria to obtain prisoner telephone recordings made by Mr. Rayion in custody. A phone call was intercepted between Mr. Rayion and a person believed to be his sister that was made on 5 April 2023. During the call, Mr. Rayion discussed the offending saying things like
·We robbed the fuck outta some supermarket;
·I got on the highway, and I said switch drivers;
·We swapped seats and I got in the back;
·We got to Ascot Vale and we were going like 160 bro;
·Boom outta nowhere I blacked out.
43Police also conducted forensic analysis of the red Apple iPhone retrieved from the stolen vehicle. Police identified videos and photographic images of you and your co-offenders in possession of the stolen vehicle shortly after the aggravated burglary. The earliest image taken was a video recorded at 04:50am, recorded inside the stolen vehicle.
Procedural History
44Immediately after your arrest on 28 March 2023, you were conveyed to the Werribee Police Station for the purposes of a record of interview. The following items were seized from your possession:
·A black ‘Kenneth Cole’ puffer jacket;
·A black ‘FBI’ labelled jumper;
·A black ‘Nike’ tracksuit pants;
·A black balaclava; and
·Black and orange ‘Sayt Rlae’ shoes.
45You gave a no comment interview. At the end of the interview, a DNA sample was taken from you, whilst you complied with the demand to undertake a preliminary breath test, you refused to undergo a preliminary oral fluid test (Summary Charge 12 - refusing to undergo a preliminary oral fluid test).
46You were remanded in custody. You were committed to this court on 7 August 2023 and entered a plea of guilty on 16 October 2023.
47You have accrued 336 days of pre-sentence detention since your remand in March 2023.
Victim Impact
48Two of your victims, Ms. Everitt and Ms. Zammit have prepared powerful victim impact statements.
49Ms. Everitt describes that her quality of life has decreased. She's scared to go out at night and when she returns home she needs to get her daughter to check her place before going inside. She feels more vulnerable at work, where she is in effect, hypervigilant, and less confident at home. She has trouble sleeping due to a feeling that someone is there.
50Ms. Zammit is constantly thinking about what happened. Seeing a knife when doing ordinary tasks brings her back to the moment when she saw you standing there holding the machete. She vividly recalls what you said to her and the fear she felt at the time she wasn't going home to see her children again. She struggles to be alone and has difficulty sleeping because she feels unsafe. She is so jumpy and always scared. When she leaves her home for an appointment she is constantly looking over her shoulder to see if someone is following her. She frequently feels overwhelmed going to places where there are many people present because she is unable to watch everyone at once to ensure that no one surprises her. She has resigned from her employment even though she loved the position that she was in and the social relationships she had built within her job. Her employment had been so valuable to her because it helped her battles with depression. She states, “This has really affected my mental health. There is so much fear.”
51Clearly your offending has had a profound impact upon your victims. It is not hard to imagine how terrifying it must have been for your victims to be confronted with a machete as they are simply going about their daily employment, trying to earn a living. It might’ve seemed like a bit of a lark to you, and your friends. Maybe a way to make some money quickly. But for these people, it has been a frightening, perhaps life changing experience. And hopefully you are now realising, it is just not worth it.
Prior Criminal History
52You have admitted a prior criminal history, from November 2021, which was the subject of an appeal from the Childrens’ Court to this court. Those proceedings relate to a number of charges 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. I will say more about these matters later. Having been provided with the summaries for these offences, I can say they reflect concerning, violent behaviour. Ultimately you were convicted and sentenced to 18 months detention in a Youth Justice Centre.
Co-offenders
53Your co-offender Mr. Kingsada pleaded guilty to one charge of theft of a motor vehicle, one charge of assisting an offender commit an indictable offence, and two summary charges: one of committing an indictable offence whilst on bail; and one of contravening a conduct condition of bail. Mr. Kingsada was sentenced in this court by His Honour Judge O’Connell on 8 December 2023 to serve a community correction order of 9 months duration.
54Mr. Rayion pleaded guilty in the Children’s Court to charges of aggravated burglary (person present), armed robbery and driving offences, amongst others. He received an aggregate period of 6 months detention in a Youth Justice Centre.
55Given their ages, the different charges for which they were sentenced and that Mr. Rayion was sentenced in the children’s court, parity is of less significance, but it is not irrelevant.
Plea of Guilty
56You entered a plea of guilty at the earliest opportunity. You have accepted responsibility for your conduct, and in doing so, you have spared the victims of the armed robberies and other witnesses from having to give evidence. Your plea is of considerable utilitarian value. You have saved the community the significant expense of a trial and further, your plea demonstrates a willingness to facilitate the course of justice. It is also evidence of remorse.
57In the context of COVID-19 and the backlog associated with the pandemic, pleas of guilty have attracted an appreciable discount in sentence, in accordance with Worboyes v The Queen. [4] Whilst that backlog has now in effect been reduced to a pre-Covid standard, your decision to plead guilty should be considered in light of that backlog, given it was entered in the middle of last year, prior to the court undertaking an assessment of the trial backlog. By pleading guilty this has ensured a reduction in trial work and accordingly I propose taking into account that your plea of guilty occurred during the pandemic, albeit that the weight attached to this is no longer as great as it was earlier last year.
[4] [2021] VSCA 169.
58You reportedly expressed deep regret and self-disparagement in your assessment with Ms. Cidoni. This is somewhat at odds with a pre-sentence report regarding your attitude towards your offending, in which it is noted that your concern was directed towards your co-offenders and your reflection that it was lucky that in the stores you didn’t follow through with anything worse. This is said to highlight limited insight and empathy according to YJ coordinator Ms. Katerina Valos. You have however reportedly reflected on the victim impact statements and demonstrated some understanding towards the long term impact your offending has had on them. You reported to Dr. Joseph Sakdalan that you have a poor memory of the events, given the extent to which you were affected by Xanax and alcohol but you also expressed feelings of guilt and upset as to the impact of your offending on the victims. Given this, I accept that you are remorseful although you may have initially not appreciated the gravity of what you had done.
Nature and Gravity of the Offending
59The offence of armed robbery is serious. This is reflected in the maximum penalty. That parliament has seen fit to impose a mandatory term of imprisonment where the offence is committed in company, is indicative of the seriousness with which this type of offending is regarded.
60In your case, both armed robberies were objectively serious. There was a degree of pre-planning, although I accept there was some spontaneity involved. You attempted to conceal your face and wore gloves. Significantly, the weapon you carried was a machete – a weapon capable of inciting fear in anyone on the receiving end, not to mention the great potential for injury. Both premises were soft targets. As the prosecution submits, the offending was violent and predatory. It seems that you and your friends decided to go on a bit of a spree – two armed robberies within an hour. Whilst you did not have physical contact with your victims, your conduct and the presence of such a weapon was enough to cause them to be fearful.
61As for the driving, which gives rise to the conduct endanger person charge, it was deplorable. The footage tendered of the police pursuit depicts erratic, reckless driving. You put other members of the public at risk. You put the police at risk and you put yourselves at risk. That you overtook a tram on a busy road and drove on the wrong side of the road reflects the little regard you had for other road users and the public in general. Your violent collision illustrates the speed at which you were travelling and the dangerous way in which you were operating a motor vehicle. It had the capacity to be a lethal weapon.
62Having seen the police footage, all I can say is that it is extremely fortunate that you did not do more damage. As it was, one of your passengers sustained significant injuries. You yourself apparently have no recollection because you were substance affected. You are very fortunate that no one was killed and that you are not facing more serious charges. I consider this to be a serious example of this offence.
63Similarly, although there is a degree of overlap with the charges, your conduct with respect to the police chase is also extremely concerning. Again police and the public were put at risk as you attempted to evade capture. You are to be sentenced only for the driving from when you were observed as the driver after the BP station on Mt Alexander Road. It is my intention to order some concurrency in sentencing for this charge given what it encompasses and the overlap with the offending on charge 5.
64In relation to the theft, it is not alleged that you were involved in actually stealing the vehicle – only that you remained in and used the vehicle knowing it was stolen. Regardless, for the victim having had her car stolen, for it to be driven and then significantly damaged if not destroyed, as a result of your irresponsible driving, would no doubt have been upsetting.
Personal Circumstances
65You are now 20 years old. You were aged 19 at the time of the offending. You are the oldest of your co-offenders. Your personal circumstances were set out by your counsel on the plea.
66You were born in Ethiopia to parents of Oromo ethnicity. When you were 2 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 3 years in harsh conditions at the Dadaab refugee camp near the Kenyan-Somali border.
67Around the refugee camp, you witnessed war and many violent and horrific acts, including the decapitation and amputation of fellow refugees by military soldiers.
68Your father suffered an injury, reportedly 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.
69You eventually arrived in Australia with your family and step-father 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 step-father worked in various jobs as a mechanic, taxi driver, interpreter, to name a few, to financially support to family.
70After settling into Hobart, conflict (I say conflict because you have told Dr. Sakdalan that you did not witness physical family violence) within the family home perpetrated by your step-father 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 the local African community. During this time, you spent a short time in primary school in Adelaide. Your mother and your siblings eventually returned to Hobart with your step-father after approximately 4 months, along with yourself.
71In 2015, your family moved to Victoria. Eventually, when you were around 14 years old, your mother finally separated from your step-father.
72You are the eldest of 6 children. Before your remand and detention in a Youth Justice Centre, you resided in the family home with your mother and other siblings. You have also spent a short period of time in a residential facility in Footscray. You continue to receive support from your mother whilst on remand, and I note that your mother was present at the plea hearings.
73You commenced grade one at the Springfield Primary School in Tasmania, although you did not yet speak English. Likely as a result, you experienced bullying and racism from an early age.
74Your 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.[5]
[5] (2013) 249 CLR 571.
75You 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.
76I note that you 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. This position was eventually forfeit upon your arrest and subsequent remand on 18 November 2022, for different offending.
Childhood Deprivation
77Your 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.
78Your counsel submits that the principles enunciated in the case of Bugmy v The Queen apply.
79The prosecution accepts that you have experienced profound deprivation and exposure to violence in your childhood, and that this is relevant to the court’s assessment of your moral culpability and general deterrence.
80Pursuant to principles in Bugmy, an offender’s background of deprivation is relevant because his or her moral culpability for the particular offence is likely to be less than the culpability of an offender whose formative years have not been marred in that way. The 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
81It is clear that you have had more than 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.
82On 24 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 at 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 8:30am when the owner was present with his two primary school aged children.
83Additionally you have two priors for theft of motor vehicle, one of which included an allegation that you were in a vehicle, as a passenger which was driven in an erratic manner and at fast speed, running a red light.
84Significantly, your prior history includes charges of causing serious injury intentionally in circumstances of gross violence. In relation to that charge you are said to have become involved with your co-offenders in an affray with two men, arranged online.
85During this pre-arranged confrontation you reportedly produced a machete, ultimately giving chase to the two victims to a bus depot. It culminated in you chasing the two victims onto the bus, where you swung the machete and ultimate stabbed one of the victims, who was also stabbed by your co-offenders, as was a second victim. This 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. There were also charges of criminal damage and assault concerning an incident between you and your mother when you were under 17.
86You served 9 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. Specifically you were involved in 12 incidents.
87However as you were remanded twice during your youth parole, you reportedly did not get the full benefit of supports and supervision within the community. It seems you were held on remand for 6 ½ months of the 9 months on youth parole, and so you completed your parole in custody. Pausing there, it was during this period on parole that you made attempts on your life. One of which was in May 2022.
88You were arrested on new charges and remanded to the metropolitan remand centre on 16 May 2022. You were then bailed and placed on Youth Justice Supervised Bail on 29 July 2022. You again overdosed in an apparent suicide attempt on 24 August 2022
89You were again remanded in November 2022 on further charges. You were transferred into an observation cell on 19 January 2023 due to an alleged assault on another prisoner involving the use of a weapon. Pausing there, I understand this incident is the subject of proceedings in the magistrates’ court. A plea hearing has been set down for 4 March 2024.
90You were ultimately bailed on 6 March 2023 after 4 months on adult remand. During that time on remand you had no access to drug and alcohol counselling, but upon being bailed, you were engaged with the CISP program, to which you reportedly engaged well. However the charges were withdrawn 11 days after your release and so the CISP support was also withdrawn, before treatment could commence. To that end, you have had very little opportunity to make the most of supports offered to you.
91You were then arrested again in March 2023 following these offences and you have been in custody since then. Whilst on remand for this offending, you have been at Port Phillip Prison in isolation. You reported to Ms. Cidoni that you have spent most of your time in a dark cell and have been unable to leave for extended periods. Ms. Cidoni considers this time in isolation has 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 the pre-sentence report prepared by Ms. Valos, Justice Heath have advised there is no active self-harm or suicidal ideation recorded. A psychiatric review did not identify any acute mental health concerns.[6]
[6] Pre-sentence report p. 10.
92Your counsel has submitted that should I determine that jail in an adult prison is appropriate, then the period you spent in custody for charges that were eventually discontinued, being a period of 185 days in custody, which is not attributable to pre-sentence detention, should be taken into account pursuant to the principles set out in R v Renzella.[7]
[7] [1997] 2 VR 88.
Substance Abuse and Mental Health
93You began drinking alcohol aged 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.
94You 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 which is what led to the overdose of Xanax.
95Psychologist 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 a Forensicare assessment, is also of the opinion that you meet the criteria for diagnoses of these conditions, although he did not diagnose you with Borderline Personality Traits nor make mention of this in his report.
96He notes the significant impact that your upbringing marked by violence and traumatic experiences, 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. He says:
Mr. Basa is at risk of engaging in violent behaviour, specifically threatening behaviours, and physical assault, particularly in situations where he experiences feeling threatened or stressed when confronted, especially in the context of substance use and/or association with antisocial peers.[8]
[8] Forensicare report Dr. Sakdalan [54].
97I have highlighted this passage as it may be relevant to the current circumstances in which you find yourself in custody, namely in a solitary unit, which Dr. Sakdalan considers has 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 would aggravate your PTSD symptoms and would result in an increased risk of violence towards other prisoners.
98It is the opinion of Ms. Cidoni that your mental illness has worsened in custody which had had a detrimental effect on you. Your counsel submits that limbs 5 and 6 of the principles espoused in R v Verdins have application here.[9] The prosecution takes no issue with this. I have taken this into account. I also accept that your mental health may have a bearing on the kind of sentence that should be served and the conditions in which it should be served, although when considering the question of whether a sentence in Youth Justice Centre should be imposed (as is submitted here), I note that I must have regard to the matters set out in s 32 of the Sentencing Act 1991.
[9] [2007] 16 VR 277.
Youth
99You are currently 20 years of age and, by definition, you are a young offender. Your youth enlivens the principles enunciated in R v Mills.[10] 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.
[10] [1998] 4 VR 235.
100As Redlich JA recognised in Azzopardi v The Queen[11] 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.
Secondly, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.
[11] (2011) 35 VR 43.
101Furthermore, 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.
102The prosecution accepts that as a young offender, rehabilitation assumes greater importance in sentencing youthful offenders than deterrence. As was emphasised in that case, rehabilitation of a young offender is in the community’s interests.
103Having said that, the courts are also less tolerant of young people committing these sorts of offences. In particular, young people driving from police in stolen cars whilst being pursued, and driving in the sort of erratic, reckless way you did, just before you collided your vehicle, is becoming all too prevalent. The community is thoroughly sick of it. In doing what you did, you put lives at risk. Not just your own, and that of your accomplices, but the public. People going about their day. It is extremely fortunate, if not remarkable, that no one was killed as a consequence of your stupidity and frankly, selfish behaviour.
104Consequently, the weight to be attached to your youth is correspondingly reduced as the level of seriousness of the criminality increases.
105I must have regard to your rehabilitation but also other sentencing objectives. General deterrence looms large. Other young people, minded to hold up soft target stores, or to flee from police, putting the public at risk, must understand this sort of behaviour will not be tolerated. It will attract jail.
106As the Court of Appeal emphasised in Butler v The Queen: [12]
Driving such as the applicant’s, putting the public in danger so as to avoid facing the consequences of other criminal activity, is to be strongly condemned and severely punished. Furthermore, general deterrence is of prime importance in a case such as this. People tempted to drive recklessly and endanger the public in order to evade police must know that when caught they will receive stern punishment.
[12] [2019] VSCA 132 [42] (Priest & T Forrest JJA).
107That case involved an older offender than yourself, but the principles are equally applicable, albeit that I must also give considerable weight to your youth and prospects of rehabilitation.
108The court must denounce this sort of behaviour, and if you’re in any sort of a state of uncertainty, I do indeed denounce your conduct. Furthermore, I have regard to community protection. It is an important factor having regard to the offending here.
109Specific deterrence also plays a role given that you have a prior criminal history.
110To be clear, I have had regard to each of the sentencing objectives set out in the Sentencing Act1991. In determining the appropriate sentence I have taken into account the gravity of the offending, your culpability for each of the offences, which I consider to be high with respect to the armed robberies and the conduct endanger persons charge, the impact on the victims, and I must balance these with your personal circumstances and matters in mitigation. In each case I have also had regard to the maximum penalty applicable, whilst being mindful of the principle of parsimony.
111I have also had regard to current sentencing practices with respect to the charges before me. It is self-evident that no two cases are alike. This is just one of the matters to be considered.
Prospects of Rehabilitation
112Your counsel submits you have good prospects of rehabilitation given your age and that you have the support of your mother, coupled with your remorse and your plea of guilty. Your criminal history suggests that describing your prospects as ‘good’ might be overstating them. I also understand that there are some matters outstanding, one of which is set down for trial and the other which is to be resolved as a plea in the magistrates’ court. This is associated with the alleged stabbing of another prisoner in custody in January 2023. At the very least I am guarded about your prospects but I recognise that you are young, and you have not had the full benefit of treatment and counselling which would only serve to enhance your prospects of reform.
113The question of your prospects of rehabilitation assumes particular significance here where your counsel has submitted that your sentence should be served in a Youth Justice Centre. To that end, I sought a pre-sentence report from Youth Justice in accordance with s 32 of the Sentencing Act 1991.
114The report prepared by Katerina Valos, Acting Youth Justice Programs Coordinator and endorsed by Nigel Priseman, Youth Justice General Manager both of the North West Metropolitan Region, was provided on 14 December 2023. This sets out the history of your involvement with Youth Justice. Ms. Valos has been your case manager during your engagement with Youth Justice. She has seen you more than 30 times, possibly 40, both in the community and in custody.
115You have been assessed as unsuitable for detention within a Youth Justice Centre for reasons which I will go through in a moment. Following further submissions, your counsel filed a Notice of Intention to Dispute the Contents of Pre-sentence Report, and Ms. Valos was questioned by both your counsel and the prosecutor.
116I will deal with the matters raised in the report. Your involvement in the justice system was set out in detail. I have already referred to this in terms of your periods of custody. It seems that whilst on parole for the November 2021 offending, you were referred to Orygen Forensic Youth Mental Health Service, but your engagement was sporadic and interrupted by periods of remand. There was a period of engagement with Youth Support and Advocacy Service in October 2022 for treatment for alcohol and drug abuse, to which you reportedly engaged well. Your engagement with Caraniche Forensic Youth Service was concluded due to you being remanded. There have also been programs towards your education. In your isolated position within Port Phillip Prison you are reportedly polite and responsive to staff direction.
117Turning to the assessment as to whether you have reasonable prospects of rehabilitation. The authors of the report notes that your offending has not decreased in severity, and continues to be high harm/high impact offending involving multiple victims. In relation to your earlier offending, you are said to have been the lead perpetrator in the offending. Whilst you are described as having demonstrated some ability to engage with services through Youth Justice, you reportedly demonstrated a lack of motivation to engage in interventions to address offending related risks or needs.
118According to Ms. Valos:
Based on Mr. Basa's pattern and history of repeat offending; his past refusal to engage in required treatment programs; his lack of self-awareness and responsibility for his offending and lack of victim awareness and his continued use of violence both in the community and allegedly in custody; Mr. Basa's prospects for rehabilitation within the Youth Justice System must be considered relatively poor at this point.[13]
[13] Pre-Sentence Report by Ms. Valos.
119Ms. Valos agreed that when you were first released back into the community on parole in April 2022, you had expressed feeling overwhelmed, and that when released from adult jail you may not have been mentally in a good place to plan your future. This may, she agrees have impacted upon your compliance with youth justice supervision. Ms. Valos agreed that your progress on parole was interrupted by your remand for other offending, which meant that some of the programs set up had to close, such as Caraniche, Forensic Youth Service, YSAS and Orygen.
120Ms. Valos agreed that your first contact with the criminal justice system occurred at a relatively late age. Further that a number of the altercations whilst in Youth Detention were mutual and there was an occasion in which you were attempting to diffuse a situation. Ms. Valos also conceded that your mental health and childhood trauma may be impacting you but said she could not comment on the extent to which this was the case.
121On this issue, I accept that for various reasons associated with your remands, you have not had the full opportunity to engage with Youth Justice. However, you do not appear to have made the most of what was offered to you, nor have you sought to deal with some of your issues. In terms of your history of offending, your prior history is serious. This offending, whilst not an escalation in offending (given the serious nature of your previous charges) still represents significant violent offending and reckless conduct which put other people at risk. In custody, there are reported incidents of aggression, one of which has resulted in further charges against you. To give you the benefit of the doubt, perhaps this is a product of a younger person being placed in an adult custodial environment, resorting to aggression to defend himself. But it does not bode well for your prospects of rehabilitation.
122Given your past history, your conduct in custody on remand, the fact that your earlier period in custody did not deter you from further offending, and in this case serious offending, I am not prepared to find that you have reasonable prospects of rehabilitation. At best they are guarded and contingent on you accepting and embracing a considerable number of supports, to which you historically have had little engagement.
123Turning to the next matter to be considered, Ms. Valos and Mr. Priseman refer to your presentation and experience in adult custody, noting that you have not presented with any intellectual deficits or vulnerabilities which may impact your time in custody. They refer to incidents experienced in adult custody, noting there is no evidence to suggest you have been targeted by other prisoners. Ms. Valos acknowledges that you present with some vulnerabilities in terms of your mental health diagnoses, but notes that recent psychiatric review did not identify any acute mental health concerns. It is the assessment of Youth Justice that you are not particularly impressionable, immature or likely to be subject to undesirable influences in adult prison.
124Ms. Low questioned Ms. Valos regarding your associations with younger peers, which she submitted suggested an immaturity of sorts. Regard was had to the fact you have been placed in isolation, but also as to why this is the case, which here is alleged to be as a product of your own behaviour and allegations of violence towards another prisoner. Ms. Valos accepted however that whilst there were incidents when you were in Youth Justice Centres, these did not result in significant management issues, nor does it appear to have impacted the decision to grant parole.
125I have taken into account the report and the evidence of Ms. Valos, someone with whom you have had ongoing contact while in custody and on parole. Her assessment is consistent with your forensic history. Although you are young and Ms. Cidoni considers you immature and impressionable, and Dr. Sakdalan considers you to be impressionable and vulnerable especially when placed in an adult prison; having heard evidence and receiving reports, I do not consider that you are particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison.
126Whilst it is undesirable for a young person to be detained in a solitary environment, again I understand this is not as a result of you being a victim of violence or threats, but rather your behaviour.
127Ultimately I am not satisfied that you meet either of the criteria set out under s 32 of the Sentencing Act 1991. Even if I were to consider your prospects of rehabilitation to be reasonable or even if I were to find that were to meet the criteria in terms of immaturity or vulnerability, I must also consider the nature of the offence and your age, character and past history. [14]
[14]Sentencing Act 1991 (Vic) s 32(2).
128Whilst your youth, mental health, deprived background and other matters in mitigation must be taken into account, I am of the view that the offending here is nevertheless too serious for detention in a Youth Justice Centre.
129In reaching this conclusion that the only alternative is adult prison, I take into account your plea of guilty and that you have already spent a considerable amount of time in custody for unrelated charges, which are not part of pre-sentence detention. Whilst rehabilitation assumes primacy for a young offender, the principles of general and specific deterrence, denunciation and community protection cannot be overlooked. Accordingly, I am not prepared to sentence you to a Youth Justice Centre.
130I have made this determination mindful that confinement of a young person in an adult prison is to be avoided, especially if he is beginning to appreciate the effect of his past criminality. In this case, I am not convinced that you have such an appreciation.
Totality
131Although the offending here occurred within a relatively short time frame, each offence warrants individual punishment given it involves distinct and serious conduct. There is a need for the sentence to reflect the individual charges and where applicable, the victims, and the conduct they comprise. However, there should be a degree a concurrency appropriate to satisfy the principle of totality. I must ensure that the totality of the sentences imposed is met with a just and proportionate sentence. Therefore, I have both moderated to a degree the length of the individual sentences and the periods of cumulation. This is necessary to avoid a crushing sentence.
Renzella Time
132Given that I have determined that imprisonment in adult jail is warranted here, I take into account the time you have spent in custody on remand for other offences, (which were ultimately discontinued) in accordance with R v Renzella.
Driver’s Licence
133Given the nature of the offending, upon conviction, I make orders in relation to your driver’s licence, if you have one. Some of these are mandatory and provide a minimum period.
134For the charge of refuse preliminary oral fluid test, upon conviction for a first offence, your licence is cancelled and you are disqualified from obtaining another for a minimum period of 2 years.[15]
[15] Road Safety Act 1986 (Vic) s 50(1DA)
135For the charge of dangerous driving in a police pursuit, your licence is cancelled and you are disqualified from obtaining another, for a period of 3 years concurrent with the other order made.[16]
[16] Sentencing Act 1991 (Vic) s 89(3).
136Regarding the charge of theft of motor vehicle, your licence is cancelled and you are disqualified from obtaining a licence for a period of 3 months.[17]
[17] Ibid s 89(4).
Sentence:
137On charge 1, armed robbery you are convicted and sentenced to 2 years imprisonment
138On charge 2, armed robbery, you are convicted and sentenced to 2 years imprisonment.
139On charge 3, theft, you are convicted and sentenced to 6 months imprisonment.
140On charge 4, dangerous driving while pursued by police, you are convicted and sentenced to 6 months imprisonment.
141On charge 5, conduct endangering persons, you are convicted and sentenced to 2 years imprisonment.
142On the summary charge of being a learner driver without supervising driver, you are convicted and sentenced to 7 days imprisonment.
143On the summary charge of refuse preliminary oral fluid test you are convicted and fined $500.
Cumulation
144The sentence imposed on charge 2 will be the base sentence.
145I order that 9 months of the sentence imposed on charge 1 be served cumulatively with the sentence imposed on charge 2 ;
146I order that 3 months of the sentence imposed on charge 3 be served cumulatively with the sentence imposed on charge 2 and on the other sentences imposed this day;
147I order that 1 month of the sentence imposed on charge 4 be served cumulatively with the sentence imposed on charge 2 and on the other sentences imposed this day;
148I order that 16 months of the sentence imposed on charge 5 be served cumulatively with the sentence imposed on charge 2 and on the other sentences imposed this day;
149I order that the sentence imposed on the summary charge (charge 3) be served concurrently with the sentence imposed on charge 2 and on the other sentences imposed this day.
150The total effective sentence is therefore 4 years and 5 months.
151I fix the period to be served before you are eligible for parole as 2 years and 10 months.
Pre-sentence Detention
152I declare 336 days pre-sentence detention to be to be reckoned as time served and I direct that this be recorded in the court records.
S 6AAA
153Pursuant to s 6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have sentenced you to a head sentence of 5 years 6 months imprisonment with a non-parole period of 3 years 7 months.
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