Director of Public Prosecutions v Basic

[2018] VCC 589

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02362
CR-17-02364

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL BASIC
TAHSOGAY THOMAS

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 April 2018
DATE OF SENTENCE:	27 April 2018
CASE MAY BE CITED AS:	DPP v Basic & Anor
MEDIUM NEUTRAL CITATION:	[2018] VCC 589

REASONS FOR SENTENCE
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Subject:
Catchwords:  Armed robbery, Theft
Legislation Cited:  
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Saville	The Office of Public Prosecutions
For Accused Basic	Mr S. Kenny	Haines & Polites
For Accused Thomas	Mr S. Dewbery	Hutchinson Legal

HER HONOUR:

1Tahsogay Thomas and Samuel Nathan Luciano Basic, you have each pleaded guilty to one count of armed robbery and theft.  You Thomas have additionally pleaded guilty to another count of armed robbery.  The maximum penalty for armed robbery is 25 years imprisonment and for theft is ten years imprisonment.

2In respect of the armed robbery for which only you Thomas have pleaded guilty, on 17 June 2017 at about 8.40 pm, you Thomas and three others entered a convenience store in Werribee.  This convenience store was attached to the home of the owner, Mr Lakkis who lives there with his wife and two children.

3You all had your faces covered and you jumped the counter.  One of you was armed with a knife and pointed it towards Mr Lakkis and his wife, preventing them from coming into the store.  Mr Lakkis said to put the knife away and that they'd give you the money.

4Mrs Lakkis picked up the phone to call 000.  However the person with the knife took it out of her hand and told her not to call the police.  In the store you stole cigarettes and approximately $1000 cash.  This whole incident was captured on CCTV.

5It is not alleged by the prosecution that you had the knife.  Rather, that you were one of the other three participants in the armed robbery.  I was informed that none of the other offenders have been apprehended.

6In respect of the other armed robbery and thefts that occurred about three weeks later, on 9 July at about 4.40 pm, both of you along with four others went to the Werribee Plaza.  You all went into Target including into the area where knives were located.  You all left the store and CCTV depicts you Thomas and another offender exchanging gloves and a knife which had been concealed in your jackets.  You Basic admitted to stealing a green knife from that store.

7About three hours later the six of you entered the same convenient store in Werribee.  Your faces were again covered and you commenced throwing items around the store.

8The first two who entered were armed with knives and jumped the counter, moving towards the door that was attached to the residence.  Mr Lakkis and his son were standing at the door and saw you holding knives.

9Three of you jumped the counter and stole an unknown quantity of cigarette cartons and approximately $300 cash.  The sixth offender remained in the store and threw stock from the shop at Mr Lakkis and his son preventing them from entering the store.  This incident was also captured on CCTV.

10Mr Lakkis' daughter followed your group from the store and observed you taking off masks and balaclavas in a park located near the store.

11It is the Crown case that you Basic, were one of the first two offenders to enter the store and were armed with a knife, and that you Thomas, were the last or second last offender to enter the store.

12Police located various items relating to this armed robbery including a knife in the surrounding areas.  On 25 August police went to your address Thomas, and arrested you both and another offender.

13At the premises, police located clothing matching that depicted on the CCTV footage from Werribee Plaza and the convenient store.  You both participated in records of interview. 

14You Thomas, made admissions in the record of interview in respect of both armed robberies and the theft.  I accept that it was you who proffered the details in respect of your involvement in the first armed robbery to police.  It was a consequence of this admission that you were charged.

15During the record of interview you Basic, made admissions to the armed robbery and theft and provided a full and frank account including as to who the others were involved.  You admitted you had the knife when you went into the convenience store and provided police details of the plan that had been made with the other offenders in relation to this offending.

16I was informed that all of the other offenders in respect of the second armed robbery have been dealt with in the Children's Court given their respective ages.  A different sentencing regime exists for these offenders though I note that none of them were required to serve time in a youth justice centre.

17No victim impact statements were prepared by Mr Lakkis or other members of his family.  There is no doubt that both of these incidents in his shop or residence would have been terrifying for him.  Both of your counsel properly conceded the victims were likely to have been traumatised by the offending.

18In respect of your personal circumstances, Mr Thomas, I was provided with the following material:

19Exhibit 1, report of consultant psychologist Tim Watson-Munro dated 10 April 2018.  He also gave evidence;

20Exhibit 2, letter from Jonathon Mitchell, youth services manager of AMES Australia dated 10 April 2018;

21Exhibit 3, material from various people from the Croydon Hills Baptist Church including letters from Matt Moran, young and young adults pastor at the church who also gave evidence;

22Exhibit 4, bundle of references including from David Bell, secretary of the Croydon Hills Men's Shed who also gave evidence; and

23Exhibit 5, supervised bail progress report from Youth Justice dated 16 April 2018.  The author of that report, Peter Robertson, is an acting court advice worker and also attended court.

24I take all of this material into account.

25You are currently aged 19.  You were born in Thailand in 1998 and your father tragically died in a motorcycle accident when you were aged seven.

26Your family are of Burmese origin but had fled to Thailand as refugees.  You thus grew up in a difficult environment in your formative years.

27You came to Australia with your mother and younger sister in 2008.  You had significant adjustment issues assimilating into Australian life with language and other cultural barriers.

28Your mother, cousins and members of your church were with you in court for support.  You are currently living with your mother and family in Mooroolbark.

29You attended primary school and then secondary school until Year 10.  In 2016 you attended Swinburne TAFE for six months, then obtained work as an apprentice plumber, work which you were undertaking between July 2016 up until a month before these offences were committed.

30It was at this time that you increased your marijuana use.  You have used various substances including ice and consumed significant amounts of alcohol.  I was informed that these are not significant issues for you, particularly since you have been released from remand and engaged with other community organisations.

31You were remanded on 25 August and remained in adult custody until
2 October 2017, a period of 39 days.

32Mr Watson-Munro linked your traumatic childhood experiences to your level of vulnerability with your peers.  He was of the view that you were vulnerable to peer group dynamics because of your background history.

33Additionally, he was of the opinion that your work history reflected your desire to immediately meet financial and other needs rather than adopting a broader outlook with positive and focused plans about the future.

34He regarded you as anxious and with low self-esteem and was of the view that behavioural cognitive therapy may assist in overcoming these problems.

35On your release from custody, you commenced work as a waiter at a restaurant and also began attending Croydon Hills Men's Shed.  With this organisation and also the Croydon Hills Baptist Church, you commenced volunteer work, undertaking various allocated tasks including gardening and working at local schools.  I was informed that you are fully occupied.

36This year you have obtained additional part time work in the kitchen at the Knox Club and are also playing soccer with the Maroondah United Football Club.

37Representatives from your church and the Croydon community expressed similar sentiments to those as Mr Watson-Munro.  They have noticed a shift in your demeanour and attitude since you were released from custody.  That at the outset you were quiet, disengaged and insular but as time has progressed, you have utilised the services and participated in programs and volunteer work, to the extent that you are now regarded as a valuable member of and contributor to these organisations.

38Your assistance with various projects undertaken by the Men's Shed has been valuable and you remain committed to this and other community work arranged by the church.  You have utilised on older male mentors in both organisations and also provided that role yourself to other young members of the church.

39You are also being assisted by Mr Mitchell from AMES Australia who is helping you to explore apprenticeship options.

40In respect of you Mr Basic, you are currently aged 19, though at the time of the offending you were 18.  I received a supervised bail progress report dated 16 April relating to the time that you've been on bail for this offending, commencing on 14 September 2017 when the Supreme Court granted you bail.

41I also received a report from Emma Norgate, drug and alcohol clinician at YSAS dated 13 April 2018.  I take this material into account.

42You live at home in Ringwood with your mother and two younger siblings aged 11 and seven.  Your mother, aunt, friend and girlfriend were in court to support you.

43In March this year there was a breakdown in the relationship with your mother and you commenced living in Warranwood with your girlfriend and her mother.  You did however return to your mother on 15 April this year.

44You had a close relationship with your grandfather who passed away in 2017.  He had been the most significant male role model throughout your life, with you having difficulties with your mother and her partners whilst you were growing up.

45On being granted bail you commenced employment with your uncle in a floor business however given personal differences with him, that employment was terminated in March.

46On 16 April you attended your first appointment with the Salvation Army Job Agency connected to Centrelink to explore employment options.

47Although you have reported low mood and depressive symptoms, there has been no formal diagnosis or previous engagement in psychological counselling or medical intervention.

48You were a talented soccer player, competing in a national competition, though you suffered a significant knee injury limiting your future in the sport.  It was at this time that you resorted to alcohol to help you cope.  You were consuming alcohol around the time of this offending.

49You have completed a drug and alcohol assessment from Youth Support And Advocacy Services, attending two appointments.  However YSAS are of the view that you do not require ongoing treatment or intervention. You play soccer on a Wednesday night at the Mitcham Baptist Church.

50Whilst on bail you attended 22 of the 24 scheduled appointments.  Your compliance has been good despite you experiencing in your family relationships and accommodation with you appropriately utilising supports from Youth Justice.

51You both pleaded guilty to these matters at the first opportunity.  I accept your pleas of guilty have significantly facilitated the course of justice and have a utilitarian benefit.  Mr Lakkis and his family were not required to give evidence and relive the traumatic incidents.

52I accept your pleas are indicative of remorse.  You have both acknowledged that your victims would have felt scared and traumatised by your actions.  You both are appropriately ashamed and embarrassed by your involvement in your offending and recognise the impact that it has had on your own families.

53These matters, along with the material tendered on your behalf and your level of co-operation with police are consistent with genuine remorse.

54There are features that all go well for your rehabilitation.  Both of your prospects appear good.  The experience of adult custody on remand was a sobering experience for both of you.  You Basic, described your time as a circuit breaker, and you Thomas, a salutary experience.

55You have both performed well on supervised bail for extended periods of time.  You have family and other support within your community.

56You Thomas, have part time work and have shown that you can work having engaged in an apprenticeship for almost a year and also engaged in voluntary work.  You Basic have also undergone full time employment and I was informed that you are engaged with the relevant employment service in an endeavour to seek work.

57You are both young offenders, have no prior convictions and no outstanding matters.  This is the first time both of you have appeared before the court.

58Your pleas of guilty and your levels of remorse.  I accept that specific deterrence is of less significance to you Basic, then to you Mr Thomas.

59There were some aggravating features in this offending.  The offending occurred in the company of others.  It was a very soft target and in respect of the second armed robbery, the same target.  That is an aggravating feature in respect of the sentence that I impose on you, Mr Thomas.  There was no suggestion that you Basic, were aware that the previous armed robbery had taken place.  You wore disguises.  The maximum penalty for armed robbery is 25 years.

60Principles of general deterrence, protection of the community, just punishment and denunciation of your conduct are important sentencing considerations for offending of this type.  Those who engage in this kind of offending involving groups of disguised and armed young men on soft targets should expect to receive stern punishment and the community expects no less.

61You both have turned 18 months before this offending.  As noted, your co-offenders were dealt with in the Children's Court in respect of the second armed robbery.

62Cases such as yours reveal the tension between significant sentencing principles of general deterrence given the objective seriousness of your offending and your young age.

63As noted by the Court of Appeal in Ghazi at paragraph 42:

"Whether a sentencing judge is called upon a temper the more punitive aspects of sentencing policy and leniency, in the case of a very youthful offender, the discretion which is committed to the sentencing judge assumes a particular significance.  The sentencing judge must be afforded latitude as to the permissible range of sentences which must be sufficiently brought to accommodate that leniency".

64I accept that your young age, level of maturity and rehabilitation prospects are all important sentencing considerations.

65Your counsel both submitted that each of you should be given the opportunity to undertake a community corrections order, but that if I was not minded to accede to that submission, that you were both suitable candidates for youth justice centre orders.

66The prosecution did not dispute the latter option, submitting that given the aggravating features and seriousness of this offending, that the only appropriate disposition included a requirement that you both spend more time in custody.  Though it was conceded that this could be served in youth justice.

67Given the seriousness of your offending, particularly you Mr Thomas, there is some force in the prosecution submission.

68I had you both assessed as to your suitability for youth justice and a community corrections order.  Each of the reports were positive.

69Ordinarily with offending of this nature I would impose a term of imprisonment.  However given that both of you spent some time in adult custody on remand and you have both engaged in a positive fashion with community organisations whilst on bail, I propose to give you the opportunity to undergo your sentences in the community on a community corrections order and to continue with the positive steps that you have taken towards your rehabilitation.

70The period of your community corrections order, Mr Thomas and the hours required for community work will be longer than those I will require of you,
Mr Basic, given your more serious criminality and different occasions of offending.

71It is important to note that each of you have spent time in custody and it will be noted on the records of the court that Mr Thomas spent 39 days in remand and Mr Basic 21 days in remand.

72Mr Thomas, in respect of all of your offending, I propose to impose a community corrections order for a period of three years.  There will be a condition regarding supervision.  There will be a condition regarding that you undertake 75 hours community work and also that you seek mental health treatment and rehabilitation as directed by Corrections.

73In respect of you, Mr Basic, I will make a community corrections order for a period of two years.  You will be required to do 50 hours community work.  There will be a supervision condition in relation to you and you will be required to undertake other programs as directed by Corrections.

74Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, Mr Thomas, I would have sentenced you to a term of imprisonment of three years in youth justice, and you Mr Basic, two years in youth justice.

75Now are there 464's and disposal orders?

76MS SAVILLE:  Yes, Your Honour.

77HER HONOUR:  If you could hand those up please.

78MS SAVILLE:  I understand, Your Honour, that they only get e-filed now.  That is the current practice which has been done.

79HER HONOUR:  All right, which means what?  We are supposed to print out four of them?  Is that the way it is supposed to work?

80MS SAVILLE:  As I understand that is the ‑ ‑ ‑

81HER HONOUR:  All right.  You should both understand that if you come back before the court by committing other offences you will come back before me for breaches of these orders and I will have no hesitation in placing you both in custody if you commit other offences, or breach the community correction order.  You can both sit down.  My associate will now prepare the orders.

82MR KENNY:  May it please, Your Honour.

83MS SAVILLE:  As Your Honour pleases.

84HER HONOUR:  Could counsel please just exist in terms of explaining the orders to both your clients, thank you.

85MR KENNY:  Yes, Your Honour.

86HER HONOUR:  Now the other order that I am about to make is a s.464 order.  That relates to your attendance at a police station and them taking a sample to be on the DNA database.  I understand that order was by consent.  The police can use reasonable force in taking that sample if you refuse to do so.  Thank you.

87Ms Saville, part of the delay here is because for some reason, the prosecution have not printed out these orders.

88MS SAVILLE:  Apologies, Your Honour.  I understand that it is a new practice that it no longer ‑ ‑ ‑

89HER HONOUR:  Well I do not know that practice but in any event that is the delay.

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