Director of Public Prosecutions v Chamma
[2012] VCC 767
•8 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 11-01743
Case No. 11-01744
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OMAR CHAMMA MICHAEL LUCISANI |
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JUDGE: | HIS HONOUR JUDGE MONTGOMERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 8 June 2012 | |
CASE MAY BE CITED AS: | DPP v Chamma & Anor | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 767 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Livitsanos | Office of Public Prosecutions |
| For Accused Chamma For Accused Lucisani | Mr T. Wraight Mr S. Norton |
HIS HONOUR:
1 Omar Chamma, you have pleaded guilty to one charge of false imprisonment and one charge of armed robbery and you have admitted your prior criminal history.
2 The details of your offending are set out in the summary of the prosecution opening which is Exhibit 1 on the plea and I attach that exhibit to these reasons for sentence. I do not now intend to recite the facts. The prosecution is accepted by the defence except for one small part which I will refer to in a minute, and it is the factual basis upon which I have sentenced. Any reader of these reasons can refer to the attachment which will be on the file to place the sentences in their factual context.
3 An issue has arisen with respect to paragraph 25 of the opening, in which is it put that the complainant was punched to the back of the head and knocked to the ground. Mr Wraight submitted on your behalf that the victim said it was your co-accused who did that and that they were his instructions. The prosecution position is that it is unable to say who struck the blows. Mr Wraight submitted that I could not be satisfied beyond reasonable doubt that it was you. I accept that, however it is not of great consequence as to the eventual sentencing outcome.
4 Your offending here is an escalation in seriousness of your criminal behaviour. Your prior history has meant that specific deterrence has a role to play in the sentencing considerations.
5 The prosecution submitted that you had spent 460 days in custody for these matters. Mr Livitsanos tendered two victim impact statements which I have read and I have taken their accounts into consideration. He has submitted that an appropriate range would be between three to three and a half years with a non-parole period of 15 to 18 months. He submitted that your offending here was more than the stupidity of a young man but was a violent and intimidating event for the victim and I accept that categorisation.
6 Mr Wraight handed up an outline of his submissions and I considered each of those. Firstly, he submitted that I should take into account your plea of guilty. Although it was a late entry, he submitted that it had a utilitarian value and I accept that, and he submitted it had a value in respect of remorse. I consider that to be remorse on a limited scale, given the timing of the plea as it was entered on the listed day of the trial after a contested committal.
7 Two, he submitted that you had a lack of relevant prior history. Your history in fact indicates you are a thief and have shown scant regard for court orders in relation to your right to drive. As I have said, your offending here was an escalation in seriousness as compared to your prior histories.
8 Three, in relation to the circumstances, I accept that this was an unplanned event but that once embarked upon it was violent, threatening and intimidating to the victim. It is my view that you were the major protagonist.
9 Four, I accept that because of your age, rehabilitation is an important sentencing consideration.
10 Five, I have read the references and have concluded that your family are perhaps somewhat naïve as to their knowledge of your antisocial lifestyle and drug habits, however I accept that they will support you and have the best of intentions in respect of you. Your brother has offered you a job and you will live with your sister Marla.
11 Six, Mr Wraight submitted that because of your family support, I could accept that you have good prospects of rehabilitation. It is always difficult to assess prospects of rehabilitation but because of the family support, if I had to categorise it, I would say it in the terms of you have some prospects of rehabilitation. Mr Wraight told me that you had had a long history of reliance on the use of the drug marijuana but have been drug free whilst in custody.
12 Seven, he submitted that whilst you have been on remand, in fact you have served an additional 30 days for another matter. He submitted I should take this into account in the manner suggested by the authorities such as Renzella and I have done so.
13 Eight, he told me of your personal history and, briefly put, you have four brothers and three sisters. Your parents are retired. You attended at Altona High School to Year 10. You have a girlfriend Danielle who has attended court, as has one of your sisters. You have had a number of jobs, including that in the hairdressing industry and indeed whilst you have been on remand you have had a position as a hairdressing billet at the prison.
Sentencing considerations
14 I have taken into account all of the submissions, exhibits and cases referred to by both the prosecution and defence. I considered s.5, sub-s.1 and 2 of the Sentencing Act. General deterrence and the court's denunciation of your behaviour are important sentencing considerations here. As I have already indicated, I consider specific deterrence is also a consideration. Because of your age, the entry of the plea of guilty and family support, I have considered that you have some prospects of rehabilitation and it is an important sentencing factor here as well.
15 However, you must have realised that you have to accept responsibilities for your own life. You must understand if you were to re-offend with such serious convictions that you have now, you will inevitably go to gaol for longer periods and your life will have been wasted. Your violent and intimidating offending here paid little regard to the effect that your behaviour had upon the victim.
16 Doing the best as I can, balancing all the sentencing considerations, on Charge 1 I sentence you to a period of imprisonment of one year. On Charge 2, I sentence you to a period of imprisonment of two and a half years. I direct that six months of the sentence on Charge 1 be served cumulatively with the sentence on Charge 2, which makes a total effective sentence of three years. I order that you serve a non-parole period of 16 months. I declare under s.18 of the Sentencing Act that the period of 460 days be reckoned as a period of detention already served.
17 I declare under s.6AAA that but for your plea of guilty I would have sentenced you to four and a half years with a non-parole period of two and a half years. So you have got about another two weeks to do. How does that affect the 464, which one do I sign?
18 MR LIVITSANOS: I've got that for Your Honour.
19 HIS HONOUR: Both?
20 MR LIVITSANOS: No, not both, Your Honour. No.
21 HIS HONOUR: Well, they get out there or wait until he's released?
22 MR LIVITSANOS: I have got the in-custody form for Your Honour to sign.
23 HIS HONOUR: I will do that. If you could hand it up, I will sign that now.
24 MR WRAIGHT: Your Honour, just in relation to the days served, if Your Honour wouldn't mind adding 460 days not counting today or 461 counting today just in case there's some - - -
25 HIS HONOUR: Well, I will say 460 days not counting today.
26 MR WRAIGHT: Thank you.
27 HIS HONOUR: Thank you. I make an order under s.464ZF(2) of the Crimes Act for the taking of a forensic sample, having considered the seriousness of the circumstances of the sample offence, I am satisfied that in all the circumstances the making of the order is justified for the following reasons: the seriousness of the offending, the order is by consent or not opposed.
28 Mr Chamma, someone will come and take a forensic sample from you whilst you are in custody in the next week or two. If for some reason you change your mind about that, the police can use reasonable force to do so. Do you understand that? Thank you. You can sit down, thanks Mr Chamma. Mr Lucisani, could you stand up please?
Michael Lucisani
29 You have pleaded guilty to one charge of kidnapping and have admitted your prior criminal history. This consists essentially of motor traffic offences, cannabis offences, dishonesty and possession of a weapon. Your offending here as in the case of Mr Chamma is an escalation in your criminal behaviour. You also pleaded guilty to a summary charge of possessing ammunition.
30 Details of your offending are set out in the summary of the prosecution opening which is Exhibit 1 on the plea and I attach that exhibit to these reasons for sentence. I do not now intend to recite the facts. The prosecution summary is accepted by the defence and it is the factual basis upon which I have sentenced. Any reader of these reasons can refer to the attachment which will be on file to place the sentences in their factual context.
31 At a sentence indication hearing, I indicated upon the provision of relevant material I would not impose an immediate custodial sentence. At that hearing, the prosecutor Mr Livitsanos accepted that that outcome was within the range in relation to you. The prosecutor, as he did with Mr Chamma, tendered two victim impact statements. I have read those and considered the contents.
32 On your behalf, Mr Norton made the following submissions:
33 One, you have pleaded guilty after a sentencing indication. A contested committal was conducted, however your plea still has a utilitarian value and is an indication of some remorse. I have taken it into account and given you the appropriate discount.
34 Two he submitted because of your age - you were 22 at the time, now being 23 - rehabilitation is an important sentencing consideration and I accept that.
35 Three, he tendered a number of reports in relation to you. I have considered the contents of each report. The most recent report is from Dr Simon Kennedy dated 28 May 2012. He is a clinical and forensic psychologist. He sets out what he calls your psychosocial history and I will not go through that again. It details the fact that you last worked for Toll Logistics for a period of about two years, some two years ago, and the physical and emotional abuse you and your mother have suffered at the hands of your father. He left home when you were aged 13.
36 You told him you had little memory of your offending here. He said that your account would indicate that the offences were caused by a combination abuse, including cannabis, benzodiazepines, as well as personality difficulties. In relation to your mental health issues, he set out your drug usage, which initially involved the use of heroin but still involves a daily use of the drug marijuana. He considered a number of the other reports which were tendered in this hearing, including that of Ms Freeland and Dr Cunningham and Dr Ball.
37 In "conclusions", he says that you have had significant problems throughout your life growing up in a dysfunctional family circumstance with your family being a violent alcoholic. You began using cannabis at the age of 15 and you have extremely high levels of cannabis. He said you present as a person with significant psychiatric difficulties largely connected to the effects of your substance abuse. He recommended that you were a person who requires intensive psychiatric assistance. Mr Norton informed me that your mother has left your father and you and her are living together and it is your intention at some stage to attempt to leave Melbourne.
38 Your role in the offending in my view was subordinate to Mr Chamma and I accept that.
39 I ordered you to be assessed for a community corrections order and all parties have received that. In that, the writer of the report Richard Temple-Camp outlined your history of how you coped with previous CBOs. In relation to the third one you got in 2010, he said that you complied with the program and in particular with the treatment and supervision conditions. Your offending here in fact breaches that CBO and that will be dealt with at the Magistrates' Court. You acknowledged to him that you require support and treatment. However, not implausibly, you were assessed as a high risk offender and given that assessment and your offence history, he recommended the conditions that I have imposed, including those for offending behaviour. You expressed your willingness to comply with all those conditions and it was determined that you were suitable for a community corrections order.
40 As I have already stated in sentencing Mr Chamma, general deterrence and of course denunciation of your conduct are important sentencing considerations in this case. Specific deterrence also had a role to play because of your prior criminal history. You took part in a violent and intimidating criminal offence. With this conviction on your record, should you re-offend, you will inevitably go to gaol. You must realise that this includes any future use by you of the drug cannabis. Hopefully the programs that you will attend under the CCO will assist you in some way to deal with that.
41 On the charge of kidnapping and the summary charge of possessing ammunition, I place you on a community corrections order for a period of 12 months with conditions that you do 200 hours of unpaid community work, that there is a s.48(e) supervising condition, there's a s.48(d)(3) treatment and rehabilitation condition in respect of drug use and dependency and also in relation to alcohol. It is also a condition of assessment for mental health and treatment and also an offending behaviour program.
42 So Mr Lucisani, that is a lot for you to cope with. You have to do the work, you have to go to all these programs. It is an attempt by the court and the parties, your lawyer and even the prosecution do not disagree with what I am doing at this stage to try and get you to stop your spiral downwards. Now, if you do not take advantage of that, it is going to be very difficult for you to come back here before me and give me some other story as to why you should not go to gaol. Do you understand all that?
43 Under s.18 of the Sentencing Act, I declare that the period of three days that you have already served be reckoned as a period of detention already served. We have got the order there and - what are you looking at me for, Mr Norton, do you want something else?
44 MR NORTON: I'm just not entirely certain that Your Honour ought to or is required to reckon those days as served, bearing in mind that the period of imprisonment wasn't imposed.
45 HIS HONOUR: I can not hear you above the machine. Say that again out loud?
46 MR NORTON: In my submission, Your Honour is not required to reckon the three days as served under s.18.
47 HIS HONOUR: Because I am not imposing a gaol sentence?
48 MR NORTON: Yes.
49 HIS HONOUR: All right, well I will take that off.
50 MR NORTON: Thank you, Your Honour.
51 HIS HONOUR: If he comes back before me I will make it.
52 MR LIVITSANOS: 6AAA, Your Honour, as well.
53 HIS HONOUR: I do not have to do a 6AAA, do I?
54 MR LIVITSANOS: I think you do, Your Honour.
55 HIS HONOUR: He is not going to gaol?
56 MR NORTON: I think you're right on the cusp, Your Honour, 200 hours is the - - -
57 HIS HONOUR: Is it? I have to do one?
58 MR LIVITSANOS: Out of abundance of caution, Your Honour, if you're able to just make a comment, then Your Honour ought indicate but for the plea, Your Honour, what you would have imposed.
59 HIS HONOUR: Under s.6AAA, but for the plea of guilty, I would have imposed a sentence of three years with a non-parole period of two years.
60 MR NORTON: As Your Honour pleases.
61 MR LIVITSANOS: Your Honour, the order previously made in relation to the 464 at the station of Flemington I think - is that right, Mr Norton?
62 MR NORTON: I'm sorry, Your Honour, I'm just making a note of the s.6AAA declaration?
63 MR LIVITSANOS: Flemington?
64 MR NORTON: Yes.
65 MR LIVITSANOS: If Flemington can be just added, Your Honour, to that 464 order for Mr Lucisani.
66 HIS HONOUR: Do I have to say that or write it anywhere?
67 MR LIVITSANOS: I think there's a gap, Your Honour. There's a space, Your Honour, where Your Honour can enter the station where he'd be require to attend.
68 HIS HONOUR: Yes. Can you go up with my associate, Mr Norton?
69 MR NORTON: Yes, Your Honour.
70 HIS HONOUR: You have signed this understanding the effect and conditions of this order, Mr Lucisani? Thank you. Have I finished with Mr Chamma? Anything else I need to do, Mr Wraight?
71 MR WRAIGHT: No, sir, thank you.
72 HIS HONOUR: Mr Chamma - can you take him out thanks? Mr Lucisani, you can come out of the dock if you like. Thank you gentlemen.
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