Director of Public Prosecutions v Edan
[2022] VCC 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-22-00585
Indictment No. M12332145
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MURTADA EDEN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2022 | |
DATE OF SENTENCE: | 18 November 2022 | |
CASE MAY BE CITED AS: | DPP v Edan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2016 | |
REASONS FOR SENTENCE
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Catchwords: Robbery and armed robbery. RCI in armed robbery. Summary offences: Commit indictable offence on bail and possess drug. 18 years old at time of offence, 19 years old at sentence. Early guilty plea (Worboyes v R [2021] VSCA 169). Youth. COVID-19. No criminal history. On Youth Parole at time.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Dane | The Office of Public Prosecutions |
| For the Accused | Mr W. Barker | Theo Magazis & Associates |
HIS HONOUR:
1 Murtada Edan, you have pleaded guilty to four charges on the indictment before me, being one charge of robbery, one charge of armed robbery, one charge of recklessly causing injury occurring in the aftermath of that armed robbery as well as a charge of possession of a small quantity of cannabis.
2 You have also pleaded guilty to three summary offences of committing an indictable offence whilst on bail, and the offences are those that are set out in the indictment.
3
You were born in December of 2002 and so you are 19 years of age, turning 20 in less than a month and you have no formal prior criminal history. You were on bail at the time of this offending and I have been told about those matters. I have also been told of subsequent matters that have arisen. One of those has been dealt with in July of this year. There have also been various other things that have arisen since the plea was conducted on
1 September, including one where there's been a finding of guilt without conviction in relation to an incident with your father and some damage to property.
4 The maximum penalties for the matters I am dealing with are correctly set out in the prosecution summary. I accept that the lower penalty provision applies to the possession of cannabis charge, which is Charge 4. I will scarcely really mention that charge again. It pales into insignificance compared to the other offending I am dealing with.
Facts
5 Now Ms Dane appeared to prosecute on the plea and appears once again today, and she relied upon a written summary of prosecution opening that was dated 2 August of 2022. It was marked as Exhibit A and your counsel Mr Barker told me that it was an agreed opening.
6 It is unnecessary then for me to descend to the full facts of the crimes that I am sentencing you for, because of course I will sentence in accordance with that agreed summary which is far more detailed. I also have some restraints arising from the video link as well, which concludes at 12:15pm. But that is not the main reason why I will not be going into the chapter and verse in my reasons to the facts. I just do not need to. I am sentencing in accordance with those agreed facts placed before me. I still should say something about the facts, and I will do that briefly.
7 So briefly stated then, on those two occasions a day or two apart you were masquerading as a purchaser of mobile phones that had been advertised for sale on Facebook marketplace. You contacted each of the sellers using a Facebook account operated by you, one which did not disclose your real name. You were posing as a purchaser and you arranged to buy each phone for cash. Of course, you were not a buyer at all. This was just a device or a pretext to get the victim out to a location so you could then relieve them of their phone. You set up meetings.
8 Mr Houlis was the first of your victims and he attended at the designated location on the evening of 7 November of last year. You approached him, identified yourself as the buyer and the two of you then discussed the terms of the sale of the phone. The sale price was $1,050. He gave you the phone to look at and you took a couple of steps back and said: 'If you try to come after me, I'll stab the fuck out of you'. You sprinted off.
9 So, that charge is laid as a robbery. I note that you were on bail and that the bail condition had a curfew at that stage. It is not clear if you fell foul of that curfew one way or the other, so I put that aside. The fact of being on bail though is a matter in aggravation not whether you happened to breach the curfew or not.
10 The next day you contacted another seller, this time it was Mr Choo. He had a phone for sale for about $900. You expressed interest using that same fake Facebook account. Ultimately, it was arranged that you would meet on 9 November in the afternoon. He exited his vehicle once you arrived at the scene. This was the same street you had used in that earlier robbery that I have discussed.
11 You asked him to erase all the data and then to unlock the phone and he did those things. There was discussion about the sequence of the handing over of the cash. He handed you the phone as you said you would hand over the cash. You pocketed the phone and you then produced a knife telling him 'back off it's over now'. He was scared and he did so and you then walked off. He followed you though and the summary describes what you were saying, issuing threats to slit his throat if he did not walk away. I am not dealing with you for these matters though, by way of sentence. It is there as the context for what you then did do. Regrettably what you then did, is at one point, you walked towards him and you swung the knife into his upper right arm. Hence the recklessly causing injury, the subject of Charge 3.
12 You swung it a second time and thankfully he avoided that blow directed at his stomach. You ran away. He followed and there was a later confrontation where he hit you with a branch of a tree and you dropped the knife, which he was able to pick up first. You then abandoned the phone and ran.
13 This was serious stuff Mr Edan. Mr Choo required some stitches at hospital. He did not require overnight admission though. You were on bail at the time having had bail extended at Heidelberg Magistrates' Court only some days before. You were on bail for theft of petrol, some driving offences, resist police and some drug offences said to have taken place in May and July of 2021, and I think they are the matters that are listed and will be proceeding as a plea. That is the position Mr Barker, they are the ones that are listed for the plea next week?
14 MR BARKER: Yes, Your Honour.
15 HIS HONOUR: Yes, thank you.
16 You were captured in some CCTV footage or phone footage of each of the events and you were identified by a police member familiar with your appearance. You were arrested on 10 November at your home and some cannabis was found in your bedroom, hence Charge 4. The police also located Mr Houlis's stolen phone.
17 The interview was conducted. You declined to respond as was your right. You made some 'smart comments' along the way about the questions being asked of you. That is not a matter of aggravation of course. You were remanded in custody. You were then bailed on 29 November and you had then been supervised on that bail by youth justice, and on the whole doing pretty well in the course of that bail.
18 There was a report before me as to your efforts that is marked as Exhibit 3. That of course must now be read with knowledge of the un-folding chronology since I saw you in September which is less pleasing. You have been in and out of custody since I saw you and of course you are now back in. I have no control over that. You have been remanded in custody in relation to offending that is before the courts. There is a listing of a range of matters on 24 November.
19 So much then for really what is only a short summary of the summary of what I am dealing with. That is all it is. I will sentence pursuant to the more detailed agreed statement which was marked as Exhibit A. I was told that the Director did not submit that the armed robbery was a category 2 offence, owing to the fact that the injury was not directly connected to the armed robbery. Your counsel supported that submission. I act on that joint submission. So, the ramifications of a category 2 offence are not things that arise in this case at all. That has become less important though, given the concessions that are made here today by your counsel that I must confine you for a further period.
Impact
20 There is no impact statement here from either of these victims and I hardly need one. This was frightening offending obviously. Mr Choo was in fact stabbed by you. Mr Houlis felt shocked for a number of days. There is no evidence of any long-term impact.
In Mitigation
21
Mr Barker conducted the thorough plea on your behalf and relied upon a written outline dated 30 August of this year. The plea was conducted on
1 September. Now, he amended aspects of that as he had come into information as to your subsequent matter and he needed to correct any assertion of there being no other offending. He also raised on the last occasion, the issue of the risk of deportation, flowing from a question that I posed.
22 He relied upon a report from Mr McKinnon. There was a job refence from your father and that report from youth justice who had supervised you on bail since November of last year. Again, I say that report has to now be read in light of what has transpired since. There is reference to that in the suitability for youth justice pre-sentence report that I have had marked as Exhibit D.
23 He made submissions as to your prospects of rehabilitation and argued that they were good. He relied on the last occasion, and continues to rely upon the following matters in mitigation.
· Your early guilty plea in the midst of the global pandemic;
· The presence of remorse;
· Your youth;
· the absence of any prior criminal history and your past positive response to supervised bail, but of course recognised that a number of things have occurred since that submission was made to me on 1 September;
· the increased burden arising from COVID-19; and
· the risk of deportation in the two manners contemplated by the case law.
24 He was, on the last occasion arguing that the matter should be deferred, and arguing either for a combination type sentence, that is a prison term with a Community Corrections Order, but without any further time to serve, or a youth justice detention order in the event that there was further time to serve.
25 Today of course he has submitted that a Community Corrections Order is no longer an option in this case, either stand-alone or in combination, and that the court really is left with no option but to confine you and given your age and youth and vulnerability arising from your youth, that I should detain you in a youth justice facility.
Prosecution
26
The prosecution relied upon some comprehensive written submissions as to sentence, dated 31 August. They made some submissions about the nature and the gravity of the offending as well as the relevant sentencing principles at play in this case. They took me to current sentencing practices. They argued that your culpability was high here and though youth was an obviously important consideration, the seriousness of the offending demanded a custodial response and one plainly extending beyond the
20 days that you had served in adult custody.
Background
27 I turn briefly to your background. It is set out in the expert report. It is set out in the youth justice document relating to your supervised bail. It is also set out in great detail in the assessment report - the pre-sentence report that I have called for.
28 You were born in New Zealand, you grew up there before coming to Australia when you were about 12. You are not an Australian citizen and that raises this issue of the possibility of deportation. I will come back to that.
29 You have been brought up by your mother and father. You were one of four children. Your dad is a barber, your mother a youth specialist care manager, but I was told she was on maternity leave with your baby sister. You are the second oldest child with a brother above you and one below and that one-year-old sister. You have had a relatively stable home life it seems to me.
30 You were educated to Year 12 and the offending occurred in 2021, which was a year that so many found very difficult owing to the pandemic. You had some thoughts of pursuing tertiary studies at the end of your schooling. You lost your motivation for tertiary study during the lockdowns and the pandemic. You drifted for a year I was told.
31 At the time of the plea you were working in the family barber shop and had been doing so since about February of this year. There was a reference from your father who employed you. That has all changed of course in the period of the adjournment. You have been excluded from home and that workplace because the safe contact order that existed has been varied to be a full non-contact order. Of course, you have since returned back into adult custody.
32 You have had some issues with cannabis.
33 You have no formal criminal history though of course you were on bail at the time of this offending and there are these other matters that are now pending as well, that are spoken of in the submissions today and it is not necessary for me to go chapter and verse into all the details of those other matters, in these my reasons. I have been told about them. Some of the matters listed on the 24th, have settled by way of guilty pleas, others your counsel has to get instructions in relation to that. So, I do not treat them as proved allegations against you. That would be quite wrong to do that.
34 I had also been told of the safety notice which had been issued to you in July of this year and your breach of that, so it is a subsequent matter and that related to an argument with your father and the punching of a hole into the wall from memory.
35 You had done pretty well on the supervised bail at the time when I saw you. You had responded to the various supports in place. There had been a few issues that had been discussed in the report, and there was a drug induced psychosis with hospitalisation in June flowing on from drug use and then perhaps a period of four weeks leading into early August where you, for whatever reason, went missing. I note that that was a day after you were dealt with in court for the subsequent matter that I have just mentioned. But as I say the report was a positive one and though things have unravelled a bit since I saw you, it does not remove what is contained in that report.
36 There is a chronology that has been placed before me and by the prosecution and insofar as it speaks of a matter being listed for guilty pleas on the 24th, that is not right. But it goes through some of the chronology and some of the allegations of fresh offending and explains why you are back in custody in an adult prison at this point. So plainly the position is not nearly as strong as it was when I saw you on 1 September and you, I am sure will recognise that.
37 I consider then the various other matters raised by your counsel, in what has been a comprehensive plea conducted on your behalf. As I say, many of these things, they are not altered by what has occurred since I saw you, alright?
Guilty plea
38 One matter for instance, is the fact that you have pleaded guilty, well that has not altered, that is what you did, and you get credit for that. It is an early guilty plea entered at what I judge to be the earliest stage and as a result of that, there have been those considerable savings by pleading guilty. You have taken early responsibility for your offending.
39 I was not greatly impressed by the argument that you were forsaking some realistic or viable defence in relation to the armed robbery. The defence being that the offence was an ‘attempt’ and not a completed offence. It was plainly a completed offence. So I do not pay much weight to that submission.
40 But the benefits of a guilty plea are not dependent on the strength or otherwise of the prosecution case. You have pleaded guilty and as a result of your plea, the time, the cost and the effort of a committal hearing in the Magistrates' Court or a trial in this court has been avoided. The witnesses have not been required to give evidence.
41 So you have facilitated the course of justice. Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes v The Queen[1]. You may or may not know this, there is a very large backlog of cases waiting in the wings for trial in this court. Well, this case is not one of them. It never has been and that is because you have put your hand up and you have admitted your guilt, all right?
[1]Worboyes v The Queen [2021] VSCA 169
42 So, I take these various matters into account in mitigation.
Remorse
43 In terms of remorse, I accept the Crown submission that there is little direct evidence of it, at least at the time of the plea but I have got documents that have arisen since then, the assessment report for instance. I have your early guilty plea as well and I am in fact, prepared to find that you are remorseful for this offending and I take that into account in your favour as well.
Rehabilitation
44 I turn to your prospects of rehabilitation, and, again, I think I can be brief here. You are a youthful first offender and that has not changed, and the fact that you have got these other matters, and the fact that there's a subsequent matter or subsequent matters that have been dealt with, that does not change the fact that I am dealing with you, as a youthful first offender. So I do apply the principles dealing with youth from cases I am well familiar with, such as Mills[2] and Azzopardi[3]. They have real weight in this case, and that has not altered.
[2]R v Mills [1998] 4 VR 235
[3]Azzopardi v The Queen [2011] VSCA 372
45 So far less weight is given to the punitive purposes of sentencing, and far more weight is devoted to rehabilitation. Whilst I have no doubt at all that you have quite positive prospects of rehabilitation. I take perhaps only a slightly less optimistic view than I would have a couple of months ago, given the events occurring since and the changes in your life. But you are still a youthful first offender. Of course, that is a matter of real significance to my task.
46 The weight to be given to youth and rehabilitation varies from case to case. It does not just apply automatically the same way in every case. But generally speaking, the more serious an offence, the less weight will be given to youth and rehabilitation. That is because more weight is devoted to some of the other purposes of sentencing. I will not lose sight of your youth. It is a very important consideration here.
47 This was not sophisticated offending. It was serious enough make no mistake about that. But you have shown that you can adhere to the structure of supervised bail. You have shown that you can take on board assistance and advice. You have been in the workforce. You have family support but no longer the ability to live in the family home, which is of course a big alteration. The other big alteration of course is you are back in custody. You hoped to engage in tertiary studies when last we met and you were considering if you would do a business course or studies in Chiropractory.
48 Well your present position will make that difficult but you need to pursue these sorts of things. You are still a very young man, and you can still have a contributing existence in the community. I have no doubt about that. Having the court case over your head of course made it difficult for you to confidently move forward in your life and pursue those sort of things in the lead into court.
49 It is a bit hard for me to know how you fell into crimes as serious as the ones that I am dealing with. The suggestion of peer influence or falling in with a bad crowd seems unlikely to be the complete answer in the sense that these crimes were committed 'one up' by you. They were premeditated, they were deliberative, they were calculating offences. You were living at home and had no great need for money. But the explanation I think perhaps lies in the report that has been received by me; you were needing money for drugs and not wanting to disclose that to your parents for obvious reasons.
50
I have not said much about the report of Mr McKinnon and I do not intend to. It does not take me very far at all. It does not satisfactorily explain the offences. He seems not to factor in matters for which you were on bail and the suggestions of peer influence seems not to be the answer given the individual nature of your crimes. Nor does your counsel rely on
Mr McKinnon's view as to your level of risk. It is obvious that Mr McKinnon did not know about the drug induced psychosis or the subsequent offending or the later drug use. Of course, he knows nothing about any of these other matters that have arisen since.
51 I take the report into account. Your counsel conceded it was a very limited report. He placed far greater reliance on the youth justice supervised bail report and for good reason. That is far more useful to me. It still is useful to me. It is a positive document on the whole and demonstrates that you can actually buckle down and engage. As I have said, things have come a little bit unstuck since these submissions were made to me on 1 September.
52 You spent 20 days in adult custody and that was not easy time for you in relation to this matter. One would hope that that would have some role in deterring you. Of course, you are back in adult custody now though not under sentence. Some of those might be found guilty, some may not. Some you may plead to, I can make no judgments about how those things will end up. But you are back in custody and you do not want to be in adult custody, that much is very, very plain, so these things will have some impact on you by way of specific deterrence.
53 Mr McKinnon speaks of the risks of imprisonment for one as young as you and I hardly need to be told about those things, I am well aware of the risks posed to a youthful offender.
54 I am prepared then to find that you still have relatively good prospects of rehabilitation, but you will need to abstain from drugs, that much is pretty obvious. If you keep using drugs well those prospects will be far less rosy. They will dip pretty sharply actually.
COVID-19
55 I turn then to COVID-19. It is not a big issue in this plea. There is no doubt that confining you, is a big step, of course it is. It is always a big step to confine or imprison a youthful first offender. It would expose you to other offenders and it is, as I say, a big step to take, but it is one that I have to take in this case as is conceded. Well, this then brings into play the impact of COVID-19 and that has a role to play in increasing your burden either in an adult prison or for that matter, a youth justice facility.
56 Now many of the actual burdens arising from COVID have really been phased out, some of the past restrictions and limitations are no longer there. But it seems reasonable to think that there is still going to be some issue thrown up by COVID-19 in the coming several months and there would have been in the 20 days that you have served as well. So I take into account those matters. I take into account that you have served 20 days in adult custody in relation to the sentence I will pronounce, amidst the restrictions arising from the pandemic and there will be some ongoing issues arising from the pandemic in the sentence that I will soon pass upon you.
Deportation
57 I turn then to the risk of deportation, and I do not do this to cause any panic in your mind. That is not why I am raising it. I am raising it to make it plain that I take into account. I have to. There is that risk here. I wish there was not, but there is. The very mention of it would be an alarming thing to one as young as you. There are these automatic visa cancellation provisions which are engaged when a sentence of greater than 12 months' imprisonment or detention is imposed. “Imprisonment” includes detention under the terms of that Act.
58 It is reasonable then to proceed on the assumption that your visa will be cancelled if a sentence of 12 months or more is imposed. Well, it is not my task though to deliberately try to avoid the consequences of these provisions by limboing under that number. What I have to do is pass an appropriate sentence. But I do take into account these risks. You would have the opportunity to ask for reconsideration of any decision and, dependent upon who made that decision, should it go against you, there might even then be the ability to take it further before either a court or a tribunal.
59 It is really terribly difficult for me to make any prediction as to how those matters would play out and your counsel accepts that that is so. That is rather the point that Mr Barker is making. There will be a state of real uncertainly in your mind and that is not easy. There is just no question that you would have been feeling and would continue to feel real anxiety about this issue and the real prospect of losing the opportunity of settling permanently in this country.
60 These are matters I am entitled to take into account in mitigation. You really have had no connection to any other country for many years. You have been here since you were 12 year old. But if a sentence triggering those provisions is the appropriate outcome, well that cannot impede me from imposing an appropriate sentence. It is just that I will then take into account these two limbs of the deportation case law in mitigation. I do.
61 It increases your burden whilst you are serving the sentence and it is a much harder business for you to focus on that and also there is that risk of actually being deported and losing the prospect of remaining in this country, which is your country. One would hope that anyone considering these matters would reflect on the reality of your position and your link to this country and lack of link to any other and exercise some humanity in that decision and allow you to remain in the country.
The Offences
62
I have to pay regard to the nature and the gravity of the offences before the court. These were not childish crimes. You planned to commit them. There is significant enough premeditation, obviously enough. You were enticing out these owners so that you could steal their phone. You carried a knife to the armed robbery. Armed robbery is an inherently serious crime. Robbery is less serious but still serious enough. Armed robbery is punishable by a
25-year term of imprisonment and this one regrettably led on to an escalation. You were carrying a serious knife and one that foolishly you used to inflict injury recklessly in the aftermath of that armed robbery.
63 Well the use of a knife like that in the way that you wielded it is potentially catastrophic. So these property crimes were premediated crimes, the recklessly causing injury was obviously less so, it occurring as the armed robbery looked to be unravelling. But the recklessly causing injury, is no minor example of that offence given the setting and the mechanism.
64 I accept that these offences are relatively unsophisticated crimes with very limited steps to disguise your appearance in only one of the offences. The phones were recovered. One left at the scene, one found in your bedroom the day after the offence. These offences fall a mile away from the highest level of offence seriousness. But they do not fall at the lowest level. That was accepted by Mr Barker on your behalf. They each involved soft targets. They were each enticed out into the open bearing the property that you planned to take from them.
65 You were on bail at the time.
66 The drug offence, as I said, I would barely mention it again and I am mentioning it, is obviously far less serious. I apply the lower maximum penalty and I am satisfied that any trafficking purpose is excluded and that the possession was for personal use.
Purposes
67 Turning then to the purposes of sentencing. There are a number of purposes and rehabilitation is one of those and it gets far greater emphasis in my task given your age and the lack of any formal prior criminal history and your relatively positive efforts in the period since. Now, there have been some things that have come unstuck over the last couple of months of course, but that does not remove the efforts that you have made, and the judgments that I make about your prospects of rehabilitation. I still view them positively.
68I have to punish you. I have got to do that justly and proportionately.
69I must also denounce your conduct.
70I really must. This was serious criminal conduct. You should be ashamed of yourself. I think you are.
71I have to give weight to community protection.
72General and specific deterrence must also be given appropriate weight.
73Specific deterrence relates to the need for the court to deter you and of course I have to give it some weight. But it would make no sense to give this purpose enormous weight in this exercise, when I have reached a relatively favourable view as to your prospects of rehabilitation. The same goes for community protection. Those purposes whilst of course they are still relevant, I must give them some weight, they fall away to some extent in my task. You are after all a youthful first offender.
74General deterrence is, however, still of real importance in this sort of case. It relates to the need to deter others. It can be moderated here to a degree owing to your youth and those pretty positive efforts whilst you were on bail in the lead in to that first appearance in September. You are in my view the wrong vehicle for significant emphasis to be placed on this purpose of sentencing. That really is arising from your youth. There is less culpability here.
75Whilst these punitive purposes of sentencing cannot be ignored, far greater weight is devoted to rehabilitation here owing to your status as a youthful first offender. As I say, there is some reduction in your culpability arising from your youth.
76I have to pay regard to the maximum penalty for each offence.
77I have to pay regard to current sentencing practices, but that is not a single controlling factor.
78No amount of looking at other cases or the sentencing statistics would ever provide the answer to a task in a given case. I have to pass an appropriate sentence upon you for the crimes that you have committed, taking into account the matters that I know about you and the matters I know about the crimes.
79I am exercising a sentencing discretion in your case. So the case of a youthful first offender with evidence touching upon some ongoing rehabilitation over a decent enough period since the commission of the offence and when you were bailed last November. Now, those efforts on bail, they must be adequately recognised in my sentence and of course there have been these issues arising during the bail and also of course, since my hearing the plea on that first occasion in September.
80 I take into account all of the submissions that have been made by your counsel and then those made also by the prosecutor. None of them bind me. I have got to reach my own view as to the appropriate sentence in this case.
Totality
81 I have to also take into account the principle of totality of sentence. My ultimate sentence must be commensurate with the overall gravity of your offending.
82Prison is a disposition of last resort. It always is. Your counsel argued on
1 September that it would be open to place you onto a stand-alone Community Corrections Order. That you did not need to spend any further time in custody. The Crown challenged the availability of such a disposition.83I called for the two assessments when you were last before me. So the assessment as to your suitability for detention in the youth justice facility and secondly, an assessment for your suitability for a Community Corrections Order. You are suitable for each, all right? That is the outcome of those reports.
84The youth justice centre assessment is very detailed and you are engaging and were still engaging appropriately with them at the time of that assessment. It speaks of your prospects of rehabilitation. It speaks of the likely deleterious impact of adult prison upon you of given your age, and not just your age but your particular personal features and immaturity. You are judged also to be suitable for a Community Corrections Order.
85Your being suitable for these dispositions does not provide the answer to my task. What is the appropriate sentence in this case?
86 As is often the case when dealing with a youthful first offender there are some strong tensions in the sentencing process. There is the undoubted seriousness of your crimes and the escalation thrown up by the use of the knife in the stabbing. There is the need to adequately protect the community and to deter you and others. But there is also the important consideration of the rehabilitation of a youthful first offender, which is very much a prized outcome in these courts and one that can be lost or jeopardised if amidst the public clamour for retribution, I send you to an adult prison in relation to my sentence, you are already there of course in relation to other matters.
87Protection of the community on occasion can be better served by keeping a person out of an adult prison actually, which is where you are currently though not on the matters that I am dealing with. I have turned my mind to the issue of detention in a youth justice facility. That is obviously a much more appealing concept. But of course, it still involves confinement and still must be treated as a disposition of last resort for that reason. The community has a sizeable vested interest in your ongoing successful rehabilitation. After all, the community needs no protection from an offender who is actually rehabilitated.
88I have received back these three reports. There is the CCO assessment report, there is the mental health assessment which did not really involve any connection to you and there is also the youth justice centre assessment report. I do not see the need to go into detail in terms of what I have been told in those documents. It is a very detailed pre-sentence report from the same authors of the earlier report that was marked as Exhibit 3. So a comprehensive report, which is extremely useful to me and you are clearly suitable for that disposition, the criteria set out in the relevant provisions of the Sentencing Act are amply made out in terms of your prospects of rehabilitation and your risk and vulnerability in an adult setting.
89You were judged to be suitable also for the Community Corrections Order, though that of course was before you had been excluded from home and work and prior to your going back into custody. Well I have only 20 days of pre-sentence detention to work with in relation to the matters I am dealing with. I can take into account in a broad fashion the other 32 days or so that you have been in custody since I last saw you, but they are not the subject of a s18 strict declaration.
90Well, your counsel on the last occasion, made submissions to me that if there was to be additional prison time above your existing pre-sentence detention that he would 'jump ship' from the submission as to a combination type order and press the court instead for a term of detention in a youth justice facility. That is what he said on the last occasion.
91Now, of course things have changed since that last occasion. You are back in custody. I have stood the matter down today to permit him to speak to you for whatever reason, you refused to board the van to be brought out to court with, established a video-link instead. There have been some detailed discussions taking place, obviously in my absence, between your counsel and you with your instructor present to get instructions from you as to what it is that you are asking the court to do here today.
92Now, the upshot of all of those things is that Mr Barker has been explicit. He firstly, does not wish to adjourn this case off, but I have made it plain that I would accede to any adjournment application to get any report that he wanted to get, in relation to your present position. He does not wish to apply to adjourn this case. Well no doubt one of the reasons for that is that I have no control over your position in an adult facility, you would remain in adult custody.
93So, he does not wish to adjourn or apply to adjourn the case. There were some matters that will be dealt with on 24 November, he cannot tell me at this stage exactly which ones are proceeding as pleas. Some are, some may not be. But he is explicit in the submission that he is no longer pressing for a Community Corrections Order, either stand-alone or in combination with a term of imprisonment. He concedes that in this case, there must be further confinement imposed and, in the circumstances, he urges me to deal with you today, to finalise the matter today.
94He asks me to not adjourn the case today, and again that is a recognition I think of the fact that any adjournment application made on your behalf will leave you sitting where you are sitting, in an adult institution. That is judged to be very much against your interests. Mr Barker makes that judgment. So too of course do the authors of the report that has been placed before me from youth justice. So, he essentially today urges me to finalise the matter. To impose a term of detention or terms of detention in relation to these matters, and to bring the matter to an end.
95I have considered that and I am prepared in the circumstances to do that. He has had detailed instructions from you in the past, when you were in a better frame of mind, and he is very concerned about your continuing to remain in adult custody. A term of detention if imposed by this court would then permit an application to transfer you from adult prison into the youth justice facility, because you are then a person undergoing that sentence.
96Anyway, look, ultimately, I am prepared to finalise the matter in the circumstances. I agree with the submission that a Community Corrections Order cannot sensibly be contemplated here. It could never really have been, in my judgment contemplated other than in combination with a term of imprisonment extending beyond the term that you would serve, because it is only that 20 days.
97In any event, he urges the court then to deal with you today and to deal with you by way of term of detention. That is ultimately what I will do. Not because he asks for it, but because it in fact meets the appropriate disposition in this case, if confinement is being considered as it ultimately has to be. The offending is simply too serious for anything other than that and a combination type order is simply not open here in any event.
98 So, this is what I am going to do then. I am sorry to have taken so long to get to this point.
Sentence
99 On the summary offences, and there are three of those. They are offences of offending on the bail. So Charges 5, 11 and 13, on those charges, I will, without conviction fine you an aggregate sum of $300.
100On Charge 4 on the indictment, which is the possession of cannabis, without conviction I will fine you the sum of $200. So, the fines are fines totalling $500.
101That leaves Charge 1, 2 and 3, which is the charge of robbery, the charge of armed robbery and also the charge of recklessly causing injury. I have no option but to confine you, there is simply no question in my mind about that. It is open to me, as it is imposing an adult term, to aggregate sentences and s32A makes that plain. Really these offences form or are part of a series of offences of the same or similar character. I think it is open and appropriate for me to pass an aggregate term in this case.
102So on Charges 1, 2 and 3 on this indictment, I convict you, and I sentence you to a period of 16 months' detention in a youth justice facility.
PSD s35
103You have spent 20 days by way of pre-sentence detention already and that will be credited, you will get credit for that, that declaration will be entered into the records of the court. I think there are some disposal orders too. I think I will simply, I am going to - it is only a single one is there?
104MS DANE: Yes, thank you, Your Honour.
105HIS HONOUR: There is a disposal order that is made under the provisions of s78 of the Confiscations Act. I am satisfied that the criteria for the making of that order is made out, that is the bag of cannabis and the knife. So I have signed that order and the items in the schedule will be handled in the matter contemplated by that signed order.
Section 6AAA
106I think finally, I will ask in a moment if there is anything else I need to do, but I told you I have taken into account your guilty plea. I have. If you had pleaded not guilty and been found guilty of these offences, I would have convicted and sentenced you to three years detention in a youth justice facility.
107Let me just see if there's anything else I need to deal with? Are there any other matters I need to deal with at all or not?
108MR BARKER: Just custody matters with issues Your Honour that's all.
109HIS HONOUR: Of course, all right. But otherwise everything else has been dealt with?
110MR BARKER: Yes.
111HIS HONOUR: From your perspective Ms Dane, any other matters or not?
112MS DANE: Nothing further, Your Honour, thank you.
113HIS HONOUR: So, anyway it is a 16 month aggregate. Now of course he will have no control over this and youth justice I don't fix a
non-parole period or anything like that, but he'll fall under the auspices of the Youth Parole Board, and there's mention made of that.114MR BARKER: They'll assess him for that on their own, yes.
115HIS HONOUR: Yes and there's mention made of that in the report. Whether he gets his parole of course will be a matter between he and them. But all right, so custody management. What do you want me to actually specify. He's been in custody and until he's transferred, he'll be where he's been for the last 30 days anyway so.
116MR BARKER: I understand that what I'm asking Your Honour to mention is a custody management issue, probably of what's already been treated, but I'm asking for it just out of a matter of caution, is that he be seen by a nurse in relation to mental health.
117HIS HONOUR: Yes. All right.
118MR BARKER: Which we all know, we all seem to believe he already has said but - - -
119HIS HONOUR: All right, so Mr Edan has some - what do I say, have some mental health issues or what do you want me to - - -
120MR BARKER: Well I was thinking along the lines of it's a custody management issue to be seen by a mental health nurse in relation to the mental health difficulties.
121HIS HONOUR: Mr Edan needs to be, right, needs to be seen by a mental health nurse in relation to mental health issues.
122MR BARKER: Yes, Your Honour.
123HIS HONOUR: And that process that you've mentioned, I forget the actual provision that you identified, that commence transfer, that's not a matter for me though, that's a matter for the authorities is it?
124MR BARKER: Yes.
125HIS HONOUR: Yes, so there's no need to - there's no point in me dealing with that, that's something that will need to be dealt with by who? By you or?
126MR BARKER: Yes, in the Magistrates' Court, Your Honour.
127HIS HONOUR: Sorry?
128MR BARKER: Us in the Magistrates' Court, yes.
129HIS HONOUR: I see, right. Aren't there other powers in terms of transfer or am I mistaken about that? I might be - - -
130MR BARKER: There's an order that the - at any point in time that a remand order is made or varied, there's an order that can be made that has him transferred on that remand over to youth justice.
131HIS HONOUR: Has that got to wait until the 24th, is it or - - -
132MR BARKER: Well, if it wasn't so soon that we had a - we're trying to get an earlier date.
133HIS HONOUR: Yes.
134MR BARKER: But at the latest point it'll be the 24th.
135HIS HONOUR: Yes, all right. Anyway, look that's not a matter that I needed to deal with, that's really what I am asking about.
136MR BARKER: No, Your Honour, that's correct.
137HIS HONOUR: And it's got nothing to do with me, but it is obviously highly desirable that he be transferred and all right. Well that completes the matter than and we're going to lose the link in a couple of minutes, or five minutes. Are you wanting to - I mean you can use it for as long as we've got it
Mr Barker.138MR BARKER: Thank you, Your Honour.
139HIS HONOUR: But no doubt you'll be making some other sort of appointment or conference time to speak to him about these matters or someone will.
140MR BARKER: Yes.
141HIS HONOUR: Yes, all right. Well, that completes the matter then Mr Edan, and Mr Barker will remain online and can have a brief discussion with you about what's occurred here today and - but he'll be making a further appointment to have some discussions about what's occurred and your rights in relation to what I've just done. So, but the link is probably going to drop out in a handful of minutes. Don't be disturbed when that happens. They'll be coming to see you, or see you online to discuss what's happened all right? I'll sign those orders down in chambers I think. Well that completes the matter then.
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