Director of Public Prosecutions v El Tawil & Anor
[2024] VCC 35
•22 January 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00350 & CR-21-02501
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABRAHIM EL TAWIL SECKIN KOC |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 December 2023 | |
DATE OF SENTENCE: | 22 January 2024 | |
CASE MAY BE CITED AS: | DPP v El Tawil & Anor | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 35 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Arson – Burglary – Theft – Renzella time – Youth – Plea of guilty – Rehabilitation – Delay
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Renzella [1997] 2 VR 88; Wheldon v The Queen [2011] VSCA 83; Thurlow v The Queen [2021] VSCA 71; Kenyeres v The King [2023] VSCA 25; Seiler v The King [VSCA] 171; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342.
Sentence: Community Correction Order for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr F. Cameron | Office of Public Prosecutions |
| For the Accused El Tawil For the Accused Koc | Ms S. Seoud Ms C. Marcs for Plea Mr S. Andrianakis for Sentence | Milides Lawyers Stephen Andrianakis & Associates |
HER HONOUR:
1Ibrahim El Tawil and Seckin Koc, on 12 December 2023 you each sought a sentence indication in relation to three charges of burglary, two charges of arson and one charge of theft. Mr El Tawil, there were summary related offences filed as part of your sentence indication that included two charges of committing an offence whilst on bail and a charge of fail to comply with direction to assist police. Mr Koc, there was no notice of summary related offences filed as part of your sentence indication, however, it was understood that on a plea you would face similar related summary charges.
2Your sentence indication applications were not opposed and were subsequently granted. After consideration of the very thorough submissions made by your respective counsel, I indicated that I would impose a community correction order by way of penalty on each of you, and each of you have accepted my sentence indication.
3Your matters proceeded to a plea hearing on 18 December 2023. You were each arraigned on Indictment C2114759A and pleaded guilty to the charges subject of the sentence indication. Mr El Tawil, you agreed to the filed summary related offences being dealt with by this court and pleaded guilty to the charges I have previously mentioned. Mr Koc, two summary related charges of commit offence whilst on bail were filed and you agreed to these charges being dealt with by this court and pleaded guilty to each of them.
4I requested a pre-sentence report from Community Corrections and both of you were assessed as suitable for a community correction order.
Circumstances of offending
5A summary of prosecution opening was read at the sentence indication hearing and has been tendered on both the sentence indication hearing and your plea. What follows is a summary of this document.
6Each of you were involved in the offending with Romazan Tawil, and that is Mr El Tawil's father, and at the time, you, Mr El Tawil were 19 and you, Mr Koc were 20.
7Your actions impacted several victims, mainly the owner and tenant at 744 High Street, Epping, but also neighbouring buildings and businesses.
8Approximately four weeks prior to your offending an unknown and unidentified male entered the store at 744 High Street and said to the store owner, 'You see that store, that's the only place that sells tobacco around here'. The unknown male gestured outside the store to a shop somewhere on High Street, Epping, and this male then left and the store owner continued to ready his store for opening. On 10 August 2021 store owner opened his store to the public and began trading.
9At 11.09 pm on 25 August 2021, Mr El Tawil, you sent your father a message asking to use the BMW. A short time later, Mr Koc and Mr El Tawil, you were dropped off at 21 Catalina Drive, Thomastown, where Mr Tawil was present. The three of you loaded a silver BMW parked at the front of the premises with jemmy bars and jerry cans. Mr Tawil then drove you, Mr Koc, and you, Mr El Tawil, in the silver BMW. You left the address at approximately 11.40.
10At 12.10 am on 26 August 2021, Mr Tawil parked the silver BMW at the rear of 766 High Street, Epping. He stayed with the car. You both got out of the BMW and gained entry to the rear yard, forced entry to the back door of 766 High Street, being The Cheesecake Shop.
11At 12.28, Mr Tawil, you sent your father the following message: 'Okay, like I said, make a line.' You responded: 'Okay, and come back here, we might have found the back - just need to make sure.' A short time later Mr Tawil returned to the rear of 766 High Street, Epping, in the silver BMW.
12At 12.30 am you both returned to the vehicle carrying Ferrero Rocher chocolates that you had stolen from inside the stockroom at The Cheesecake Shop. Mr Tawil drove away and a short time later parked the silver BMW on Coulstock Street, Epping, approximately 50 metres from High Street, Epping. You Mr Koc, and you Mr El Tawil, both got out of the car and approached the alley located at the rear of 744 High Street, Epping. Mr Tawil remained in the driver's seat of the silver BMW with the vehicle turned off. The two of you used jemmy bars to force open the rear door into a corridor, leading to the rear shops based on High Street. You both entered the corridor but you were unable to gain entry to any of the rear doors.
13At 12.50 you, Mr Koc, and you Mr El Tawil, approached High Street, Epping, from Coulstock Street. Mr Koc, you carried a jerry can in your hands, and Mr El Tawil, you approached the front door of 744 High Street, Epping, being IR Convenience, and pulled up the unlocked shutter door at the front of the premises. Mr Koc, you then approached the door and began to hit it with the jemmy bar and front kick it. For approximately ten minutes the two of you alternated between attempting to gain entry to the front of 744 High Street, Epping, and hiding on Coulstock Street to avoid detection as cars passed by on High Street.
14At 1.10 am, you Mr Koc, used a jerry can to pour an accelerant through the broken front before you, Mr El Tawil, set an unknown item alight with the use of a lighter. Mr El Tawil, you threw this item through the broken front door onto the accelerant which then caught alight causing a brief explosion. You both then ran southbound on High Street and returned to the silver BMW parked on Coulstock Street. You left the scene in the silver BMW.
15At 1.15 am witness, who was travelling southbound on High Street, Epping, when he observed the flames coming from the store and called Triple 0 to report the incident to emergency services.
16At 1.18 police observed the silver BMW travelling southbound on Harbard Street, Thomastown, and intercepted the vehicle as it pulled into the driveway at 21 Catalina Drive, Thomastown. The police recorded the conversation they had with each of you and Mr Tawil on body worn camera. They confirmed your identities. Whilst this was happening police communications notified of the fire at 744 High Street, Epping. The police left a short time later.
17In the meantime, Fire Rescue Victoria had arrived and extinguished the fire at 744 High Street, Epping. They were soon joined by multiple police units who established a crime scene. Whilst on scene police located and seized two jemmy bars, one jerry can nozzle and one broken lock mechanism from the vicinity of 744 High Street, Epping. Two forensic swabs were subsequently taken from the jemmy bars for further examination.
18At 2.04 am you, Mr El Tawil, sent a message that said, 'Dad, I'll pick up the chocolates in the car tomorrow'.
19At approximately 9.00 am police attended 744 High Street, Epping, and met arson chemist Rachel Noble who conducted a forensic examination of the scene. Whittlesea crime scene officers attended 766 High Street, Epping, and conducted an examination of the scene.
20After examining the scene, Noble concluded that petrol had been splashed on the front mat and in the doorway of 744 High Street, Epping, and there were no obvious sources of accidental ignition.
21CCTV was obtained from the vicinity of 744 High Street, Epping, and reviewed.
22Police body worn camera footage of the intercept at 21 Catalina Drive, Thomastown, and CCTV of Sopranos Pizza, Stockdale & Leggo and Chow Garden captured on CCTV established that the two of you were similar in appearance and wore the same clothing to the persons depicted in the CCTV footage.
23At 8:53 pm on 26 August 2021 you, Mr El Tawil, sent the following message to your father, 'Dad we need to do it again'. You then said, 'It didn't work'. Mr TAWIL replied, 'Can't no car'. At 8:55 pm you sent a further message to Mr TAWIL, 'Can we use it without the plates will leg it from cops'.
24At approximately 11:40, you both arrived at 21 Catalina Drive, Thomastown, in an unknown vehicle. Mr TAWIL was there. He exited the premises and got a hammer from the silver BMW that he then handed to you Mr El Tawil. Then Mr El Tawil and you Mr Koc removed jerry cans from the house. You both left in an unknown vehicle. Mr Tawil stayed at home that night.
25At 12:13 am on 27 August 2021, the unknown vehicle parked on Coulstock Street, Epping, approximately 50 metres from High Street. You both walked towards High Street each of you holding a jerry can. You both sat down on the bench seat outside 744 High Street, Epping.
26You then both approached the front door of 744 High Street, Epping, but turned and walked south on High Street away from the store to avoid being seen by a passing vehicle. The two of you then returned to the parked vehicle on Coulstock Street, which then left eastbound on Coulstock Street.
27At 1:02 am, you both approached 744 High Street, Epping, this time from southbound on High Street. Mr Koc, you kicked the door multiple times before forcing entry into the building. You then both entered the building holding jerry cans.
28A short time later the two of you exited the building. Mr El Tawil, you then ignited an unknown item before throwing this into the building. You both then ran southbound on High Street.
29At 1:08 am you both returned to 744 High Street, Epping, as the fire had not taken hold. You, Mr El Tawil, then placed a jerry can inside the store. You then lit an unknown item and threw this onto the jerry can causing an explosion. The two of you then ran back to the unknown vehicle parked on Coulstock Street, before leaving the scene.
30At approximately 1:10 am an unidentified male attended the Epping police station and notified Police of a fire at 744 High Street, Epping.
31At 1:14 am members of the Metropolitan Fire Brigade attended and extinguished the fire that had spread to both 742 and 746 High Street, Epping, the neighbouring businesses to 'I.R. Convenience'. A short time later they were joined by multiple Police units who established a crime scene.
32A jerry can and hammer were located at the scene and seized.
33At approximately 8 am Police attended 744 High Street, Epping, and met Arson Chemist NOBLE who conducted a forensic examination of the scene. After examining the scene, NOBLE concluded that the petrol had been poured or splashed in the main shop area and over the counter and ignited. NOBLE indicated that the probable source of ignition was a match or cigarette lighter.
34On 27 August 2021, investigators from the Whittlesea Crime Investigation Unit executed three simultaneous search warrants at the address of Mr TAWIL, and each of your addresses.
35Various items were seized from each address. From Mr Tawil's address items included chocolates stolen from the Cheesecake Shop, a mobile phone, a jerry can, a jacket worn by you Mr Koc as depicted in CCTV footage and a jacket worn by you Mr El Tawil, again as depicted in CCTV footage.
36Mr Koc from your address police seized a number of items including sneakers that had moderately evaporated petrol, tracksuit pants depicted in CCTV, a jerry can and a CCTV hard drive.
37Mr El Tawil from your address police seized tracksuit pants, Reebok runners that had moderately evaporated petrol, Air Max runners as depicted in CCTV footage.
38All three of you were arrested and transported to the Mernda police station where you were interviewed by Police. Buccal swabs were taken from each of you to compare to the DNA swabs taken from the crowbars left on scene on 26 August 2021.
39Each of you refused to allow investigators access to your mobile phones.
40Further investigation was undertaken by police. Neither of you could be excluded from DNA located on the crowbar seized on 26 August 2021. Further, fragments of glass were found on various items seized, that were determined to be indistinguishable from glass seized from 744 High Street Epping.
41Examination of the glass fragments found on the track suit pants, and one of the jackets were distinguishable from glass seized from 744 High Street, Epping, and therefore were not believed to have originated from the same source.
42The breakdown of quantum of damage to the specific properties is detailed in the prosecution opening. The total damage of your offending is estimated to be approximately $870,000. I accept that some of this amount is not able to be substantiated.
Victim impact statements
43Two victim impact statements were received by the court. The first of these was from the tenant of 744 High Street Epping. He describes that he lost everything. He had saved for several years to set up his own business and now he has nothing but ongoing debts. Your actions have impacted not only him but his wife and his children also. He has had trouble sleeping since his shop was burned and he lives in constant fear. He remains worried for his future and the future of his family.
44The second victim impact statement was received from the director of Stockdale & Leggo, Real Estate. The damage you caused has significantly interrupted and impacted his business and his 10 staff members. He had to have his entire staff work from home which had a negative impact on staff and customers. It has had a financial and emotional cost on those associated with his business.
45I take into account the significant impact of your offending on these men and each of the victims in sentencing you.
Nature and gravity of the offending
46The most serious offences each of you face are the two charges of arson. Arson is an inherently serious offence not only because of the maximum penalty of 15 years set by Parliament but also because it involves fire, which is dangerous and unpredictable. Although you chose to commit your offences at night, at a time when no one would be in the premises, the target of your offending was a shop that was one of several within a shopping strip. Not only were you successful in your endeavour to damage 744 High Street, Epping, on your second attempt, but you also caused damage to several neighbouring properties. Because of the location of the target of your offending in a built-up shopping area it was soon witnessed and reported to emergency services.
47Whilst the quantum of the damage you caused is not agreed and cannot be accurately stated, I accept that it is in the order of $870,000 and accordingly is very significant. Whilst you did not intend to cause damage to the surrounding properties you must have considered this as a possible consequence of your actions. The photographs included in the depositions graphically depict the damage that you both caused.
48Ms Bolton on behalf of the prosecution submitted an aggravating feature of your offending was that it was financially motivated. Ms Bolton was unable to point to any evidence that would satisfy the court of this aggravating factor beyond reasonable doubt. Further, it was conceded that the prosecution were not able to connect the earlier visit from the unknown male to either of you.
49Ms Marcs on your behalf, Mr Koc, described your offending as an act of vandalism that was unsophisticated. I agree with this characterisation of the offending with regard to both you Mr Koc and you Mr El Tawil. There was no special planning or equipment used apart from petrol, an accelerant and an ignition source, also your first attempt was a failure. However, despite the unsophisticated nature of your offending each of you were persistent and returned within 24 hours determined to carry out your intention to damage the property at 744 High Street. Of course on this second occasion you were successful.
50It is clear from the statements of those involved that your offending has had a considerable impact on the people associated with the damaged properties. In my view, it is the significant level of damage and the determined nature of your offending that make this a serious example of arson.
Personal circumstances – El Tawil
51Mr El Tawil, I will turn now to your personal circumstances. You were born in January 2002, you are currently 22 years old, and were 19 at the time of your offending.
52You grew up in Thomastown with your mother and father, as well as two younger sisters. Your parents separated when you were around 12-13 years old, however, your father remained in the family home until you were 16 years old.
53Your father did not provide a stable environment, he was often absent, and your family suffered financially. Psychologist Luke Armstrong, when assessing you on 18 and 20 October 2023, described your father as an exploitative attachment figure who was not present during your early development. Further, he was of the view that you experienced poverty and emotional neglect during your formative years.
54Your mother has worked in a variety of jobs to support the family. You have also worked from the very young age of 14, in order to support your mother and sisters. After you finished Year 8 at Lalor College you began work. You went straight into a concreting job at Aaywah concreting. You also worked a second job at a café in Thomastown.
55You decided to change trades and began working in carpentry with Stocon Group until your remand on 22 March 2022. Whilst in this employment you began to abuse ice having been introduced to the drug by your employer. You have also had issues with alcohol abuse. Whilst in custody you undertook several drug and alcohol programs with Caraniche including the six-hour Ice Effects Program, the three-hour AOD and Relationships program, and the six-hour AOD Stress Management program.
56After your release, you have remained abstinent from drug use and have worked consistently. Initially for two months in plumbing before joining a company called Ipcon Concrete Construction.
57You have worked there full time since, being 6 days a week, 7.00 am to 3.30 pm. In his testimonial to the court, your boss, spoke in glowing terms of your work ethic, contribution to the company, and the journey you have taken towards rehabilitation.
58More recently, you have enrolled in a Certificate III in Concreting to further your qualifications in the field.
59Whilst on bail for the last 14 months, you have not re-offended.
60You are now engaged and you are expecting your first child part way through the year. Your fiancée also wrote a reference which was provided to the Court. This letter detailed the significant rehabilitative steps you have taken, and the considerable changes you have made to your life. The letter also outlined the strong supportive family man that you are.
61In total nine references were tendered on your behalf. Each of them speaks positively of your character and capacity to reform. Importantly, they give the court confidence that you have support and prosocial connections in the community.
62As mentioned, you were assessed by Luke Armstrong consultant psychologist, he opined that you would not qualify for a personality disorder although you do present with features of a Dependent Personality Disorder. Further, the result of intelligence testing revealed that you present with Borderline Intellectual Functioning. Mr Armstrong summarised features of your impairment as follows.
(i)Mr El Tawil is concrete in his problem-solving capacity, specifically there was an absence in his capacity to demonstrate abstract and/or adaptive thinking.
(ii)Socially, he is immature, communication, conversation and language were similarly noted to be concrete and/or immature than when compared to his age mates.
(iii)I note that limitations in his intelligence were also consistent with observations made of his capacity to regulate emotion. For example, he cannot reconcile ongoing problems in the family and tends to acquiesce in the context of family problems versus an adult capacity to consider or reflect on the challenges that face him socially and emotionally and act accordingly.
(iv)The above-mentioned deficits would also transcend his understanding of risk in social situations, for example his capacity to use social judgement is immature for age, making him a probable target for being exploited or manipulated by more sophisticated individuals.
63I have taken Mr Armstrong's findings into account in formulating the sentence I intend to impose.
Personal Circumstances – Koc
64In terms of your personal circumstances Mr Koc, you were born in July 2001 and you were raised in Melbourne. At the time of your offending, you were 20 years old and are currently 22.
65You are the eldest child of three, with a twin sister and a younger brother. You are of Turkish background, with your father immigrating from Turkey about 20 years ago. Your mother was born in Australia to Turkish immigrants.
66Your relationship with your father was strained throughout your adolescence and adulthood. However, you had and continue to have a close relationship with your mother and siblings.
67During your childhood, your parents worked extended hours which meant you and your siblings were often left in the care of others. Your twin was often cared for by your grandmother, whilst you were cared for by extended family or friends. This was a point of strain for you as you felt you were treated differently to your twin.
68Mr Mathew Staios, clinical neuropsychologist, in his psychological report, stated that you reported exhibiting a number of behaviours consistent with conduct disorder during your adolescence.
69These included staying out past curfew, shoplifting, vandalism, poor attendance at school, and emotional outbursts. You reported feeling disconnected from your family and had an especially strained relationship with your father.
70You were expelled from Lalor Secondary College in Year 10 due to fighting with peers. You then attended Epping Secondary College, from which you were also expelled due to problematic behaviours and poor attendance.
71Your employment history has been relatively unstable. That is until your recent employment with FBN Cold Storage which started in June 2023. You have maintained this consistently and enjoy this work. In his testimonial to the court your employer said you have proven yourself as an invaluable asset. He wholeheartedly endorses you and believes you will continue to thrive in the future.
72In the past you engaged in drug use from the age of 16, predominantly cocaine. However, you have remained drug free since your remand, including the last 14 months out of custody.
73In total seven references were tendered on your behalf. Each of them speaks positively of your good character and capacity to reform. Importantly, as I have said in relation to Mr El Tawil, these references give the court confidence that you have support and prosocial connections in the community.
74Mr Staios, neuropsychologist, opined that your general intellectual functioning was within the borderline to extremely low range, and this is likely reflective of your unstable and inconsistent education throughout your adolescence and a likely verbal learning difficulty. Further, Mr Staios opined that your mental state is consistent with a diagnosis of adjustment disorder (with mixed depressive and anxious symptoms) and you had reported significant difficulty adapting to prison life and had experienced a significant decline in your mental state over the three months that you had been in custody prior to his assessment.
75I have taken Mr Staios' findings into account in formulating your sentence.
Mitigating circumstances
76Mr El Tawil and Mr Koc your respective counsel, Ms Seoud and Ms Marcs in their excellent written and oral submissions were able to call in aid powerful mitigating factors in your favour. In my view the most compelling of these is that at the ages of 19 and 20 each of you were remanded and spent 249 days - or 248 depending on whose submissions you read - in adult custody in relation to unrelated offending that has been discontinued. Although, I cannot reckon this time as time served, pursuant to s18 of the Sentencing Act 1991 I am not only empowered but obliged as a matter of justice to take this presentence detention into account.[1] In the circumstances of your case Mr El Tawil and your case Mr Koc I take the entirety of the 249 days you have served in adult custody into account consistent with the principles in the case of Renzella.[2]
[1] R v Renzella [1997] 2 VR 88; Sentencing Act 1991 (Vic) s 18.
[2] R v Renzella [1997] 2 VR 88; Wheldon v The Queen [2011] VSCA 83; Thurlow v The Queen [2021] VSCA 71; Kenyeres v The King [2023] VSCA 25; Seiler v The King [VSCA] 171.
77Each of you had a different experience in custody. Mr El Tawil you were at Marngoneet Prison and had the opportunity to engage in several rehabilitative courses and programs. Mr Koc you were at Port Phillip Prison and did not have the same opportunities. Both of you were however, incarcerated during the COVID-19 pandemic at a time when conditions in custody were more onerous than usual. I have had to regard to this as a factor in formulating an appropriate sentence for each of you.
78While it cannot be submitted that either of you have entered an early plea, your pleas nonetheless have facilitated the course of justice and saved the Court and the community the time and expense of a trial. In fact, your case was listed for a 10 day trial to commence shortly. Your pleas have saved the witnesses from being required to give evidence, which no doubt would have been a difficult and emotional experience.
79I have also taken into account the benefits of these pleas in the context of the court backlog, which though now easing, was still a relevant issue when your charges entered the court process. Therefore, your pleas of guilty will result in a perceptible discount to your sentences.[3]
[3] Worboyes v The Queen [2021] VSCA 169.
80The offending for which you are now to be sentenced occurred two years and five months ago. This is a significant delay particularly for two young men such as yourselves. Mr El Tawil you were 19 years old at the time you offended and have now just turned 22. Mr Koc you had just turned 20 at the time you offended and you are now 22. This matter has been hanging over your heads for a considerable time. Although you have been on bail for this offending you have both had the experience of over eight months remand in adult gaol for another matter. I am in no doubt that each of you found your time on remand to be extremely difficult. Further I expect that you have both been very concerned at the prospect of a return to custody.
81Notwithstanding the ongoing pressure of this matter being before court, each of you have performed well since being released from custody in November 2022. For the last 14 months each of you have obtained employment and remained drug free and offence free. Each of you have proven you have the capacity to foster rehabilitation.
82Delay of this length and where these factors are present is another significant mitigatory factor in your favour.
83At the time of your offending you each fell within the definition of a young offender under the Sentencing Act.[4] However, now at the time of sentence, at the age of 22 each of you no longer fit within this definition. However, you are still both youthful, and as submitted by your respective counsel, your youth should be afforded proper consideration in the sentencing synthesis. Each of you were found, upon psychological assessment, to have compromised intellectual functioning and aspects of immaturity. This in my view reinforces the weight the court should place on the principles that apply to youthful offenders. Importantly, neither of you have prior convictions and the offending although serious is not so serious as to displace youth as a primary sentencing purpose.
[4] Sentencing Act 1991 (Vic) s 3.
84Importantly, your youth intertwines with your prospects of rehabilitation, which I view as very positive for the both of you. Mr El Tawil, your counsel submitted that you have taken every possible step to rehabilitate since your remand. This is identified through the numerous courses you undertook in custody, as well as the lifestyle changes you have made since your release.
85You retain the strong support of your family, have stable employment, a stable supportive relationship, and are an expectant father. You also contribute to your community, coaching a local soccer team.
86Mr El Tawil, the character references provided to the Court all speak highly of your character. Importantly, the references also spoke of the changes you have made to help your pathway to rehabilitation.
87Mr Koc, you too have made considerable steps towards rehabilitation. Unfortunately, as submitted by your counsel, your remand was spent predominantly in Port Phillip Prison, where you were not afforded the same opportunities to undertake courses.
88However, your counsel, Ms Marcs, submitted the sobering and harrowing impact of your time in adult custody has had a very considerable salutary effect and has motivated you to change your ways. The numerous character references provided to the Court spoke of the significant impact of your time in custody, and how it enabled you to re-evaluate aspects of your life.
89Further, you too have stable employment and an extremely supportive family and partner who will no doubt assist you to continue and further your rehabilitation.
90Both of your counsel submitted that any sentence I impose should not interrupt your rehabilitation, and I have taken this into account in the sentence that I will impose.
Sentencing principles
91The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
92Mr El Tawil and Mr Koc, given your youth and background circumstances, general deterrence must be moderated to give way to the promotion of your rehabilitation as the primary purpose of sentencing. The weight to be given to specific deterrence must also be moderated in light of your lack of prior history, your experiences within the criminal justice system and subsequent reformation. In each of your cases I regard protection of the community to be a relevant consideration but I consider this will be best achieved by a period with support and supervision in the community and by fostering the path of reformation upon which you have each already embarked. It is my view that this is what will likely reduce the risk of future offending.
93I take into account the sentencing guidelines referred to in s5 of the Sentencing Act,[5] where relevant to your case. I have had regard to the sentencing landscape for the offending before me, in particular the offence of arson.
[5] Ibid.
94Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case. The principles of totality, proportionality and parsimony are also very important considerations here. They require me to make sure the total sentence is appropriate to the total criminality, that the punishment should fit the crime and that I should do no more than necessary to appropriately punish each of you. I have taken these principles into account in fixing the sentence I am about to impose.
95Weighing up all relevant matters I consider that a sentence of imprisonment is not required in the circumstances of your case, in reaching this decision I have taken into account the 249 days of Renzella time available to each of you.[6] The sentencing factors of general deterrence, just punishment and denunciation, as they are relevant to you can be addressed by the imposition of a community correction order. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen.[7] That is, the community correction order may be suitable even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment. The Court there stated,
A CCO is likely to be a particularly important sentencing option in the case of a young offender, where there may be a perceived conflict between the need to punish the offender and the importance — both to the community and to the offender — of rehabilitating the offender.
Since the CCO can be used to rehabilitate and punish simultaneously, the conflict is likely to be reduced. Instead of needing to give less weight to denunciation or specific or general deterrence, in order to promote the young offender’s rehabilitation, the court will be able to fashion a CCO which adequately achieves all of those purposes at once.
[6] R v Renzella [1997] 2 VR 88.
[7] Boulton v The Queen [2014] VSCA 342.
Disposition
96Mr El Tawil and Mr Koc could you please stand. In relation to each of the charges before the court, so that includes the charges on the indictment and the summary related offences, you are convicted and I order you to be placed on a community correction order for a period of 24 months, so two years. The conditions of this community correction order include that you must:
(a) Undertake 180 hours of unpaid community work;
(b) Attend for supervision; and
(c) Participate in offending behaviour programs.
(d) I am also going to order a condition for judicial monitoring, so I want you to come back and see me in six months' time. I have done this because I want to see how you are going and I also want to see if you have been able to maintain the reformation that you have commenced.
97The judicial monitoring can be done via Webex and if necessary you can appear at a Corrections office with your corrections officer present. I have had situations where people have actually appeared on site at work on their phones, so I do not want to interrupt your work, I understand that that is really important. So I can be flexible with the judicial monitoring. There will probably only be one but I just want to make sure that you are going okay. And also I want to encourage you to do well. In my view that would be the best outcome for everyone.
98In terms of the 180 hours, I intend to offset 50 hours of unpaid community work against the rehabilitative program I have ordered. I have done this as a further incentive for you to participate in the programs I have ordered. So if you do 50 hours of rehabilitative programs, then you will only have to do 130 hours of community work.
99In addition to the conditions that I have imposed, there are standard conditions that each of you must comply with, and you might already know these because you have had the interview with Corrections, but I need to go through them with you and explain them further. The most important of standard condition is that you are not to commit an offence punishable by imprisonment within the next two years, and that is during the currency of the Order. You need to report within two working days to your nearest Corrections office and I understand that will be Reservoir Corrections for you Mr El Tawil and it will be South Morang Corrections for you Mr Koc.
100You are required to advise your supervising Corrections office of any change of address of where you are living or working within two clear working days. And it is a term of all community correction orders that you must submit to visits as directed, obey the instructions and directions of the Corrections officers, and also you cannot leave the State of Victoria without their prior permission.
101So, Mr El Tawil and Mr Koc, if you reoffend you will breach the Order, and if you do not comply with the conditions I have imposed or the standard conditions, you will breach the Order and if you do breach, you come back before me and you may be resentenced on the original charges. All right, so do you understand that?
102I can only place you on a Correction Order if you agree so firstly, do you understand what is involved in the Order? And do you consent to the Order?
103HER HONOUR: Firstly, talking to you Mr El Tawil, do you consent to such an order?
104OFFENDER EL TAWIL: Pardon?
105HER HONOUR: Do you consent to doing such an order?
106OFFENDER: Yes, Your Honour.
107HER HONOUR: Mr Koc, do you consent?
108OFFENDER KOC: Yes, Your Honour.
109HER HONOUR: Thank you.
110Pursuant to s6AAA of the Sentencing Act had you pleaded not guilty to the charges I would have imposed on you a term of 12 months' imprisonment and a community correction order in the same terms as that I have imposed today.[8]
[8] Sentencing Act 1991 (Vic) s 6AAA.
111HER HONOUR: So we have set the review date for judicial monitoring as 24 June, one at 10 o'clock and one at 10.30. I can't remember which is which, I think Mr El Tawil, yours might be 10 o'clock and Mr Koc, 10.30.
112Thanks very much. And I said it a couple of times during my sentencing remarks, but thanks very much to counsel and if you could pass on Mr Andrianakis to Ms Marcs, her submissions were of a really high standard and they were really of great assistance to the court, so thank you.
113MR ANDRIANAKIS: I thought so too, Your Honour, and I will pass it on.
114MS SEOUD: As Your Honour pleases, thank you.
115HER HONOUR: Great, thank you. All right, so good luck Mr El Tawil and Mr Koc. I expect that you will do well on the community correction orders and I will see you in six months' time.
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