Director of Public Prosecutions v Elias
[2022] VCC 1704
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01973
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YOUSIF ELIAS |
---
JUDGE: | Her Honour Judge Leighfield | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April 2022, 29 April 2022, 20 May 2022, 7 June 2022, 12 July 2022, 22 August 2022, 19 September 2022 | |
DATE OF SENTENCE: | 3 October 2022 | |
CASE MAY BE CITED AS: | DPP v Elias | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1704 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Kidnapping – category 2 offence – substantial and compelling circumstances that are exceptional and rare not found - unlawful assault – commit indictable offence while on bail - plea of guilty – youthful offender – deferral – successful completion of Court Integrated Services Program – good prospects of rehabilitation – parity – burden of imprisonment – impact of COVID-19
Legislation Cited: Sentencing Act 1991 (Vic) s5(2H), s83A.
Cases Cited:Azzopardi v The Queen [2011] VSCA 372; Farmer v The Queen [2020] VSCA 140
Sentence: Convicted and sentenced to a term of imprisonment of 9 months (kidnapping); adjourned undertaking of 12 months (unlawful assault and commit indictable offence while on bail)
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Damien Hannan (7 April 2022) Ms Penny Thorp (29 April 2022) | Office of Public Prosecutions |
| For the Accused | Ms Natasha Freijah | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
1Mr Elias, you have pleaded guilty to one charge of kidnapping, which is Charge 1 and have also consented to this court hearing and pleaded guilty to two related summary offences being one charge of unlawful assault, which was Charge 13 and one charge of committing an indictable offence whilst on bail which was Charge 14.
2
The maximum penalty for unlawful assault is 3 months’ imprisonment and/or
15 penalty units; for committing an indictable offence whilst on bail is 3 months’ imprisonment and/or 30 penalty units; and for kidnapping is 25 years’ imprisonment. Additionally, kidnapping is a category 2 offence under the Sentencing Act 1991 (Vic). This means that I must impose a custodial sentence, which is not imposed in combination with a community correction order, on you for that offence unless at least one of the circumstances set out in paragraphs (a) to (e) of section 5(2H) of the Sentencing Act exists.
Circumstances of the Offending
3
The full circumstances of the alleged offending, investigation and arrest are set out in the Amended Summary of Prosecution Opening for Plea dated 5 April 2022 which was tendered as Exhibit A on the plea. In shorter compass, however, on
30 April 2020, the victim in this matter, Jacob Turner, came into contact with you and your co-accused, Alula Tegegne, when he met up with the two of you to facilitate the sale of some methylamphetamine. There was an exchange between the three of you at a hotel whereby Mr Turner exchanged a Xanax tablet for
0.1 grams of cocaine. Mr Turner then went upstairs for about ten minutes, and when he returned the two of you had left. Each of you, and the victim, were all nineteen years of age at this time.
4
The next day on 1 May 2020, Mr Turner checked out of the hotel at around
11.30 am and came across you and Mr Tegegne in a nearby street. Both of you approached Mr Turner and you demanded that Mr Turner give you back the cocaine that you had given to him the day before. Mr Turner offered to contact someone who would be able to assist you in obtaining some cocaine. However Mr Turner’s phone was flat and so you all attended at a phone repair store where the attendant allowed you all to recharge your phones. After your phones were charged, Mr Turner made a phone call. About fifteen minutes later, an unidentified male turned up to sell cocaine to you but he left again when you were unable to produce any money.
5The three of you then walked across the road together. Once you had crossed the road, the two of you pushed Mr Turner from behind, then you each took hold of one of his arms and took him down a ramp and into an underground carpark. Once you were out of sight of the street, the two of you threw Mr Turner to the ground and you began punching and kicking him, mainly in the abdominal area, whilst he lay on the ground. Mr Tegegne watched this occur. One of you then told Mr Turner to get up and as soon as he did, you kicked him in the head and knocked him back down. Mr Turner then found a chair nearby and sat on it, whilst you continually said, ‘I’m going to kill him’. Both you and Mr Tegegne recorded this incident on your mobile phones.
6You then told Mr Turner that you were an undercover police officer and made various demands of Mr Turner, including that he give you two bags of ice and that he set up his dealers. You told him that he would have to come in the car with you and would not be able to go until he complied with your demands and you also threated him with ‘12 years in prison’ if he did not comply with what you wanted him to say. You filmed yourself making these demands of Mr Turner. Both you and Mr Tegegne then stood in front of Mr Turner and prevented him from leaving, whilst you continued to assault Mr Turner. You took an electrical cable from a nearby air conditioning unit and whipped Mr Turner with it a number of times to the head, body and legs before picking up a fire extinguisher and stating ‘I’m gunna fucking kill him’. It was at that point that Mr Tegegne put his hand out to stop you. You then put the fire extinguisher down and after a push and shove between yourself and Mr Turner, you then left the carpark for a short period. The conduct the subject of this paragraph constitutes related summary charge 13 – unlawful assault.
7Whilst you were gone, Mr Tegegne asked Mr Turner to log in to his banking application on his phone and prove he did not have any money. Mr Turner did this and showed Mr Tegegne that he only had 43 cents in his bank account. Shortly after this, you returned to the car park with some drinks and a packet of cigarettes. You offered a drink and a cigarette to Mr Turner who accepted them. Mr Turner says that at this stage he began to feel calmer but still felt he could not leave and feared being further assaulted.
8A short time later, the two of you escorted Mr Turner out of the carpark, along the street and into a tram and then a train. During this journey, you slapped Mr Turner a number of times to the head after he had tried to slip away; continued to verbally harangue him; and also continued to film your interactions. Once the three of you had reached Footscray Railway Station, you then both escorted Mr Turner to the Commonwealth Bank so that he could withdraw his Centrelink money for you. You threatened to kill Mr Turner if he told anyone about it.
9Due to Covid restrictions, the two of you were unable to accompany Mr Turner into the bank. Once inside Mr Turner told a staff member he was being held hostage by the two males waiting outside and the police were contacted. As police arrived, you ran off, whilst Mr Tegegne walked away in the opposite direction in a calm manner. Police did not speak with either of you on that day. They also did not take a statement from Mr Turner at that time as he appeared drug-affected.
10Each of your actions in taking Mr Turner away and holding him with the intention of demanding money from him for his release are the subject matter of Charge 1, kidnapping. You were also on bail at the time of this offending and accordingly also committed the summary related offence of committing an indictable offence whilst on bail which was Charge 14.
Further Investigation, Arrest and Interview
11On 2 July 2020, police executed a search warrant at an address in Campbellfield in relation to an unrelated matter and you were arrested and your iPhone was seized. When police looked at your phone, they located four videos in snapchat which depicted Mr Turner being assaulted and having obvious facial swelling. You were interviewed that same day by police in respect of both the unrelated offending and the incident with Mr Turner. During the interview you made substantial admissions, including that you were the owner of the Snapchat account used to record the four videos and that you had assaulted and fly kicked Mr Turner to the head. Although you said you did this after Mr Turner produced a knife. You also described an underground carpark in the Melbourne CBD, a tram ride and a train ride to Footscray and taking Mr Turner to the Commonwealth Bank to withdraw money. You did not identify your co-offender. You were charged with the unrelated offences and released on bail. You were not charged with any offences involving Turner at this time.
12On 9 July 2020, Mr Turner provided a statement to the police. You were then arrested on 14 July 2020 and interviewed a second time in relation to this matter. You made admissions during your second record of interview to bashing Mr Turner and again acknowledged taking Mr Turner to the Commonwealth Bank in Footscray to withdraw money. You were then charged and were taken to the Melbourne Magistrates’ Court whereupon you were remanded to appear back at court in relation to these matters on 6 October 2020. You were granted bail in the Supreme Court on these matters on 13 August 2020 but your bail was subsequently revoked on 10 September 2021. You have remained in custody since that date and as a result you have 282 days available to you as pre-sentence detention in relation to these matters.
13
As a matter of completeness I note that on 17 July 2020, police executed a search warrant at an address in Tarneit and Mr Tegegne, was arrested. During the search a number of items were seized which were indicative of drug trafficking. Whilst inspecting his phone, police also located a video in Snapchat which depicted
Mr Turner sitting on a chair in the underground carpark whilst being whipped by you. That video was dated 1 May 2020.
14Mr Tegegne was interviewed by police on 17 July 2020 and made limited admissions in respect of his part in the incident with Mr Turner. He was charged with offences relating to this incident and was also remanded to appear back at court in relation to these matters on 8 October 2020.
Victim Impact
15During the plea I received a victim impact statement from Mr Turner in which he described the difficulties he has faced since you and Mr Tegegne offended against him.[1] Amongst other things, he said that he does not trust people anymore and is always looking over his shoulder. He is struggling with sleep and with his mental health and suffers from flashbacks and panic attacks. He also struggles to eat, work and talk to people, including his family. Mr Turner concluded by saying that he just wants his life back and for things to be normal again. I accept that the impact of your offending upon Mr Turner has been significant and I take that impact into account in sentencing you.
[1] Exhibit B.
Gravity of Offending
16Turning to your offending, Ms Freijah submitted that in the period leading in to you committing these offences you had been using drugs and were unemployed. Your relationship with your parents had deteriorated as a result of drug use. You had been asked to leave the family home and were couch surfing and sleeping in hostel accommodation. She further submitted that you had been awake for three days straight and were heavily affected by methylamphetamine, cocaine, cannabis and Xanax at the time. Ms Freijah said that it was in this context that you acted in this poor, irrational and violent manner. It was not submitted by Ms Freijah that this excused your behaviour. Indeed it goes no way towards excusing your behaviour. However it was put on your behalf that this context was relevant to understand how you had come to commit such a serious offence.
17As I outlined when sentencing Mr Tegegne, kidnapping is by its very nature, a serious offence as reflected in the maximum penalty which Parliament has imposed and in its designation as a category 2 offence. This kidnapping was no exception. It was serious offending behaviour. It was not a short incident. It was committed in order to seek a benefit, either money or drugs for yourself and the co-accused. It occurred over a period of 2.5 to 3 hours, caused considerable distress to the victim and occurred in circumstances where you were subject to both an adjourned undertaking and bail. All of these factors contribute to the gravity of your offending. Having said that, I accept your counsel’s submission that many of the features which would ordinarily be present in the more grave examples of kidnapping were not present in this case. In particular there was little, if any, pre-meditation or planning, no firearms, no family violence, no breach of a position of trust, no vigilantism and it is not alleged through any of the offences with which you have been charged that any injuries were inflicted on the victim.
18Insofar as the assault is concerned, it is a serious example of an unlawful assault and you fall to be sentenced as the principal offender for that offence. Over an extended period of time you physically struck the victim a number of times using a piece of electrical cable and threatened to hit him with a fire extinguisher. You also filmed parts of your assault upon him with your mobile phone, which was an aggravating feature of your conduct. I do note however, that although your conduct was violent and terrifying for the victim, you have only been charged with an unlawful assault under the Summary Offences Act which carries with it a very limited maximum penalty.
19Finally, I note that given that I am of the view that the kidnapping offence was aggravated by reason of you being on bail at the time, I have been careful not to doubly punish you in respect of the summary related offence of committing indictable offence on bail. I have ensured that the sentence which I am imposing in respect of this charge does reflect the separate element of breaching a court order but does not incorporate an elevation in gravity by reason of the nature of the offending committed whilst on bail.
Plea of Guilty and Remorse
20Despite the length of time between charge and sentence in this matter, your plea of guilty was entered at an early stage. You had a filing hearing on 14 July 2020 and a committal mention on 6 October 2020. The matter was then adjourned for a contested committal but due to delays engendered by the pandemic, the matter was not listed for committal until 28 June 2021 and was then further adjourned to 10 September 2021, some 14 months after the filing hearing. The matter resolved to a plea on 10 September 2021 without any witnesses being called. It was then listed for a plea in the County Court on 9 December 2021, which was also adjourned before it finally commenced before me on 7 April 2022.
21Your plea is significant for a number of reasons. Firstly you have saved the witnesses and in particular the victim in this matter, from the ordeal of having to give evidence and re-live the traumatic events of 1 May 2020.
22Secondly, your plea facilitates the course of justice and has utilitarian value. That utilitarian value is further enhanced by the timing of your plea which has been entered during the pandemic and in circumstances where Covid-19 has had an unprecedented impact on the efficient running of the criminal justice system.
23Thirdly, I accept that your plea of guilty demonstrates genuine remorse and an acceptance of responsibility by you for your conduct. This conclusion is also supported by your admissions to police, your expressions of remorse in the letter which you wrote to the court, as well as the observations made by both your family members and Ms Monica Dankoff from Corrections, as to your remorse.
24In the circumstances I have given you a substantial discount on sentence for your plea of guilty.
Personal Circumstances
25You are now 22 years of age, having been born in July 2000. You were born in Iraq and are the youngest of five siblings. You have four older sisters who are between 24 and 37 years of age. Your father was a military officer in the Iraqi military whilst your mother worked as a home maker. I understand that you are of Assyrian descent and that your family fled from Iraq for Turkey when you were only 4 months of age. Your family ultimately immigrated to Australia as refugees when you were 3 years of age.
26
You completed primary school in Fawkner, despite having had some early learning difficulties due to your limited exposure to English prior to commencing prep. You struggled socially and were bullied because of your limited English. In your letter to the court you said that the only time you felt accepted and part of a team was when you played soccer, a sport which you loved. You did go on to attend high school and continued to play soccer. You completed Year 9 and commenced
Year 10. However when you were about 16 years of age, the young people who had bullied you in primary school committed a serious assault on you outside of school. You were kicked, punched and had your head jumped on and ended up with a broken jaw which required surgery. In the aftermath of that assault you stopped playing soccer and lost your dream of being a professional soccer player. You also ended up leaving school. You did enrol in a carpentry pre-apprenticeship at Kangan TAFE but left this course after only a few weeks due to conflict with other students. Since then you have worked at McDonald's and have also undertaken some casual manual labouring. You had however, in the period leading into your second period of remand on this offending, found it difficult to obtain employment despite being linked in with employment services.
27I am told that you first used each of cannabis, cocaine and Xanax at 16 years of age after the assault and quickly developed a dependence. You were smoking cannabis on a daily basis and using cocaine and Xanax on an almost daily basis at the time of committing these offences. You had also commenced using methylamphetamine approximately three months prior to your offending and were also using this on a regular basis. I am told that you would often stay away from the family home for as many as five nights in a row during peak periods of ice use. As already noted, you were under the influence of multiple substances at the time of committing the current offences.
28I received a number of references on the plea from members of your family (your mother and father, an aunt and two of your sisters) and a family friend. I note that your parents and some of your sisters were also present in court on each of the plea hearings. It is clear that your family is shocked and embarrassed by your offending behaviour, which is not in line with the manner in which you were raised by your parents, or in which the rest of your family have conducted their lives. It is also clear from the references, that prior to your descent into drug use, you were a valued member of your local community church and would involve yourself as a volunteer at church and charity events. You were also known as someone who was a gentle, caring and loving family member.
29Since committing these offences, and prior to being remanded on other offences, you spent approximately 10 months on bail supervised by Youth Justice. Three progress reports dated 7 January 2021, 16 June 2021 and 9 September 2021, were tendered on the plea.[2] The predominant theme of those reports was that you engaged positively and respectfully with Youth Justice throughout your time with them. For most of the time that you were on bail you lived with your family in the family home, engaged in supervision and abstained from substance use. You also engaged in three sessions of drug and alcohol counselling, nine sessions with a psychologist and six sessions with an employment service. However, approximately 8 months after you were placed on bail in April 2021, your engagement started to become inconsistent, albeit you still engaged well when you attended appointments. I am told that it was around this time that you started to become disillusioned with your inability to obtain employment and started to relapse into drug use and anti-social behaviours. You were then remanded on new offending on 28 June 2021.
[2] Exhibit E2.
30To your credit, you continued to engage with Youth Justice and the psychologist whilst you were in custody until your bail was revoked on the current matters on 10 September 2021. I note that by this stage you had also turned 21 years of age and so were no longer eligible for the supervised bail program. You did however continued to engage in programs and education in custody when they were made available to you and completed a 1.5 hour ‘Ice & Me’ course, a 6 hour ‘Cannabis & Me’ course, and a Certificate III in Cleaning Operations.[3] You also engaged positively with the YMCA Bridge Project whilst in custody.[4]
[3] Ex E5 – bundle of certificates.
[4] Ex E4 – letter from Amy Devries dated 17 March 2022.
31You have had a further opportunity in recent months to show your capacity for rehabilitation in the community. On 20 May 2022, I released you on bail on a deferral of sentence pursuant to section 83A of the Sentencing Act. One of the conditions of your bail was that you comply with the Court Integrated Services Program (‘CISP’). You were also required, as part of your bail conditions, to undertake drug urine screening on a fortnightly basis. I have monitored you throughout the period you have been on bail and your progress has been impressive. You have engaged meaningfully with both your CISP case worker and your drug and alcohol counsellor throughout the past four months, maintained abstinence from drug use, obtained and maintained full time employment as an auto glass technician and very recently undergone a psychological assessment, which has identified that you suffer from previously undiagnosed Attention Deficit Hyperactivity Disorder.
32In respect of the latter, it has been recommended by the assessing psychologist that you gain assistance in managing this disorder through 'psychological support and/or referral to a psychiatrist for psychopharmacological intervention’. This is obviously something which it is important for you to follow through, in terms of managing the ongoing symptoms of your disorder. However, this recent diagnosis is not relied upon as a mitigating circumstance on your plea.
Youth, Prior and Subsequent Criminal History, and Prospects of Rehabilitation
33As already noted you were 19 years of age at the time of the offending and are still only 22 years of age. You have only had on prior appearance at Court, which was on 15 August 2019. You were sentenced on that day in relation to a small consolidation of charges which included one charge of possess counterfeit money for which you received a 6 month good behaviour bond without conviction and three driving offences for which you were placed on a without conviction adjourned undertaking for a period of 12 months. You were still on the adjourned undertaking at the time of this offending, with the good behaviour bond having lapsed only a couple of weeks earlier. Despite this you still come before the court as a youthful offender with a very limited prior criminal history.
34I am told that you have been charged with a number of matters, which are yet to resolve and finalise. Those alleged offences occurred in the period whilst you were on bail between 13 August 2020 and 28 June 2021. Given the status of those matters, they have no relevance to the current sentencing exercise. There are no outstanding offences which arise from your most recent period of time on bail.
35It was submitted by your counsel that whilst your offending is serious and weight must be given to principles of general deterrence, that is deterring other people in the community from acting in the same way, given your youth and limited prior history, greater weight should be given to rehabilitation in the sentencing synthesis. Ms Freijah referred me to the principles in Azzopardi v The Queen [2011] VSCA 372 and submitted that the seriousness of your offending in this case does not detract from the weight which should be given to each of those principles. She further submitted that your prospects of rehabilitation should be considered to be good given your youth, your efforts whilst on bail both with Youth Justice and CISP, and the family support available to you. Ms Freijah also emphasised that your rehabilitation will also be conducive to ensuring protection of the community in the long term.
36
Ms Thorp for the prosecution did not take issue with the proposition that the sentencing purpose of rehabilitation carries additional weight given your youth. However, she was more circumspect about your prospects of rehabilitation.
Ms Thorp submitted that any optimism about your prospects of rehabilitation should be guarded, given that there is no evidence before the court as to your ability to keep your previous drug issues under control in the community in the long term, albeit you have been successful in this regard in the short term.
37Taking into account the submissions made by counsel, your limited prior history, your efforts to engage with treatment and support services whilst on Youth Justice supervised bail, in custody and on CISP bail; the significant family support you have available to you and your engagement in full time employment, ultimately I am of the view that you have good prospects for rehabilitation. Further I am of the opinion that the sentencing purpose of rehabilitation must be given substantial weight in the sentencing synthesis given my conclusions as to the gravity of the offending not being of the highest order, your youth and limited prior criminal history. However, general deterrence and denunciation are also still relevant and important sentencing purposes in this case.
Impact of Covid-19
38
During the period you were in remand you were impacted by the pandemic in a number of ways. You were subject to random lockdowns and had limited access to programs and library services. Further your access to your family was restricted with you having substantial difficulty contacting them in the first three weeks of being remanded and then being limited to telephone contact only thereafter. You did not have a single face to face visit with your family during the approximately
9 months you were on remand. I take this added burden of imprisonment into account in terms of the time you spent in custody.
Category 2 Offence – Applicable Sentencing Principles
39As relevant, section 3 of the Sentencing Act 1991 provides that kidnapping is a category 2 offence if the person who commits the offence is 18 years of age or more at the time of the commission of the offence. Accordingly, as noted at the outset, you have committed a category 2 offence.
40This enlivens section 5(2H) of the Sentencing Act 1991 which provides that in sentencing an offender for a category 2 offence, I must make an order under Division 2 of Part 3, other than a term of imprisonment in combination with a community correction order, unless one of the circumstances set out in subsections (a) to (e) of that section exists. Ms Freijah submitted on your behalf that subsection (e) applies, that is that
there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
41Despite Ms Freijah’s submission, there is no burden upon you to prove on the balance of probabilities that there are substantial and compelling circumstances that are exceptional and rare. Rather it is an evaluative judgment for me, the sentencing judge, to make once the relevant underlying facts have been established.[5] Further, it is important for me to keep in mind that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not, by that fact alone, necessarily deprive them of their character as substantial and compelling and exceptional and rare. Circumstances which individually are relatively common may in combination enliven the exception in s5(2H)(e).[6] Having said that, the test is still a stringent one and in some cases may operate harshly and result in the imposition of a sentence which would be counterproductive from the viewpoint of rehabilitation, particularly in the case of young offenders.[7]
[5] See, eg, Fariah v The Queen [2021] VSCA 213, [24].
[6] Ibid, [25].
[7] See, eg, Farmer v The Queen [2020] VSCA 140, [52].
42In determining whether there are substantial and compelling circumstances, I am required pursuant to s5(2HC) to:
· regard general deterrence and denunciation of your conduct as having greater importance than other sentencing purposes;
· give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence;
· not have regard to your previous good character (other than an absence of previous convictions or findings of guilt); your early guilty plea; your prospects of rehabilitation; or parity with other sentences;
· have regard to Parliament’s intention that a custodial order (which includes a youth justice centre order but does not include a combination sentence) should ordinarily be made; and
· have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
43It was submitted by your counsel, that a combination of
(a) your age at the time of the offending;
(b) your absence of prior convictions and limited prior history;
(c) your personal circumstances including the excellent family support available to you;
(d) your compliance with Youth Justice and CISP;
(e) the onerous prison conditions to which you were subject due to the pandemic and which increased the burden of imprisonment upon you; and
(f) the delay in this matter which caused you to lose the opportunity of being assessed for and partaking in a period of youth justice centre detention with its focus on rehabilitation,
in combination amount to substantial and compelling reasons which are exceptional and rare.
44Ms Thorp on behalf of the Director of Public Prosecutions, submitted that the prosecution does not agree that subsection 5(2H)(e) has been met in your case, even when all of the circumstances put forward on your behalf are considered in combination.
45
I have previously in this matter, prior to releasing you on the deferral of sentence, expressed my view that in your case I am not satisfied that you have substantial and compelling reasons which are exceptional and rare, and that justify not imposing a straight custodial order. I am of the view that in your particular case the weight which I can give to delay causing you to miss the opportunity to undertake a Youth Justice disposition is limited, given that it is arguable that even in
non-pandemic times your matter may well not have resolved prior to you turning 21 years of age, given that you turned 21 in July 2021, just less than 12 months after being charged. Further, the weight that I can give to your compliance with Youth Justice and CISP is limited given that I can only take it into consideration by reference to an assessment of the rehabilitation you had undertaken and your cooperation with that service, rather than in respect of future prospects of rehabilitation. I am not satisfied that a combination of these factors together with your youth, your absence of prior convictions and the onerous conditions which you experienced in custody are sufficient to meet the stringent test imposed by the section.
46Having said that, I am of the view that the strong mitigating factors in your case certainly do have an impact upon the length of the term of imprisonment which I impose upon you in respect of the charge of kidnapping and I have taken them into account in that regard.
Parity
47As you are aware, I have previously sentenced your co-accused, Mr Tegegne, to a term of imprisonment of 5 months and a community correction order with treatment conditions for a period of 18 months in respect of his offending. I will be sentencing you in a different manner.
48In Mr Tegegne’s case, I did find that he had substantial and compelling reasons which were exceptional and rare and that justified not imposing a straight custodial order on the kidnapping offence. His personal circumstances were different from yours and a different range of sentencing dispositions were therefore open on that charge. He also fell to be sentenced on the unlawful assault on the basis of being complicit, rather than the principal offender.
49Having said that, Mr Tegegne did have additional offences before the court, including a charge of trafficking in a drug of dependence. You have participated in a period of deferral of sentence, which Mr Tegegne had not and I have assessed your prospects of rehabilitation as being substantially better than his.
50In the circumstances there are a number of factors which allow for disparate sentences to be imposed upon each of you in this case and I have imposed different sentences for those reasons.
Sentencing Submissions and Comparable Sentences
51Turning now to the sentencing submissions made by counsel.
52Ms Thorp, on behalf of the prosecution, submitted that given the serious nature of the offending, that the relevant sentencing purposes in this case could only be met by the imposition of a term of imprisonment constituted by a head sentence and a non-parole period. Ms Worrell has today confirmed that those sentencing instructions are still the same.
53By contrast, Ms Freijah on your behalf, has at all times maintained that if I did not find a ‘special reason’ pursuant to s5(2H)(e), then a custodial sentence of not more than time served be imposed on the charge of kidnapping and a separate disposition be imposed on the remaining charges. Ms Freijah conceded that general deterrence, denunciation and just punishment have some role to play in the sentencing synthesis but that rehabilitation should be the primary consideration given your age and limited prior history. Ms Freijah further submitted that the extended period of time which you spent in custody which had a deterrent effect, lessens the role of specific deterrence in the sentencing synthesis.
54Given the submissions made by each party, I enquired whether there were any comparable cases which the parties would like to bring to my attention. I was referred to a number of cases by each party where relatively youthful offenders had been sentenced for kidnappings at the lower end of the spectrum.[8] The sentences imposed for the kidnapping offence in those cases ranged from community correction orders on their own, through to terms of imprisonment of up to 2 years and 2 months. These cases reflect that even within this more limited sphere, no case is ever completely comparable in terms of the factual scenario or the circumstances of the accused. However, I have taken each of the cases referred to into account as they do provide some guidance as to the application of the relevant sentencing principles in this area and can also be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available. Ultimately, I have sentenced you in this case on the basis of applying the principles to the specific facts of you and your case.
[8] Ms Thorp referred me to DPP v Odisho [2021] VCC 325 and DPP v Pontikis, Bekiri and Shabanov [2014] VCC 2166; whilst Mr Ranjit referred me to DPP v Chen [2018] VCC 1271, DPP v Jackson [2017] VCC 182, and DPP v Warby [2018] VCC 1173.
Other Sentencing Principles
55In sentencing you today, I have also taken into account the principles of totality and parsimony. The principle of parsimony requires me not to impose a particular sentencing disposition, if a lesser sentencing disposition would meet all of the purposes of sentencing in your case.
56I did initially have you assessed, in May 2022, prior to releasing you on bail for the deferral, for your suitability for a community correction order. You were assessed as suitable for such an order and the author of the report noted that you engaged in a polite and forthcoming manner, expressed considerable remorse for your behaviour and expressed a willingness to engage with a community-based disposition. However, having come to the conclusion that you did not have a ‘special reason’ pursuant to s5(2H)(e) of the Sentencing Act, I am bound to impose a term of imprisonment, not in combination with a community correction order, for the charge of kidnapping.
57Further, given all of the mitigatory material before me, the limited maximum penalties pertaining to the remaining offences; the progress you have made towards rehabilitation whilst on CISP; the matters I raised previously when assessing the gravity of the summary offences; and the additional days which you spent in custody which are beyond the sentence I intend to impose on the kidnapping charge; I am of the view that the relevant sentencing purposes on the remaining charges can be adequately met through the imposition of an adjourned undertaking with conviction with conditions and do not require the imposition of a community correction order.
Sentence – Mr Elias
58If I could now get you stand up, Mr Elias, on Charge 1, kidnapping, you are convicted and sentenced to a term of imprisonment of 9 months.
59The period of 282 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
60What that means Mr Elias, is that you have already served the full term of imprisonment in relation to the kidnapping charge.
61
On related summary charge 13, unlawful assault, and related summary
charge 14, commit an indictable offence whilst on bail, you are convicted and placed on an adjourned undertaking for a period of 12 months commencing today with the following conditions. Firstly, that you be of good behaviour for the period of the undertaking. Secondly, that you make a donation of $400 to Melbourne City Mission, which deals with youth homelessness, which the victim in this matter was at the time of your offending against him, by 21 April 2023 and that you provide proof of having made that donation to the court by 28 April 2023, that you attend before the court if called upon to do so during the period of the undertaking.
62
So, what that means is that you have to be of good behaviour from now until
3 October next year. You have got to make that donation of $400 by 21 April 2023. So, you have got just over six months to make the donation. You are working. It should not be a problem for you. You need to provide proof to the court that you have made that donation by 28 April. So, a receipt needs to be sent into the court proving that you have made that donation. You will also have to come back before me if I call upon you to do so in that 12 month period. I will only be doing that if you are not complying with the conditions of the order. So, if it comes to my attention that you have committed a further offence, it comes to my attention that you have not paid that donation or that there is some other issue that arises, then you will have to come back before me during the period of the undertaking.
Do you understand that?
63OFFENDER: Yes, Your Honour.
64HER HONOUR: All right. So, do you understand all of those conditions?
65OFFENDER: Yes, Your Honour.
66
HER HONOUR: All right. I have to tell you that if you do not comply with the conditions of the undertaking which includes committing a further offence in the next six months, then you are likely to be brought back before me for breaching the undertaking. And one of the things which can happen is that you can be
re-sentenced in relation to those offences for which you are placed on the undertaking. Do you understand that?
67OFFENDER: Yes, Your Honour.
68HER HONOUR: Given those conditions on the undertaking, and what I have told you about what can happen if you do not comply with the undertaking, do you consent to giving that undertaking or so you promise to those things to the court?
69OFFENDER: Yes, Your Honour.
70HER HONOUR: All right. You can have a seat for the moment.
s6AAA Declaration
71
Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to a total effective sentence of 19 months’ imprisonment with a non-parole period of 13 months. So, you have saved a significant period of time in custody by reason of your plea.
Ancillary Orders
72Pursuant to section 33(1) of the Confiscation Act 1997 (Vic), I make a forfeiture order in respect of the Apple iPhone 7.
- - -
0
8
0