Director of Public Prosecutions v Elkadi
[2018] VCC 108
•7 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02310
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAHMOUD ELKADI |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 30 January 2018 | |
DATE OF SENTENCE: | 7 February 2018 | |
CASE MAY BE CITED AS: | DPP v Elkadi | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 108 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Criminal Procedure Act 2009; Sentencing Act 1991
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; R v Mills (1998) 4 VR 235; Younan v R [2017] VSCA 12; Kilic v R [2015] VSCA 331; Hasan v R [2010] VSCA 352; R v Renzella [1997] 2 VR 88; R v Lefebure [2000] VSCA 79
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S. Holmes | Office of Public Prosecutions |
| For the Accused | Mr S. Andrianakis | Patrick W Dwyer |
HER HONOUR:
1 Mahmoud Elkadi, you have pleaded guilty to four charges of armed robbery on Indictment H12329256. The maximum penalty applicable to each of the charges is 25 years’ imprisonment.
2 You have also consented to me hearing and have pleaded guilty to a summary offence, pursuant to s.145 Criminal Procedure Act 2009, of one charge of unlicensed driving. The maximum penalty applicable to that offence is four months’ imprisonment and/or thirty penalty units. There is no mandatory minimum licence suspension for that offence, such being a matter at my discretion.
3 I also discussed with counsel s.89 and s.89A Sentencing Act 1991, as well as s.28 Road Safety Act 1986, and licence cancellation and disqualification, to which I shall later refer.
4 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say that the facts of this case are most serious and disturbing. Your behaviour was obviously quite unacceptable. Of concern, you also have a number of prior court appearances for someone now 24 years of age.
5 I turn to a summary of your offending.
6 You were at the time of this offending 23 years of age. The victims of your offending were not known to you and were between 21 and 23 years of age.
7 On 8 August 2017, you were captured on CCTV driving a white Holden utility on Diamond Creek Road, Plenty, prior to the commencement of this offending.
8 I turn to Charge 1. At approximately 12.00 am on 9 August 2017, you entered the Caltex service station at Diamond Creek Road, Plenty. The victim of that offending, Mr Virk, was working behind the counter. You attempted to purchase a packet of cigarettes using a Commonwealth bankcard, however, the transaction was declined. You then grabbed the cigarettes and demanded Virk open the till and give you cash.
9 You showed Virk a black tube or pipe which was sticking out of your sleeve, which Virk believed was a firearm. You threatened to blow Virk’s leg or head off. You kept saying you were going to count to ten and that Virk was to open the till and give you the money. When you started to count, Virk complied.
10 Virk opened the cash register and you grabbed $289.50 from it, before leaving the store and walking back towards Diamond Creek Road. You got into the white ute and drove away. At 12.02 am you were seen driving past the Mowers and More store, captured on CCTV wearing the clothing referred to in Exhibit A (paragraph 9).
11 I viewed this CCTV footage (see Exhibit B).
12 Virk called his manager and pressed the duress button. Another employee was in a vehicle outside the service station. Virk waved him into the store and told him what had happened, and then police attended the scene.
13 I turn to Charge 2. At 12.59 am, approximately one hour after your offending in Charge 1, you drove that white ute on Mahoney’s Road, Reservoir, and past a Caltex service station. You parked the car a short distance away from the station.
14 At 1.01 am you walked into the service station and approached Mr Patel, who was behind the counter. You produced a weapon that Patel believed was a firearm, pointed it at him and demanded money, saying "Give me all your money or I'll shoot you in four seconds".
15 Patel complied, and grabbed all the notes and put them on the counter. You specifically requested $50 notes. Patel put the till on the counter to show there were no such notes. You demanded that if Patel did not hurry you would shoot him.
16 Patel got more money from a cupboard underneath the counter, put it in a bag and placed it on the counter, which you took. There was approximately $1,000 in it. You walked towards where you had parked the car and Patel called the police.
17 Again, CCTV footage was obtained by police. You are observed in that footage to be wearing slightly different clothing from that worn in Charge 1, as I discussed with both counsel.
18 I turn to Charge 3. At 2.53 am on 9 August 2017, approximately two hours after you committed the offence relevant to Charge 2, you drove the same white ute along Morang Drive past a 7-Eleven store, and parked your vehicle a short distance from it.
19 At 2.58 am you entered the store and approached Mr Singh who was behind the counter. You pulled out a weapon from your right sleeve, which Singh described as a "Knife". You demanded money from him, "Give me all the money in the safe". I discussed with counsel your plea of guilty to Charge 3 and "Imitation firearm". In your record of interview you referred to each armed robbery involving a pole (or pipe). Despite Singh’s description of a "Knife" your counsel agreed you pleaded guilty to "Imitation firearm".
20 Singh stated he did not have a code for the safe. You then demanded he give you all the $50 notes. You kept saying "Make it quick, make it quick" and kept showing Singh the weapon. You then said "Give me all the money in the tills if you don't have the password for the safe". Singh opened the second register and placed the till on the counter.
21 You took the money from the tills, approximately $470, and left the store, running back to your parked vehicle. Police attended and CCTV footage was obtained. You were again wearing slightly different clothing.
22 I turn to Charge 4. At approximately 2.50 am on 10 August, that is, the following day, approximately 24 hours later, you walked along Keon Parade and entered the BP service station on Keon Parade, Thomastown. You approached Mr Vytla, who was behind the counter, and produced a weapon that Vytla believed to be a gun. You held the weapon up to Vytla, demanding money, and threatening him. You said "Give me money, give me money or I'll shoot you in the leg". Vytla handed over approximately $100.
23 You kept telling Vytla to "Hurry up" demanding $50 notes, and threatening him, saying "I'll fucking shoot you mate". You demanded he open the safe and said, "You have five seconds to open the safe or I'll shoot you in the leg". Vytla was in fear he would be shot, so he told you that he would do as requested. He then walked out the back and pressed the smoke-alarm button, which filled the store with smoke. You left the store and ran back towards Keon Parade.
24 The police attended and Vytla provided a statement. Again, CCTV footage was obtained. This video footage was both audio and visual. The threats made by you could be heard. On this occasion you were again wearing some different clothing.
25 At 5.50 pm on 17 August 2017, a search warrant was executed at your home in Thomastown and a number of clothing items obtained. You were not present at the time.
26 You were arrested on 18 August 2017 at 10.00 am, at your home address.
27 During the record of interview conducted with police, you made full admissions to your offending. You said you were not yourself when you committed the offending because you were on Ice. You said you were in shock and could not believe what you had done. You said you were sorry. You said you used a pole on all four occasions, but did not recall threatening to shoot the victims. You said on all occasions you would have said the same thing, made the same demands for money, got the money and driven off in the car.
28 You said whatever was on CCTV footage was what happened and would show what you were wearing. You understood why the victims could have thought you had a gun. You said you did not need the money and did not recall what you did with the money you had stolen, but there was none left. You instruct this was most likely gambled.
29 You said you got rid of the "Pole" and all the clothes you were wearing, except shoes police located at the search.
30 You did not recall where or why you got rid of the items, but the reason you got rid of them was so no one would find them. You said you saw the "Wanted things" in relation to your offending on social media, and your parents had also seen it on the news and knew it was you.
31 Turning to the summary charge, you did not have a licence at the time of this offending. That is relevant to Charges 1, 2, and 3. Your licence had been cancelled and you had been disqualified from obtaining a licence or permit for two years from 14 March 2014, at the hearing at the Melbourne County Court. You had not sought to renew it and therefore were unlicensed at the time of this offending.
32 An aggravating feature of your offending was your various attempts at "disguise" including the wearing of a hood, also different clothing worn in particular, during the occurrence of Charges 1, 2, and 3. I accept your attempts at disguise were not very sophisticated.
33 You have admitted a concerning number of prior Court appearances for someone your age, although I note none for offending of the type before me other than driving whilst unlicensed/disqualified. A further and more updated criminal record was also exhibited, relevant to subsequent Court appearances. I am aware of the distinction when sentencing between prior criminal history and subsequent criminal history. As I discussed with your counsel, however, you do have a number of prior charges of unlicensed driving.
34 In brief, your prior criminal record commenced in the Children’s Court in 2009. In the past sentences imposed in the Children’s Court have involved undertakings, probation, a youth supervision order, and youth justice.
35 Your first appearance in the adult jurisdiction was in 2013.
36 Thereafter on 14 March 2014 in the County Court, you were placed on a Community Correction Order for a number of offences, including driving and dishonesty (burglary, theft), and thereafter appearances for breach of that Community Correction Order on 27 March 2015 and 6 June 2016. Most recently, a further breach of that order dealt with by Judge Hannan of this Court in November 2017.
37 You have pleaded guilty to these five charges before me and you are entitled to have that fact taken into account in your favour, and I do so. You entered your pleas of guilty on 13 November 2017, and the prosecution accept, as do I, they were entered at the earliest opportunity. A contested committal was not required in relation to any of these charges. Your victims have not been required to give evidence at your trial.
38 I take into account in your favour you intimated early your intention to plead guilty to these charges, and I note also that you made admissions to your offending at the time of the police interview on 18 August 2017.
39 Regarding your pleas of guilty, I am prepared to accept that your pleas of guilty indicate some remorse for your offending. You have also expressed remorse in your correspondence to the Court (Exhibit 3). I am concerned regarding the extent of your remorse, however, given your return to commit armed robbery relevant to Charge 4 some 24 hours approximately after Charge 3.
40 Further details, by way of chronology, were also provided (Exhibit A). The initial filing hearing was on 18 August 2017. At a committal case conference on
13 November 2017, this matter proceeded in the Magistrates’ Court by straight hand-up brief, and you pleaded guilty to these charges.
41 You have been in custody since 18 August 2017, however, none of this is to be taken into account by me by way of pre-sentence detention, as you are undergoing the sentence imposed by her Honour Judge Hannan, and I will come back to that later.
42 Specifically, as at your plea hearing on 30 January 2018 you were undergoing the sentence imposed by Judge Hannan on 16 November 2017. Her Honour sentenced you to six months’ imprisonment for breach of the Community Correction Order imposed by her on 6 June 2016. That hearing is reflected in the subsequent Court appearances. Her Honour declared 91 days pursuant to s.18(4) SentencingAct 1991 to reflect the time you had spent in custody from 18 August 2017. That sentence, I was told, was due to expire on or about
18 February 2018.
43 I am conscious you have spent six months in custody to date, and have applied the principle in R v Renzella[1] when sentencing you today.
[1] [1999] VSCA 85
44 I also discussed with counsel your offending dealt with on 29 November 2017 and note none of those offences occurred in the few days subsequent to this current offending before me.
45 Correspondence from the prosecution dated 6 February 2018, noted that appearance involved offending in 2014 and early 2017 (the latter I note including drive whilst disqualified).
46 There were no victim impact statements before me, however, as I discussed with counsel, each of the victims in their respective statements to police described being scared, or in like terms at the time you offended against them. Your counsel conceded such could be taken into account.
47 Specifically, Patel said, "I was scared and I thought he was going to shoot me" (p.135).
48 Singh said, "When I saw the knife I was quite scared, his actions were quite erratic and he spoke very aggressively. So I believed he would have used it if I didn’t do what he said" (p.154).
49 Vytla said, "Throughout the incident I was very scared and thought he might shoot me" (p.172).
50 Virk said "I thought it was a gun and was very frightened. I was so scared, I was fumbling around when opening the till" (p.80).
51 The effects upon a victim are a relevant sentencing consideration
(s.5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
52
Counsel on your behalf, Mr Andrianakis, provided a written outline of submissions (Exhibit 1) which he relied upon during your plea hearing. He also relied upon a report of Ms Gina Cidoni, Consultant Psychologist, dated
18 September 2017 (Exhibit 2).
53
I turn to the report prepared by Ms Cidoni, who interviewed you on
18 September 2017 via video-link at Marngoneet Correctional Centre. She also interviewed your former wife and your father by phone on that date. At the time this report was prepared, you were facing the charge of breaching the Community Correction Order, subsequently dealt with by Judge Hannan. You referred to re-commencing use of methamphetamine in 2016, having previously ceased that in 2014.
54 Reference was made in her report to your background and history. Your father was a carer for your mother, the latter having long-term mental health issues. You described your parents as having been strict with you when you were younger and that you rebelled against that. You have three sisters. I note in Court to support you at your plea hearing was your father, two sisters as I understood it, and a friend of yours. Your mother was not able to attend, as I understood, as she was unwell.
55 I accept your family are supportive of you, however, I note that that did not stop your offending in August 2017 before me when you were living with them.
56 You described an earlier relationship with Ms Rumbos, your former wife, with a daughter born of that relationship. The marriage broke down after approximately a year. You said you were embarrassed about that, and concealed it from your parents before later returning to live at your parents’ home.
57 In 2016, you formed another relationship, and described that relationship as "Initially being happy". That relationship, however, deteriorated as your then partner suspected you were using drugs.
58 You were living at home with your parents until your remand for the offences before me. You said your drug use was high and you were spending considerable time with other drug users.
59 You left school partway through Year 9 at which time you were expelled. You described your academic performance as average, and your behaviour bad.
60 You then worked at a mushroom farm for a short time, then worked for a concreting company for approximately four to five years. You then began to work for yourself and continued with that until this offending. You were working and using Ice since mid-2016, apparently able to maintain the employment, although at the time of this offending you were working fewer hours.
61 Turning to your health, you described an incident where you were struck by a car when you were on a motorbike at age 15/16. Apparently, you refused medical attention.
62 You also described binge-drinking alcohol in your mid-teens, and that after a motor vehicle collision you used cannabis, then began smoking methamphetamine at age 18. Your use of the latter then became heavy. You said you stopped while subject to the initial Community Correction Order in 2014, and described compliance with drug treatment conditions at that time, and of seeing a counsellor.
63 You relapsed in mid-2016, using daily until you were remanded on these charges. I discussed with Mr Andrianakis your failure to undertake counselling or other assistance for your drug use, after you recommenced methamphetamine use in mid-2016, especially with you being aware of the negative impact upon you of your drug use.
64 Ms Cidoni conducted psychological testing. Your full-scale IQ could not be calculated as interview was via a video-link. Your verbal comprehension index, however, was borderline at 78 and working memory at 95. You described symptoms of psychosis, feeling convinced others were watching you and talking about you, or spying on you, in particular in the two weeks prior to her assessment. This did not seem to be a current issue for you, certainly not confirmed as being a current issue.
65 An antisocial behavioural trend was observed to be present, with some behaviour by you of conflict with laws and societal standards. You described difficulty managing your anger and acknowledged problematic substance abuse with difficulty controlling your intake. Under the influence of Ice, you reported the experience of auditory/visual hallucinations and paranoid ideation.
66 When you relapsed in 2016, you said you abandoned your Community Correction Order commitments, using progressively larger amounts of illicit substances, with a great deal of time spent obtaining those substances.
67 Turning to the submissions of your counsel. In his written outline of submissions, Mr Andrianakis conceded, appropriately, that your offending was serious. He accepted your offending called for a term of imprisonment, and that, in my opinion, was an appropriate and proper concession.
68 Mr Andrianakis referred to your background history, to which I have previously referred. He noted, as do I, your prior criminal history comprised a number of matters dealt with in both the Children’s and Magistrates’ Courts, and none of them involved armed robbery. This current sentence from her Honour Judge Hannan was your first time in adult custody. I accept that is so.
69 Reference was made to your employment history, including your own concreting/landscaping business, Raycon.
70 Reference was made not only to the earlier motorcycle collision, but also the motor vehicle collision in which you were the driver of a car, which injured not only yourself, but your two passengers. It was after that you began to smoke cannabis. By 18 years of age you were smoking methamphetamine heavily.
71 Your daughter with your former wife is apparently now about 4 years of age and I am told arrangements have been made, or will be made, for her to visit you in custody. Mr Andrianakis submitted, and I accept, your time in custody will be more difficult for you, not being able to be involved in her care and your likely concern about her future. Whilst not relied upon as "family hardship", I do take this into account consistent with general sentencing principles.
72 In mid-2014 you had stopped use of all drugs, your business was doing well, and you were earning good money. You also had custody of your daughter approximately 50 per cent of the time. However, when in the relationship with your new partner in 2016, you said your drug use re-commenced, primarily using methylamphetamine again.
73 Mr Andrianakis referred to a number of circumstances in his outline of submissions, which led to you re-commencing use of methylamphetamine in 2016 (see paragraph 9 of his submissions). In brief, described as problems in your then relationship, with custody of your daughter and the death of a friend. As your use of Ice increased, your work hours (and thus income) decreased.
74 You instructed that after committing a fourth armed robbery you stopped using drugs.
75 Mr Andrianakis referred to your plea of guilty and, as I have already said, I accept that has facilitated the course of justice and spared the need for witnesses, in particular the victims of your offending, the need to give evidence. He further submitted you exhibited remorse to police and in correspondence to the Court, to which I have also previously referred.
76 Mr Andrianakis submitted relevant when sentencing you, was that these offences occurred in a relatively short period of time, around 27 hours in total. Those times are of course, the fact. But I discussed this in some detail, however, with Mr Andrianakis. There was opportunity for you to desist after each incident and in particular, the 24 hours approximately between the occurrence of Charges 3 and 4. I also note your changes of clothing worn by you between Charges 1, 2, and 3. You at least had some time to consider your future actions.
77 Regarding the principles in R v Verdins & Ors[2], Mr Andrianakis submitted Principles 5 and 6 of Verdins were enlivened, based on the report of Ms Cidoni. I discussed that with him.
[2] (2007) 16 VR 269
78 In my opinion, the general comments and observations by Ms Cidoni do not enliven Verdins principles. I do, however, accept you are a youthful offender, and the potential impact of imprisonment upon your mental health and have taken that into account (in mitigation) consistent with general sentencing principles.
79 Mr Andrianakis relied heavily upon you being 24 years of age at sentence, and a "youthful offender". Of course, I am aware of the decision of R v Mills[3].
[3] (1998) 4 VR 235
80 The principles in Mills are, however, not of automatic or usual application. Each case depends on the circumstances, including the circumstances of the offending as well as of the offender (see DPP v Lawrence[4]).
[4] [2004] 10 VR 125
81 In R v Connolly[5], Coldrey J referred to the principles in Mills and stated:
“No doubt a sentencing court will endeavor to implement these principles as far as is possible in sentencing a youthful offender but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed (and the just punishment therefore); the need for deterrence (specific and general); the offender's prospects of rehabilitation; and the need to protect the community may need to be reflected in the sentence imposed.”
[5] [2004] VSCA 24
82 That was confirmed in Gosland and McDonald v The Queen[6]
“It is apparent from His Honour’s sentencing remarks that he paid close attention to the principles essayed in R v Mills. As His Honour observed, however, the premium which is placed on the rehabilitation of youthful offenders must be balanced against other sentencing considerations, such as general and specific deterrence, denunciation and community protection. More specifically, as Batt JA explained in R v Lawrence, the general propositions enunciated in R v Mills are just that, general propositions and are not to be treated as if they were of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offence, as well as of the offender. That is particularly so where a sentencing judge is required to deal with a case of gratuitously violent offending in a public place by youthful offenders under the influence of alcohol or drugs, especially whereas here, the offender has had previous opportunities to rehabilitate through community-based orders and Youth Justice Centre orders and effect has thumbed his nose to those chances. Additionally, as Batt JA said, the benefits that flow to youthful offenders diminish the older they become.”
[6] [2013] VSCA 269
83 In R v Tran[7] at 462, Justice of Appeal Callaway said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that, in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicised is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”
[7] (2002) 4 VR 457
84 In cases such as Azzopardi v R[8], youth would be of reduced mitigation when sentencing for a serious or persistent crime such as armed robbery.
[8][2011] VSCA 37
85 In Scott v The Queen[9], the court cited with approval the observations of Redlich JA in Azzopardi:
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”
[9] [2013] VSCA 347
86 Regarding your rehabilitation prospects, I have as I discussed with Mr Andrianakis, guarded optimism. Apart from any attendance by you on Court orders for drug counselling, it is clear you have not independently sought assistance, in particular in the period from June 2016 to this offending in August 2017. You have previously ceased drug use, however, you have re-commenced. Whilst relapse is arguably a "fact of life", you have not then sought to address that re-commencement, despite the adverse impact of your drug use on your domestic life, child access, and employment.
87 You also have a significant criminal history (again I note, not for armed robbery), and have most recently breached a number of Court orders. The most recent breach report provided referred to significant non-compliance with the Community Correction Order of 6 June 2016. You are, of course, not being sentenced for that breach. That has already been dealt with by her Honour Judge Hannan.
88 When sentencing you, however, I must seek to maximise your chances of rehabilitation as they may be, being mindful also of your age.
89 I have been told you have recently completed some courses in custody and that is to your credit, although I note no certificates were provided. But the prosecution did not object to that. Also, a relatively recent urinalysis test was negative for drug use. You have apparently put your name down for drug courses in custody. I can only encourage you to pursue such courses to hopefully reduce/eliminate your drug use and re-offending.
90 Mr Andrianakis conceded there was a need for general deterrence when sentencing you, also denunciation and punishment. He is correct. Further, he conceded the need to protect the community from you and that specific deterrence was also relevant. He is again correct.
91 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this. That has been frequently stated by the Courts, the offence of armed robbery, in particular involving soft targets, is very serious offending indeed.
92 The Courts have referred to the offence of armed robbery most recently in Younan v R[10], in which the court referred to Kilic v R[11]. In Younan the Court referred to a number of cases involving armed robbery and the presence of a firearm. I note yours was an imitation firearm. Younan also referred to sentencing young or youthful offenders for such offences. I note, though, in determining the appropriate sentence, in Younan’s case relevant to sentence there were two significant matters in mitigation not present in your case (see paragraphs [38]-[39]).
[10] [2017] VSCA 12
[11] [2015] VSCA 331 [48]
93 There is also the need for specific deterrence when sentencing you, as you have an extensive criminal record in both the Children’s Court and the Magistrates’ Court. A previous term of detention and other Court orders have not dissuaded you from committing further offences. On this occasion, you also offended on four separate occasions, with opportunity after each to desist. There has been no real explanation as to why you committed this offending other than gambling. You told police you did not need the money.
94 It is difficult comparing cases factually as facts various enormously case to case, as do all matters in mitigation of sentence and personal to an offender. Ultimately I must determine the appropriate disposition based on all relevant sentencing considerations in your case. Statistics whilst helpful, also have a number of limitations to their use, these have been previously stated by the Court of Appeal (see Hasan v R[12]).
[12] [2010] VSCA 352
95 When sentencing you, I take into account principles of totality and proportionality, and again note, consistent with the principles in Renzella, you are currently undergoing a sentence of six months imposed by her Honour Judge Hannan, due to expire on or about 18 February 2018.
96 I am mindful this is your first time in adult custody.
97 Ms Holmes, who appeared on behalf of the prosecution, submitted the only appropriate disposition was a head sentence with a non-parole period. I agree.
98 Ms Holmes submitted the report of Ms Cidoni did not enliven Verdins principles 5 and 6, and I have previously referred to my opinion in that regard. She submitted whilst the offending occurred over effectively just 27 hours, and thus a relatively short time-frame, you had nevertheless changed your appearance in part between each.
99 I sentence you as follows.
100 On Charge 1, you are convicted and sentenced to 2 years and 6 months’ imprisonment.
101 On Charge 2, you are convicted and sentenced to 2 years and 6 months’ imprisonment.
102 On Charge 3, you are convicted and sentenced to 2 years and 6 months’ imprisonment.
103 On Charge 4, you are convicted and sentenced to 3 years’ imprisonment.
104 On Summary Charge 23, you are convicted and sentenced to 2 months’ imprisonment.
105 I turn now to cumulation and concurrency.
106 Charge 4 is the base sentence and I direct that 6 months of Charge 1 be served cumulatively upon Charge 4, 8 months of Charge 2 be served cumulatively upon Charge 4, 10 months of Charge 3 be served cumulatively upon Charge 4 and 7 days of Summary Charge 23 be served cumulatively upon Charge 4.
107 For clarity, the orders for cumulation are upon each other and upon the base sentence.
108 That results in a total effective sentence of 5 years and 7 days’ imprisonment and I direct you serve a period of 3 years before you are eligible for parole.
109 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict, and had you pleaded not guilty to them and been found guilty of them, I would have sentenced you to a term of imprisonment of 8 years with a non-parole period of 5 years and 6 months.
110 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent nil days in custody by way of pre-sentence detention for these offences.
111 Turning to the offence of unlicensed driving (Summary Charge 23), I discussed with counsel s.28 Road Safety Act 1986 (general discretion) "In connection with" s.89A Sentencing Act 1991 and s.89 Sentencing Act 1991 (general discretion in relation to in fact all four charges).
112 Ms Holmes submitted I could disqualify you from obtaining a licence under any of those three sections.
113 Mr Andrianakis at the plea hearing submitted his preliminary view was s.28 (general discretion) relevant to unlicensed driving, was appropriate. He was to provide brief submissions following your plea hearing and prior to sentence, once he had the opportunity to consider the prosecution submission. These were provided on 5 February (Exhibit 5). In brief, Mr Andrianakis submitted s.28(1)(b) could apply to Charges 1, 2 and 3 on the Indictment and the Summary Charge.
114 Alternatively, I could disqualify you from driving under s.89A.
115 In determining the appropriate length of cancellation and disqualification, I have taken into account the principles of R v Lefebure[13] including the relevance of rehabilitation. In Lefebure the Court considered the power in s.28 Road Safety Act and that decision also contained a careful analysis of "In connection with". R v Novakovic[14] also addressed licence cancellation and disqualification pursuant to s.28 and confirmed the statements made in Lefebure, including reference to rehabilitation (see paragraphs 59-62).
[13] [2000] VSCA 79
[14] [2007] VSCA 145
116 In my opinion, cancellation and disqualification, as I said to counsel prior to sentencing, in your case can be referrable to both s.28 Road Safety Act and s.89A Sentencing Act.
117 Pursuant to s.89A Sentencing Act 1991 I cancel and disqualify you from obtaining a licence for 4 years from today’s date, and that that be entered into the records of the Court, and that is relevant to the charges of armed robbery and unlicensed driving (s.89A(3) Sentencing Act 1991) .
118 No other orders were sought by the prosecution. All right, is there anything - you want help with the maths? You got it right, it all worked out?
119 MS HOLMES: Yes, Your Honour.
120 MR ANDRIANAKIS: I think so, Your Honour. Could Your Honour please just repeat the head sentence on that - - -
121 HER HONOUR: Five years and seven days, I think it was.
122 MR ANDRIANAKIS: Yes, yes. All correct, Your Honour.
123 HER HONOUR: Yes, that is just the way it is.
124 MR ANDRIANAKIS: As Your Honour pleases.
125 HER HONOUR: All right. Anything further? No other orders?
126 MS HOLMES: No, Your Honour.
127 HER HONOUR: Nothing else?
128 MR ANDRIANAKIS: No, Your Honour.
129 HER HONOUR: All right. Can I thank you all for your assistance, and thank you Mr Elkadi, if you could go out please. Thank you.
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