Director of Public Prosecutions v Elmi
[2023] VCC 31
•24 January 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 21-02237
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KHIDR ELMI |
---
JUDGE: | HIS HONOUR JUDGE PILLAY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 January 2023 |
DATE OF SENTENCE: | 24 January 2023 |
CASE MAY BE CITED AS: | DPP v Elmi |
MEDIUM NEUTRAL CITATION: | [2023] VCC 31 |
REASONS FOR SENTENCE
---
Subject: SENTENCE
Catchwords: Youthful offender – good prospect of rehabilitation – opportunistic offending – extortion with threat to inflict injury
Legislation Cited: Sentencing Act 1991
Cases Cited: Boulton v The Queen [2014] VSCA 342
Sentence: 12 month community corrections order with 120 hours of
unpaid community work
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Office of Public Prosecutions |
For the Accused | Ms J. Swiney | Chris McLennan & Co |
HIS HONOUR:
1Mr Elmi, you have pleaded guilty to an offence of extortion with a threat to inflict injury, for which the maximum penalty is imprisonment for 15 years - Mr Elmi, you can be seated for the moment, and I will ask you to stand shortly - and in addition, a summary charge of failing to answer bail, which carries the maximum penalty of two years' imprisonment.
2The prosecution has relied upon Exhibit F, which is the summary of prosecution opening for plea. It has been read in the main, and I am not going to read it again, but it sets out the circumstances in which you, with your alleged co-offender, extorted $400 from your victim, who had lost his mobile phone a short time previously.
3The demand was for that sum in exchange for the return of the phone. It seems that your co-offender made representations to the victim and his friends as to the terms of the deal for the return of the phone. He also was the one who told the victim and his friends of your potential for violence. Some of these statements were lies - for example, that you had recently been to gaol - but in the main, they appear to contain some truth.
4I do regard the offence of extortion as being a serious offence. The maximum penalty of 15 years reflects that fact. However, I accept that the participation in this scheme was opportunistic, not attended by any violence, and on the summary, you made no direct threats of violence.
5You have admitted a prior criminal history, tendered as Exhibit C at the sentence indication hearing. It reveals numerous matters of violence and particularly important is the previous breach of the community corrections order imposed upon you. That is concerning because it indicates your lack of compliance with the orders of the court.
6It is perhaps for this reason that the prosecution submitted previously that a term of imprisonment should be imposed perhaps in combination with a CCO. However, I do note that you have already served 113 days of
pre-sentence detention for failing to appear on bail, which is the crux of the summary offence charge. This is a significant period of detention already served, particularly in COVID times.7It stands as part of your punishment and also plays a role in reinforcing to the community that this kind of behaviour will be viewed unfavourably. This also demonstrates the denunciation the community has for these actions. Further, I consider the effect of this period of pre-sentence detention is to support both general and specific deterrence. However, given the nature of the offending, which was opportunistic, there is a much more limited role for specific deterrence, I consider.
8As to your rehabilitation, I consider this to be a much more significant factor, given your age. I am told that you have complied with bail conditions since being released from your pre-sentence detention and that you have not otherwise offended since November 2020. This is a two-year period of sustained living in the community. During that time, I am told you have been working regularly, and for the last four months at least, you have been working 50 to 60 hours per week.
9This is to your credit, and I consider this a very significant factor in your sentence, given your age and the submissions made by your counsel that you now consider yourself to have grown up. You have had various jobs. You live at home and have the support of your family. I have read the reference of your sister.
10Your counsel has urged me to impose a CCO rather than a term of imprisonment, and I think in all the circumstances that is the most reasonable and just disposition. You must be punished for this offending. It is necessary for the court to mark the seriousness of the offending with a punishment that has the capacity to deter others from engaging in similar conduct. There are a range of ways in which this can be achieved. A CCO is one such way; see Boulton v The Queen [2014] VSCA 342 or 46 VR 308.
11Parity is also a principle I bear in mind when coming to sentence you, and I have looked closely at the sentence imposed by His Honour Judge Maidment in respect of your co-offender. I make it plain that I do not think a term of imprisonment is warranted, given your role in the offending, your overall circumstances, and importantly, the fact that the relevant sentencing objectives can be met by a non-custodial sentence; see particularly s5(4) of the Sentencing Act. For this reason, I do not impose a combination sentence. I do have regard in a broad way to the fact of 113 days of pre-sentence detention, and I take this period of overall hardship into account in the sentence I impose.
12Mr Elmi, please stand. In all the circumstances, I am inclined to deal with you, therefore, by way of a community corrections order with the sole condition beyond the standard conditions being that you complete 120 hours of unpaid community work. The CCO is to run for a period of 12 months.
13Mr Elmi, in discussions with your counsel, I have indicated that if there are difficulties in compliance with that community corrections order and your work, then you are free to apply to the court for a variation of the order, but that is a matter for you to take up with your legal representatives at a time perhaps in four months or so. Mr Elmi, I understand that you have already discussed the principles and the terms of the potential CCO with your lawyer. Is that correct?
14OFFENDER: Yes, Your Honour.
15HIS HONOUR: I am going to go through the terms of the order so that you can indicate whether you consent or not because I cannot impose a CCO unless you do consent. Do you understand that?
16OFFENDER: Yes, Your Honour.
17HIS HONOUR: I understand that the nearest Community Correctional Services office is located at the Coolaroo Justice Service Centre at 1640 Pascoe Vale Road, Coolaroo, so that will be the office you will need to report to. The conditions that will apply to you are that you must attend within two clear working days after the commencement of the order, which is today. Due to the holiday on 26 January, you will have to report by 11 am on Friday 27 January. You will need to telephone them or attend in person.
18The order now which will be read to you has mandatory terms. These are standard terms that apply to all community corrections orders. I am going to read those out to you so that you are in no doubt as to the terms of the order.
19First, you must not commit any other offence for which you could be imprisoned during the time that the order is in force. The order will be in force for a period of 12 months from today, so you must not commit an offence punishable by imprisonment during the next 12 months.
20Second, you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations, which concerns not turning up to your required work commitments or to the offices of Community Correctional Services drunk or drug-affected or any kind of thing like that.
21Third, you must report to and receive visits from the Secretary or the Secretary's delegate.
22Fourth, you must report to the community corrections centre within two clear working days of the order.
23Fifth, you must let a community corrections officer know within two clear working days of you changing your address or your job.
24Sixth, you must not leave Victoria without first getting permission to do so from the Secretary or the community corrections centre.
25Seventh, you must obey all lawful instructions from and directions of the Secretary or the Office of Corrections. Do you understand those?
26OFFENDER: Yes.
27HIS HONOUR: Specifically in relation to your case and in addition to those standard conditions, the work condition is that you must perform 120 hours of unpaid community work over the period of 12 months during which the order is in force, and that will have to be done at the direction of the regional manager. If you fail to comply with this order, the Secretary may give you a direction to perform additional hours above the 120 hours. Do you understand that?
28OFFENDER: Yes, Your Honour.
29HIS HONOUR: Now, in addition, I need to tell you that if you breach any of the terms or conditions of the order, then you are liable to be brought back to the court and most probably come before me again to be considered for resentencing on these charges. Do you understand that?
30OFFENDER: Yes, Your Honour.
31HIS HONOUR: Now, if you do end up coming back before me, the chances are that the sentence I impose and that I will impose for any further offences committed will take into account the fact of your non-compliance and will be a stern sentence. Do you understand that?
32OFFENDER: Yes, Your Honour.
33HIS HONOUR: It is likely in that event that you will be imprisoned for a term, perhaps for several months and longer than that which you have ever spent in custody before. Do you understand that?
34OFFENDER: Yes, Your Honour.
35HIS HONOUR: If your circumstances change, if you become ill or for some reason you are unable to comply with the terms of the order, then you must firstly contact the Office of Community Corrections and let them know. But as I have indicated to you and your counsel, you are at liberty to apply to this court, to me, to vary the order. But if you do so, you will need to make application telling me in great detail why the order needs to be varied. Do you understand that?
36OFFENDER: Yes, Your Honour.
37HIS HONOUR: If there is any breach or if there is any application to vary the order, and if it becomes obvious that you will breach the order, then you should inform Community Corrections immediately and then apply as quickly as possible to this court to vary the order. Do you understand that?
38OFFENDER: Yes, Your Honour.
39HIS HONOUR: And are you willing to comply with the terms of the order over the next 12 months?
40OFFENDER: Absolutely.
41HIS HONOUR: All right. For the purposes of the transcript, I record the sentence that I will impose across both charges. For the offence of extortion on Charge 1 of the indictment, I impose a community corrections order for a period of 12 months with the conditions that I have outlined, being the unpaid community work condition that must be performed, being 120 hours of unpaid community work over that period as directed by the regional manager. I impose that sentence with a conviction.
42In respect of the summary charge, I do not propose to sentence additionally in respect to that which I have sentenced already, and I do so having regard to the principle of totality and in particular having regard to the fact that you have spent 113 days of pre-sentence detention. You will serve no time in respect of that offence.
43I do not propose to record a period pursuant to s6AAA.
44In respect of the forfeiture order I have been asked to make, I will make that order, and it will be signed so that the sum of $200 which was taken from you on the night will be forfeited.
45I now direct that the pleas of guilty and the admission as to your criminal record be entered into the records of the court.
46Mr Elmi, I will now leave the Bench for a short period of time, and the orders setting out the community corrections terms and conditions will be brought to you for your signature. Before I leave the Bench, are there any other matters I need to deal with, counsel?
47MS SWINEY: No, Your Honour.
48MR O'TOOLE: Your Honour, I might have just misunderstood. Could Your Honour just repeat, please, the sentence on the summary offence?
49HIS HONOUR: There is no further sentence imposed in respect of the summary offence.
50MR O'TOOLE: No further sentence. So is Your Honour referring to a discharge?
51HIS HONOUR: No.
52MR O'TOOLE: No.
53HIS HONOUR: No, but having regard to the principle of totality, I consider that I need to sentence - and in some ways, I could simply impose the same terms and conditions, but I do not propose to sentence formally either a day or five days or time served. I do not propose to do that.
54MR O'TOOLE: As Your Honour pleases.
55HIS HONOUR: Does that - no, is that ‑ ‑ ‑
56MR O'TOOLE: I am sorry, I am not quite understanding what the sentence is in relation to that offence.
57HIS HONOUR: Essentially, it is subsumed by the community corrections order.
58MR O'TOOLE: Yes, all right.
59HIS HONOUR: If you ‑ ‑ ‑
60MR O'TOOLE: Is it then an aggregate order covering both offences?
61HIS HONOUR: Yes.
62MR O'TOOLE: Yes, I apologise. Thank you, Your Honour.
63HIS HONOUR: And if you consider that I need to express it in that way, that for both charges there was an aggregate sentence ‑ ‑ ‑
64MR O'TOOLE: Yes, as Your Honour pleases.
65HIS HONOUR: Yes.
66MR O'TOOLE: I apologise, I misunderstood.
67HIS HONOUR: No, Mr O'Toole, do not. That might be the better way to express it.
68MR O'TOOLE: As Your Honour pleases, thank you.
69HIS HONOUR: Thank you.
70MS SWINEY: Thank you, Your Honour. I agree with that.
71HIS HONOUR: Yes. So it would be expressed as an aggregate sentence for Charges 1 and 2 of 12 months' CCO with 120 hours.
72MR O'TOOLE: Yes.
73MS SWINEY: Thank you, Your Honour.
74HIS HONOUR: I propose to leave the Bench, then, and the orders will be brought to you, Ms Swiney, to take to your client for signing.
75MS SWINEY: Yes, Your Honour.
76HIS HONOUR: Just adjourn for 5 minutes, please.
77(Short adjournment.)
78HIS HONOUR: Ms Swiney, everything in order with your client?
79MS SWINEY: Yes, yes, Your Honour.
80HIS HONOUR: You have explained the terms to him?
81MS SWINEY: I have.
82HIS HONOUR: No issues?
83MS SWINEY: No issues, Your Honour.
84HIS HONOUR: All right.
85MS SWINEY: And he has signed that document.
86HIS HONOUR: All right. Mr O'Toole?
87MR O'TOOLE: No issues, Your Honour.
88HIS HONOUR: All right. Adjourn the court, please, sine die.
89MR O'TOOLE: As the court pleases.
0
0
0