Director of Public Prosecutions v Esmaili
[2013] VCC 1364
•27 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-01112
CR-13-01113
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH ESMAILI JOHN McLACHLAN |
---
JUDGE: | HIS HONOUR JUDGE CHETTLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 September 2013 | |
DATE OF SENTENCE: | 27 September 2013 | |
CASE MAY BE CITED AS: | DPP v. Esmaili & Anor | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1364 | |
REASONS FOR SENTENCE
---
Subject: Armed Robbery, Criminal Damage
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Zammit | Ms Isaacs |
| For Accused Esmaili | Ms S. Locke | Doogue & O'Brien |
| For Accused McLachlan | Ms I. Chipp | VLA |
HIS HONOUR:
1 Joseph Esmaili, you have pleaded guilty to one charge of armed robbery, as have you, John McLachlan. In addition, you, McLachlan, have pleaded guilty, on a separate indictment, to two counts of criminal damage.
2 The facts of your offending are set out in Exhibit A of the Prosecution opening. I was informed by both your counsel that I could treat that document as an agreed statement of fact. I incorporate it into these reasons for sentence and sentence you on the basis of the facts therein contained. Very, very briefly stated, the two of you terrorised a young 13 year old boy who was collecting medication for his mother. You stood over him, threatened him with a bottle and took $6 worth of medication. What happened to it thereafter, I do not know, but it would appear it was probably consumed by both of you and mixed with alcohol. You, McLachlan, on two other occasions have committed the offence of criminal damage by putting up your graffiti tag on property that you should not have. That is the offending set out in the summary, Exhibit A.
3 The victim has filed a victim impact statement. He was scared of going down the street, not surprisingly, and generally scared of strangers. You can well understand a young boy who is threatened by you two with a bottle and had his property taken feeling that way and I take the victim impact material into account in sentencing you.
4 Comprehensive submissions were filed on behalf of each of you by each of your counsel, setting out your personal backgrounds, your personal histories and I do not propose to repeat them, but I have had regard to those personal histories and background in reaching the decision I have made in this case.
5 Significantly, there are a number of mitigating factors. On one hand your behaviour is appalling. This is how appalling it is, it carries a maximum penalty of 25 years' imprisonment. As for the tagging offences, they carry ten year maximums, but they are not what I am talking about, I am talking about the armed robbery, standing over a young person. It is not something that is out of character for you, Mr McLachlan, because about this time you had been engaged in other behaviour that could be described as almost equally appalling, but you have not been dealt with for that yet and what a magistrate does will be a matter for him when he deals with you in a month or so time.
6 You were clearly, McLachlan, going through a seriously bad time of your life. For a period of months you seemed to be completely running amok. It is to your credit that the material shows that since being arrested and charged with these offences, you have been released on supervised bail and you have taken big steps to sort yourself out. Eighteen year olds, nineteen year olds really have no idea about what life is all about and maybe you are starting to work it out. It is not "cool" to run around the streets threatening people. It is not "cool" to inflict violence on them, kick them, threaten them, whatever. You will end up in custody if you do not take advantage of what I am about to give both of you.
7 As I said, Mr Esmaili, you had better be bothered, because you have got a father and stepmother and others who are concerned about you. They are looking after you. You have been given a number of chances. Corrections did not want you back, but I am sending you back. If you do not comply you will be back and you know where you will be going.
8 I take into account for each of you your pleas of guilty and I have reduced the sentence I would otherwise impose to reflect those pleas of guilty. There is evidence of some remorse for your behaviour and although you, McLachlan, lied through your teeth when you spoke to the police, I accept that you are now remorseful for behaviour. You, Esmaili, at least evidenced some remorse and co-operation when you were spoken to by the police when you went in to talk to them.
9 Your youth. If you were not 18 at the time of your offending, I would be not taking the course I am. The law recognises that your youth is an important mitigating factor and you have got to give kids a chance to grow up. You are only shortly out of the Children's Court jurisdiction. You are now in the adult jurisdiction and people who commit armed robberies and come in front of me usually go out that door, not that one, and what happens is a matter for you.
10 Obviously your family support, your steps at rehabilitation are all important and in that end I propose to release you both on community corrections orders which are designed to help you help yourselves. That is not because we are necessarily just focusing on you, which is important enough to try and get you to sort your lives out. The community has an interest in ensuring that you do not go around behaving like you did, so if we stop the causes of you being in trouble everyone is better off.
11 I intend to impose conditions. Each of you will perform 150 hours of unpaid community work. The order will run for 18 months. In addition to that, as far as you are both concerned, I impose identical conditions that you are to undergo treatment and rehabilitation assessment for alcohol and drugs, mental health assessment and treatment and to engage in offending behaviour programs. I am not going to impose any curfews, or no go areas, or non association. If you associate with the people you were and do the things you were, you will breach the order, because you are going to behave badly.
12 I am, however, going to impose a judicial monitoring condition. I do not know if this had been explained to you, but it means under the Act I can have you come in and I can receive reports periodically from Corrections as to how your are going. I propose to do that every four months over the next 18 months. I am going to have to work out some dates when I want you to come back. It will be 9.30 on given dates and you will come back and I will get a report from Corrections in relation to how you have each been proceeding. If you are not doing well I can vary orders, I can breach you, I can do all sorts of things, so I want to make sure that you understand when you go out on the street I am effectively there with you, not a pleasant thought.
13 The first date I want you to come in is 19 December. That is a bit earlier than I would otherwise do it, but there is a Christmas break and I want to see you before Christmas to see how you have gone for the first three months. After 19 December we will then get you back on Tuesday 29 April. These will all be at 9.30 in the morning, so you will have to get out of bed and get in early, it will not take long but you will be with me for 15 minutes or so, I would imagine. So 29 April, 26 August and again I will get you back on 17 December. So there are four episodes. You will still have time to run at that point. I may impose further judicial monitoring thereafter, but I will set you down for four lots of monitoring now. Have you got those, they will be given to you on the order, 19 December, 29 April, 26 August and 17 December at 9.30 in the morning. If for any reason that changes if I am not available, or not around, you will be notified.
14 In respect to each of the indictments, you, McLachlan, are convicted on all charges and on both indictments you are released on identical terms, on a community corrections order for 18 months with the terms as I outlined them.
15 You, Esmaili, on the one indictment, you are released on the same community corrections order for 18 months with the same terms and condition and judicial monitoring.
16 Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your pleas of guilty I would have imposed a term of youth detention in relation to this case if you had not pleaded guilty.
17 I have made the order for the retention of the samples that were made.
18 I make a compensation order against you for the payment for the damage, $500.
19 Any other orders required, Ms Zammit?
20 MS ZAMMIT: No, Your Honour.
21 HIS HONOUR: I could not have made myself clearer, I hope. There is a transcript kept of what happened today. Your counsel will tell you, I give people one chance, you will not get another one. You can come forward and sit behind them until the orders are prepared and when they are signed you can go. Thank you. I will sign it when it is prepared.
22 You, Mr McLachlan, have still got the difficult issue of trying to convince a magistrate to look after you in November when you go. You can probably, if you ask, get copies of my sentencing reasons to take with you. They will need to be cleaned up a bit because I have not taken time to write them. I have done it extemporaneously because I am heartened by the concession by the Crown that this was within range. So I want to get it dealt with rather than keep you here, but you will be provided with a copy of them through your counsel if you want them.
23 Have you got a name picked out for your son?
24 OFFENDER: Yeah.
25 HIS HONOUR: If you will want to see him turn one, comply with the order.
26 OFFENDER: Yeah. Thank you, Your Honour.
27 (Section 464ZFB order signed and acknowledged.)
28 (Compensation order signed and acknowledged.)
29 HIS HONOUR: I will adjourn until 9.30 Monday.
- - -
0
0
0