Director of Public Prosecutions v Ezekiela

[2016] VCC 314

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01787

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANCES EZEKIELA

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JUDGE:	HIS HONOUR JUDGE HOWARD
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2016
DATE OF SENTENCE:	17 March 2016
CASE MAY BE CITED AS:	DPP v Ezekiela
MEDIUM NEUTRAL CITATION:	[2016] VCC 314

REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – pleas of guilty to robbery and obtaining property by deception – considerable delay and peripheral role - CCO

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms G. Overend	Office of Public Prosecutions
For the Offender	Mr M. Page	Leanne Warren & Associates

HIS HONOUR: 

1Frances Ezekiela, you have pleaded guilty to robbery, for which the maximum penalty is 15 year's imprisonment (charge 1) and to obtaining property by deception, the maximum being ten years' imprisonment or failing imprisonment, 1200 penalty units (charge 2). 

2I have to sentence you now on behalf of the community.

Circumstances of offending

3The circumstances of your offending are set out in an agreed amended prosecution opening which was read out in court, so a summary will suffice.  On 5 April 2013, at about 10 pm you were with two other unknown men and were intoxicated. Your group confronted a 45-year old gentleman who was walking through the carpark at the Sunshine Marketplace. Your group walked with him for a short distance and then one of the other two men pushed him up against a wall whilst the other stole his wallet and phone (charge 1).  The prosecution concedes that you were just standing by while this all happened. 

4One of the others asked the victim for his PIN number to a bankcard found in his wallet.  The victim gave a number but it was the incorrect number.  At the direction of the other two, you went to the ATM but were unable to extract any money. Whilst you were doing this the other two were continuing to hold the victim up against the wall. You returned and informed the other two about the fact that you could not get any money out, and they became quite violent towards the victim.  One of them kneed him to the chest, pushed him and attempted to punch him; and the other pulled out a knife, put it to his throat and threatened to kill him.  The victim was obviously terrified and he gave the correct PIN number.  You then returned to the ATM and withdrew $400 cash (charge 2).  You met up with the other two a short time later and gave them the $400, and the three of you ran off.

5There was CCTV footage of you at the ATM, but regrettably that was not reviewed by police until 18 March the following year, that is 11 months later.  The photograph was sent to Crime Stoppers and you were identified.  It has been explained by the prosecutor that there had been three informants in the case and the prosecution concedes that this was an unacceptable delay.  That is a proper concession. There was further significant unexplained and unacceptable delay until May 2015 when another informant took over the matter.  She could not find you and issued a “whereabouts” for you. You were arrested on 16 July 2015, which was 27 months after the offending.

Police and court process

6You made admissions of offending conduct in a record of interview.  You said you were drunk and followed the other two men when they said they would make some money.  You gave an account of the confrontation with, and the violence to, the victim and also about getting the money, but some details you gave were inconsistent with the victim's account and the agreed opening.  The parties agreed to proceed on the basis of the victim's account, which I think was sensible because it is clear you were intoxicated at the time and were then being asked about the matter some 27 months after the event.

7You said that you only got $50 out of the offending, that you had got mixed up with some “bad people,” as you described them, and you regretted your conduct.  You identified yourself in the photograph of you standing at the ATM.  You said you were too frightened to identify the co-offenders but you did not hang out with them any more as you were working by that time.

8You were charged on 19 August 2015 and released on bail. There is no pre-sentence detention.  You pleaded guilty at a committal case conference on 15 October 2015, which is conceded to be the earliest time.

Victim Impact

9There is no victim impact statement, but the victim said in his police statement that he was very scared and thought that the offenders were going to kill him.  He had an extremely sore right side where he was kneed and a sore right eye from being pushed against the wall. No doubt he underwent a terrifying experience with some attendant ongoing anxiety.  You should feel a great deal of shame and remorse for what you did to that person. There is no compensation order sought by the bank which provided the $400.

Background and personal circumstances

10Turning to your background and personal circumstances, you were born in the Cook Islands in 1993.  You are now 22 and were 19 at the time of offending.  You have three older brothers.  None of them have been in trouble and unfortunately you have lost contact with each of your brothers.  You came to Australia with your family in 1999 when you were six and seem to have had a good and well settled family background, as best I can tell.  You left school midway through Year 9 and have been consistently fully and productively employed since leaving school, working in warehouses and a fruit market for the first four years and then as an asphalt labourer with the same employer since November 2013 up to the present. Your employer has indicated in a letter, knowing full well the circumstances of this matter, that your job is open to you.

11You earn about $700-$800 clear, that is $1400-$1600 a fortnight, and pay rent of $300 a fortnight.  Other than normal living expenses, there are no other commitments.  You live with your partner and she earns about the same amount.  Your parents have now returned to the Cook Islands and two of your brothers remain here.

12Regrettably, you have quite a serious, although limited, criminal history.  When you were 15 in 2009 you were convicted of a number of dishonesty offences as well as robbery, unlawful assault and possessing a dangerous article in a public place.  These offences have not been described, but you were placed on a youth supervision order without conviction.  Then when you were 17 in August 2011 you were found guilty of armed robbery and recklessly causing injury for which, again without conviction, you were placed on a youth supervision order. The circumstances were that the offending occurred in November 2010.  You and another man got out of a car, held up a victim who was alone in the street.  You were in possession of a tyre lever and struck him to the face causing him facial injury.  He was robbed of two UDL cans.  You made full admissions to the police when you were arrested on the same day.

13I note that on each of the two occasions you were placed on the youth supervision order you appear to have kept the order.  There is no suggestion of you having breached those orders.

14I have received six glowing character references from longstanding friends, from your current partner and, as I have noted, your employer.  In various ways they describe you as a good and decent man, a loving and caring person who will always help others, especially younger folk.  You are described as a reliable and hardworking employee and you have been involved with a church group and other voluntary work.  You have had the same job now for the past three years and it is open to you despite this offending.  Those persons speak of you as being very remorseful and regretful for your offending and as showing insight into the seriousness of what you have done.  In the future you want to do some youth work to help others avoid the type of criminal pitfalls that you have experienced.

Offending role

15As to your offending, I am satisfied, and the parties do not dispute it, that you were not the main player.  You did not actually threaten or inflict any violence on the victim.  You did not have a weapon.  You played a peripheral role of making up the numbers and then getting money from the ATM in the way I have described.  I accept there is no evidence of you being aware that the other offender had a knife until it was actually produced to enforce the second demand for the PIN number. Not surprisingly, it resulted in the gentleman giving the correct PIN number. Of the $400 you got out of the ATM you received only $50. 

16You were intoxicated at the time, and whilst that is not an excuse, I think it did make you more susceptible to the influence and direction of the other two men, who I infer were older than you were.  For instance, by going to the ATM you exposed yourself to identification, as transpired, and thereby avoided the other two men from exposure.  So that says a little about their guile and your naivety.  In your record of interview you cooperated with the authorities in the way that I have explained. 

Mitigating circumstances

17There are a number of mitigating circumstances in your favour which I accept.  The first is that you come from a good family background and have had a stable life up until your teenage years.  Then it seems you experienced some homelessness and that was certainly the case when you offended.  You were only 19 at the time of offending, you are now only 22, so you are a young offender and the Mills principles, as they are known, apply in your favour.

18There has been a lengthy and unacceptable delay, as I have explained, and a consequence of that is that you have lost the opportunity to be dealt with in the Children's Court jurisdiction when you were under the age of 21.  In all probability I think if there had been no delay and you had been dealt with soon after the offending, then you would have been sent to detention in a Youth Justice Centre given your prior history. However, the delay has had the consequence of you demonstrating significant rehabilitation, which is in your favour. That is a significant feature, especially coupled with your peripheral role in the offending. 

19You have entered the earliest plea of guilty, thereby saving time, cost and inconvenience to the community.  That has been of utilitarian benefit because it has avoided the necessity of having a trial and the victim having to undergo the trauma of what happened to him.  You have, therefore, served the ends of justice and for that alone there should be a significant discount in penalty. I am satisfied that your pleas are associated with genuine remorse and regret for what you did, and insight into the serious nature of your offending. 

20I have mentioned the rehabilitation that has occurred in the meantime over the period of delay, which is now almost three years.  I have also dealt with some of those aspects but, in general, you have left the negative associations that you had. I think you understand how other people can get you into trouble.  You have now got a partner who has supported you in court; you have had what seems to be a stable and loving relationship for some four years.  You have done volunteer work, including with the church group, and have been a good and productive worker and your job is open to you still, in spite of what you have done.

21Importantly, there has been no subsequent offending and there is nothing pending.  You do not have a mental health or drug issues.  You did have, I think, a past alcohol problem which is clear from the offending itself, but apparently you have not had a drink now for some two years.  I am satisfied that you have turned your life around, you are heading in the right direction and that you do have good prospects of rehabilitation. 

Other sentencing considerations

22There are, of course, other important considerations.  As to the offending, I agree with the prosecution assessment that in considering the gravity of your offending I have to have regard to the fact that the victim was a vulnerable person who was alone, accosted at night by three offenders, and you were present when the PIN number was obtained from him.  Robbery of this kind is prevalent offending and constitutes a traumatic experience for victims.  I must have regard to the maximum sentences provided. Here, the principles of general deterrence, protection of the community, just punishment and denunciation are all important sentencing principles and so too, given your prior criminal history, is specific deterrence.

23I denounce your offending on behalf of the community. 

24Current sentencing practice for this type of offending demonstrates there are vast differences in offending and also in offenders, and it results in a very broad range of disposition from imprisonment to granting of community correction orders. But you need to understand that there is always with this type of conduct the risk of imprisonment and that risk will be a high one in certain circumstances.  However, the fact is that delay has promoted your rehabilitation.  You are no longer suitable for detention in a Youth Justice Centre because of your age.  I do have a grave concern that if someone like you, who has never been in an adult prison before, were to go there you would be corrupted by hardened criminals. Such a disposition would, I think, undo the significant good work that you have been engaged in over the last couple of years.  The prospects would be that you would start committing offences again and go downhill very significantly.  If that happened, you would be facing a very grim future.  Whenever you were to come out of prison you would probably have no partner, no property, no money, and no job, nothing in your life.  Whereas right now you have a number of those options; one of them is your partner, sitting in court right in front of you.

25I think the mitigating circumstances are very powerful in this case, particularly, as I have said, the delay, the rehabilitation in the meantime and your peripheral role in the offending.  In reliance upon what is known as the Boulton guidelines, your counsel's submission was that I should not imprison you but rather release you on a community correction order.  Counsel emphasised the punitive nature of community work and the rehabilitative importance which programs under such an order can provide for you. The prosecution did not oppose this course, and that is another significant factor in your favour. 

26Accordingly, I called for a CCO assessment report today and that indicates you are assessed as being at medium risk of reoffending, so, you are far from out of the woods and you do need help, even though you have done well in the last couple of years.  You are assessed as being suitable for release on the order.  You have had no previous involvement with CCOs and it is suggested that you require supervision, unpaid community work, alcohol assessment and treatment given your past problems with alcohol and that you undergo selected offending behaviour programs.  I agree with that approach and I am satisfied that this is an appropriate case to release you on a community correction order, notwithstanding the seriousness of your offending.

Explanation of CCO

27A CCO is a community-based sentence that addresses your particular offending and your personal circumstances.  It is designed to both punish you and assist in your rehabilitation so it serves both your interests and those of the community.  If you engage with it appropriately it will improve your life and help those around you as well.  Another way of putting it is - this is a golden opportunity to turn your life around for the better.

28Mr Ezekiela, I am going to release you on charge 1 on a community correction order if you agree to it, and I propose to fine you on charge 2.  First of all I am going to deal with the community correction order, because if you do not provide your informed consent then I cannot release you on that order and I would have to deal with you in some other way and that may place you in a worse position.

29I know the nature of the proposed order has been explained and that you have agreed to undergo it, but I need to go through it all with you myself, including assuring myself that you understand that you have signed a form acknowledging that you may be called upon by Corrections Victoria to fund yourself some of the rehabilitation programs that have been recommended for you.  Do you understand that?

30OFFENDER:  Yes, I do.

31HIS HONOUR:  The CCO will last for 12 months, it will start today.  There are what we call mandatory or compulsory terms and there are special conditions.  The mandatory/compulsory terms that apply are as follows.  First, during the period of the order you must not commit whether in or outside Victoria an offence punishable by imprisonment.  There are many such offences, including driving offences, where you can get a gaol penalty. Secondly, you have to comply with any obligation or requirement prescribed by the Sentencing Regulations 2011, particularly Reg.17. Thirdly, you must report to and receive visits from the Secretary to the Department of Justice or his or her delegate during the period of the order. When I refer to the Secretary or delegate, this means in practice a community corrections officer. Fourth, you must report to the community corrections centre specified in the order, which is the Sunshine office, within two clear working days of the order starting today. I emphasise working days; there is an appointment that has been made for you next Monday at 4 o'clock. Fifthly, you have to let the Secretary, that is Corrections, know within two clear working days if you change your address or any job that you may have, even if such change is only temporary. Sixth, you must not leave Victoria without first getting permission to do so from the Secretary, that is Corrections, either generally or in relation to a particular case.

32Finally, you have to comply with any directions given by Corrections whether oral or written which are necessarily given to make sure that you comply with the order. Do you understand all of those mandatory or compulsory terms that apply to the proposed CCO?

33OFFENDER:  Yes, I do.

34HIS HONOUR:  Do you have any questions about any of them?

35OFFENDER:  No, I don't, your Honour.

36HIS HONOUR:  As I said, there will be certain conditions which are designed to punish you and address the underlying causes of your offending, to provide treatment to you and to continue to promote your rehabilitation. The first is that you have to perform 350 hours of unpaid community work over that 12-month period.  That works out at about eight hours a week, I think.  You have to do that work as directed by the community corrections officer, and that is a punishment to you for your offending on charge 1, but it may help you understand that there are other people who are far worse off than you are, that is one thing.  But remember that you are going to be mixing with other criminals, other people who have committed crimes and have been released on a CCO to do community work.  Those people may try to lead you astray.  They might try to say to you, "Listen, this is a good way to get money, you commit a robbery".

37OFFENDER:  I'm not so easily convinced nowadays, your Honour.

38HIS HONOUR:  Good, I am pleased to hear it.  But remember that is a risk that might happen.

39OFFENDER:  Yes.

40HIS HONOUR:  And you are going to have to be very strong in resisting that sort of thing.

41OFFENDER:  I will, your Honour.

42HIS HONOUR:  If you have any concerns about that sort of problem then you should take that up with the community corrections officer.

43OFFENDER:  I will.

44HIS HONOUR:  Next, I am going to impose a special condition that you undergo assessment and treatment including testing for alcohol abuse or dependency.  Next, that you undergo an offending behaviour program or programs as directed. Finally, you will be under the supervision of a CCO officer.  This supervision will assist you and may include monitoring and management of you over the next 12 months.

45OFFENDER:  Yes.

46HIS HONOUR:  It will continue for the whole period of the order and you should rely a lot on that experienced person.  That is someone who is there to help you with your problems.  If there is a problem with people at work, that is the sort of person you should speak to about that problem and what is the best way to deal with that issue. In other words, if you are having problems do not bottle them up.

47OFFENDER:  Tell someone, yeah?

48HIS HONOUR:  Yes, absolutely.  Tell the CCO officer about what is troubling you, work closely with them, and that will make your life better and it will make life better for others that care about you and that you care about.  That is the order.  Do you understand all the special conditions that are going to apply to it?

49OFFENDER:  Yes, I do.

50HIS HONOUR:  Do you have any questions you want to ask me about that?

51OFFENDER:  No, I don't, your Honour.

52HIS HONOUR:  All right.  Next, I have to tell you what the consequences are if you breach the order.  You can do that in two ways.  If you breach the order without having a reasonable excuse for doing what you did, then you can face punishment of three months' imprisonment alone, just for the breach.

53OFFENDER:  Yes.

54HIS HONOUR:  Yesterday I gave a person who breached their CCO 75 days' imprisonment on top of the sentence they were already serving because they breached their CCO, apart from anything else.  So you can do that in two ways.  One, if you break the law in the way that I have said.  If you break any law punishable by imprisonment then that would constitute a breach.  Even if you are not guilty of doing that but you do not turn up for meetings, you do not turn up for work, you do not turn up for supervision or assessment about alcohol, then you could be breached.  That is what we call administrative breach.

55In either of those circumstances if you are in breach you should expect to be brought back to the court, and if that happens the court can vary the order, confirm it as originally made, or cancel the order if it is still in force and deal with you for the original offences for which the order was made.  So if you came back for a breach and the breach was proven against you, you face three months' imprisonment for the breach alone and then you could be dealt with for the robbery again.  If that happened, you should expect that there would be a high risk that you would be sent to gaol.

56Do you understand the serious consequences if you were to breach the order?

57OFFENDER:  Yes, I do, your Honour.

58HIS HONOUR:  Including that you could be sent to gaol if you did that?

59OFFENDER:  Yes, I do.

60HIS HONOUR:  All right.  Do you have any questions about the proposed order that you want to ask me?

61OFFENDER:  No, I don't, your Honour.

62HIS HONOUR:  Do you consent to the proposed order as I have outlined it?

63OFFENDER:  Yes, I do.

64HIS HONOUR:  All right, thank you.  Just have a seat for the moment, please.  I will just have you, Mr Page, have your client sign the proposed order, thanks.

65[CCO signed and acknowledged] I have signed that order and copies can be made to the parties.  Just stand up again if you would, please. 

Sentence

66On charge 1 you are convicted and released on a community correction order for the period of 12 months commencing today on the terms and conditions as I have outlined and you have agreed to and as signed on the order.

67On charge 2 I do propose to fine you, that is the charge of obtaining property by deception.  On that charge you will be convicted and fined $3000. 
Mr Page, I will either grant a stay of nine months to pay, which is something like taking 30 weeks to pay at $100 a week on the figures.  Alternatively, you could pay it off at $400 a month or something like that.  Do you want to get some instructions?

68MR PAGE:  I will, your Honour.  Thank you.  He would be grateful for a stay of nine months, your Honour.

69HIS HONOUR:  Yes, I will grant a stay of nine months for the payment. 

70But for your pleas of guilty I would have sentenced you to 18 months' imprisonment with a minimum of 12 months to serve.

71Finally, the prosecution has applied for a forensic sample order. You have consented to the making of that order. I am satisfied that given the seriousness of the circumstances of your offending on both charges, the prior criminal history, that the order is by consent and the granting of the order is in the public interest, you should provide a forensic sample which will consist of a scraping from your mouth and/or a blood sample in accordance with subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. The order is made pursuant to s.464ZF(2) of the Crimes Act.  Because you are not going to be imprisoned today, then for the purpose of undergoing this procedure you have to report to the officer in charge of the Sunshine Police Station at 497 Ballarat Road, Sunshine over the next four weeks, commencing 28 days after today, or once any instituted conviction appeal is finally determined and the conviction for the forensic sample offence is upheld, whichever is the latter.

72I should tell you that even though you have consented to that order being made and it is a simple thing of having a swab done on the inside of your cheek, it is painless and takes a moment or two, but if at the time of the request you do not consent to the taking of the mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted.  Just have a seat for the moment, I will sign those orders. Thank you, I will hand that order in triplicate to the prosecutor.  I ask counsel, are there matters arising?

73COUNSEL:  No, your Honour.

74HIS HONOUR:  Thank you both for your assistance.  Mr Ezekiela, you can come out of the dock, thanks, and just sit with your partner.

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