Director of Public Prosecutions v Gaite

[2016] VCC 921

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01870

DIRECTOR OF PUBLIC PROSECUTIONS

v

GOLLADE GAITE

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 July 2016
CASE MAY BE CITED AS:	DPP v Gaite
MEDIUM NEUTRAL CITATION:	[2016] VCC 921

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. McClure
For the Accused	Ms L. Scholz

HIS HONOUR: 

1Gollade Abdi Gaite, you are to be sentenced for one charge of attempted armed robbery and one charge of armed robbery.  The respective maximum sentences are 20 years and 25 years' imprisonment. 

2You  pleaded guilty before me on 12 February 2016.  When interviewed by police on 3 August, you exercised your right to silence.  However at committal in October of that year, you entered pleas of guilty.  The matter was then listed for plea hearing in this court.

3You receive the benefit of your plea of guilty and a high level of cooperation in the proceedings.   I accept that you are remorseful. 

4At your plea hearing, which also ran on 12 February, Mr Roper for the Crown tendered a written Crown opening. Ms Scholz, for you, tendered a neuropsychological report of Jane Lofthouse, dated 15 December 2015 and the report undated of your treating psychologist, Mr Souher, Mohamad. Ms Scholz also provided written plea submissions. Having heard the plea, I requested under s.80 of the Sentencing Act  reports bearing upon your intellectual disability.  I have now received the Department of Health and Human Services' Client Overview report and justice plan, both dated 27 April 2014 by Yoko Ah Kuoi  of Disability Services and the presentence suitability for Community Corrections order report of Tiffany Fraser of Community Correctional Services.  It is dated 19 May 2015. 

5I was told today that there has been some positive engagement already with Disability Client Services and tendered this morning was the email dated 30 June 2016 by Yoko Ah as to that.

6The circumstances of your offending are comprehensively described in the tendered Crown opening,  which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put to me by
Ms Scholz, not challenged by the Crown.

7In June and July 2015, you were aged 20 years.  You suffer intellectual disability and autism.  At this time, you had considerable financial problems, owing almost $20,000 to financial institutions and also Vodafone and Telstra.  In the context of your disabilities you had borrowed  including to pay board to your step-father,  with whom you then lived. 

8The attempted armed robbery occurred in the early hours of 29 June at a United Petrol Station.  In short, you produced a knife and made several demands for money to the shop assistant, Bharat,  Sharma, aged 35.  He refused, armed himself with a bottle of alcohol you had placed on the counter and you fled.  You were wearing a beanie, sunglasses, hooded jumper and gloves.

9On 7 July at about 4 pm, you went to the Cignall,  Tobacco Store at a shopping area called the Mall in Heidelberg West.  You were similarly dressed.  You produced a knife, made several demands of the female shop assistant, Haiping,  Fan,  40 years of age, and progressively obtained and stole from her a total of about $550.  Both offences were recorded on CCTV.

10On 18 July, you were intercepted by police driving in Eltham.  You were observed placing a beanie on your head.  Within the car were items including gloves, sunglasses, a toy revolver, knife and stolen numberplate.   You were charged with offences including possession of the weapons and being equipped to steal.   On 28 October 2015, after pleading guilty at committal to these matters before me, you were given an adjourned undertaking to be of good behaviour at the Magistrates' Court.  I was told that the magistrate was informed of these matters and that you had pleaded guilty to them. 

11You were arrested in a police raid at your home in Epping on 3 August.  You were released on bail on 24 August. 

12No victim impact statement have been tendered.  Haiping Fan's police statement evidences her level of fear.

13You are now aged 21 and,  as stated,  suffer intellectual disability and autism.  The material before me emphatically shows that.  You were born is Sydney.  Your mother is Somalian, your father's origin is not clearly known to me.  Your mother came here, it seems very shortly before you were born.  You moved with her to Melbourne when very young and she raised you in your early years.  You have a step-brother, two years younger, fathered by a man from Ghana, your step-father.

14Your mother at some point commenced a relationship with an older Australian man and the family lived with him for a number of years.  He died in 2006.  Your mother then commenced a relationship with an African man named Bilal, he had his own two children.   In 2008 when you were 13, there was child protection intervention and all four children were taken into care.  After that, you and your step-brother were placed with his father.  He is your step-father to whom you owed board at the time you offended.  You have not had a good relationship with him.  You now live with your mother in St Alban's.

15Your intellectual disability and autism disorder were diagnosed when very young.  You are said to have a tested IQ of 65.  The tendered material also states that you suffer conditions of depression and anxiety.  You have been treated by Dr Mohamad for this throughout 2015 and 2016.  Bearing in mind your mental health and disability, remand custody in August 2015 was particularly difficult for you, you appear to have engaged in self-harm.    It is not challenged that the so-called Verdins principles apply in the sense of reduced moral culpability,  and what flows from that, and also the particular hardship imprisonment would mean for you.

16You attended special schools.  Since you have worked quite productively,  or at least consistently.  You have trained and obtained some qualifications in the hospitality industry.  You lost your job at a South Morang  hotel because of these offences.  Now you work as a kitchen hand in a café in Altona.  You have hoped to resume training and an apprenticeship in cooking.  I was told this morning that you attend TAFE once a week.

17You are said to have no relevant drug or alcohol problem.  You have no criminal record.  However, I have noted here earlier a subsequent matter at the Magistrates' Court for which you received a good behaviour bond.

18Armed robbery is self-evidently a very serious offence.  Your two offences are,  on any objective view, quite serious examples of it.  Such offending would attract as relevant sentencing considerations such as deterrence, moral culpability and the need to denunciate and punish.  The victim impact, although not specifically expressed in a victim impact statement, was likely considerable.  I should put that better.  The victim impact, although not specifically expressed in victim impact statements, was likely considerable. 

19However, in your case, there are  also important moderating factors.  They include the following, (1) your plea of guilty and cooperation.  (2)   You have no criminal record and should be seen as of otherwise good character.  (3)  You are young, at the time of offending you were eligible to be sentenced in a Youth Justice Centre.  In my view,  your intellectual disability adds emphasis to consideration of your youth and true maturity.  (4) Your personal history and circumstances. That particularly includes that you suffer the disability and mental health conditions identified.  The Verdins principles apply in the way described.  The circumstances or context of your offending, I find,  were affected by this.  That includes the financial predicament in which you had placed yourself at the time.  The material before me suggests that such financial circumstances and management can be assisted in the terms of the sentence I shall impose.

20I have decided the correct sentence is that I impose a community corrections order, directed at punishment,  appropriately moderated by the factors I have just raised,  but also at  assistance and rehabilitation of you.  The report of Tiffany Fraser of Community Correction Services defines you suitable for such an order.  The Crown has not argued against it.

21Now stand up.  I sentence you as follows.  On both charges, you are convicted and I impose a community corrections order of three years duration.  The usual terms apply. 

22In addition, I impose the following conditions, that you perform 200 hours of unpaid community work over the period of three years as directed.  That you participate in and comply with the services provided in the justice plan filed with court for a period of two years.  That there be supervision and that be judicial monitoring, the first date for judicial monitoring is or will be 4 October 2016. 

23Just sit down for the moment.  Now what other orders are sought?

24MS McCLURE:  Yes, Your Honour, there's a s.464ZF order sought?

25HIS HONOUR:  Yes, well I make that order.

26MS McCLURE:  There's also a disposal order and I have copies of this.

27HIS HONOUR:  All right.  Well I sign those.  I also need to indicate what I would have imposed had he not pleaded guilty.  That can be very difficult in a case like this.  Doing the best I can, I would have imposed a longer period, a longer duration community corrections order with a higher number of hours of community work.  Do I need to say more than that?

28MS McCLURE:  Your Honour, as you're increasing his community corrections order, it's actually not required strictly speaking by the section to state the ‑ ‑ ‑ 

29HIS HONOUR:  Yes, I mean it does not hurt to say it and I have I think, had any attempt to speculate on the precise number of years of duration and the precise number of hours I think is not necessary.

30MS McCLURE:  Yes, thanks

31HIS HONOUR:  All right.  Now, Mr Gaite, your client is well on this application the subject to a forensic sample order, do you want to say anything about that?

32MS SCHOLZ:  No, Your Honour.

33HIS HONOUR:  No, I do not think you could ‑ ‑ ‑ 

34MS SCHOLZ:  It's not opposed.

35HIS HONOUR:  ‑ ‑ ‑ could not resist it really, could you?

36MS SCHOLZ:  I explained the process to him this morning.

37HIS HONOUR:  All right.  I need to say it again.  I am going to make an order that you supply a sample of your saliva, you do that by putting a cotton swab inside your mouth and if you cooperate and that, that is the end of it.  If you do not cooperate, a blood sample may be taken by injection and necessary or reasonable force used to do that.  The reasons why I am going to, I am making the order is the serious, really the seriousness of the circumstances of your offending.  It is not opposed.

38So you need to make arrangements, you need to make arrangements to attend at the Sunshine Police Station after four weeks from today and before another four weeks goes by, so within eight weeks, you can talk to him about this.  Arrange for that to happen.  I will sign the order now.  It is this order.  It is only come to me as one or a single order, the forensic sample order, but I have signed it, but it can be (indistinct) perhaps can it?  Not now though.  I do not think I have got it, as I wrong about it, I have only got  - yes, that is all I have got.  I have got them, they are up there.

39MS McCLURE:  Yes, Your Honour, my apologies.

40HIS HONOUR:  Yes, thank you.  No, that is all right.  So I will sign the other parts to it.

41MS McCLURE:  Unfortunately the stapler at work is out of order.

42HIS HONOUR:  Yes, I see.  All right.  So I have signed that order in triplicate.  I am also going to sign an order for disposal of certain items and it is the various clothing that was used, part of the - to attempt disguise.  All right.  So I will sign that.  You did not want to say anything about that did you, Ms Scholz?

43MS SCHOLZ:  No, Your Honour.

44HIS HONOUR:  So I have signed that order and I will hand it back to you.  Now have we got the order?  Thank you.  Thank you.  Stand up, Mr Gaite.  Actually, you can come out of the dock and stand near Ms Scholz.  All right.  Now I need to explain this community corrections order to you, Ms Scholz has already spoken to you about it, I think, and I should imagine the person you saw told you about it.  All right.  So it runs for three years.  That means it ends on 30 June 2019.  You will get this, so I just, I need to say this now.  Now these are the usual orders, usual conditions.  You have got to go to the Sunshine Community Correctional Services, it has got an address here within two clear working days, you need to do that I would say by the end of Monday.

45You must not commit another offence for which you could be imprisoned over the period.  You must comply with the condition, prescribed by a regulation 17 of the Sentencing Regulations, which means this as I understand it, that you may not attend any appointment, worksite affected by alcohol or drugs or carrying illegal drugs.  You must receive, you must report to receive visits from Community Corrections.  You must let a community corrections officer know within two clear working days of changing your address or the job.  You must not leave Victoria without first getting permission from Community Corrections and you obey all of their lawful instructions.

46Now the extra conditions are that you perform 200 hours of unpaid work over the next two, three years, are directed.  All right.  Now you may remember what was said before, between myself and Ms Scholz.  If you have got work problems about doing it, make sure you tell them at Community Corrections and they will be helpful to you.  Do not be silly and just not go.  All right.  You follow?

47All right.  You must be under supervision.  You must come and see me on 4 October 2016 at 10 o'clock, I will come back to that and you also must participate in the services in what is called a justice plan and that is Disability Client Service, they will tell you what you need to do.  All right.  You know that person already.  All right.  How is it going with her?

48OFFENDER:  Good.

49HIS HONOUR:  Good, that is good.  Now I will get a report from the Community Corrections people before 4 October and if you are going all right, you will not have to come and see me.  But if you are not going all right, you will have to come and see me, in court here.  All right.  Now do you understand that?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  You agree to it?

52OFFENDER:  I do.

53HIS HONOUR:  All right.  Well I will get you to sign it then.  Now there is nothing else I need to do?

54MS McCLURE:  No, Your Honour.

55HIS HONOUR:  Good, thank you.  Well you can go now.  Thank you, good luck.  Thank you for coming. 

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