Director of Public Prosecutions v Gebremeskel
[2022] VCC 2203
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01473
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BINYAM GEBREMESKEL |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 December 2022 |
| DATE OF SENTENCE: | 9 December 2022 |
| CASE MAY BE CITED AS: | DPP v Gebremeskel |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 2203 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of armed robbery – one charge of possessopm of a drug of dependence – related summary offences – accused produced a handgun shaped lighter during robbery – relevant criminal history – specific deterrence and community protection important sentencing factors – youthful offender – offender remorseful – modestly positive prospects of rehabilitation – pleas of guilty entered at the earliest reasonable opportunity
Legislation Cited: Sentencing Act 1991
Cases Cited: Worboyes v R [2021] VSCA 169
Sentence:198 days imprisonment and a 12 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Dane | Office of Public Prosecutions |
| For the Accused | Ms M. McDonald | Bowler & Co |
HIS HONOUR:
Introduction
1Binyam Gebremeskel, you have pleaded guilty to a charge of armed robbery and a charge of possessing a drug of dependence. You have also pleaded guilty to the related summary charges of dealing with property suspected of being the proceeds of crime (a bicycle) and committing indictable offences while on bail.
2The circumstances of your offending are set out in the document entitled 'Summary of prosecution opening upon plea', which is Exhibit A.
Circumstances
3Shortly after 7 am on 25 March 2022, in Footscray, you approached the victim and asked, 'Do you have any money? I'll fix you up'. The victim said he only had $5. You repeated the expression, 'I'll fix you up', before showing the victim a silver lighter, which looked like a very small handgun. Fearful that you possessed a firearm, the victim gave you his $5. This constitutes Charge 1, a charge of armed robbery.
4After telling you that was all he had, you rode away on your bicycle. Looking at the CCTV footage, which I was shown, it was victim who walked away leaving you stationary astride the bicycle, rather than you riding away on a bicycle. At the time you were unemployed, and the value of the bicycle was almost $2,000.
5As I say, I have viewed the CCTV footage of the incident both in the courtroom and in my chambers. I cannot see where you produce the lighter. Otherwise, the circumstances depicted are unremarkable.
6Your possession of the bicycle underlies the summary charge of dealing in property suspected of being the proceeds of crime. The victim contacted the police and shortly afterwards you were arrested. A later search found five Ziploc bags containing 6.33 grams of methylamphetamine, a set of scales, and three $50 notes. Your possession of the methylamphetamine constitutes Charge 2, possession of a drug of dependence. At this time, you were already on bail. This constitutes the related summary offence, committing an indictable offence while on bail.
7When interviewed by the police, you denied the armed robbery but admitted possessing the bicycle, the lighter and the money. With the bicycle, you said you had bought it from an unidentified person for a 'couple hundred dollars'.
Victim impact statement
8There is no victim impact statement. It is impossible to say whether the incident has had a lasting effect on the victim except he has no wish to return to the Footscray area. No doubt he was told by the police that what he thought was a handgun was, in fact, a lighter.
Criminal history
9Between 14 December 2017 and 3 September 2021, you have appeared in a criminal court on five occasions and have been found guilty or convicted of 66 charges. You have been detained or imprisoned twice, with your longest sentence being six months' imprisonment. The sentences of imprisonment was part of a larger sentence, which included a community correction order. The current offences contravened that order. Among the 22 charges were two charges of robbery. I was given a brief outline of the circumstances of each of those charges.
10I note you have earlier finding of guilt in relation to armed robbery. I have now been given the informant's statement of the circumstances of that offence.
11In light of those matters in particular, specific deterrence is an important sentencing consideration for you.
Psychologist
12Warren Simmons is a psychologist. On 7 October 2022, he interviewed you at the request of your solicitors.[1] Much of your background is obtained from his report.
[1]Report dated 8 October 2022
13You told Mr Simmons of your traumatic experiences in Eritrea when aged 16. He did not diagnose you as suffering from a post-traumatic stress disorder but found you suffered from two of its more important symptoms: intrusive memories; and nightmares. They are important because of your strong emotional response when they occur. So much so, your drug usage may well be a form of self-medication to counteract that response.
14Mr Simmons recommended therapy from a practitioner skilled in the treatment of the disorder. After the start of such treatment, he recommended counselling for your drug addiction.
15I note Mr Simmons' view about the effect of continued custody upon your symptoms of hyperarousal and hypervigilance and the possible deterioration of your psychological condition. I accept his opinion.
Personal
16You are now 21.
17Your personal circumstances are set out in your counsel's written outline of submissions and also the report of Mr Simmons.
18Upon your release from custody, you propose to live with your mother and siblings.
Discussion
19Section 5(1) of the Sentencing Act 1991 sets out the purposes of sentencing and s5(2) of the same Act, the matters which a court should consider in reaching a proper sentence. Each of the purposes of sentencing applies in your case.
20As I said earlier, specific deterrence is important for you. As is the purpose of protecting the community from you. The prevalence of the offence of armed robbery requires attention being placed on general deterrence.
21You are young. You are remorseful. You want to become law abiding. You have considerable support from your family, their friends, and members of your church. This is evidenced by the letters submitted to the court by your mother, uncle, aunt's husband, brother, a friend of your mother and six members of your church. Through two periods in custody, you must have realised by now that the law has teeth and will punish criminal misbehaviour. On the other hand, you have committed these offences while the subject of a community correction order for various offences including two of robbery. Your prospects of rehabilitation are, at best, modestly positive.
Gravity of the offence of armed robbery
22I have viewed the CCTV footage several times in my chambers. It shows a brief incident which, to a casual observer, would seem innocuous. The victim walked away from you while you remained stationary on the bike. He looked back towards you several times. His way of walking suggests his vulnerability and, perhaps, that is why you approached him in the first place. It is not as though no one else was in the vicinity. The footage shows the presence of other persons, walking on footpaths and pedestrian crossings near to you.
23You used a lighter which looked like a pistol. Certainly, the victim took it to be one. You threatened him with it by saying twice, 'I'll fix you up'.
24The offence of armed robbery encompasses a wide range of circumstances, in your case, I consider it is within the lower end of the range of such offences.
Maximum penalty
25The maximum penalties for the offences is set out in paragraph 3 of Exhibit A. Far and away the most significant is that of 25 years' imprisonment for armed robbery.
26I also acknowledge, in sentencing you, the effect of s16(3C) of the Sentencing Act.
Guilty pleas
27Your guilty pleas were indicated at the first committal case conference on
17 August 2022, less than three months after your arrest. I will treat your pleas of guilty as being entered at the earliest reasonable opportunity. They are evidence of your remorse. They have a practical effect for the criminal justice system by making space for those who genuinely wish to contest the charges against them.28Your guilty pleas enjoy an enhanced effect due to the effect of the virus upon this and other courts' ability to deal with criminal cases efficiently. This was identified most emphatically in the case of Worboyes v R[2].
[2] [2021] VSCA 169
Community corrections assessment
29At my request, you were assessed yesterday in relation to a community correction order. The assessor found you were a high risk of re-offending and assessed you as suitable for the order. He recommended six conditions.
30You were also assessed yesterday by a registered nurse from Forensicare in relation to a mental health condition. He recommended that condition because you could benefit in trauma informed psychological counselling.
Sentence
31On the charges, including the summary charges, I sentence you to 198 days' imprisonment and, subject to your consent, a community correction order of 12 months' duration with the following conditions:
(a) to perform 250 hours of unpaid community work;
(b) to undergo assessment and treatment (including testing) for drug abuse or dependency;
(c) to undergo assessment and treatment (including testing) for alcohol abuse or dependency;
(d) to undergo any mental health assessment and treatment;
(e) to undertake any programme that addresses factors related to your offending;
(f) to be supervised, monitored, and managed as directed.
32All hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
33I declare the 198 days of your detention on remand as time served under these sentences.
34HIS HONOUR: Ms McDonald, would you seek instructions as to whether your client is prepared to consent to a community correction order in those terms?
35MS McDONALD: Yes, Your Honour, I will seek those.
36MS McDONALD: Thank you for that time, Your Honour. Mr Gebremeskel's confirmed his instructions to consent to such an order.
37HIS HONOUR: All right. I will make such an order and I will declare the 198 days of your detention on remand as time served under these sentences.
Forfeiture and disposal orders
38I will make the forfeiture and disposal orders in the terms sought.
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39And finally, if you had not pleaded guilty to these charges but had been found guilty after a trial, I would have sentenced you to a total effective sentence of 14 months' imprisonment.
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