Director of Public Prosecutions v George
[2019] VCC 1197
•2 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00405
Indictment No. J12665924
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OTOA APORA GEORGE |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 25 June 2019 | |
DATE OF SENTENCE: | 2 August 2019 | |
CASE MAY BE CITED AS: | DPP v George | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1197 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of common assault; one charge of criminal damage; one charge of theft; one charge of armed robbery and one charge of intentionally causing injury – young offender.
Legislation Cited: Crimes Act 1958, s18, s74(1), s75A and s197; Sentencing Act 1991
Cases Cited:R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Commonwealth DPP v Thomas and Wu [2016] VSCA 237; R v Mills [1998] 4 VR 235; DPP v Tokava [2006] VSCA 156; R v R v Merrett, Piggott & Ferrari (2007) 14 VR 392; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43; Director of Public Prosecutions v SJK & GAS [2002] VSCA 131; R v Lam & Ors [2005] VSC 495; R v Dixon (1975) 22 ACTR 13.
Sentence: Total effective sentence of 12 months imprisonment followed by a 2 year Community Correction Order with conditions; 197 days of pre-sentence detention reckoned as time already served under this sentence; Compensation orders made; 6AAA declaration- 2 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Foot | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms S Joosten | Victoria Legal Aid |
HIS HONOUR:
1 Atoa Apora George, on 25 June 2019, you pleaded guilty to the following charges:
CHARGE 1 – that you, at Springvale in Victoria on 11 October 2018, assaulted Mohammad Idris, who I shall refer to as Idris.
Common assault is contrary to the common law and carries a maximum penalty of five years’ imprisonment.
CHARGE 2 – that you, at Springvale in Victoria on 11 October 2018, intentionally and without lawful excuse damaged property, namely at Abernat Empire, belonging to Idris.
The offence of criminal damage is contrary to s.197 of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.
CHARGE 3 – that you, at Springvale in Victoria on 11 October 2018, stole two electronic cigarettes, a bottle of vape fluid and $6,000 belonging to Idris.
The offence of theft is contrary to s.74(1) of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.
CHARGE 4 – that you, at Springvale in Victoria on 11 October 2018, robbed Ali Agous who I shall refer to as Agous of certain property, namely an Apple iPhone, and at the time had with you an offensive weapon, namely a wooden pool cue.
The offence of armed robbery is contrary to s.75A of the Crimes Act 1958 and carries a maximum penalty of 25 years’ imprisonment.
CHARGE 5 – that you, at Springvale in Victoria on 11 October 2018, without lawful excuse, intentionally caused injury to Agous.
The offence of intentionally causing injury is contrary to s.18 of the Crimes Act 1958 and carries a maximum penalty of 10 years’ imprisonment.
Details of your offending
2 The prosecution tendered a document headed “Prosecution Plea Opening” dated 24 May 2019 (exhibit 1). I was informed by your counsel that you agree with the contents of such document. In particular, I note the following:
·You are presently twenty years old, having been born on 11 June 1999. You were nineteen years old at the time of the subject offending.
·Idris was the owner of a pool hall and coffee bay located at 9 Warwick Avenue, Springvale. Inside the pool room there are a number of pool tables, some tables for eating, and an area for customers to smoke “shisha”.
·Also inside the pool hall was a small vape shop called “Abenat Empire” owned by Muhammad Yaacob (“Yaacob”) and his wife Farah Haslan (“Haslan”).
·In the early hours of 11 October 2018, Idris was at his pool-hall business, which was closed. Idris was cleaning up and talking to his friends, Yaacob and Haslan, who were also assisting.
·During the evening of 10 October 2018, and into the morning of 11 October 2018, you were drinking wine at your cousin’s house with a number of other people, including your then girlfriend, Aromoana Maliko (“Maliko”). You became upset about an incident that had occurred at the pool hall some weeks earlier, where police were called. You decided to go to the pool hall, in company with a number of others.
Circumstances of the offending
·At about 12.35am on 11 October 2018, you and another male entered the pool hall via an open roller door. You said to Idris “I’m finding someone, are you alone here?”. Idris told you that there was no-one at the pool hall. You could not see Yaacob and Haslan at that time. You and the other male started to leave. As you were leaving, you smashed a wine bottle near the rear door of the roller door. Idris closed the roller door behind you and the other male after you left.
·About 10 minutes later you returned to the pool hall with two other males (one of whom had previously attended with you). You entered via the unlocked front door.
·Once inside, you grabbed Idris and demanded to know where “Anwar” was. You then hit Idris with a closed right fist three times to the face and neck (Charge 1 – common law assault).
·You said to Idris “I want to kill you for calling police” in reference to an incident about a month earlier at the pool hall, when police were called.
·You demanded Idris hand over his phone and unlock it, which he did. You then told one of the other men to go and check if the police were coming.
·You continued demanding to know where “Anwar” was. Idris and Yaacob insisted that they did not know who “Anwar” was.
·You and the two other men ransacked the pool hall, the kitchen and the vape shop. You threw chairs, pushed furniture over, broke pool cues and threw eggs and other food stuffs. You pushed over a display cabinet at Abinat Empire and broke the glass with a chair. Yaacob and his wife, Haslan, hid in a room in the vape shop while you and the two other men were damaging various property. Yaacob was trying to calm his wife as she was scared and crying. He locked the door and turned the light off. You and the other men broke the glass at the top of the door and got into the room. A bundle of photographs taken at the scene will be relied upon to depict the damage caused (Charge 2 – criminal damage).
·Maliko arrived and tried to stop you from continuing to destroy property. The two other men left. Maliko talked you down and told you to have some respect, as they did not know where “Anwar” was. She apologised to Haslan as she was leaving.
·Maliko and you left the pool hall.
·While you and the other men were in the pool hall, you stole $6,000 from a savings tin belonging to Idris, two electronic cigarettes (value $50) and a bottle of vape fluid (valued at $20) (Charge 3 – theft).
·At about this time, Agous, someone completely unrelated to the events, was dropped off at the carpark of the pool hall by a friend. Agous was there to collect his car, which was also parked outside the pool hall. Agous was walking to his car when he was approached by you and another male. You were shirtless and carrying a wooden pool cue.
·You asked Agous what he was doing there. Agous told you that he had just come from work and was coming home. You made a demand for money, Agous told you he did not have any money. You then demanded he hand over his phone.
·You instructed the other male to hold Agous. That male then held Agous from behind and you started to hit him with the pool cue. He was struck on the right side of his head, left arm and left ribs. The male let go of Agous and he fell to the ground. Agous passed out for a short period, and when he came to, you hit him again to the head with the pool cue (Charge 5 – intentionally causing injury).
·Agous got to his feet, and the other male again grabbed him while you patted his pockets and found the iPhone 6. The male holding Agous took the phone out of his pocket (Charge 4 – armed robbery).
·You again tried to hit Agous, who blocked the blow with his arms. He then turned to run away and was hit on the back of the neck with the pool cue. When he ran away, a number of bottles were thrown at him. One hit his leg and the other smashed on the ground. Agous cut his feet by stepping on the broken glass, all part of (Charge 5 – intentionally causing injury).
·Agous ran to the Springvale Police Station to report the matter. As a result of the assault, Agous had a cut to the back of his head and bruising to the back of his neck, ribs and left arm. He also had a cut to his left arm and cuts to the bottom of his feet, part of (Charge 5 – intentionally cause injury).
·Police attended the pool hall at about 1.06am and observed a group of people in the carpark area. You were there and started walking quickly away from the police, and when required to stop, you did not comply. You ran away but were later apprehended.
·Maliko was also arrested at the scene, in possession of a shopping trolley which contained a number of items stolen from the pool hall. Other accused had earlier decanted and could not be located.
·You were interviewed at the Dandenong Police Station on 11 October 2018. During the Record of Interview, you said, among other things:
– last month you got “done by these people”. There were thirty of them, and you made a complaint to police and they did nothing about it. (Q&A 17-20)
– you were angry about it last night and went to the store to try and talk things out, but then everything got out of hand (Q&A 20-21)
– earlier in the night you had been drinking at your cousin’s house (Q&A 50)
– things got out of hand, probably because you were “on the piss” (Q&A 85)
– you stated you did not know who smashed up the shop (Q&A 94-96)
– you smashed the owner and just threw him all over the place and you threw him by his shirt (Q&A 100-104)
– you drink to forget and that is what you did last night (Q&A 109-110)
– you were at the shop alone and then saw Maliko and left with her (Q&A 112-114)
– Maliko was telling you to stop because you had a lot of anger in you (Q&A116-118)
– apart from throwing the owner around, you did not do anything else (Q&A 102-121)
– apart from being there, you could not remember anything else (Q&A 189)
– you knew Anwar was the guy you were after, but you do not remember asking for him at the pool hall (Q&A 191).
3 On 11 October 2018, you were arrested and remanded, but were granted bail on 22 October 2018. On 20 December 2018, a committal case conference was adjourned and you failed to appear at the further committal case conference on 23 January 2019, causing a warrant to be issued.
4 On 28 January 2019, the warrant was executed and you have been remanded in custody until this date.
5 As at the date of the plea on 25 June 2019, the total pre-sentence detention in relation to the offending was 150 days.
6 A plea was entered at the committal case conference on 28 February 2019.
7 Counsel for the prosecution also sought orders in favour of Idris to the value of $6,000 for the cash stolen, and also in favour of Yaacob to the value of $1,000 for the damage to the cabinet and stolen vape items.
8 Counsel for the prosecution also tendered two bundles of photographs; one bundle (exhibit 2) consists of eight photos of the complainant, Agous, and the second bundle of photographs (exhibit 3) depict the criminal damage. I have perused all such photographs.
Your criminal record
9
Counsel for the prosecution tendered a copy of your criminal record, dated
16 June 2019. All your prior offending has been dealt with in the Children’s Court with no convictions recorded. Such offending consists of the following:
(a)on 2 December 2016, at the Melbourne Children’s Court, you were found to have committed aggravated burglary – persons present – theft and theft of a motor vehicle, and released upon entering a Good Behaviour Bond in the sum of $100 for 12 months;
(b)on 5 May 2017, at the Dandenong Children’s Court, you were found to have committed an aggravated burglary – person present – theft, theft of a motor vehicle, unlicensed driving, behaving in a riotous manner in a public place, intentionally causing damage and committing an indictable offence whilst on bail – and were placed on probation for a period of six months to 4 November 2017;
(c)on 8 September 2017, at the Dandenong Children’s Court, you were found guilty of behaving in a riotous manner in a public place and making a threat to kill, and you were released upon entering a Good Behaviour Bond in the sum of $50;
(d)on 11 January 2018, at the Melbourne Children’s Court, you were found to have breached your Good Behaviour Bond made on 2 December 2016, and you were released on a further Good Behaviour Bond in the sum of $100.
Your personal circumstances and background
10 Your counsel submitted the following material:
(a) a document headed “Plea Outline”, dated 21 June 2019 (exhibit “A”);
(b)a report from the forensic psychologist, Ms Laura Fleming, dated 10 June 2019 (exhibit “B”);
(c)a reference from Mr Campbell John Stewart, undated (exhibit “C”);
(d)a pre-sentence report from DHHS, from an earlier Children’s Court matter (dated 27 October 2016), and a progress report dated 7 September 2017 (exhibit “D”).
11 Partly on the basis of such material and partly on the basis of various submissions made by your counsel, I note the following:
(a)your parents, Jennifer and Tangataroa George, had recently migrated to Australia from the Cook Islands when you were born in Sydney. You are the second eldest of nine siblings (aged between two and twenty-one years of age), with your mother a full-time home maker and your father a factory worker;
(b)your family are religious and attend the Mormon Church;
(c)you were residing with your family prior to the subject offending and hope to return after your ultimate release;
(d)your family had moved to Sydney before you commenced school. Over your schooling you attended three different primary schools and two secondary schools and, in general, found school difficult, being suspended on multiple occasions;
(e)Ultimately, you left school in Year 10, after being expelled for behavioural issues and poor attendance. On leaving school, you commenced work with your father, doing deliveries, which was interrupted in 2016, when you spent several months in hospital, having suffered tuberculosis, and could not work. In early 2018, you began working with your uncle, moving furniture;
(f)Prior to the offending, you were living at home with your family, but were unemployed and looking for work;
(g)you commenced using cannabis in your early teenage years and began to drink alcohol from the age of 16. Apparently, you have used methamphetamine once or twice, and in 2018, in the period leading up to the subject offending, you were drinking heavily;
(h)in 2016, you were admitted briefly to a psychiatric unit – Monash Health Stepping Stones Adolescent Unit – following an incident where you dived in front of a motor car. After this admission, you have not sought any further mental-health treatment;
(i)you have been in a relationship with Maliko since April 2018. Apparently she has visited you while on remand, and you hope that the relationship will continue after your release.
The evidence of Ms Laura Fleming
12 The forensic psychologist, Ms Laura Fleming, assessed you on 20 May 2019, via video conference to the Ravenhall Correctional Centre.
13 After taking a history, performing some testing and making a mental-state examination, Ms Fleming considered that you had an Alcohol Use Disorder, in early remission, due to being in a controlled environment. In particular, Ms Fleming stated:
“In relation to the offending, Mr George presented as a young, immature male who, under the influence of alcohol which reduced his ability to rationally problem solve, reacted to a negative emotional state and thoughts of retaliation. This was supported by antisocial friends and led to attendance at the premise of the pool hall where he acted without thinking of the consequences to himself or others. The fact he cannot recall the events supports the impulsive nature of them and without the involvement of his partner in attempting to cease his behaviour it is possible the events could have been much more severe.
Overall Mr George is at a low to moderate risk of reoffending due to the high number of charges, regular contact with the justice system, alcohol problems, unemployment and poor use of his time, engagement with solely antisocial friends along with disharmony with his family and how this affects the stability of his accommodation. A number of these factors could ameliorate with appropriate treatment.”
14 Ms Fleming recommended treatment, which would include:
·treatment in relation to alcohol misuse, focusing on understanding the risk factors and relapse prevention strategies
·psychological intervention in relation to disruptive family dynamics
·referral to agencies to assist with employment
·referral to agencies that could assist with development of independent living skills and support in engagement in regular team sports to develop prosocial friends and activities.
15 Your counsel expressly disclaimed any reliance on the principles set out in the well-known decision of R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
The other material
16 I have read the reference from Campbell Stewart, who has known you since you were two years old and has been very much involved with your family through the playing of sport and, in particular, rugby. He highlights that your family is supportive, and that you have been raised with very firm direction and “good morals”. Mr Stewart believes that outside causes have impacted on your activity and hopefully these can be removed.
17 I have also read the Pre-sentence Report dated 27 October 2016 and the Progress Report dated 7 September 2017 – both of these documents refer to previous offending, and such reports have further information about your relationship with your family in the past, which was described as “turbulent”, causing you to reside, sometimes, with your extended family. However, Youth Justice noted, in those reports, that your extended family has taken a great interest in supporting you and encouraging prosocial decisions.
Mitigating circumstances relied on by your counsel
18 Your counsel submitted the following matters are relevant to mitigation of your sentence:
(a)that you entered into a plea of guilty at an “early opportunity” at the committal case-conference stage. Such a plea has, at the very least, utilitarian benefit, in that a criminal trial is avoided and the complainants do not have to relive what occurred on the night of the offending. Furthermore, it was submitted that your plea of guilty shows a willingness to facilitate the course of justice and is indicative of remorse (reference was made to Commonwealth DPP v Thomas and Wu [2016] VSCA 237). Your counsel noted that you have expressed some remorse to Ms Fleming during her assessment and have acknowledged that the victims would have been “scared and terrified” by your actions;
(b)you are only 20 years old now and was 19 years old at the time of offending. In such circumstances, you fall within the definition of a “young offender” pursuant to s.3(1) of the Sentencing Act 1991. In particular, it was submitted:
(i)the youth of an offender should be a primary consideration for a sentencing court where the matter properly arises (reference was made to R v Mills [1998] 4 VR 235; DPP v Tokava [2006] VSCA 156; R v Merrett, Piggott & Ferrari (2007) 14 VR 392);
(ii)courts have long recognised that young offenders, being immature:
“… may lack the degree of insight, judgement and self-control that is possessed by an adult … [and] may not fully appreciate the nature, seriousness and consequences of their criminal conduct.”
(Reference was made to Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43);
(iii)as a young person, you still have the potential to be redeemed and rehabilitated. It was submitted that you previously engaged well with Youth Justice when sentenced in the Children’s Court and have the ability to comply with supporting services. Reference was made to exhibit “D”, (consisting of the Pre-Sentence Report dated 28 October 2016 and a progress report dated 8 September 2017). Your counsel noted that it has been stated that “the rehabilitation of young offenders is one of the great objectives of the criminal law”. There is a real community interest in your rehabilitation, both in terms of community protection and to ensure that you can become a contributing member of the community (reference was made to Azzopardi v R; Baltatzis v R; Gabriel v R (op cit) at [35]);
(iv)incarceration in an adult prison will expose you to corrupting influences that may serve to entrench your antisocial and criminal behaviour. As at the date of the plea, you have served 150 days in adult remand, and such a disposition, so it was submitted, should be avoided if possible. Courts have recognised that “the likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community” (reference was again made to Mills (op cit) and Azzopardi (op cit)).
19 Your counsel conceded that general deterrence and community protection are usually the paramount sentencing considerations for offences committed by you. However, this should be, so it was submitted, tempered by considerations of youth and the need for rehabilitation.
20 Your counsel referred to the opinion of the psychologist, Ms Fleming, wherein she recommended various courses of action to assist with your rehabilitation – for example, treatment for alcohol abuse, psychological treatment (including anger management) and other social/employment services.
21 It was submitted by your counsel that a combination sentence of a term of imprisonment and a community correction order is a just and proportionate sentence and is capable of satisfying all relevant sentencing principles.
22 Your counsel also submitted that you are presently incarcerated in an adult prison at Ravenhall and finding it difficult. He submitted that your time in custody is sufficient given your age, on the basis that there be a combination sentence of imprisonment and a community correction order.
23 If the Court was considering a further period of imprisonment, it was submitted that consideration should be given to a Youth Justice Order. It is to be noted that during your period of incarceration, you have been engaged with a variety of cultural programs, the Men’s Shed program, baking and other programs, and in particular, have commenced attending Alcoholics Anonymous meetings. Your counsel also submitted that your family will welcome you back to the home after your release from prison.
Response of the Prosecution
24 Counsel for the prosecution accepted that your plea of guilty was an “early plea”. Furthermore, she submitted that a combination sentence of imprisonment and community correction order will be a preferable sentence as it allows “more control” in relation to the management of anger, alcohol and drug abuse.
Suitability for a community correction order
25 The Court directed that you be assessed as to your suitability for a community correction order and such assessment occurred on 28 June 2019. The assessing Community Corrections officer was Ms Jessica Johncock.
26 Ms Johncock noted that you have had prior engagement with the Victorian justice system and Corrections Victoria and she notes, among other things, that you have been provided with three good behaviour bonds and one probation period of six months previously and have not complied with any of these successfully.
27 Despite your prior non-compliance, you have been deemed suitable for a community correction order which addresses responsivity issues and your offending behaviour. Ms Johncock, applying the Level of Service Risk Assessment Tool, assessed you as a “high risk” of general re-offending.
28 It is noted that Ms Johncock, throughout the assessment, found you polite, open and forthcoming, and had insight into your behaviour, and the impact that such behaviour poses to victims. In particular, Ms Johncock stated:
“…Mr George articulated the fear they would have experienced and the ongoing trauma they are susceptible to as a result. Mr George did present with some difficulty when reflecting on his motivation regarding the offences and maintained that he was under the influence of alcohol at the time, he further reported methyl-amphetamine use of up to half a gram during the offending period but had not used just prior.”
29 Later, Ms Johncock records that, upon reflection, you “took full accountability and acknowledged the offences before the Court are unacceptable”.
Conclusion
30 During the evening of 10 October 2018, you had been drinking wine at your cousin’s house with a number of other people including your girlfriend, Maliko, and apparently became heavily intoxicated. You became upset about an incident which occurred at the pool hall some weeks earlier, where police were called. You made the decision to attend the pool hall and over the time from approximately 12.35am on 11 October 2018 until shortly after 1.00am, you went on a crime spree which involved:
(a)hitting the face of Idris with a closed fist three times (Charge 1 – common law assault) in circumstances where you were demanding to know where others were;
(b)you and some others ransacking the pool hall, kitchen and vape shop, including throwing chairs, pushing furniture over, breaking pool cues and throwing eggs and other foodstuffs because of your anger (Charge 2 – criminal damage);
(c)within the pool hall you and the other men stole $6,000 from a savings tin belonging to Idris, two electric cigarettes (value $50), and a bottle of vape fluid (valued at $20) (Charge 3 – theft);
(d)a short time later, you accosted Agous outside the pool hall in circumstances where Agous was doing no more than collecting his car and had nothing to do with the pool hall. You made demands for money, to which Agous said he had no money, and then you demanded he hand over his phone, which he did. While another male held Agous from behind, you started to hit him with pool cue that you were holding, striking him on the right of his head, left arm and left rib, causing him to pass out for a short period. When he came to, you again hit him to the head with the pool cue (Charge 5 – intentionally causing injury);
(e)after Agous got to his feet, you again grabbed him and patted his pockets, found his iPhone 6 and took the phone out of his pocket (Charge 4 – armed robbery). You again tried to hit Agous, who did no more than try to block with his arms. When he turned to run away, you hit him on the back of the neck with the pool cue. As he ran away, you threw a number of bottles at him, one of which hit his leg and another smashed on the ground causing him to cut his feet by stepping over the broken glass (again part of Charge 5 – intentionally causing injury);
(f)when Agous ran to the Springvale Police Station to report the assault, he was found to have a cut to the back of his head and bruising to the back of his neck, ribs and left arm, together with cuts to his left arm and the bottom of his feet (again part of Charge 5 – intentionally causing injury).
31 In particular, the offending involving the armed robbery and intentionally causing injury are serious offences, as is made clear by their respective penalties of a maximum of 25 years’ imprisonment and a maximum of 10 years’ imprisonment.
32 All your prior offending has been dealt with in the Children’s Court with no convictions recorded. However, I do note that you were found to have committed an aggravated burglary and theft in December 2016, again found to have committed an aggravated burglary, theft of a motor vehicle and intentionally causing damage in May 2017, and in September 2017, you were found to have made a threat to kill.
33 Although I do accept that you had drunk alcohol to excess prior to the subject offending, such gives context for the offending, but it is not an excuse. Furthermore, although I accept that you considered that you had a grievance with someone at the pool hall because of a prior incident, which gives some partial explanation for you attending that night, again it is no excuse for your criminal behaviour. Agous was no more than an innocent bystander who happened to catch your attention that night, resulting in him being struck with a wooden pool cue and beaten, and having his Apple iPhone stolen.
34 In mitigation, I do accept that you did plead guilty at an early opportunity. Such a plea has utilitarian benefit in that it is not necessary to proceed with a trial, and indeed, as submitted by your counsel, the complainants did not have to relive what occurred on the night of your offending.
35 It is always a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (see Phillips v R (op cit) at paragraph [86]). I accept that your plea of guilty and, indeed, the comments that you expressed to the psychologist, Ms Fleming, during her assessment and, indeed, the comments you made to the Corrections Officer, Ms Johncock, are all indicative of a degree of remorse on your part.
36 However, I consider the most potent mitigating factor is that you were 19 years old at the time of offending and are now only 20 years old. Section 3(1) of the Sentencing Act 1991 defines a “young offender” to be “an offender who at the time of being sentenced is under the age of 21 years”.
37 I refer to Azzopardi (op cit) and, in particular, paragraphs [34]-[36], wherein Redlich JA stated:
“There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK & GAS:
‘In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.’
Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. As stated in R v Lam & Ors,
‘A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of the offender.’
Thirdly, courts sentencing young offenders are cognizant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.”
(Footnotes omitted.)
38 I also refer to paragraph [44] of the same judgment, wherein Redlich JA stated:
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating factors of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”
(Footnotes omitted.)
39 I consider that the relevant sentencing considerations are general deterrence – that is, a sentence which deters others from committing the type of crimes that you committed; specific deterrence – that is, deterring you from committing any further criminal offences; denunciation – that is, a sentence which represents the community’s denunciation of the offending committed by you; just punishment – that is, appropriate punishment for the crimes committed, and the protection of the community. However, considering your youth and bearing in mind the observation of the psychologist that you presented as a “young immature male” and, indeed, the impulsive nature of your offending, I consider that such sentencing considerations must be significantly moderated to promote, hopefully, rehabilitation. However, consistent with the comments of Redlich JA, I do consider your sentence must, to some degree, reflect the aforementioned sentencing considerations.
40 To this end, I propose to convict you of each of the offences and sentence you to a period of imprisonment, followed by a community correction order, with special conditions to assist with your rehabilitation.
41 Please be upstanding:
(a)in relation to Charge 4, you are convicted and sentenced to a period of imprisonment of six months; This is the base sentence.
(b)in relation to Charge 1, you are convicted and sentenced to a period of imprisonment of three months;
(c)in relation to Charge 2, you are convicted and sentenced to a period of imprisonment of two months;
(d)in relation to Charge 3, you are convicted and sentenced to a period of imprisonment of two months;
(e) in relation to Charge 5, you are convicted and sentenced to a period of imprisonment of four months;
(f)the Court directs that the two months of the sentence imposed in relation to Charge 1, one month of the sentence imposed in relation to Charge 2, one month in relation to the sentence imposed in relation to Charge 3 and two months of the sentence imposed on Charge 5 be served cumulatively upon each other, and the sentence in relation to Charge 4. The total effective sentence is 12 months’ imprisonment;
(g)further, I declare that the prisoner has been in custody in respect of these offences for 197 days and such a number of days be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively;
(h)further, in relation to Charges 4 and 5 on the Indictment, you are sentenced to a community correction order for a period of two years. You must, within two days on your release from prison, attend the Dandenong Community Correctional Services. In addition to the mandatory terms, there will be the following conditions:
(i)pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary for the duration of the Order;
(ii)pursuant to s.48D(3)(a) of the Sentencing Act 1991, any assessment and treatment (including testing) for drug use or dependency;
(iii)pursuant to s.48D(3)(b) of the Sentencing Act 1991, any assessment and treatment (including testing) for alcohol abuse or dependency;
(iv)pursuant to s.48D(3)(e) of the Sentencing Act 1991, undergo any mental health assessment and treatment that may include psychological, neuropsychological or psychiatric, or treatment in a hospital or residential facility;
(v)pursuant to s.48D(3)(f) of the Sentencing Act 1991, undergo any program that addresses factors related to your offending behaviour;
(vi)pursuant to s.48K of the Sentencing Act 1991, you are to undergo judicial monitoring, with the first date for monitoring to be 9.30 am on the 10 February 2020.
(i)the Court also grants the Orders sought to be made in favour of Idris to the value of $6,000 for the cash stolen, and an order in favour of Yaacob to the value of $1,000 for the damage to the shop and stolen vape items;
(j)pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty, I would have sentenced you to two years’ imprisonment.
42 Anything arising out of that?
43 COUNSEL: No, Your Honour.
44 HIS HONOUR: Mr George you probably have not taken that all in yet, it will be explained to you no doubt. Essentially what it means is because you are only 20 now and were only 19 at the time of your offending, you are going to prison for quite a bit less time than what you normally would if you were 30. The reason why that was done is the law requires that people, young people like you, should be given the chance to rehabilitate themselves. And the idea being, that once your prison sentence finishes - you will have about another 6 months or so to serve- then you will have to undergo a community corrections order. And that is just like any other sentence - you are not going to gaol but you will have to do everything they tell you. You will have to go there for supervision, you will have to undergo all the courses they tell you, you will to be checked for alcohol abuse and drug abuse. You will have to do all those things, and if you don’t do them, you breach that order as you breached one years ago, and you will be brought back to me. Not another Judge, you will be brought back to me. And my patience will go very thin then because I have got the power then to resentence you.
45 You have been given a chance now to try and sort yourself out, and if you don’t and you go off the rails again you will be brought back to me and you will be sentenced and it is highly likely that it will be a lengthy period in imprisonment. So, you will have to think about that very much. This is to your advantage to a large degree to abide by the conditions of the order. You don’t adhere to them you will be back before me. You still have to finish your prison sentence and hopefully you staying away from drugs, hopefully you staying away from any alcohol, so that is a big start to start with. But when you come out and go to the community corrections order you will go through a lot of testing, a lot of programs to help you with your alcohol and your drugs. What seems to be the case many times you get very angry, you’ve got problems with anger management that seems to flow from when you have had lots of alcohol and maybe drugs so you really have to overcome that. You are a young man, you don’t overcome it, it will get worse and worse as time goes on. And each time it will be four or five years of prison. And each time after that it might be eight or nine, and before you know it, you are 50 and you have really had no time of life at all. So, it is a big decision for you. It’s a very big decision for you. You are lucky I think that when you do come out of prison as I understand it your family will be supportive and I hope that is the case. But you really have to make some very big decisions and I hope you are starting to make them now, but it is really a matter for you.
46 I will allow someone – Ms George, are you his mother? Yes, I will allow you to approach your son just briefly.
47 Yes, I allow you to approach the as this is just the documents for the CCO.
48 Anything else to raise from there?
49 COUNSEL: No, Your Honour.
50 HIS HONOUR: Very well, take the prisoner. Very well, we will adjourn sine die.
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