Director of Public Prosecutions v Ghazzara
[2019] VCC 955
•26 June 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02281
Indictment No. J12127034
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FADIE GHAZZARA |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2019, 31 May 2019 and 26 June 2019 | |
DATE OF SENTENCE: | 26 June 2019 | |
CASE MAY BE CITED AS: | DPP v Ghazzara | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 955 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: 18-year-old offender – one charge of aggravated burglary and one charge of robbery
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence: Total effective sentence – aggregate of 18 months’ detention in a Youth Justice Centre – s6AAA 3 years’ detention in a Youth Justice Centre
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Upton Mr H Boyd-Wilson | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms J Clark | Victoria Legal Aid |
HER HONOUR:
1 Fadie Ghazzara, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment and one charge of robbery, which carries a maximum penalty of 15 years’ imprisonment.
2 The circumstances of your offending are detailed in the Summary of Prosecution Opening (Exhibit “A”). At 1.45am on 14 August 2018, your 17 year old victim, who was living at a residential care facility, was at home on the couch watching a movie. He could hear doors opening and closing, and when he got up to see what was happening, he saw you standing in the hallway. You told him “I’m gonna fucking smash your head in.” Your victim was shocked and ran to the kitchen, where he grabbed a dish drainer, but you snatched it from him and threw it away. You then picked up the toaster and threatened to hit your victim with it, while holding it up in the air. You put the toaster down, but then slapped your victim in the face and told him “go get [his] ciggies from [his] room.” Your victim complied with your request and walked to his bedroom. A residential care support worker asked you to leave, and you told her to “fuck off”. She stated that you used your elbow to nudge her out of the way, although you claim that this did not happen. Given that you were intoxicated, I have no reason to doubt the statement which the worker made to police and I am satisfied of this matter beyond reasonable doubt, even though it is a matter of context rather than a fact relied upon by the prosecution in support of the offending itself.
3 Your victim shut himself in the bedroom, but you tried to force your way in by kicking the door. You continued to try and force your way in while your victim kept slamming the door shut to keep you out. At some point you got your fingers stuck in the door as your victim was trying to close it. You were screaming “If I get arrested I’m gonna come back and smash your fucking head in.” Your victim then slid his cigarettes and lighter under the door. Once he did so, you yelled at him again “open up the fucking door, I gotta make you bleed cause you made me bleed.” You kicked the door a few more times before walking to the front door and leaving the premises.
4 The residential care support worker called police and your victim only came out of the room once he was re-assured that police were present.
5 You were subsequently arrested. You admitted that you had been at the residential care unit and claimed that you had been to see the victim as “he was talking shit about me.” You indicated that your fingers were bleeding as they had been slammed in the door when you were trying to get into the victim’s room. A cigarette lighter and a cigarette that appeared to have blood on it were located on you.
6 When interviewed, you stated that the only reason you had been to the residential care unit was to see the victim and your intention was “to get him”. You acknowledged that you were not supposed to be at the residential care unit. You thought that the victim would be there, but did not know 100 per cent whether this would be so. You stated you wanted to hurt him bad enough to teach him a lesson.
7 You are presently aged 19 years, having been born on 22 March 2000. You come before the Court with no prior convictions.
8 In a plea on your behalf by Ms Clark, the Court was told that you grew up in Heidelberg West with your mother and father, and your older brother, who is a law-abiding, hard-working person aged 24 years. Your father has apparently suffered mental-health issues and for some years had been living away from the family home, but recommenced residing at there in or about December 2017. The nature of your father’s mental-health issue is unclear, but it has been suggested that he has a form of Autism and requires a great deal of care. Indeed, your mother receives a carer’s pension in order to attend to his needs.
9 You attended St Pius Catholic Primary School for the first four or five years of school and then went to Concord Special School until Year 10. There is material that suggests you have a mild intellectual disability and apparently you currently receive disability payments from Centrelink.
10 In a recent pre-sentence report authored by Ms Codie Noonan, and endorsed by Kristy Birch of the Department of Justice and Community Safety, dated 13 June 2019 (Exhibit “F”), you are said to have reported that you did not like school, absconded regularly from class and engaged in disruptive and disrespectful behaviours. The student and well-being coordinator from Concord Special School confirmed that you had been enrolled at the school in 2010 and disengaged in Year 10 during 2016. The coordinator reported that you behaved in an aggressive manner towards other students, failed to attend class and, on occasion, attended school affected by drugs. The school was aware that, at the time, your father was in a care facility and the coordinator reported that your mother appeared to be “really struggling” with your own behaviour. However, the school’s attempts to try and link the family with services and to get them engaged were unsuccessful. The coordinator said that she had a good rapport with you and was able to assist you to “calm down”, and she assessed you as particularly vulnerable to negative influences and easily led by peers. Her attempts to transition you to another education facility after you disengaged from Concord were unsuccessful.
11 It seems that you have no significant employment history. After you were charged with these offences you participated in a supervised bail program, during which Ms Codie Noonan was your supervisor. In her most recent report, she stated that the Department of Justice and Community Safety arranged for you to commence a pre-apprenticeship in bricklaying at Melbourne Polytechnic in 2018. However, after initially attending, you had disengaged by February 2018. You claim to be interested in work in the hospitality field, but have not engaged in a day program and have been inconsistent in engaging with employment support offered to you. You claim you lack confidence and have a poor sleeping pattern and health issues, which impact upon your motivation. Frankly, it is clear to me that you have been a law unto yourself for a long time, abusing drugs and alcohol and failing to engage with what support is offered to you. Even when your older brother has made attempts to send undesirable associates from the family home, you have argued with him. You present as a forthright young person, who thinks he knows best and, indeed, up until recently, you did not fully inform your family of the seriousness of your circumstances. A pre-sentence report authored by Dr Rachael Watson, clinical and forensic psychologist, dated 28 May 2019 (Exhibit “B”), had been requested by me. The author noted that you were unwilling to provide consent for her to talk to a family member, as your family were not aware of your current legal circumstances and you wanted to maintain privacy.
12 Dr Watson noted that you had struggled academically at school, had learning difficulties and were often suspended for getting into fights, being disruptive in class and not following the rules, and would just walk out of the classroom if you felt like it, and respond poorly to authority. After leaving school at 14 or 15 years of age, your only real attempt at work was the previously mentioned pre-apprenticeship bricklaying course at TAFE, but you reported to her that you would consume alcohol and cannabis in your lunch break and would be unmotivated when you returned. She took a relationship history and noted that your substance abuse and antisocial behaviour had contributed to problems and, at times, you had been in a relationship with someone who had a similar lifestyle to yourself. You appeared to be somewhat boastful that you “had a reputation for engaging in casual relationships”. You stated that you had used cannabis and alcohol from age 13 or 14 years, having used both of these substances almost daily in order to “escape”. You would drink two slabs of alcohol or two bottles of spirits in one sitting, and use cannabis and consume alcohol in the morning and throughout the day. You claimed that you had reduced your alcohol use to approximately one slab per week, and claimed that you had ceased smoking cannabis after you had been remanded in custody for a few days. However, your claim is contradicted by information subsequently obtained from the rooms of Mr Michael Bilyk, a psychologist to whom you were referred as part of your supervised bail program.
13 In a supplementary report from Mr Robert Leardi, psychologist from Mr Michael Bilyk’s rooms, dated 26 March 2019 (Exhibit “4”), he obtained a history that you had been using cannabis since you were you 13 years old, but had abstained from cannabis use for one month prior to your first session with Mr Bilyk. Prior to that, you had been smoking up to 3 grams of cannabis per day. When you first saw Mr Bilyk, you would consume alcohol until intoxication (that is, binge drinking) on most weekends. He reported that since being in treatment, Mr Bilyk had noted that you had engaged in binge use of cannabis, and alcohol to intoxication, but at reduced levels compared to your pre-treatment substance abuse. I here note that your consultations with Mr Bilyk were from 5 October 2018 until 4 March 2019.
14 I ordered the forensic psychological assessment of you because there were a number of other reports, some of an historical nature, and more recent ones, which left a number of matters unclarified. It is clear from Exhibit 6, a report by William McKerracher, dated 18 August 2005, which had been conducted when you were 5 years and 4 months, that there had been concern about your academic performance. At that stage, you were assessed as having verbal, performance and full-scale IQ in the borderline range, but not assessed as having an intellectual impairment.
15 When you were aged 10 years and 1 month, you were assessed by another psychologist, Lana Strogonow, who provided a report dated 28 April 2010 (Exhibit “5”). At that stage, you were assessed as falling within the mild disability range, with a full-scale IQ of 70. This qualified you for support through the program for students with disabilities on the basis of intellectual impairment. It was noted that, although you had participated in a reading recovery program, had modification to work tasks, an individual learning plan and the provision of an integration aide to support you, the gap between yourself and other students was reported to be widening. There had also been concerns expressed about you exhibiting angry behaviour, being disruptive in the classroom, refusing to do work and leaving the classroom without permission. However, it was also noted that your best results, on testing, were recorded on comprehension subtests that dealt with practical everyday situations. The author considered that your score on these tests indicated that you may be able to recall information where this was guided through practical involvement, which was in the realm of personal experience. It would seem that prior to this report, on 17 June 2008, you had been determined by someone to be within “the target group” by virtue of intellectual disability as defined in the Disability Act 2006 (Exhibit “7”). Notwithstanding this, you seem to have fallen through the cracks educationally, even at the special school that you attended, and there appears to have been a dearth of support granted to you by Disability Services, even though, for some reason, you qualify for a disability pension. The net result of this has been that, after deciding to leave school at the age of 14 or 15, you have been without any further educational or vocational assistance and seem to have led a fairly feckless existence, abusing substances, engaging in antisocial behaviour with peers and generally not being subject to any guidance or authority.
16 After you were arrested by police, you were remanded in custody for three days before being granted bail under the supervision of Youth Justice, which commenced on 16 August 2018. In a progress report, dated 29 May 2019, authored by Ms Noonan (Exhibit “C”), it was noted that you had engaged positively with Youth Justice, by attending 26 out or 32 appointments with your supervisor. You acknowledged that you experience difficulty controlling your anger and Youth Justice made the previously-mentioned referral to psychologist, Mr Michael Bilyk, on 5 October 2018. However, you participated in only eight of fourteen appointments and, in particular, failed to attend appointments in November and December 2018, and February and April 2019, and twice in May 2019. Contrary to what has been previously quoted from the reports from Mr Bilyk’s treatment, you told Youth Justice that you had ceased use of cannabis and alcohol after being granted bail, and claimed that you were never addicted to anything, but just liked it. You were referred to a forensic drug and alcohol program run by Uniting Care ReGen, which you were required to attend four days per week over a three-week period. You attended only four of the seventeen days, albeit, that it was noted that when you did attend, sometimes you were the only person of a group program to attend. However, you maintained that you did not need support in relation to substance abuse (I here note that you did provide one urine sample on 1 April 2019, which upon analysis was negative for the six drugs tested: Exhibit “E”). It was also reported that your engagement with the Youth Project’s Employment Support Program was sporadic and you seemed to lack motivation. You did concede to the author that you continued to associate “with some” peers who have criminal justice involvement.
17 In the initial report by Mr Robert Leardi, psychologist, from Michael Bilyk’s practice, dated 13 March 2019 (Exhibit “3”), there is a history that you stated that your older brother, who is employed full time in a shop selling prescription glasses, tried to fill the void left by your father’s absence and disability, however you often did not listen to him and tried to avoid being at home as much as possible. You reported that you would only stay at home one or two nights per week during childhood and spent most of your time “getting into trouble” with friends. Your older brother would try to stop you and this sometimes led to the two of you fighting. You also gave a history of great difficulty sleeping. While you claimed to ruminate over past trauma or random thoughts, you also acknowledged that staying up late at night partying, and not sleeping in the family home, had affected your sleep cycle. You also reported a long history of feeling anger and frustration, and trouble regulating your anger, which escalates quickly. Further, you noted significant alcohol and cannabis abuse from the age of 13 or 14 years.
18 You gave this psychologist a history that your victim had angered you in the days leading up to your offending behaviour because he had been circulating rumours about you and your intimate relationships, and you also stated that you were intoxicated from alcohol use at the time of offending and that this usually exacerbates your anger. The psychologist noted in his report that you demonstrated some victim-blaming and lack of insight. You expressed remorse for having committed the offence in the unit and stated that you should have done it after the victim had left the unit instead. You stated that you believed the victim had bought the incident upon himself, and the psychologist concluded that you lacked victim empathy and awareness of the consequences of your actions.
19 The psychologist assessed you as functioning in the low-average range and suffering mild cognitive impairment. He particularly noted verbal fluency and verbal abstraction difficulties, but I here note that you told the Court that your parents did not speak English at home and, obviously, your father suffers some form of cognitive impairment. Mr Leardi assessed you as having a biological vulnerability to experiencing mental-health and substance-use problems because of your family history, and also what appeared to be heightened stress during your upbringing, which can result in development of overactive emotional responses to situations. He also considered that you had not come to terms with the death of a grandmother and cousin. He considered that you required ongoing psychological therapy to address factors relating to your offending, such as your alcohol use, trauma and antisocial personality traits. He noted that you were using cannabis and alcohol daily, although you denied this. He considered that your cognitive and intellectual functioning was lower than that of an 18 year old, and your history suggested that you were easily led by antisocial peer influences and imprisonment would be likely to have a negative effect on your mental health. Although he stated that you were motivated to find a full-time job, I here note that you did not engage with youth projects concerning employment on supervised bail.
20 I have previously referred to my concerns about your current psychological and cognitive status, and that those concerns prompted me to refer you for a psychological assessment by Forensicare. The report of Dr Rachael Watson (Exhibit “B”), appears to me to be a very careful and thorough report. It raises some very worrying factors. They are as follows:
·At the time of the offending you acknowledged that you were feeling angry because you understood that your victim had said things to your girlfriend which were untrue and which led to the end of that relationship. You dwelt on this for a couple of hours before going to the victim’s house and acknowledged that, typically, you have thoughts of revenge and would become fixated on them. You also acknowledged that you had been smoking cannabis at the time and had consumed two 750 millilitres bottles of Bourbon. You reported that your intention was to teach your victim a lesson and you wanted to scare him, and you did not regret most of your actions. In these circumstances, coupled with the earlier references to your “victim-blaming”, I find that you have no remorse.
·On a self-report questionnaire, your depression scale fell within the severe range and your anxiety scale fell within the moderate range, and your stress scale also fell within the moderate range. Dr Watson considered that your low mood and poor coping mechanisms contributed to your offending, however, it is complicated by the fact that you were intoxicated.
·Dr Watson stated that your score on the Alcohol Use Disorders Identification Test showed that you consumed alcohol at a level that was a high risk for harm and may be indicative of alcohol dependence. She noted that you reported difficulty in ceasing drinking once you started, failed to do what was expected of you because of your drinking, needed to have a drink first thing in the morning to get yourself going, felt guilt or remorse because of your drinking and were unable to remember events from when you were intoxicated. You also reported that either yourself or someone else had been injured because of your drinking, albeit not in the past year.
·Dr Watson administered the Drug Use Disorders Identification Test, on which you attained a score of 21, which was above the cut off associated with drug-related problems, that is, the score did not meet the cut off for high probability of drug dependence. She noted that you said that you had reduced your drug use in the past 9 to 12 months, but prior to this reduction had been using substances two to three times a week (largely cannabis). When you were using, you would use five to six times per day and would also feel the need to use cannabis first thing in the morning. You acknowledged that others were worried about your drug use, albeit not in the past year, and that your drug use had either hurt yourself (physically or mentally), or someone else.
·Dr Watson administered the Anger Disorder Scale and found that your overall score was in a clinically-elevated range, greater than 97 per cent of males aged 18 to 29 years. She noted that you are likely to hold your anger in for long periods and then express your anger outwardly in a number of different ways. She considered your score indicated significant anger problems in many areas, with multiple triggers, and that you were likely to experience high degrees of physical arousal during periods of anger. She noted that people with a score like yours often ruminate about perceived unfair treatment from others, which would likely impact on close personal relationships and work effectiveness. She went on to state that holding your anger in was likely to be punctuated by verbal or aggressive expressions of anger and although it is likely that you have some days where you can function and not ruminate about injustices and can develop close personal relationships, some will be strained by the continual degree of anger you experience. She also considered that your vengeance scale was clinically elevated to a moderate level (greater than 90 per cent of males aged 18 to 29 years). In addition, you had significantly elevated scores in relation to scope of anger provocations, physiological arousal, impulsivity and physical aggression (ranging from greater than 95 per cent to greater than 98 per cent of males aged 18 to 29 years). Dr Watson stated this suggests that you likely experience a number of clinically-significant issues relating to anger which seem to occur at a level which would impact on your daily functioning. Further, a wide range of situations or events trigger your anger, and people who score within this range also lose control when experiencing anger and respond with physical aggression to others. She noted elevated scores in terms of duration of anger, verbal expression and passive aggression. She opined that you appear to have had a problem with anger of long duration, and although you can respond to others with insults, threats and loud arguments when angry, this would be less common than physical aggression, and you are also likely to engage in passive-aggressive behaviour, such as failure to complete tasks for others due to a concern about directly confronting an issue.
·Dr Watson assessed you as having definite clinical evidence of instability, both affective instability, as you are quick to anger, and partial evidence for behavioural instability. She stated you had partial evidence for problems with insight, and symptoms of Major Mental Disorder given your high scores on the depression and anxiety stress scales.
·Dr Watson noted that there was a lack of an explicit plan developed for professional services to address your issues. Also, you have problems with personal support. She noted that, although your family were supportive, they were not aware of your legal difficulties and you had no plan for utilising those supports to reduce your risk. I here note that, subsequently, your family have become aware of the seriousness of your legal situation and your older brother was in Court to support you for the last couple of hearings. However, your mother is fully preoccupied with the task of caring for your father’s needs. Further, you had problems with stress and coping, which Dr Watson thought was due to your use of alcohol for coping, and you had limited strategies to manage your anger, which was more easily triggered when you were experiencing lowered mood and stress.
·Dr Watson assessed you as being a moderate risk for future violence, with a moderate risk for harm. Given your level of anger and how easily you are triggered to anger, she assessed you as likely being at a higher risk for general aggressive and intimidating behaviours, including verbal aggression and threats, which may not always lead to physical violence. She considered that you present a moderate risk of imminent violence due to your ongoing anger issues, which seem to be easily triggered.
·Dr Watson noted your history of learning difficulties at school and relative lack of vocational history. She stated “It is unknown how much of this is due to difficulties with learning, low self-efficacy, poor ability to concentrate, or due to [your] substance use and engagement in an antisocial lifestyle.”
·Your history of using alcohol to cope when you are unhappy or angry further disinhibits you and increases the likelihood of you acting impulsively and aggressively and Dr Watson noted that you have associated yourself with peers who have engaged in similar antisocial behaviours. She stated that your behaviour is “likely underpinned by antisocial and anti-authority attitudes that support rule violation and support the use of aggression and violence in some circumstances.”
·Dr Watson stated that you had said that you did not want to seriously hurt anyone, but that you appear to believe that you have more control over that outcome than you likely do have. She noted your low mood and poor coping skills, and stated, “As emotional dysregulation and sadness/depressive symptoms appear to be underpinning some of [your] emotional experiences, addressing [your] anger in isolation would likely not address [your] underlying mental health needs.” She considered that you needed to access mental health intervention to address your longstanding depressive symptoms and emotional dysregulation, and to address triggers to anger and strategies to manage your anger. Also, given your history of substance use, you should undergo drug and alcohol counselling, as well as being referred for violence intervention with a Corrections Victoria behaviour offending program.
21 Mr Ghazzara, your offending against the young vulnerable victim, who was minding his own business in a residential care facility, is serious. You arrived there in the middle of the night, 1:45am, in an aggressive, intoxicated state, which makes your behaviour even more frightening because it would have been impossible to reason with you. Every person should have the right to feel safe in their own home, and that was your victim’s home. Aggravated burglary, that is entering premises when you are aware or ought to have been aware that someone was present, is an offence which has been of increasing concern to our community and Parliament has assigned a maximum penalty of 25 years’ imprisonment for it. This shows how serious an offence it is. Once you entered the facility, you used kitchen items in an intimidating fashion and shouted demands at your victim, causing him to retreat to his bedroom. You then committed robbery by repeatedly kicking and yelling and bashing at the door when it was plain that he was trying to keep you locked out, until ultimately he gave in, and slid his cigarette lighter and cigarettes through the door.
22 Your behaviour in going to your victim’s home was premeditated and brazen. You have shown no remorse and indicated that you went there to teach him a lesson. Although not charged with any offence in relation to the residential care worker who told you to leave, you showed aggression, rudeness and arrogance towards her, and then proceeded to try to force your way into your victim’s room. In sentencing for this serious invasion of someone’s privacy, coupled with the violent demand for his cigarettes, this Court must denounce your conduct and send a message to other people in the community that, if they are minded to engage in this activity, then they will be appropriately punished. There is also a need for some specific deterrence of yourself, although I do note that you have not engaged in further offending since you were released on bail on 16 August 2018, and you are to be given credit for partial compliance with the supervised bail conditions and reporting to police as required.
23 Your counsel, Ms Clark, noted that there was no criminal history alleged against you. She urged that you should be given the benefit of a Community Correction Order for this offending, particularly given your young age (19 years) and that previously you have not been subject to any prior supervisory sentences. She also submitted that the principles of R v Verdins[1] should apply to moderate the emphasis upon deterrence, because you have an intellectual disability and suffer other mental health problems by way of depression.
[1](2007) 16 VR 269
24 I do not regard the stringent test of connection with any mental impairment or disability and the offending to be made out in this case. It is very clear that you were highly intoxicated and this increased your irrationality, aggression and made your behaviour very frightening because there was simply no prospect of reasoning with you. However, I do acknowledge that you have had a background of some disadvantage, without the benefit of a father to guide you because he has had very significant problems of his own. I accept that you have suffered some depression, which is enduring, and there is evidence of some mild intellectual disability. However, I consider that the picture of your cognitive functioning is very considerably complicated by personality traits such as anger and impulsivity and, also, your long-term substance abuse, coupled with a dearth of education. Thus, while I do not consider that the principles of Verdins are enlivened in this case, I do most certainly take into account your mental-health history and evidence of learning difficulties.
25 Based upon a careful reading of all the material, I will be surprised if you cannot achieve beyond your current level of functioning if you comply with a serious regime of guidance, where you are given assistance with your studies, your anger and depression and substance abuse issues. It is obvious to me that you really lack insight into the gravity of your problems. This was particularly evident when you announced in Court to me that you now had a role model by way of a friend who had formerly been in trouble with the criminal justice system but was now in a relationship and had a baby. When I enquired as to the age of this friend, you said “the same as me 19 years old”. There is no way that your problems can be addressed by a mentor of this description. You need serious professional help in many areas. As I have said earlier in these sentencing remarks, you have been a law unto yourself since your early-teenage years, roaming around at night, drinking and taking drugs, and thumbing your nose at authority. You are someone who does not do what you do not want to do, and this has been evident during the supervised bail program. While you established a reasonable rapport with your supervisor, your attendance at services designed to help you was far from optimal. In my view, the seriousness of the offending, coupled with the risk of your re-offending, as detailed by Dr Watson, causes me to conclude that the only appropriate sentence is a period of detention in a Youth Justice Centre.
26 In arriving at the sentence which I intend to impose, I have taken into account your pleas of guilty. They were entered at an early stage and facilitated the course of justice. The State has been spared the time and expense of a trial and your victim has been spared the trauma of having to relive the frightening experience of your offending by not being required to give evidence. Although, as I have stated, I do not consider your pleas to be remorseful, you are still entitled to a meaningful discount on the sentence which otherwise would have been imposed.
27 I am very aware of your young age and that this is the first time that you have been before a court. Considerations of rehabilitation are generally at the forefront of sentencing for a young person like yourself. Although there must be some punitive element in the sentence which I impose in order to give effect to general and specific deterrence, I have moderated those to some extent because of your disadvantaged background, mild cognitive disability and underlying mental health issues. You have such a complex constellation of problems which have been either undiagnosed or not treated for so long, coupled with a dearth of formal education, that I seriously doubt that they could be meaningfully addressed by Community Correction Order, even if I considered that to be an appropriate disposition.
28 Ms Noonan, who supervised your bail and also provided the pre-sentence report, Exhibit “F”, gave evidence at the plea hearing on 31 May 2019 that there are programs available to you in the Youth Justice Centre which would not be available on a Community Correction Order. They are violence intervention programs for adolescents and forensic mental health programs and drug and alcohol programs that are specifically designed for the young offenders program offered in youth detention. Of particular importance, also, is an educational focus, where offenders go to school each day. Although some aspects of these programs may be available as part of a Community Correction Order, Ms Noonan stated that they are not all specific youth offender programs offered by Community Corrections. Ms Noonan reports that you have demonstrated a willingness to engage with Youth Justice in conjunction with programs and supports available to you at the Malmsbury Youth Justice Centre to address your risks and needs. This is to your credit.
29 Ms Noonan assessed you as eligible for a Youth Justice Centre order by reason of your reasonable prospects of rehabilitation and, also, the fact of your being particularly impressionable, immature and likely to be subjected to undesirable influences in an adult prison. She concluded her report by stating, “It is Youth Justice's assessment that a Youth Justice Centre custodial environment is most conducive to Mr Ghazzara's present circumstances. Furthermore, it would provide him with an opportunity for a Youth Parole Order and support post his release should he be eligible.” Having considered the nature and character of the offences and your age, character and past history, I conclude that a Youth Justice Centre order is justified upon the same bases articulated by Ms Noonan.
30 In all of the circumstances I consider that your rehabilitative prospects are best served by making a Youth Justice Centre order. It is my view that, unless you are firmly guided towards a positive lifestyle, with educational, vocational and mental health supports, together with drug and alcohol programs, at this critical stage of your life, then your chance of rehabilitation may be lost and you may end up being a menace to society and having a wasted life. It is up to you, Mr Ghazzara, to seize this opportunity and make something of yourself. If you do so, there is an excellent chance that you will be granted parole to help ease your way back into the community and link you with appropriate supports and job opportunities. However, whether you are granted parole is up to the Youth Parole Board and its decision will depend upon how well you engage with the programs and support offered to you.
31 On Charge 1 of aggravated burglary and Charge 2 of robbery, you are convicted and sentenced to an aggregate sentence of detention in a Youth Justice Centre for a period of 18 months.
32 I declare a period of 3 days’ pre‑sentence detention to be time reckoned as already served under the sentence imposed this day.
33 Pursuant to s6AAA of the Sentencing Act I state that, had it not been for your pleas of guilty, the sentence imposed would have been one of 3 years detention in a Youth Justice Centre.
34 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard has been obtained for placement on the database. I consider this order is justified by reason of the seriousness of your offending. Mr Ghazzara, this involves simply using a cotton bud to take a sample of saliva from inside your mouth. You need to be aware that, if you do not consent to the taking of this procedure, then police can use reasonable force to enable it to be conducted.
35 Mr Ghazzara, I know that you do not want to go to a Youth Justice Centre but I really feel that I must seize the opportunity to try to get your life back on track before it is too late. I have seen many miserable and wasted lives, where effective intervention came too late for problems like yours, and I think that you do not have the insight to realise how much help you need. I know that you are interested in the hospitality industry. That is something that Youth Justice can help you achieve, provided you engage with education and other programs. The sentence I have imposed is designed to help you to turn your life around. The Court sincerely wishes you well with your rehabilitation.
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