Director of Public Prosecutions v Ghebre-Michael

[2016] VCC 100

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01864

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON GHEBRE-MICHAEL

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2016
DATE OF SENTENCE:	10 February 2016
CASE MAY BE CITED AS:	DPP v Ghebre-Michael
MEDIUM NEUTRAL CITATION:	[2016] VCC 100

REASONS FOR SENTENCE
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Subject:         Armed Robbery, Obtaining Financial Advantage by Deception.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:      Three years' community corrections order.

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APPEARANCES:	Counsel	Solicitors
The Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
The Offender	Mr G. Chisholm

HIS HONOUR:

1Simon Ghebre-Michael, you have pleaded guilty to an indictment containing five criminal offences.  There is one charge of obtaining a financial advantage by deception for which the maximum penalty is 10 years' imprisonment and, one charge of attempting to obtain a financial advantage by deception, for which the maximum penalty is five years' imprisonment and, two charges of armed robbery, for which the maximum penalty for each offence is 25 years' imprisonment, and one charge of common assault for which the maximum penalty is five years' imprisonment.

2In passing sentence upon you for your offending, I must have regard to the maximum penalty for each offence and I have done so.

3The circumstances of your offending are set out in writing in an agreed summary dated 4 February 2016.  The summary was read out in open court by the prosecutor.  Your counsel, Mr Chisholm, agreed that the summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.  It is not necessary that I here again set out in detail, what is set out in the summary, except in a very summary way.

4All of your offending has occurred in circumstances where you were drug affected.  On 23 July 2015, you used another person’s credit card to obtain food and drink from a Coles supermarket. The items you obtained were of low value and this was low level offending of this kind, but typical of the kind of offending that drug addicts often engage in.  Soon after you used the credit card at a Coles supermarket, you attempted to use it again at a service station convenience store.  On this occasion, you were unsuccessful.  This is the offending constituted by Charges 1 and 2.  I regard this offending as being towards the lower end of the scale for this kind of offence.

5Charges 3 and 4 are far more serious.  In Charge 3, you attended at the same service station, where you approached a customer and you produced a knife. You approached him from behind and when the customer pulled out his wallet to pay for a newspaper you told him to “drop it”.  At the time you had attempted to disguise yourself, wearing a hood and scarf covering your face. The victim saw the knife which you produced which was described by the operator of the store as being 30 centimetres in length.  The victim’s wallet contained 40 or $50 and other personal items, including a licence and credit cards.  Those items will later located at your home.  The offending was captured on CCTV.  The victim told police that he felt scared and was stunned at the thought that you may stab him.

6Two days later, you robbed a taxi driver who had driven you home from the city in the early hours of the morning.  As with your previous victim, so too the taxi driver was a soft target.  You again produced a knife and stole his mobile phone.  You did not pay the fare.  During the course of this robbery, you said the victim “if you touch me I will kill you”.  The taxi driver reached across you and grabbed your hand, but you then bit him causing him pain.  These facts relate to the two charges of armed robbery and assault.

7As can be seen, your offending is very serious.  You threatened each of the victims whilst armed with a knife, and in the case of the taxi driver, you bit him.

8In sentencing for offending such as this, the court must have proper regard to the application of the principle in sentencing known as “general deterrence”. The sentence imposed must send a clear message to those who would seek to offend as you have, that if they do so and are apprehended and convicted, the punishment of the court will be condign.  The offences that you have engaged in are prevalent, and frankly, the community is tired of drug affected persons robbing people who are otherwise going about their normal lives.

9To your credit, you have pleaded guilty to the charges and you did so at the earliest possible opportunity.  By your pleas, you have saved the time and cost of possibly two committal proceedings and two trials.  I also accept in the circumstances that you now find yourself in, that your pleas of guilty signify your genuine remorse for your offending.  In passing sentence, I have taken your pleas of guilty into account as I must.  You are entitled to a reduction of sentence because you have pleaded guilty, and this is reflected in the sentence that I will shortly pass.

10When you pleaded guilty, you also admitted a very short prior criminal history. On 18 November 2014, you were dealt with at the Magistrates' Court at Sunshine in relation to two separate matters.  One involved contravention of a family violence intervention order that related to your mother, and the other matters related to failing to answer bail and resisting and assaulting police.  It is notable I think that having regard to the fact that you have a long term drug habit, that you have only a very limited criminal history.  In passing sentence, I have taken your criminal history into account.  In my opinion, there is only a low need for the sentence that I pass, to reflect specific deterrence.

11Your offending, although serious, is confined to a period of five days in July 2015.  I was told by your counsel, and I accept, that you have had a long-term drug habit.  Your addiction is mainly to heroin and ice.  However, on occasions, you have used benzodiazepam type drugs in the form of Xanax and Rivotril.  The latter has been your downfall, and I accept that your offending occurred whilst you were affected by the drugs Xanax and Rivotril.

12Mr Chisholm provided the court with a detailed and helpful outline of argument which I admitted into evidence as Exhibit 1.  In those submissions, your counsel conceded, appropriately in my view, that your offending was serious and caused fear to both victims.  He conceded again appropriately, that a term of imprisonment, “is the only realistic option for the court”.  He submitted that a term of imprisonment could be combined with a community corrections order and that such a disposition would serve to meet all of the intended purposes of sentencing.  Namely, general and specific deterrence, denunciation, rehabilitation and just punishment.

13Miss Malobabic, who appeared to prosecute told me that the prosecution agreed that the course for which Mr Chisholm urged, was within the appropriate range of sentencing.  She said this was so because of your relatively young age.  Your offending occurred when you were aged 21 years and, you are now aged 22 years.  It is conceded that in passing sentence, I must treat you as a youthful offender and, any sentence imposed must have full regard to providing you with the best possible pathway to a full rehabilitation.

14You have been in custody now for 155 days or approximately five months. After you were arrested, you spent about 10 days in appalling conditions in the Heidelberg police cells, sharing a cell with two other persons.  You were then moved to the Metropolitan Assessment Prison for about 11 days and then between 19 August and 23 October 2015, you were held at the Metropolitan Remand Centre, where you experienced 23 hour a day lockdown the most of that time.  You were released on bail on 23 October 2015, but you breached your bail conditions not by reoffending.  Your bail was revoked on 4 December 2015, and you returned to the Metropolitan Assessment Prison until the authorities moved you to the Metropolitan Remand Centre again.

15Where possible you have undertaken a number of courses designed to assist you and lately, you have been able to engage in some work.  I accept that so far as you could, you have used your time on remand usefully.  I accept that whilst on remand, you have been confined at times in conditions that have made your time in prison more difficult than it otherwise would have been, had you been sentenced at an earlier time.  Mr Chisholm submitted that I should take this into account in arriving at an appropriate sentence, and I have done so.

16You were born in Australia on 4 November 1993.  Your parents migrated here from Eritrea.  Your background is conveniently summarised in a detailed psychological report from Carla Lechner, dated 29 December 2015, which I admitted into evidence as Exhibit 2.  It is not necessary that I repeat all of your history, because it is their set out.  Your parents separated and divorced when you were young.  You have no contact with your father and you are estranged from your mother, but you hope to be able to re-establish a relationship with her.  You have one sister with whom you get along well.  You have had a limited education and what comes through, is that you have largely been left to fend for yourself as an Eritrean in Australian society.  You have limited support structures around you.

17I was told and accept that you have accommodation in public housing in Ascot Vale, sharing a house with another male.  Your income is from youth allowance of $400 per fortnight, $115 of which is spent on rent.  You have little or no training or job prospects.  I was told and accept that you previously had a number of friends at the Solid Rock Youth Church in Braybrook which is a Christian church attended by members of the Eritrea and Christian community.  Those friends were lost to you when you went down the path of drugs.  You hope to re-establish contact with that community.

18As I indicated during the course of the plea, I have formed the strong view that the course for which Mr Chisholm contends, is the appropriate disposition.  My concern is to arrive at appropriate conditions for a community corrections order.  To that extent, I have had you assessed for suitability, for a community corrections order with conditions that are designed to assist in your rehabilitation.  Because you are a drug addict, your prospects for rehabilitation must remain guarded.  The disposition that I will impose will see you spend more time in prison, but upon release, after nine months, you will be subjected to a community corrections order, with appropriate conditions, for a period of three years.  Because you will serve a term of imprisonment of nine months, I have not included a condition that you engage in any unpaid community work. The conditions of the community corrections order are designed to bring about your full rehabilitation if possible.  Could you please stand Mr Ghebre-Michael.

19On Charge 1, you are convicted and sentenced to a term of imprisonment of one month.

20On Charge 2, you are convicted and sentenced to a term of imprisonment of 14 days.

21On Charge 3, you are convicted and sentenced to a term of imprisonment of nine months.

22On Charge 4, you are convicted and sentenced to a term of imprisonment of nine months.

23On Charge 5, you are convicted and sentenced to a term of imprisonment of three months.

24On Charges 3 and 4, armed robbery, in addition, I make a community corrections order with conviction for a period of three years with the following conditions:

a.        Supervision;

b.        Treatment and rehabilitation for drugs;

c.        Treatment and rehabilitation for mental health;

d.        Treatment and rehabilitation programs to reduce offending;

e.        Judicial monitoring every six months.

25The community corrections order is to commence immediately upon your release from custody, after serving the terms of imprisonment that I have imposed on Charges 3 and 4.  The term of imprisonment that I have imposed is a total effective term of imprisonment of nine months.

26Pursuant to Section 39 of the Sentencing Act, I fix a period of six months from the time of the commencement of the community corrections order as an intensive compliance period during which the condition that I have imposed relating to treatment and rehabilitation for drugs, must have been complied with.

27For the purposes of Section 6AAA of the Act, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective term of imprisonment of three and a half years. 

28I declare that there has been 155 days presentence detention under the sentences passed this day, and I direct that 155 days be reckoned as having been already served under the sentences passed this day, and be deducted administratively.

29The prosecution seeks orders for disposal of a knife and items of clothing. These orders were not opposed and I have signed them.  Mr Ghebre-Michael, the effect of what I have done is I am requiring you to serve approximately another four months in prison.  Do you understand?

30OFFENDER:  Yes.

31HIS HONOUR:  And upon your release, you will then commence a community corrections order, with the conditions that I have imposed.  You must not during the period of the community corrections order commit any offence punishable by a term of imprisonment.  If you do so, you will have breached the order and you will be brought back to be dealt with by me.  Do you understand?

32OFFENDER:  Yes.

33HIS HONOUR:  You also must comply with the conditions.  Do you understand that?

34OFFENDER:  Yes.

35HIS HONOUR:  They will be explained to you by your counsel, I am sure, and also by the authorities.  But immediately upon your release from prison, you will have to report to Sunshine Corrections, in order to make sure that the community corrections order gets off to a proper start.  Do you understand that?

36OFFENDER:  Yes.

37HIS HONOUR:  Very well.  Are there any questions arising out of that?

38MR CHISHOLM:  Just one matter, Your Honour, does Your Honour wish to set the date for the first judicial monitoring today?

39HIS HONOUR:  Yes, we will do that.  That will be on 5 September.

40MR CHISHOLM:  Yes, Your Honour.

41HIS HONOUR:  You will have to come back before me every six months during the course of the community corrections order, Mr Ghebre-Michael.  That is designed so that I can keep an eye on you.  Do you understand?

42OFFENDER:  Understand.

43HIS HONOUR:  And I will be given a report by Corrections.  Now you will need to sign the community corrections order if you accept its terms and conditions.  I think they have already been explained to you by the assessor.  Mr Chisholm will just bring them down to you.

44MR CHISHOLM:  May I have permission to approach?

45HIS HONOUR:  Yes, certainly.

46MR CHISHOLM:  Your Honour, I have a copy of those signed orders.  I've explained - that order, I'll explain it again downstairs and also Mr Ghebre-Michael consents.

47HIS HONOUR:  Now just one matter.  I've given you the wrong date for the first judicial monitoring.  It will be 3 October, not in September.

48ASSOCIATE:  Do you confirm that this is your signature?

49OFFENDER:  Yes.

50HIS HONOUR:  Now Mr Ghebre-Michael, if you are unsure of anything, you make sure you ask someone won't you?

51OFFENDER:  Yep.

52HIS HONOUR:  I wish you well.  I hope I do not see you back here again except for when you have to come back and see me for judicial monitoring.  Do you understand?

53OFFENDER:  Understand.

54HIS HONOUR:  Very well.  Could you take Mr Ghebre-Michael back into custody please. 

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