Director of Public Prosecutions v Golden-Hatzor
[2020] VCC 1253
•18 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01765
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZETHAN GOLDEN-HATZOR |
---
JUDGE: | O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 August 2020 | |
DATE OF SENTENCE: | 18 August 2020 | |
CASE MAY BE CITED AS: | DPP v Golden-Hatzor | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1253 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Armed robbery; Intentionally cause injury; Multiple charges of theft, attempt theft and obtaining property by deception; Difficult background; Early plea of guilty; Young offender; COVID-19 sentencing considerations; General and specific deterrence; Denunciation; Rehabilitation.
Legislation Cited: Sentencing Act 1991.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr F. Cameron | Office of Public Prosecutions |
| For the Accused | Mr D. De Witt | Greg Thomas |
HIS HONOUR:
Introduction
Zethan Golden-Hatzor, you have pleaded guilty to the following offences:
· One charge of causing injury intentionally;
· Two charges of attempted theft;
· Three charges of theft;
· One charge of criminal damage;
· One charge of robbery;
· Four charges of obtaining property by deception; and
· One charge of armed robbery.
You have also pleaded guilty to four related summary offences, namely committing an indictable offence whilst on bail, unlawful assault, dealing with property suspected of being the proceeds of crime and driving whilst disqualified.
Your offending spanned the period from 16 April 2019 to 13 May 2019. You were ultimately arrested on 21 May 2019 and have remained in custody since that time.
You are also to be dealt with in respect of an appeal against an aggregate sentence of 8 months imprisonment imposed at the Magistrates’ Court at Broadmeadows on 19 March 2020 for recklessly engaging in conduct endangering serious injury and driving whilst disqualified.
Circumstances of offending – Indictment No. K11298883
Mr Cameron, who appeared on behalf of the Director of Public Prosecutions, tendered and read to the Court a summary of prosecution opening[1] which detailed the circumstances of your offending. Mr De Witt, who appeared on your behalf, accepted that the summary accurately described your offending and could properly form the factual basis for sentence. What follows is largely based on that summary.
[1] Exhibit A.
Charge 1 – Intentionally causing injury
On 16 April 2019, you and your partner Brooke Cahill attended a house rented by your friend John Mumford in Burke Road, Sunbury. Around 12:30pm, Christopher Kenadjian and his partner Sharon Gardiners arrived to go for a walk with Mr Mumford. Mr Mumford told you and Ms Cahill that you would need to leave. You agreed, and you left with Ms Cahill using the exit via the laundry door.
When Mr Mumford returned to the house about an hour later, he noticed that the laundry door was wide open and that a package that had been delivered earlier in the day was missing. A short time later, you and Ms Cahill returned, because you believed that you had left your sunglasses inside.
Mr Mumford accused you of stealing the package and an argument developed. He asked you both to leave, but you refused to do so. Mr Mumford called Mr Kenadjian for help. Mr Kenadjian returned within a few minutes to find you arguing with Mr Mumford inside the front door. He tried to intervene and the two of you argued as you made your way into the kitchen area. At this point Mr Kenadjian grabbed you by the shirt and pushed you away. You then swung your left hand towards him and stabbed Mr Kenadjian with a knife to the right upper thigh. That conduct constitutes Charge 1 on the Indictment – intentionally causing injury.
You ran towards the back of the house and locked yourself in the bathroom. Ms Gardiners, having heard the commotion, entered the kitchen to find Mr Kenadjian bleeding through his shorts. She used a tea towel to apply pressure to the wound and then drove Mr Kenadjian to his father’s house, where an ambulance was called.
Mr Kenadjian was transported to the Royal Melbourne Hospital for treatment. He suffered a five centimetre deep stab wound which was treated with two vicryl (dissolvable) sutures internally and eight nylon stitches externally.
Mr Mumford later discovered, after viewing CCTV footage, that it was Ms Cahill, and not you, who had broken in.
At the time you committed this offence you were on bail in respect of the matters the subject of the appeal which gives rise to the summary offence of committing an indictable offence whilst on bail.
Charge 2 – Attempted theft
On the evening of 22 April 2019, sometime between 6:30pm and 9pm, you gained entry to a blue Nissan Navara belonging to Emily Brothers which was parked on the nature strip outside 82 Barrington Lane, Sunbury. At approximately 9pm, Ms Brothers’ partner was told by a neighbour that the interior light of the car was on. On inspection, it was clear that whilst nothing had been stolen, someone had rummaged through the car. A black balaclava was located on the driver’s seat and subsequent DNA testing revealed you had been in possession of that balaclava. This incident constitutes Charge 2 on the Indictment – attempted theft.
Charges 3 and 4 – Theft
At 9:50am on 30 April 2019, Mr Ian Hill discovered that his car, a white Subaru Forester, had been stolen from Raglan Street, Diggers Rest. He had parked the vehicle at that location about an hour earlier. That conduct constitutes Charge 3 on the Indictment – theft of a motor vehicle.
Later that day you were captured on CCTV footage filling the vehicle with petrol at the BP Petrol Station on the outbound section of the Calder Freeway at Calder Park. After filling the car with $40.58 worth of fuel, you drove off without paying. That theft of petrol constitutes Charge 4 on the Indictment.
At about 12:20am the following morning (1 May 2019), you were seen by police driving the same car erratically in the Sunbury area. It was later found in Peterhouse Court, Sunbury where another black balaclava was located under the drivers seat. Again, forensic testing revealed the presence of your DNA on the balaclava.
One of the police officers who had observed the person driving erratically that morning, viewed the CCTV footage from the BP Petrol Station. They were able to confirm that the person who had been driving the vehicle was the same person who stole the petrol.
As your license had been disqualified for a period of 12 months on 15 August 2018 by the Melbourne Children’s Court, you were also charged with the related summary offence of driving whilst disqualified.
Charge 5 – Criminal damage
At around 9:30pm on 6 May 2019, Mr Mumford went to the 7-Eleven Service Station on Gap Road, Sunbury. As he was filling his car with petrol he began arguing with an unknown female. About 15 seconds later, you walked up to Mr Mumford and punched him in the face before he retreated inside the store. This act constitutes the related summary offence of unlawful assault.
You then punched the windscreen of Mr Mumford’s vehicle breaking the glass. In what seems to have been a fit of rage you punched at the petrol bowser and then smashed the windscreen again, this time with your head. That conduct constitutes Charge 5 on the Indictment – criminal damage.
Charge 6 – Robbery, Charge 7 – Obtaining property by deception & Charge 8 – Attempted theft
At 7:50am on 7 May 2019, Aaron Aruliah was walking down Pasley Street, Sunbury towards the railway station. At that time you, your co-accused Rhys Jones and another unknown male, were standing next to a white Holden Commodore sedan parked on Pasley Street. As he walked past, one of you said to Mr Aruliah, ‘Hey mate, I think you have dropped something’. That male then approached Mr Aruliah and said, ‘Give me your phone, your wallet and your head phones’.
Mr Aruliah thought he would be assaulted if he didn’t hand those items over, so he complied with the demand. That conduct constitutes Charge 6 on the Indictment – robbery.
As you and the other males walked away, one of you called out, ‘Hey mate, what’s your code?’ Mr Aruliah did not reply, and you all left in the white Holden Commodore. The items stolen from the victim included his Oroton wallet, Commonwealth Bank credit card, Medicare card, driver’s license, Apple iPhone 6, Samsung S9 mobile phone and Bose headphones.
A few minutes later, you went to a milk bar located on McEwan Drive, Sunbury where you attempted to make a purchase with the victim’s bank card. When it appeared that the transaction would need you to provide the pin code, you left the milk bar. You then briefly spoke to the co-offender Rhys Jones, before re-entering the store and making two separate purchases with the stolen bank card, of $68.25 and $69.90 respectively. This incident constitutes Charge 7 on the Indictment – obtaining property by deception.
As you left the milk bar, you approached a blue Subaru wagon which was parked in the car park. In an attempt to steal items from the car, you tried to open the driver’s door however this set off the car alarm. The owner of the vehicle, Ms Trudy Collins, rushed out of the milk bar and ran towards her car and you fled. That conduct constitutes Charge 8 on the Indictment – attempted theft.
Police obtained CCTV footage from the milk bar which shows you committing these offences.
Charge 9 – Theft & Charges 10, 11 & 12 – Obtaining property by deception
At around 9:30pm on 10 May 2019, an unknown offender broke into the victim Baljeet Kaur’s vehicle which was parked on Harrick Road, Keilor Park. Among the items stolen were the victim’s driver’s license, Medicare card, Commonwealth Bank debit card, credit cards and her passport.
Approximately half an hour later, you attended the McDonalds in Keilor Park and used the victim’s debit card to make a purchase to the value of $21.55. Some 15 minutes later, you again used the card to purchase $61.49 worth of cigarettes from a 7-Eleven in Keilor East. You last used the card at EG Fuelco Store in Watergardens where you made two purchases in the sum of $9.10 and $5.00, respectively. The theft of the victim’s wallet and use of her debit card constitutes Charge 9, being theft, and Charges 10, 11 and 12, obtaining property by deception.
Charge 13 – Armed robbery
On 13 May 2019 at around 4:10pm, you and an unknown co-offender approached the victim of this offence, Zane Camilleri, as he was waiting in the bus exchange area of the Sunbury train station with two of his friends. One of you had a crow bar, and said to Mr Camilleri, ‘Give me all of your stuff’. The same offender produced a box cutter and passed the crow bar to the other offender. As the blade was exposed, the male demanded that Mr Camilleri get out his mobile phone and hand it over. Mr Camilleri handed the offender a blue iPhone XR and a black Adidas bum bag containing his wallet, driver’s license, student ID card, Myki card and Commonwealth Bank card. That conduct constitutes Charge 13 – armed robbery.
Demands were also made to the victim’s friends but they refused to comply. You and your co-offender then left heading in the direction of the train station.
You were depicted on CCTV footage in the area at the time, in the same clothing as you were wearing during the offending committed on 7 May 2019.
On 21 May 2019, police executed a search warrant at your address in Sunish Court, Sunbury. You were there arrested and transported to the Broadmeadows Police Station where you were remanded in custody.
Circumstances of offending – Sentence appeal
At around 8:50am on 11 July 2018, you were seen by police driving a blue Holden Commodore in the Sunbury area. Police activated their lights and sirens in an attempt to intercept your vehicle, however you drove away at a fast rate of speed. Police observed you driving on the wrong side of the road towards oncoming traffic, returning to the right side narrowly avoiding a collision. You again returned to the wrong side of the road before police lost sight of your vehicle as you turned off. (Appeal Charge 1 – Reckless conduct endangering serious injury).
At about 9.15am that same day, you were involved in a minor two vehicle collision at the Sunbury Square carpark. You left the scene of that accident, abandoning your vehicle, without making any attempt to provide your details to the other driver, a Ms Muscat.
Your mother later confirmed to police that you had been driving the vehicle on that day. At the time of offending, you did not hold a current driver’s license and were disqualified from driving (Appeal Charge 2 – Driving whilst disqualified). You were arrested in respect of these matters on 14 July 2018.
Victim impact
No victim impact statements were relied upon by the prosecution as to any of the charges on indictment or appeal.
Procedural history
The procedural history of this matter is of some significance in understanding your current situation.
You have a criminal history which commences when you were 14 and involves a significant number of driving, drug and dishonesty offences comprising nine Children’s Court appearances. On 13 March 2018, you were sentenced to a total effective sentence of 9 months Youth Justice detention for, among other matters, reckless conduct endangering serious injury. You committed the offences the subject of the appeal on 11 July 2018 whilst on youth parole in respect of the March sentence. When you were arrested on 14 July 2018 and charged with reckless conduct endangering serious injury and driving whilst disqualified, your parole was cancelled and you were returned to Youth Justice detention.
On 15 August 2018, you were sentenced in respect of unrelated matters to a further term of 5 months Youth Justice detention. On 10 October 2018, at your request, you were transferred to adult prison to serve the balance of your sentence. That sentence expired on 17 January 2019.
On 12 February 2019, you were bailed in respect of the charges the subject of the appeal. Between 16 April 2019 and 13 May 2019, you committed the offences the subject of the Indictment. You were taken into custody on 21 May 2019 and placed in adult prison. You have remained there since.
On 3 September 2019, you entered pleas of guilty to the matters to be prosecuted in this court and waived your right to committal.
On 19 March 2020, the charges from 11 July 2018 were dealt with at Broadmeadows Magistrates’ Court resulting in an aggregate sentence of 8 months imprisonment, now the subject of appeal. In what seems to have been an oversight, 26 days of pre-sentence detention referable to those charges (the period 17 January 2019 to 12 February 2019) was not declared under s 18 of the Sentencing Act 1991.
On 5 August 2020, the plea in mitigation in respect of the matters on Indictment was conducted.
It follows that you have served 455 days by way of pre-sentence detention for the April/May 2019 matters and 26 days in respect of the July 2018 matters.
Personal history
Turning to your personal history. You were born on 12 April 2000 and are now 20 years of age. You were 18 at the time you committed the matters which are the subject of the appeal from the Magistrates’ Court, and 19 at the time of the matters the subject of Indictment.
Your mother suffered from a long history of drug addiction and mental health problems. She gave birth to you when she was 19. She was sexually abused when she was 10 years of age, commenced drug use shortly afterwards and has struggled throughout her life to deal with the associated trauma. She was involved in a number of relationships characterised by violence, including the relationship with your father which had ceased by the time you were born.
As you grew up, you were frequently exposed to family violence and your mother’s chaotic lifestyle. You would move house frequently and your schooling was fragmented and difficult. Understandably, you could not settle, found it difficult to develop lasting friendships and displayed behavioural problems.
In 2017, a teacher associated with Youth Justice reported that your reading level had progressed to the equivalent of grade one. I was told that more recently you have been working on improving your literacy skills.
You first started using cannabis when you were 11 years of age and you were introduced to the use of methylamphetamine when you were 13. Much of your subsequent offending, in particular the matters the subject of the Indictment, occurred in the context of ongoing use of the drug ice.
Your father also had a history of drug abuse and criminal offending. He has been in jail for most of your life. You first met him when you sought to be transferred from detention in a Youth Justice Centre to the same unit as your father in Port Phillip Prison, on 10 October 2018.
Your counsel made the point that once you met your father in jail, you saw in a very tangible way how your life was likely to turn out if you kept on the same trajectory. He suggested that developing that insight has motivated you to make some real changes to try and break the cycle of offending that has dominated your life over the last six years or so.
Three references were tendered on your behalf. One from your grandmother, Luanah Hatzor, one from an uncle, Abel Winsor, and the other from your aunt, Sarinah Golden.
Ms Golden gave impressive oral evidence on your plea. She is your mother’s younger sister but has clearly had a different life experience. Ms Golden has a Certificate IV in Youth Work with experience in working with children in state care and has worked on a voluntary basis at the St Vincent de Paul homeless centre.
She moved to Queensland when she was 16 to avoid what she describes as the patterns in her family that would have otherwise steered her in the wrong direction. She is close to you, speaks to you regularly by phone and travelled to Melbourne to see you in custody before the COVID-19 pandemic. She well understands your history and the problems you have experienced with your mother. She believes that you are committed to changing your life and she is committed to helping you with accommodation, education and life skills more generally. As soon as the authorities permit, Ms Golden will have you live with her on the Gold Coast. She believes that with her support you have a real prospect of rehabilitation.
In the same vein, your uncle, Abel, has lived and worked as a tradesman on the Gold Coast for the last 20 years and is also prepared to help assist with employment and in other practical ways once you move there.
Defence submissions
Your counsel relied on your early plea of guilty, your remorse, your youth, the impact of the pandemic on conditions in custody and what he submitted were your realistic prospects of rehabilitation given the support of your aunt and uncle, to argue that a sentence of imprisonment that renders you eligible for parole reasonably soon would be an appropriate disposition. He further submitted that in fixing that sentence, the principle of totality had an important role to play.
Prosecution submissions
Mr Cameron submitted that a term of imprisonment with a non-parole period was the only realistic sentence open. He noted that your offending comprised various levels of seriousness, some of the more salient aspects of which involved the following:
· The driving the subject of appeal occurred in mid-morning traffic in a built up area where you drove on the wrong side of the road at times;
· In respect of Charge 1 in the indictment, the causing of the injury by stabbing the victim may well have been impulsive but you inflicted quite a serious injury requiring both internal and external stitches on a person who had intervened to try and calm the situation.
· The armed robbery was committed in company and is therefore caught by the definition of a Category 2 offence in the Sentencing Act 1991 which requires imprisonment. Having regard to the presence of the box cutter and crow bar, this was clearly a frightening incident.
Consideration
I readily accept that there is simply no alternative but to punish this offending by imposing an appropriate term imprisonment and fixing of a non-parole period. The number of offences and the seriousness of some of that offending, particularly those highlighted by Mr Cameron, requires nothing less.
I am persuaded however, that you are not yet resigned to institutionalisation. Your criminal history is lamentable but to a fair extent reflects your exposure to the instability, violence and drugs with which your mother has struggled. You have now met your father and seen your future should you continue to offend as you have been.
What seems to distinguish your case from many young offenders who become institutionalised is that there is a side of your family that has charted a different course in life. Those family members are willing and able to provide you with accommodation and support with access to education and employment well away from the environment in which you offended. I was impressed with your aunt’s commitment to support you in those ways and also, as she explained it, your commitment to change. Going to live with your aunt seems to represent the best chance you have of turning your life around.
In sentencing you I must have regard to the sentencing purposes of general deterrence, specific deterrence and denunciation, but consistent with the principles applicable to the sentencing of young offenders I must also emphasise, to the extent possible, your rehabilitation.
Accordingly, the sentence I will now impose will attempt to balance those competing considerations by imposing appropriate terms of imprisonment, but will enable you the opportunity to apply for parole reasonably soon. It will be up to you to persuade the parole authorities that if you are given that opportunity you can actually turn your life around.
Sentence
Taking all relevant matters into account you will be sentenced as follows:
Indictment No K11298883
On Charge 1, causing injury intentionally, you are convicted and sentenced to 18 months’ imprisonment. On Charge 2, attempted theft, you are convicted and sentenced to 1 month imprisonment. On Charge 3, theft, you are convicted and sentenced to 4 months’ imprisonment. On Charge 4, theft, you are convicted and sentenced to 1 months’ imprisonment. On Charge 5, criminal damage, you are convicted and sentenced to 1 month imprisonment. On Charge 6, robbery, you are convicted and sentenced to 15 months’ imprisonment. On Charge 7, obtaining property by deception, you are convicted and sentenced to 1 month imprisonment. On Charge 8, attempted theft, you are convicted and sentenced to 1 month imprisonment. On Charge 9, theft, you are convicted and sentenced to 2 months’ imprisonment. On Charge 10, obtaining property by deception, you are convicted and sentenced to 1 month imprisonment. On Charge 11, obtaining property by deception, you are convicted and sentenced to 1 month imprisonment. On Charge 12, obtaining property by deception, you are convicted and sentenced to 1 month imprisonment. On Charge 13, armed robbery, you are convicted and sentenced to 21 months’ imprisonment.
Related summary offences
On the related summary offence of committing an indictable offence on bail, you are convicted and discharged. On the summary offence of driving whilst disqualified, you are convicted and sentenced to 2 months’ imprisonment. On the summary charge of unlawful assault, you are convicted and sentenced to 1 month imprisonment. On the summary charge of dealing with property suspected of being proceeds of crime, you are convicted and sentenced to 1 month imprisonment.
Effective sentence on indictment
I will order that 6 months’ of the sentence imposed on Charge 1, 1 month of the sentence imposed on Charge 3, 1 month of the sentence imposed on Charge 5, 5 months of the sentence imposed on Charge 6 and 1 month of the sentence imposed on Charge 9 be served cumulatively upon the sentence imposed on Charge 13. All other sentences imposed on Indictment or the related summary offences are to be served concurrently, rendering a total effective sentence of 35 months’ imprisonment.
Appeal No. AP-20-0560
The orders imposed by the Broadmeadows Magistrates’ Court on 19 March 2020 are set aside, and in their stead the following orders are made.
On the charge of reckless conduct endangering serious injury, you are convicted and sentenced to 6 months’ imprisonment. On the charge of driving whilst disqualified, you are convicted and sentenced to 2 months’ imprisonment
I will make no order as to cumulation, rendering a total effective sentence for appeal number AP-20-0560 of 6 months’ imprisonment.
Total effective sentence
I will order that 1 month of the sentence imposed on appeal be served cumulatively upon the sentence imposed on Indictment, rendering an overall total effective sentence of 36 months’ imprisonment.
I will fix a non-parole period of 18 months.
I will declare pursuant to s 18 of the Sentencing Act 1991 (‘the Act’) that you have already served a total of 481 days by way of pre-sentence detention in respect of all matters. I will cause that declaration to be recorded in the records of the Court.
I will further make a declaration under s 6AAA of the Act, that but for your plea of guilty, you would have been sentenced to an overall total effective sentence of 4 years and 3 months’ imprisonment with a non-parole period of 2 years and 9 months.
On Charge 3 on the Indictment, pursuant to s 89(4) of the Act, I will make an order cancelling and disqualifying your license for a period of 3 months commencing this day.
0
0
0