Director of Public Prosecutions v Gudina
[2021] VCC 71
•4 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-00089
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OBSA GUDINA |
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JUDGE: | HIS HONOUR JUDGE COISH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 4 February 2021 |
CASE MAY BE CITED AS: | DPP v Gudina |
MEDIUM NEUTRAL CITATION: | [2021] VCC 71 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Regan | |
For the Accused | Mr J. McQuillan |
HIS HONOUR:
1Obsa Gudina, you have pleaded guilty on file CR 18-00089 (Indictment H12950398) to the charge of without reasonable excuse failing to comply with the conditions of a community corrections order and on file
CR 19-01742 (Indictment K10816172.1) you have pleaded guilty to one charge of theft and one charge of recklessly cause serious injury.2These offences carry the following maximum penalties; failing to comply with the conditions of a community corrections order three months' imprisonment; theft 10 years' imprisonment; recklessly cause serious injury 15 years' imprisonment.
3Dealing first with the breach of the CCO. On 29 June 2018 at the Melbourne County Court I sentenced you on the charges of unlawful assault and armed robbery to a combined sentence of six months' imprisonment and an 18-month community corrections order commencing on 24 November 2018 and expiring on 23 May 2020.
4You admit that you have contravened the community corrections order without reasonable excuse in that you failed to perform unpaid community work as required on approximately 11 occasions between 14 December 2018 and 8 March 2019 you failed to undergo treatment and rehabilitation as required on approximately eight occasions between 13 December 2018 and 21 March 2019 and you failed to be supervised, monitored and managed as directed on approximately five occasions between 27 November 2018 and 19 March 2019.
5A report from the Department of Justice and Community Safety dated 5 November 2019 contains details of your contravention of the CCO by conditions. Your failure to abide by the conditions of the CCO commenced within a very short time of the commencement of the CCO and there were numerous contraventions of the CCO conditions between 27 November 2018 and 21 March 2019.
6The authors of this report note,
'It should be highlighted that Mr Gudina has placed himself in situations and demonstrated behaviours like that of the circumstances surrounding his index offending.'
7Their recommendation was,
'In light of the above it is respectfully recommended that Mr Gudina's order be cancelled and he be resentenced on the original charges.'
8I accept this recommendation. Having accepted your plea of guilty for the contravention of the CCO, I have determined that it is appropriate that I resentence you in respect of the original offending namely the armed robbery and unlawful assault committed on 7 October 2017.
9In my reasons for sentence delivered on 29 July 2018 I described the general circumstances of your offending on 7 October 2017 (see paragraphs 3 to 6; the reasons for sentence will be appended to my reasons for sentence today). I shall not repeat those remarks.
10Dealing now with the offending on 22 March 2019 the subject of the second indictment K10816172.1 the general circumstances surrounding these offences are as follows; on 21 March 2019 the victim, a 15-year-old male youth, was messaged via Facebook Messenger by a friend he knew as Ricky who said he wanted to obtain some cannabis. The cannabis was to be delivered by Ricky to you. The victim agreed to provide Ricky with cannabis.
11In the early hours of Friday, 22 March 2019 the victim's mother drove the victim to an agreed meeting place in Sunshine North so that the victim could supply Ricky with the cannabis. Shortly after they arrived you and an unknown male approached their motor vehicle and spoke to the occupants of the motor vehicle, the victim and his mother. You then snatched a packet of cannabis from the victim (Charge 1, theft).
12The victim tried to retrieve the cannabis and there was a physical struggle during which a large knife in a black sheath fell from your pants. The knife came out of the sheath in the process and you grabbed it. The victim retreated, then fearing for the safety of his mother ran at you and tried to tackle you. During this altercation you stabbed the victim repeatedly before you ran away with the cannabis (Charge 2, recklessly cause serious injury).
13You threw the knife into a nearby property. It was subsequently located by police. There are photographs of this large hunting-style knife in the summary of prosecution opening for plea (Exhibit I).
14The victim was taken to the Royal Children's Hospital where he underwent surgery. He was in hospital for approximately one week. Of the two knife wounds to the chest, one wound 'demonstrated entry into the chest cavity'. This wound precipitated a pneumothorax (collapsed lung) requiring insertion of a chest drain.
15The treating physicians also noted a superficial wound to the left thigh which required suturing and a laceration to the left forearm to the bone requiring operative repair of underline muscles and tendons. An incomplete radial fracture was also diagnosed and this was said to be consistent with the operative findings.
16In a forensic medical report compiled by Dr Biridu Bali, paediatric specialist, Dr Bali expressed the opinion that the injuries received by the victim were serious and life threatening. Without medical intervention the victim may therefore have died.
17I state to you that I have taken into account the following matters in mitigation of sentence. You have pleaded guilty to all offences. You are entitled to have that fact taken into account in your favour and I do so. The community has by your plea been spared the time and cost of a trial, witnesses have been spared the ordeal of giving evidence upon your trial. In respect of the 22 March 2019 offences you pleaded guilty after negotiations concerning appropriate charges following a committal hearing.
18I accept on all the material before me that you are genuinely remorseful. You had no prior convictions in respect of the original offences. You have a limited albeit relevant criminal history in respect of the 22 March 2019 offences and I shall deal with that in a little more detail in a few moments.
19I have been told something of your personal circumstances and these matters are set out in detail in my earlier sentencing reasons (see paragraphs 9 to 14) and they are also set out in the detailed psychological report of Gina Cidoni dated 23 November 2020 and in the outline of plea submissions prepared by your counsel.
20You are 22 years of age having been on 9 February 1998 in Ethiopia. I will not repeat to you all of the details of your horrific personal history save to state that in Ethiopia your parents were political prisoners and your father was killed when you were very young. In 2006 you and your family came to Australia as refugees.
21You had difficulties at school in Australia. You returned to Ethiopia and in 2013 whilst in Ethiopia you accidentally shot and killed your niece. This resulted in you being held in prison in shocking conditions for about 11 months.
22You were ultimately able to return to Australia in 2014. Since returning to Australia you had sporadic employment. You commenced drinking to excess and using illicit drugs.
23At the time of the 2017 offending I commented as follows,
'At the time of this offending, you were using drugs and living a dysfunctional life away from your family. To quote the psychologist Guy Coffey:
"His life at this time had become dissolute and disorganised and was centred on substance abuse."'
24Unfortunately your illicit drug use has continued. You have not participated in any employment or study since about 2017. You were abusing Xanax pills and alcohol at the time of the 22 March 2019 offending.
25I accept that you continue to have a supportive relationship with your parents and siblings.
26I accept the psychological opinions of Gina Cidoni that your formation has been seriously affected by your past traumatic experiences. I accept her opinion that personality testing was indicative of complex post-traumatic stress disorder, adjustment disorder and substance use disorder. I accept the following opinion,
'Insight and awareness of own functioning is reduced contributing to overall lack of help seeking. Further the nature of his traumas leads to avoidance behaviours. The prevalence of substance abuse is associated with poorer outcomes. There are deficits in reasoning, tendencies towards irrational and reckless behaviour. Other symptoms include disassociation, blanking out, difficulties with the sense of identity, inability to trust, vulnerability to abuse or exploitation, substance abuse, feelings of guilt, difficulty in controlling emotions including aggression.'
27I also accept Ms Cidoni's opinion that,
'His particular profile produces activation to stress, evolution avoidance, disordered thinking and functional impairments of predisposing to irrational, reckless and self-destructive behaviours. It affects his ability to control his behaviour, exercise appropriate judgment to make calm and rational choices and to think clearly.'
28Finally, I accept Ms Cidoni's opinion that,
'In view of his mental conditions, Mr Gudina's experiences of prison would be a greater burden upon him and of a person with normal faculties. The effect of a custodial sentence is already weighing heavily upon him because of his past history in an Ethiopian prison and preceding this where he was a victim of sexual violence. His current surroundings whilst not entirely comparable to his experiences as a youth in Kaliti Prison are still tense and unpredictable resulting in high anxiety and exacerbation of his PTSD symptoms.'
29I accept that the fifth and sixth limbs enunciated in Verdins' case apply. You are about to turn 23 years of age. Whilst you were still a young man and I have had regard to the principles applicable to the sentencing of youthful offenders, I must also have regard to your serious and violent offending, particularly the offence of recklessly cause serious injury.
30I have had regard to and accept the particular difficulties confronting prisoners as a result of COVID-19 restrictions described in your counsel's written submission. It is to your credit that you have been using your time in custody in a constructive manner and have obtained certificates in traffic control, occupational health and safety, building site work and you have been working in the prison kitchen.
31I assess your prospects of rehabilitation as being cloudy having regard to your long term drug use and abject failure to comply with the conditions of the CCO I imposed.
32Against these matters in mitigation however your actions were very serious indeed. In respect of the 2017 armed robbery and assault the offences were committed at night with a co-offender and you were armed with a knife. The 2019 recklessly cause serious injury and theft offences were also committed at night. The victim was young. You were armed with a knife. This was a serious example of the offence of recklessly cause serious injury. You inflicted
life-threatening injuries on the victim.33I agree with the following submission made by the prosecution,
'[36] The prosecution submits that the circumstances of 7 October armed robbery on victim Blake and 21 March 2019 theft and stabbing of Allpike both involved Gudina preying on victims who were expecting a cannabis transaction.
'[37] During the October 2017 offending against Blake and the March 2019 against Allpike, Gudina on each occasion has had with him a large bladed sheathed knife. In 2017 Gudina lunged at victim Blake as Blake moved only resulting in a hole in his pants and a small scratch on his skin. In the March 2019 offending against Allpike, Gudina stabbed Allpike several times.
'[38] The prosecution contends that the 2019 stabbing represents a clear and extremely worrying escalation of Gudina's criminal behaviour despite having been through the experience of a County Court hearing for the Blake armed robbery only eight months before.'
34A further aggravating factor is that at the time of the recklessly cause injury and theft offences, you were under the CCO component of the combination sentence I imposed on 29 June 2018 the 18-month CCO having commenced on 24 November 2018.
35There is a victim impact statement from the victim in respect of the 22 March 2019 offence. That victim impact statement was read in full a few moments ago. It is clear from the victim impact statement that this was an extremely distressing experience for the victim. The victim feared losing his life after he was stabbed. He was in physical pain and experienced mental anguish. He has had flashbacks and nightmares. He was hospitalised for about a week and underwent operative procedures. He feels emotionally damaged. He experiences symptoms of anxiety and depression. He has difficulty socialising. He is able to play sport to the same extent that he did before this incident and he has psychological treatment for PTSD.
36You have admitted before me prior convictions. As I stated there were no prior convictions in respect of the 2017 offences. The relevant prior matters have been summarised by the prosecution in these terms,
'[32] On 19 March 2018 Gudina committed offences of aggravated burglary, theft, attempted robbery and recklessly cause injury and was remanded in custody on 20 March 2018. These offences were sentenced at Melbourne Magistrates' Court on 13 June 2018 with an 85-day imprisonment followed by an 18-month community correction order being imposed. The CCO commenced on 24 November 2018 after Gudina's release from custody and expired on 23 May 2020.
'[33] At the time of this 2018 offending and sentencing Gudina was on bail for an earlier offence of robbery committed on 7 October 2017 (he had been bailed after serving 17 days presentence detention). This charge (and several relevant summary offences) was ultimately heard before His Honour Judge Coish in the County Court at Melbourne on 1 and 27 June 2018 and sentenced on 29 June 2018. The sentence imposed was six months' imprisonment plus an 18-month CCO with 80 hours unpaid community work and program conditions to run concurrently with the earlier Magistrates' Court CCO.'
37There is a relatively complex chronology in relation to your offending, breaches and time in custody. A detailed chronology has been prepared by the prosecution and given the complexity of these matters I intend to annex that chronology as a second appendix to my reasons for sentence.
38Presentence detention; 182 days in respect of the 2017 armed robbery and unlawful assault and 679 days in respect of the recklessly cause serious injury and theft.
39As well as the matters to which I have referred I must also take into account the need for general and specific deterrence.
40Specific deterrence is relevant. Within a short time of your release from custody you committed a serious stabbing and theft. You failed to take the opportunity offered by the imposition of the CCO.
41General deterrence is also of considerable importance in a case such as this. Offences of violence particularly involving the use of knives by young persons must be discouraged.
42I am called upon the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. Your counsel submitted that a term of imprisonment was the only appropriate disposition but a larger than usual parole period was appropriate.
43I have determined appropriate sentences on the offence of breach of community corrections order and the original offences of armed robbery and assault. I have had regard to the approach and comments of the Court of Appeal in Minh Luu v The Queen [2018] VSCA 92. I shall sentence you afresh on the armed robbery and assault. As there are two indictments I have followed the preferable course in respect of sentencing of multiple indictments recommended by the Court of Appeal in Pollard v The Queen [2015] VSCA 138.
44Having regard to all relevant facts and appropriate sentencing principles I sentence you as follows.
45Dealing with the first file CR 180089, Indictment H12950398, I sentence you as follows.
46Charge 1 armed robbery convicted and sentenced to 18 months' imprisonment.
47The summary offence Charge 5 unlawful assault convicted and sentenced to one month's imprisonment.
48Contravention of the community corrections order charge convicted and sentenced to one month's imprisonment.
49I direct that the sentence of one month's imprisonment for the contravention of the CCO be served cumulatively on the sentence of 18 months' imprisonment. So the total effective sentence on this indictment is therefore 19 months' imprisonment and I make a declaration of presentence detention of 182 days.
50Dealing now with CR 1901742 this is Indictment K10816172.1, Charge 1 theft convicted and sentenced to one month's imprisonment.
51Charge 2 recklessly cause serious injury convicted and sentenced to five years and three months' imprisonment.
52The sentence of five years and three months' imprisonment is the base sentence.
53These sentences are to be served concurrently.
54I direct that nine months of the sentence imposed in respect of file 1800089 Indictment H12950398 be served cumulatively on the sentence of five years and three months imposed on CR 1901742 Indictment K10816172.1. Otherwise the sentence is to be served concurrently.
55The total effective sentence in respect of both indictments is therefore six years' imprisonment.
56The non-parole period is the minimum term that justice requires you to serve having regard to all relevant circumstances that exist. For that reason it cannot be fixed automatically. All relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.
57In all the circumstances, I direct that you serve a minimum term of four years before becoming eligible for parole.
58As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you spent in custody is 861 days (182 days plus 679 days) which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court.
59I make the disposal order sought by the prosecution.
60Pursuant to s.6AAA of the Sentencing Act I state that the sentence and
non-parole period I would have imposed but for the plea of guilty is seven years with a non-parole period of five years.61The orders have all been prepared. They will be emailed to the practitioners and the relevant authorities. If there is any administrative or clerical error or the order does not in any way reflect what I have pronounced I will entertain submissions to correct any such administrative or clerical error. If the parties could notify my associate as soon as possible if there is any such error or confusion.
62MR REGAN: Thank you, Your Honour.
63HIS HONOUR: Apart from that nothing to say in terms of the technicalities or formalities?
64MR REGAN: No, Your Honour.
65HIS HONOUR: No.
66MR McQUILLAN: No. If Your Honour pleases.
67HIS HONOUR: Yes. Thank you very much. I am sorry about the hold up this morning.
68MR REGAN: Thank you.
69HIS HONOUR: Thank you.
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