Director of Public Prosecutions v Gudina
[2018] VCC 995
•29 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00089
CR 18-00090
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OBSA GUDINA |
---
| JUDGE: | HIS HONOUR JUDGE COISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1, 27 June 2018 |
| DATE OF SENTENCE: | 29 June 2018 |
| CASE MAY BE CITED AS: | DPP v Gudina |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 995 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Harrold | Office of Public Prosecutions |
| For the Accused | Ms L. Heffes | Victoria Legal Aid |
HIS HONOUR:
1Obsa Gudina, you have pleaded guilty to one charge of armed robbery on Indictment H12950398 and the related summary matter of Charge 5, unlawful assault, and four charges of possession of a drug of dependence on Indictment H12950376 and related summary matters of Charge 1, possess controlled weapon and Charge 2, possess prohibited weapon. These offences carry the following maximum penalties, and I quote from the table included in the summary of prosecution opening upon the plea:
2Armed robbery, 25 years' imprisonment; assault with a weapon two years' imprisonment; possess drug of dependence (cannabis-L) five penalty units; possess drug of dependence (Xanax) if not related to trafficking, one year imprisonment or 30 penalty units or both; possess drug of dependence (methylamphetamine), again if not related to trafficking one year imprisonment or 30 penalty units, or both; possess drug of dependence (cocaine) one again if not related to trafficking, one year imprisonment or 30 penalty units, or both; possess prohibited weapon without exemption or approval, 240 penalty units or imprisonment for two years; possess controlled weapon without excuse, 120 penalty units or imprisonment for one year.
3It is unnecessary for me to recount the facts of the matter in detail, as they are on transcript and contained in Exhibit 1 (Summary of prosecution opening upon plea). That opening was accepted by you through your counsel. I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.
4At approximately 3.30 pm on 7 October 2017, the victim aged 17 years and his friend aged 15 years arranged to meet an unknown person outside an address in Fitzroy to purchase cannabis. The victim and his friend thought you and a co-offender were selling drugs, so the victim gave the co-offender $200.
5The co-offender grabbed the victim in a headlock, the victim's friend ran away. You took the victim's iPhone from his pocket. You produced a knife and you demanded his backpack. The victim gave it to you, but when he tried to run away one of his shoes slipped off. You took his shoes and G-shock watch (Charge 1, armed robbery).
6You lunged at the victim with the knife and cut his pants and scratched him (Summary charge, assault with a weapon). You were arrested on 23 October 2017. You were in possession of drugs, a box cutter and a flick knife. You made admissions in a record of interview. Your explanation for the armed robbery was to support your drug habit.
7I state to you that I have taken into account the following matters in mitigation of sentence. You have pleaded guilty, 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.
8You pleaded guilty at an early stage. You cooperated with authorities; I accept that you are genuinely remorseful. You have no prior convictions. I sentence you as a person of previous good character.
9I have been told something of your personal circumstances and these matters are set out in the defence submissions and the psychologist's report of Guy Coffey dated 17 May 2018.
10You are 20 years of age having been born on 9 February 1998. You are single. You were born in Ethiopia. In Ethiopia your parents were political prisoners. Your father was killed when you were very young. In about 2006 you and your family came to Australia as refugees.
11You 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.
12You were ultimately able to return to Australia in 2014. Since returning to Australia you have had sporadic employment. You commenced drinking to excess and using illicit drugs.
13At 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."
14This is a description of your circumstances at the time of this offending. You committed the armed robbery when drug-affected. I have taken Guy Coffey's opinions in respect of your PTSD and substance use into account as part of your general personal circumstances.
15You are a young person and I have had regard to and apply the principles applicable to the sentencing of youthful offenders. I have also taken into account the principles enunciated in limbs five and six of Verdins case.
16You have good support from family and others, many of whom have attended court. There were also references and testimonials tendered on your behalf.
17You have been in custody since 19 March 2018. I accept that you have been using your time in custody in a constructive manner. You have written a letter of apology dated 1 June 2018.
18On 13 June 2018 at the Melbourne Magistrates' Court you were sentenced to an 18-month community corrections order to commence upon your release from imprisonment in respect of charges of aggravated burglary, theft, attempted robbery and recklessly cause injury. These offences were committed on 19 March 2018.
19I was provided with relevant documentation in respect of the Magistrates' Court orders. I assess your prospects of rehabilitation as being reasonable, provided you remain drug-free. If you return to using illicit drugs your prospects of rehabilitation will be adversely affected.
20I was concerned by the conclusion arrived at by the assessing Community Corrections officer Susan Farrell in her report dated 29 June 2018 that you have been assessed as being high risk of reoffending according to the risk assessment tool. Against these matters in mitigation however, your actions were very serious indeed. This armed robbery was committed with a co-offender. You were armed with a knife. It was not in daylight hours. Although the armed robbery was spontaneous and unsophisticated it was still no doubt a terrifying experience for the victim.
21There are 34 days of presentence detention. I have however had regard to the principle of totality. As well the matters to which I have referred, I must also take into account the need for general and specific deterrence. Specific deterrence is relevant. General deterrence is also of considerable importance in a case such as this.
22These type of offences, particularly the armed robbery, must be discouraged. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
23It was submitted on your behalf that I ought impose a community corrections order. It was submitted on behalf of the prosecution that an immediate custodial sentence was required, but this could be in combination with a community corrections order.
24As I was considering the community corrections order as part of the ultimate disposition I obtained a community corrections order assessment outcome report. That report provided by Susan Farrell dated 29 June 2018 states that you are assessed as suitable for a community corrections order. It is recommended that there be conditions involving community work, treatment and rehabilitation, drug, alcohol and mental health programs to reduce reoffending and supervision. I accept the opinions expressed by the assessing Community Corrections officer Susan Farrell.
25I am satisfied in relation to the charge of armed robbery and the related summary matter of assault with a weapon that I have no alternative but to impose a sentence of imprisonment, however this ought be in combination with a community corrections order.
26I received very helpful submissions in respect of the appropriate disposition for the offences of possession of a drug of dependence and possession of weapons. These matters on Indictment H12950376 and the related summary matters can be dealt with by the imposition of an aggregate fine.
27On these matters I will impose an aggregate fine. You will be convicted and fined $500. There will be a stay on payment of three months.
28The armed robbery and related summary matter of unlawful assault are separate and distinct matters. On these charges you will be convicted and sentenced to six months' imprisonment in combination with an 18-month community corrections order. The community corrections order is to commence upon your release from custody.
29You have indicated to the assessing Community Corrections officer that you consent to such an order being made by the court, however it is still necessary for me to explain the terms and conditions of the order so that you understand your obligations under that order.
30I have prepared this order. Perhaps if - I am just having a copy printed out now so that it can be shown to you. I will just ask Ms Heffes, can you take this to the back of the court with your client, and we will just run through it together?
31MS HEFFES: Yes Your Honour.
32HIS HONOUR: I have just asked your lawyer to show you the proposed community corrections order. The order will last for 18 months, and it commences upon completion of the term of imprisonment, so the period of the order is the same as the order imposed by the Melbourne Magistrates' Court on 13 June 2018.
33You must attend at the Sunshine Community Correctional Services offices within two clear working days after the commencement of the order. The mandatory terms that apply to all community corrections orders are set out. I will read them out.
34You must not commit another offence for which you could be imprisoned during the time that the order is in force; you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011; you must report to and receive visits from the Secretary or delegate; you must report to the community corrections order within two clear working days of the order starting; you must let a community corrections officer know within two clear working days if you are changing your address or job; you must not leave Victoria without first getting permission to do so from the Secretary; you must obey all lawful instructions from and directions of the Secretary.
35Those are the mandatory terms of the order. There are additional conditions - unpaid community work. You must perform 80 hours of unpaid community work over a period of 18 months as directed by the regional manager. If you fail to comply with this order, the Secretary to the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83AU of the Sentencing Act 1991.
36So the period of unpaid community work is 80 hours. That runs concurrently with the Magistrates' Court community corrections order, so it is 80 hours in total. It is not 160 hours, it is the same 80 hours. You must be under the supervision of a Community Corrections officer for a period of 18 months.
37You must undergo assessment and treatment, including testing for drug abuse or dependency, as directed by the regional manager. You must undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed by the regional manager, you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager. You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
38And down the bottom, other orders. The operation of this order to run concurrently with Melbourne Magistrates' Court order made on 13 June 2018, including the 80 hours of community work. Concurrently means it runs at the same time, so there are two orders in place, but they are running together, do you understand that?
39The terms and conditions have been explained to you. There is one difference. The order made by the magistrate includes a condition known as judicial monitoring. That is not part of this order that I am making, but it is part of the Magistrates' Court order, so you have to comply with that. That is separate.
40So do you understand if you breach this order you are liable to be brought back before me and dealt with for the breach and for the offences for which I am sentencing you today?
41ACCUSED: Yes.
42HIS HONOUR: I just want to emphasise one point. The Community Corrections officer who saw you today expressed an opinion that you were a high risk of reoffending, in other words there was a high likelihood you would commit further offences. If you commit further offences, you will be in breach of this community corrections order, do you understand that? So if you break the law, if you commit more crime, you will be in breach of the order and you should expect to be brought back before me.
43If you consent to the making of the order I will ask you to sign it in the appropriate place. So the presentence detention is 34 days as prescribed by s.18(4) of the Sentencing Act, I declare the period of time you have spent in custody is 34 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.
44I will make the forfeiture and disposal orders that are sought by the prosecution. Pursuant to s.6AAA, if that is required I state the sentence and non-parole period I would have imposed but for the plea of guilty is three years' imprisonment with a two-year non-parole period. So taking into account the 34 days you have served, there is approximately five months to serve, then an 18-month community corrections order.
45The other indictment and related summary matters I have already pronounced sentence upon, namely the conviction and fine. Does that cover everything?
46MS HARROLD: Your Honour, I believe there may be a need for a s.6AAA declaration on the second indictment.
47HIS HONOUR: Not if I have just imposed a fine.
48MS HARROLD: It is required if it is an aggregate fine exceeding 20 penalty units.
49HIS HONOUR: Is it? Well that is $2,000-odd.
50MS HARROLD: Okay, I am sorry Your Honour, I cannot add up, thank you.
51HIS HONOUR: No, that is all right. That is right, isn't it?
52MS HEFFES: Yes, Your Honour doesn't need to make one.
53HIS HONOUR: All right.
54MS HARROLD: Apologies Your Honour.
55HIS HONOUR: That is all right. So is everything as far as the parties are concerned all right in terms of the formalities?
56MS HEFFES: Yes Your Honour.
57HIS HONOUR: All right. So that is that, and I can just sign the rest back in chambers. Just adjourn sine die, yes, thanks.
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