Director of Public Prosecutions v Haile

[2019] VCC 2001

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01800

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHANIEL HAILE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 November 2019
DATE OF SENTENCE:	3 December 2019
CASE MAY BE CITED AS:	DPP v Haile
MEDIUM NEUTRAL CITATION:	[2019] VCC 2001

REASONS FOR SENTENCE
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Subject:  Robbery
Sentence:  233 days' imprisonment.  2 year community corrections order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Menen
For the Accused	Mr V. Peters

HIS HONOUR

1Nathaniel Haile, you have pleaded guilty to one charge of robbery for which the maximum penalty is imprisonment for 15 years.

2You were born on 13 November 1999.  You were aged 19 at the time of the offending and you fall to be sentenced as a young offender.  At the time that you pleaded guilty you admitted previous convictions from two previous court appearances in the Magistrates' Court and the Children's Court in 2018.  Relevantly you have a prior conviction in the Children's Court for armed robbery and theft, and in the Magistrates' Court for attempted armed robbery and aggravated burglary person present and offences involving violence.

3On the charge of armed robbery in the Children's Court you were subjected to a probation order until 18 May 2019 without conviction.  In the Magistrates' Court on 13 June 2018 you were sentenced to time served in prison, 85 days, and a community correction order with conditions for a period of 18 months. 

4This offending occurred on 30 January 2019 at which time you were still subject to the probation order made in the Children's Court and the community correction order made in the Magistrates' Court so that this further offending breached each of those orders.

5You have pleaded guilty to the charge and that is to your credit.  By your plea of guilty you have saved the time and cost of a trial.  By your plea of guilty you have accepted and admitted responsibility for your crime and you have facilitated the administration of justice.  Importantly in this case, by your plea of guilty you have saved the complainant from being called to give evidence against you and been cross-examined by your counsel.

6Here you were arrested and charged on 15 April 2019 and there was a contested committal and some directions hearings.  The charge resolved into a plea of guilty on 23 October 2019 when the matter was listed for trial.  Whilst the matter only recently formally resolved into a plea, for the purposes of sentencing I do regard you as having indicated that you would plead guilty to charges at an early stage.  Because you have pleaded guilty at an early time the law provides that you are entitled to a reduction in sentence and this will be reflected in the sentence that I will shortly pass.  I regard your plea of guilty as evidencing genuine remorse.

7The circumstances of your offending are contained in a summary of prosecution opening that was tendered in evidence and read in open court by the prosecutor Mr Menon.  Counsel Mr Peters accepted that the prosecution opening was accurate and formed a proper factual basis upon which I can proceed to pass sentence upon you.  In those circumstances it is not necessary that I here set out in detail all of the facts but do so only in an abbreviated way.  These sentencing remarks should however be read with what is set out in more detail in the summary.

8You were one of a group of three males that approached the victim who was attempting to sell Xanax tablets to a third party.  During the course of that incident the victim was stabbed but it is not alleged that you were part of that or that you were aware that one of the group was armed with a weapon.  Your intention was to rob the victim of the Xanax tablets and an iPhone and that is what you did.

9Circumstantial evidence connected you to the robbery.  I admitted into evidence a victim impact statement that shows the effects that crimes of this kind can have a lasting effect upon the victim and this is no exception.  In passing sentence I have taken the victim impact statement into account as I must.

10When I heard your plea your mother and other members of your family were in court to support you.  You will live at home in Deer Park with your mother and three sisters.  Your parents are separated having immigrated to Australia from Eritrea.  Your mother works as a cleaner but is presently unable to work because of a shoulder injury and is on disability benefits.

11I received into evidence as Exhibits 1 to 4 a character reference from Dr Ahmed of the African Australia Association which speaks highly of you and your family and what you have been able to achieve.  I received a similar reference from Gerard Broadfoot, the principal of Mother of God School in Ardeer.  In passing sentence I have taken all of this into account.

12You have had a primary and secondary education in the western suburbs at Catholic schools.  You did not complete Year 11 before dropping out of school.  You have had various jobs, mostly on a part-time basis.  You are keen on sport, especially basketball. 

13As of today you have been in custody for 233 days, a period approaching eight months' imprisonment.  You have been housed mostly at Ravenhall where you have completed courses available to you whilst in custody in construction and traffic management and cleaning and kitchen duties.  I was told and accept that your period in custody awaiting resolution of these matters has motivated you to turn your life around by working towards buying your own home.  You hope to seek work upon release in warehousing or construction.

14Your offending both here and prior is associated with drugs, in your case cannabis and Xanax, not ice and poor choices of friends.  Peer group pressure has played a big part in your offending.  Your offending here in my view was a low level example of this offence.  It was opportunistic and you committed this offence with others.  As I said, you are a young offender and the law provides that in sentencing you I must have full regard to your prospects for rehabilitation which I assess as still being reasonable despite the fact that you committed this offence whilst still subject to a non-custodial dispositions afforded you in the past. 

15Normally sentencing an adult offender for this offending the principles guiding the sentence would be general and specific deterrence, denunciation and protection of the public.  Here, whilst I have regard to your prior matters, in my view general and specific deterrence have a lesser role to play.  A sentence I impose for one last time must give you the chance to turn your life around. 

16In my view the imposition of a term of imprisonment equivalent to time served and the making of a community correction order with appropriate conditions to help you bring about your full rehabilitation will serve to achieve all of the purposes of sentencing.

17I note the prosecutor on instructions submitted such a disposition was, in the circumstances, within the appropriate sentencing range.  To that end I have had you assessed as to suitability for the making of a sentence that includes a community correction order.  Notwithstanding that this offending breached a previous community correction order, you have been further assessed as suitable for the making of another such order.

18The assessment includes the following passage;

'Mr Haile advised that he has stable accommodation.  He said that his family and community groups will provide strong social support.  When discussing how Mr Haile will address his criminogenic risk and needs he stated that his drug use contributed directly to his offending and behaviour as he was strongly affected when he committed his offences.  He stated that he began his drug use through negative peer group pressure.  Mr Haile showed good insight into his offending behaviour.  He stated that being heavily drug affected was no excuse for his behaviour.  He regrets the impact his offending had on his victim.  Mr Haile stated that he is motivated to complete treatment.  He understands he must not contact his negative peers and wants to engage with employment to ensure that he does not reoffend in the future.  He realised then that should be continue to make poor life choices he would spend most of his life in and out of gaol.'

19I am accepting all of what you said to the assessor at face value and I am prepared to give you one last chance.  If you breach the community correction order that I will make in any way then you can expect to be brought back before me and re-sentenced which will almost certainly mean you will be returned to gaol for these matters.

20On the charge of robbery you are convicted and sentenced to a term of imprisonment of 233 days.  In addition I make a community correction order, with conviction, for a period of two years commencing this day.

21There will be conditions as follows; that you undergo supervision from Corrections; that you undertake treatment and programs for rehabilitation from drugs; that you abstain from illicit drugs; that you undertake treatment and programs to reduce re-offending; and that you undergo judicial monitoring by me every four months commencing March 2020.  These conditions are all therapeutic and not punitive.  In particular I have not included an unpaid community work component having taken the view that your time in custody thus far is sufficiently punitive provided you complete all the other conditions of the community correction order.

22I declare that 233 days be reckoned as having been already served of the sentence passed today and be entered into the records of the court and be deducted administratively. 

23For the purposes of s.6AAA I state that had it not been for your plea of guilty to the charge I would have imposed a term of imprisonment of 18 months and I would have fixed a non-parole period of one year.

24I have been asked to sign disposal orders which are not opposed and I have signed them.

25My understanding and intention is that you have now served the term of imprisonment that I have imposed and that you have been cleared for immediate release from custody from the court, and the community correction order will commence immediately.  You must report to Corrections in Sunshine within 48 hours.

26Mr Haile, can you hear me?

27OFFENDER:  Yeah.

28HIS HONOUR:  You understand that you will be released today.

29OFFENDER:  Yeah.

30HIS HONOUR:  And you have to report to Corrections in Sunshine within 48 hours, do you understand that?

31OFFENDER:  Yeah.

32HIS HONOUR:  Now you have been on a community correction order before and you have breached it, you understand that?

33OFFENDER:  Yep.

34HIS HONOUR:  Now if you breach this one made by me and you are brought back before me, you will be sent back to prison, do you understand that?

35OFFENDER:  Yes.

36HIS HONOUR:  You must not commit any offence punishable by a term of imprisonment for the period of the community correction order, do you understand that?

37OFFENDER:  Yes.

38HIS HONOUR:  You understand that I will be keeping my eye on you  and that you will be the subject of my judicial monitoring?

39OFFENDER:  Yes.

40HIS HONOUR:  And I will get a report about your progress and I will have to see you every four months, do you understand?

41OFFENDER:  Yes.

42HIS HONOUR:  So I am going to keep a close eye on you, so just remember that, I will be looking over your shoulder.

43OFFENDER:  Yeah.

44HIS HONOUR:  You understand?

45OFFENDER:  Yes.

46HIS HONOUR:  So you take full advantage of the opportunity you have been given and stay out of trouble, then you will be able to stay at home living with your mother.

47OFFENDER:  Yeah.

48HIS HONOUR:  Do you understand that?

49OFFENDER:  Yes.

50HIS HONOUR:  Very well.  Upon the rising of the court you are free to leave once you have signed the community correction order.  Could Mr Haile come out of the dock and take a seat behind Mr Peters please.  Mr Peters, do you have the community correction order there?

51MR PETERS:  Ys, I do, Your Honour.

52HIS HONOUR:  Now could you explain it - I have already explained it to your client but you better explain it to him again if you think I have missed anything out.  I want to make sure that he clearly understands it and would you have him sign it please.

53MR PETERS:  Yes, Your Honour.  I have explained those consequences of non-compliance, Your Honour, and what it does require him to do and he has signed the order.

54HIS HONOUR:  Thank you very much.  All right, well now, Mr Haile, upon the rising of the court you are free to leave.  Adjourn the court please.

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