Director of Public Prosecutions v Hamit
[2018] VCC 656
•8 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00175
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AYDIN HAMIT |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 May 2018 | |
DATE OF SENTENCE: | 8 May 2018 | |
CASE MAY BE CITED AS: | DPP v Hamit | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 656 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentencing – Theft, armed robbery and conduct endangering persons – Genuine efforts at rehabilitation following release on stringent bail conditions – Non-custodial order imposed – Community Correction Order with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. McWilliams (Plea) Ms J. Cavka (Sentence) | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr M. Dempsey, with Ms P. Smith (Plea) Ms S. Vardy (Sentence) | Balmer & Associates |
HER HONOUR:
1 Aydin Hamit, you have pleaded guilty before me to one charge of theft, one charge of armed robbery and one charge of conduct endangering persons.
2 Each of those charges are serious and that is reflected in the maximum penalties that are prescribed by law and that is 25 years’ imprisonment for armed robbery, 10 years’ imprisonment for theft and 5 years’ imprisonment for reckless conduct endangering serious injury.
3 You admitted your prior criminal history. There are five Children’s Court appearances that span the period from 28 April 2014 until 23 February 2016.
4 You are a young offender. You are now aged 19.
5 In the past, you have had a variety of dispositions imposed by the Children's Court, including without conviction, probation order and also a youth supervision order. At the time that these offences occurred, you were on bail for not dissimilar offending.
6 I will now proceed to sentence you on the basis of the prosecution opening that was read at the plea hearing and is marked Exhibit 1.
7 Charge 1, theft, relates to the use of a stolen Mercedes Benz motor vehicle. The vehicle had been stolen at some time prior to 2 June 2016, by persons unknown. Mr McWilliams, the prosecutor, outlined in the opening, the observations made by Victoria Police members of the vehicle whilst it was being driven in the Coolaroo, Broadmeadows, Campbellfield and Westgate Bridge area. You were a passenger in the vehicle and you were travelling in it with others, knowing it to be stolen. The driving was observed over the hours from 2.29 am until 3.23 am, when the observations of the Victoria Police Air Wing ceased.
8 The vehicle was observed to fail to obey red lights, travel at speeds in excess of the prescribed speed limit on major roads and throughout various residential streets. At one point, the vehicle was seen to perform a U-turn on the Western Ring Road and drive in convoy with another vehicle. As a result of that driving, oncoming traffic was required to take evasive action in order to avoid collision.
9 The armed robbery, the subject of Charge 2, occurred when you alighted from the stolen vehicle alongside a car being driven by a person, Daniel Mandiuc, who was in his vehicle on Collins Street, Melbourne. You were carrying a sledgehammer and approached Mr Mandiuc and demanded that he get out of his vehicle, yelling to him, “Get out, get out now”. Another person from the stolen Mercedes also got out carrying a sledgehammer and joined in with you, yelling to the victim, “Get out, get out”. As he got out of his car and began to leave the scene, a third passenger, Michael Jeitany, from the stolen vehicle, also got out of the vehicle. He was carrying a baseball bat and he told him to, “Get out of here”.
10 The three of you then drove away in the victim's vehicle, a red Holden Commodore, registration YUM 120. You were observed to be in the driver’s seat driving the vehicle.
11 Insofar as Charge 3, reckless conduct endangering serious injury is concerned, the observations recorded at the time by Safe City TV cameras showed both the stolen Mercedes and the stolen Commodore being driven erratically, at a fast speed, failing to obey multiple red traffic lights at various locations within the Melbourne CBD.
12 The Victorian Police Air Wing kept your vehicle under constant monitoring and noted that you were observed to drive at a fast speed west along Collins Street, between the intersection of King and Spencer Street. Collins Street was closed at that time for road works. You were seen to drive into the section of the closed road, driving along the tram tracks, thereby endangering people working on the road works site.
13 You continued to drive west along Collins Street and turned left into Spencer Street against a red light. Ahmed Shersi was driving his taxi south along Spencer Street. As a result of your failure to obey the traffic lights, a motor vehicle collision occurred at that location. Your vehicle collided with the front passenger side of the taxi, the force of which caused the taxi to spin a full 360 degrees. You drove away and did not stop.
14 Your vehicle continued to remain under surveillance by the Victorian Police Air Wing. You were seen to be driving throughout the Melbourne CBD at excessive speeds and at times, travelling on the incorrect side of the road.
15 You continued to drive along the Tullamarine Freeway, travelling northbound. You performed a U-turn and drove southbound in the northbound lanes of the freeway for about two minutes, dodging multiple motor vehicles and semi-trailer trucks. You then exited the freeway and began driving westbound along Dynon Road and continued to drive at excessive speeds. At about 3.44 am, you were observed to enter the Monash Freeway and travel outbound. Shortly thereafter, you performed a U-turn on that freeway and exited the freeway via the onramp at Bourke Road. You were observed travelling outbound on the freeway. At this point, the Victorian Police Air Wing disengaged from its observations.
16 The last observation of the stolen vehicle, prior to its recovery, was on High Street near the Glen Iris railway station. The police were told by witnesses that the vehicle had been left with its engine running and doors open. Police members then attended, identified the vehicle to be the stolen vehicle and obtained DNA material which originated from you that was located on the steering wheel of the vehicle.
17 On 6 July 2016, you were arrested and made a “no comment” record of interview. From the date of your arrest until your release on Supreme Court bail on 25 October 2016, you were held at an adult prison on remand and there are 112 days pre-sentence detention attributable to your offending.
18 The objective gravity of your offending, Mr Hamit, is very serious. Each charged offence is a serious example of the serious offence represented by that charge.
19 The armed robbery in particular being committed in company at night, that is, in company with two others who were armed is particularly serious. The victim would have been terrified. I make that finding, notwithstanding there was no victim impact statement, having regard to the objective circumstances.
20 Following the theft of the vehicle, you then took the lead role driving the vehicle in the erratic and irresponsible manner that I have already described.
21 Mr Dempsey, on your behalf, acknowledged the seriousness of the offending. He stressed that it occurred within three weeks of your 18th birthday. The context of the offending was that you were associating with more mature and anti-social peers and had embarked on a course of behaviour which reflected great immaturity on your behalf and a real failure by you to have regard for any consequences of your actions.
22 You were indeed associating with the criminal class and were very cavalier in your attitude towards the law and lacked any respect for other members of the public exposed to your erratic and illegal behaviour.
23 Following your arrest you were remanded in adult custody, as I have already described. You spent 112 days in custody on remand. This is the longest period of time that you have been held in custody and your first time in adult custody. It is said, and I accept, that your time spent on remand has had a profound and transformational effect upon you. There was a significant and immediate consequence to your offending behaviour.
24 You are very fearful of returning to adult custody. You identified that the exposure to older and hardened criminals caused you to be very concerned and anxious for you own safety.
25
You were released on very strict bail conditions by the Supreme Court of Victoria on 25 October 2016. There was a surety in the amount of $10,000; a residence requirement, you were required to live with your mother and
step-father; curfew, with a condition that you present yourself to the front door of your residence during curfew hours, upon the request of the informant or her nominee; daily reporting; non-association conditions with respect to your other co-accused; conditions that you not contact any witnesses for the prosecution, save for the informant and her nominee; and you were not to attend any international points of departure or to apply for any passport or other travel documents to leave the State of Victoria; and you had to obey the conditions of the Youth Justice Bail Support Program and all lawful directions of the Youth Justice Case Manager, Nicole Salter, or her nominee; you were not permitted to drive a motor vehicle; and you had to appear at court when requested.
26 Following the entry of your bail you have lived with your step-father, Mr Arlove, and your mother, Tamara, younger brother, and a step-brother who is now aged nine. It is of significance that you have been compliant with all the very strict conditions and restrictions that were placed upon you through the supervised bail conditions in the community since 25 October 2016.
27 I have read and had regard to the report completed by Nicole Salter, your Youth Justice case manager, who was responsible for supervision of the bail order. She writes of your positive responses to supervision. You attended 57 out of 62 appointments; you have been fully cooperative with Youth Justice during the period and you also have completed a Youth Supervision Order, which I will discuss soon. Importantly, you now express a willingness to engage and address your offending risk behaviours and you have not attempted to minimise or rationalise the seriousness of this offending.
28 Ms Salter concludes that you appear well-connected to your community through employment and engagement with the local soccer club. She assesses you as having reasonable prospects for rehabilitation, if you continue to engage in the manner that you have and stay away from negative associations and lifestyles.
29 You have expressed to Ms Salter a strong desire to not want to associate with the people that you knew previously or any other undesirable influences.
30 Youth Justice acknowledge the seriousness of the offending before the court. You have continued to comply with your bail conditions and ultimately they recommended a Community Correction Order, rather than a custodial disposition.
31 During the period whilst on bail you completed a Youth Justice Supervision Order. That expired on 16 November 2017.
32 Your current adherence to the strict bail conditions and the successful completion of that order is in stark contrast to the history that is evident from a reading of your criminal history report.
33 You have been involved with Youth Justice since December 2013, from about age 15. In the past you have not done well on various orders, including multiple Probation Orders and Youth Supervision Orders. You had been remanded in the Parkville Youth Justice Centre on multiple occasions. You readily admitted that you knew your co-offenders and your offending was motivated by financial gain. You told Ms Salter that you do not attempt to blame others for your part or to minimise your responsibility. You said that it was fear and adrenaline to escape police which resulted in both the armed robbery and also your subsequent driving behaviour.
34 You express insight and acknowledge the harm caused to the victim of the armed robbery. You say that he would have been petrified and scared and would always have fear now. You acknowledge that you have been personally responsible for impacting adversely on someone else's life. You also are aware now how your excessive speeds and manner of driving was a danger to the community and that you placed not only yourself at risk, as well as the other passengers, but other road users as well by your erratic driving.
35 At the time of the offending you were on bail for multiple offences of a not dissimilar nature, for which you received the Youth Supervision Order without conviction at the Melbourne Children’s Court on 17 November 2016. That is the order that was successfully completed during the currency of your supervised bail.
36
During the currency of that order you completed counselling with
Sophie Jenkins, psychologist. That counselling was to address your risk factors identified as “negative attitudes, anti-social and pro-violent beliefs, and these, coupled with emerging personality traits that were anti-authoritarian and somewhat manipulative, serving to increase your risk of re-offending”.
37 Ms Salter confirmed in her report that you have been motivated to change your behaviour in the past 18 months and that you have made significant steps towards changing your lifestyle by securing full-time employment.
38 You have been working with the proprietor of Nick’s Fine Touch Painting and have made significant progress in that role, such that you are now a partner in that painting business. You have also been appointed assistant coach with the Glen Eira Soccer Club, a club where your younger brother plays. You enjoy this role and have provided to the court a supporting letter which confirms your participation in that role.
39 I accept that you have successfully disassociated from your past negative peer group and networks and you are now focused on building up your own business and also being a more positive role model for your younger brother and others.
40 You are the eldest child to your mother, Tamara, and your father, Mr Hamit. You have a younger brother, who is aged 18. I note that you are of Turkish and Sri Lankan/Australian background. You come from a difficult family dynamic. Your mother’s relationship with your father is described as an abusive one. Your parents separated when you were about five. You were predominantly raised by your mum, who had issues of her own in respect to drug use. Your father did not provide a positive role model during your formative years. Both your parents had serious personal difficulties over the years, such that for a time you were left in the care of your maternal grandmother. In your mid-teen years, you were very rebellious and found it difficult to cope and began associating with the negative peers as a way to escape. Your offending started in 2014 and persisted until the current offending.
41 In stark contrast, since your release on bail, there has been no subsequent or outstanding matters that have arisen.
42 Mr Dempsey on your behalf sought a non-custodial disposition and urged the court to consider a community based disposition. He relied on many factors in mitigation that I accept.
(i) Plea of guilty
43
I accept that you entered a plea of guilty prior to trial and that your plea has real utility. You have spared the community the cost and inconvenience of a trial. No civilian witnesses, particularly the victim of the armed robbery, were
cross-examined. The plea has saved him from the ordeal of having to give evidence. You have facilitated justice and your sentence will be discounted accordingly.
(ii) Remorse
44 I accept that your plea of guilty indicates genuine remorse on your part and a willingness to accept full responsibility for your conduct.
(iii) Consequences
45 Having regard to your youth, I accept the principles of R v Mills[1] applies and are of significant importance. You are a young offender, as defined in the Sentencing Act 1991 (Vic)[2] and rehabilitation is an important factor in your sentence. Your pattern of previous offending, together with this offending, is indicative of a significant degree of immaturity on your behalf and a lack of insight and self-control, absent because of your youth and difficult family circumstances. I have taken into account your history and background.
[1][1998] 4 VR 235 [241].
[2]Sentencing Act 1991 (Vic), s 3(1).
46 You have now, through your conduct following your release on strict bail conditions, demonstrated that you are a person who is capable of exercising self-control. You now exercise control over your decision-making processes and exercise good judgment. You have insight into your offending behaviour and the effect on the victim. All of that reflects excellent prospects of rehabilitation. There is significant community interest in maintaining your progress that you have achieved whilst on bail, so as to ensure ultimately the best protection for the community and also to offer you the best hope for rehabilitation for the future.
47 I have read the testimonials provided from your business partner, Nick Athas, and also Terry Boutiadakis, the coach at the soccer club. I accept their references demonstrate that you do now have a strong work ethic and commitment to your job and that you have become a mentor and friend to the young players that you coach.
48
You are now making real efforts to better yourself physically and emotionally and have developed a strong relationship with your step-father, with whom you participate in the local gym. You have now surrounded yourself with a more pro‑social group of friends, all of which combines to ensure and provide some protection for the community, in terms of reducing your risk of
re-offending.
49 You really have seized the opportunity provided to you following your release on Supreme Court bail on stringent conditions. You have worked hard to transform your life. That has to be further encouraged and that will be through the imposition of the disposition that I have already described and that is, a sentence which combines the time served, together with a Community Correction Order with conditions.
50 On 26 May 2017, I sentenced one of your co‑accused, Michael Jeitany, with respect to a total of ten charges that included the armed robbery charge that is the subject of Charge 2 on your indictment. He was sentenced to a total effective sentence of seven years' and four months' imprisonment, with a five‑year non-parole period declared. He was aged 26. He had a significant and relevant prior criminal history. His prospects of rehabilitation were only optimistically guarded.
51 Your personal circumstances, prior criminal history and prospects for rehabilitation justify a disparity in sentence. Mr Jeitany pleaded guilty to a substantially greater number of serious charges and his offending was indicative of an ongoing course of criminal conduct of a professional nature. He was not a youthful offender and as I said before, he had a relevant and significant prior criminal history. His efforts at reform do not in any way compare to yours. Therefore, your circumstances discount that a disparity in sentence can be justified.
52 You have been assessed as suitable for a youth justice disposition, however, given all the circumstances, I do not consider that any further detention is warranted.
53 I have had regard in particular to the principles set in the Court of Appeal in Boulton v The Queen[3] insofar as Community Correction Orders and young offenders are concerned. Overall I consider that the combination sentence is the most appropriate disposition. Mr Dempsey sought that on your behalf.
[3][2014] VSCA 342 [186].
54 Mr McWilliams, on behalf of the prosecution, acknowledged the serious nature of the offending, having regard to the objective features that I have already highlighted. He acknowledged the remarkable reformation that has commenced and in all the circumstances, submitted that the court could consider the option of a combined Community Correction Order with a gaol term and/or a Youth Justice Centre order.
55 Having regard to your remarkable turnaround, I consider that a combined sentence can be utilised to continue to provide support to you with your rehabilitation whilst you remain in the community, as well as provide to you simultaneously, a degree of punishment.
56 I, on behalf of the community, formally denounce your behaviour and there is a need in sentencing you to emphasise both general and specific deterrence, moderated to a degree because of your youth and it is important also to continue to promote your rehabilitation.
57 I have taken into account in your favour that you successfully completed 18 months on bail on strict conditions, which is indicative of genuine rehabilitation and the conditions of bail have already provided a mark of punishment for this serious offending.
58 I have had regard to the principles set out in the guideline judgment of Boulton, where it stated that:
"A Community Correction Order may be suitable, even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment."
59 The court there stated that:
"The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned Community Correction Order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, whilst affording the best prospects of rehabilitation."
60 I must also have regard to the operation and effect of s.5(4C) of the Sentencing Act. That places an obligation on a sentencing judge not to impose a sentence that involves confinement, unless the purpose or purposes for which sentence imposed cannot be achieved by a Community Correction Order.
61 Overall, I have had regard to the significant efforts that you have made to address your underlying offending behaviours and your transformation following this offending and regard you as having sound prospects of rehabilitation, with a reduced likelihood of re-engaging in any further serious offending.
62 As was stated in Boulton axiomatically, prison is a sentence of last resort. As s.5(4) of the Sentencing Act makes it clear:
"Such a sentence must not be imposed unless the court considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.”
63
I have already stated that you have been assessed as suitable for a Community Correction Order. The assessment is that you are of medium risk of
re-offending, according to the level of service risk assessment tool and recommendations were made in respect to conditions.
64 I have already described to you the conditions that I propose to impose as a part of the Community Correction Order and you have consented to such an order being made.
65 You were on bail at the time of the commission of these offences. Section 16(3C) of the Sentencing Act 1991 applies. In the circumstances, I do not propose to order cumulation and so I will be directing otherwise.
66 The sentence to be imposed must reflect condemnation by the court of your appalling behaviour. It is equally important that it must be of such severity to serve as a lesson to others who might be minded to engage in this sort of offending and also to send a message to others in the community that persons who engage in such conduct should expect stern punishment.
67 This is a particularly extreme example of where there has been transformation by a young person who was otherwise heading to a life of crime. You have made great strides in your efforts to address your underlying offending behaviours and notwithstanding that, there is still a need to emphasise specific deterrence in your sentence, albeit appropriately modified.
68 I have explained to you how a Community Correction Order works and the effects of contravention and you have confirmed that you understand the effect and conditions of the order and you consent to it being made.
69 The focus of the conditions attached to your order are to punish you for the offending and to minimise the risk of re-offending by ensuring that you continue upon your current course.
70 I will now impose the formal sentences. Please stand up, Mr Hamit.
71 On Charge 1, theft; Charge 2, armed robbery; and Charge 3, conduct endangering persons; you will be convicted and sentenced to an aggregate sentence of 112 days, to be followed by a three year Community Correction Order with the conditions of supervision, offence behaviour management programs and 250 hours community work.
72 I declare that you have spent 112 days’ pre-sentence detention, attributable to this sentence and direct that that be entered into the records of the court.
73 I make the following declaration, pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, you would have been sentenced to nine months' imprisonment to follow a Community Correction Order of three years on the same terms.
74 I make both the disposal order and the forfeiture order sought.
75 Because you have been convicted of Charge 1, theft, you are subject to mandatory permit suspension or cancellation of your licence, pursuant to s.89(4) of the Sentencing Act 1991 and I will impose a period of cancellation of six months, effective from today’s date.
76 I believe that covers everything.
77 MS CAVKA: Yes, thank you, Your Honour.
78 MS VARDY: As Your Honour pleases.
79 HER HONOUR: Have we got the disposal and forfeiture orders? Have you got a forfeiture order.
80 MS CAVKA: It was only disposal, Your Honour.
81 HER HONOUR: Only disposal. All right. Well I have signed the disposal order. And I will just get you, Ms Vardy, to ask your client to carefully review the Community Correction Order and sign that.
82 MS VARDY: Yes, Your Honour.
83 HER HONOUR: Once he has done that, it can be copied and provided too, thank you.
84 MS VARDY: Thank you, Your Honour.
85 HER HONOUR: All right. There are some onuses now on you in respect to your compliance with the Community Correction Order. What I did forget to tell you when you were in the witness box is, if there are any difficulties that you are having with respect to adherence to the order, you know, if something comes up in your personal circumstances and you are not able to do the community work or attend the program, I urge you to communicate that with your Community Corrections officer. You can apply for variation. You would have to come back before me. All right?
86 OFFENDER: Yes.
87 HER HONOUR: It is all set up and it is over to you. The onus is now on you, all right? All right, well look I think I have said enough today and I hope you carry it away with you, but it is important that you adhere to this order, all right? All right, we can stand down.
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