Director of Public Prosecutions v Ibrahim
[2018] VCC 1466
•17 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01955
CR-17-02227
Indictment No. C1711096
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KASIM IBRAHIM |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 14 June 2018 and 26 July 2018 | |
DATE OF SENTENCE: | 17 September 2018 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Ibrahim | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1466 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – two charges of theft – one charge of attempted armed robbery – seven charges of armed robbery – one charge of robbery – four summary charges uplifted – possession of cannabis – unlicensed driving – failure to stop vehicle when signalled to – using an unregistered motor vehicle on a highway
Legislation Cited: Crimes Act 1958, s74(1), s75A, s321M, s75A; Drugs, Poisons and Controlled Substances Act 1981, s73; Road Safety Act 1986, s7(1)(a), s59(1)(a), s18(1)(a); Sentencing Act 1991; Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017, s58; Children, Youth and Families Act 2005.
Cases Cited:R v Mills [1998] 4 VR 235; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; R v Alashkar; R v Tayar [2007] VSCA 182; Phillips v R [2012] VSCA 140; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43
Sentence: Imprisonment, total effective sentence five years and two months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A McKenry | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr A Barker | David Barrese & Associates |
HIS HONOUR:
1 Kasim Ibrahim, on 14 June 2018, you pleaded guilty to the following offences:
CHARGE 1: That you, at Ashwood and divers other places in Victoria on 12 December 2016, stole a 2006 Honda Jazz motor vehicle bearing registration UIC 459 belonging to Shaila Ahedo.
CHARGE 2: That you, at Ashwood in Victoria on 12 December 2016, attempted to rob Manu Ravikumar of certain property, namely cash, and at the time had with you an offensive weapon, namely a hammer.
CHARGE 3: That you, at Burwood in Victoria on 12 December 2016, robbed Zeshan Younis of certain property, namely $315 cash and 356 packets of cigarettes, and at the time had with you an offensive weapon, namely a hammer.
CHARGE 4: That you, at Mount Waverley in Victoria on 12 December 2016, robbed Tamer Abdelaal of certain property, namely $627.85 cash, and at the time had with you an offensive weapon, namely a hammer.
CHARGE 5: That you, at Mount Waverley in Victoria on 12 December 2016, robbed Manpreet Kaur, Parneet Singh, Egin Augustine and Sahil of certain property, namely $150 cash, and at the time had with you an offensive weapon, namely a hammer.
CHARGE 6: That you, at Laverton North in Victoria on 12 December 2016, robbed Gloria Olaes, Imelda Michael and Ka Ho Karl Chow of certain property, namely $1,500 cash, a handbag, an Apple brand iPhone 6 mobile telephone and identity cards, and at the time had with you an offensive weapon, namely a hammer.
CHARGE 7: That you, at Elsternwick in Victoria on 12 December 2016, robbed Borislav Kaplan, Damien Laratro, Harith Abdullah, Vahul Talwar and Austin Pereira of certain property, namely $3.056 cash and four cash trays, and at the time had with you an offensive weapon, namely a hammer.
CHARGE 8: That you, at Hampton Park in Victoria on 22 December 2016, robbed Ravinder Singh and Sukhjit Singh of certain property, namely a 700-millilitre bottle of Jack Daniels brand whiskey, a one-litre bottle of Jack Daniels brand whiskey, a bottle of Folonari brand wine, a ten pack of Woodstock brand bourbon and cola cans and a ten pack of Wild Turkey brand bourbon and cola cans.
CHARGE 9: That you, at Altona Meadows and divers other places in Victoria on 8 February 2017, stole a 2014 Toyota Klugar motor vehicle bearing registration 1BX 3EG belonging to Andrea Savannah.
CHARGE 10: That you, at Altona Meadows in Victoria on 8 February 2017, robbed Jesse Pieri, Surmeet Gill and Jessickah Morrison of certain property, namely an unknown amount of cash, an Apple brand iPhone 7 mobile telephone, a wallet, a Novo brand handbag, an Apple brand iPhone 6 Plus mobile telephone and Toyota brand car keys, and at the time had with you an offensive weapon, namely a hammer.
CHARGE 11: That you, at Chelsea Heights in Victoria on 8 February 2017, robbed Jessica Norton of certain property, namely an unknown amount of cash, an Apple brand iPhone 6 Plus mobile telephone and a wallet, and at the time had with you an offensive weapon, namely a hammer.
2 The maximum penalties for each of the charges pleaded on the Indictment are:
(a) Charges 1 and 9, which involve the offence of theft, are contrary to s74(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment;
(b) Charge 2, which involves attempted armed robbery, is contrary to s75A and s321M of the Crimes Act 1958 and carries a maximum penalty of twenty years’ imprisonment;
(c) Charges 3, 4, 5, 6, 7, 10 and 11, which involve the offence of armed robbery, are contrary to s75A of the Crimes Act 1958 and carries a maximum penalty of twenty-five years’ imprisonment;
(d) Charge 8, which involves the offence of robbery, is contrary to s75 of the Crimes Act 1958 and carries a maximum penalty of fifteen years’ imprisonment.
3 The following charges were uplifted from the Melbourne Children’s Court to this Court and you agreed for the hearing of such charges in this Court. I refer to:
CHARGE 8: That you, at Noble Park on 8 February 2017, possessed a drug of dependence, namely approximately 18.98 grams of cannabis. You pleaded guilty to such offence.
Possessing cannabis is contrary to s73 of the Drugs, Poisons and Controlled Substances Act 1981 and the maximum sentence where the offence involves not more than a small quantity of cannabis, is 5 penalty units; if trafficking is excluded, a maximum of 30 penalty units or level 8 imprisonment (that is one year’s imprisonment) or alternatively, if trafficking is involved, up to 400 penalty units maximum or level 6 imprisonment (five years maximum).
CHARGE 9: That you, at Hampton Park on 19 December 2016, did drive a motor vehicle on a highway, namely Kilberry Drive, without being the holder of a driver licence or permit authorising you to drive such motor vehicle and without being exempt from holding such licence or permit under the regulations. You pleaded guilty to such offence.
Unlicensed driving is contrary to s18(1)(a) of the Road Safety Act 1986 and carries a maximum penalty of 25 penalty units or three months’ imprisonment.
CHARGE 10: That you, at Hampton Park on 19 December 2016, being the driver of a motor vehicle on a highway, did fail to stop the said motor vehicle when signalled to do so by a police officer.
Failing to stop a vehicle when signalled is contrary to s59(1)(a) of the Road Safety Act 1986 and carries a maximum penalty of 5 penalty units and a discretionary licence intervention pursuant to s28 of the Road Safety Act 1986.
CHARGE 11: That you, at Hampton Park on 19 December 2016, did use a motor vehicle on a highway, namely Kilberry Drive, with such motor vehicle not being registered as required by Part 2 of the Road Safety Act 1986 and not exempt from registration under the regulations.
The use of an unregistered motor vehicle on a highway is contrary to s7(1)(a) of the Road Safety Act 1986 and carries a maximum penalty of 25 penalty units for a first offence, 50 penalty units and a discretionary licence intervention pursuant to s28 of the Road Safety Act 1986 in respect to a second offence.
Details of your offending
4 The Prosecution has provided a document headed “Summary of Prosecution Opening Upon Plea” dated 18 May 2018. Such Summary has been marked as an exhibit (exhibit 1) and has been accepted by you and your Counsel as an appropriate representation of the offending.
5 Although paragraph 1 of such Summary alleges you were born on 14 February 1998 and were eighteen years of age at the time of the alleged offending, it was agreed during the plea that based on a determination by the Children’s Court, that you were born on 1 January 1999 and, accordingly, are presently nineteen years old.
6 You, together with others, committed five armed robberies (Charges 3, 4, 5, 6 and 7 on the Indictment), an attempted armed robbery (Charge 2 on the Indictment) and theft (Charge 1 on the Indictment) in the early hours of 12 December 2016 when you were approximately three weeks shy of your eighteenth birthday. Just over one week prior to your eighteenth birthday, you committed a robbery (Charge 8 on the Indictment) on 22 December 2016. Furthermore, on 8 February 2017, you committed a theft (Charge 9 on the Indictment) and two armed robberies (Charges 10 and 11 on the Indictment). This offending (together with the summary charges uplifted) occurred shortly after you had turned eighteen
7 In relation to Charge 2 on the Indictment (attempted armed robbery) and Charges 3, 4, 5, 6, 7, 8, 10 and 11 (all armed robberies, save for Charge 8, which involved a robbery), CCTV footage was available and shown to the Court. Footage related to Charges 2 to 8 on the Indictment was admitted and marked as exhibit 3, footage related to Charge 10 on the Indictment was admitted and marked as exhibit 6 and footage relating to Charge 11, on the Indictment was admitted and marked as exhibit 8.
8 The important matters of such Prosecution Summary are:
Charge 1 (theft of the Honda Jazz motor vehicle)
9 On 6 December 2016, at approximately 6.00pm, Shaila Ahedo returned to her Dandenong apartment to observe that she had been the victim of a burglary and, in particular, the spare keys to her black 2006 Honda Jazz hatch, registration UIC 459, were stolen (the theft of the Honda Jazz).
10 On 7 December 2016, again, at approximately 6.00pm, Ms Ahedo returned home, parked and locked her car in the driveway, and at approximately 7.30pm, she observed the vehicle had been stolen.
Charge 2 (attempted armed robbery at the 7-Eleven store in Ashwood)
11 On the evening of 11 December 2016, between 11.15pm and 11.56pm, you arranged via SMS messages to collect Maiwand Ahmadi (“Ahmadi”), one of your co-offenders.
12 At about 1.50am on 12 December 2016, you, together with Ahmadi and two others, drove into the carpark of a 7-Eleven store in Ashwood. Manu Ravikumar was working inside at the time, with the front door locked.
13 You, Ahmadi and a third offender then got out of the Honda and approached the door of the 7-Eleven where at the entry you kicked the locked front glass doors and smashed a hole in the door with a hammer. Ahmadi pushed against the locked doors but you were unable to enter the store and returned to the Honda.
14 At 1.52am, Ravikumar contacted police to report the attempted armed robbery. CCTV revealed the stolen Honda parked in the 7-Eleven car park in Ashwood, and you with two co-offenders getting out of the stolen vehicle. You were wearing a black Nike hooded jacket, grey Nike TN sneakers, a dark blue baseball cap, a gardening glove and a black/green sock over your hands. You were carrying a hammer, and had your face covered.
Charge 3 (armed robbery at the United Service Station in Burwood)
15 Ten minutes later, at about 2.00am on 12 December 2016, you, together with Ahmadi and two others, drove into the carpark of the United service station in Burwood. Zeshan Younis (“Younis”) was working inside at the time. There, you and two co-offenders got out of the stolen vehicle and went into the service station, and committed an armed robbery, taking cash and cigarettes.
16 At 2.03am on 12 December 2016, Younis contacted police to report the armed robbery at the service station. CCTV showed the stolen vehicle parked in the forecourt of the service station and you and the same two co-offenders getting out of the stolen vehicle, while a fourth offender remained in the vehicle. In particular, you wore the same clothing and carried the same hammer, smashing the locked front glass door. One of your co-accused was carrying a machete and a white distinctively patterned doona cover. Inside this service station, you, and one of your co-offenders, Ahmadi, approached Younis, brandishing what was probably an imitation firearm, and in particular, you and one of the co-offenders jumped the counter and demanded cash and cigarettes.
17 Ahmadi stood at the front counter pointing the imitation firearm at Younis, at a distance of only a couple of metres. You removed cigarettes while the third offender removed $315 in cash from the till, after which he assisted you to fill the doona with 356 packets of cigarettes to the value of $9,000.00.
18 While this occurred, Ahmadi moved to the inside of the counter and forced Younis at gunpoint, pushing him into the rear storeroom. CCTV depicts Younis kneeling on the ground, with Ahmadi standing nearby with the firearm.
19 You and your co-offenders ran from the scene with the cigarettes and cash to the stolen Honda, parked in the forecourt, and drove away.
Charges 4 and 5 at the BP Service Station adjoining Hungry Jacks fast food outlet in Mount Waverley
20 Another ten minutes later, at about 2.10am on 12 December 2016, you, together with Ahmadi and two others, drove into the carpark of the BP service station, and the adjoining Hungry Jacks fast food outlet, in Mount Waverley. At the time, Tamar Abdelaal (“Abdelaal”) was working at the BP service station, while Mamreet Kaur, Parneet Singh, Ebin Augustine and Sahil were working at Hungry Jacks, and Sarabjit Singh, a taxi driver, working for 13 Cabs, was outside.
21 Once there, you and two co-offenders got out of the Honda and went into the service station and adjoining restaurant. You, together with your co-offenders committed an armed robbery at each of the premises, taking cash, tills and lighters.
22 At 2.13am, Abdenaan Kaur, Parneet Singh, Augustine and Sahil, as well as Sarabjit Singh, contacted police to report the two armed robberies at the BP service station and Hungry Jacks in Mount Waverley. CCTV showed:
(i)the stolen Honda, UIC 459 parked in the forecourt of the BP service station containing a Hungry Jacks restaurant in Mount Waverley;
(ii) you and the same two co-offenders got out of the stolen Honda and entered the complex through the unlocked front doors;
(iii) you wore the same clothing and carried the same weapon as described previously;
(iv) inside the service station, Ahmadi moved between the BP service counter and the Hungry Jacks service counter, pointing the firearm towards staff members;
(v) you climbed the BP counter and Abdelaal immediately ran to the nearby staff room. As he attempted to shut the door, you kicked the door twice, leaving a shoe impression (identified as Nike TN Sneakers). Abdelaal locked himself in the staff room in fear;
(vi) you removed two tills from beneath the counter, placing them on the counter.
(vii) Ahmadi carried the tills, containing $627.85 cash, from the store while the you removed two boxes of Tiko lighters, valued at $200.00, placing them into a bag prior to exiting the store;
(viii) the third co-offender jumped the Hungry Jacks service counter with a machete, where staff were in the kitchen/preparation area;
(ix) Ahmadi forced a female staff member, who was present in the meals area, to enter the staff area, where the third co-offender was waiting at the till in order to access the registers, stealing $150 cash; and
(x) you and your co-offenders returned to the stolen Honda and were driven away from the scene by the fourth offender.
Charge 6 (armed robbery at a McDonalds restaurant in Laverton North)
23 Just under an hour later on 12 December 2016, at about 3.00am, Imelda Michael (“Michael”), Gloria Olaes (“Olaes”) and Ka Ho Karl Chow (“Chow”) were working at a McDonalds restaurant in Laverton North. There, you, together with Ahmadi and two others, drove into the carpark in the Honda.
24 You and two of your co-offenders got out of the Honda and went into the service station, and committed an armed robbery, taking cash and a handbag.
25 At 3.08am, Michael, Olaes and Chow contacted police to report the armed robbery. CCTV showed:
(i)the stolen Honda parked in the car park of the McDonald's restaurant in Laverton North;
(ii)the same three offenders (including you) got out of the stolen Honda and entered the store via a side door which was locked but had a faulty lock. The offenders forced the door and gained entry;
(iii)you wore the same clothing and carried the same weapon as described previously;
(iv)inside the restaurant, Ahmadi remained near the front of the restaurant, threatening staff with the firearm;
(v)you ran to the office area where Olaes was located. You had the hammer raised above your head and yelled, “Where is the money? Where is the safe? Open the safe, Open the safe!”;
(vi)you grabbed Olaes’ blue handbag containing an Apple iPhone, bank and personal cards and documents in Olaes’ name;
(vii)you then moved to the drive-through window register where you threatened Chow with the hammer, demanding that he open the drive-through register;
(viii)you removed cash and coins from the till, placing them into Olaes’ handbag;
(ix)Ahmadi stood over the staff, while holding the firearm close to them;
(x)there, you returned to the office area where you filled the bag with more coins, telling Olaes to “shut the fuck up”; and
(xi)the third offender, armed with the machete, entered the office area and collected coins, placing them in a black bag he was carrying.
26 You and your co-offenders took approximately $1,500.00 cash from the restaurant’s tills. All offenders then returned to the stolen Honda and were driven away from the scene by the fourth offender.
Charge 7 (armed robbery at a McDonalds restaurant in Elsternwick)
27 Just under another hour later, shortly before 4.00am on 12 December 2016, Borislav Kaplan (“Kaplan”), Harith Abdullah (“Abdullah”), Austin Bereira (“Bereira”), Vahul Talwar (“Talwar”) and Damien Laratro (“Laratro”) were working at McDonalds restaurant in Laverton North. There, you, together with Ahmadi and two others, drove into the carpark in the Honda.
28 You and two co-offenders got out of the Honda and went into the restaurant, and committed an armed robbery, taking cash.
29 At 3.57am, Kaplan, Abdullah, Bereira, Talwar and Laratro contacted police to report the armed robbery. CCTV showed the same three offenders entered the McDonald's restaurant in Laverton North through the unlocked doors:
(i)you wore the same clothing and carried the same weapon as described previously;
(ii)one of the offenders yelled “Everybody down”; you were carrying Olaes’ blue handbag over your shoulder;
(iii)you moved to the drive-through window register where you physically grabbed staff member Bereira, pressing the hammer against his upper chest area and saying “I know you have the keys, now open the till”. Bereira told you he required the manager and could not open the till. You became agitated and continued to demand Bereira open the till while holding the hammer against Bereira;
(iv)you moved to the office area where you were later met by the third offender;
(v)Ahmadi stood in front of the counter and pointed the firearm at staff member Borislav Kaplan, at a distance of half a metre, demanding that Kaplan open the till while the third offender accessed the till, removing cash and coins;
(vi)in the office area you and the third offender stole four cash trays, containing cash and coin bags (taking a total of $3,056);
(vii)while this was occurring, Ahmadi was out the front, and confronted staff member Talwar, who was working in the McCafe section. Ahmadi demanded she open the till. Talwar informed him she required a Manager; and
(viii)one of the staff members ran and hid in the coolroom, such was her fear of being shot or hurt by the offenders.
Charge 8 (robbery at the BottleO in Hampton Park)
30 On 22 December 2016, you and an unknown second male attended at “The Bottle-0” in Hampton Park, where Ravinder Singh was working with Sukhjit Singh.
31 The second male picked up two ten-can packs, one each of Wild Turkey, and Woodstock bourbon, carrying them to the counter area, while you took a 1-litre bottle of Jack Daniels from the shelf, joining your associate at the counter area.
32 Whilst this was occurring, Ravinder Singh positioned himself between the second male and the exit. Sukhjit Singh was behind the counter. When you arrived at the front counter area, the second male immediately ran from the store, making no attempt to pay for the alcohol.
33 Ravinder Singh immediately approached you and removed the bottle from your hand. He attempted to prevent you from leaving, as you moved towards the exit. You confronted Ravinder Singh, pushing him with two hands prior to challenging him with a bottle of “Captain Morgan” alcohol. In fear for his safety, Ravinder Singh also picked up a bottle.
34 You then moved toward Ravinder Singh, threatening him with the bottle. Ravinder Singh moved backwards while you continued to come at him. You dropped the “Captain Morgan” bottle, then took two bottles of Jack Daniels, and a bottle of Folonari wine, and exited the store without making any attempt to pay for the alcohol.
Charge 9 (the theft of the Toyota Kluger motor vehicle)
35 At approximately 9.00am on Sunday, 5 February 2017, an unknown offender stole Andrea Savannah’s silver 2014 Toyota Kluger with registration 1BX 3EG. The vehicle had been parked in her driveway in Lakeside Drive, Sandhurst. At approximately 10.45 that morning, Savannah realised her vehicle had been stolen and notified police.
Charge 10 (the armed robbery at McDonalds in Altona Meadows)
36 On 8 February 2017, at approximately 3.45am, you and three unknown co-offenders attended a McDonalds restaurant in Altona Meadows, in Savannah’s stolen Kluger.
37 There, you got out of the front passenger seat and used a hammer to smash the window next to the locked front door. McDonald's staff members, Surmeet Gill (“Gill”), Jesse Pieri (“Pieri”) and Jessickah Morrison (“Morrison”) fled to the staff office at the rear of the store and closed the door.
38 You climbed into the restaurant, carrying a hammer and a bag, and ran behind the counter to the rear staff office. You were followed into the restaurant by two male co-offenders, who also carried hammers.
39 You pulled open the door to the staff office and entered. There, you confronted Gill, Pieri and Morrison with the hammer and demanded money and mobile telephones. You took Morrison’s Apple iPhone 7 and her purse or wallet, Gill’s handbag containing her Apple iPhone 6 Plus, and her Toyota car key from the office desk.
40 Your male co-offender struck Pieri in the nose with the back of his hand, causing Pieri to suffer a bruised nose with bleeding. That male co-offender dragged Pieri by the hair to the front counter and demanded that he open the tills.
41 You followed Morrison to the drive-through register and demanded that she open the till. Morrison complied and you took cash and coins from the till and placed them in the bag he was carrying.
42 You again confronted Morrison at the front counter and demanded that she unlock her iPhone for you and turn off the iCloud password. Morrison unlocked the iPhone with the fingerprint sensor but was unable to recall the iCloud password.
43 You ran from the restaurant carrying the bag with cash, Morrison’s Apple iPhone 7 and Gill’s handbag containing the Apple iPhone 6 Plus. You and male co-offenders returned to the stolen Kluger and were driven from the scene by an unidentified fourth offender.
44 Police were then called. An unknown amount of cash was taken, along with a wallet, handbag, Toyota car keys, and two Apple mobile telephones, being an iPhone 6 Plus and an iPhone 7.
Charge 11 (armed robbery at the Subway restaurant in Chelsea Heights)
45 At approximately 5.20am on 8 February 2017, you and a male co-offender attended the Subway restaurant at 1 Piper Drive, Chelsea Heights in Savannah’s stolen Kluger. The outlet was closed and the front door locked. The duty manager, Jessica Norton (“Norton”), was alone and completing administrative work at the front counter.
46 You began to smash the front glass door with a hammer and yelled for Norton to open the door. Norton ran towards the rear of the store as the glass door shattered and you entered the store carrying a hammer. You followed Norton to the rear of the store and threatened her with the hammer. You demanded that Norton open the safe. You were followed into the store by a male co-offender who also carried a hammer.
47 You and your co-offender took cash from the safe and the contents of the till. You and your co-offender took Norton’s rose gold Apple iPhone 6S Plus and demanded that she go out to her vehicle to retrieve her purse. You and your male co-offender accompanied Norton to her vehicle and took her purse and handbag. You demanded that she lie on the ground until you had left. The total value of the property taken was $3,465.
48 You and your co-accused were driven from the scene by a co-offender in the stolen Kluger. Norton phoned triple zero to report the incident to police, who attended the scene.
The summary offences
49 On 19 December 2016, at approximately 12.56am, police members observed you riding a “monkey bike” motorcycle on Kilberry Drive, Hampton Park. Police members activated their lights to intercept the motorcycle. You then turned into Templar Avenue, attempting to evade police at the bend of Templer Avenue. You hit a large pothole, causing you to fall off the motorcycle.
50 You then jumped the back fence at 22 Templer Avenue, Hampton Park, leaving the monkey bike at the scene. As you ran from the scene, you dropped an Apple iPhone 6, which led to your identification. (Related summary Charges 9, 10 and 11 - Unlicensed driving, failing to stop vehicle when signalled, and use unregistered motor vehicle on a highway).
Your arrest
51 On 8 February 2017, you were arrested in Noble Park, and later interviewed by police at Box Hill Police Station. You answered “no comment” to police questions and was remanded in custody, where you have remained to this date. I was informed that as at 26 July 2018, you have spent 583 days in custody by way of pre-sentence detention.
52 On the day of your arrest, a search warrant was executed at 3 Reark Avenue, Noble Park, where was found your multi-coloured striped satchel in a bedroom at that address. The satchel contained a clear plastic zip-lock bag containing fourteen smaller skull-signed zip-lock bags containing cannabis weighing 18.98 grams (related Summary Charge 8 – possess cannabis). Counsel for the prosecution sought a forfeiture/disposal order and a forensic sample order.
Your criminal record
53 Your criminal history report dated 8 May 2018 was tendered (see exhibit 2). I note the following:
(a) on 1 April 2015, at the Melbourne Children’s Court, you were found guilty of criminal damage, theft from a shop, robbery, resisting police, and committing an indictable offence whilst on bail, and were sentenced, without conviction, to six months’ probation to 30 September 2015;
(b) on 21 May 2015, at the Dandenong Children’s Court, you were found guilty of failing to answer bail and intentionally damaging property and were sentenced, without conviction, to a good behaviour bond in the amount of $100, and the matter adjourned to 21 November 2015. A special condition was to apologise to the family for the damage caused;
(c) on 17 July 2015, at the Dandenong Children’s Court, you were found guilty of theft of a motor vehicle, shop theft, and committing an indictable offence while on bail and, without conviction, you were released upon entering a good behaviour bond in the sum of $100, and the matter adjourned to 15 July 2016;
(d) on 4 April 2016, at the Dandenong Children’s Court, you were found guilty of handling and receiving or disposing of stolen goods, intentionally damaging property, theft, throw a missile to danger a person, assault by kicking, intentionally destroying property, affray (common law), committing an indictable offence whilst on bail, contravening a condition of bail, possession of cannabis, theft of a motor vehicle, and sentenced without conviction to a Youth Supervision Order for a period of nine months to 3 January 2017. Furthermore, in relation to your breach of the good behaviour bond in respect to the offending on 17 July 2015, you were sentenced, without conviction, to the same Youth Supervision Order;
(e) on 24 June 2016, at the Dandenong Children’s Court, you were found guilty of theft of a motor vehicle, dealing with property suspected of being proceeds of crime, unlawful assault, theft from a shop, using a false name when requested, stating a false address when requested and contravening a conduct condition of bail. You were sentenced, without conviction, to be released on a Youth Supervision Order for a period of twelve months to 23 June 2017. It is recorded that you spent fifty four days on remand prior to this sentence.
Also on that day, you were found guilty of breaching the Youth Supervision Order made on 4 April 2016 (no doubt as a result of the aforementioned offences) and, without conviction, you were sentenced to a confirmation of the Supervision Order to 3 January 2017.
Victim Impact Statements
54 Counsel for the Prosecution tendered the following Victim Impact Statements:
(a) Victim Impact Statement of Younis declared on 7 June 2018 which was read to the Court by the Prosecutor (pertaining to Charge 3 – see exhibit 4);
(b) Victim Impact Statement of Abdelaal declared on 28 May 2018 which was tendered by counsel for the Prosecution (pertaining to Charges 4 to 5 – see exhibit 9);
(c) Victim Impact Statement of Olaes declared on 26 May 2018 which was read to the Court by the Prosecutor (pertaining to Charge 6 – see exhibit 5);
(d) Victim Impact Statement of Chow declared on 1 June 2018 which was tendered by counsel for the Prosecution (Charge 6 – see exhibit 10);
(e) Victim Impact Statement of Kaplan declared on 12 June 2018 which was tendered by counsel for the Prosecution (pertaining to Charge 7 – see exhibit 11);
(f) Victim Impact Statement of Morrison declared on 28 May 2018 which was read to the Court by Ms Morrison (pertaining to Charge 10 – see exhibit 7);
(g) Victim Impact Statement of Norton declared on 11 June 2018 which was tendered by counsel for the Prosecution (pertaining to Charge 11 – see exhibit 12).
55 I have read all the Victim Impact Statements. A common theme through many of those statements is that following your offending, many people had periods – and sometimes long periods – of being unable to sleep, difficulties working at night, anxiety, with even dealing with customers (which was part of their job) and, in some cases, being unable to work for various periods of time.
56 Some of the Victim Impact Statements refer to the fear experienced by those victims who were confronted with your offending and, in particular, your use of a hammer.
Your educational and general background
57 Your counsel tendered the following material:
(a) what was referred to as “Defence Submissions” (exhibit “A”);
(b) the psychological report of the consulting clinical and forensic psychologist, Mr Jeffrey Cummins, dated 14 May 2018 (exhibit “B”).
58 On the basis of that material and various other submissions by your counsel, I note the following:
· You were born in the Sudan and have a vague memory, according to Mr Cummins, of escaping the civil war in Sudan at around the age of three or four and residing with your family in a refugee camp in Egypt before emigrating to Australia at the age of five.
· You stated to Mr Cummins that you have a limited memory of witnessing some violence, including shootings and death in the Sudan, and in particular, stated:
“I remember Just bits and pieces. I witnessed some uncles and family relatives being shot and killed in the Sudan.”
· Although not entirely clear, you would appear to have four siblings – an older sister, a younger sister, and two brothers who are the youngest in the family. You informed Mr Cummins that although your parents have never separated, your mother has been living in the Sudan since 2016 with your now twelve-year-old sister and brothers, now aged nine and four. Seemingly, they were taken there by your mother to appreciate the culture “back home”. I was informed by your counsel that your mother recently returned from Sudan with the rest of the family and although your father has attended Court on a number of occasions to assist you, he and your mother were working this day; however, your elder sister has been in Court throughout your plea hearings.
· In Australia, you attended the Noble Park English Language School and thereafter, the Dandenong North Primary School, moving on to the Hampton Park Primary School and then to the River Gum Primary School in Hampton Park.
· When you were in the equivalent of Year 7 at Hampton Park Senior School, the whole family relocated to the Sudan and although some of the family only remained there for three months, you were there for one year, during which you had some limited schooling. You apparently told Mr Cummins that you remained in the Sudan for this year because you were already getting into trouble here in Melbourne.
· Upon returning to Melbourne from the Sudan at the commencement of Year 8, you attended the Dandenong High School, where you remained until passing Year 9 but was then expelled in Year 10 because you had missed multiple classes. Then, via Skill Invest in Dandenong, you undertook a pre-apprenticeship carpentry course and stated that you nearly completed that course.
· You then lived with an uncle in Sydney for approximately three months, during which time – approximately 2016 – you worked in the construction industry. Mr Cummins noted that you stated that you enjoyed working in the construction industry and you wanted to obtain a carpentry apprenticeship so that you eventually worked as a construction labourer. Other than that work, you have had no other paid work.
· Your father lives in Hampton Park and currently living with him is your older sister and her husband. Your father works as a local truck driver and, according to you, has never been in trouble with the law and has no mental health problem. You reported an “up and down” relationship with your father, and stated that you have had anger problems from when you were a child. You also commented that you have a good relationship with your mother, who has always been involved in home duties.
· Mr Cummins obtained a history that you had never been subject to any serious physical domestic violence from either of your parents (although you have sometimes been physically disciplined) and that you had never been sexually abused.
· You informed Mr Cummins that over the past two years leading up to your arrest, you had been using methylamphetamine, and also developed a habit of playing the “pokies” and believe that over time, you did develop a gambling problem.
· You also informed Mr Cummins that you have never fathered any children, never been married and never lived with a partner. You did say that for a period of twelve months prior to relocating to Sydney you did date a woman of Italian-Mauritian background of a similar age to you. On moving to Sydney contact ceased and since the age of approximately sixteen you have been single.
· When at liberty you smoke cigarettes, and also drink alcohol, but according to you alcohol has never been a problem. You started experimenting with cannabis at the age of twelve in Grade 6, and from the age of fifteen onwards you were a daily smoker of cannabis and was definitely addicted, and sometimes smoked up to between a quarter and half an ounce of cannabis daily. You smoked the cannabis in a bong and said it helped you sleep and relax, although you did admit to Mr Cummins that smoking a large amount of cannabis prompted you to become “paranoid”. You also informed Mr Cummins that you had experimented with cocaine and ecstasy and commenced experimenting with methamphetamine (“Ice”) at the age of sixteen. You have never received any treatment for drugs, and also informed Mr Cummins that since being in custody you have attended several drug courses, and also courses in managing emotions and managing anger.
· When queried by Mr Cummins as to whether you had ever participate in a managed anger program, you said you had not, and then informed Mr Cummins that when you were at Dandenong High School you saw a psychologist or psychiatrist frequently, and often weekly, over a twelve-month period. You stated that the focus of that counselling was to do with your anger.
The evidence of Mr Jeffrey Cummins
59 When queried by Mr Cummins as to what motivated your offending, you apparently responded:
“… I’d say drugs. When I smoke weed I tend to kick back, but when I have Ice I make silly choices. With some of this offending I couldn’t remember I'd even done it, but then I was shown a CD which reminded me of some of what I’d done. I was younger when I did all of this. At that time I was using the Ice heavily and it was getting to me. I sometimes think about the victims and I know they'd be traumatised by what we did. I suppose really we were after money so we could get more drugs.”
60 Mr Cummins noted that at the time of the offending, and currently, you appreciated what you were doing was wrong. Apparently you informed Mr Cummins that at the time of your offending, you were in what you described as an “Ice induced haze”.
61 You also informed Mr Cummins that you needed help in relation to your dependency on cannabis and Ice, and also in relation to your anger, and that you were motivated to receive offence-specific treatment.
62 You also informed Mr Cummins that you hoped you will be sentenced to a Youth Detention Centre as opposed to adult custody.
63 In respect to a mental state examination, Mr Cummins noted that you looked relatively immature and spoke in a relatively immature manner, and estimated your IQ was in the below average range. Mr Cummins considered that at interview, you presented as being moderately depressed and mildly anxious. You informed Mr Cummins that you sometimes have flashbacks about your early life in Sudan and in Egypt although, on your account, your memories were very vague.
64 Mr Cummins expressed the opinion that although he could not exclude the possibility of a trauma-related diagnosis such as an Adjustment Disorder or Post-Traumatic Stress Disorder, he ultimately expressed the opinion that, based on the comments made by you at interview, an appropriate diagnosis would be Oppositional Defiant Disorder. Unfortunately, Mr Cummins does not explain in his report what such condition involves. Your counsel informed me from the Bar Table that he had gone to a website known as “Better Health” which is a Victorian website and therein the diagnosis “Oppositional Defiant Disorder” was defined to mean a childhood behavioural problem characterised by constant disobedience and hostility. Later in the site, your counsel informed me it was stated “that early intervention and treatment is important since children with untreated Oppositional Defiant Disorder may continue to be difficult and antisocial into their adult years”.
65 Again, Mr Cummins noted that you readily acknowledged you had a problem with anger and he assessed your risk of re-committing a further offence of violence as being “moderate”, such assessment based on the current Best Practice Assessment Tool, namely the HCR-20.
66 In particular, Mr Cummins also concluded:
“In my opinion his dysfunctional upbringing and his admitted chronic problem with anger is relevant in terms of him being sentenced to a Youth Detention Centre, where he would receive additional assistance and much more relevant assistance than what would be typically offered within an adult prison setting.
In my opinion Mr Ibrahim presented as a relatively immature 19 year old and as someone who I assessed as being easily led. Under these circumstances, it is again my opinion that being sentenced to a Youth Detention Centre would be more appropriate for this young man's ongoing rehabilitation, Given his history, I would also expect that an adult prison sentence would weigh more heavily on him than it would on a person who had not had his dysfunctional upbringing. Further, given his dysfunctional upbringing, it is my opinion there is a serious risk that imprisonment would have a significant adverse effect on his mental health. In my opinion he requires intensive mental health treatment to assist him to make sense of what he regards as his dysfunctional upbringing.”
Mitigating circumstances relied on by your counsel
67 Your counsel submitted that your offending should be characterised as “serious” and has had an impact on multiple victims. He also submitted that you played an active role in the robberies, which involved premeditation and planning and also displayed a level of sophistication, including the use of disguises and stolen vehicles. In particular, the armed robberies involved you using a hammer to break doors, but also to menace your various victims, although, of course, it is noted that you did not cause any physical injuries to any of the victims.
68 Your counsel submitted that the only appropriate disposition on sentence is either a term of detention (within the Youth Justice system) or a period of imprisonment. Your counsel submitted that in all the circumstances, a term of detention in a Youth Justice Centre would be an appropriate disposition.
69 Reference was made to s32(1) of the Sentencing Act 1991, which states:
“(1)Subject to subsections (2A) (2B), (2C) and (2D), if a sentence involving confinement is justified in respect of a young offender … [defined to be an offender who at the time of being sentenced is under the age of twenty one years] a court may make a youth justice centre order or a youth residential centre order if it has received a pre-sentence report and—
(a)it believes that there are reasonable prospects for the rehabilitation of the young offender; or
(b)it believes that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.”
70 It was submitted by your counsel the following matters are relevant in mitigation of sentence:
(a)That you have pleaded guilty to all of the offences. In particular, your counsel highlighted that there was an offer of pleas of guilty at the earliest opportunity in relation to a number of charges on the Indictment (Charges 8, 9, 10 and 11) and offers to resolve other charges commenced prior to any committal proceedings, and negotiations continued until they were resolved. Resolution of all matters occurred soon after the matter proceeded to a contested committal.
The informants were the only witnesses cross-examined at the contested committal and none of the victims were required to give evidence;
(b)Your pleas of guilty are signs of remorse and, indeed, your comments to Mr Cummins after viewing some of the CCTV footage would suggest that you have some appreciation of the trauma experienced by the victims of your offending;
(c)While on remand, you have engaged in some courses towards rehabilitation, including a mental health certificate. Your counsel submitted, presumably on your instructions, that this involved eight sessions of three hours each over four weeks. Furthermore, as you acknowledged to Mr Cummins, you need assistance in relation to substance abuse and anger management and that you are ready to seek out help;
(d)You are presently nineteen years of age and are clearly a “young offender” within the meaning of the Sentencing Act 1991. In such circumstances, rehabilitation is of paramount importance and reference was made to the well-known decision of R v Mills [1998] 4 VR 235;
(e)So-called Principles 2, 5 and 6 enunciated in R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 have application. In this respect, I refer to paragraph [32] of that judgment, wherein the Court of Appeal (consisting of Maxwell P, Buchanan and Vincent JJA) stated:
“Impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing in at least the following six ways:
1…
2 The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3…
4…
5 The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6 Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.”
Your counsel submitted that, given the nature of your condition, a sentence involving youth detention would give rise to more chances in assisting with treatment for the condition of Oppositional Defiant Disorder. Furthermore, based on the evidence of Mr Cummins, any sentence of imprisonment – rather than youth detention – will weigh more heavily on you than on a person who did not have such a dysfunctional upbringing and, furthermore, given such dysfunctional upbringing, there was a serious risk that imprisonment would have a significant adverse effect on your mental health;
(f)Your counsel submitted that general deterrence is an important principle in formulating an appropriate sentence, but specific deterrence, although relevant, should be mitigated, given your youth. Your counsel also submitted that just punishment is an important principle in this matter. In particular, he submitted that rehabilitation is important given:
(i) your age;
(ii)your family support, being the existence of your father, together with stable accommodation through your family;
(iii) remorse shown, and the plea of guilty; and
(iv) your mental health difficulties;
(g)Your counsel also made reference to the opinion of Mr Cummins that you are someone who was easily led as well as being relatively immature.
71 In particular, your counsel submitted to the Court that if you were to be detained in a Youth Justice Centre, the Court has the power to sentence you to a period of detention up to four years as a result of recent amendments to s32(3) of the Sentencing Act 1991 – prior to the amendment the maximum period for which the County Court could detain a youth in a Youth Justice Centre was three years.
72 Your counsel acknowledged that if an order was made for you to be detained in a Youth Justice Centre, the Court has no power to stipulate a non-parole period. Bearing in mind the length of your pre-sentence detention, any order that you be detained in a Youth Justice Centre may result in you being released after a relatively short time in detention.
73 Your counsel submitted that the length of period of detention in a Youth Justice Centre would be longer if the Court did not declare the presentence detention pursuant to s18 of the Sentencing Act 1991. S18(1) of the Sentencing Act 1991 directs that such pre-sentence detention be reckoned as a period of imprisonment served under the sentence, unless the Court “otherwise determines”. This initial position was then diluted when it was further submitted that in coming to a view as to the sentence, the Court would be required to “take account” which would otherwise be “dead time” if no declaration is made.
The response of the Prosecution
74 Counsel for the Prosecution made the following general submissions:
(a) In respect to the opinion of Mr Cummins that you are “easily led”, counsel for the Prosecution referred to the video footage in relation to a number of the robberies which indicated that you were the “first in” on every occasion. Furthermore, reference was made to the video taken in relation to Charge 8, which demonstrated that when you were approached by one of the occupants – Ravinder Singh – who attempted to prevent you from leaving, you then proceeded to push him with two hands before challenging him with a bottle of alcohol. It was submitted that you were prepared to become violent;
(b) In relation to the disposition, and stressing it would be inappropriate for him to mention lengths of sentences, counsel for the Prosecution submitted that bearing in mind your period on remand, any detention in a Youth Justice Centre would be “brief”. In this respect, it was submitted by counsel for the Prosecution that he had “difficulty” with the submission made by your Counsel that there be no declaration of time served under s18 of the Sentencing Act 1991 as such would only be to artificially achieve a longer period in a Youth Detention Centre than otherwise;
(c) Counsel for the Prosecution submitted that the subject offending – particularly the armed robberies – were examples of “serious offending”. Furthermore, when one looks at the prior offending, it can be seen the offending has got worse and worse over time, culminating in the subject offending.
75 Ultimately, counsel for the Prosecution indicated that his instructions were that you should be sentenced to a period of imprisonment rather than a period of detention in a Youth Justice Centre, given the extent and nature of the offending – particularly the armed robberies.
76 Many of your counsel’s submissions as to the appropriateness of detention in a Youth Justice Centre were overtaken by two matters:
(a) Notwithstanding assurance from your counsel that s32(3)(b) of the Sentencing Act 1991 applies – that is, prescribing a maximum period of four years – subsequent investigation proves this to be wrong. Section 32(3)(b) of the Sentencing Act 1991 was amended by s58 of the Children and Justice Legislation Amendment (Youth Justice Reform) Act 2017 (Act number 43 of 2017). Section 58 provided that in s32(3)(b) of the Sentencing Act 1991 for “three years” there be substituted “four years”. Act number 43 of 2017 was assented to on 26 September 2017 and provided that s58 (amongst other sections) was to commence from 30 November 2017.
In particular, the application of the amended s32(3)(b) of the Sentencing Act 1991 was not retrospective. In this respect, I refer to s161 of the Sentencing Act 1991 which was inserted by s64 of Act number 43 of 2017. In particular, s161(2) of the Sentencing Act 1991 provides, inter alia, that the amendments made by s58 “apply respectively to the sentencing of an offender, or the hearing of a charge, for an offence alleged to have been committed on or after the commencement of that part”.
Accordingly, in respect to detention in a Youth Justice Centre for your offending, this Court is limited to three years’ detention.
(b) On 14 June 2018, the Court did order that a pre-sentence report as to your suitability for a Youth Justice Centre order be prepared. The Court received such report on 25 July 2018. The writer of the report was team leader, Ms Jo Linard. It would appear that the report was not formally tendered at the subsequent hearing on 26 July 2018 – I will have the report tendered and marked as exhibit “C”.
In that report, there are details set out under headings “Offending Details”, “Offending Analysis”, “Attitude Towards Offending Behaviour”, “Previous Court Sentences Supervised by Secretary”, “Involvement in the Justice System”, “Participation and Motivation”, “Family Constellation” and “Family Circumstances”, “Health”, “Intellectual Disability”, “Education and Employment”, and ultimately, an assessment was made as to the suitability of you being involved with the Youth Justice System. In particular, Ms Linard stated:
“The County Court request provided to Youth Justice to assess Mr Ibrahim’s suitability for a YJC Order, indicates that the Court considers his birthdate to be 1 January 1999. Should this be his recognised birthdate, Mr Ibrahim was 17 years of age when he committed the offences prior to January 2017. This would result in Mr Ibrahim’s matters needing to be heard in the Children’s Court, pursuant to the Children, Youth and Families Act, 2005 (CYFA, 2005).
In relation to the offences committed when Mr Ibrahim was 18 years of age (9, 10 and 11 – Informant Gurry) the following YJC suitability assessment has been completed.
In consultation with relevant authorities from the Youth Justice program, it has assessed that Mr Ibrahim is not suitable for detention in a Youth Justice facility. The reasoning underpinning this assessment is as follows.
Section 32 (1) (b) of the Sentencing Act 1991, assesses the young person[’]s impressionability, immaturity or likelihood of being subjected to undesirable influences in adult prison. Mr Ibrahim does not meet the criteria in this section to undertake a custodial sentence within a Youth Justice facility, as he has spent the last 18 months in adult custody and although he has been involved in a few minor incidents, he has not been subject to ongoing assaults or incidents that highlight his vulnerability or impressionability.
Regarding Section 32 (1) (a) of the Sentencing Act, 1991, this section assesses the young person[’]s prospects of rehabilitation. Mr Ibrahim has been assessed as having low prospects of rehabilitation and therefore is not suitable to undertake a custodial sentence with a Youth Justice custodial facility.
However, this recommendation acknowledges Mr Ibrahim’s age (19) and likelihood that with maturity and personal development, he will have some prospects of rehabilitation that could be the subject of planning and intervention in the adult correctional system.
In relation to the matters that occurred whilst Mr Ibrahim was still a child, charges 1-8 as the charges were commissioned in December 2016. It is noted that if these matters are remitted to the Children’s Court jurisdiction, and he is found guilty of these offences, he would be eligible to undertake a Youth Justice Centre Order (YJCO) given the commission dates and his status of being a child at the time of the offending.”
77 I accept the opinion of Ms Linard, given her experience, and the various factors taken into account whether s32(1) of the Sentencing Act 1991 has application.
78 Such report prompted the Court to make enquiries of the parties as to the comments of Ms Linard in relation to Charges 1 to 8 on the Indictment, which occurred before you turned eighteen. The Court was subsequently informed that there had been a ruling by Children’s Magistrate Court Magistrate Gibson on 3 August 2017 wherein he upheld an application by the Prosecution that pursuant to s356(3)(b) of the Children, Youth and Families Act (Vic) 2005, that the offending which occurred prior to your eighteenth birthday – that is to say the offending on 12 December 2016 and 22 December 2016 give rise to exceptional circumstances and should not be determined summarily.
79 Unfortunately, Ms Linard was also not made aware of this earlier Ruling. She gave evidence before the Court and was questioned by your counsel (see Transcript 22-29). In particular, she gave evidence that in the absence of the Order made by the Children’s Magistrate, Charges 1 to 8 would normally be heard in the Children’s Court, given your age at the time of that offending.
80 When Ms Linard was made aware that they had been uplifted to this Court, given the exceptional circumstances found by the Magistrate, she accepted the conclusions drawn expressed in her report would be no different if she had been considering all of the charges, including Charges 1 to 8.
81 Accordingly, I do accept that all charges are appropriately before this Court.
82 At the hearing on 25 July 2018, your counsel further submitted that notwithstanding the Ruling made by Children’s Magistrate Gibson on 3 August 2017 and the report and the viva voce evidence of Ms Linard, the Court has the power and should, pursuant to s168 of the Criminal Procedure Act, transfer Charges 1 to 8 to the Children’s Court for sentence. Section 168, of course, must be read with s168A of the Act. It was submitted by your counsel that one of the reasons those charges should be transferred back to the Children’s Court because at least, so it was submitted, there was now a greater power in that Court to sentence you to a greater period of detention. Seemingly, what was contemplated by that submission is that eight charges returned to the Magistrates’ Court, with the balance to be heard by this Court.
83 Leaving aside the impracticability of such a course, I am of the view that taking all matters into account, it is appropriate that this Court exercise its clear jurisdiction to sentence you in relation to all of the charges.
Conclusion
84 In the early hours of 12 December 2016, you and three co-offenders went on what can only be referred to as a violent rampage, committing an attempted armed robbery and five armed robberies. All such offending was undertaken with the use of a vehicle which had been stolen earlier. At the time of that offending you were approximately three weeks shy of your eighteenth birthday.
85 Later, on 22 December 2016, you and a co-offender robbed a bottle shop, again, when you were approximately ten days shy of your eighteenth birthday.
86 Again, in the early hours of 8 February 2017, you and three unknown offenders committed two further armed robberies. Such offending was undertaken with the use of another vehicle stolen by you a few days earlier. At the time of this offending you were eighteen, your birthday being on 1 January 2017.
87 CCTV footage was available in relation to the attempted armed robbery on 12 December 2016 (Charge 2 on the Indictment), all the armed robberies on both 12 December 2016 and 8 February 2017 (Charges 3, 4, 5, 6, 7, 10 and 11 on the Indictment) and the robbery at the Bottle O on 22 December 2016 (Charge 8 on the Indictment). Such footage depicts, very clearly, the violent and frightening nature of such offending and, in particular, the role which you played – for example:
(a)in the footage involving the attempted armed robbery (Charge 2 on the Indictment) you were shown initially kicking the locked front glass door of the 7-Eleven store and then smashing a hole in the door with a hammer;
(b)in the footage involving the subsequent armed robberies (Charges 3, 4, 5, 6, 7, 10 and 11 on the Indictment), you were shown to be brandishing the hammer which was used on several occasions to smash the front glass doors to gain entry (Charges 3, 10 and 11) and generally using the hammer in a threatening and menacing way;
(c)on the footage involving the robbery of the Bottle O on 22 December 2016 (Charge 8 on the Indictment), you were shown to be pushing one of the occupants in the shop and then threatening him with a bottle.
However, at no time did you strike any occupant with the hammer or any other object.
88 Your counsel submitted, correctly, in my view, that your offending should be characterised as “serious” and that you had an active role in the robberies. In particular, after viewing the CCTV footage, you tended to be “first in”, leading your co-offenders at the various places which were robbed.
89 Your counsel further submitted, also correctly in my view, that the robberies did involve premeditation and planning, together with a level of sophistication, particularly including the use of disguises and stolen vehicles.
90 Your counsel also accepted that your offending had an impact on multiple victims – again, this is made clear by reading the various Victim Impact Statements, which set out the significant consequences suffered by some of the victims of your crimes.
91 You informed Mr Cummins that you believe you were in a “Ice haze” at the times you were offending. It is difficult to determine whether this is an accurate or honest assessment given your very active roles during the various robberies. All the robberies were in company with others who were, on various occasions, armed with a machete and hammers, and one particular co-offender, Ahmadi, brandishing an imitation pistol.
92 All the robberies were made against so-called “soft targets” and according to Mr Cummins, when you were queried about what motivated your offending, you apparently responded “I’d say drugs”.
93 I refer to the Court of Appeal decision of R v Alashkar; R v Tayar [2007] VSCA 182, wherein the Court of Appeal stated at paragraph [36] that:
“There is no need to recite any of the many statements by this Court concerning the gravity with which the robbery of persons who are sometimes termed ‘soft targets’ is viewed. It is both a reality and a necessity in our community for many people to work in isolated situations that render them vulnerable to criminal attack. Taxi drivers, service station and convenience store attendants, and person operating small family businesses, such as milk bars, spring readily to mind in this context. They must be able to rely upon the full protection of the law and those who contemplate exploiting their vulnerability in the fashion of the appellant, must anticipate that the consequences for them may very well be the imposition of a substantial gaol term … .”
(Footnotes omitted)
94 Although you have no prior convictions, you have had findings of guilt made against you in relation to theft of a motor vehicle, on several occasions, shop theft on several occasions, unlawful assault, affray and possession of cannabis.
95 In particular, on 26 June 2016 – approximately six months’ prior to the commencement of the subject offending – you were found guilty of theft of a motor vehicle, unlawful assault and attempted theft from a shop. At that time, you were sentenced, without conviction, to a youth supervision order for a period of twelve months to 23 June 2017.
96 The offending breaches that supervision order. Also on 26 June 2016, you were found to have breached an earlier youth supervision order made on 4 April 2016 in respect of offences including shop theft, affray, possession of cannabis and theft of a motor vehicle.
97 In mitigation, I do find that your pleas of guilty were early in the context of the negotiations between the Crown and yourself. Also, your pleas of guilty have had significant utilitarian effect on saving the Court the time and cost of a trial as is made clear by Phillips v R [2012] VSCA 140 at paragraph [36]. In particular, your pleas of guilty obviate the need for your victims to give evidence at a trial and to have them relive the circumstances of your offending in a public forum.
98 It is always a question for a sentencing judge whether remorse or a willingness to facilitate the course of justice, and an acceptance of responsibility, are to be inferred from pleas of guilty (see again Phillips v R (op cit) at paragraph [96]).
99 I do consider the evidence against you in this matter to be quite strong, but do accept that the pleas of guilty is some evidence of your remorse. Furthermore, your counsel referred to various comments made by you and recorded by Mr Cummins, which were indicative, so it was submitted, of remorse, but essentially I doubt that you have any great insight of the nature and extent and consequences of your offending – particularly in relation to the robberies.
100 I do note that, again, according to Mr Cummins, you have attended several courses in managing emotions and anger. Furthermore, you informed Mr Cummins that you did need “help” in relation to your dependency on cannabis and Ice, and also in relation to your anger, and that you were motivated to receive offence-specific treatment. I take all this into account.
101 I also take into account the evidence of Mr Cummins, who proffered the opinion that you suffer from the psychological condition of “Oppositional Defiant Disorder”. Such opinion was not challenged. Mr Cummins expressed the opinion that because of your “dysfunctional upbringing” that you would:
(a)find a sentence of imprisonment to weigh more heavily on you than a person who has not had such dysfunctional upbringing; and
(b)there was a serious risk that imprisonment would have a significant adverse effect on your mental health.
102 I accept that given the context of such opinions, Mr Cummins was referring to your impaired mental health. In such instances, Principles 5 and 6 of R v Verdins; R v Buckley; R v Vo (op cit) are enlivened.
103 I take some account of these matters, but also note that you have been on remand for ___ days. In her report, Ms Linard notes that, from her enquiries, that you have settled into prison life and also notes that you at times feel anxious and depressed.
104 Your counsel submitted, correctly in my view, that probably the most significant mitigatory factor to take account of, is your age at the time of offending (just before and just after your eighteenth birthday). She referred to the well-known decision of R v Mills (op cit) which established that the rehabilitation of a young offender is the paramount consideration in determining an appropriate sentence. I also refer to another well-known Court of Appeal decision of Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43, where in paragraphs [34]-[35], the Court of Appeal stated:
“There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. Firstly, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, Judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
…
Secondly, courts ‘recognize the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’.”
(Footnotes omitted)
105 I also refer to paragraph [38] of that decision, wherein the Court of Appeal noted that in the same year as R v Mills (op cit) was decided, the Court recognised that there would be cases in which factors such as youth and rehabilitation would take a “back seat” to the other sentencing decisions. Perhaps the ultimate position is best summarised at paragraph [44] of Azzopardi, where the Court of Appeal state:
“The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”
(Footnotes omitted.)
106 Notwithstanding your past offending and the severity of the subject offending, I do consider there is scope in time for rehabilitation. In this respect, I have already noted your willingness to undergo courses in prison and, indeed, it would appear that you have family support, at least with your father, older sister and your mother, when she is here. Furthermore, you have had some limited experience in the construction industry and have indicated you would like to work in that industry.
107 However, I must stress to you that the nature of your offending – particularly in relation to the robberies – is objectively serious.
108 Based on the material I have reviewed, I consider that at the present time, your prospects of rehabilitation are guarded. Of course, over time and with increased maturity, it is to be hoped that your prospects of rehabilitation will improve. Both your counsel and counsel for the prosecution submitted that the only appropriate disposition involves incarceration – the difference being, your counsel urged the Court to detain you in a Youth Justice Centre, whereas the Crown urged a mainstream prison sentence.
109 I am going to convict you of all of the offences and all the periods in relation to each of the charges on the Indictment.
110 I do point out the sentences in relation to Charges 4 and 5 will be moderated, considering that the robberies occurred in the same building at the same time, being the BP service station which enclosed the Hungry Jacks food outlet.
111 I consider that your youth is a significant factor in the determination of an appropriate sentence, however, considering the seriousness of the offending, I also consider that general deterrence, specific deterrence and just punishment, denunciation by the Court of this type of conduct, and the protection of the community, are all relevant to varying degrees in determining an appropriate sentence. In all the circumstances I intend to lessen what would otherwise be your normal non-parole period. In the event that you are granted parole by the Parole Board, the Board will have greater time to supervise your rehabilitation back into the community.
112 Furthermore, given the number of offences and the significant maximum sentences, particularly in relation to the armed robberies, the principles of totality are particularly relevant, bearing in mind your youth.
113 In relation to the summary matters, I intend to:
(a)fine you in relation to the possession of cannabis. Although the cannabis was found in a number of zip-lock bags, there is no suggestion of trafficking – and I accept it was personal use. However, I do note that you have been found guilty of possession of cannabis on at least two previous occasions; and
(b)fine you in relation to offences connected with driving a so-called “monkey bike”.
114 Please be upstanding:
(a)in relation to Charge 1 on the Indictment, you are convicted and sentenced to six months’ imprisonment;
(b)in relation to Charge 2 on the Indictment, you are convicted and sentenced to eight months’ imprisonment;
(c)in relation to Charge 3 on the Indictment, you are convicted and sentenced to twelve months’ imprisonment;
(d)in relation to Charge 4 on the Indictment, you are convicted and sentenced to nine months’ imprisonment;
(e)in relation to Charge 5 on the Indictment, you are convicted and sentenced to nine months’ imprisonment;
(f)in relation to Charge 6 on the Indictment, you are convicted and sentenced to twelve months’ imprisonment;
(g)In relation to Charge 7 on the Indictment, you are convicted and sentenced to twelve months’ imprisonment;
(h)in relation to Charge 8 on the Indictment, you are convicted and sentenced to eight months’ imprisonment;
(i)in relation to Charge 9 on the Indictment, you are convicted and sentenced to six months’ imprisonment;
(j)in relation to Charge 10 on the Indictment, you are convicted and sentenced to twelve months’ imprisonment;
(k)in relation to Charge 11 on the Indictment, you are convicted and sentenced to twelve months’ imprisonment;
(l)in relation to the uplifted Summary Charge 8, you are convicted and sentenced to a fine of $250;
(m)in relation to the uplifted Summary Charge 9, you are convicted and sentenced to a fine of $250;
(n)in relation to the uplifted Summary Charge 10, you are convicted and sentenced to $75;
(o)in relation to the uplifted Summary Charge 11, you are convicted and sentenced to a fine of $150.
115 The sentence of twelve months in relation to Charge 3 will be the base sentence, and I order that two months of this sentence in relation to Charge 1; four months of the sentence in relation to Charge 2; five months of each of the sentences in relation to Charge 4 and 5; seven months on each of the sentences in relation to Charges 6, 7, 10 and 11; four months of the sentence in relation to Charge 8 and two months of the sentence in relation to Charge 9, be served cumulatively upon each other and on the sentence imposed in relation to Charge 3.
116 The total effective sentence is five years and two months and I order that you serve two years and six months before being eligible for parole. I declare that you have served up to, but not including this day 579 days in pre-sentence detention and such period should be administratively deducted.
117 I will grant the disposal/forfeiture and forensic sample orders sought by the prosecution.
118 I declare that save for your pleas of guilty in relation to the offences I would have ordered seven years imprisonment.
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