Director of Public Prosecutions v Icho
[2022] VCC 1984
•14 November 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-20-01436
CR-20-01478
CR-21-00119
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BERNARD ICHO and ONUR ATESOK |
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JUDGE: | Her Honour Judge Syme | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2022 | |
DATE OF SENTENCE: | 14 November 2022 | |
CASE MAY BE CITED AS: | DPP v Icho & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1984 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed robbery – in company - discharge of firearm – prospects of rehabilitation.
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Sentence: Mr Atesok – 6 years imprisonment with a non-parole period of 4 years. Mr Icho - 5 years imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Davison | Ms N. Stevenson |
| For the Accused Icho | Mr N. Howard | Ms J. Hughes |
| For the Accused Atesok | Mr J. Portelli | Ms A. Liang |
HER HONOUR:
1
Onur Atesok and Bernard Icho, you have each pleaded guilty to an offence of armed robbery at the premises of Club Leeds at Footscray on
28 January 2020. The maximum penalty for this offence is 25 years imprisonment.
2 Mr Atesok, you also pleaded guilty to the offences of being a prohibited person using a firearm and reckless conduct endangering life. The maximum penalty for these offences is 10 years imprisonment.
3 In relation to other offences on a separate indictment, Mr Atesok, you also pleaded guilty to a charge of theft (Charge 1), the particulars of which are that on 29 January 2020, you stole 44.72 litres of fuel valued at $65.25. The penalty for this offence is 10 years imprisonment.
4 Upon your arrest on 19 February, you were found with certain drugs in your possession. First, drug analysis showed a quantity of white crystals containing methylamphetamine, 0.7 grams. That relates to Charge 2 on the separate indictment, possess methylamphetamine. Second, a quantity of compressed white powder containing diacetylmorphine or heroin, 0.4 grams. That relates to Charge 3 on that separate indictment. The maximum penalty for those two charges is one year imprisonment. Third, you were found with a quantity of cannabis, a total of 2.8 grams. That relates to Charge 4 on the separate indictment for which the maximum penalty is five penalty units.
5 All of those charges will be dealt with by way of sentence at the conclusion of my remarks.
6 Mr Atesok, you have admitted relevant prior convictions. I note your criminal offending commenced in 1999, when you were aged 18. Since that time, you have offended regularly, committing offences related to violence, and the possession of weapons often combined with drug related matters.
7 In 2014 you were convicted of armed robbery and aggravated burglary, for which you were sentenced to a term of imprisonment of 52 months with a non-parole period of 27 months. Prior to that, you had received the benefit of community supervision orders.
8 The circumstances of these prior convictions will not allow consideration of leniency in the sentence to be imposed. However, they do not amount to any form of aggravating circumstances and will be considered along with other matters in relation to your personal circumstances.
9 Mr Icho, you have also admitted prior relevant convictions. I note that you have been in trouble on and off since 2013, when you were aged 24. Your offending related to theft and other dishonesty offences but also offences of a more confronting nature, such as stalking and recklessly causing injury.
10 An observation of your record reflects that you had been sentenced to a series of relatively short sentences being imposed over many appearances. You have also had the benefit of several supervised orders.
11 It is noted that this is your first major indictable offence. Although, your prior record shows some continuity of offending prior to the commission of this offence. The circumstances of those prior convictions for you do not necessarily entitle you to any consideration of leniency but will be considered along with other matters relating to your personal circumstances.
Circumstances of offending
12 I now turn to the current offending. The facts relevant to the current offence are as set out in the prosecution opening and not in dispute. They show that at approximately 9:15am on 28 January 2020, both of you arrived outside the club at Leeds Street, Footscray. You both wore hooded tops with the hoods over your head and Mr Icho had his face covered with a surgical like mask.
13 I reviewed the CCTV footage from several cameras at the club. Those cameras and the footage produced depict your movements. It shows both of you entering the club with Mr Atesok in front.
14 The prosecution opening notes that you were both yelling, 'Open the safe' and both of you had face coverings. Mr Atesok went behind the counter, approaching an employee and pointed the gun at that employee.
15 Mr Icho, you waited near the counter area. Mr Atesok shepherded the employee towards the door at the back of the bar and both of you then searched that room.
16
Mr Icho was confronted by and struggled briefly with a patron of the club before returning to the room with the other offender and searching again. A patron tried to stop both of you leaving. This person, referred to as Mr Madcat, saw a gun pointed above his head, then in the air and then pointed towards the front of the store. One shot was fired. This relates to Charge 3 against
Mr Atesok, prohibited person use firearm, and Charge 2, reckless conduct endangering life.
17 Mr Madcat picked up a chair to defend himself to push Mr Atesok away and to stop both of them. Both offenders walked out. Mr Madcat said that he was not scared because he could handle himself but he could see that other workers were.
18 While both of you were in the club you threatened an employee, demanding that he open the safe. The assistant manager, Ms Oswald, saw that the door to the strong room had been broken into. She went into the room. Her handbag had things thrown out of it and her purse was gone. It had in it $135 in notes, as well as various cards, including her licence. She was advised that you had also taken the Keno money. She thought there was about $180 to $250 in notes in the Keno drawer. This relates to Charge 1 for both of Atesok and Icho, that of armed robbery.
19 Ms Oswald described feeling numb. She was scared that you would come back into the club. She was also scared that you would come to her house because you took her driver's licence.
20 In the minutes that each of you were in the club your stole an employee's wallet containing their cash and cards. You took the money amounting to between $180 and $250, which belonged to the club. After accessing these funds both of you decamped from the front of the club.
21 Mr Atesok, you were arrested on 19 February 2020 after an investigation. Certain items were seized and a DNA sample was taken. You have been in custody on these matters since that date, bringing a total on my calculation to 833 days as at today but this will be confirmed at the conclusion of my sentence.
22 Mr Icho, you were charged with this offence in June of that year. You have been in custody since February 2020 in relation to other matters for which you have now been sentenced. Some of those matters were referenced above. On these matters alone you have been in custody I am told to as at today, 562 days but again this will be confirmed.
23 The above pleas of guilty were entered by each of you after a sentencing indication hearing. At that hearing there was no subjective information available for either of you and due to the limited information available the court could only rely largely on the prosecution opening and your respective criminal records.
24 The sentence indication for Mr Atesok for the charges including possession of the firearm and the endangering a person and the armed robbery was a sentence of not more than six years and a non-parole period of not more than four.
25 The sentence indication for Mr Icho for the single charge of armed robbery was a head sentence of not more than five years but I was unable to indicate what a non-parole period would have been at that time.
26 In assessing the objective seriousness of the offending, I note that in terms of planning there was probably no more planning than is necessary for an offence of this nature. One of you had to source a firearm but otherwise, the disguises were not complicated.
27 The event occurred over a very short period of time but it was very aggressive, towards both the employee and patrons. The amount of money stolen was modest. None of it was recovered.
28 As to aggravating circumstances, there were members of the public as well as employees who were threatened by the activities of both of you.
29 It is noted that only one of you was carrying a firearm but this is clearly a situation where both offenders, both of you, are liable for the armed robbery.
30 The other obvious aggravating circumstance is that the robbery was committed in company, thus increasing the intimidation to staff and members of the public.
31 The prosecution accept that they cannot prove that Mr Icho knew or anticipated the use of the firearm by his co-offender, Mr Atesok.
32 I assess that the offending is at about mid-range level for the charged offences.
33 In relation to further offending by Mr Atesok, that of theft and drug possession, the offending is at the lower end of the scale of objective seriousness.
34 There are other considerations relevant to each of you.
Delay
35 There has been considerable delay from the date of the arrest to today's date. While such delay no doubt caused some anxiety for both of you, it is noted that a sentence indication was not sought until the trial was due to commence. The delay could have thus been minimised.
36 In relation to your plea, both of you entered a plea of guilty on the day a jury trial in this matter was due to commence. The Worboyes decision is relevant even to this very late plea in two ways.
37 The first way the late plea is relevant is the advantage that should flow to each of you because it is acknowledged that a plea of guilty which avoids a jury trial is of considerable utilitarian and administrative benefit to the administration of justice in Victoria at present. If it was an earlier plea, the administrative benefit would have been greater.
38 The second thing the court would take into account is the acknowledged difficulty that counsel have in attending personally at custodial settings in order to discuss privately with their clients any plea offers that might be appropriate or considered. Certainly, I acknowledge that was the case at the time leading up to this plea being made.
39 So, while it is a late plea, in my view, both of you deserve some considerable benefit for the fact that there was a plea which avoided a jury trial. While it was nowhere near a plea at the first available opportunity, it was entered at a relatively convenient time.
40 It was submitted that a plea in circumstances where a conviction was not inevitable ought to enhance the discount, but I do not necessarily agree that the prosecution case was so lacking in this matter that such a consideration should be given much weight.
41 It is acknowledged that during the pandemic conditions in custody have been onerous with lockdowns and isolation creating added hardship for inmates. I acknowledge that activities which may otherwise assist in rehabilitation have been more difficult to access during this time.
42 I will now turn to each of your personal circumstances and background.
Personal circumstances - Mr Atesok
43 Mr Atesok was born on 19 June 1981. He was 38 at the time of the offending and was living with his partner in Essendon North. I am told he is now 41. The tendered psychologist report contains an account of Mr Atesok's history as outlined to psychologist, Warren Simmons. That self-report suggests that you, Mr Atesok, describe yourself as a drug addict who has been addicted to various substances from the age of about 17.
44 Over time, heroin and methylamphetamines have become a habit which persisted through your adult life. You instruct that you have been abstinent from drug use since your remand and have been assisted by the introduction of Buvidal, which has been recently prescribed for you in the form of monthly depot injections. It is observed that you would meet the criteria for opiate and stimulant use disorders, which no doubt is currently in remission.
45 Notwithstanding the written submissions from counsel, it was conceded that your drug use and addiction is not a matter of mitigation, nor a matter which reduces your moral culpability for this offending. It was conceded that your drug use was not thrust on you at a very early age. It was accepted that self-induced addiction at an age of rational choice establishes a moral culpability for the predictable consequences of that choice.
46 However, I find that this drug addiction is associated with your offending to a degree, in that it may well be the motivator. The offending being committed under the influence of substances is no doubt related to your violent actions during it. A need for you to address your substance abuse is obvious if your future is to avoid a lifetime of offending and subsequent custodial sentences.
47 In relation to remorse, I note Mr Atesok, you have expressed remorse to the report writer. I am unsure whether you understand the full implications of your offending on the community and your family. Your offending was self-centred, selfish, and committed in order to satisfy your own needs. More work will need to be done by those who will ultimately supervise you to address these issues.
48 It is noted that after being released on the last occasion, that is after the 2014 sentence, there was a gap in your offending. You reported that you entered into a new relationship, and you were, you say, trying to help your partner withdraw from drugs. It is unclear at least to me, what the status of that relationship is.
49
You instructed counsel that in 2007/2008 you travelled to Turkey and undertook military service. I note that prior to that there were significant drug related matters for which you had been sentenced. I am unclear as to how long you remained in the army or in Turkey for. You reported to Mr Simmons that for
five years you did not use drugs.
50 Apart from a stimulant use disorder there are no concerns about your mental health.
51 In relation to forensic history, the psychologist suggests that you do have some prospects for rehabilitation, given that you have commenced on Buvidal. You claim not to have used drugs in custody on this occasion and you are able to identify some of the issues that have contributed to your past substance abuse and offending. This observation is made without the use of any of the usual psychological tools of assessment and without explanation of how that conclusion is reached. However, the opinion is so vague it is difficult to disagree with.
52 In relation to the sentence purposes and principles, it is obvious that sentence considerations for you, Mr Atesok, may include specific and general deterrence, and must include a consideration of the protection of the community.
53 It is also noted that the protection of the community can be best addressed if after a period of custody there is a well-resourced and directed period of supervision in the community, during which time you, Mr Atesok, ought to be required to undertake training for your stated intentions of future employment as an electrician.
54 You will also be required I hope to undertake significant counselling and therapy, including medication and urinalysis if directed to address your substance abuse. Corrective and parole services should receive a copy of my reasons for decision and therefore, my suggestions as to how supervision should be carried out. I propose to order a generous non-parole to parole ratio, so that this supervision and in the community can be maximised.
Personal circumstances - Mr Icho
55
In relation to you, Mr Icho, I note you were born on 10 July 1989. You were
30 at the time of the offending and are now 33. I note that you normally lived with your mother and your stepfather in Greenvale. They still offer support, notwithstanding the real difficulty that your substance abuse has no doubt caused them.
56 I have access to a psychological report authored by Ms Maynard, psychologist. Your background as reported to the psychologist is that of some disruption due to family breakup and armed conflict in your birthplace, Lebanon.
57
It is observed in that report that you lived with both parents until aged 5 and then various family members, who assisted in effect by roster. At the age of
10 years I'm told you migrated to Australia, where you were reunited with your mother. It is reported you attended school and that you excelled in your scholastic endeavours.
58 It is reported that in Years 11 and 12 at high school you commenced using cannabis and then amphetamines. Unsurprisingly, your work and relationship suffered. You blame your drug use for this loss but I have no information that you have ever sought assistance to cease this drug use either by attending any sort of rehabilitation or seeking other available help. I have no information that you have ever taken steps to address this issue in your life, despite you blaming it for your life's deterioration.
59
You gave instructions to counsel that your personal relationship broke down and I quote, 'Broke you as a man'. My observation is that this really smacks of
self-pity and blame rather than an acceptance of responsibility and a real plan to address this.
60 Ms Maynard, the psychologist, states in her report that she has administered some psychological assessments as set out in that report. Unfortunately, she includes no results in her report. Her report, I observe, is thin on reasoning to support many of the conclusions that she draws. I do not doubt, Mr Icho, that you have some psychological issues which may well require further investigation. However, Ms Maynard's report is only of slight assistance.
61 She suggests that growing up in a war zone is a relevant consideration for what she says is a PTSD diagnosis. But it is noted that most reports place the war as having wound down by 1990 and you were born in 1989. There is no information that as a young child or prior to your migration to Australia, you were involved in any civil strife or conflict. There is simply no information to support Ms Maynard's conclusion.
62
Ms Maynard, similarly, is not qualified to diagnose psychiatric disorders but purports to do so with observations that you suffer from a complex
post-traumatic stress disorder, a generalised anxiety disorder and a social anxiety disorder. Further that you have a major depressive disorder, drug induced psychosis currently in remission in the controlled environment and a stimulant use disorder, also currently in remission in a controlled environment.
63 I am told, Mr Icho, you have been prescribed antidepressants during a previous incarceration but not currently medicated. I suggest that corrective services investigate whether Mr Icho might benefit from some form of assessment and/or medication at present. Perhaps Ms Maynard's report could be used as a background, notwithstanding my significant reservations as to its contents.
64 I observe Mr Icho has engaged on a positive note in the alcohol and drug course while in custody. He has engaged in the men's behaviour change course and an anger management course. He has recently involved himself in assisting new prisoners with their induction. This suggests that he is engaging in a positive way to involvement with the system, which again does not really support Ms Maynard's negative findings.
65 Defence relies on this report. Ms Maynard concludes that unless Mr Icho addresses his substance abuse issues and his underlying emotional issues, his offending risk is moderate to high. Again, this observation is unsupported by any structured analysis nor reason, but it does look like common sense.
66 I accept that Mr Icho's offending and this offence in particular, is related to his perception of needing money for drugs. I have no doubt that if treatment and rehabilitation is in place his risk of reoffending would reduce.
67 I accept that Mr Icho would certainly benefit from alcohol and other drug support, as well as counselling, to assist him in identifying his triggers for using substances. Doing so may assist him in becoming more aware of his motivations to change and become more aware of strategies which would help him learn how to prevent a relapse into drug use again.
68 Mr Icho, your prospects for rehabilitation are enhanced by the support of your parents, who have been supportive for years. I might suggest again that corrective services, as part of their supervision also suggest to your parents that they attend an appropriate program for families of drug abusers. This may allow them to properly identify and be assisted on dealing with potential drug use in their home.
69 It seems obvious at least to me, that you, Mr Icho, have been using substances while living at the family home. While I have no doubt that your parents disapprove, they nevertheless wish to support you and they would benefit from some strategies on how to assist you. Such assistance I am quite sure would not go astray and again this is a suggestion I will make to probation and parole services when they are supervising Mr Icho on his release. I note that your parents are in court and I make this suggestion to them as well, that they might also be able to access some assistance for families of drug abusers and I have no doubt that Mr Howard will be able to make some suggestions to them after we have finished today.
70 Mr Icho, you have been given many chances by the courts over the years. You will be required to undertake any strategies available to you to cease your drug use. I note that in the past there has been in effect, a revolving door, or short sentences, release and return.
71 I suggest Corrective Services consider requiring you, Mr Icho, to attend a drug rehabilitation program immediately after your eligibility for parole and release from custody. Such a program would enable you, Mr Icho, to have a staged release back into the community and to learn how to live in the community without drug use via a residential rehabilitation. This, of course, is only a suggestion.
72 I propose for you, Mr Icho, as well setting a generous non-parole to parole ratio, that I recommend that your release be conditional on entry into a suitable residential rehabilitation centre. There is probably sufficient time on your sentence for such an arrangement to be made.
73 Mr Icho, your prospects of rehabilitation are fair and with a treatment and rehabilitation focus this will improve. It will also, I suggest, improve any mental health difficulties that you may have and reduce your risk of relapsing into substance addiction.
74 I note, Mr Icho, that you have been offered employment, again by your stepfather, Mr Portelli, who operates a carpentry construction business. I also note that this employment has always been available. I suggest there is a better chance of it working well if the substance abuse issue is addressed first.
75 It is obvious that sentence considerations for you, Mr Icho, must include specific and general deterrence, as well as the protection of the community. Further, as with your co-offender, the protection of the community can be best addressed if after a period of custody there is a well-resourced and directed period of supervision in the community, during which time Mr Icho be required to address his substance abuse issues and be supported to maintain his prospective employment with his stepfather.
76 Mr Icho, you ought to be required to undertake significant counselling and therapy, including medication and urinalysis if directed, to address your substance abuse.
77 Finally, the issue of parity. When considering each offenders role in this event I accept that while it was Mr Atesok who carried and fired the firearm, Mr Icho, you were aware that your co-offender was so armed and entered the club with him with the joint intention of robbing the premises. You both participated in confronting members of the public and employees. The difference between the two of you is that the prosecution accept that Mr Atesok was the person who possessed and fired the prohibited firearm.
78 Additionally, the prosecution accept that his relevant record includes similar offending in 2014.
79 I will now deal with the sentence.
Sentence
80 Mr Atesok, in relation to the robbery offence I sentence as a base sentence a period of five years. In relation to the firearm and endanger offences, I sentence Mr Atesok to a term of two years concurrent with each other to be served on a one year accumulation on the base sentence.
81 In relation to the separate indictment, on the charge of theft, I sentence Mr Atesok to a period of one month to be served concurrently with the base sentence, and in relation to each of the drug charges, that is sequences 2, 3 and 4 on the separate indictment, a conviction but otherwise discharged with no further penalty.
82 That represents a total term of sentence for Mr Atesok, as indicated in the sentence indication, of six years and I order a non-parole period of four years.
83 Mr Icho, on the charge of robbery, I sentence you to a term of imprisonment of five years and after consideration of your personal circumstances, order a non-parole period of three years.
84 Regarding pre-sentence detention, I have got 833 days for Mr Atesok, and I have got 562 days for Mr Icho.
85 MR LEE: Generally agreed with, Mr Atesok, we've calculated 834 days.
86 For Mr Icho, I acknowledge a pre-sentence detention of 562 days. Finally, I noted at the commencement that each of you will be entitled to a significant discount for an early plea of guilty.
87 Mr Atesok, in relation to all of the charges, absent the section 6AAA plea of guilty discount, I would have imposed a total sentence of 9 years with a non-parole period of six and a half years. Mr Icho, on the single charge I would have imposed a total term of six years and nine months with a non-parole period of four and a half years.
88 In relation to ancillary orders, I note disposal orders are sought in relation to the substances, and forfeiture orders are sought in relation to the mobile phones and clothing seized by police. I assume there is no opposition to that. I will make those orders unless anyone wants to tell me otherwise.
89 MR HOWARD: No, Ma'am.
90 HER HONOUR: No. All right. Anything at this stage, counsel?
91 MR LEE: No, Your Honour.
92 MR HOWARD: No. Thanks, Your Honour.
93 HER HONOUR: No. All right and Mr Howard, I'm sure you'll speak to your client's parents. I think that most of the counselling services offer services to family and they could probably do with it.
94 MR HOWARD: Yes. I will.
95 HER HONOUR: All right.
96 MR HOWARD: Thank you, Your Honour.
97 HER HONOUR: Thank you very much. If there's nothing else, we'll adjourn now.
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