Director of Public Prosecutions v Istifo

[2014] VCC 2255

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-02262

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALVEN ISTIFO

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	15 December 2014
DATE OF SENTENCE:	15 December 2014
CASE MAY BE CITED AS:	DPP v Istifo
MEDIUM NEUTRAL CITATION:	[2014] VCC 2255

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett
For the Accused	Mr R. Backwell

HIS HONOUR:

1Alven Istifo, you have pleaded guilty to an offence of aggravated burglary which took place on 14 April 2013, the particulars being that you entered as a trespasser the unit in which the victim was residing with intent to commit an offence involving an assault to a person therein and at the time of entering a person was present and that you knew a person was present or were reckless as to whether another person was present.

2The offence of aggravated burglary is always a serious one.  It carries a maximum term of imprisonment of 25 years.  You have admitted one prior court appearance for an offence which did involve dishonesty and for two other offences involving your use and trafficking, albeit on a small scale, of MDMA.  But you were dealt with by the Broadmeadows Magistrates Court on 9 December 2011 for that offence and the order was made without conviction that you make a donation to the Emerald Hill Mission.  It seems to me to be clear that the court did not regard any of those offences as being particularly serious and of course they were committed when you were considerably younger. 

3The prosecution has tendered and relied upon a summary of prosecution opening which is Exhibit A on the plea.  It has been read very recently, I am not going to go through it again.  Suffice to say that your co-offender, Maurice Hanna, with whom I dealt on 1 September this year became involved in an altercation of some kind with the victim, Mr Koligianos, in the block of units where you were staying that night.   As a result of that altercation which was clearly of Mr Hanna's doing, he was the aggressor, he came back to the unit where you were staying and engaged you and others who were also present in that unit to participate with him in the aggravated burglary which was clearly aimed by Mr Hanna at enabling him, Hanna, and perhaps others, to assault Mr Koligianos.  Mr Koligianos was injured as a result and received a number of sutures to a wound to the back of his head amongst other injuries.   Mr Hanna pleaded guilty not only to the aggravated burglary but also to intentionally causing injury to Mr Koligianos. 

4I am told that you have lived by yourself and have fended for yourself since you were 18, having left school after Year 10.  You moved to the United States for a period of about a year, then you returned to Melbourne where you had obviously a desire to live and since then you have been pretty much engaged full-time in employment, mainly with TNT but more recently employed by Service Tech Australia Pty. Ltd. engaged by Rosanna Sitidini who has written a reference on your behalf.  You are regarded as a good worker and a person with a placid nature and this offending conduct is regarded by them as being out of character.  I note that you have expressed remorse and you have pleaded guilty to the offending conduct which is also consistent with remorse.  Not only are you in work but you are undertaking an apprenticeship.   You are required to work long hours and attend evening school twice a week. 

5Your mother still resides in the United States and I am told she has only been back once in the last four years.  You may well wish, and naturally would wish, to have the option to travel to travel to the United States to visit her and other members of the family.  I am told that since your father died recently that you have a much greater sense of family and wish to reengage more closely with your mother and other members of the extended family. 

6I have no doubt that you regret now having participated in this offending conduct.  It occurred one year and eight months ago.   You have not been in any trouble since.  The fact that you had been drinking that night might be a reason why you decided to participate.  It is no excuse, of course.  It does not amount to mitigation and it was a serious offence even though not at the high end of the scale of offences of this kind.  It must have been a frightening experience, not just for the person who was injured, Mr Koligianos, but also others who were present in that unit at the time.  The effect on the victims is to be taken into account in imposing sentence.  However, I am quite satisfied that Mr Hanna, who I sentenced in September this year, was the ringleader.  He participated in both of the incidents involving the victim and he was the aggressor from the word go.   I have no doubt that it is true that he enlisted you in circumstances where you would not have engaged in any offending conduct that night had it not been for his actions and his persuasion of you and others to join with him in the aggravated burglary.

7I see no reason to think that you will offend again.  I suspect that having been involved in these court proceedings that that will in itself have acted as a significant deterrent to you.  It is urged on me that I should impose a lesser sentence than that imposed on Mr Hanna and I accept that submission.  The real question is whether in addition to a Community Correction Order with a requirement that you undertake unpaid community work I should also impose a conviction.  Ordinarily, a conviction for this kind of offence would follow almost inevitably and in most cases even with the matters that have been put on your behalf I would have had a great deal of difficulty in concluding that conviction was not warranted.  However, I think that with your strong work ethic, and your current circumstances, your apprenticeship, a conviction will hamper you in your future career whether or not you ever choose to apply to get a Visa to travel to the United States of America.  I am quite sure that a conviction, if you do choose to apply for a Visa to the United States of America, will have a significant effect on your chances of obtaining such a visa.  For those reasons I am persuaded that it is appropriate to make a Community Corrections Order without conviction. 

8I cannot make a Community-based Order without your consent.  I am quite sure that you have discussed that with your counsel.  I intend to require you to perform 150 hours of unpaid community work.  Bear in mind that is 100 less than your co-offender, Hanna.   Nevertheless it will be an imposition, it is supposed to be. 

9You will undoubtedly feel the effects during the currency of the order.  I will give you 18 months to perform that 150 hours which gives you a fair bit of time.  If you choose to work the hours sooner rather than later the order will come to an end because there will be no other conditions attached to it.  So as soon as you finish the 150 hours that will be the end of the order.  But you have to appreciate that whilst the order is on foot if you breach the order, firstly, you are up for three months' imprisonment for breaching the order, secondly you will be up for punishment for the offence that puts you in breach of the order if it is an offence that puts you in breach of the order and thirdly, you will be up for re-sentencing on this matter.  So it is a bit like a suspended sentence hanging over your head.  If you are brought back for sentencing on this matter there is no guarantee that a term of imprisonment would not be imposed because ordinarily that is what is imposed for aggravated burglary. 

10Do you consent to an order in those terms?

11PRISONER:  Yes.

12HIS HONOUR:  You do, very well.  The order will be drawn up and in a moment Mr Travers, my associate, and your counsel will have an opportunity of just going through it with you to make sure you understand the full terms.  The first term of the order will be that you report to a Community Corrections Centre within two clear working days.  Which centre would be?

13MR BACKWELL:  It would be Broadmeadows would be the closest, sir. 

14HIS HONOUR:  Very well.  So it would be the Broadmeadows Community Corrections Centre and you will of course have to obey all lawful instructions of the Corrections manager who deals with your case and turn up to all of the various appointments that are made for you to perform unpaid community work.  They will discuss with you the arrangements that are on offer and no doubt there will be consideration given to your other commitments but you will have to complete those 150 hours and if you do not keep appointments and do not have a reasonable excuse that too will put you in breach of the order and you will be brought back for re-sentencing on this matter.

15But for your plea of guilty I would have sentenced you to a Community Corrections Order with a requirement that you perform 250 hours of community work and I would have imposed a conviction.

16I will deal with the ancillary orders as well while we are waiting for the order to be drawn up.  I order that you pay compensation in the sum of $880 in accordance with the draft order with which I have been provided.  Of course, Mr Hanna also had such an order made against him and provided the compensations paid.  You are jointly and severally liable for it but it is only one lot of $880 that has to be paid.  There is also an application for you to provide a forensic sample by scraping from the inside of the mouth or a blood sample and I am prepared to make that order.  It will require you to report to the officer in charge of Broadmeadows police station during the period specified in the order.  When you do report you will be required to provide a scraping from the inside of your mouth, a painless procedure, and if you comply with that request that is the end of the matter.  If you fail or refuse to comply the authorised officer will have authority to take a blood sample and may use reasonable force.  I am sure you will not put them to that trouble.

17Yes, would you mind accompanying Mr Travers, please?

18MR BACKWELL:  Yes, Your Honour. 

19HIS HONOUR:  Very well, those orders are now signed.  You may leave the dock.

20MR BACKWELL:  Thank you, Your Honour. 

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