Director of Public Prosecutions v Kebede

[2023] VCC 510

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01237

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS KEBEDE

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JUDGE:	Her Honour Judge Hawkins
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2023
DATE OF SENTENCE:	27 March 2023
CASE MAY BE CITED AS:	DPP v KEBEDE
MEDIUM NEUTRAL CITATION:	[2023] VCC 510

REASONS FOR SENTENCE
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Subject:Criminal Law - SENTENCING

Legislation Cited:      Crimes Act 1958 (Vic), s18, s75A, s321M; Bail Act 1977 (Vic), s30B; Sentencing Act1991 (Vic) s5(2H), s5, s18, s6AAA

Cases Cited:Worboyes v R [2021] VSCA 169; R v Mills [1998] 4 VR 235; Boulton v The Queen (2014) 46 VR 308

Sentence:                  Total effective sentence of 14 months’ imprisonment combined with an 18 month community corrections order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. McCowan	Office of Public Prosecutions
For the Accused	Ms B. East	Marco Man Lawyers

HER HONOUR:

1Thomas Kebede, you have pleaded guilty to:

·        One charge of causing injury intentionally, which carries a maximum penalty of 10 years' imprisonment;[1]

[1]Crimes Act 1958 (Vic), s18

·        One charge of armed robbery, which carries a maximum penalty of 25 years' imprisonment;[2]

[2]Ibid, s75A

·        One charge of attempted armed robbery, which carries a maximum penalty of 20 years' imprisonment;[3] and

[3]Ibid, s321M

·        One charge of commit indictable offence whilst on bail, which carries a maximum penalty of three months' imprisonment.[4]

[4]Bail Act 1977 (Vic), s30B

2You have also admitted your prior criminal history.[5]

[5]Exhibit 2

Circumstances of Offending

3The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 13 January 2023,[6] the accuracy of which you accepted through your counsel.  

[6]Exhibit 1

Charge 1 – Causing Injury Intentionally

4

You were 18 years of age when, in the late evening of 25 March 2022, you and two associates picked up a person who I shall call 'AO', who was then aged

15 years, from his house in a car.

5The four of you proceeded to drive around the Braybrook/Sunshine area, making a number of stops. One associate got out of the car and you got into the back seat with AO.

6CCTV footage later captured you, AO and your associate arriving at the rear of a recreational centre in Braybrook. You began accusing the victim of 'talking shit' and then punched him to the face four times before stabbing him in the leg twice. AO could not get out of the vehicle while you assaulted him.

7AO was then dropped off somewhere in Braybrook and walked home. AO was taken to the Sunshine Hospital in relation to the two stab wounds to his left thigh area, each around 3 centimetres long with associated haematoma. AO was discharged from hospital some five hours after admission.

Charge 2 – Armed Robbery

8On 26 March 2022, 'MP', a male then aged 20 years, and 'AK', a female then aged 18 years, were seated on a bench outside Highpoint Shopping Centre waiting for an Uber. At approximately 5.20 pm, you and an associate pulled up in a car in front of where the victims were sitting. Your associate yelled to MP, 'I know you, you bashed my brother'. MP denied the allegations, at which time you and your associate parked your car. You ran over to the victims, and your associate approached soon after. You stated to MP that you could, 'make him pay', and said, 'I can end your life, I can end your life right here. I can take the life of civilians; you better do as I say'. You and your associate then demanded that the victims pay you $50 each, and later reduced that to $25 and then finally $10. After stating that they had no cash on them, you told them to, 'PayID then'.

9AK was looking at her phone to see how far the Uber was when you said to her that she had better not be messaging any friends and that you would kill her before she told anyone.

10You then snatched a shopping bag from MP's hands and looked through it. Your associate pulled a necklace from MP's neck, causing a pendant to drop onto the ground. You took the pendant and MP yelled at you. You then started to walk backwards and lifted your shirt to reveal a knife tucked into your waistband.

11The victims' Uber arrived and AK got inside it. You refused to give MP his shopping bag back unless he paid you. MP ended up paying you $55 before entering the Uber.  

Charge 3 – Attempted Armed Robbery

12That same day, the victim who I will refer to as JP, a male then aged 23 years, and another victim who I will refer to as ‘TLP’ pulled into a street carpark, at which point you pulled up next to them in your mother's car while the victims were trying to park. A brief verbal argument ensued about the parking spot.

13You eventually got out of the driver's seat, walked around the car to the front passenger seat, grabbed a large knife with an orange handle and placed it down your pants before covering it with your T-shirt.

14You walked up to JP and said, 'don't mess with me, I'm off my face, I've already had five altercations today. I'll leave you bleeding out on the floor'. You then lifted your shirt to reveal the knife that was tucked in your waistband, lifting it out slightly.

15Your associate forced JP to apologise to you and you asked if he had any Xanax. You walked away while your associate and JP continued to talk about the car park spot. You returned, again displaying the knife tucked into your pants. Your associate aggressively asked JP for drugs or money, at which point you were holding the knife handle in one hand and the knife case in the other, appearing to remove it. JP stated he had no cash, to which you replied, 'Pay ID me now'.

16Your associate noticed the other victim, TLP, on the phone to Triple 0 and attempted to get her to hang up. He said to you, 'let's go', and you both fled the scene in the car you arrived in.  

Arrest & Further Investigation

17You were arrested on 28 March 2022 while refuelling the car you had used in your offending. During your Record of Interview, you denied being in the Braybrook area on 25 March 2022 and stated that you were in the city.

18The interview was eventually stopped because you refused to answer questions and appeared to fall asleep.

Nature & Gravity of Offending

19Mr Kebede, your offending involves three discrete incidents which occurred over a two-day crime spree. Your co-accused in the second and third incidents was “SK” who was 17 years of age at the time of the offending and has been dealt with in the Children's Court. All of your offending occurred in company, albeit no other persons were charged in relation to the first incident.

20Your four victims ranged in age from 15 years to 23 years.

21I note that armed robbery is an inherently serious offence as recognised by the maximum penalty of 25 years' imprisonment. You showed the victims your knife, but I note that you did not remove it from the waist band of your pants in each incident. Your offending was brazen, in busy public places, but appears to have not been planned or premeditated. Some of your actions were caught on CCTV. I do note however that during the offending constituting Charge 3, you were apparently conscious of  and referenced your offending earlier that day. Having regard to the small amounts of money you obtained in each incident, there are clearly more serious examples of this offence, however, yours is by no means low level examples of these types of crimes.

22Charge 1, in my view, is a serious example of the crime of intentionally cause injury, and it is aggravated by your use of both fists and a weapon.

23Other than your youth, your counsel does not point to any other factors which can serve to reduce your moral culpability for your offending, and I conclude that it is high.

Victim Impact Statements

24I note that no victim impact statements were tendered to the court.

Personal Circumstances

25Mr Kebede, you were 18 years of age at the time of this offending and are currently aged 19.

26You were born in Australia and grew up in the western suburbs of Melbourne. Your father left your mother when you were three months old and you had no relationship with him. You have a six-year-old half-sister. Prior to your remand, you lived with your mother, sister, maternal grandparents and your aunt in Braybrook. Your aunt has cerebral palsy and requires ongoing care.

27You completed Year 10 at Braybrook Secondary College in 2019, but have never been employed. You obtained your White Card on remand and hope to commence at trade school and work in the building industry in the future.

28You have battled with abuse of prescription medication, principally Xanax and Valium. You also use cannabis.

29In her report dated 7 December 2022,[7] Clinical Psychologist, Carla Lechner, observes that your offending has noticeably escalated in the past two years. She opines that you present with symptoms of Benzodiazepine use disorder which is currently in early remission in the controlled environment in which you find yourself.

[7]Exhibit 3

30She also diagnoses that you have post-traumatic stress disorder and adjustment disorder with depressed mood. She noted that you have limited recall of your offending on account of your level of drug intoxication at the time. You are not currently taking any medication and have not received mental health support in the past.

31You reported to Ms Lechner long standing problems with anger management and that you spent the long periods during COVID lockdowns, “roaming around, doing nothing”, and commenced using Xanax during this time. In 2021, you were the victim of an assault, triggering your symptoms of PTSD and an escalation in your drug use.

32Ms Lechner states that:

“Thomas impressed as cognitively capable of reflective and consequential thinking, but socially and emotionally immature and inclined to follow group behaviour, and without fully considering the potential personal outcomes. His judgement and decision-making are compromised by drug use. He appears to view the world through, in his words, a paranoid lens, in which he sees friends as trying to take advantage of him.” She recommended, “Given his very young age, emotional and social immaturity and increased level of paranoia in an adult prison, his suitability for youth detention could be assessed.”

Sentencing Considerations

Mandatory Sentencing Provisions

33I note that the offence of armed robbery is a category 2 offence under the Sentencing Act1991. Mr Kebede, through your Counsel, Ms East, you concede that none of the circumstances set out in sub-paragraphs (a) to (e) of section 5(2H) exist and therefore I am required to impose a custodial sentence for this offence.

Plea of Guilty

34You pleaded guilty at the earliest possible opportunity, during the pandemic, prior to the committal mention of this matter. In doing so, you avoided the need for a trial, saved witnesses the stress of giving evidence in court and avoided the use of public resources that would have otherwise been spent in conducting a trial. Given the additional strain that the COVID-19 pandemic has placed on the justice system, I take the utilitarian value of your plea of guilty into account and you will receive an actual and palpable discount on your sentence as a result.[8]

[8]Worboyes v R [2021] VSCA 169

Criminal History

35Mr Kebede, at 19 you already have a significant criminal history from both the Children's and Magistrates' Courts. Your priors include armed robbery, robbery, and other violent and drug related offending for which you have received a Youth Supervision Order and various Probation Orders. You were in breach of an adjourned undertaking from the Magistrates' Court and in breach of bail at the time of this offending.

Burden of Imprisonment

36Mr Kebede, you had served over a year in adult custody at the time of the plea hearing. You spent the first month in quarantine at the Metropolitan Remand Centre, and whilst at Fulham Correctional Centre, spent three 14-day lockdowns, which limited your time out of your cell significantly.  You have worked as a billet from June until November last year and are currently paid $5 per day to clean a common area of the prison.  By all accounts, however, you are coping relatively well in the adult prison environment.

Youth

37At 19 years of age at the time of sentencing you, Mr Kebede, youth is a primary sentencing consideration,[9] and your rehabilitation will be accorded greater significance than will principles of general deterrence.

[9]R v Mills [1998] 4 VR 235, 241

Prospects Of Rehabilitation

38Mr Kebede, your prospects of rehabilitation depend on you remaining free from substance use and ought still be assessed as reasonable. You have the support of your mother and stable accommodation with her upon your release from custody. Unless you address your substance misuse however, your prospects of reoffending will escalate most significantly.

Current Sentencing Practices

39In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances.  Given the gravity and brazen nature of your offending, in the context of your prior convictions, Mr Kebede, protection of the community is a significant sentencing consideration in your case as well. However, I must balance the interests that the community has in denouncing your criminal conduct with the interests that the community clearly has in seeking to ensure as far as is possible, that you are rehabilitated and are reintegrated into society.

40Ultimately if that objective can be achieved your risk of reoffending will be significantly reduced. I must also impose a sentence which is proportionate to the gravity of the offence, considering these circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.

41Formally I have taken into account the relevant sentencing principles referred to in s5 of the Sentencing Act 1991 (Vic), as well as current sentencing practices for the offences to which you have pleaded guilty, and the important principles of both totality and proportionality.

42Your offending is comprised by three discrete incidents occurring over a two-day timeframe. Some degree of cumulation is warranted given the distinct criminality of each incident, however given that the incidents essentially formed part and parcel of the same drug induced crime spree, and giving effect to the principle of totality, I consider that a considerable measure of concurrency is warranted, particularly given your youth and all other relevant circumstances.

Parity

43I note that your co-accused was sentenced in the Children's Court and as such the principle of parity with their sentence has less relevance than might otherwise be the case.

Counsel's Submissions on Disposition

44Your Counsel submits that you ought be sentenced to a term of imprisonment for the charge of armed robbery, and to a community corrections order for the remaining offences. Alternatively she submits that a combination sentence comprising a term of imprisonment of no more than 12 months, together with a community corrections order is available.

45The Prosecution submit that notwithstanding your youth and your plea of guilty, that the gravity of your offending warrants a head sentence with a non-parole period.

46In light of the recommendations made by Ms Lechner, during the period of adjournment, you have been assessed by Youth Justice for your suitability to return to a Youth Justice Centre and by Corrections regarding your suitability to be placed on a Community Corrections Order. The Youth Justice Report dated
17 March 2023 assessed that you are not suitable to be sentenced to a Youth Justice Centre Order as your prospects for rehabilitation (in a Youth Justice setting) are considered to be “poor”, you present with poor victim empathy and pose a risk to community safety, and have only recently demonstrated improved commitment and insight. They report that you have acclimatised and adapted in a positive direction to the adult prison environment. You are feeling settled there and are receiving the supports you require. The authors note that you are working as a billet and attending woodwork classes at Fulham Prison, and you have completed a number of vocational courses, and I do have regard to the progress you have made in that environment.

47You have been assessed as suitable to be placed on a Community Corrections Order, and have had a mental health assessment conducted. It is recommended by the authors of those reports that you engage in ongoing treatment of your mental health in the community, and in an offence specific program, together with assessment and treatment for drug abuse and that you perform unpaid community work. The authors suggest that you do not require any treatment for alcohol abuse.

48The overall tenor of these reports suggests that whilst you still present as an immature man, you are beginning to grow up and gain some insights and awareness of the impact that your offending behaviour has had upon you and your family, if not at this stage upon your victims and the community. You do have stable accommodation with your mother and now aspire and have some qualifications permitting you to work in the construction industry. You have however been assessed as a presenting a high risk of reoffending. In my view the community will be best protected if this sentence is structured to promote your rehabilitation in a supervised manner and to ensure that that supervision is maximised upon your inevitable release from custody.

49The principles in Boulton v The Queen (2014) 46 VR 308 are particularly relevant in your case. In that case the Court of Appeal held that a community corrections order is likely to be a particularly important sentencing option in the case of young offenders where there may be a perceived conflict between the need to punish the offender and the importance – both to the community and to the offender – of rehabilitating the offender to prevent re-offending. The Court noted that a CCO can provide substantial general deterrence and is capable of being highly punitive.

50In his further submissions, Counsel for the Prosecution submits that to sentence you to a term of imprisonment on the charge of armed robbery and to a CCO on the other charges might be, “contrary to the text and purpose of s5(2H) of the Sentencing Act1991”.  Mr McCowan has clarified that submission and does confirm that I would not be in error to impose a sentence of a term of imprisonment in respect of the armed robbery, and to sentence you to a community corrections order on other charges.

51I note that given that there are three distinct episodes of offending, the Court is not constrained by the provisions of s5(2H) for the charges other than that of armed robbery, and I intend to structure my sentence appropriately given the considerations I have referred to above.

Sentence

Imprisonment

52Thomas Kebede, I sentence you as follows:

53

On Charge 1 (causing injury intentionally) you are convicted and sentenced to

12 months' imprisonment. This will form the base sentence.

54On Charge 2 (armed robbery) you are convicted and sentenced to 12 months' imprisonment.

55On Charge 3 (attempted armed robbery) and summary Charge 10 (commit indictable offence whilst on bail), you are convicted and sentenced to a community corrections order of 18 months which will commence when you are released from prison.

Partial Concurrency

56I order that two months of the sentence on Charge 2 be served cumulatively upon the sentence of 12 months on Charge 1.

57That is your total effective sentence is 14 months' imprisonment, together with a community corrections order of 18 months.

Community Corrections Order

58The conditions of the community corrections order are:

(a)   You must attend at Sunshine Justice Services Centre within two clear working days of your release from prison.

(b)   

You will be under the supervision of a Community Corrections Officer for

18 months, which means that you are required to be supervised, monitored and managed as directed;

(c)   You must undergo assessment and treatment (including testing) for:

·drug abuse dependency as you are directed by Corrections;

·for mental health programs as directed; and

·also for programs to reduce your risk of re-offending.

(d)   You must not commit an offence punishable by imprisonment during this order.

(e)   You must not leave Victoria without permission of Community Corrections.

(f)    You must let your Community Corrections Officer know within two clear days of changing address or a job.

(g)   You must comply with any lawful direction given by a Community Corrections Officer that is necessary to ensure that you comply with the order.

(h)   If you contravene this order by either committing further offences, or by failing to comply with the conditions, then you can be brought back before this Court, fined and resentenced. That might mean you go to jail for these offences.

59You have indicated your oral consent to this order, which I direct to be entered onto the court record.

Pre-Sentence Detention

60Pursuant to s18 of the Sentencing Act 1991, the period of 368 days of pre-sentence detention (not including today) is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the Court records.

Section 6AAA Declaration

61Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of  three years’ imprisonment with a non-parole period of two years.

Ancillary Orders

62I make the disposal and compensation orders sought with your consent, Mr Kebede.

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