Director of Public Prosecutions v Koua, Robert
[2012] VCC 1922
•22 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01965
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT KOUA |
---
JUDGE: | HIS HONOUR JUDGE GULLACI | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 November 2012 | |
DATE OF SENTENCE: | 22 November 2012 | |
CASE MAY BE CITED AS: | DPP v Koua, Robert | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1922 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Foot | Office of Public Prosecutions |
| For the Accused | Ms C. Hollingworth |
HIS HONOUR:
1 Robert Koua you have pleaded guilty to Charge 1, theft. The maximum penalty is ten years imprisonment. Charge 2, armed robbery. The maximum penalty is 25 years imprisonment.
2 The circumstances of your offending are as follows. In relation to Charge 1, you attended at the Liberty Service Station at about 3 am. You were wearing a distinctive black hooded jumper. You were with an alleged co-accused Merbaric Musa. Both of you took pies from the pies warmer. You put three in your pockets and you then placed one on the counter. You asked the attendant for two packets of Winfield Blue cigarettes and you handed the attendant an ANZ card. Before the attendant had the chance to process the card, you snatched the card out of his hands, grabbed the cigarettes and pie from the counter and both you and the alleged co-accused then left the premises.
3 Charge 2, at about 1 am on Friday, 24 June last year, you entered the Liberty Service Station in Yarraville. Your co-accused Merbaric Musa was already in the service station. The attendant Mr Singh was assisting the co-accused at the hot food section of the store. You entered the store and quickly walked up behind Mr Singh. Mr Singh felt he was going to be hit by you. He immediately noticed that you were holding a 30 centimetre serrated knife by the side of your leg. As soon as the victim saw the knife he returned behind the counter and locked the door.
4 You then approached the counter holding the knife and said, "Give me the money." Musa then said, "Give me cigarettes." He told him he wanted Winfield Blue cigarettes. Oddly, Mr Singh scanned the cigarettes and told you that they were $17.70. Musa said, "Is $15 OK?" The victim, sensibly knowing that you had a knife said, "Yes."
5 As you were asking for money and cigarettes, another employee of the store walked out from the toilet area at the rear of the store. You and the co-accused turned towards him. Musa said, "Don't worry" then turned back towards Mr Singh and said, "Is it free?" Mr Singh put the cigarettes on the counter and Musa took them. He also took some pies. You then both left the service station.
6 When you were arrested by police they located a distinctive black jumper worn by you on 17 June. You were arrested and taken to the Flemington Police Station and you were interviewed. You initially denied being at the service station on 24 June. You later admitted that you recognised yourself as one of the men in a picture from the footage and said, "If I'm in the picture then I must have been there." However you denied committing an armed robbery. When the allegation of theft was put to you, you said, "No comment that's bullshit though." You were then charged.
7 I turn to factors personal to you. You are now 22 years of age. You were born in the Sudan and your parents travelled to Egypt in order to avoid the conflict in Sudan. They were placed in a refugee camp. You were nine years of age and have had to deal with violence and prejudice suffered by refugees in Egypt. You remained in the camp until you were 13 and then were able to come to Australia with your family. Your family settled in the Flemington flats. You associated with other youth from that area who were disenfranchised and engaged in drug and alcohol abuse.
8 You attended school and learned English. You were able to get to a Year 12 level of the trade section of that course. You did not complete Year 12. You commenced a pre-apprenticeship in carpentry but did not complete it. You have a history of limited factory employment. You have been involved in a relationship with a young woman for three years and have a child to her.
9 You have spent two short periods in custody in respect of these matters. After being released on bail for the second time, you have moved and settled to private rental premises away from the Flemington area and your peer group. The court has been informed that you now spend time looking after your new baby and endeavouring to find work and are considering the possibility of a future TAFE course in transport logistics.
10
A report from a psychologist Dr Cunningham was tendered on your behalf.
Dr Cunningham concluded inter alia:
1.That your presentation is consistent with the presence of a paranoid personality disorder. That you are suspicious of others and their motives.
2.That you are in a moderate risk needs range of re-offending.
3.`That you would benefit from treatment.
4.That you are motivated to cease contact with your associates from the Flemington area.
5.That you report ceasing cannabis and alcohol abuse.
6.That your paranoid personality disorder may be aggravated in a gaol environment.
11 Factors to be taken into account in your favour:
1.You have recently turned 22 and have been deprived of the opportunity of the court considering a youth juvenile order as a result of various adjournments that have occurred in the final determination of your case.
2.You are still only 22 years of age, have a limited history of prior court appearances.
3.You pleaded guilty at an early stage and this entitles you to a sentencing discount.
4.You have endured a dysfunctional childhood upbringing.
5.You have some underlying mental health issues.
6.In my view you are well educated and capable of obtaining employment if you are so motivated.
7.You have recently become a father and have moved away from the Flemington flats.
8.You have engaged with programs and services available to you since being released on bail for the second time.
9.Whilst you are in an early stage of your rehabilitation, there are some positive signs and your responsibility as a father may assist you in developing a more mature and responsible attitude to drugs and alcohol.
10.The principles with which the court must apply to youthful offenders apply to you and your rehabilitation is a significant matter for the court to consider.
11.The offence of theft is minor and the offence of armed robbery is at the lower end of this type of offence to come before the courts.
12 I turn to submissions of your counsel. Your counsel initially submitted that the court should impose a term of imprisonment wholly suspended. However, your counsel subsequently withdrew that submission when it was made clear that it was not available. Your counsel then submitted that the court should impose a Community Corrections Order in view of the period that you have already spent in custody before being released on bail.
13
Your counsel relied on the matters listed above as matters to be taken into account in your favour and in addition, she initially submitted that the principles set out in R v Verdins [2007] 16 VR 269 applied to you and she relied on the report of Dr Cunningham in support of her submissions. As a result of a number of matters raised by the court, the matter was then adjourned so that Dr Cunningham could be called to give evidence in support of his asserted opinions in the report, which was tendered on your behalf the court was subsequently informed by your counsel that she did not seek to call
Dr Cunningham and that she was not pursuing the Verdins' submission.
1. Your counsel provided the court with one urine screen tested dated
9 November this year. Your counsel submitted:
2.That you had expressed remorse and insight.
3.That you have prospects of rehabilitation.
4.That you have engaged with various services including drug and alcohol counselling.
5.That you have used the delay to commence your rehabilitation.
14 The learned Crown prosecutor submitted that the circumstances of your offending warrant the imposition of a term of imprisonment with a head sentence of one to two years, with a minimum term of six to 12 months. Relevant sentencing considerations for crimes such as these involve a combination of factors. The seriousness of the offences, your culpability for their commission, your personal history and circumstances, mitigating factors that exist in your case and your prospects of rehabilitation.
15 In my view it is clear that your rehabilitation depends on you controlling your alcohol abuse, staying away from your peer group and being in a stable family environment and the prospect of obtaining employment. Your attempts at rehabilitation are at an early stage and little has been provided by way of evidence as to your ceasing to abuse cannabis and alcohol other than your assertions to various people that that is the case. There has been one urine screen provided.
16 However in my view you are youthful and intelligent and capable of achieving rehabilitation if you so desire and apply yourself. You remain vulnerable in my view to relapsing into your old lifestyle. In my view you are intelligent enough to tell the relevant agencies to some extent, what they want to hear. The sentence of the court must be one that deters you from offending in a similar manner again in the future.
17 General deterrence is a significant matter, despite your youth and other matters personal to you. Those who are minded to engage in serious criminal offending such as armed robbery on soft targets going about their normal daily work, must be made aware the courts will strongly denounce such offending and impose sentences that deter others.
18 My initial view when learning of the circumstances of your offending, was that you should be sentenced to a significant term of imprisonment, some of which should be immediately served. However I have had the benefit of counsel's argument, been able to review the matters that were put on your behalf and that has changed my view, my initial view.
19 You have ten prior court findings of guilt from six court appearances between 2008 and 2010. These include convictions for findings of guilt for dishonesty, affray and theft. These are proper matters for the court to consider in determining your prospects of rehabilitation and assessing the weight to be given to specific deterrence.
20 The Crown submitted at the lower of their range you should be ordered to serve a sentence of six months imprisonment. You have already served 94 days in pre-sentence detention. In my view it would be contrary not only to your interests, but to the interests of the community to now return you to prison for a relatively further short term of imprisonment. In my view it is in your interests and that of the community to give you an opportunity of remaining in the community in order to enhance your prospects of rehabilitation, to improve your sense of self-worth and to keep you away from undesirable influences associated with more experienced offenders in the prison system.
21 If I had the opportunity of imposing a youth juvenile centre order I would have taken it. However you have been denied that opportunity and I must as set out above, consider that as a significant matter.
22 Whilst you are vulnerable into relapsing into alcohol and drug use, the positive signs that have emerged in recent times, should in my view, be encouraged. Your progress although of limited duration and tentative, is in my view to be encouraged by the court.
23 I requested that you be assessed for suitability for a Community Corrections Order and have a report from Ms Perifanos that you are suitable for such a disposition. I have ultimately decided that I would impose a term of imprisonment and a Community Corrections Order. I am limited by the Sentencing Act to impose a term of imprisonment of three months or less in order to release you on a Community Corrections Order.
24 Stand up now please. The formal order of the court is as follows with conviction. On Charge 1, theft you are sentenced to 14 days imprisonment. On Charge 2, armed robbery you are sentenced to a term of imprisonment of three months and that you be released on a Community Corrections Order for a period of three years with the following conditions.
1.That you perform 400 hours of unpaid community work.
2.That you receive assessment and treatment for drug and alcohol, including testing.
3.That you are to be under supervision by the Office of Corrections.
4.That you do not associate with Merbaric Musa.
5.That you are subject to judicial monitoring. That will require you to attend this court for review on 22 May of next year at 10 am.
25 I want to explain that order to you. That order has significant conditions attached to it. You are intelligent and are smart enough to understand that if you do not comply with those conditions, the chances are that you will breach that order and you will go to gaol for a further period in the future. If you do not want to take that opportunity, then now is the time to say so and I will sentence you accordingly. Are you prepared to undertake that order and the responsibilities that go with it?
26 PRISONER: Yes.
27 HIS HONOUR: I will have that order put to you formally by my Associate in a moment. I will just complete my sentencing remarks. Pursuant to s.18 of the Sentencing Act, I declare the period of 94 days be reckoned as already served and direct that be noted in the records of the court. The Crown has made an application under s.464ZF of the Crimes Act for an intimate sample. I propose to make an order for the taking of a sample of your saliva for the following reasons:
1.Your prior convictions.
2.The circumstances of your offending.
3.That the order is not opposed or consented to.
4.That the making of the order is in the public interests.
28 I inform you the police may use reasonable force to enable that sample to be taken. You will be required to attend at the police station that is nominated on that order so that the sample can be taken. A copy of that order will provide you with the details.
29 Pursuant to s.6AAA of the Sentencing Act I am required to inform you what sentence I would have imposed has you pleaded not guilty and been found guilty by a jury. I would have imposed a head sentence of 18 months and fixed a minimum term of ten months. I hasten to add that is not the sentence of the court. That is to indicate to you the value to you of your pleas of guilty to these offences. I will have the order put to you by my Associate and you will be required to sign.
(Order read to Prisoner.)
30 It should include both charges. We are just going to redraw the order which you will need to sign. I will give you leave in a moment to come out of the dock and sit behind your counsel while that is being done. I want to get you to understand that all of those conditions are part of the order. In other words if you think that you can knock around to use language that you might understand, with the same group including this particular person - if you are observed associating or being seen with Mr Musa that breaches your order. That brings you back before me. It is for a period of three years. Your barrister has told me that you have broken off contact and that you are keen to stay away from the bad influences of your friends from the flats. I am putting you to the test. If you breach it you will come back to this court and you will go to gaol. That is in a nutshell, what might happen. Do you understand?
31 PRISONER: Yes.
32 HIS HONOUR: You can leave the dock and you can come and take a seat. Thank you.
(Order signed.)
33 Are there any other orders I need make? A copy of the order will be provided to the prisoner. Adjourn the court please.
---
0
0
0