Director of Public Prosecutions v Mala

[2024] VCC 731

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-01352
CR-24-00445

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADEM MALA

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JUDGE:	HIS HONOUR JUDGE GAMBLE
WHERE HELD:	Melbourne
DATE OF HEARING:	15 and 16 May 2024
DATE OF SENTENCE:	22 May 2024
CASE MAY BE CITED AS:	DPP v Mala
MEDIUM NEUTRAL CITATION:	[2024] VCC 731

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentence.

Catchwords:              Robbery – Possession of a drug of dependence – Young offender – No prior convictions but a relevant subsequent conviction for a robbery committed two days before the current robbery offence – Early plea and remorse – Strong efforts to rehabilitate post arrest while on youth justice supervised bail and then a community correction order imposed for the earlier robbery.

Legislation Cited:      Crimes Act 1958, s 75; Drugs, Poisons and Controlled Substances Act 1981, s 73; Sentencing Act 1991, ss 6AAA, 86.

Cases Cited:Boulton v The Queen (2014) 46 VR 308.

Sentence:                  24 month community correction order with conviction.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Johnson	Office of Public Prosecutions
For the Accused	Mr S. Andrianakis	Stephen Andrianakis & Associates

HIS HONOUR:

Introduction

1Mr Mala, you have pleaded guilty to an indictment[1] containing one charge of robbery[2] and one charge of possession of a drug of dependence, namely cocaine.[3] The maximum penalty for those offences are 15 years and five years’ imprisonment, respectively.[4]

[1] Indictment N12738349.1C.

[2] Charge 1 pursuant to s 75 of the Crimes Act 1958 (Vic).

[3] Charge 2 pursuant to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic).

[4] The higher of the available maximum penalties for the possession charge applied as the court was not satisfied that the possession was not for any purpose related to trafficking.

2At the time of the offending, you were 18 years of age and residing with your family in Rosanna. You are now 19, having been born in October 2004.

Circumstances of the offending

3The circumstances of your offending are set out in the typed prosecution opening.[5] For present purposes, it can be briefly summarised as follows.

[5] Exhibit A.

4At approximately 1:20am on 3 December 2022, the 24 year old male victim, Benno Negri, was walking north along St Crispin Street, in Richmond with a friend. At one point, Mr Negri walked by himself to a carpark situated between Charlotte Street and Swan Street. While in that carpark, Mr Negri noticed a black hatchback vehicle drive north from Swan Street into St Crispin Street and then enter the carpark. When the driver stopped the vehicle close to Mr Negri, he started to feel unsafe and so, began walking towards St Crispin Street.

5You and an unknown male then exited the vehicle and approached him. The victim took his mobile phone out in case you needed assistance with directions. However, your co-offender demanded that Mr Negri give him the phone. When the victim took a step back, your co-offender then grabbed him by the shirt collar and stated, ‘Come back here’. In response to Mr Negri saying, ‘Are you serious?’, your co-offender replied, ‘Yeah I fucking am’. Mr Negri then handed over his iPhone to your co-offender.

6At that point, you told Mr Negri to empty his pockets and then took possession of his wallet containing a small amount of Australian and US currency and various personal cards, including his driver’s licence, bank card, Working with Children Check and university card.

7You and your co-offender then escaped from the scene in the same vehicle in which you had arrived moments earlier.

8The conduct in which you and your co-offender engaged, as just described, forms the basis for the offence of robbery alleged in Charge 1 on the indictment. The prosecution case is put on the basis that the two of you acted in accordance with a pre-arranged plan to rob the victim of his valuables.

9After being robbed, Mr Negri returned home and then reported the matter to police who took a statement from him and seized his t-shirt.

10Later in the morning, police obtained relevant CCTV footage from a number of businesses located near the crime scene. It showed you and your co-offender travelling in a black Ford Focus XR5 and the victim and his friend walking. At 1:16am, the footage depicts the vehicle making a U-turn in the carpark and then stopping, after which you and your co-offender are seen to walk towards Mr Negri and later run back to the vehicle and leave the carpark.

11Two days later, on 5 December, you were intercepted by police driving the same vehicle as depicted in the CCTV footage. Police checks revealed it was registered to your mother.

Arrest and interview

12You were arrested at your family home on 20 December 2022, at which time police executed a search warrant. The black Ford Focus XR5 was located, seized and ultimately examined. The police search of the house located your mobile phone and the distinctive black t-shirt that you can be seen wearing in the CCTV footage. The police search of the vehicle located Mr Negri’s driver’s licence in the rear pocket of the driver’s seat and his bank card on the rear driver’s seat. Police also located four zip lock bags which contained a net quantity of 1.6 grams of cocaine. Your possession of that cocaine forms the basis for the offence of possession of a drug of dependence, alleged in Charge 2 on the indictment.

13When you were later interviewed by police, you told them the following, inter alia:

·You denied being in Richmond at approximately 1:20am on 3 December, saying ‘No, I wasn’t there’;

·You confirmed that you drove the black Ford Focus XR5 registered in your mother’s name;

·When shown some of the CCTV footage, you confirmed that you were in the vehicle and driving in the general area, but claimed that you turned left on St Crispin Street to skip traffic; and

·You denied robbing anyone and said that you had no reason to do so.

14You were subsequently charged and released on Youth Justice Supervised Bail.

Guilty plea

15You have pleaded guilty at what I regard to be an early stage, about which I will say more later in these sentencing reasons.

Subsequent criminal history

16Mr Mala, I note that you fall to be sentenced as a person who had not been previously found guilty or convicted of any criminal offences at the time that you committed the current offences of robbery and possess cocaine.

17However, you have a limited but very relevant subsequent criminal history which involved earlier offending for which you were subsequently convicted.[6] Whilst you are not to be sentenced again for that other offending, it is clearly relevant to this court’s consideration of your prospects of rehabilitation, your level of moral culpability, and the weight to be accorded to such sentencing principles as specific deterrence and protection of the community. In order to illustrate its relevance, I will need to describe that other offending in some detail.

[6] See Police Criminal History Report (exhibit C).

18On 4 August 2023, you pleaded guilty and were sentenced in the Melbourne Magistrates’ Court in relation to one charge of robbery and one charge of intentionally causing injury for which you were convicted and placed on a 24 month community correction order which included conditions requiring you to perform unpaid community work, undergo supervision, undertake treatment and rehabilitation for drug and alcohol abuse or dependency and engage in offending behaviour programs.

19Those two offences were committed in the course of a single incident that occurred in the very early hours of 1 December 2022, so only two days before your current offences were committed. As with your current offences, that other offending occurred in company and targeted an isolated and vulnerable male victim who was unknown to you and just going about his normal affairs in a public space.

20The victim travelled to the city intending to watch a World Cup Soccer match on the large screens at Federation Square. As he was walking in the city at about 3.00am, you and the other young males in your group followed and then confronted him. You commenced the attack on the victim and then took a leading role in what followed. You launched the assault by punching the victim to the face. You then grabbed him in a headlock and threw him to the ground. You then kicked him while another offender stole his mobile phone. When the victim tried to get his phone back, he was taunted and slapped to the face. As the victim continued to plead for the return of his phone, you threw it on the ground, smashing it.

21After moving away from the victim, your group then re-approached him. You then grabbed him, kneed him to the head and then kicked him to the head as he lay submissively on the ground. You then threw his mobile phone onto the roof of a nearby building.

22On returning to the victim, you kicked him to the face while another member of your group also kicked him and stole a number of his personal items.

23By this time, the victim was unable to stand up.

24Notwithstanding that fact, you chose to continue the assault by kicking him to the head. Another male then joined in and kicked the victim to the face several times. You then stomped on his head, rendering him unconscious. He remained unconscious for about 5 minutes.

25The victim was later examined and treated at the Alfred Hospital, where he spent four days. He was found to have suffered a brain bleed, concussion, fractured ribs and extensive bruising.

26At the time of this offending, the victim was aged 40, while you were aged 18,[7] unemployed and residing in the family home.

[7] Mr Mala turned 18 in October 2022, which was only two months before the date of this offending.

27When you were interviewed about that incident on 20 December 2022, you mainly exercised your legal right to answer ‘no comment’. However, you admitted to having been in the CBD at the relevant time and identified yourself and the victim when shown some the CCTV footage and a number of stills taken from it. But, you falsely claimed that the victim had approached your group and was acting really aggressively.

Personal circumstances

28I now turn to consider your personal circumstances, Mr Mala.

29You are of Albanian descent and come from a loving and supportive family.

30You attended Trinity Grammar and completed Year 10 in 2020. However, during Year 11, you struggled with the socially isolating effects of COVID. As a result, you lost interest and motivation in your schooling and left before completing Year 11.

31After leaving school, you worked in a restaurant for three months and then with your father in the family air conditioning manufacturing business for nine months. You then commenced an electrical apprenticeship with the business ‘Upgrade Electrics’ in December 2022. You are currently completing that apprenticeship at another business, ‘ESC Electrical’, where you work full time.

32You commenced using cannabis at age 16, during the COVID lockdowns.

33Later, you developed a significant cocaine addiction, using up to 1.5 grams daily.

34You underwent a two week period of drug and alcohol detox in September 2022 but relapsed three weeks later. Whilst you are not currently using any illicit drugs, the clinical neuropsychologist, Dr Staios, notes that you are still in early recovery from drug addiction and require additional intervention to assist with moderating your level of risk.[8]

[8] Report of Dr Staios dated 2 July 2023, [7.3] (exhibit 5).

35In the lead up to your offending in early December of 2022, a number of events occurred which your counsel relied on to provide a context to that offending.

36In mid-March 2022, one of your close friends was murdered. As noted by Dr Staios, that traumatic event and the subsequent publicity it received, led to a decline in your mental health, including feelings of anger and disbelief.

37Then, later in 2022, your family took in an older male cousin for about four months. He provided you with emotional and practical support and the two of you became close. However, through him you also became friends with a number of people who you have since realised were a negative peer group. You were also using cocaine heavily during that period. Your cousin was later sentenced to a very lengthy sentence for attempted murder. You told Dr Staios that you viewed your cousin’s absence as a significant loss.

38On a positive note, you have taken significant steps to turn your life around for the better in the 18 months or so since you committed these offences. You have stopped using drugs, focused on completing your apprenticeship, engaged with your church and taken greater advantage of the support that you have in your family and in the broader community.

Matters in mitigation

39Your counsel was able to rely on a number of matters in mitigation on your behalf, Mr Mala.

40You pleaded guilty to these offences at what must be viewed as an early stage given your earlier attempts to resolve this matter to a charge of robbery. That offer was first made before the committal mention hearing, in April 2023, but was rejected then and on later occasions. In fact, it was only quite recently that the prosecution were prepared to drop the more serious charge of armed robbery.

41By pleading guilty as and when you did, you have spared the victim from the ordeal of giving evidence at a trial and demonstrated a willingness to facilitate the course of justice. You have also saved the community from the cost and time of a trial. There is a significant utilitarian value in you having taken the course that you have, particularly given the COVID related trial listing pressures that this court was experiencing for most of 2023.

42I accept that your plea, efforts to rehabilitate, consent to a compensation order, and the observations of Dr Staios and a number of your referees demonstrates that you are remorseful for what you did on this occasion. However, it may be that your level of remorse for and insight into your offending is not yet fully developed, perhaps due to your relative immaturity. In this context, I note that the author of the CCO suitability report dated 15 May 2024, notes that when interviewed by her you attempted to minimise your offending by stating that you did not ‘initiate the offending’ (that is, the robbery).[9] To my mind that suggests that you have not taken full personal responsibility for your actions given the offending involved a level of pre-meditation and was carried out in concert with the aim of assisting one of your friends who was in significant debt.[10]

[9] See CCO assessment outcome report of Ms Poutapu at page 2.1.

[10] Ibid at page 2.3.

43I accept that the delay in your case being finalised was not your fault and was a source of anxiety and uncertainty. I have taken that matter into account.

44You were only 18 when you committed these offences and are now 19. Under the law, you are to be sentenced as a ‘young offender’ as you are under the age of 21.

45You have no prior convictions or findings of guilt.

46As evidenced by the attendances at the plea hearing and the various written testimonials from your family, friends and employers and Church leaders, you continue to enjoy very strong family and community support.

47Understandably, your counsel relied on the fact that you have made a concerted effort to turn your life around in the aftermath of your arrest for this matter. Not only have you ceased using drugs and stayed out of any further trouble, but you have also engaged well while on Youth Justice Supervised Bail and while subject to your existing community correction order over the past 9 ½ months.

48It is commendable that you have been able to balance those demands with your full time employment and the TAFE aspects of your apprenticeship.

Gravity of the offending

49This court must also have regard to the objective gravity of your offending.

50The offence of robbery is an inherently serious one given the relatively high maximum penalty of 15 years’ imprisonment.

51The robbery that you committed was a relatively serious example of its type. Whilst it did not involve the use of any physical force or violence, it was still no doubt a frightening experience for the victim who was alone and isolated. It was committed in company, at night and in circumstances where the victim was unable to raise an alarm. The theft of the victim’s mobile phone left him without any means by which to readily seek help or report the crime. And, it was no doubt a matter of concern to the victim that the offenders had access to his personal information via his driver’s licence and potentially, through his mobile phone and bank card. In my view you played an equally significant role to that of your co-offender in this incident. It was your vehicle that was used to approach the victim and then flee the scene. And, it was you that took the victim’s driver’s licence, bank card, and other personal documents after first demanding that he ‘empty his pockets’. I consider your level of moral culpability to be relatively high in this instance.

52As for the possession of a drug of dependence offence, I consider it to be neither a serious nor a minor example of its type.

Sentencing principles

53In this case, your youth and prospects of rehabilitation assume significance in the sentencing task. I consider those prospects to be very good but somewhat dependent on your willingness to continue to address your drug problem and your underlying mental health problems, including unresolved grief and loss and anger management.

54Whilst not as significant, general deterrence and denunciation are still relevant considerations.

55I also consider that specific deterrence and protection of the community are germane to this sentencing task. Your current offending was, on your own admission, drug fuelled. It was also very troubling as you appear not to have reflected on or reconsidered the similar but even more serious conduct you had engaged in two days earlier. Whilst your positive efforts since being arrested are commendable and go some way towards reducing the significance of these two sentencing principles, they do not extinguish them altogether. Thus, I consider it necessary to impose a sentence designed to personally deter you from offending in this or any similar manner in the future and that serves to provide some measure of protection to the community.

56You must be punished in a manner and to an extent that is just in all the circumstances. In order to be just, any such punishment must involve a conviction, ongoing court supervision, and both punitive and rehabilitative aspects.

57The totality principle must also be considered. Had the prosecution accepted your plea offer when first made, you may well have been able to consolidate all of the charges relating to the 1 and 3 December 2022 offending into a single plea hearing. Had that occurred, I consider it likely that you would have been convicted and placed on a lengthier and more punitive community correction order than the one you received on 4 August 2023.

58So, care needs to be taken to ensure that you are now sentenced in a way that ensures the totality of your two sentences combined is commensurate with the total level of criminality of your offending, no more and no less. In that context, it is important to bear in mind that you have already been punished to a degree for your earlier offending as you have been complying with your existing community correction order over the past 9 ½ months.

59The proposed community correction order for your current offending will extend beyond the period of your current order by a period of about 9 ½ months. But, during the time that both orders are in force, many of the conditions common to both orders will run concurrently. However, the community work component and the mental health treatment and rehabilitation condition will be additional requirements under the proposed order.

60I note that the parity principle does not require consideration in this case as your co-offender in the robbery offence has never been identified, let alone sentenced.

Sentencing submissions

61In his sentencing submissions, your counsel placed significant reliance on your youth, lack of prior convictions and efforts to turn your life around since being arrested and charged. He urged the court, in line with established sentencing principles, to give emphasis to your young age and prospects for rehabilitation in the sentencing calculus. In his submission, it was both open and appropriate to place you on a relatively lengthy and suitably conditioned community correction order for this offending.

62Whilst noting the seriousness of this offending, counsel who appeared on behalf of the prosecution acknowledged that a community correction order was within the available range in all the circumstances.

Analysis

63In this case, the court is required to sentence a young offender with no prior criminal history for a relatively serious offence, namely robbery.

64In such circumstances, the offender’s youth and prospects for rehabilitation are paramount considerations, albeit the latter consideration must also be viewed in the context of the earlier offending incident for which Mr Mala was subsequently convicted.

65As is made clear in the Sentencing Act, imprisonment is a sentence of last resort. That is particularly so for a young offender in recognition of their relative immaturity, capacity for change and the negative polluting nature of a prison.

66As was made clear by the Court of Appeal in Boulton’s case,[11] a community correction order is unique in its capacity to combine both punitive and rehabilitative focused measures in a single order and can be an appropriate disposition even for serious offences.

[11] Boulton v The Queen (2014) 46 VR 308.

67In my view, it is in the best interests of the community and Mr Mala to take such a course in the particular circumstances of this case. The community has a significant stake in the rehabilitation of offenders, particularly young offenders. In short, the community is better protected and served by such offenders leading more productive and crime free lives.

Sentence

68Mr Mala, after having carefully considered, balanced and weighed the relevant sentencing considerations in your case as best I can, I have decided to sentence you as follows, providing that you consent.

69In respect of both charges, you will be convicted and sentenced to a 24 month community correction order, with the following core conditions:

·You must report to the offices of Reservoir Community Correctional Services within two clear working days after the commencement of this order;

·You must not commit any offence punishable by imprisonment while the order is in force;

·You must comply with any obligation or requirement prescribed by the relevant regulations;

·You must report to and receive visits from the Secretary;

·You must notify a Community Corrections Officer of any change of address or employment within two clear working days of the change;

·You must not leave Victoria except with the permission of the Secretary; and

·You must comply with any direction given by the Secretary that is necessary to ensure that you comply with the order;

70In addition to those core conditions, the order will also have the following additional conditions:

·You must perform 150 hours of unpaid community work, as directed;

·You must be under the supervision of a Community Corrections Officer for a period of two years, as directed.

·You must undergo assessment and treatment (including testing) for drug abuse or dependency, as directed;

·You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed;

·You must participate in programs and/or courses that address factors relating to the offending, as directed;

·You must re-appear at court for a review of your compliance with the order, as directed, with the first review to be conducted in this court on 9 September 2024 at 1:00pm;

·50 hours of treatment and rehabilitation satisfactorily undertaken by you are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition; and

·I further direct that the community work hours are to be served cumulatively with regard to the community correction order imposed on case number N12738214.

71Mr Mala, one of the core conditions requires you not to commit any further offences during the period of the order. If you reoffend at any stage during the next 24 months and/or fail to comply with any one or more of the other conditions, you could be charged with breaching this order, an offence which carries a maximum penalty of three months’ imprisonment. Not only could you be sentenced for that offence, but you could also be sentenced afresh for the offences for which you will be placed on this order today. If that were to happen, you could receive a more severe sentence and even be sent to prison. Do you understand all of what I have just told you, Mr Mala?

72OFFENDER: Yes, Your Honour.

73HIS HONOUR: Stand up and approach the microphone please.  Are you prepared to consent, that is agree, to being placed on this order today and to abide by all of its conditions?

74OFFENDER: Yes, Your Honour.

75HIS HONOUR: Very well. You will now be asked to formally acknowledge that consent by signing the order. To facilitate that process, you may now leave the dock and take a seat behind your counsel. My associate will provide you with the order to sign and your counsel can provide you with any assistance if you need it.

76(Order signed by the offender).

77Please stand up and approach the microphone at the Bar table, Mr Mala. Is that your signature on the order, Mr Mala?

78OFFENDER: Yes it is.

79HIS HONOUR: Just remain standing there for the moment.

80Very well.  I have just signed the order and so it is now in force.

81Please do not leave the court before you are provided with your own copy of this order, Mr Mala.

Section 6AAA indication

82Pursuant to s 6AAA of the Sentencing Act, I indicate that had you been convicted at trial for the offences in this indictment, you would have been sentenced to a lengthier and more onerous community correction order.

Ancillary order

83I am prepared to make a disposal order relating to the cocaine, in the terms sought, pursuant to s 78(1) of the Confiscation Act. I note that through your counsel, you consented to such an order being made, Mr Mala.

84I am also prepared to make a compensation order in the sum of $1087.00 payable to Mr Negri, pursuant to s 86 of the Sentencing Act 1991.[12]

[12] Mr Mala consented to this order being made.

Other matters

85Are there any matters that counsel need to raise at this stage in relation to either the sentence or the sentencing reasons, starting with you, Mr Andrianakis?

86MR ANDRIANAKIS: No, Your Honour.

87HIS HONOUR: Ms Johnson?

88MS JOHNSON: No, your Honour.

89HIS HONOUR: Mr Mala, before I adjourn the court, there are a few things I want to say to you. So, listen carefully. Please don’t waste this opportunity. This community based order has a number of conditions that are designed to help you to continue with your attempts to turn your life around and rehabilitate.

90But, you must understand and not forget that overcoming a drug problem is a long term process and addressing your mental health issues will not be easy. It will take considerable effort and discipline on your part to be successful.

91Please don’t make the mistake that some people who are placed on a community correction order make, namely prioritising work commitments or other aspects of your life above the obligations of the order. That would be very unwise and when you think about it, Mr Mala, you can’t work if you end up being sent to prison for breaching the order. So please remain focused on getting through this order over the next 24 months. If you do, that will be the end of this matter and you can then move on with your life. Alright?

92OFFENDER: Yes.

93HIS HONOUR: Adjourn the court please, Mr Tipstaff.

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