Director of Public Prosecutions v Mehmet
[2018] VCC 1511
•14 September 2018
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 18-01300
Indictment No.J10642079
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MEHMET MEHMET |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 September 2018 | |
DATE OF SENTENCE: | 14 September 2018 | |
CASE MAY BE CITED AS: | DPP v Mehmet | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1511 | |
REASONS FOR SENTENCE
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Catchwords: Attempted armed robbery; prohibited person possess imitation firearm; Offending in currency of CCO.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Cameron | Office of Public Prosecutions |
| For the Accused | Mr Barrera | Stary, Norton, Halphen |
HIS HONOUR:
1 Mehmet MEHMET earlier this week you pleaded guilty to one charge of attempted armed robbery and one charge of being a prohibited person in possession of an imitation firearm.
2 You have admitted a criminal history before the courts. You were on a community corrections order at the time of this offending
3 The maximum penalties are 20 years' imprisonment for Charge 1 and ten years' imprisonment for Charge 2.
Facts
4 On Monday 10 September the prosecutor Mr Cameron opened this matter to me in accordance with a written prosecution opening dated 10 July 2018. That quite lengthy document was read aloud and marked as Exhibit A on the plea. Your Counsel took no issue at all with the Crown opening. This was an agreed statement of facts. I will sentence in accordance with those agreed facts and I see therefore, no need to describe the full factual setting in these my reasons.
5 You did not need to hear your own counsel concede the seriousness of the offending to know how serious your conduct was. You recognised the seriousness of your offending in the very full admissions which you made in the course of the police interview.
6 Your victim was a man named Jim Maragos. You and your co-accused, a man named Nick Cheaib attended at your victim’s home in the early hours of the morning on Thursday 22 February this year. The two of you lay in wait. You believed that there were large amounts of cash in the house. Now, you did not know your victim at all. You had never met him. Your co-accused did know him. His partner (or ex-partner, it is not clear which) Fiona Schoppe was friendly with the victim’s wife. Ms Schoppe had seen large sums of cash in the victim's home. Whether innocently or otherwise, your co-accused obviously got wind of that fact and he shared that detail or knowledge with you. Together then you hatched this plan that unfolded on 22 February 2018.
7 You and your co-accused drove to the area of the house at around 4.30 am on the day in question. You waited. Your victim reversed out of his drive at about 6.10 am and was locking the gate when you and your co-accused pounced. You came up behind him. You stuck an imitation shotgun into his ribs from behind and yelled for him not to move. Cheaib wore a balaclava and was carrying a machete. You were wearing gloves. Presumably you were going to accost your victim and take him inside his house to take the cash that you believed was inside. Of course I am not sentencing you for aggravated burglary or even attempted aggravated burglary as this plan unravelled when your victim put up some physical resistance. It did not take much, but your co-accused took fright and he ran from the scene. He discarded his gloves and the machete and some clothing nearby and then fled on foot. You called out to him “Nick Nick Nick” as he ran away. You were left in the lurch by your co-accused, there is no question about that.
8 You were then involved in a prolonged struggle on the ground with your victim. It is described in some detail in the agreed opening. It went on for some minutes, It was accompanied by your victim screaming out for help. His wife came out at one point and saw what was happening and was terrified by the spectacle. Some neighbours came out and also saw the final phases of this struggle. The struggle on the ground went through a number of phases. At one point you were on top of your victim and he could see the firearm by his head. At another time your victim had gained control of the firearm and actually tried to discharge it at you. Of course, there can be no criticism of him for that. This was, as far as he could determine, a fight for his life and one with an armed offender. So he fought you, he struck you, he bit you. You fought back. There was something of a stalemate or an impasse. Ultimately you agreed to leave the scene if he let you go. He let you go and you ran to the white car you had come in and you then drove away, but in doing so you left a number of items including your wallet, one of your gloves, one of your shoes, a sock as well as the imitation firearm that you had been holding.
9 Police were called by the terrified wife. They attended. Your victim was treated at the hospital later that day for superficial lacerations. Your apprehension was pretty much a certainty given the loss of your wallet and what was contained within it, and you attended by appointment at the police station and made a very comprehensive interview on 7 March 2018. You made very complete admissions and you have been in custody since. Your co-accused is going to a contested committal, listed on 8 October and you will be called to testify against him. You are a critical witness.
Impact
10 Your victims have both made victim impact statements. That is, your direct victim and his wife. They were both read aloud to me on the plea and no issue was taken with the impact materials in this case. Now the physical injuries to your immediate victim, Mr Maragos were relatively superficial as I have said. The mental scars run far deeper both for him and for his wife, as I am sure you understand. I am not going to recite all of the impacts in these my reasons. I have read the impact statements again since the plea. There is nothing at all surprising in the way that this family has been affected by your crime. This was frightening offending and it has had lasting impact. It is very plain that your offending has had a very serious impact upon your victims in so many aspects of their lives. It intrudes into the way that they live and the way they bring up their children and the freedoms that had previously been afforded, which have been curtailed. You have shaken the sense of safety that they previously felt in their lives. So I take the serious impact of your crime into account.
Mitigation
11 Your counsel, Mr Barrera raised a number of matters in mitigation in an excellent and thorough plea conducted on your behalf. He had prepared an equally excellent written outline of submissions that was marked as Exhibit 2 on the plea. He relied mainly upon:
· Your level of cooperation and your early guilty plea;
· The presence of remorse;
· The fact of your undertaking to give evidence in the case against your co-accused;
· He took me to your background in some detail and to the decline in your life and the level of desperation that you were feeling in the lead up to the offending;
· He made submissions as to the relative seriousness of the offending:
· He relied also upon a large amount of written materials including but not limited to a report from Dr Aaron Cunningham as well as material from Justice Health, Monash Health and Alfred Health. Also a community corrections order breach report, a course completion certificate, a letter from Forensicare and a personal reference from Ms Tye.
· He submitted that you had reasonable prospects in the future but conceded the inevitability of further imprisonment over and above the period you had already served.
· He argued that a combination type disposition was open here and he took me to a table of cases where Judges of this Court have used such an option.
Prosecution
12 Mr Cameron, who appeared on behalf of the Director of Public Prosecutions, whilst accepting the existence of a number of matters in mitigation argued against the availability of a combination type disposition in this case. He had prepared some excellent written submissions as to sentence, marked as Exhibit 3.
13 What it really came down to was that the offending was just too serious. That was the effect of the various prosecution submissions. So the Director of Public Prosecutions of this State was calling for a head sentence with a
non-parole period.
Guilty plea
14 Let me then turn to the matters raised in mitigation. You have pleaded guilty and you have done that at what I will treat as the earliest opportunity. That is important. I take that early guilty plea into account in mitigation of sentence. You have taken very early responsibility for your offending. This was plainly a disturbing and distressing event for your victims. You know that. The impact statements spell that out. It can also though, be a distressing experience reliving the event when giving evidence and Mr Maragos, and his wife and other witnesses have been spared that experience at least in your case. You are not responsible for the stance being adopted by your co-accused. You cannot control his case. You can only control your own case and in your case, the community has been saved the time, the cost and the effort associated with the conduct of a committal hearing in the Magistrates' Court or a trial in this court.
15 The witnesses have been spared the unpleasant experience of giving evidence in your case. So in these ways you have facilitated the course of justice, and I must reward you for your decision to plead guilty and at the early stage which you did and for taking responsibility in the way that you did. I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury. I also take into account your full and comprehensive admissions made to the police. You co-operated really very fully with the police which is another matter in mitigation, obviously.
Remorse
16 As to remorse, you have pleaded guilty. You have done that at the earliest stage and you have also expressed remorse in your discussions in the interview and with others, including Ms Tye, Dr Cunningham and some of the people providing services spoken of in the Justice Health file. You made very full admissions to the police and you sought to explain how you had sunk so low but you were not trying to justify what you had done. I am actually prepared to find that in your case, that you do feel actual remorse for the crime that you have committed and for the impact caused to your victims. You recognise the damaging nature of this attendance. There is a level of empathy that is clear to me, from your utterances. So I take that into account in your favour as well.
Co-operation and undertaking
17
I turn now then, to your co-operation and the undertaking that you have made. You have made a comprehensive statement to the police detailing the way in which this crime came to be committed. You were called earlier this week on the plea, you adopted that statement as true and correct and you gave an undertaking to give evidence both at the committal and at the trial of your
co-accused if required. Your statement was marked as Exhibit 1 on this plea. It is obviously a highly valuable statement and plainly you are a critical witness. With your promised future assistance, the case against your co-accused is an overwhelming one. Without you, it is I imagine weak at best. Your co-operation and your preparedness to assist and to give evidence is a powerful mitigatory feature here. It is obviously in the public interest that your undertaking be amply rewarded and it will be. Your co-operation is genuine, it is of very substantial worth or weight and I believe it is also motivated not purely out of self-interest. I have a sense that you are also endeavouring to actually make things right. You are ashamed of having been involved in this and seek to rectify that.
18 Now there is no such thing as a standard discount or some formula to apply in this setting. Each case will be different. There is no mathematical or mechanical process for fixing the value of the discount, nor do the cases in this area encourage me to set out the actual level of discount applied. Indeed they discourage that sort of approach. However I want to make very plain to you, that it is a very substantial discount in this case for the reasons that I have announced. I have scarcely mentioned but mention now, the risks in custody posed to one such as you, who takes this sort of stance though of course I factor that in as well. It is likely to increase to some extent your custodial burden and I take that into account.
Background
19 I am not going to work my way through your background, chapter and verse. I have been taken to your background in great detail. There is a very detailed chronology prepared by your counsel. Also a report from Dr Cunningham as well as many references in the Justice Health material to your family background. I have no reason to doubt any of that material detailing your background and I do accept the background placed before me on the plea. You were 38 years' of age at the time of the offending. You are 39 now. You had, it seems to me at least, a most disadvantaged background, forced to leave the family home when still very young and then unfortunately suffering abuse at the hands of your uncle. You had very poor role models in your early life and little by way of schooling. You were expelled in Year 7.
20 You have had some long term issues with mental health concerns as well as obvious sizeable issues with drugs in your life. You started using drugs at a ridiculously young age probably courtesy of exposure to your uncle's influence and drug use had surfaced again in the time frame of this offending. So I take into account your early disadvantaged background as far as I am permitted to. There is quite a lengthy history of mental health issues in your case. You have had a community treatment order in the past. There have been a number of admissions in the past as well, and a number of suicide attempts. Nor do you function at a high level cognitively. Dr Cunningham’s testing discloses the existence of an intellectual disability. Also a post-traumatic stress disorder. As strange as it sounds, as unpleasant as it is to be in prison, my perusal of the Justice health materials does confirm what your counsel submitted; that you have actually significantly improved in the period you have been held in custody. That is because you have engaged in and received a number of useful pieces of treatment. You have done a course and you have been working as a billet. You have actually started to deal with some of those issues connected with your abuse at the hands of your uncle. In your statement marked as Exhibit 1, you speak of some of the benefits to you of actually having been locked up.
21 You do have a criminal record. You know that and of course it has some relevance obviously to my task, but it seems to me that it perhaps looks a little worse than it is, courtesy of some fine conversions to community correction orders and then conversions back in the other direction. Those appearances pad out the history. You were on a community corrections order at the time of this offending so of course that is of some significance. There is a breach report placed before me, marked as Exhibit 9 but it is not the worst breach report I have seen. Far from it. You are being taken back for breach of that order and a consolidated plea later this month, but it is plain enough that you actually engaged quite satisfactorily and made some real efforts on that order.
22 Of course you also chose to commit the most serious offence you ever have committed in the currency of that order. However everything that I know of you suggests that this style of offending is somewhat foreign to you. There is no offending anywhere near as serious as this in your past. There is also a very large gap of close to 11 or 12 years where you obviously had stayed out of trouble. So the criminal record is relevant but it does not suggest to me that you are without hope. In fact I am rather encouraged by your interview and by your forthright admissions to the police. Also by your undertaking to give evidence. Also by my finding as to the presence of remorse. These things all speak of someone who is eminently reclaimable.
23 It seems to me that you had sunk quite low with a succession of events in your life leaving you ripe for this sort of temptation. There was obviously the lure of easy cash. That is what this was all about. The chronology and the other materials show you were not travelling at all well for a sizeable period, with the breakdown in your marriage and separation from your children, estrangement from your grandmother and from other family members, a suicide attempt in late 2016 then again in March 2017. Admission to Windana for some months from April 2017, the community corrections order from May 2017, exit from Windana in August and then another suicide attempt shortly after. See the Monash Health materials. You reconnected with Ms Tye early in 2018 and that has obviously been a positive thing. That is spoken of in the Justice Health materials.
24 You had a car accident in mid-January 2018 and you were discharged from hospital on 12 February 2018. You were pretty much homeless and committed these offences shortly after. The Justice health file spells out the serious concerns held for you upon receipt. The CCO report confirms some of the difficulties you had been encountering whilst at large in the community. You were obviously in a very poor frame of mind and you look a lot better six months later by all accounts. I have in fact read all of the Justice health materials to this point. I had not had a chance as at the time of the plea as that material had not been filed in time. In fact, none of the material had been. Your counsel took me to only a few references within the 40 pages of the Justice health material, but was arguing that the material generally showed an improvement. Having read that full file now, he is right. It does. It demonstrates that you have made some significant gains and that is a positive as well.
25 As I have said, there is nothing in your criminal history suggesting to me that you are beyond hope. Not at all. One would hope and trust that you never find yourself in this setting from which you launched this serious and dangerous escapade. I do not doubt for one moment that your co-accused placed this idea into your head. He had the inside knowledge of the existence of the money. You did not. He knew the victim. You did not. I do not believe that you would or could have hatched this scheme on your own, but by the same token Cheaib did not hold a gun to your head. He provided the information and the encouragement and the weapon and the motivation, but you went in with your eyes wide open. You knew how serious this all was. You had ample opportunity to pull back from the brink but you chose not to.
Rehabilitation
26 I turn then to your prospects of rehabilitation but in a way I have already given some pretty strong indications as to my conclusions in the reasons to this point. This was serious offending. Make no mistake about it. But committed by one without any such serious history. It suggests to me that you had sunk very low indeed and yielded to the temptation that came your way. Homelessness, joblessness, divorce and family separation and your 16 year old daughter coming back into your life. A return to drug use on your part and really, your having nothing to show for yourself and no place to live. You took a disastrous shortcut or tried to and as is the way with some shortcuts it has been quite illusory.
27 You were an equal player in the execution at the scene on the morning. You drove there. You acted in company with Cheaib. You held the gun. You were on a community corrections order at the time which of course cannot be ignored. You have not taken some of the opportunities offered by the courts over the years. However again I say, that your interview is really quite impressive and it suggests to me that you are awake to the seriousness of this terrible choice that you have made and the serious impact that it has had on your victims. You are not revelling in the offending and indeed you never have. Your statement confirms that as well. In the interview, you really could scarcely believe that you had committed an offence as serious as this. As I have said, I find that you are actually remorseful.
28 You have been in prison already for quite some period and it is your first taste of such an existence. You have taken the significant step of making the statement and undertaking to give evidence against your co-accused. That is another step suggestive to me of your potential reformation. You also have some level of support offered up by Ms Tye, who again is present here today. You will be to an extent supported upon your ultimate release and you will be to an extent, I believe, deterred by the sentence that I will soon pass. Your counsel argues that for the reasons set out in paragraph G of his outline that you have reasonable prospects of rehabilitation. I think the Crown was suggesting perhaps, I should be a bit more guarded than that and find only that you had fair prospects. Whether fair or reasonable, there is not much in it as far as I am concerned, but I accept the submission from your counsel as to you having reasonable prospects. I think they are reasonable.
29 I take into account all of the written material that has been placed before me, I will not descend into the full detail of it. I have read it all again since the day of the plea. I take into account also, the oral submissions of your counsel.
The Offences
30 As to the offences themselves, your counsel accepted that this was serious offending and clearly he was right. This was premeditated planned serious criminal conduct. Attending in the early hours in company, with weapons, intending to bail this man up as he left his own home. That is then what took place. It is no comfort for him to learn after the event that the actual gun pressed up against his body was an imitation or that you did not intend to hurt him. He had no idea and he thought he was in a fight for his life as he rolled around on the ground with you. As I said on the course of the plea, there are very many completed armed robberies that are far less serious than this attempted armed robbery. Though they as completed offences have the higher maximum penalty at play, many of those are committed with a very modest degree of planning if any at all, and with no actual force or physical violence. A demand is made, goods are surrendered. Well, that is not what happened here. There was significant enough planning here. A targeted crime with high yield hoped for. The carriage of weapons and a disguise and gloves. And laying in wait for him to exit his house. You did not need to be disguised as you were not known. The venue was in the vicinity of his home. So he was vulnerable as he exited his home and was then exposed to a very frightening joint offence with the demand and contact of the weapon to his body. There was then a struggle and some injury occasioned though I suspect that probably from that point, all you really wanted to do was to escape like your co-accused.
31 There has obviously been sizeable impact here and I am bound to take that into account. I am not sure there is any great utility in trying to characterise something as falling in a particular range. There was reference here to this offending falling in the lower mid-range. The prosecutor made that submission and your counsel seemingly adopted it. I am not quite sure what I am to make of that? What is in the upper mid-range? What is in the mid range? What is in the lower mid range? These tags are virtually meaningless. This was plainly serious offending though it was not close to the top of the tree if I can use that term. It was however a very very long way removed from the least serious example of the offence of attempted armed robbery. You were also a prohibited person.
Report of Cunningham
32 I have taken into account the report of Dr Cunningham. I have already mentioned aspects of that report to this point in my reasons. Your counsel explicitly stated that none of the 6 principles from the case of Verdins had any application here and I accept that submission. Still the report is of use to me and though the Verdins principles are not attracted, your background, your mental health concerns, your post-traumatic stress disorder, your level of functioning, all these and other matters are raised in that report and they are plainly highly relevant to my task. After all you are the person I am sentencing and that report casts a good deal of light in a number of important areas. So I take into account that report in the ways suggested by your counsel.
Purposes
33 I turn now then to the purposes of sentencing. I have to consider a number of purposes of sentencing. They are not limited only to looking at your prospects of rehabilitation or what is best for you. I cannot ignore your prospects though, reasonable ones in my view.
34 Consideration must be given to specific and general deterrence, to protection of the community, to denunciation and to punishment. I am required to impose a just and proportionate sentence in relation to your offending. You must be punished. You know that and you seemingly accept your lot. I must denounce your conduct and I do. Again, this was serious offending. You know that.
35 There are other purposes of sentencing and one of those is the need for this court to seek to discourage or deter you from offending in the future. I clearly must give that principle of specific deterrence some weight in my sentencing task, owing to the nature of your offending, your criminal history, and given that it occurred whilst on a community corrections order. By the same token though, I cannot just ignore what I believe are the quite realistic prospects that you have for rehabilitation. You are 39 and you have never committed an offence as serious as the attempted armed robbery before. As I have said, it suggests to me that you were ripe for temptation here and you were laid low by the various circumstances referred to in your interview. I believe that specific deterrence has been achieved to a degree already here, so there can be at least some moderation of that purpose. I must give some weight to protection of the community from you. Again though I believe that that can be moderated here to a degree. I would actually be surprised if you engaged in this sort of conduct ever again.
36 General deterrence is clearly a significant sentencing purpose in this case. That is admitted to be the position and this court must send a loud message, a clear message to other individuals in the community, to people who might be minded to commit this sort of serious and illegal targeted crime. I am speaking of the attempted armed robbery. This sort of conduct will not be tolerated by the courts and that message must be conveyed loud and clear. That it will almost inevitably be met with a sizeable term of imprisonment.
37 I must pay regard to current sentencing practices though that it is not a single controlling factor.
38 I have looked at the Sentencing Advisory Council's Snapshot No 212 of 2018 to which I was referred, but note immediately that it was for the completed offence of armed robbery. That crime has a higher maximum term. I was taken to that because the snapshot for attempted armed robbery is over a decade old and of no utility at all. I have also looked at the more recent SACStat data held at the Sentencing Advisory Council. The fact is, statistical material always has an inherent limitation. It says nothing at all about the individual features of the offence or of the offender and the snapshot to which I was referred is, as I say, for completed offending with a higher maximum. It really does not greatly assist me.
39 I have looked also at the table of cases selected by your counsel and marked as exhibit 10. I suspected that the table of cases would be of little assistance and that is the position I find myself in having read it more carefully since the day of the plea. Different offenders, different ages, different crimes, different venues, different aggravating features and different mitigatory considerations. Differences in virtually every direction. Yes they were all instances in which a Judge was prepared to impose a combination type disposition, though that was not the one and only available outcome in any of those cases. That is because there is no one true correct sentence. Another Judge may have taken a different stance in each one of those cases and not been in any way wrong. Further, there would be and are ample cases where head sentences and non-parole periods have been fixed. The table of cases was not of any great use to me at all. At the end of the day, what I have to do is pass an appropriate sentence in your case for your crimes.
40 Your counsel, Mr Barrera was arguing that it would be open to release you on to a suitably conditioned community corrections order. He was not by the way suggesting immediate or even imminent release in your case. The prosecution did not accept the availability of that type of disposition here.
41 I am not bound by any submission or argument as to penalty, either your counsel's or the prosecutor's. What I have got to do is exercise my own sentencing discretion in your case.
42 Mr Barrera was obviously basing his submission on the case of Boulton which you heard very briefly mentioned in the course of the plea.
43 It is obvious enough that not every offender for every crime can be admitted to a community corrections order. There are some crimes where the purposes of sentencing cannot be given adequate weight by the use of such an order, even when used in combination with a prison term.
44 What I have to do is pass an appropriate sentence.
45 Section 5(4C) of the Sentencing Act, prohibits the imposition of a sentence of confinement unless the court concludes that the purposes of sentence cannot be achieved by a suitably conditioned community corrections order.
46 There is just no question of a community corrections order on its own meeting all the needs of sentencing here. Confinement is obviously required in this case and your counsel concedes as much, but submits that I have the additional 12 months at my disposal from today’s date.
47 If a suitably conditioned community corrections order in combination with a term of imprisonment permitting your release in no more than 12 months from today could achieve all the needs of sentencing in this case, I would proceed in that way. Though there are some powerful mitigatory factors here, including of course your assistance to the authorities, and one can always see some advantages in a community corrections order, I am confident that it is not appropriate to impose a combination type order here. That sort of disposition would not achieve all the purposes of sentencing, including the need to punish, to denounce and to deter. I do not believe that it is open to me to structure sentences such that a community corrections order is available in this case.
48 Your crimes are just too serious. It is not available owing to the nature of your crimes, predominantly the attempted armed robbery, and my need to impose adequate and appropriate sentences of imprisonment. That is so despite a range of matters in mitigation. Those matters will operate to significantly reduce the individual sentences as well as the non-parole period. The Adult Parole Board will be in a far superior position to make judgements as to your needs in the future. That is not to say of course, that you will be released on parole. I hope you will be. But I do not know and I cannot speculate about that. I must work on the theory that you will serve every day of the head sentence of which I will soon pronounce. I cannot even take into account the possibility of your release on parole.
Totality
49 There is no alternative in my judgement other than to impose a term of imprisonment and to fix a non-parole period. I have taken into account the principle of totality. There is obviously a strong relationship between the two offences before me. You were in a team endeavouring to commit an armed robbery. You were armed with an imitation firearm and that, of course, is an integral part of that offence of attempted armed robbery. You were at the same time though, by way of status a prohibited person. The possession of the imitation firearm when prohibited is itself a serious offence. It would clearly fit into the more serious category of offending as discussed in the Court of Appeal decision of Berichon.
50 That is to say where possession is associated with some ongoing criminal activity. I note that the provision you are charged under is now in the Control of Weapons Act, not the Firearms Act, as was the position in Berichon's case, but the principles discussed in that case apply equally. As I say though, the carriage of that weapon is an integral aspect of the attempted armed robbery. It is an element. They are quite separate offences with separate elements, but. I believe that there should none the less be very sizeable concurrency here owing to the very close relationship temporally and factually. What I have to be awake to is the need to avoid double punishment in this case. I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you.
Forfeiture order
51 There is an application for a forfeiture order There is no issue in terms of the forfeiture order, is there?
52 MR BARRERA: No, Your Honour.
53 HIS HONOUR: Very Well. There is an application then, for a forfeiture order in this case. Previously it had been a disposal order, but of course there be need to maintain the weapon in the lead-in to the trial, if there be one, of the co-accused. I am satisfied then, that it is appropriate to make the order under the provisions of the s.151 of the Firearms Act and that the property, that is to say the imitation firearm be forfeited to the Minister. So I have signed that order.
54 There is no need to make a forensic sample order as your sample will be retained.
Sentence
55 Mr Mehmet can you stand up then please? I am sorry I have taken so long to get to this point, but I am now going to pass sentence upon you.
56 On the charge of attempted armed robbery, Charge 1 on the indictment, I convict and sentence you to 24 months' imprisonment. That is the base sentence.
57 On the second charge on the indictment, that is a prohibited person possessing an imitation firearm, I convict and sentence you to 12 months' imprisonment.
Cumulation
58 I direct then that 3 months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence.
Total effective sentence
59 This results in a total effective sentence therefore of 27 months.
NPP
60 I fix a period of 13 months during which you will not be eligible for release on parole.
Section 5 (2AB)
61 As I hope I have made plain, I am imposing a less severe sentence owing to your undertaking to assist the authorities in the prosecution of the case against your co-accused. You have undertaken to give evidence at committal and at trial and that fact is to be noted in the records of the Court. I am not required to specify the discount and some of the authorities discourage the provision of that sort of detail. I make very plain in this case there has been a very substantial discount applied to your sentence.
Pre-Sentence Detention
62 It is a period of 191 days, is it not?
MR BARRERA: Yes, Your Honour.
HIS HONOUR: There is a period of 191 days pre-sentence detention that you have already served and so I declare that has already been served in this case. That you have already done 191 days, and that declaration is to be noted in the records of the court pursuant to s.18 of the Sentencing Act.
Section 6AAA
63 I have told you that I have taken into account your guilty plea. Had you pleaded not guilty and been found guilty by a jury, I would have imposed a far greater sentence. Had you been found guilty of these offences following a trial, I would have convicted and sentenced you to 6 years' imprisonment. I would have fixed a non‑parole period of 4 years. So that statement made under the provisions of s. 6AAA is also to be noted in the records of the court. Just grab a seat then for a moment. I will see if there is anything that I have overlooked or anything else I need to do.
64 Are there any other matters then that I need to attend to at all?
MS GILLIS: No, Your Honour.
MR BARRERA: No, Your Honour.
HIS HONOUR: All right. He is in custody and he has come in custody, is there any need for me to make any sort of custody management directions, at all? Or not?
MR BARRERA: No, Your Honour. The mental health ward at (indistinct) are well informed.
HIS HONOUR: They are well and true awake, they are well and truly awake to his predicament.
MR BARRERA: Yes.
HIS HONOUR: I mean there is reference to that in the Justice Health folders.
MR BARRERA: Yes, Your Honour.
HIS HONOUR: All right. Thank you. I will just look at this order and make sure it is correct. Well look I have signed that order. So as I say then, it is a total effective sentence then of 27 months with a non-parole period of 13 months, of which he has done already 191 days. So you will go down and see him downstairs?
MR BARRERA: I will, Your Honour.
HIS HONOUR: Very well. All right. Well that completes the matter then, Mr Mehmet. You can go downstairs and Mr Barrera will come down and have a chat to you downstairs. All right?
MR BARRERA: As Your Honour pleases.
(At this stage the offender left the court.)
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