Director of Public Prosecutions v Mosawi

[2018] VCC 2234

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00065

DIRECTOR OF PUBLIC PROSECUTIONS

v

ILTAF MOSAWI

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JUDGE:	HIS HONOUR JUDGE MEREDITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 December 2018
CASE MAY BE CITED AS:	DPP v Mosawi
MEDIUM NEUTRAL CITATION:	[2018] VCC 2234

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MR J. SAUNDERS
For the Accused	MS K. BLAIR

1HIS HONOUR:  Mr Iltaf Mosawi, you have pleaded guilty to three counts of armed robbery and the related summary offence of committing an indictable offence while on bail.  Respectively these charges have maximum penalties of 25 years and three months' imprisonment.  Your matter was originally listed for trial before me on Monday, 12 November.  And your matter stood down for discussion between the parties and this resulted in you pleading guilty to the charges that I have referenced. 

2Originally, you faced some additional charges.  I revoked your bail and remanded you in custody on 12 November and ordered that a report to determine your eligibility for detention in a youth justice centre be provide to the court on the return of your matter.  The report writers have found you eligible. 

3On the hearing a preliminary jurisdictional issue was raised on your behalf and this concerned whether or not this court or the Children's Court had jurisdiction in your matter.  I made an extemporary ruling on this issue, however, in substance it involved, firstly, a consideration of the following background information.

4Your offending occurred on 20 April 2017.  You told police in an interview conducted with you shortly after this, that your date of birth was 1 January 1999.  Proceedings were commenced with charges being filed in the Magistrates' Court in April 2017.  You were committed for trial in this court from the Magistrates' Court having been represented on 12 January 2018.

5Your matter was then listed before me for trial with different counsel, Ms Blair and resolved ultimately in the circumstances that I have outlined.  Ms Blair submitted that I ought be satisfied on balance that you are a child and your matter remitted to the Children's Court.  The relevant legislation in s.3, provides that for that court to have jurisdiction, at the time of the commission of the offence in question, the offender must have been under the age of 18 years but not of or above the age of 19 years, when a proceeding for the offences commenced in the court. 

6Having regard to the date of birth that you provided, at the time proceedings were commenced, you would have been over 18 years of age and outside the definition of child for the purposes of this legislation.  In regard to this issue, evidence was lead seeking to establish that your date of birth was later than 1 January 1999 and the date of 15 June 1999 was nominated.  This would mean that you were under 18 years of age at the time of commencement of proceedings.

7Essentially, this evidence consisted of your brother recounting aspects of what he had been told by your parents concerning your birth and no further evidence was led.  In these circumstances, I made the finding that I was not satisfied on the basis of the evidence led that you were a child. 

8It followed then that I would not be transferring your proceeding and I would be sentencing you pursuant to the Sentencing Act.  Given the careful consideration given to the matter by both sides, I will mark for identification as exhibits the respective written submission of the parties.   

9So far as your offending is concerned, the prosecution summary of its circumstances answers was tendered and in addition, CCTV footage which depicted aspects of the offending.  All of your offending occurred on the one day, 20 April 2017, between approximately 11 and 11.45 pm, in company with four co-offenders.

10Respectively, the premises were the convenient store of a Caltex service station and two McDonald stores, all in the eastern and south eastern suburbs of Melbourne.  A stolen car was used to effect the offences, however, you are not charged with respect of the theft of this vehicle.  You entered the premises on each occasion in company with three others.  One or other of you, was armed with a 30 centimetre chrome dumbbell pole and efforts of disguise were made involving pulling a hoodie over your head, or adopting some form of facial covering. 

11At the Caltex service station, you were armed with the dumbbell pole.  Two staff members fled into a store room and two customers were approached and had items taken from them as well as moneys and cigarettes.  This constitutes Charge 1.

12At the McDonalds in Springvale, another offender wielded the pole, you and another took moneys from the till and enquiries were made regarding the safe and the manager and another employee, interrogated over this with moneys being taken from the safe and the drive through till.  This constitutes Charge 2.

13So far as Charge 3 is concerned, this involved another McDonald's store, this time in Chelsea Heights.  Another carried the pole, demands were made regarding the safe and tills with moneys to the value of approximately $2,600 being taken, as well as a phone and cigarettes which are not charged.  The vehicle you were using for getaway was followed by police.  You were not the driver, and it involved in part the air wing.  You were eventually found having left the car and in hiding.  When interviewed you made a substantially no comment record of interview.

14Turning to your background, you are now 19 years of age, soon to turn 20.  You came to Australia in 2004, having been born in Afghanistan.  You are the second of six children and at the time of your offending were a high school student, undertaking Year 12.

15After being released on bail in January of this year, you resided with an older brother who runs a travel agency.  You did some work with him and also undertook an electrician's pre-apprenticeship, as well as working on a casual basis in a car wash. 

16You have no pending matters other than a breach of a community correction order proceeding.  However, this relates to subsequent offending, and the actual basis on which the order was made pre-dates the offending that I am dealing with. 

17In the period leading up to your offending, you were abusing various drugs and you claim to have no memory of your offending.  You have a prior appearance at the Dandenong Children's Court in March 2017, and without conviction were placed on probation, as well as being subject of bail at the time of you offending with the sole special condition that you comply with this probation order. 

18To your credit, you have pleaded guilty and whilst this occurred at a late stage, it has resulted in you being presented on lesser charges and this may explain some of the lateness of your plea.  Your plea has facilitated the course of justice and importantly, it means that your victims have not had to attend court and relive their experience in front of a jury.

19Also, having regard to your plea and other material, I am of the view that you are remorseful.  Three of your co-offenders were dealt with in the Children's Court and received variously youth supervision orders and detention in a youth justice centre.  These offenders were sentenced under a different sentencing regime, than the one applying in the adult court system.

20Another co-offender was sentenced by Judge Dyer of this court, to a total effective sentence of three years, and six months imprisonment, with a two year non-parole period being fixed.  He faced three charges of robbery and not armed robbery, as you do.  Apparently it could not be established that he had knowledge of the dumbbell pole.  At the time of his offending he was on a community correction order which his offending breached.  He was older than you, being aged 20 at the time of sentence some 12 months ago.  And it appears that he was not assessed for placement within a youth justice centre.

21In sentencing you, I must have regard to the important sentencing principle of parity.  Equal justice requires identity of outcomes in cases that are relevantly identical.  It requires different outcomes in cases that are different in some relevant respect.  Disparity of sentence is justified by differences between co-offenders, such as age, background, criminal history, general character and the part played in the relevant criminal enterprise.

22There are significant differences between you and the other offenders.  Three of them were sentenced under a different sentencing regime.  The fourth was older and was on a community correction order at the time of his offending and had not been considered for detention in a youth justice centre. 

23Your comparative youth is a highly relevant sentencing consideration.  You have not received a sentence of confinement before and you have experienced a lengthy period on remand in the adult system and this, I accept, has not been easy for you.  Often a young person may not be fully developed.  They may be prone to act without regard to the consequences of their actions.  They may be more impulsive and for a range of reasons, regarded generally as less culpable than an older person.  They are also more amenable to change for the better.  Generally, they are considered to be more susceptible to a process of corruption occurring in an adult prison; it should not be forgotten that the best protection to be achieved for the community is the rehabilitation of an offender and an offender being led away from a criminal path.

24It is for these reasons why rehabilitation is given emphasis, in particular when dealing with young offenders.  Even persons such as you who have some criminal history.  Every case is different and it is fair to say that the more serious the offending, the greater the need there is to reflect other sentencing purposes such as punishment, deterrence and community protection.

25Yours is undoubtedly serious offending, but your youth and prospects of rehabilitation are very important and they require appropriate recognition by the court.  Here, your offending is characterised by a degree of planning.  The targeting of what are usually referred to as soft target premises and the use of the getaway vehicle.  On the date of birth of 1 January 99, you were just over 18 months[sic] at the time of your offending and at the time of my sentencing of you, you will soon reach the age of 20. 

26The progress that you have made on your release on bail in early this year is encouraging. I am of the view that your rehabilitative prospects are positive and your older brother, with whom you were living impressed me as an appropriate role model. You do appear to be waking up to yourself. To better assist in the sentencing process, I had you assessed to determine your suitability for detention in a youth justice centre. A court cannot impose a youth justice centre order without calling for an assessment and then being satisfied of one of the grounds set out in sections 32(1)(a) or (b) of the Sentencing Act. 

27That is, either the existence of rehabilitative prospects or impressionability of the offender to use his short hand.  As well, the offender must be under 21 years of age at the time of sentencing.

28In your case, the authors of the report indicate that you have been fond suitable for this disposition.  Having regard to the whole of the material, I accept their findings and in my view, your rehabilitative prospects are positive.  Amongst other things, the authors of the pre-sentence youth justice report state that, in regard to you, victim empathy and impact which has been a strong focus of your assessment, that you have acknowledged the significant trauma that your victims would have experienced, including feeling unsafe, unable to work and the flow-on effects of this on their daily lives.

29The authors say that when specifically discussing the victims, you took ownership of your behaviours and reported, "They didn't need to be there at that time."  To which you further explained that you felt sorry for the victims being placed in the situations in which they were.  You expressed regret about the circumstances that you had placed your victims in.

30You also reported that you had struggled with your most recent period of remand and you indicated to the authors of the report that you felt unsafe, targeted by other prisoners and were the youngest prisoner in the unit.  Discussions from the authors of the report with other prison staff indicates that whilst in custody, you have generally sought to isolate yourself. 

31In terms of your rehabilitative prospects, the authors of the report make the following points.  That excluding periods on remand, you have never received a custodial disposition before, that you have a limited history in both the child and the adult jurisdictions, that you identify a link between substance abuse and your offending behaviour and you report being motivated to engage in programs to address this.  You acknowledge the significant trauma that you have caused to your victims and the impact the offences would have caused on their daily lives, that you attended 30 out of 39 appointments with youth justice whilst you were subject to supervised bail, which demonstrates an ability to engage with supervision requirements, that you do have pro-social goals of future employment and education and you are described as being well-supported by your family.

32In determining whether or not to make a youth justice centre order, I just however have regard to the whole of the picture.  I note that the prosecution submit that a youth justice centre disposition is appropriate in your case and open.  That is not the end of the story, however.  I must reach my own independent view.

33Having regard to the nature of your offending and your age, your character, your past history and also the proper application of the principle of parity in sentencing as well as the appropriate application of other sentencing principles, I have anxiously considered your position and I have come to the view that appropriately balancing, fostering your rehabilitation and punishing you in denouncing your conduct can best be struck by detaining you in a youth justice centre for what will be a total of two years and nine months.

34It needs to be remembered that your rehabilitation will benefit not only you personally, but the whole of the community if that can be achieved.  The orders for your detention in a youth justice centre then, will be as follows.  Could you stand up?

35On Charge 1:  two years' detention in a youth justice centre and that will be the base sentence.  On Charge 2, 18 months' detention in a youth justice centre and I will cumulative five months of that term on the sentence that I have imposed on Charge 1 and the sentence I have imposed on Charge 3.  On Charge 3, 18 months' youth justice centre detention and I will cumulative four months of that sentence on Charges 1 and 2.

36Regarding related summary offence, I will impose a term of one month youth justice centre detention and that will be served concurrently with all other sentences.  So that makes a total effective sentence of two years and nine months' detention in a youth justice centre and I will declare pre-sentence detention at what I understand to be 305 days.  Counsel can just confirm that.

37MS BLAIR:  Your Honour, that was 305 on Friday.  So as of today it will be 308.

38HIS HONOUR:  Okay.  I will make it 308.

39MR SAUNDERS:  That's correct, Your Honour.

40HIS HONOUR:  Yes.  308, then.  Now, I am required to state the sentence that I would have imposed but for your plea of guilty and I will do that shortly, but I note that it is highly artificial to seek to isolate one matter out on its own and ascribe a value to it.  But I can indicate to you that if you had not have pleaded guilty, I would not have considered a youth justice centre disposition for you.  We would have been looking at adult prison and doing the best I can, I would have sentenced you to a total effective sentence of four years' imprisonment and fixed a non-parole period of two years.

41Now, I understand there are some ancillary orders relating to forfeiture and disposal.  And I have made those.

42MR SAUNDERS:  Thank you, Your Honour.

43HIS HONOUR:  Is there anything further required?  Have a seat for now.

44MS BLAIR:  No, Your Honour.

45MR SAUNDERS:  No, Your Honour.  Thank you.

46HIS HONOUR:  Okay.  All right.  Well, thank you both for your assistance and also Mr Albert and compliments of the season if I do not see either of you until the New Year.

47MR SAUNDERS:  Thank you, Your Honour.  Same to you.

48HIS HONOUR:  All right.  Thanks.

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