Director of Public Prosecutions v Myaker
[2020] VCC 1054
•15 July 2020 16 July 2020 Rameen Nadiri
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01448
CR 19-01965
CR 19-01966
CR 19-01967
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PANOM MYAKER TOMMY VILAR RAMEEN NADIRI EZEKIEL ORANI |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 and 23 June 2020 |
| DATE OF SENTENCE: | 15 July 2020 16 July 2020 Rameen Nadiri |
| CASE MAY BE CITED AS: | DPP v Myaker & Ors |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1054 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Home invasion – Causing injury intentionally – Category 2 offence – Victim known to the accused - Crime classified low to middle on the spectrum – Collingwood Flats – s.5(2HC) submissions - Imprisonment – Community Correction Order.
Legislation Cited: s. 77A, s. 3(1) Crimes Act 1958 - s.5(2HC)(c)(iii), s.83A, s.5(2H)(e) Sentencing Act 1991
Cases Cited:DPP vMeyers [2014] 44 VR 486 - R v Comensoli [2020] VSCA 2 – Maslen v The Queen [2018] VSCA 90 - DPP v O'Brien [2019] VSCA 254 - Weybury [2018] VSCA 20 - R v Ibbs [1987] 163 CLR 447 - ZMN [2002] VSCA 140 – Bugmy v The Queen [2013] HCA 37 - Jackson v The Queen [2020] VSCA 95 – DPP v O'Brien [2019] VSCA 254 – DPP v Dalgleish [2017] HCA 41 – Farmerv The Queen [2020] VSCA 140 – R vDoran [2005] VSCA 271 - R v Lacey [2007] VSCA 196 - R v McKee [2003] 138 ACR 88 - DPP v Minton-Green [2019] VCC 845 - DPP v Pegorari [2019] VCC 2055 – Boulton v The Queen [2014] VSCA 342
Sentence:Panom Myaker – Total effective sentence of 3 years and 6 months imprisonment with a non parole period of 2 years and 4 months. 488 days were declared as presentence detention.
Tommy Vilar – Total effective sentence of 2 years and 6 months with a non parole period of 12 months imprisonment. 81 days were declared as presentence detention.
Ezekiel Orani – Total effective sentence of 2 years and 6 months imprisonment with a non parole period of 12 months imprisonment.
Rameen Nadiri – Sentenced to 6 months imprisonment with a 3 year community correction order, which commences upon completion of the term of imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Singh | Office of Public Prosecutions |
| For Accused Vilar | Mr S. Moglia (Plea) Mr J. O'Sullivan (Solicitor for Sentence) | O’Sullivan and Ruffilli Barristers and Solicitors |
| For Accused Myaker | Mr M. Brennan (Plea) Mr M. McLellan (Solicitor for Sentence) | Emma Turnbull Lawyers |
| For Accused Nadiri | Mr E. Pilai | Jay & Co Barristers and Solicitors |
| For Accused Orani | Ms K. Ljubicic | Stary Norton Halphen |
HIS HONOUR:
1Mr Myaker is aged 22 having been born on 12 September 1997, he was 21 at the time of the offending. Mr Vilar is aged 22 and was 22 at the time of the offending, being born on 2 February 1997. Mr Orani who was born on 12 November 1996 is 22 and was 22 at the time of the offending. Mr Nadiri is 23, having been born on 7 April 1996 and was 22 at the time of the offending.
2This plea took place on 22 and 23 June 2020. Appearing on behalf of the Director was Mr Singh, on behalf of Mr Myaker, Mr Brennan and
Mr McLellan appears today. On behalf of Mr Vilar, Mr Moglia,
Mr O'Sullivan appears today. On behalf of Mr Orani, Ms Ljubicic, who appears today. Mr Nadiri, Mr Pilai who appears today.3The plea was to Indictment C1912490, by each of the persons that I have just mentioned. Because of the matters brought before me, this sentence is going to be a lengthy process. I apologise for that. However, it is most important in an open justice system, which we enjoy in Australia, that these remarks are made in public, and that for each of you, you will have detailed for you in written form, the transcript, the reasons why I pronounce this sentence after taking into account the submission made on your behalf. So I apologise for its length. I will ask each of you once I get to the end of the plea for the two of you in Court to stand. Mr Myaker, you will not have to obviously, and I will come to Mr Nadiri who is not in Court in due course as to what he does.
4All prisoners in regard to this Indictment pleaded guilty to both charges. The first charge is a charge under s.77A of home invasion, committed on
23 February 2019 at Flat 12, 240 Wellington Street, Collingwood, known as the Collingwood Flats.5The seriousness of this crime is demonstrated by the fact that Parliament has prescribed a maximum penalty of 25 years imprisonment.
6This home invasion occurred at approximately 8:00 am in the morning at
Mr Bennett's apartment on Level 12. In addition, Parliament has declared this offence to be Category 2 offending pursuant to the Sentencing Act, in particular s.3(1) of the definition section subparagraph (9B).7Pursuant to s.5(2H) of the Sentencing Act this Court must pass, for a person who commits this offence, a sentence involving imprisonment, and imprisonment only, unless the exceptions set out in that section are established.
8The second charge to which all the prisoners pleaded guilty was a charge of causing injury intentionally to Mr Bennett. Such is an offence under s.18 and Parliament has marked the seriousness of such offence by the maximum penalty being prescribed of one of ten years imprisonment.
Circumstances of the Offending
9Coming then generally to the circumstances of the offending. In Exhibit A of the prosecution opening the prosecutor provided a detailed explanation of the crimes. All counsel, when specifically asked by me, accepted those facts as the facts upon which I was to sentence their clients.
10The animus in this circumstance was apparently with Mr Myaker in that allegedly the victim, Mr Bennett, had stolen property from him. The intent of Mr Myaker was to attend upon Mr Bennett's premises in order to get those goods back.
11All of the prisoners apparently went to Level 1, where Mr Myaker's apartment was, picked up Mr Orani as I understand it on Level 8 and then went to Mr Bennett's apartment. Apparently Mr Myaker knew Mr Orani previously, but had only just met Mr Vilar and Mr Nadiri that night.
12The circumstances of what happened is somewhat vague, as it appears that each of them were partaking in a drug taking episode. The CCTV shows all four of the prisoners exiting the lift at Level 1 at 6:26 am. At approximately 8:00 am Mr Myaker attempted to enter Mr Bennett's premises through a window was closed. Mr Bennett came to the window, told Myaker to go away, however he did not. He persisted and thereafter forced the window, entered the premises and opened the door for the others to enter.
13Insofar as the roles played, as I understand as settled with the various prisoners' solicitors prior to the plea, the Crown submits as follows. Firstly, as to Mr Nadiri that he acted as a lookout and never entered the apartment. Secondly, as to Mr Myaker he was the main instigator, in that he was the person who not only forced the window, but thereafter let in the others and he subsequently assaulted Bennett with the first punch.
14Thirdly, that thereafter Bennett was kneed and assaulted by Myaker, Orani and Vilar. Such assault lasted for a period of some five minutes. Mr Bennett was left bleeding and calling for help. An indication of his injuries is set out in Exhibit B, in particular Photos 73 through to 76.
15Clearly Mr Bennett had a bloodied head, lacerations to his head and arm and bruising. There was however, according to his police statement at p.114 to 116 of the depositions, no fractures. In regard to the victim impact statement tendered, being Exhibit C, there appears to be no long term physical injuries. There is no medical evidence before me to say otherwise.
16I accept however Mr Bennett’s statement set out in the victim impact statement that he suffers from anxiety, situational anxiety brought about by what he went through in his beating, but otherwise had a good physical recovery. I consider that was quite a restrained victim impact statement prepared by Mr Bennett.
17At approximately 8:21am that morning all of the prisoners are seen to leave the building on the building CCTV. The prosecution as to those roles that I have detailed submitted that the highest culpability for this criminality is that of
Mr Myaker, that the next level is that of Mr Orani and Mr Vilar who are culpable to the same degree and that Mr Nadiri is the least culpable.Objective Criminality
18We then come to the objective criminality of the offending. Taking Charge 1 first it was submitted by counsel that I should take the view that such was at the low end of the spectrum, given that there was no weapon used, the actual intent of this home invasion was to enter for the purposes of obtaining property, and there was no other aggravation. I was referred as to various factors in these types of crimes, an aggravated burglary case, of Meyers [2014] 44 VR 486, [48].
19In analysing that submission from it is necessary to remember what was said by the Court of Appeal in R v Comensoli [2020] VSCA 2 that such an attack on a person's premises, where he is entitled to expect to live safely, must be seen as serious.
20The crime was committed by four persons, following a forced entry. A similar attack was assessed in Maslen [2018] VSCA 90, a case in which I was the sentencing Judge, by the Court of Appeal, as an aggravated burglary of a serious kind.
21Maslen is by way of a signpost or a yardstick of some similarity. It of course was an aggravated burglary charge. Again the door had been kicked in, the parties knew the victim, there were no use of weapons or other aggravated matters and the offenders were in the premises for ten minutes.
22Further, as stated in DPP v O'Brien [2019] VSCA 254, [25] in sentencing decisions reference to sentences for aggravated burglary, being a charge under s.77, subsequent to the pronouncements of the Court of Appeal in Hogarth and the change of sentencing practice in regard to aggravated burglaries, was material to the sentencing exercise in home invasions.
23That is material, albeit it is understood that this offence for which I am dealing is a defined Category 2 offence. I find that this offence should be at the higher end of the lower end of the spectrum. See R v Ibbs [1987] 163 CLR 447, [452] and Weybury [2018] VSCA 20, [54].
24Coming to Charge 2 the beating of Mr Bennett in this instance was intense, see the photographs in Exhibit B, and relatively prolonged. As put by the prosecutor, it involved the participation of all three, that is Myaker, Orani and Vilar. Albeit that no weapon was used, there was initially a fist to the head by Mr Myaker and then the beating by knees and punches by Vilar and Orani once the fight started by way of support of Mr Myaker.
25The learned prosecutor submitted in the Vilar plea that the objective criminality here should be mid-range on the spectrum. Ms Ljubicic submitted that while serious, that there was in this instance limited planning, no weapon used and no permanent consequences, albeit the beating. She submitted it should be seen as a crime of in the region of lower to middle order. See [20] of her particular submission.
26In the circumstances, taking all those matters into account, I accept the submission of Ms Ljubicic, that this crime should be classified as low to middle on the spectrum.
Plea of Panom Myaker
27Coming then to the individual pleas. As I said, Mr Brennan appeared for Mr Myaker, Mr McLellan appears today. Mr Brennan in his written submission, [4], accepted the need, given the seriousness of this crime, for a substantial gaol sentence.
28Mr Brennan accepted the history of his client of violent offending going back to 2013, and that his client has previously served five gaol sentences, albeit there being a significant break in his offending from the period 2010 to 2016.
29Mr Brennan accepted that his client must bear responsibility for higher culpability given his elevated role by way of the animus, intent to obtain his alleged property, that he effected the forced entry and then let the others in. It was accepted by Mr Brennan that Mr Myaker did play the major role in regard to Charge 1, and in regard to Charge 2 that he was the person who threw the first punch and thereafter combined with the others in the beating handed out.
30The pre-sentence detention of Mr Myaker to date is now 488 days. That is accepted by you, Mr McLellan?
31MR McLELLAN: Yes, that is agreed upon, Your Honour.
32HIS HONOUR: Thank you. On the plea tendered as Exhibit M1 was the updated plea submission dated 18 June 2020. Exhibit M2, the support letter of his parents, Exhibit M3, his remand history and Exhibit 4, the email from Detective Thompson.
33There is no reason why any other material now cannot be reported by members of the fourth estate. He has been by way of his background in Sudan, and in particular by seeing the stabbing of his friend in 2018, a witness to severe trauma. Because of his small stature at school he was bullied up until the age of 15 when he then grew to the large strong looking person that he is now.
34Insofar as the principles put to me of Bugmy [2013] HCA 37 I accept such principles insofar as they provide an explanation by way of background to him being involved in this criminality. In the circumstances of the particular offending, given the role played by the taking of drugs, I do not accept that such background is mitigatory as to the offending. However, of course such background is always taken into account in sentencing.
35In particular as to mitigation Mr Brennan put the following matters. He submitted to the Court that given his client's relative youth rehabilitation is always of importance, which I totally accept.
36Mr Brennan put that clearly Mr Myaker must in order to effect reform ensure that he is no longer involved in drugs. As Exhibit M2 shows he has his family's support. It was put that this was an early plea and resolved at committal in September of 2019, that such plea indicates genuine remorse which I accept, is utilitarian and of assistance to the process of justice which I also accept. And as a result he is entitled to a discount for such, which will be demonstrated by me in the declaration under s.6AAA.
37Mr Brennan also relied upon the issue of delay. It is not dramatic, however for any reason it needs to be taken into account and of course in this case has been exacerbated by the issues with our current COVID-19 crisis.
38In particular Mr Brennan referred me to the cases of Jackson [2020] VSCA 95, and O'Brien [2019] VSCA 254 to be used by me as yardsticks in this sentencing. However, of course the High Court said in Dalgleish [2017] HCA 41, [49], Mr Myaker is to be given by this Court a just sentence based upon the facts of this case. That is there is, which hopefully is always accepted in this Court, the need for individualised justice to Mr Myaker. I do take into account all of those matters put by way of mitigation and have considered the yardstick cases as indicated.
39Mr Myaker, given your circumstances = I will not ask you to stand, but you will be sentenced as follows. On the first count of home invasion you will be sentenced to three years gaol. On the sentence of intentionally cause injury a sentence of two years gaol.
40I order that six months of the sentence in regard to Charge 2 be served cumulatively on Charge 3, making a total effective sentence of three and a half years. I impose a non-parole period of two years and four months. I order that the period that you have now served on remand of 488 days be deemed as service of this sentence, and a copy of such declaration will be recorded in the records of this Court.
41The Parliament requires me pursuant to s.6AAA of the Sentencing Act to indicate to you, Mr Myaker, the difference that you pleading guilty has made in regard to this sentence. Doing as best I can, by concentrating on only one factor, that is your plea of guilty, can I indicate to you that had you not pleaded guilty the sentence I would have given you is not three and a half years with a minimum of two years and four months, but a sentence of four and a half years with a minimum of three years and four months.
42Mr McLellan, is there any matter that is not clear?
43MR McLELLAN: No, Your Honour.
44HIS HONOUR: Given the circumstances no doubt either you or Mr Brennan or your instructor will no doubt speak to Mr Myaker in due course hopefully when you have the ability of having a transcript of these proceedings. Mr Myaker, it is a matter for you whether you remain on this broadcast. You do not have to, nor do you, Mr McLellan.
45MR McLELLAN: Thank you, Your Honour.
46OFFENDER MYAKER: Thank you, Your Honour.
47HIS HONOUR: Good luck, Mr Myaker.
48OFFENDER MYAKER: Thank you very much.
49HIS HONOUR: You have got to give up the drugs.
50OFFENDER MYAKER: Yes, I will, yes, Your Honour.
51HIS HONOUR: Thank you.
52MR McLELLAN: If Your Honour pleases.
Plea of Tommy Vilar
53HIS HONOUR: Coming then to Mr Vilar. Mr Vilar, you are right in front of me. In the submission of Mr Moglia, Exhibit V1, the first proposition that Mr Moglia sought to make out was a submission under s.5(2H)(c)(e). The circumstances he relied on are:
a.That Mr Vilar has already served three months on remand before he was bailed.
b.Since being bailed over the last 15 months he has effected rehabilitation, or alternatively set up the basis for effecting such rehabilitation. In this regard he relied on, Exhibit V2, which was the psychological report of Ms Matthews, and in that regard I want to go, in particular to p.9 and p.10 of such report and I will read the following:
'Mr Vilar's risk of violent offending at the time of offending was high. The major contribution to that estimate is his youth and immaturity, his previous appearance before the Court on a weapons charge and his history of illicit drug use. However, Mr Vilar's commitment to rehabilitation, his family support and his likely re-engagement in employment would ameliorate that risk to moderate. Mr Vilar's risk of re-offending could be further lowered by his continued engagement in treatment focussed on his personal and emotional development and abstinence from substance misuse. Mr Vilar's overall progress is excellent. Mr Vilar has been dedicated to his rehabilitation since he was remanded on his current charges. Further, developmentally aged 22 he remains an adolescent on the cusp of adulthood, that he is very much an integral part of the family of origin and is yet to establish financial, emotional, psychological and personal independence. Developmentally within this stage he is also prone to greater levels of risk taking, particularly in the context than that of an adult, hence his offending has also been that of an adolescent undertaking risky acting out behaviour on the spur of the moment with his peers.'
c.Thirdly, Exhibit V3, which is a letter from the Second Chance rehabilitation organisation, dated 15 November 2019, and then on Exhibit V7, which was the CISP report dated November 19 as to his progress since being bailed. In particular as to that report I want to read as follows from p.7 from the second paragraph on the page:
'He has consistently expressed remorse for his actions as revealed that having entered custody for the first time in his young life and seeing how his future may progress if his actions were not to change such as motivated him to engage in the hard work required to lead a life free of illicit substance use and criminal behaviour. Mr Vilar is young, a vulnerable individual who has recognised the negative life path that offending an illicit substance use led down. However, as recognised that over the previous four months he has had an opportunity to succeed with support services in place and it is the honest opinion of the author (that is Kylie Miller, a mental health case manager) that Mr Vilar has succeeded throughout his CISP episode. He has been committed to the hard work required of an individual engaged with CISP and has always demonstrated a willingness to undertake the work in the above and beyond capacity.'
54In support of this submission, Mr Moglia relied upon Exhibit V5, which are the random urine samples conducted upon Mr Vilar for the period June 2019 through to this current June, all of which were negative. And further, the strong support of his family shown in Exhibit V6 as to supporting his progress and intent to effect rehabilitation.
55The issue for Mr Moglia was of course s.5(2HC)(c)(iii) which states that in this Court assessing Mr Moglia's submission, I must not have regard to his client's prospects of rehabilitation. Mr Moglia submitted insofar as that sub-section was concerned that, given the harsh consequences intended by Parliament, such legislation should be interpreted strictly. As such, with what has been achieved by Mr Vilar to date, he submitted that such does not come under the description of the words 'prospect of rehabilitation', but is actually rehabilitation achieved.
56There is not much assistance in trying to interpret this term from the explanatory memorandum when such legislation was introduced. In particular the relevant clause, 75, at p.43 of such memorandum does not provide any guidance whatsoever. Nor does the second reading speech dated 12 March 1991, regrettably, Hansard, p.2146, offer any assistance to the Court.
57The word 'prospect' in the shorter Oxford Dictionary is defined as: 'provide an outlook in a specified direction'. It seems to me that traditionally before the Courts one looks at the prospects of the rehabilitation of a person by looking necessarily in such assessment as to what has been achieved pre-offence, particularly in the period between the offence and the plea.
58The evidence relied upon here clearly goes to this topic and unfortunately for Mr Vilar is summed up by Ms Matthews at p.10 of her report as follows:
'From a rehabilitation and treatment viewpoint Mr Vilar has established a solid base for his rehabilitation but will require continued support over the next year to two years to establish himself in continuous employment, preferable employment that provides recognised skill acquisition and qualifications, et cetera.'
59True it is that Mr Vilar has done very well and laid down a firm base for his rehabilitation. However, as he told the CISP manager, at the time of this crime, having begun to use ice at 20, by this time was a daily user, that is at the date of the crime. Ms Matthews describes such use as being at both a hazardous and dependent level, see [9] of her report, to such a degree as to meet the diagnosis for stimulant use disorder. She further opined a risk of future violent offending dependent upon, [10], his personal and emotional development and abstinence from substance abuse.
60Hence in all the circumstances upon the evidence before me I would not accept that Mr Vilar has rehabilitated, but I stress to his credit he has laid down a firm base for such rehabilitation.
61Unfortunately as a consequence of such finding and such analysis I reject the submission of Mr Moglia. As revealed in Farmer [2020] VSCA 140, in some cases the operation of s.5(2H) will be harsh. Importantly of course all such evidence as to the admirable steps taken by Mr Vilar to provide a basis for his rehabilitation will be taken into account in the sentence I pronounce.
62If I come to the second issue raised by Mr Moglia, and this is that contrary to the indication given to me when I specifically asked at the start of the plea were the facts set out in the prosecution summary the facts upon which I was to sentence his client, Mr Moglia during the plea disputed the facts as detailed in [9] as to Mr Nadiri's role, to which I have earlier referred.
63Mr Moglia, and indeed subsequently Ms Ljubicic on behalf of Mr Orani, submitted that Mr Nadiri should be equally culpable and that there was no distinction, for sentencing purposes, between their clients and Mr Nadiri. The prosecutor maintained the distinction. Indeed when looking at the materials referred to in the victim’s statement it is clear that in the depositions, at p.23, Mr Bennett states that, 'All four persons laid into me'.
64However, in the record of interview, that is Mr Nadiri's record of interview, at no stage does he say he entered the premises. In regard to the Cummins' report, to which Mr Moglia referred, it is true that at [5] he states that he did enter the premises, but at no stage was involved in any of the fighting, the only reason he entered the premises being to remove
Mr Orani from the premises.65In determining this change of events during the plea, I consider each client must be sentenced on his admitted role. Neither Mr Moglia nor Ms Ljubicic dispute the role of their clients, as set out in the prosecution opening. The fact that they now have some issue with the 'deal' done with Mr Nadiri, by the prosecution does in my view not impact upon their client's culpability. I intend to sentence as best I can on the roles as portrayed by the prosecution.
66Coming then to Mr Moglia's plea, as to rehabilitation I have already detailed the admirable steps to date taken by Mr Vilar since he was bailed in July 2019, specifically the urine samples and Exhibit V7, the CISP report of which I have read out.
67It is clear to me that, no doubt as a result of the sentence he is about to receive, taking into account his limited prior history, family support and motivation, his prospects for rehabilitation are good. However, given the extent of his addiction, as detailed by Ms Matthews, this Court must be guarded in this regard, as such clearly depends upon the continuation of his personal and emotional development, and abstinence from substance abuse, as referred to in [9] and [10] of Mr Matthews' report.
68The background to his offending is his drug taking and frequenting of the flats to see his then girlfriend. Such of course belies his excellent personal background and family support. In this regard see the statements in Exhibit V6, in particular the strong reference from his former employer, Trevor Mutimer, who makes a strong plea for this Court not to return Mr Vilar to gaol and indeed his current employer the firm, C3, also the steps that I have also been advised that he has taken to complete the theory of apprenticeship at the Melbourne Polytechnic.
69As to the plea I accept it as an indication of remorse, as utilitarian, that it assisted the role of justice and I provide the appropriate discount to Mr Vilar for this.
70Mr Moglia also submitted the plea was valuable in the Doran [2005] VSCA 271 sense. The prosecutor submitted that this was not so. I find in the circumstances that such is not established. I accept the prosecutor's submission in that regard.
71Mr Moglia also submitted this was a valuable plea, being circumstances as to of which I am not fully unaware, but the allegations made by Mr Moglia were that Bennett has priors, and has drug issues which were such, that had this matter proceeded as a trial, there would have been an issue as to his reliability. The prosecutor again disputes that. However, clearly it is in Mr Vilar's favour that he, despite whatever advice from Mr Moglia he had as to contesting a trial, has decided not to do so. He has accepted thereby his role, offered to settle the matter before committal and has maintained the plea. I accept the genuine remorse so demonstrated.
72As to the further submission as to a reduction in his personal culpability, due to the opinion of Ms Matthews that such occurred while he was immature, young and with limited priors. I do not accept the principle relied upon by Mr Moglia in this instance, of that set out in R v Lacey [2007] VSCA 196, and indeed in R v McKee [2003] 138 ACR 88, as it seems to me that those cases are really associated with addicts who have committed a serious offence, that is of trafficking while addicted themselves.
73I do however accept the circumstances set out as to his immaturity and youth detailed by Ms Matthews at [9] as an explanation for his participation in these crimes, in particular the fact that he was drug addicted at the time, albeit that I do not accept any direct connection of such drug addiction to the criminality which would in any way reduce culpability.
74However, in the totality of those circumstances I do accept that to a small degree, given his youth, immaturity, and the problems he was dealing with at the time that his culpability should be reduced to a small degree. I take into account, as put by Mr Moglia, the impact of gaol upon him, and the difficulties thereof given the current COVID-19 crisis as I have earlier detailed.
75I also take into account that Parliament's harsh legislation may well have a negative impact upon Mr Vilar's rehabilitation. It was put to me that in the circumstances I may be prepared to defer sentencing. I indicate that I am not prepared to defer sentencing pursuant to s.83A as none of the purposes set out in sub-paragraph (1A) thereof can affect the operation of s.5(2H) as I have detailed.
76I accept the alternative submission of Mr Moglia, detailed in [24] as to a necessity for a gaol sentence and an appropriate non-parole period recognising the circumstances that I have referred to. Of course all of the above must be balanced against the seriousness of these crimes, the objective culpability as I have determined, your role and of course the need for general deterrence, punishment and denunciation to be effected by this sentence.
77Mr Vilar, if you would stand up please. On the first charge of home invasion you will be sentenced to imprisonment of two years. On the second charge of intentionally cause injury imprisonment of one and a half years. I order that six months of the sentence on the second charge be served cumulatively on the first charge, making a total effective sentence of two and a half years.
78I order that you serve a non-parole period of 12 months and I note that the pre-sentence detention that you served before being bailed was 81 days, and insofar as such period is concerned I order that such be declared as service of this sentence and a record of such declaration be noted in this Court.
79Pursuant to the provisions of s.6AAA, Mr Vilar, can I tell you albeit the many factors I have been speaking about in regard to your sentence, that concentrating as Parliament asks me to do upon the plea of guilty, as best I can, had you not pleaded guilty the sentence I would have given you is not two and a half years with a minimum of one, but three and a half years with a minimum of 20 months.
80Mr O'Sullivan, any matters that you want to clarify?
81MR O'SULLIVAN: No, Your Honour.
82HIS HONOUR: Thank you very much. Mr Vilar, can be taken down. Good luck, Mr Vilar.
Plea of Ezekiel Orani
83I come then to Mr Orani. Ms Ljubicic's submission was tendered at Exhibit E1, accepting the role designated and the culpability of her client as put by the Crown, Ms Ljubicic pointed to her client's addiction to ice at the time, his youth, and his immaturity leading him to an act of bravado as she put it, to go off with the others to the flat of a person he did not know to apparently recover property.
84I accept, as I have already said, the circumstances leading to this criminality is clearly very vague. In particular in Mr Orani's case if you read his record of interview, as he details his answer to question 72. Ms Ljubicic accepted that the charges were serious and that gaol was warranted. I have accepted her submission as to the objective culpability of Charge 2, and as has been indicated assessed Charge 1 at a higher level than she submitted, albeit at paragraph 22 of her submissions she submitted low to medium.
85In mitigation the first matter Ms Ljubicic put to me was Mr Orani's difficult upbringing. His parents separated when he was a child. He lived with his father, who was a strict disciplinarian during his upbringing, although fortunately is now still supportive.
86His mother unfortunately was drug addicted and addicted to gambling. As a result therefore Mr Orani lived a transient life. He left Collingwood College at Year 10. He unfortunately was injured while he was doing a carpentry apprenticeship. He thereafter went back to St Joseph's flexible learning centre and obtained a certification, C2, in building construction.
87Since the age of 19 he has worked as a security guard. Indeed, until he lost his licence as a result of these charges, was described as a good worker. His counsel put in the circumstances it would be no surprise to the Court, given his upbringing, that he has had issues with alcohol and drugs from a young age, and of course this has not been helped by the accident he had at work.
88Mr Orani has before the Court strong support from his family, in particular his sister and his father who submit to the Court that Mr Orani now realises the wrong steps that he has taken and that he is keen to rehabilitate, albeit that he has no priors. That is a matter that is particularly taken into account.
89Mr Orani therefore has made a big jump by this offending. Insofar as the proposition being put to me that he will effect rehabilitation the prosecutor says it is necessary, given his subsequent offending, to be guarded about such rehabilitation. That is on 17 September 2019 he was convicted of a breach of bail and an assault charge for which he was given 63 days gaol and an 18 month community correction order. It would appear that this had a lot to do with him losing his job and the breakup of his girlfriend, which meant that he unfortunately went back on ice.
90Mr Orani instructs Ms Ljubicic that he is now abstinent from drugs. It is also noted by the prosecution that he had a subsequent conviction on 17 January 2020 of damage property and a breach of bail for which he received two days gaol. Such of course would be a breach of the community correction order.
91Ms Ljubicic stressed the issue of Mr Orani's youth. He is still only 22. She stressed the issue as to a person going to gaol and the COVID-19 crisis, the risks to a person of being in such environment, fortunately which have not occurred to date, but in particular the lockdowns that would be suffered, current as I understand half day lockdowns, and the restriction envisaged from persons, and I take all of that into account.
92Ms Ljubicic asked me to accept Mr Orani’s plea was utilitarian, indicated remorse, which I also accept, and assisted justice. In these particular circumstances she asked me to accept, as I do, the operation of s.5(2H) is harsh and is meant by Parliament to be harsh. There is of course no pre-sentence detention.
93Mr Orani, if you would be good enough to stand up please. You will be sentenced on the charge of home invasion to imprisonment of two years. For the charge of intentionally cause injury imprisonment of one and a half years. I will cumulate six months of the sentence on Charge 2 upon Charge 1 to pass therefore a total effective sentence of two and a half years. I will set a non-parole period of 12 months in regard to that sentence.
94As you would immediately realise that is the same sentence as I have handed to Mr Vilar. As I said there is no pre-sentence detention. Section 6AAA of the Parliament requires me in regard to you pleading guilty, to indicate to you that had you not pleaded guilty the sentence I would have passed is not two and a half years with a non parole period of 12 months, but would have been three and a half years with a minimum of 20 months, therefore indicating the extent of the impact of your plea of guilty.
95Ms Ljubicic, any other matters that I need to attend to?
96MS LJBUCIC: No, Your Honour.
97HIS HONOUR: Yes, Mr Orani, all I can say is good luck. Keep up the good work. Ms Ljubicic, it is totally a matter for you. I do not require you to stay in Court but it is totally a matter for you.
Plea of Rameen Nadiri
98I finally come to Mr Nadiri. Mr Pilai, we have made a specific arrangement for him to be in his own room, because he lives in one of the special lock-down areas.
99MR PILAI: Yes, Your Honour, it is a minor detail.
100HIS HONOUR: Who is with him?
101MR PILAI: In the room?
102HIS HONOUR: Yes.
103MR PILAI: I am not aware, Your Honour. I think just one of the staff members, one of the security staff members.
104HIS HONOUR: Apparently there is two custody officers outside the room.
105MR PILAI: Yes, thank you.
106HIS HONOUR: As I said coming then to Mr Nadiri, Mr Pilai tendered his written submission dated 15 June 2020 as Exhibit N1 and spoke to same. As to his crimes Mr Pilai relied upon the negotiated position as set out in paragraph 9 of Exhibit A. Despite that, Mr Pilai referred the Court to Mr Cummins' report, that is Exhibit N3 at paragraph 31, and what was said to be in the record of interview. As I have already said it seems that this led to the submissions of Mr Moglia and Ms Ljubicic. It may well have been that they were going to make them anyway.
107However, as I have already said in regard to Mr Nadiri, when one looks at the record of interview there is no admission as to entering the premises. Insofar as to Mr Cummins' report it is clear that at all times Mr Nadiri has not admitted to being involved in any beatings, nor in anything inside the house. However, he did say he went in to remove Mr Orani.
108However, it must be accepted that he has pleaded guilty, on the basis of being a lookout while both of these crimes were committed.
109Mr Pilai submits:
a.Despite the plea, and my assessment as to the objective culpability, that his client's role is different, that is that he had not entered, but acted as a lookout.
b.Secondly, that he was not the instigator, that he did not know prior to that day Mr Myaker, see his record of interview answer 63.
c.Thirdly, that he did not participate in any violence.
d.Fourthly, that as a result of being on drugs, he just followed the others for the purpose of he thought obtaining drugs. It seems he was pretty unsure of events, similar to the comments of the others.
e.Fifthly, that he was not sober at the time, due to drugs and alcohol, see answer 47 in the record of interview.
f.Sixthly, that this criminality was absolutely out of character, that he has no convictions whatsoever for violence and indeed has limited offending, related to driving matters. To the fact of this being out of character, he relies particularly on the family references in N5 as supporting this.
g.Seventh, he told Mr Cummins that these crimes were committed after substantial use of methylamphetamine, [38].
h.Eighth, that at the time he was suffering from a major depressive disorder which had occurred as a result of his upbringing. In this regard I refer to the circumstances of his upbringing related to the abuse of his mother, set out in Mr Cummins' report, p.2, [13]. Mr Cummins as a result thereof considers there was a nexus, given his reaction to his dysfunctional upbringing as set out in [44], to this criminality. It is to be noted that such condition has previously contributed to an attempted suicide, resulting in him being admitted to the St Vincent's psychiatric ward for two weeks.
i.Further, as a final point, Mr Pilai relied upon the statement in Mr Cummins' report, and the opinion proffered, that as a result of his condition, that a criminal sentence would lead to a definite deterioration in his mental health.
110In a somewhat wide-ranging submission, and I say so respectfully, Mr Pilai submitted that the above circumstances are sufficient to satisfy s.5(2HC)(e).
111The learned prosecutor submitted that given the hurdle created by Parliament, upon the matters relied upon by Mr Pilai, it not been surmounted. He relied in particular on [51] of Farmer that, albeit the intent of Parliament that such section applies and may produce a harsh result, the stringency of the test cannot be avoided. Further, it is noted at [52] the Court of Appeal said that it is not rare or unforeseen that a young offender may be vulnerable in custody, when they have committed a serious offence.
112It is to be noted that in the nine factors that I have referred to, I have not spoken of the steps taken by Mr Nadiri to establish a base for his rehabilitation. Apart from Farmer, Mr Pilai also referred me to two cases where such a submission had been upheld, being DPP v Minton-Green [2019] VCC 845 and DPP v Pegorari [2019] VCE 255.
113The immediate difference to be noted is that, in Farmer, the DPP conceded such a finding would be open, that is the finding made by the Court of Appeal, that concession being made at [41]. In Pegorari the Director did not oppose a sentence involving a community correction order on the basis of such exceptional circumstances being established, [12].
114In Minton-Green the Director supported a combined gaol and community correction order, [34], although there is no reference whatsoever, by anyone, to s.5(2H)(e) or s.5(2H)(c)(iii). I have closely considered this submission and s.5(2H)(c),(a), (b) and (c) and s.5(2I) and the principles I have detailed as exposed in Farmer by the Court of Appeal.
115I have concluded, in this exceptional case, based upon the totality of the nine factors put to me that the test imposed in sub-s.(e) has been made out. In the circumstances therefore it is necessary for me to now determine, without constraint of a sentence that must involve imprisonment, what to do with Mr Nadiri.
116I stress that the full range of sentencing is still available. The result of the finding is that immediate gaol is no longer mandatory. Insofar as the plea is concerned Mr Pilai sought a community correction order on its own, on the basis of the principles set out in Boulton [2014] VSCA 342.
117Mr Pilai submitted that, given his mental health issues, to gaol Mr Nadiri would be a grave matter, given the particular issues that he has, the isolation that is affecting, the limitation of programs and of course the COVID-19 issue.
118Mr Pilai relied on the plea of not guilty, the fact of having no priors of this type of offending, the principle of parsimony and the effecting of appropriate rehabilitation. He relied upon Exhibit N, being Mr Nadiri's own evidence in this regard, and in particular Verdins' principles five and six.
119It seems to me that in considering this submission as to a community correction order I need, having made such determination as to the rare and exceptional circumstances, to give the opportunity to the prosecutor, if he wishes, to make any further submissions, and also to seek a CCO report in regard to Mr Nadiri. I do not need to seek a report, as I understand the position, Mr Prosecutor, if I was not going to give a work element to any such order, but it seems to me in the consideration of a sentence I should seek a report because clearly a work order may well be one of the aspects of punishment that is prescribed by a community correction order.
120MR SINGH: Yes, Your Honour, it would probably be advisable in the circumstances of this case at any rate.
121HIS HONOUR: Yes. Mr Pilai, do you accept that?
122MR PILAI: Yes, Your Honour, I do.
123HIS HONOUR: What I have arranged is for a report to be done in regard to Mr Nadiri. The report is done via phone. It is to take place at 1.30. In order for it to take place, Mr Pilai, if you can arrange for your client's mobile number to be given to my associate?
124MR PILAI: Associate, yes, Your Honour.
125HIS HONOUR: We will then take the steps and I imagine therefore someone from the relevant department rings your client tomorrow at 1.30.
126MR PILAI: As Your Honour pleases, I will advise Mr Nadiri of that.
127HIS HONOUR: It is pretty important to tell him to be ‑ ‑ ‑
128MR PILAI: Indeed, by that phone, yes.
129HIS HONOUR: There we are, and I thank all counsel for their assistance.
130MR PILAI: As Your Honour pleases.
131MR SINGH: As Your Honour pleases. Does Your Honour seek to set a return date for the sentencing order?
132HIS HONOUR: I was contemplating it. There is no reason why I should not to do it tomorrow, is there?
133MR PILAI: I think tomorrow would be the most appropriate after the report is done, Your Honour.
134MR SINGH: Yes, as Your Honour please.
135HIS HONOUR: I will give both counsel the ability tomorrow to make any further submissions you wish pending with the report or any other matters,
Mr Pilai, you want to put.136MR PILAI: Thank you, Your Honour.
16 July 2020 – Sentence of Mr Rameen Nadiri CR-19-01966
HIS HONOUR:
166Given your position, Mr Nadiri, you can just remain where you are and remain seated. Yesterday, I referred to all of the factors put to me by Mr Pilai who, pursuant to Boulton principles, sought a community correction order.
167This morning, the prosecution emphasised as to the full range of sentencing now available to me, it is their view, as it was prior to my determination, that the sentence should involve a period of immediate gaol and a parole period. That is that a community correction order was not appropriate.
168
Mr Pilai made additional submissions this morning, essentially re-visiting his proposition based on Boulton that in the totality of the circumstance of this case, a community correction order would be appropriate. He stressed again the matters that I referred to yesterday, that as demonstrated in Exhibit N,
Mr Nadiri's own letter, he has been effecting rehabilitation, he is trying to realign himself with his father, has been working and has been particular about his own faith in assisting him and changing his lifestyle.
169Overnight, a community correction report has been obtained, Exhibit N8, which is somewhat confusing, as it refers to further offending. I have been assured this morning by Mr Pilai, that such offending is simply the offending set out which I was aware of, which was the theft and drug matters set out on p.1 of the Victorian Criminal Record.
170MR SINGH: It may well be, Your Honour, we take the view that this offending before Your Honour, that is the breaching ‑ ‑ ‑
171HIS HONOUR: Well, it may well - well, that would have to be it then, but it is simply not clear. As I say, this report was positive and suggested some particular conditions, and it was positive for a community correction order to be imposed. As I say, I take into account all of the matters that I referred to that were set out in Mr Pilai's plea.
172After further consideration of all such matters in Mr Pilai’s submission, in particular, Mr Nadiri’s role as I have detailed and the matters in mitigation to what I have referred, in particular, the circumstances as to his mental condition at the time of this offending, and the reduced culpability, brought about even though the drugs itself does not, but the totality of the matters reduces culpability, to a degree, for this offending.
173However, of course, what must be balanced against all those matters, is not only the seriousness of the crime, but his admitted role as the lookout, the need for general deterrence, specific deterrence, and denunciation. I find, there must be a period of imprisonment imposed. I reject the view of the prosecution, as I intend to impose a period of imprisonment with a community correction order.
174It is my intent, Mr Pilai, to impose a period of imprisonment of six months upon your client, to be then followed by a community correction order of three years. There will be attached conditions, being:
a.that he should not participate in any drugs whatsoever, and that random screens should be conducted if possible, by the Department;
b.that he should undertake education for the risk of further offending;
c.that he should also undertake any appropriate courses or therapy insofar as his mental health is concerned;
d.that he be subject to supervision; and
e.and that he perform during the period of that three years, community work to the period of 250 hours.
175I want it understood by your client, and I will stand down so you can explain it, that any breach of these conditions, and that means these particular conditions that have been imposed, would very likely if he comes back in front of me, lead to further gaol for him, apart from the gaol that I have imposed today.
176You will need to indicate to me your client accepts entering into that community correction order, which will of course operate once he is released from gaol. I will stand down while you seek those instructions.
177MR SINGH: As the Court pleases.
(At a later stage.)
178HIS HONOUR: Yes, Mr Pilai.
179
MR PILAI: Thank you, Your Honour. I have had the opportunity to advise
Mr Nadiri and he has consented.
180HIS HONOUR: And he understands what I have said.
181MR PILAI: Yes.
182HIS HONOUR: Yes. In regard to the two offences insofar as Mr Nadiri is concerned, as I have indicated, he will be convicted, and pursuant to s.41 for both offences, be sentenced pursuant to s.44, to six months' gaol, and upon release, a community corrections order of three years, with the conditions that I detailed above, which have been set out in the report.
183The community corrections order will commence upon completion of his imprisonment term, in which he must then report within two clear working days to the Broadmeadows Community Correctional Centre.
184It is necessary again for me to indicate, as Parliament has required, the worth of a plea of guilty in this matter. Can I indicate, that had Mr Nadiri not pleaded guilty, I would have given him not six months with a community correction order, but a period of two and a half years imprisonment, with a minimum of 12 months to be served.
185It will be necessary, Mr Tipstaff, to go to the remote room, take the document, have it signed, and bring it back here, and then I will formally acknowledge that your client signed it and sign it myself.
186MR PILAI: As Your Honour pleases.
187MR SINGH: While Mr Pilai's still in Court, can I just indicate that we received Your Honour's signed disposal order last night via email.
188HIS HONOUR: Right, thank you.
189MR SINGH: And the six month gaol sentence is an aggregate sentence.
190HIS HONOUR: The sentence is a sentence under s.41 for both offences.
191MR SINGH: 41, yes.
192HIS HONOUR: Yes.
193MR SINGH: All right, thank you.
194HIS HONOUR: Yes, thank you, Mr Pilai.
195MR PILAI: Much obliged, Your Honour.
196HIS HONOUR: Mr Nadiri, can you hear me?
197OFFENDER: Yes.
198HIS HONOUR: Right. Mr Nadiri, I have just signed this order. The gaol sentence and this order, as you have heard from the prosecution, is not the view that the prosecution think that you should have got. It may well be said that because of your role, I have given what might be seen as a merciful sentence. But can I assure you that if once you have been released, you do not comply with those conditions, you run a very grave risk of getting further gaol. Do you understand that?
199OFFENDER: Yes.
200HIS HONOUR: All right. Well, good luck.
201OFFENDER: Thank you.
202HIS HONOUR: Yes, I have signed those orders. Thank you, and thank you for your assistance, Mr Pilai.
203MR SINGH: As the Court pleases.
204MR PILAI: Thank you.
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