Director of Public Prosecutions v Negash

[2018] VCC 993

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02479

DIRECTOR OF PUBLIC PROSECUTIONS

v

EYASU NEGASH

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May and 26 June
DATE OF SENTENCE:	29 June 2018
CASE MAY BE CITED AS:	DPP v Negash
MEDIUM NEUTRAL CITATION:	[2018] VCC 993

REASONS FOR SENTENCE
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Subject:    Theft, Armed robbery, Recklessly cause injury, Handling
  stolen goods, Posses drug of dependence, Burglary,
  Possess controlled weapon, Go equipped to steal,
  Contravene bail conditions.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	OPP
For the Accused	Mr S. Andrianakis	Patrick Dwyer Lawyers

HER HONOUR:

1Eyasu Negash, you have pleaded guilty to the following offences.  One charge of theft, five charges of armed robbery, two charges - no you can sit down.  I will ask you to stand at the end, Mr Negash.  Two charges of recklessly cause injury, one of handling stolen goods, two of possessing drug of dependence, cannabis and two charges of burglary.  You have also agreed to have dealt with by me and pleaded guilty to the following related summary offences.  Two charges of possessing controlled weapons, going equipped to steal, three charges of committing an indictable offence whilst on bail and a charge of contravening bail conditions.

2This offending relates to nine separate incidents occurring between 27 July and 5 August - 15 August sorry, a period of almost three weeks, then between
13 November and 19 November last year.

3The maximum penalties for these crimes are as follows.  Armed robbery,
25 years.  Handling stolen goods, 15 years.  Theft and burglary, ten years.  Recklessly cause injury, five years.  Possession of a drug of dependence, one year or 30 penalty units.  Possessing a prohibited weapon, one year or 120 penalty units.  Going equipped to steal, two years.  Committing an indictable offence whilst on bail, 30 penalty units or three months and contravening a condition of bail, 30 penalty units or three months.

4In respect of Charge 1, theft, on 27 July 2017 at about 9.35 pm, you went to an Easy Shop in Footscray.  You chose some goods, then gave $20 to the attendant.  When the till was opened and you reached over and - sorry - when the till was opened, you reached over and grabbed $450 from it, then ran out of the store. 

5Charge 2, armed robbery.  Soon after, you were in a lane in Footscray and you stepped in front of a passer-by, Nicholas Cheong and asked him the time.  When he took out his mobile phone from his pocket, you grabbed him and produced a knife, which was approximately 10 centimetres long.  You demanded his phone and money.  He gave you his phone and wallet.  You told him to run in the opposite direction or that you would kill him.

6As to Charges 3, 4 and 5, and the related summary offences.  On 30 July 2017, you were in a Subway in Melbourne.  You ordered a soft drink and said you would come back with the money.  The attendant, Manpreet Singh opened the register and you tried to take the cash, though the till was shut on your hands.  A scuffle ensued and Mr Singh's little finger was injured whilst attempting to prevent you from stealing the money.  That is Charge 3.

7You then attempted to punch Mr Singh.  You rang out of the shop but were apprehended by police soon thereafter and when searched by police, they located on you 13 grams of cannabis.  That is Charge 5.  A hunting knife.  That is a related summary offence, Charge 1.  A pocket knife, related summary offence Charge 2.  A mask and black gloves, related summary offence
Charge 4.  A CBA MasterCard and Malaysian ID in the name of Nicholas Cheong.  That is Charge 4.  Nicholas Cheong being the victim of the armed robbery on 27 July.

8You made full admissions to this offending to police and were released on bail.  On 2 August 2017 between 2.40 pm and 3.30 pm, you along with four others forced the rear door of the laundry of the house in Derrimut.  No one was home.  You and your four co-accused ransacked the house, Charge 6 and stole jewellery, keys, electronic games, consoles and clothing and put them in a car.  You sold some of that jewellery at Sunshine Cash Converters days later.

9On 4 August 2017, at approximately 2.56 pm, you with four unknown co-offenders went to the BP Service Station at Laverton.  You were travelling in a silver Holden without registration plates.  You were all wearing balaclavas.  You were armed with a tomahawk and two of the other co-offenders were armed with a wooden pole and a machete.  In the counter area, you struck the attendant, Vannala Raghavendra on the right arm with the blunt end of the tomahawk and told him to open the safe or that you would kill him.  He opened the register and you all took cash and cigarettes from the service station and drove away.

10The next day, you and four offenders went to a bakery in Hoppers Crossing.  You were in the same car, though this time it had number plates on it.  At approximately 6.30 pm, you all entered the bakery armed with a tomahawk and machetes and your faces were covered.  You had a knife.  You demanded to be taken to the taken to the safe but were told that there was not one on the premises.  To emphasise the demand, one of the co-offenders struck a metal pole with the machete he was carrying, causing a loud noise.  You demanded the attendant open the register and you stole the cash.

11Realising that you had been seen by a passer-by, you all ran from the bakery to your car and drove away.  However, the car crashed into a fence at a property close by whilst being pursued by the witness.  You all then ran off on foot.  Police searched the car and identified you by fingerprint and documents in the car, including a charge sheet and bail undertaking.

12On 15 August 2017, you and three co-offenders went to a house in Sunshine West.  You were seen by a neighbour to use a hammer to break into the house through a side window and then to ransack the house.  You stole various items including cash and jewellery.  The neighbour called police who arrived and arrested you whilst you were all still in the house.

13You were on bail at the time of this arrest.  You were interviewed regarding this burglary and the armed robbery at the bakery and made no comment.

14You were granted bail on 12 September 2017 after spending almost one month in adult custody.  You were bailed to reside with your parents with various conditions.  It was anticipated that you would engage with youth justice to address your drug use and offending behaviour.  This did not occur.

15On 13 November 2017, you drove a car with registration plates to the Woodville Shopping Centre in Hoppers Crossing.  You were with two unidentified co-offenders.  You entered the IGA store armed with a large kitchen knife approximately 30 centimetres long and were disguised in black clothing with your face covered and wearing white latex gloves.  Your co-offenders were similarly dressed and also carrying knives.  One was also carrying the leg - a leg of timber in his hand.

16You entered first followed by the co-offenders.  You demanded money whilst one of the co-offenders jumped the liquor counter.  The attendant behind the counter, Eva Stephanopoulos and refused.  However, a c-worker opened the register on the instructions of the duty manager and you stole $600 in cigarettes.  You were on bail when these - this offence was committed.

17On 19 November 2017 at approximately 9.30 pm, you went in your father's car to the IGA at Wyndham Vale.  You were in breach of your bail conditions which had a curfew that you be home between 9 pm and 6 am.  You were accompanied by two unidentified co-offenders.  You were disguised in a similar manner as described in the previous armed robbery and you were armed with a meat cleaver.  The co-offenders were similarly dressed and you were armed with - and they were armed with a hammer, meat cleaver and a baton.

18When you entered, you all yelled, "Open the till" and you confronted Frances Schembri, pushing her towards the register and demanding that she open the till.  While holding her from behind, you out the meat cleaver to her throat, repeating, "Open the till."  When she failed to comply immediately, you continued holding her and one of your co-offenders lashed out with his knife, cutting her hand.

19After she had been cut, you let go of her and a co-offender struck the counter with his meat cleaver to emphasise the demand to open the till.  You stole cash and cigarettes before running out of the store.

20On 20 November 2017, police executed a search warrant at your home address and arrested you.  Police conducted a search and located some of the items used in the armed robberies and a bag containing a small amount of cannabis.

21You were interviewed and made a no comment interview.  You were charged and remanded in custody. 

22I received a number of victim impact statements from some of the people who were working at the shops where your offending took place. I also received a victim impact statement from Trevor Dance, the owner/operator of the BP Service Station who read his statement in court.  I take all of this material into account.

23The girl working at IGA Wyndham Vale suffers problems with sleep and feels overwhelmed with emotions of anger, sadness and distress.  She is afraid it will happen again.  The owner of the bakery is scared of being in the shop alone and has restricted the hours of opening and thus now has a reduced trade.  She concludes, "These boys or men have affected my life in a big way and I don't mean that nicely.  Emotionally, I feel very low and scared to live and work in Melbourne."

24Another states that your actions have affected her in ways too sad to mention.  She pointedly states, "I was never a racist person until you walked into the bakery yielding a weapon and demanding and threatening me.  Now unfortunately, I find it uncomfortable being around different races.  I once felt completely safe in our society.  Everyone has  the right to live peacefully in this country."

25Similar sentiments are expressed by Mr Dance.  He described the impact of offending of this type on staff as being dramatic and devastating.  I have no doubt that each of your victims, whether the subject of a random street attack or subjected to the terror of an armed robbery by you and others, would have been frightened and threatened by your actions.

26As to your personal circumstances, I was provided with a psychological report from Bernard Healy dated 7 April 2018 and I take that material into account.  I note that at the time of that assessment that you were denying involvement in the November armed robberies.

27You are currently 19 and at the time of the initial offending, were in transient or living on the streets.  Some months before you had been living with your parents in Wyndham Vale and at the time of the November offending, you were living at home with strict bail conditions.

28You were born in a refugee camp in Kenya, your parents having fled hostilities in Ethiopia.  Your family arrived in Australia in 2004 as refugees.  You are the third oldest of six children.  Two of your siblings have cerebral palsy and require a great amount of assistance with day to day living.

29It is apparent from the material tendered on your behalf that your parents have worked particularly hard to support and raise their family, and they have encountered real and difficulty challenges on both an economic and personal level.

30You are your family are active members of the Pentecostal church.  I received some material from members of the church and I take that into account.  One of the elders at the church gave evidence on your behalf.  He outlined the mentoring role that you have had with some of the youth at the church.  He, like others at the church, were shocked to discover the details of your offending.

31You grew up in Sunshine and Werribee and had a disrupted schooling, attending different primary and secondary schools.  You were required to assist with the care of your younger sisters and you took on that responsibility during your teenage years.  I was informed that you found it difficult to reconcile your faith with the situation that exists with your younger sisters.

32When you left school, you felt pressure to obtain work and to continue to assist at home.  You regularly engaged in conflict with your parents.  These stressors led to you leaving home, increased your drug use and ultimately this offending.

33You started using cannabis at 12 years old.  You began smoking ice at 17 and was using up to 1 gram of ice daily by the time you were 18.  I was informed that your ice use had increased when you committed these offences and you had left home.  You had managed to hide both your drug use and antisocial behaviour from your peers in the church, church leaders and your family.

34You have no prior convictions and you were previously of good character.  I take that into account.  It is however troubling that the level of seriousness of your offending appeared to increase over the relevant period and that you resumed offending after spending approximately one month in adult custody on remand.  In a letter you provided to the court penned after you had spent an additional seven months in custody, you have indicated that you have set goals for yourself to complete Year 12 and to engage in further study and travel.  You also maintain that during this time, you had reflected on the importance to you of family and the church and recognised the impact of your drug use.

35I take into account your pleas of guilty.  None of your victims were required to give evidence and relive the traumatic events relating to your offending.  You facilitated the course of justice and saved the community the cost and inconvenience of multiple trials.

36It is of concern that when you were on bail in September 2017, you failed to engage with youth justice and displayed little remorse or victim empathy.  I consider your pleas are evidence of some remorse.  The senior pastor in the church indicated you have expressed remorse for your offending and you indicated that yourself in the letter to the court.

37You continue to have the support of your church and family.  Many of the members of your family were in court.

38You are a young offender.  As submitted by your counsel, the most significant factor to take into account in sentencing you is your youth.  You were 18 during the time of the offending.  I accept the principles in Mills apply as set out in your counsel's written submissions.

39The remarks of the Court of Appeal in Azzopardi have application to your circumstances.  That is,

"That there are a number of considerations which underlie the general primacy of an offender's youth as a sentencing consideration.  First young offenders being immature are therefore more prone to immature, rash decisions.  They may lack the degree of insight, judgment or self-control that is possessed by an adult.  They may not fully appreciate the serious - the nature, seriousness and consequences of their criminal conduct.  Secondly, courts recognise the potential for young offenders to be redeemed and rehabilitated.

This potential exists because young offenders are typically still in a stage of mental and emotional development and maybe more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour.

No doubt because of this potential, it has been stated that rehabilitation of young offenders is one of the great objectives of the criminal law."

40I accept your youth is an important sentencing consideration.  However, given the nature of your offending before me, principles of youth must give some ground to general deterrence.

41There were some aggravating features related to this offending.  This offending occurred over a three week period.  You then had approximately one month in adult custody and reoffended about two months later.  Your offending increased in seriousness as time progressed.  Four of the armed robberies were committed in company.  The use of disguises and different combination of weapons were used in the armed robberies.  Each of the armed robberies involved soft targets.  You were on bail over much of the period of this offending.  I also take into account the effect on each of your victims.

42This passage was recently approved by the Court of Appeal in Croughan [2015] VSCA 209 at 36.

"There is no need to recite any of the many statements by this court concerning the gravity with which the robbery of persons who are sometimes termed 'soft targets' is viewed.  It is both a reality and necessity in our community for many people to work in isolated situations that render them vulnerable to a criminal attack.  Taxi drivers, service station and convenience store attendants and persons operating small family businesses such as milk bars spring readily to mind in this context.  They must be able to rely upon the full protection of the law and those who contemplate exploiting their vulnerability in the fashion of the appellant must anticipate that consequences for them may very well be the imposition of a substantial gaol term.  The explanation that the perpetrator was in need of money for drugs is highly unlikely to possess appeal to a terrified and recovering victim and only limited weight can be given to it as a mitigatory consideration in such cases."  (See The Queen v Alashkar & Anor [2007] VSCA 12).

43Even attributing significant weight to your youthfulness, such considerations are relevant to the sentencing exercise before me.  Specific deterrence has particular relevance to you.  Although you have no prior convictions, you were remanded in adult custody for a period of one month and that did not deter you from continuing to commit serious offences. 

44General deterrence is also important.  People are entitled to carry out their work or conduct businesses which are regularly used and utilised by the public without being fearful for their safety.  Others who are minded to meet their objectives by the use of threats, force and weapons should be aware that they will be subject to stern punishment.

45There are some features that all go well for your rehabilitation.  You have strong family and community support.  You have expressed a desire to engage in further study.  You have not taken illicit substances for the period that you have been in custody, a period of about seven months.  You have no prior convictions.  However, there are other matters in assessing your rehabilitation prospects, including the escalating seriousness of your offending, your lack of compliance with bail and more recently, your conduct and attitude whilst in custody, which make me more cautious.

46Your counsel initially submitted I should impose a period of detention in a Youth Justice Centre. I had you assessed for that purpose. Section 32 of the Sentencing Act relevantly reads as follows:

"If a sentence involving confinement is justified in respect of a young offender, a court may make a Youth Justice Centre order if it has received a pre-sentence report and it believes there are reasonable prospects for the rehabilitation of the young offender or it believes the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison.

In determining whether to make a Youth Justice Centre order, a court must have regard to the nature of the offences and the age, character and past history of the young offender."

47I received a pre-sentence report dated 22 June 2018 prepared by Stephen Riordan from Youth Justice.  I invited submissions from counsel on receipt of that report.  The contents of that report were unchallenged.  The writer notes,

"Your rehabilitation is incumbent upon a number of factors such as family support, further education, positive reinforcement not to engage in criminal lifestyle and most importantly, your personal attitudinal change.  Your behaviour in the prison system does not reflect that attitude nor change, and later regarding your behaviour in custody.  This type of behaviour does not bode well for your rehabilitation prospects at this stage and certainly does not lead to a positive assessment in regard to vulnerability and impressionability."

48I take all the information in the pre-sentence report into account, including that you have been deemed as unsuitable candidate for detention in youth justice.

49On the return date, ultimately your counsel did not persist with the submission regarding a period of detention in Youth Justice.  Your counsel submitted that all the relevant sentencing purposes could be met with the imposition of a term of imprisonment in combination with community correction order.

50It was submitted in accordance with the principles in Bolton that such a course would be both punitive and rehabilitative.  Your counsel submitted that if I was so minded that I could impose a term of imprisonment that came within the provisions of s.44, namely being a term of imprisonment that was of 12 months or less.  This was so despite you having approximately eight months pre-sentence detention.

51The Crown submitted that an immediate custodial sentence was the only appropriate disposition.  Further, the prosecution submitted a period of detention under the Youth Justice Centre order was not appropriate given the unfavourable report and that I would fall into sentencing order if I ordered a term of imprisonment combined with a community correction order.

52I heard argument from counsel today as to the effect of s.44 and whether I was in fact empowered to impose a term of imprisonment to be served less than the - when that period being calculated is less than the pre-sentence detention.  That is that I could effectively have imposed a term of imprisonment of approximately 20 months, then taking the PSD of approximately eight months, that it would not be contrary to the provisions of s.44.  I accept that submission and that that sentencing option is open to me.

53I do not however, accept that that course is appropriate given the gravity of your offending.  I do however, accept that given your age, that I should impose a shorter non-parole period to give you the opportunity to have supervision in the community under parole.

54These cases involve a difficult sentencing exercise.  The authorities are clear that in these kind of cases where the objective seriousness of the offending is high, I am required to send a message to other young men, particularly those who, as part of group, offend in a like manner, terrifying their victims.

55In sentencing you, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those affected by your actions.  I am required to take into account totality given the number of offences before me.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible, offenders, particularly young men like you, are rehabilitated and reintegrated into society. 

56I take into account your plea and other matters in mitigation.  Clearly your youth is a powerful sentencing consideration.  Your successful rehabilitation is in your own and in the community interest.

57If you could please stand up, Mr Negash.

58In respect of Charge 1, theft, you are convicted and sentenced to a term of imprisonment of one month.

59In respect of armed robbery, Charge 2, you are convicted and sentenced to a term of imprisonment of three months.

60In respect of Charge 3, reckless cause injury, you are convicted and sentenced to a term of imprisonment of one month.

61In respect of handling stolen goods, Charge 4, you are convicted and sentenced to a term of imprisonment of one month.

62In respect of possession of a drug of dependence, Charge 5, you are convicted and discharged.

63In respect of Charge 6, burglary, you are convicted and charged - sentenced to a term of imprisonment of three month.

64In respect of Charge 6, the armed robbery on the BP, you are convicted and sentenced to a term of imprisonment of two years.

65In respect of the armed robbery on the bakery, Charge 8, you are convicted and sentenced to a term of imprisonment of two years.

66In respect of the burglary, Charge 9, you are convicted and sentenced to a term of imprisonment of six months.

67In respect of the armed robbery on the IGA on 13 November, you are convicted and sentenced to a term of imprisonment of three years.

68In respect of Charge 11, the armed robbery, you are convicted and sentenced to a term of imprisonment of three years.

69In respect of the recklessly cause injury, Charge 12, you are convicted and sentenced to a term of imprisonment of three years.  In respect of the - sorry - did I - recklessly cause injury, you are convicted and sentenced to a term of imprisonment of six months.

70In respect of the possession of drug of dependence, Charge 13, you are convicted and discharged.

71In respect of the summary offences relating to the events on 30 July, which is two charges of possessing a prohibited weapon and going equipped to steal, you are convicted and fined a total of $200, an aggregate fine in respect of those summary charges.

72In relation to summary Charge 3, committing an indictable offence whilst on bail relating to 15 August, you are convicted and sentenced of one month imprisonment.

73In relation to that same charge on 13 November, one month imprisonment and in relation to the commission of an offence on 19 November, one month imprisonment.

74And also in respect of the contravening your bail condition, one month imprisonment.

75The base sentence in relation to your sentence will be that imposed on
Charge 11.  One month of the period imposed on Charge 6.  Three months of the period imposed on Charge 7.  Three months of the period imposed on Charge 8.  One month of the period imposed on Charge 9 and one year of the period imposed on Charge 10 will be cumulative, giving a total effective sentence of four years and eight months, with a non-parole period of two years.

76Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to these matters, I would have imposed a term of imprisonment of six years and six months with a non-parole period of four years.

77I have made those disposal orders.  Is there any other matters that I need to deal with?

78MR ANDRIANAKIS:  The pre-sentence detention.

79HER HONOUR:  Sorry, yes.  Pre-sentence detention is declared at 250 days.

80MR ANDRIANAKIS:  As Your Honour pleases.

81HER HONOUR:  Was there anything else, Mr Pickering?

82MR PICKERING:  Your Honour, I was just not writing down fast enough. 
Your Honour, I was just checking the sentences for Charges 10 and 11.  I missed those.

83HER HONOUR:  Ten and 11 are three years and three years.

84MR PICKERING:  Thank, Your Honour.  Other than that, nothing.

85HER HONOUR:  Thank you.  Thanks, adjourn till Monday.

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