Director of Public Prosecutions v Rizkalla

[2010] VSC 535

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0142 of 2010

DPP

v

DEAN TRISTAN JIMMY RIZKALLA

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October, 25 November 2010
DATE OF SENTENCE:	25 November 2010
CASE MAY BE CITED AS:	DPP v Rizkalla
MEDIUM NEUTRAL CITATION:	[2010] VSC 535

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CRIMINAL LAW – Sentencing – Attempted armed robbery – Plea of guilty – DPP not seeking custodial sentence – Community based order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C.M. Quin	Office of Public Prosecutions
For the Accused	Ms J. Sutherland	Revill & Papa

HIS HONOUR:

1. Dean Rizkalla, you have pleaded guilty to one charge of attempted armed robbery.  The maximum term of imprisonment for attempted armed robbery is 20 years.

1. In March 2010, you and Christopher Wells were residents at a residential lodge in Brunswick.  You had known each other for approximately three months.  At about 9.30pm on 10 March 2010, you were both out on bicycles in the Brunswick area.  You came across one Ralph Eberlein, who was then out walking.  Christopher Wells cut in front of Mr Eberlein’s path and demanded his money or wallet.  Mr Eberlein responded that he did not have any money or a wallet on him.  Christopher Wells made a further demand on Mr Eberlein for his car keys, before then holding out the blade of a pair of scissors and holding it directly at Mr Eberlein’s chest.  Christopher Wells was standing about one metre away from Mr Eberlein and you were in the middle of the road behind Mr Eberlein.

1. Mr Eberlein emptied his pockets, revealing some beads.  He was able to convince you and Christopher Wells that these beads were of no use to you.  You and Christopher Wells then rode off.  Mr Eberlein spoke to a security officer at Barkly Square.  Police were called and, soon after, you were apprehended.

1. You are aged 36.  You were educated variously at Princes Hill Primary and Secondary Schools, Caulfield Grammar and Lynall Hall, eventually managing to complete Year 12 at the age of 18.  At an early age, you were referred to a psychologist for issues including learning difficulties.  You are currently employed in what Dr Lester Walton, describes as sheltered work as a packer and woodworker two days a week.  You live in supported accommodation for the psychiatrically disabled, having a well-established diagnosis of chronic schizophrenia.

1. A number of supportive references were tendered on your behalf.  I have read these and taken them into account.  Against these, you have a prior conviction for possess and use a drug of dependence in June 1991, and a prior conviction for unlawful assault in January 1995.  However, I was told, and the DPP did not dispute, that the prior conviction for unlawful assault occurred in circumstances when you were going through a psychotic period.  In brief, you were in a supermarket.  You had a trolley and you believed a customer who also had a trolley coming in your direction was going to ram you and assault you with the trolley, so you pushed your trolley onto the customer’s trolley.  Ultimately, you were sentenced without conviction to be released on entering into an undertaking to be of good behaviour for a period of 12 months with a special condition to attend rehabilitation.

1. Whilst the crime for which you have pleaded guilty is a serious one, the Director submits that, because of the psychological and psychiatric matters to which I have made brief reference, a custodial sentence is not required.

1. Your counsel submitted on the plea on your behalf that a community based order would be an appropriate disposition. This was not opposed by the DPP.

1. Having regard to the DPP’s acceptance that a custodial sentence was not required, I called for a pre-sentence report.  The conclusion of the pre-sentence report is that you have been assessed as being at a low risk of re-offending.  However, your history of substance abuse and mental health status is said to pose a potential risk in the future.  Further, the pre-sentence report concludes that you would benefit from having a community based order imposed with conditions involving supervision and the assessment and treatment for drug and alcohol issues and psychiatric and psychological issues.  Having considered all the matters I am required to consider in passing sentence, I agree.  However, that is not to accept or excuse your disgraceful behaviour in playing your part in the attempted armed robbery of Mr Eberlein.

1. For the offence of attempted armed robbery, I convict you and order that you be released on a community based order for 12 months on the following conditions:

·     You do not commit, whether in or outside Victoria, during the period of the order another offence punishable on conviction by imprisonment;

·     You report to the Community Corrections Centre within two clear working days of today;

·     You report to, and receive visits from, a Community Corrections officer;

·     You let a Community Corrections officer know within two clear working days of you changing your address or job;

·     You not leave Victoria without first getting permission to do so from a Community Corrections officer;

·     You obey all lawful instructions from and directions of Community Corrections officers;

·     You be under the supervision of a Community Corrections officer;

·     You undergo assessment and treatment for alcohol and drug addiction and submit to medical, psychological and psychiatric assessment and treatment as directed by the Regional Manager.

1. I make the disposal order, the forfeiture order and the order sought under s 464ZF(2) of the Crimes Act for the taking of a forensic sample.