Director of Public Prosecutions v Said
[2018] VCC 633
•19 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMUD SAID |
---
| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 April 2018 |
| DATE OF SENTENCE: | 19 April 2018 |
| CASE MAY BE CITED AS: | DPP v Said |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 633 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – causing injury intentionally – causing injury recklessly
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: R vMills [1998] VR 235; Boulton v The Queen [2014] VSCA 342; DPP vTokava [2006] VSCA 156; R vMerrett, Piggott & Ferrari [2007] VSCA 1; R vDuncan [1998] VR 208
Sentence: Convicted and sentenced to a Community Corrections Order for four years and fined $2,500---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Dipietrantonio | Office of Public Prosecutions |
| For the Accused | Mr G. Porter | Nzenza Legal |
1HIS HONOUR: On 2 March, Mohammed Said pleaded guilty to three charges in Indictment No.H11949419. Mr Said, at the time of these offences, was aged 20, having been born on 4 March 1996, and is now aged 22. As I said, the indictment contained three charges. All of these crimes were committed on 2 December 2016 at the victim's premises in Altona North, being the victim's home.
2The first of those was an armed robbery committed by the use of a stun gun. The seriousness of this offence is amply demonstrated by the fact that the Parliament, on behalf of the community of Victoria, has determined that anyone who commits such an offence is to be subject to a maximum period of imprisonment of 25 years. That in itself would demonstrate – and does demonstrate, pursuant to sentencing practice – the seriousness of the offence. In a recent pronouncement by the Court of Appeal in Lord v R, [2018] VSCA 52, [11], the Court said:
"Armed robbery is a very serious offence. It causes great harm to those directly affected and great disquiet in the wider community. The very high maximum is the clearest indication of how seriously the offence is to be viewed. As this Court has said repeatedly in recent years, the adequacy of current sentencing for serious offences is a matter of the first importance to public confidence in the criminal justice system."
3The second and third charges on the indictment to which you also pleaded guilty are the causing of injury intentionally - for which the Parliament has prescribed a maximum period of imprisonment of ten years, and the alternate charge, in so far as the second victim is concerned under the particular section, of causing injury recklessly, with a maximum penalty of 5 years.
4The victims were, firstly in regard to Charge 2, Mr Rob Hooli, who was aged 39 at the time, and in regard to Count 3, Mrs Hazal Hooli who was aged 41 at the time. The learned prosecutor provided the Court with a summary which was tendered as Exhibit A, and has been referred to this morning. The victims were involved in some form of home sales facilitated by the use of the internet. The prisoner attended, with an accomplice in order to buy a black iPhone.
5Given the motive, that is, as declared to the psychologist, and spoken about this morning, to obtain funds in order to purchase Xanax and other drugs of which Mr Said was indulging at the time, clearly the intent must have been to sell the black iPhone as soon as possible in order to obtain funds. It is only my memory, but I think iPhone 7 – which they were after – had just come out. As has been remarked, not only did they enter the premises on the basis of a concocted story – that is, that they were genuine buyers – but they entered the premises, being the home, where the victim's daughter, who was aged six, was present. The learned prosecutor submitted that a CCO would be inappropriate, as not only were the victims a soft target, the crime committed in their home, but such was aggravated by the fact that in their home was their young daughter.
6As has also been pointed out, both offenders then, when they decided to execute the armed robbery, produced stun guns. Both used the stun gun on Mr Rob Hooli, both punched him, and punched him to the body while he was on the ground. Indeed, the prisoner held him down with his knee, so he could hit him in the head. In so far as Charge 3 is concerned, that also came about as a result of a tasering, albeit that such tasering was committed by the co-accused. That came about when Mrs Hooli indicated she was going to ring the police.
7The consequences as detailed in the Exhibits B and C were not disputed. They were the trauma of being tasered, no doubt, a reddening of the tasered area, a form of laceration on the tasered area, it seemed to me that both were consistent. The perpetrators, perhaps indicative of their condition, attempted to sell the phone, very shortly after these events took place, that came about from the initiative of the male victim himself, who had used the internet to indicate that he wanted to purchase such a phone.
8The end result was that, due to the ruse created by the male victim, at 12.45AM the next morning they, the victim and his brother, confronted the two offenders, who, recognising the victim, ran off. The victims advised the police that the offenders' car was located there, surprisingly, nothing was done by the police, in so far as investigating that situation or attending that scene. Again, the Court remarks that such actions by the police force, given the seriousness of this crime, are remarkable, and perhaps the least said about the police investigation, the better.
9Suffice to say, someone must have finally woken up, a CCTV tape was utilised, which showed the car of the prisoner. That tape was taken by a facility located at one of the surrounding buildings at 11 past four. This prisoner's car was identified, subsequently he was arrested on the 5th of January, by way of warrant, after further investigations led to him being identified. The indication of plea took place following the committal, albeit ten months later, such could not really have taken place much earlier, given that there were a number of matters required to be clarified.
10Mr Said comes before the Court with no priors. As pointed out by the learned prosecutor, there is no victim impact statement supplied, despite it being requested. However, the Court can rely, as I said, on the statements made by each of the victims. The male victim talks about having burning sensations. I have described the wife's reaction. There does not seem to be any treatment – or the Court's not aware of it – nor any ongoing issues.
11However, the important factors set out in Exhibits B and C in regard to these assaults – that is, Charges 2 and 3 – are that the use of a stun gun in such circumstances is determined by the forensic physician as having the potential to be life-threatening. The seriousness of the use of such gun in such circumstances, obviously is aggravated by that fact. Fortunately, no such impact occurred, albeit that the potential must be taken into account.
12An order under s.464ZF has been sought by the prosecution. The prosecution has submitted to the Court, as against the submission made by Mr Porter, that taking account of all the circumstances, without of course making any submission as to sentence, a community correction order combined with a gaol sentence: that is, an order under s.44 of the Sentencing Act would be within the range of appropriate sentences.
13The prosecutor today indicated that the DPP is still of that view, given the reasons which I have already expressed: the serious offending, the fact that there must have been preparation. I accept the incredulity expressed by the prosecutor today, that having had stun guns on both of them, to accept that their use was not within their contemplation, had they – even if I accept they hoped to grab the phone at the front, is not realistic.
14Not only that. While it does not aggravate the armed robbery in itself, they are of course equally charged, that not only did they commit an armed robbery with the use of the stun guns, but they actually used the guns which make up Charges 2 and 3. The matters as to the victim's home, motive, and soft target, I have already stressed.
15We come then to the plea made on behalf of Mr Said by Mr Porter. Mr Porter tendered as Exhibit 1 his outline of submissions, dated 25 February 2008, and spoke to it.
16Exhibits 2A and 2B were reports of Alice Crole, a psychologist, the first dated 8 October 2017, and the second being a follow-up letter dated 23 February 2018. They are of much assistance to the Court. It appears that here is a person who has the ability, but did not stay at school. Since that time, he has not kept a consistent job. He has had issues both by way of behaviour and with concentration at school. He went through a period of self-harming, given that he had negative views about himself and worried about his purpose in life, suffering from poor self-esteem, and harshly criticising himself for perceived weaknesses.
17I must say, when I take into account your parents' background, I ponder how you did not have a clear path in front of you as to what you should do. You were brought to this country, no doubt, to succeed and work hard. For some reason, best known to you, you decided to indulge in substance abuse to overcome your troubles. You were, it is said, under the influence of both cannabis and Xanax at the time of these offences. These matters are put by Mr Porter, not for any reason of reducing your culpability, but by way of explaining it.
18You said to the psychologist, that you felt deep remorse and shame, and you were ashamed of the dishonour that you brought upon your family. She thought you to be a person who was polite and cooperative. She noted that you have suffered a degree of depression from your feelings about yourself – that is, the negative feelings I have been speaking about – and of course, that depression and your condition could not be more exacerbated, than by you using cannabis. You are a person who should not be touching any drugs, much less Xanax.
19It is noted, however, given your abstinence, which seems to be supported by the letters from your family, that you are not diagnosed as a person with a substance use disorder. I would disagree with that. It seems to me that you are a person who does need assistance in that regard. If your substance abuse was such as to lead you to commit such a serious crime, for such a paltry result, then I consider that is indicative of the impact drugs have upon you.
20Ms Crole was of the opinion that your risk of further criminality is low. That depends, of course, on you taking appropriate steps, standing up for yourself as a man, which you now are, not relying on your family, but relying on yourself. You fortunately, as remarked by the psychologist, have a very supportive family. I must say that I was impressed with the letters, firstly from your sister, Mary-Anne, from the Somali Council of Victoria, and in particular from your parents.
21Your parents talk about you as a person with the potential to be strong, who has not committed a crime to date, and as being an impressive person. I also note your own letter of apology. My notes made before today and my concerns about you not attending these two appointments, were that that letter of apology appeared to be a very genuine. There was a further letter sent from the psychologist, dated the 23rd of February, which spoke about you now being in a position to be bulk-billed, so there is no financial impediment. But we have heard today the suggested reasons for your failing to attend.
22In so far as your counsel's submission was concerned, he took me to the fact that you are, even at 22, still a young offender. I take into account the principles that he relied on from Mills [1998] VR 235. He realistically accepted that you must face the prospect of immediate gaol as a result of the seriousness of these crimes, however asked the Court – after partaking in what can only be described as a very delicate and exquisite balance of all of the factors that he relied upon – to conclude that you should be given a community correction order.
23Mr Porter relied in particular upon the sentiments expressed by the Parliament, and by the Court of Appeal in Boulton [2014] VSCA 342. As I said, I have some connection to Boulton, as I think three of those sentenced in Boulton, in the combined decision, were my decisions. And in particular, the case relied upon by Mr Porter – that is, the matter of Clements – was also my decision. It is interesting that as a forensic experience, it always helps a Court to re-read a case, however well known.
24In re-reading Boulton I note the comments in so far as the use of community correction orders and their purpose, detailed at paragraphs 74, 97, 111-114, and 130-140. It was in my view not such a revolutionary decision, because the Court at the time, pre-Boulton, was simply exercising the option that was available and had been provided by Parliament, having eliminated, in its "good sense", suspended sentences.
25The reference by Mr Porter to Clements, and I do not do this by way of parity, because it is not a parity matter. But looking at comparative cases, of course, is not how a decision is made, but such assists the instinctive synthesis of a Court. In Clements, of course, the offender was younger, he and his co-accused had attacked a milk bar, an axe was waved around and a baseball bat was utilised in the premises – that is, the milk bar – by Mr Clements. And the result of such activities – that is, the armed robbery, they obtained the sum of $500.
26Not only was he before the Court for that armed robbery, but the next day they went to a service station. Again, the two co-accused – but in particular, Mr Clements – attended the service station and produced a knife. However, the security alarm was set off, and they fled. Mr Clements pleaded guilty to one count of armed robbery and one count of attempted armed robbery. He had no priors – as I said, he was a younger offender than Mr Said – he was also, in this instance, an ice addict. He was immature.
27The Court spoke in particular at [376], of the exquisite decision that the Court of Appeal had to make, following the decision made by the trial judge in that matter. In fact, the trial judge had given him a CCO for a period of ten years. The Court of Appeal said this, in so far as Clements was concerned, at [276]. They explained – or perhaps I will introduce it by [275].
28"Of course, we do not suggest that it is certain or even probable that Mr Clements will be rehabilitated within a period of five to six years. Regrettably, it is the experience of this court that young male offenders are prone to recidivism, before achieving the relative maturity which tends to emerge during their twenties. Nevertheless, given the youth and particular circumstances of this offender, his positive attitude towards rehabilitation, and the significant involvement of his parents [all of such matters which can be reflected in this case] in its achievement, we think it likely to emerge within the space of five to six years whether he is going to make success of it. If he does, there should be no need for further treatment or supervision. And if he does not, then he can be dealt with in breach of the conditions under s.48M.”
29They then went on, however, to talk about the very decision that this Court now has to make. "It is a more difficult question whether a fine of $4,000 and a CCO of five to six years duration would be sufficient to satisfy the requirements of denunciation, deterrence, and just punishment. But in this case, we think it would be… and, as counsel for Mr Clements submitted, in view of Mr Clement's age and accedents, rehabilitation is the primary sentencing consideration, and denunciation, deterrence, and punishment are of lesser concern."
30As a result of those considerations, the Court of Appeal confirmed the community correction order that had been imposed for both the armed robbery and the attempted armed robbery, albeit that they reduced the period from ten to six years and maintained the fine of $4,000. The only point that must be made now, is that since Boulton, a County Court can only impose a community correction order for a maximum of five years. And in so far as a s.44 order is concerned, by way of combination, the maximum period that can be passed by way of period of imprisonment, is one year.
31The same difficult balance referred to by the Court of Appeal of course presents itself to this Court. As I have already remarked, despite Exhibit D, and the CCO report as to the suitability of Mr Said, in all the circumstances - and quite professionally – the Director has taken the view that a sentence, not involving immediate imprisonment, is not in the range.
32In so far as sentencing is concerned, Mr Porter took the Court to particular issues. Firstly, the plea of guilty.
33It is necessary because, for example, if a CCO was given, no 6AAA declaration would be made. And considering some recent comments made in the Court of Appeal, what you would have thought was obvious in sentences in this Court, appears not to be so. So, for such purposes, just so there is no confusion, I will indicate pursuant to the principles in Duncan [1998] VR 208, and in particular the comments of Callaway J at pp.214-216, this Court does take into account in this sentence the guilty plea. It does take into account the fact that such plea entitles Mr Said to a discount, and that discount is on the basis of the utilitarian benefit of the plea and the assistance to justice the plea provides. As I say, one would have thought the Court of Appeal, in considering sentences from Judges of this Court, would not have had to be told that matter is taken into account, as of course.
34The second matter put by Mr Porter was the issue of proportionality. The offence in this case could not be more serious, and of course the culpability objectively of that offence, given the factors spoken about by the learned prosecutor, is high.
35The issue of character. I have referred to the fact of no priors and the otherwise good character, the positive steps taken, the confirmation of the family in regard to those steps, the remorse expressed by the plea, and the letter of apology which, as I said, I was impressed with. Further, it's submitted by Mr Porter that his client demonstrates genuine remorse by the early plea and by the utility of that, and his voluntarily undertaking the psychological steps, as I have indicated. Of course, the reality has not hit the page yet, because he has not attended.
36I must say, I am totally unimpressed with the answers given by him as to the reasons why he did not attend. However, he is still a young man, and it may well be that he was totally overwhelmed by the likely prospect of an immediate gaol sentence, and that may well be the answer. That makes sense as to the day before the plea occurred. After the plea had happened, and the exquisiteness of the decision that the Court would have to consider was made clear, how he does not go to his appointment on the 1st of April, is beyond me.
37The final matter, of course, is that there have been psychological issues, and there would obviously be a need for future treatment. I have set out those issues, and I have also set out, in my view, there would also be a need for drug treatment, for the reasons that I have expressed. It is put that the views of Ms Crole [51], to which I have referred, talk about a low risk of recidivism. I note the comment in the Exhibit D. I also take the view that there is a low risk of recidivism, provided of course, that Mr Said's got the guts, gumption and fortitude to do, what he says he is going to do.
38And I must say, I have been concerned today, having been appraised of the issues of him failing to attend upon the psychologist. I go back to what I began with: the Court of Appeal's views as to the seriousness of this matter. However, I also refer to the paragraph [275] from Boulton. The balance in this case is indeed exquisite, I have given the matter anxious consideration, and have further given it additional consideration this morning, given the evidence I have heard. I am, however, imbued by the words in Boulton, prepared to accede to the submission of Mr Porter, and thereby reject the submission made by the prosecution.
39I maintain that the balance in this case was exquisite. In giving you a community correction order without imprisonment, Mr Said, I want to make it clear to you now, so it is on the record: it means that you must comply with every condition. Not miss such because you just do not want to go. It means that you must not commit another criminal offence. It means that you should take no drugs. As I perceive it, you are still taking marijuana, you are not a person who should be having marijuana. It is very, very dangerous for your personality and psychological makeup. It is a very dangerous drug, and you should be nowhere near it. You should be working. This two days a week working – you are now a man. Get out and get a job. Do not rely on your parents. Why should your parents be keeping you at your age? And you should be studying. You should be back to night school. You have the intelligence; get your VCE and go on and do university study. Do not wallow in self-pity, with drugs. You have got an opportunity in life, for which your parents have brought you to Australia from a war-torn country, to give you that opportunity, and you are just throwing it away.
40What the Court would like to see you do, is prove to yourself, to your parents, your family and to the community that you can succeed. You are getting one opportunity. Do you understand? Do you understand?
41ACCUSED: I understand, Your Honour.
42HIS HONOUR: One opportunity. You come back in front of me and you are going to get gaol. Do you understand?
43ACCUSED: I understand, Your Honour.
44HIS HONOUR: It does not matter how many Mr Porters come here, I will tell you now. You breach this and you come back in front of me, you are going to gaol. You understand?
45ACCUSED: I understand, Your Honour.
46HIS HONOUR: You understand what gaol means?
47ACCUSED: Yes, Your Honour.
48HIS HONOUR: Mr Porter, what I intend to do is give a CCO for four years. I intend to fine your client $2,500 and perhaps I will simply make an order that that should be paid over a period of 12 months. I say to the family that the fine should be paid by your son, not by you, from his own employment. And so, therefore, I have given him 12 months. If he needs any extension, he can come back. But I would want to be assured that money's being paid. I do not know whether you wanted to discuss with me the term, but the maximum that can be given now is five years.
49It seems to me this person is at a very vital time in his life. The four years with the conditions set out are going to be very important to him.
50MR PORTER: Yes – no, I have nothing further to add, Your Honour.
51HIS HONOUR: Can you, while we're in Court, go back to him and tell him before I finally pronounce and make it clear what it means and what it will mean if he breaches it.
52MR PORTER: I will, Your Honour. But I – just to give Your Honour some assurance, I did go through this very thoroughly both on the last occasion and again this morning.
53HIS HONOUR: I'm sure, Mr Porter, you would've ‑ ‑ ‑
54MR PORTER: But given the occurrence that we've got to now, I'll go and speak to him.
55HIS HONOUR: If we get it on transcript, we'll know you're not needed.
56MR PORTER: I'm instructed he understands the conditions, Your Honour, in relation to ‑ ‑ ‑
57HIS HONOUR: So, if he comes back to me, he won't need to say anything and he won't need you, Mr Porter. Mr Porter, what I envisage is 250 hours. I'm not going to give an order as to offset; I want him, as part of the punitive nature of this order, to serve 250 hours of community work and to perform, in addition to the treatment in regard to offending, treatment in regard to drugs, and any other matters that his supervisor, under the Act, deems is appropriate.
58MR PORTER: Certainly, Your Honour.
59HIS HONOUR: Just so we complete the matter, should the matter ever come to any other Court, even though 6AAA doesn't apply, it should be clear that but for the plea of guilty, he wouldn't be getting a CCO.
60MS DIPIETRANTONIO: I was going to indicate to Your Honour on checking the legislation that 6AAA, does apply in circumstances where a community corrections order for a period of two years or more is imposed.
61HIS HONOUR: It now applies, does it?
62MS DIPIETRANTONIO: Yes, Your Honour. I'm just looking at the ‑ ‑ ‑
63HIS HONOUR: I thought it only applied where it was combined with imprisonment.
64MS DIPIETRANTONIO: No, Your Honour.
65HIS HONOUR: Where it's more than two years that you require a 6AAA?
66MS DIPIETRANTONIO: Yes, Your Honour.
67HIS HONOUR: 6AAA is difficult for a Court to comply with Parliament's request. One is required to take into account one factor, in order to comply with the legislation. As I have now been apprised, I do make the declaration, that had Mr Said not pleaded guilty, he would have faced a period of immediate imprisonment.
68MS DIPIETRANTONIO: If Your Honour please.
69MR PORTER: If Your Honour pleases.
70HIS HONOUR: It seems to me that's as far as I can go in complying with Parliament's requirements. Thank you, Madam Prosecutor, for that.
71MS DIPIETRANTONIO: Thank you, Your Honour. Your Honour, there are just a few matters I wish ‑ ‑ ‑
72HIS HONOUR: I had a matter this week where counsel did not alert the Court, and I did not make a declaration. The Court of Appeal took that into account as a reason for granting it, for some reason. And the fact is, the Act said unless it's imprisonment, you don't make a declaration. But of course I was wrong and a s.6AAA declaration should have been made for a s.44 order.
73MS DIPIETRANTONIO: It changed.
74HIS HONOUR: ‑ ‑ ‑ perhaps it's one of the multitude of Acts that I haven't been able to catch up with in the last three months.
75MS DIPIETRANTONIO: The changes are exponentially growing.
76HIS HONOUR: Fast and furious.
77MS DIPIETRANTONIO: Exponentially growing, Your Honour. Your Honour ‑ ‑ ‑
78HIS HONOUR: Anyway, is it clear that a 6AAA declaration has been made, and it's made on the basis of the discount given.
79MS DIPIETRANTONIO: Yes, Your Honour, thank you, Your Honour. Your Honour, if I could just raise ‑ ‑ ‑
80HIS HONOUR: Perhaps I'll underline those words. Anyway, go on.
81MS DIPIETRANTONIO: I beg your pardon, Your Honour. Could I just raise a few matters? Your Honour during sentence indicated that in reference to the medical material that was provided – made reference to the fact that there was potential for life-threatening injury and Your Honour deemed that to be an aggravating feature. That reference in the medical material relates to the use of a Taser, not a stun gun.
82HIS HONOUR: Oh, I see.
83MS DIPIETRANTONIO: And in this case, it was a stun gun.
84HIS HONOUR: Well, I think I said even though it's – perhaps the word is "potentially aggravating" because in fact it didn't happen in this case.
85MS DIPIETRANTONIO: Yes, but I just raise that ‑ ‑ ‑
86HIS HONOUR: There were no injuries.
87MS DIPIETRANTONIO: No, I just raise that – that that comment ‑ ‑ ‑
88HIS HONOUR: You mean that the reference to Taser is not technically a reference to stun guns.
89MS DIPIETRANTONIO: That's correct, Your Honour.
90HIS HONOUR: Yes, well, perhaps I should withdraw reference to that in the circumstances.
91MS DIPIETRANTONIO: Thank you, Your Honour.
92HIS HONOUR: Thank you, Madam Prosecutor.
93MS DIPIETRANTONIO: And in relation to why police didn't attend on the second occasion, I did receive instructions and indicate to the court that when they reported that incident to police, they didn't link it to ‑ ‑ ‑
94HIS HONOUR: To the earlier one?
95MS DIPIETRANTONIO: No, Your Honour. The police officer who took that information didn't link it ‑ ‑ ‑
96HIS HONOUR: Because they went to the police station after that, didn't they? Isn't that ‑ ‑ ‑
97MS DIPIETRANTONIO: Then they went to the police station. After that, they went to the police station, yes.
98HIS HONOUR: Yes, after they had the confrontation.
99MS DIPIETRANTONIO: Yes.
100HIS HONOUR: But the policeman didn't link it to the earlier matter.
101MS DIPIETRANTONIO: No. I just raise that, Your Honour.
102HIS HONOUR: Well, I still raise the issue about police work.
103MS DIPIETRANTONIO: But perhaps not as bad as (indistinct).
104HIS HONOUR: I know. I suppose it depends on which police station you're at and how many armed robbery reports you get that night. It may well be – which station did they go to?
105MS DIPIETRANTONIO: Excuse me, Your Honour.
106HIS HONOUR: It might well be that a report of an armed robbery becomes ‑ ‑ ‑
107MS DIPIETRANTONIO: Altona North, Your Honour.
108HIS HONOUR: Well, I don't know, but maybe there's a lot of armed robberies at night in Altona North. But you'd reckon, if you got a report of an armed robbery and then you get a report of the people who were the victims, you'd connect it.
109MS DIPIETRANTONIO: That's assuming that information was provided. Yes, Your Honour.
110HIS HONOUR: But I wouldn't like to be seen to be criticising police in any other way than I have, because I recognise what a tough job they have day in, day out, dealing with the public.
111MS DIPIETRANTONIO: If Your Honour please.
112HIS HONOUR: Not easy.
113MS DIPIETRANTONIO: And the only other thing I wish to clarify, Your Honour, is in relation to the s.464ZF. It was indicated that an application was not required because a sample was taken at the conclusion of the record of interview.
114HIS HONOUR: Right. Well, I didn't make that order anyway, did I?
115MS DIPIETRANTONIO: No, but you did mention it during your sentence, Your Honour.
116HIS HONOUR: No – righto.
117MS DIPIETRANTONIO: Thank you.
118HIS HONOUR: And what I should also mention is that, of course, what I meant to talk ‑ ‑ ‑
119MS DIPIETRANTONIO: I beg your pardon, Your Honour?
120HIS HONOUR: References that I meant to add in regard to Mills, in addition were the comments of the President, firstly in Tokava [2006] VSCA 156, [21]-[24], and also his comments in Merrett, Piggott & Ferrari [2007] VSCA 1, [49], as to the role of the Courts in so far as imprisonment with young offenders and the impact of imprisonment. I'll add that to your Mills, Mr Porter.
121MR PORTER: Thank you, Your Honour. I'm just slightly confused. The prosecutor has made a concession, as I understand it, in relation to the forensic report by Dr Jason Schreiber. My understanding was that of Your Honour's, that if there was – at paragraph 14 of one of the reports – "Falling to the ground was a consequence of the blow or electric" instead of being "Taser shock".
122HIS HONOUR: I suppose that has potential ‑ ‑ ‑
123MR PORTER: Can result in a life-threatening head strike.
124HIS HONOUR: Well, I suppose when you think of what happens to some people. But it was the Taser I was talking about. Yes, I see what you mean. It's not the life-threatening impact of the Taser itself which we see in various police situations, but the issue of what happens thereafter.
125MS DIPIETRANTONIO: Yes.
126HIS HONOUR: Yes.
127MR PORTER: So, it's just the falling down was the danger in relation to the stun gun, as opposed to ‑ ‑ ‑
128HIS HONOUR: Anyway, fortunately - I think we understand it all. Fortunately, in this case, nothing like that happened.
129MR PORTER: No.
130MS DIPIETRANTONIO: Yes, that's correct, Your Honour.
131HIS HONOUR: Yes. So, I don't take any of those circumstances, obviously, by way of aggravation, except to point out the danger of using such an implement. Yes, all right. Nothing else? Thank you both.
132MS DIPIETRANTONIO: If Your Honour please.
133HIS HONOUR: If you could get the offender to sign that, please? You can help there, Mr Porter. Mr Said senior, if I haven't been clear, you'll no doubt be clear to your son what I've said. It won't thrill me to send your son to gaol. I don't want to see him again. Thank you. And thank you for your letter; it was much appreciated.
134MR PORTER: If Your Honour pleases, my client understood that you may have said that he was born on the 4th of March, and he would like the record to make sure that ‑ ‑ ‑
135HIS HONOUR: Have we got a birth date on that?
136MR PORTER: I believe it's the 12th of June, Your Honour.
137HIS HONOUR: I may have said it. Wait on. Is his date of birth on that?
138ASSOCIATE: Yes.
139HIS HONOUR: And what date's that?
140ASSOCIATE: 12th of June, Your Honour.
141HIS HONOUR: 12th of June. Is that right?
142MS DIPIETRANTONIO: Yes.
143MR PORTER: Thank you, Your Honour.
144HIS HONOUR: My associate will no doubt amend my sentencing remarks when we get to it. Yes, I thank both counsel for this matter. It was not an easy sentence, but we'll see. Thank you.
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