Director of Public Prosecutions v Scerri
[2015] VCC 760
•3 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00432
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON SCERRI |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2015 | |
DATE OF SENTENCE: | 3 June 2015 | |
CASE MAY BE CITED AS: | DPP v Scerri | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 760 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Mr W. Grimshaw | Greg Thomas Solicitors |
HER HONOUR:
1 Cameron Scerri, you have pleaded guilty to one charge of armed robbery, one charge of affray, and two charges of intentionally causing injury. The maximum penalty applicable to the charge of armed robbery is 25 years’ imprisonment, affray five years’ imprisonment, and intentionally causing injury, ten years’ imprisonment.
2 These crimes arise out of events which took place on 28 September 2014 and involve two victims, Mahdi Khosrawi and Sajad Khosrawi.
3
It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with the prosecution opening, Exhibit A.
I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearings. It is sufficient for present purposes to say the facts in this case, in my opinion, are very serious and disturbing. Your behaviour was outrageous and quite frankly, thuggish. In addition you have an extremely concerning criminal history for someone your age.
4 There are aggravating features of your offending. You were at the time on two court Orders. On 29 April 2014 at Melbourne Magistrates’ Court you were placed on an undertaking for 12 months, in addition to being required to comply with a youth supervision order imposed on 24 April 2014.
5 Five days prior to that court appearance you appeared on 24 April, as I have said, at Melbourne Children’s Court and were then placed on a youth supervision order for 12 months. I shall return to your prior court appearances later.
6 Before that I turn to a brief summary of your current offending.
7 At the time of this offending you were 18 years of age and are 19 at sentence.
8
On 28 September 2014, you were in company with four co-offenders on a SmartBus heading from Doncaster towards Preston. You and your
co-offenders were loud and disruptive on the bus and appeared to be alcohol affected. The victims of your offending, twin brothers to whom I previously referred, were 30 years of age at the time and travelling on the same bus.
9 At approximately 6.10pm on that day, the bus was in Burgundy Street, Heidelberg approaching the Austin Hospital. You started to harass the brothers, who were seated in front of you. You put your feet on their shoulders and one of your co-offenders, Ferguson, was also leaning over them from behind.
10 When Mahdi Khosrawi asked you to remove your feet, you and Ferguson became aggressive and threatening towards him. Both of you were then joined by your two other co-offenders, Thorpe-Smith and Underwood, both females, and the four of you surrounded the two victims.
11 Your co-offender, Ferguson, demanded Mahdi Khosrawi give the group his phone. Mahdi Khosrawi asked “Why?”, at which time Ferguson punched him to the face. Ferguson, Thorpe-Smith and Underwood began punching both victims. You stood up, pulled out a meat cleaver from under your shirt and held it up, yelling at the two victims. You threatened something to the effect of hurting them with your knife and waved the meat cleaver in the direction of Mahdi Khosrawi, who dodged out of the way of the blade.
12 The brothers got up and moved to the front of the bus, attempting to get away from you and your co-offenders and asked the driver for assistance. The driver stopped the bus near the bus stop on Burgundy Street, Heidelberg, outside the Austin Hospital. The victims got off the bus and tried to flee. You and your co-offenders, Ferguson and Thorpe-Smith, followed them off the bus, with one of your group yelling “Get their phones”. You, Ferguson and Thorpe-Smith chased after the two victims, caught them and began punching and kicking them. You swung the meat cleaver in the direction of Mahdi Khosrawi and missed and struck your own arm. Your co-offender, Underwood, also ran from the bus and joined the fight.
13 While Mahdi Khosrawi was on the ground, you and Thorpe-Smith stomped on his head. At the same time, Ferguson and Underwood continued to assault both victims. Mr Ferguson demanded of Mahdi Khosrawi, “Give me your bank card”. Mr Khosrawi said he would not give it to him and Ferguson then punched him to the head. Ferguson then demanded the brother’s phone, but the brother said he had lost it during the incident and did not know where it was.
14 As part of the prosecution opening, I also viewed two discs of footage showing yourself and your co-offenders in the bus and the assault upon the victims outside the bus. I also received photographs taken on the bus of you and your group.
15 Your offending behaviour on this occasion, I have no doubt was terrifying, not only to the two victims, but also to the members of the public who had the misfortune to be on the bus with you. In particular, I note that you, Mr Scerri, brandished a weapon, specifically a meat cleaver.
16 A witness, Oliver Richardson, got off the bus and pulled your co-offender, Thorpe-Smith, off one of the victims.
17 Jackie Sun, also a witness, got off the bus and pulled co-offender Underwood, who was sitting on one of the victims, away from that victim. A witness, Qian Zhong Wu, who also, prior to this, had been filming the incident on his mobile phone, went to the aid of the witness, Jackie Sun.
18 The intervention of those witnesses gave your two victims the opportunity to break free and flee. They ran from the scene.
19 You then entered a vacant house under construction at 44 Barkly Place, Heidelberg, opposite where the affray occurred. You inadvertently activated the alarm at the premises and were then arrested by police a short distance away. At the time of arrest, you were no longer in possession of the meat cleaver and it has not been recovered.
20 When your co-accused, Underwood, was arrested, items that had belonged to Mahdi Khosrawi in a red plastic bag were located with her. You co-offender, Ms Darroch-Moore, was found with the mobile phone, which had been in the red plastic bag.
21 As a result of being assaulted by you and your co-offenders, Sajad Khosrawi suffered pain and soreness to his head, face, neck and hands. Mahdi Khosrawi suffered multiple superficial grazes and lacerations to his right forehead, neck, lower back, right shoulder blade and hands.
22 Following your arrest, you were taken to the Heidelberg Police Station, after attending the Austin Hospital for treatment of a laceration to your left forearm, sustained during the incident. When interviewed in relation to the matter you responded with "no comment" to the allegations. That of course was your right.
23 Your co-offenders have been charged with various offences. You are the only one charged with armed robbery. Significantly you are also the only offender with a weapon. Only one other co-offender charged with "injury charges" is Ms Underwood, although there were no specifics of the actual charges before me. Your co-offenders with prior matters were all dealt with for their prior offending in the Children’s Court and you however have appeared in the Magistrates’ Court in April 2014. One of your current co-offenders, Ms Darroch-Moore, is to be dealt with at the Magistrates’ Court for her involvement in that offending, specifically handling stolen goods,.
24 I also note the ages of your co-offenders. You were the oldest, although only by a few months relative to one of your co-offenders, and approximately three years older than co-offender Thorpe-Smith.
25 Further regarding your co‑offenders, I was advised by the prosecutor that co‑offender Taylah Darroch-Moore, female, was 18 at the time of the offending, did not have any prior court appearances and was yet to be sentenced.
26 Co‑offender Caris Underwood, female, was 17 years of age at the time of the offending and was yet to be dealt with for these matters, in addition to other offending. Her prior history, if any existed was, I gather, far less than yours.
27 I was given copies of the prior criminal history of co‑offender Ferguson, who was, at the time of this offending, 17 years of age. All his prior court appearances were in the Children’s Court and I note he had a number of court appearances in the past. It would appear that at the time of this offending, he was not then the subject of any court order, which further distinguishes his offending from yours.
28 There was also the criminal history provided of co‑offender Thorpe Smith, who at the time of this offending was 15 years of age. All his prior court appearances had also been dealt with in the Children’s Court jurisdiction, with a less significant history than yours, although he appeared to have been on a youth supervision order at the time of this offending.
29 Regarding your co‑offenders, I note also, all but one were dealt with in the Children’s Court. The only co‑offender to be dealt with in the adult jurisdiction was Ms Darroch-Moore, who was, I understand it, yet to be sentenced. Co‑offender Underwood’s sentence had also not been finally determined, but was listed at the Melbourne Children’s Court.
30 Mr Grimshaw conceded you were the only one with a weapon and that such was a distinguishing feature when considering parity. He submitted that whilst parity should be taken into account, he conceded it would be limited in your case.
31 Mr Grimshaw referred to the decision of Hussein v R[1], and Children’s Court versus adult jurisdiction courts. In Hussein, the Court referred to R v Evans[2], a decision of Vincent J, wherein his Honour stated:
“The parity principle can have only limited application in the case of an adult offender, where a younger co-offender has been dealt with according to different principles and practices."
...
"An elaborate system has been developed to deal with the problem of offending by children and young persons in our community, with a separate court, separate detention facilities, supervision systems and so forth. Whilst broadly speaking, normal sentencing principles can be said to remain applicable when dealing with youthful offenders, as a matter of law and practice it is recognised that the respective weight to be given to relevant factors will vary. These considerations can and do lead to dispositions which would be regarded as extremely inappropriate in the case of older and presumably more mature individuals.”
[1][2010] VSCA 257
[2] [2003] VSCA 223
32 Most recently in Rovjnikov v The R[3], the court referred to McCloskey-Sharp v the R[4]:
“The parity of principle is an aspect of equal justice. Equal justice requires that like offenders be treated alike, but also that relevant differences between offenders be capable of being treated as justifying different outcomes. If there is a marked disparity between sentences which gives rise to a justifiable sense of grievance on an applicant’s part, the principle may be said to have been infringed. No justifiable grievance can be said to arise where it was reasonably open to the sentencing judge to differentiate between co-offenders in the way which he or she did.”
[3] [2015] VSCA 97
[4] [2015] VSCA 87
33 I accept the sentences imposed upon co‑offenders must be considered when determining an appropriate sentence to be imposed in your case, however in my opinion, there are a number of distinguishing features between you and your co-offenders, to which I have previously referred. I again note you were the only person with a weapon.
34 I discussed the aggravating features of your offending with both counsel. An aggravating feature of your offending was that you were, at the time of this offending, subject to two court orders, to which I have previously referred. One of those sentences, specifically that of 24 April 2014, related to another charge of armed robbery and you with a knife. I shall return to a summary of that offending in a moment. The presence of the meat cleaver aggravates the affray before me and increased the fear of bystanders. The weapon is not an aggravating feature for the offence of the armed robbery, as it is an element of that charge, nor is it relevant to the injury charges. I note also however, your offending was in company. Your counsel, Mr Grimshaw, conceded such was an aggravating feature.
35 That you were in the company of co-accused which could have increased, Mr Grimshaw conceded, the intimidation likely felt by the victims of your offending. He further conceded the production of the meat cleaver elevated this affray to one likely to cause greater fear to the public than if a weapon had not been produced.
36 Regarding your offending behaviour, at best you were able to describe the reason, for your having the meat cleaver, as "sheer stupidity". You said you were “highly intoxicated” at the time. The latter is not mitigatory of your offending.
37 Mr Grimshaw agreed the most recent offending before me was a very grave example of such offending and it is troubling, in particular as you had spent two and a half months in custody and I was told, had ceased your use of methylamphetamine at that time. Your previous offending had, you said, involved methylamphetamine use, nevertheless despite not having consumed on this occasion, you exhibited such violent behaviour.
38 Mr Grimshaw submitted that mercifully there was no ongoing physical injury to the victims of your offending, and that is so.
39 As has been pointed out by your counsel, you have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour, and I do so.
40 The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses in particular, your victims, have been spared the ordeal of having to give evidence upon your trial. I accept, based on the material before me, you indicated your intention to plead guilty at the contested committal hearing date, before witnesses were called to give evidence. The matter then proceeded by way of straight hand-up brief, that you have pleaded guilty and the stage at which you entered your plea of guilty are relevant in mitigation of your sentence.
41 I am prepared to accept your plea of guilty indicates some remorse for your actions. While you were certainly entitled to answer the way you did to questions asked of you in the record of interview, I accept your attitude towards your involvement has changed since then and that you now have some remorse for your offending, evident also in written correspondence from you (Exhibit 5).
42 Your similar prior criminal history and extent of it, however, causes me to question the full extent of your remorse. I hasten to add, I do not find that you are not remorseful. I am simply unable to say more than I accept your plea of guilty indicates some remorse for your offending and you have also expressed that to me in written correspondence.
43 There are two victim impact statements before me. Your offending has impacted adversely on both victims and I shall return to those victim impact statements later in these sentencing remarks.
44 At the time of your plea hearing, you had spent 227 days in custody on remand for these offences. This was not your first time in custody, having previously spent, as I said before, two and a half months on remand for matters dealt with in the Magistrates’ Court in April 2014. But I note you have not actually served a sentence of imprisonment. I note with concern, however, that just within five months of your last court appearance in April 2014, and having spent two and a half months on remand, you nevertheless committed the very serious offences before me.
45 I turn to a summary of your prior criminal history. This was discussed at some length with counsel and the transcript will reveal that discussion. Your prior criminal history is extremely troubling and relevant for someone your age.
46 You first appeared at the Melbourne Children’s Court on 25 May 2011 and since then appeared on 3 August 2011, 2 May 2012, 15 August 2012, 12 June 2013, 9 October 2013, 24 April 2014, and 29 April 2014. Your most recent court appearance of 29 April 2014 was at the Melbourne Magistrates’ Court. Prior to that you had been dealt with by the Children’s Court. I note your prior criminal history has included charges of armed robbery, damaging property, dishonesty offences, arson, intentionally cause injury, unlawful assault, amongst others.
47 Summaries were provided by the prosecution relevant to your court appearance on 24 April 2014, just five months prior to this offending. That offending included a charge of possessing a controlled weapon and armed robbery. There were disturbing similarities between that offending and that before me. However, on that occasion, you knew the victim of your offending. You met the victim outside Greensborough Plaza Shopping Centre and asked to borrow the victim’s phone. Both of you then attended at a bus stop where the victim asked for his phone back, a request you refused. You both boarded the bus and you gave the victim his phone back. You called out to the victim as he attempted to exit the bus and asked again to use the phone. When the victim turned to face you, you had a knife pointed at him. You took the phone out of the victim’s hands and refused to give it back. The summary referred to you swinging the knife in the victim’s direction as the victim tried to exit the bus. On that occasion, when interviewed, you acknowledged you robbed the victim, although did not admit to possessing a weapon. Also discussed with your counsel relevant to his submission regarding your rehabilitation prospects and my concerns about that, was that that offending occurred after you were "out of rehabilitation".
48 A summary was also provided, and I am mindful of course that the summaries may not entirely be read out, as they appear before me when being dealt with in the Magistrates' Court.
49 A summary was also provided of the offending dealt with on 9 October 2013. You appeared at the court on that date on charges including intentionally cause injury. That offending occurred in December 2012. You went to Northland Shopping Centre with four male co-offenders. You and your group approached a victim, apparently unknown to you. You said “Come outside or you’re fucked”. The victim walked with your group towards the exit, with you pulling him by the T-shirt and you snatched his bum bag from over his shoulder. You looked in the bag and said you were keeping “all the stuff”. The victim was taken to an underground car park, where you and your co-offenders crowded around him and demanded his running shoes. You punched the victim to the mouth and he fell to the ground. He was then kicked to the head and chest a number of times by all offenders including you, whilst on the ground, which caused him to lose consciousness.
50 Again I note that often summaries are amended at the Magistrates' Court hearing and may be slightly different from that.
51 There are some disturbing similarities however between your earlier offending and the charges you pleaded guilty to or admitted and your offending before me. Following discussion with your counsel, it was apparent your offending before me involved two victims not known to you or, as I understood it, to anyone else in your group. It was conceded by Mr Grimshaw that the violence inflicted was gratuitous violence, but at the outset you said there was no intention to rob the victims. It then became an armed robbery when you brandished the weapon. You instructed you took the knife from your friend’s house, having been there consuming alcohol immediately prior to your offending.
52 It is very disturbing that, as in your offending dealt with on 24 April 2014, as I say just five months prior to the offending before me when you were dealt with by the court, you brandished a knife.
53 Your prior criminal history and the circumstances of this current offending cause me real concerns about your rehabilitation prospects, although I have been offered some hope in that regard by Ms Hooker, and I shall return to that later in these sentencing remarks.
54
Before me was an outline of written submissions for your plea, prepared by
Mr Grimshaw (Exhibit 1) and I have read those submissions and Mr Grimshaw addressed those during the course of the plea hearing.
55 In court to support you during your initial plea hearing was Ms Lauren Stuckey, drug and alcohol counsellor with YSAS, who I understood had been involved with you for approximately three years and visited you in custody on approximately a monthly basis.
56 I was advised there were no charges outstanding, although in that regard I note you had been in custody since this offending.
57 Mr Grimshaw submitted you be assessed for your suitability for a community correction order, or a community correction order together with a term of imprisonment. You had specifically instructed you did not wish to be assessed for a Youth Justice Centre detention for reasons that were elaborated upon and appear on transcript. But as I discussed with Mr Grimshaw, ultimately the appropriate disposition is one that I must determine, irrespective of your wishes, having regard to all relevant sentencing considerations, which were also discussed during the course of your plea hearing.
58 Mr Grimshaw referred also to your disturbed disadvantaged background and referred me to Marrah v R[5]. I have read into the transcript paragraph 16, but I also note paragraph 17, but see also on this topic, DPP v Ternick & Ors[6] and Bugmy v R[7]. Whilst Mr Grimshaw was not, and correctly in my opinion, relying upon any Verdins[8] principles when making his submissions, he urged your disadvantaged background was of some mitigatory relevance to your sentence.
[5] [2014] VSCA 119
[6] [2009] VSCA 220
[7] [2013] HCA 37
[8] (2007) 16 VR 269
59 I have taken into account your disadvantaged background when determining the appropriate disposition. In your case, however I remain particularly concerned about the gravity of your offending, your prior criminal history and prospects of rehabilitation. At best I have guarded optimism regarding your rehabilitation prospects, as I discussed with Mr Grimshaw during your initial plea hearing, although again I note Ms Hooker’s assessment of you as being a good candidate for rehabilitation and I have not lost sight of that. Hopefully in the end you will undertake courses offered to you to enhance those prospects. However you are still a young offender and your prospects of rehabilitation are an important sentencing consideration.
60 In that regard, I am conscious of cases including R v Mills[9]. However, in Gosland and McDonald v R[10], the court noted, regarding the principles in Mills’ case:
“The premium which is placed on the rehabilitation of youthful offenders must be balanced against other sentencing considerations such as general and specific deterrence, denunciation and community protection. More specifically, as Batt JA explained in R v Lawrence, the general propositions enunciated in R v Mills are just that, general propositions, and they are not to be treated as if they were of usual or automatic application. Each case depends on its own circumstances, including the circumstances of the offence as well as of the offender. That is particularly so where a sentencing judge is required to deal with a case of gratuitously violent offending in a public place by youthful offenders under the influence of alcohol or drugs, especially where, as here, the offender has had previous opportunities to rehabilitate through community-based orders and Youth Justice Centre orders and in effect has thumbed his nose to those chances.”
[9][1998] 4 VR 235
[10][2013] VSCA 269
61 In R v Tran[11], Court of Appeal Callaway JA said:
“The rehabilitation of youthful offenders, where practicable, is one of the great objectives of the criminal law, but it is not its only objective. It is not difficult to cite cases where other objectives have had to prevail. It is true that in the case of a youthful offender, rehabilitation is usually far more important than general deterrence, but the word I have italicized, that is 'usually', is there to remind us that there are cases where just punishment, general deterrence or other sentencing objectives are at least equally important.”
[11](2002) 4 VR 457
62 Further, in R v Connolly[12], Coldrey J, referring to the principles in Mills, stated that:
“No doubt a sentencing court will endeavour to implement these principles as far as is possible in sentencing a youthful offender but they are not to be regarded as immutable. In the context of the variety of fact situations and offenders with which courts have to deal, such factors as the seriousness of the offence or offences committed, and the just punishment therefore, the need for deterrence, specific and general, the offender’s prospects of rehabilitation, and the need to protect the community may need to be reflected in the sentence imposed.”
[12][2004] VSCA 24
63 Although, as I have said, one can never give up hope of your eventual rehabilitation, as I have stated, I am concerned about that however again note your efforts towards your rehabilitation whilst most recently having been in custody. In fixing an appropriate sentence I however must seek to maximise your chances or your rehabilitation as they may be.
64 Relevant to your background and his submissions generally on sentence, were two documents. The first a report from, Gina Cidoni, Consultant Psychologist, dated 1 May 2015. Ms Cidoni attended upon you at Port Phillip Prison for interview. You reported to Ms Cidoni that in the days leading up to this offending you had been consuming alcohol “non-stop”.
65 Reference was made to your background and history, elaborated upon by
Mr Grimshaw during the course of your plea hearing. Your parents were only briefly together following your birth and you were then in foster care, again followed by a brief period with your mother, before moving in with your father and paternal grandparents at age 4. You were in another period of foster care between the ages of 5 and 7. You said you had not had any meaningful contact with your mother since your birth.
66 Your father is 36 or 37 years of age and material available to the author indicated he had had a period of depressive illness. You reported incidents of verbal and physical abuse by him towards you at age 15, at which time you were placed in residential care. You remained in residential and secure welfare accommodation until 17, but with periods of absconding.
67 You returned to your father’s home in 2013, although again absconded as a result of that turbulent relationship. From November 2013 until your remand in January 2014 (after 67 days in prison), you returned to live with your father. Unfortunately your association with “unhelpful peers” and ongoing substance abuse aggravated the situation at home. Leading up to the offending before me, apparently you had an argument with your father, left his home, met up with co‑offenders and commenced drinking.
68 One of the co‑accused in this offending you described as your “on and off” girlfriend. There was a son of that relationship born on 19 August 2012, living with her grandparents, although I understand you are not involved in the child’s upbringing.
69 You described having had a stutter for most of your life and when a child, requiring Ventolin for asthma. Reference was made by Ms Cidoni to a report from Austin Health mental health psychologist, Dr Maria Nichterlein and your previous reluctance to engage with that mental health service. You had on occasions been brought into the Emergency Department by police, with no memory of such occasions due to intoxication. Any attendances for counselling sessions between 2011 and 2013 were described as "irregular". You were not currently prescribed any medication.
70 You described a history of substance use, commencing drinking, cannabis and methamphetamines at 14. You said you have abstained from your use of ice. You reported heavy alcohol consumption on a daily basis when you were in the community, although said this was less when you attended school in 2014.
71 The author noted your recent involvement with YSAS. Further that in 2013 you had attended Moreland Hall Residential Withdrawal Unit as a condition of a youth supervision order, however you exited prematurely. You were then placed at YSAS Fitzroy Residential Withdrawal Unit in January 2014, although absconded after just a few hours.
72 Regarding your education, not surprisingly you did not achieve highly. You were often suspended at primary school. You then attended View Bank High School where you were expelled in Year 8, then attended Northland Secondary College, being expelled in 2011. You commenced VCAL at Preston-Reservoir Adult Community Education, but due to poor attendance you were exited from the program in August 2011.
73 You had completed pre-employment and education programs in Fitzroy in 2011, a training program through Austin Health in 2012, and commenced a Certificate II in Building and Construction at NMIT in Epping in 2011, but did not continue. You commenced at the Pavilion alternative school, Preston, in April 2014, which you had attended until your recent remand. You reported no history of employment.
74 Psychological testing was conducted. You had a full-scale IQ of 80, which in Ms Cidoni’s opinion, meant you were of below-average intelligence. Personality testing revealed moderate psychological disturbance, with signs of fluctuating mood and a sociopath trend reflecting your history of acting out and anti-social practices and substance abuse.
75 Ms Cidoni also referred to your disadvantaged background of early maternal rejection and protection issues. You were aware your substance use continued to exert an unhelpful influence upon your behaviour. Ms Cidoni referred to your impressionability and immaturity, of which I am also aware.
76 Mr Grimshaw elaborated on your background. Your parents were very young when you were born, your mother 16 and addicted to heroin, and your father 17. Your father has also had a history of imprisonment prior to your birth apparently.
77 Mr Grimshaw confirmed you were not on any current medication for psychiatric issues and nor did you have any psychosis issues.
78 Regarding your efforts towards rehabilitation, Mr Grimshaw submitted that after you were released from custody and remand in April 2014, you attended the Preston Pavilion School three days a week until your arrest. In prison you are currently studying Year 11 maths and English. Five certificates were provided to me following your plea.
79 As I have previously stated, I encourage your continued participation in any programs offered to you which would improve your rehabilitation prospects when you ultimately return to the community. Your resolve is yet to be tested.
80 Mr Grimshaw referred to your current remand at the youth unit of Port Phillip Prison under the “control” of Ms Anne Hooker. Mr Grimshaw discussed with you the possibility of calling Ms Hooker on your plea hearing, however your specific instructions were not to do that. But I was advised prior to sentence that your counsel proposed calling Ms Hooker to give evidence and as a result of that, the date of sentence was adjourned around Ms Hooker’s availability to attend court.
81 On 3 June 2015 I heard evidence from Ms Hooker, youth development officer, Port Phillip Prison. You are currently in the Youth Unit. Ms Hooker gave evidence of her positive involvement with you. She said you had a good attitude to programs, even requesting same. In her opinion you are quite vulnerable and quite fragile emotionally. She was concerned should you be in mainstream adult prison, that you should be easily led and manipulated, although to date you had spoken to Ms Hooker when you had any concerns.
82 Programs such as the violence and drug and alcohol program can be provided in the Youth Unit, with the programs where they are specifically directed to young offenders. She said you had worked whilst in custody initially as a billet, now a visits billet, a position of some privilege in the unit and she said you did that job well.
83 Documents written by you were also before me (Exhibit 5), and I have read those documents.
84 Since you have been in custody at the unit you have taken every step to address your issues and she considered you were a good candidate for rehabilitation.
85 Ms Hooker’s involvement in the prison system over the years has been invaluable in assisting young offenders, I say as an aside.
86 When determining the appropriate sentence I, of course, must take into account all matters relevant to your offending, which includes the gravity of it, as well as matters personal to you in mitigation.
87 Mr Grimshaw referred to your addiction in the past to methamphetamine, cannabis and alcohol and that you had withdrawn from methamphetamine use in 2014 after you were released on remand in April 2014. He described that you had had a long history of alcohol abuse, at times consuming alcohol on a daily basis, although submitted following your release from custody in April 2014, you had reduced your alcohol consumption, and I note with concern your self-reported alcohol consumption immediately prior to this current offending.
88 There was also a report before me from Dr Maria Nichterlein, I understood prepared on 13 May 2015, referrable to your time at Austin Health between
4 August 2011 and 20 December 2013. You were referred at that time due to concerns regarding your mood and disclosure of suicidal thoughts. The report referred to your history of adversity within the family and disruption of attachment with your parents. The author described a chronic and pervasive neglect of your developmental needs. When you had lived with your father in your pre-adolescent years, your behaviour was less disruptive. I was told you are able to return to your father upon your release from custody for this offending, although I note you left your father’s home and returned to your peers due to disagreements with him shortly before this offending.
89 It was noted in the report that you struggled to engage with utilising support services, although there had been some exceptions. At the time of involvement of Austin Health between 2011 and 2013 there had been reports of you complaining of hearing voices, however there was no further evidence to support consideration of a psychotic process in place. At that time you were showing a consistent pattern of poor co-operation, denying the need for help and being verbally abusive towards staff. Your attitude had restricted what could be offered to you by Austin Health.
90 As at December 2013 you did not present with significant suicidal risk, nor present with a clear mental health diagnosis. The risks, however, in other areas of your life had been exacerbated by your unwillingness at that time to engage with counselling and/or other mental health services. Following your involvement with Austin Health, you continued working with Lauren Stuckey, outreach worker with YSAS. Whilst I have no doubt that is a positive relationship for you, it is troubling that in the three years you have been with Ms Stuckey, you nevertheless have continued to re‑offend and in the serious way currently before me and on court orders.
91 Ultimately Mr Grimshaw submitted the imposition of either a community correction order, or a community correction order combined with a term of imprisonment was the appropriate disposition (paragraph 12).
92 Mr Grimshaw referred to Boulton & Ors v R[13], which was discussed at some length during the course of the hearing. I am of course conscious of the decision of Boulton and most recently referred to in DPP v Maxfield[14]. I do not, however, understand Boulton to be authority for the proposition that s.5 Sentencing Act 1991 is no longer applicable, nor do I understand Boulton to bring to nought sentencing principles established over many years relevant to the seriousness of this type of offending, the relevance of prior convictions, parity and in your case, your youth. That list is not exhaustive. Nor do I understand Boulton to bring to nought the instinctive synthesis involved in sentencing. Not lost on me, however, is your age at the time of sentence, disadvantaged background, your co‑offenders and the recent decision of Boulton, which is effectively referred to possibly re-looking at gaol for serious offences, and I quote that somewhat clumsily.
[13][2014] VSCA 342
[14] [2015] VSCA 95 at paras 32, 33 and 35
93 I note this is your first time sentenced to a term of imprisonment in an adult prison. I am also mindful you are potentially impressionable and vulnerable in an adult prison environment. To sentence anyone to a term of imprisonment must always be a last resort of the court and only after careful consideration of all other possible sentencing dispositions, including community correction orders, as stated in the decision of Boulton, and of course also Youth Justice detention.
94 Mr Grimshaw submitted I could consider the imposition of a youth justice centre disposition, rather than adult imprisonment. As I discussed with Mr Grimshaw, if I considered that to be the appropriate disposition I would not be dissuaded from you by that course by your instructions to the contrary. However in my opinion, such a disposition is not appropriate.
95 Mr Grimshaw submitted should I determine that a term of imprisonment was the only appropriate disposition, the head sentence and the non-parole period should reflect matters in mitigation, in particular your age and rehabilitation prospects. It will. In that regard I discussed with Mr Grimshaw non-parole periods generally and the decisions of R v VZ[15] and Kumova v R[16].
[15](1998) 7 VR 693
[16][2012] VSCA 212
96 Mr Roper, who appeared on behalf of the prosecution, submitted the only appropriate disposition for your offending was an immediate term of imprisonment, which would involve a period on parole. Mr Roper referred to the gravity of your offending, the need for denunciation of your offending, a need for general deterrence, need for just punishment and the need to protect the community.
97 In addition, he submitted there was a need for specific deterrence, as you were then subject to two court orders, in particular one involving similar type of offending. In addition you had a significant prior criminal history.
98 On the question of parity, Mr Roper submitted it was important that different jurisdictions were involved in sentencing of the co‑offenders and that there were differences in their prior criminal histories. He submitted the presence of a weapon added greatly to the level of your offending, particularly regarding the affray charge and to the fear to bystanders as a result of you wielding that item, that is the meat cleaver.
99 Mr Roper submitted that neither a community correction order nor Youth Justice Centre detention would appropriately address the gravity of your offending in all the circumstances.
100 There were victim impact statements before me from Sajad Khosrawi. He had come to Melbourne from Wagga to find work. He had family and friends living in the Melbourne area and was without that contact in Wagga. He did not like being in Melbourne any more as a result of your offending and had to return to his old job at Wagga, which he did not like. He described injuries to his face, arms and hands, pain in his neck and shin, which continued for a few weeks after your offending. As a result of your offending he missed the opportunity to be with friends and relatives, inevitably having to return to Wagga to his old job.
101 Turning to the victim impact statement of Mahdi Khosrawi. He described that before your offending he felt safe in Australia, however since then he had changed his mind. He felt depressed and distressed for a while after your offending, suffered with disruption with his sleep, appetite and also suffered stress, anxiety and depression. As a result of your offending he sustained injuries to his head, face, arms and hands and also an ache in his body due to the punches and kicks. He described his fear at being bashed, beaten and threatened by your group.
102 The effects upon a victim are a relevant sentencing consideration, see s.5 Sentencing Act 1991. Social rehabilitation is also an important sentencing consideration, see DPP v DJK[17]. I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
[17] [2003] VSCA 109 (paras 17 and 18)
103 Overall, as I have said, I have concerns about your rehabilitation prospects, although I am conscious that I must, and do, accept the importance of rehabilitation, given your young age. Your history to date, until your most recent incarceration gives me little confidence that you will be successfully rehabilitated. However, as I say, your last few months have given me some confidence in that regard. When sentencing I must seek to maximise your chances of your rehabilitation as they may be.
104 As well as matters personal to you, to which I have referred, which include your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
105 There is also a need for specific deterrence, given your relevant and significant prior criminal history and your breach of court orders.
106 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I remain concerned about the need to protect the community from you.
107 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
108 When sentencing you, amongst the other matters to which I have previously referred, I take into account the principles of totality.
109 On the charges before me I sentence you as follows:
110 Charge 1, armed robbery, convicted and sentenced to 2 years' and 6 months’ imprisonment.
111 On Charge 2, affray, convicted and sentenced to 6 months’ imprisonment.
112 Charge 3, intentionally causing injury, convicted and sentenced to 18 months’ imprisonment.
113 Charge 4, intentionally causing injury, convicted and sentenced to 18 months’ imprisonment.
114 Charge 1 is the base sentence.
115 I direct that 2 months of Charge 2 be served cumulatively upon Charge 1, that 4 months of Charge 3 be served cumulatively upon Charge 1, and 4 months of Charge 4 be served cumulatively upon Charge 1.
116 For purposes of clarity, the orders for cumulation are upon each other and upon the base sentence.
117 That results in a total effective sentence of 3 years' and 4 months' imprisonment. I direct that you serve a period of 2 years before you are eligible for parole.
118 Pursuant to s18(4) Sentencing Act 1991, I declare you have served 248 days in custody, up to and including yesterday, 2 June 2015, by way of pre-sentence detention and I direct that that be entered into the records of the court.
119 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict, in other words if you had pleaded not guilty and been found guilty of these charges, I would have sentenced you to gaol for 5 years and I would have set a non-parole period of 3 years and 6 months.
120 The prosecution made application for a forensic sample. This was consented to by counsel on your behalf. I make the order in the terms sought. It will be for a saliva sample and I make the order on the basis of your prior criminal history and the seriousness of this offending. I must advise you that the authorities may use reasonable force in order to obtain that sample.
121 As I understand it no other orders were sought.
122 PSD, is that right, 248?
123 MS HILL: Yes, Your Honour.
124 HER HONOUR: Two four eight days will be declared.
125 HER HONOUR: Thanks, could you remove the prisoner please. Thanks very much, Mr Scerri. Thank you to counsel.
126 MS HILL: As Your Honour pleases.
- - - - - -
0
4
0