Director of Public Prosecutions v Skordilis

[2018] VCC 1567

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02538

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNETH SKORDILIS

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May, 10 July and 20 September 2018 respectively
DATE OF SENTENCE:	24 September 2018
CASE MAY BE CITED AS:	DPP v Skordilis
MEDIUM NEUTRAL CITATION:	[2018] VCC 1567

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Pleas of guilty – Attempted armed robbery – Unlawful assault – Commit indictable offence whilst on bail – Co-offender – Parity of limited application  - Serious role in offending – Offence committed in company and public place – Relevant and extensive criminal history - Deprived background and homelessness – History of cannabis and alcohol abuse – Supervised bail

Sentence:Convicted and sentenced to 184 days’ imprisonment together with Community Corrections Order of 2 years’ duration – 184 days pre-sentence detention declared as having already been served – s.6AAA Sentencing Act 1991 declaration – Ancillary orders – Forensic Sample and Disposal orders

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Champion (Plea) Ms S. Holmes (Further pleas) Ms L. Conwell (Sentence)	Solicitor for Public Prosecutions
For the Accused	Ms D. Dempsey (Plea) Ms S. Seoud (Further pleas and sentence)	VLA

HER HONOUR: 

1Kenneth Skordilis, you have pleaded guilty to the following offences:  Attempted armed robbery which has a maximum penalty of 20 years' imprisonment; Criminal damage which has a maximum penalty of 10 years' imprisonment

2You have also pleaded guilty to the following summary offences:  2 charges of unlawful assault and one charge of committing an offence whilst on bail. Each of these offences has a maximum penalty of 3 months' imprisonment.

3Your offending was opened by the prosecution as follows:

4You were 18 at the time of the offending and you are now 19 years old.

5On 28^th September 2017 at about 7pm, you and your co-offender, Caleb McKinnon, who was 16 years old at the time, approached a 17 year old male, Shahabudin Amini (the first victim) and his female friend, who were sitting at a bus stop at the Knox City Shopping Centre. Mr McKinnon asked Mr Shahabudin for a cigarette. He said that he did not have one. Mr McKinnon then went over to you and you and he whispered to each other.

6You then walked up to the first victim and stood in front of him whilst McKinnon stood in front of his female friend. You asked him if he was sure that he did not have a cigarette and he told you that he did not have one. You then looked at the first victim’s watch and made a remark about how nice it was, identifying its make and model. You then demanded that the first victim give his watch to you. You produced a small hunting knife and held it against the first victim’s throat, applying firm pressure. The victim refused to hand over his watch.  This incident gives rise to Charge 1-Attempted armed robbery.

7McKinnon grabbed the victim’s right arm and pushed you back, causing the knife to leave the victim’s throat but you continued to hold it. McKinnon said to the victim ‘Don’t fuck with him, say sorry to him.’ The first victim then apologised to you. A scuffle then ensued between you and the victim, during which, you have punched the victim twice to the left side of his face and once to his chest. This conduct gives rise to summary offence Charge 2 of unlawful assault.

8The first named victim managed to escape and ran to the Knox police station.

9Shortly after this incident, at about 7.30pm, you and McKinnon were seen spray painting mirrors in the male toilets at the Knox Shopping Centre. This gives rise to Charge 2 of criminal damage, that is on the indictment.

10An employee at the centre walked into the toilets while you were doing this. As Mr Ali was leaving the toilets, either you or Mr McKinnon said, ‘Don’t say anything.’ Mr Ali replied ‘Excuse me?’ You then produced a knife saying, ‘I’ll fuck you if you tell anyone.’ The second victim said that he did not want any trouble. You and McKinnon backed out of the toilets while you brandished the knife in Mr Ali’s direction. Mr Ali was very frightened when he saw the knife and told police that he was petrified. This incident gives rise to summary Charge 4-unlawful assault.  

11When you exited the toilets, you were arrested. Police found 2 spray paint cans down the front of your trousers and a folding knife in your back pocket.  McKinnon was also searched and was found with a folding knife and a permanent marker.

12At the time of these incidents, you were on bail in respect of a number of other alleged offences, giving rise to the summary offence (Charge 6) of committing an indictable offence whilst on bail.

13You were interviewed by police but made no comment answers and declined to take further part in the interview.

14Mr Skordilis, I regard your offending as serious and deserving of a punishment which is just in all of the circumstances and your conduct must be denounced. You behaved like a marauding thug on the day in question, terrorising two victims who were doing nothing more than going about their business, as they were entitled to do.

15I regard the attempted armed robbery as a serious example of this offence, in circumstances where you actually held a knife to the first victim’s throat, only moving it away, when your co-offender had the decency to intervene. It was no thanks to you that the victim’s watch was not taken. You did what you could to steal it, following this up with a nasty unlawful assault. He and you are very lucky that you did not cause him a more serious injury, as the consequences of punches to the facial region can be dire. Rather than think better of behaving like a thug, you moved onto the toilets at the shopping centre, defacing the mirrors and behaving in a most threatening fashion towards the second victim. It would have been a good idea if, at the very least, you were made to clean up the mess that you made in the toilets-someone else has had to do this for you, no doubt.  

16Each of the offences on the indictment is aggravated by the fact that you committed these in company, and in public places. You also committed these offences whilst on bail but I make it clear that I am mindful of the need not to double punish you in this regard as you are also to be dealt with for the summary offence of committing an indictable offence whilst on bail.

17I take into account the impact on the victims of your offending. I factor in the victim impact statement of the first victim who spoke of the circumstances of the incident concerning him, and who said that he was afraid to leave the house for a few days after the offending. He said that he still has a fear of being bashed at places that he is unfamiliar with.  I also factor in the impact on the second victim, who in his police statement spoke of the fear that your conduct caused him. These are the very real effects of your dreadful conduct and I take these into account when sentencing you.

18You have a relevant and rather extensive criminal history, which begins in December 2013 in the Children’s Court- you have been before the Children’s Court every year since then, up to August 2017. You have 2 prior convictions for attempted armed robbery for which you received the benefit of a 12 month youth supervision order in August 2014, which you subsequently breached by further offending. In July 2016, you were dealt with for 2 charges of robbery for which you were sentenced to 40 days youth justice centre, which was reckoned as already served. You also have a number of prior matters for dishonesty offences and for wilfully damaging property, as well as for breaching bail requirements, including committing an indictable offence whilst on bail.

19You also have some subsequent findings of guilt in relation to assaulting a police officer, trespass, drunk and disorderly, 2 charges of unlawful assault, three dishonesty offences and committing an indictable offence whilst on bail. These offences were all committed in August or September 2017, that is all before the offending for which I now sentence you.  One of the unlawful assaults was committed only 2 days before the offences for which I now sentence you.  On 1^st May this year, you were convicted of these matters and placed on a 12 month good behaviour bond.

20I was told by your Counsel that on 25 October 2017, in the Melbourne Children’s Court, you were placed on probation for unrelated matters-the probation order was set to expire on 15 May this year.

21These matters are relevant to your prospects of rehabilitation, and your prior matters are relevant to my assessment of the weight to be applied to specific deterrence and protection of the community.

22I have also factored in that, over and above pre-sentence detention in relation to the matters before me, you have been held in custody for a further 28 days in relation to an unrelated matter, that was subsequently withdrawn.

23In relation to your co-offender, I was told that he was dealt with in the Children’s Court, as he was 16 years' old at the time of the offending. He had no prior convictions. He was placed on a diversion program which was due to be completed on 1 August this year.

24I have had some regard to this outcome, but the application of the parity principle is somewhat limited in circumstances where the sentencing approach in the Children’s Court and here are markedly different. Further, you were 2 years older than the co-offender, had significant and relevant prior matters and you played a more serious role in respect of the offences on the indictment, save, perhaps, for the criminal damage. You also played a more significant role in the unlawful assaults and you offended whilst subject to bail.

25I was told that you were badly affected by alcohol when you committed the offences before me, and that you have little memory of what you did. This causes me great concern. It appears that have some understanding of the fact that abuse of drugs or alcohol can lead to you committing criminal offences. I now put you on formal notice that there is a real link between your offending and abusing alcohol and/or drugs.  If you choose to abuse alcohol and/or drugs in the future and commit criminal offences, your decision to abuse these substances may well be regarded as an aggravating feature.

26I have factored in that you had turned 18 on 2 August, so about 8 weeks before you committed the offences before me, so you had only just made it into the adult jurisdiction when you committed these offences. I have also factored in that you have not committed any further offences when in the community, since committing the offences before me, which is a matter in your favour, although, in circumstances where you have been on remand for a significant proportion of the intervening period.  Whilst on remand your behaviour was problematic from time to time.  I will refer to this aspect in a little more detail in a moment.

27In your favour, I have allowed a significant discount in the sentence that you would have otherwise receive because of your early indication of a preparedness to plead guilty to these matters. In doing so, you have saved the witnesses, especially the victims, the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings. This course also reflects a preparedness to take responsibility for your actions. While you demonstrated some positive signs while you were in the community on supervised bail, until your re-remand, I am unable to accept that you have shown a good deal in the way of remorse or insight in respect of your offending. I hope that this is something that develops sooner rather than later, Mr Skordilis, as being able to feel sorry for what you have done and how it affected the victims, is very important in you changing for the better.

28This has been the first time that you have been in adult custody, and you spent your days in mainstream rather than a youth unit. I take into account that time in such conditions had been harsher for you than might otherwise be the case. In sentencing you, I have also factored in the harshness of the situation you were placed in when your bail was refused in relation to a matter which was ultimately withdrawn. I have also factored in that you were unable to receive a grant of bail on occasions, simply because you were unable to find stable accommodation.

29I take into account your background, which is one that has been marked by deprivation.

30Your parents separated when you were 10. Your father abused alcohol and was violent toward your mother which was something that you witnessed. He was not violent towards you or your older brother as your mother shielded you from this. Your father went to live in a caravan park and you and your brother lived with your mother in the family home. However, your mother suffered an aggravation of an injury to her neck in an incident involving a car -and in 2011 she was unable to continue working. She requires ongoing physiotherapy. She could not keep the mortgage payments going in relation to the home you were living in and so, you all moved to a block of land which was owned by your mother in the Mt Evelyn area. There was only a carport and a small built in area, akin to a caravan-you lived there and went to school until you were 15. During the time that you lived at this property, your mother re-partnered. Unfortunately, her second partner was also violent but his violence extended to you.

31You experienced difficulty with school when you were about 13 or 14 and started mixing with local teenagers. You also started to use cannabis and consume alcohol, and this has been an ongoing issue for you. You also used methamphetamine from time to time, but alcohol and cannabis have been your drugs of choice.

32You left home when you were 15 and couch surfed. From time to time, you lived with your father in his caravan but this was always problematic because of his alcoholism. He is now unwell due to the long term effects of this. You have not had any contact with your father since turning 18.

33Your mother lives in a car on her block of land and is supportive of you. You have a close relationship with her. I was told that she attended recent Magistrates' Court proceedings and I notice that she had attended at least one of the hearings in this court, in support of you. However, she is unable to offer you accommodation and she is struggling financially, as she is in receipt of Centrelink  which barely covers her mortgage payments.

34Your disengagement from school and substance abuse saw you committing offences. As your Counsel noted, your compliance with Court orders such as probation in the Children's Court was poor. I was told that many of your prior offences were in the nature of street offending and were committed while you were affected by alcohol or drugs.

35In your favour, I have taken into account the reports prepared by Mr Farrell of Jesuit Social Services dated 27 April 2018, the letter from Ms Chloe Bennett dated 24 April 2018, and the supervised bail progress report dated 29 March 2018. Each of the authors spoke highly of you. You did very well on supervised bail which was put in place on 19 December last year, and there had been a recommendation for a further period of unsupervised bail at an earlier stage in these proceedings, which is to your credit.

36Mr Farrell said that you had shown significant progress during your period of supervised bail and that you had shown consistent engagement and motivation in important areas such as seeking accommodation, employment and vocational courses. This interest had been maintained during your incarceration, as Mr Farrell had been visiting you on a fortnightly basis when you were placed back in remand.

37Ms Bennett of VincentCare spoke of your difficulties in obtaining bail because of a lack of availability of refuge housing. She also spoke of you finally being accepted at StopOver Youth Refuge, who reported that you behaved extremely well.   

38Ms Bennett made some very strong observations about the dire situation there is with homelessness, pointing to the particular difficulties for a person in your situation at your young age. Her observations as a youth justice homelessness assistant are very concerning. I would hope that the ‘powers that be’ understand that resourcing appropriate, stable accommodation for people in your situation will have a positive impact on the crime rate, as well as the wellbeing of the disadvantaged.  It is very well known that factors such as stable accommodation, employment and community supports are very important in assisting people in their wellbeing and in leading crime free lives. So many who come before these courts have one or more of these things missing, and it is often left to the community groups who are often under resourced to do what they can to support them. It is simply not good enough, and more must be done to provide these essentials to those in need-this is a very effective way to protect society and to give dignity to all of those who live in it.

39Having said all of this, as the parties had agreed that the appropriate disposition in your case was a community corrections order in addition to a period of imprisonment on the basis of time served, I requested a detailed report be prepared by Community Corrections, whilst expressing some disquiet about such a disposition in your case. I also requested an assessment of you by Youth Justice. Those reports conveyed some most concerning information about you. You had behaved somewhat poorly whilst on remand, and had been involved in an assault on another prisoner, as well as being involved in possessing contraband and allegedly in standover tactics.  

40At a prior hearing I heard evidence from Mr Farrell and Ms Pergolini after the community corrections order and Youth Justice Centre reports were received.  Ms Pergolini worked with you whilst you were on supervised bail and spoke highly of you in that regard.  She also prepared the pre-sentence report, where she deemed you unsuitable for a youth justice centre order, which had a good deal to do with your alleged conduct whilst on remand.   However, she had since learnt that some of this information was inaccurate insofar as the assertion by Corrections that you had not engaged in any programs.  In fact, you had engaged in numerous programs which was evidenced by the bundle of certificates which were tendered at the further plea hearing. 

41Your counsel said, based on the instructions from you, that your alleged poor conduct on remand insofar as an assault allegation was concerned, comprised you punching a prisoner in retaliation after he punched you.  This followed his verbal abuse when you went into his cell to borrow sugar.  She said that the starting of a fire in your cell allegation, concerned you returning to your cell and finding a cigarette butt in the toilet.

42I express some disquiet about the accuracy of the information we received from Corrections and which largely formed the basis for Community Corrections and Youth Justice rejecting you.  I resolved to have the matter further investigated and I had my associate to have the prosecution to make further enquiries about this aspect.  While you took issue with some of the aspects of what was said in respect of your time in prison, a good deal of what was alleged against you, was subsequently verified by Mr Money, Assistance Commissioner of the Sentence Management Division of Corrections Victoria in an affidavit sworn 9 July 2018.  On the other hand, he confirmed that you had completed a number of the programs in accordance with the certificates previously tendered on your behalf.

43As I also understand that you had yourself, been a victim of an assault and that the contraband that was alleged to have been found in your possession was of a rather innocuous nature.  At an earlier stage of these proceedings, Youth Justice undertook to conduct an assessment for a supervised bail disposition, in circumstances where your counsel submitted that a deferred sentencing order was appropriate in your case.  She also indicated that she had contacted Community Corrections, who indicated that they might well re-consider their assessment of you if the information from Corrections was less serious than they had been led to believe.

44Mr Farrell had been visiting you once a fortnight whilst you had been in custody and he gave evidence that, should you be released on supervised bail, he had been able to secure refuge accommodation for six to eight weeks, which needed to be taken up swiftly or else it would be given to another youth.  Mr Farrell, who has been a tremendous support to you since December 2017, said that if you were released on bail, he would accompany you to the refuge and ensure as best he could that you are adequately supported.  He said that he could also assist with further accommodation prospects down the track, when the refuge accommodation was no longer available.  However, he also said that the refuge accommodation could not act as a fixed bail address and as I understood his evidence, if I were to impose a curfew this would be problematic insofar as the refuge monitoring you in this regard.

45Your counsel submitted that it was precisely because adult remand was resulting in you behaving poorly that you needed to leave it.  However, you have to take some responsibility for your behaviour as well, Mr Skordilils.  In any event, earlier in these proceedings I adjourned the matter for a number of months to see how you went on supervised bail, before further considering what the most appropriate sentence was, in your case.

46I have now received a supervised bail progress report dated 12 September 2018, which was quite positive overall and it appeared that you were doing pretty well.  This is also attested to by a letter from Patrick McGuigan of Jesuit Social Services dated 30 August 2018.  I am really pleased to see you are doing so well and in my view, you can go from strength to strength.

47Taking all relevant matters into account, I assess your prospects of rehabilitation as rather guarded at best.  I hope I am wrong about that and that they improve.  I must give fairly strong weight to specific deterrence and protection of the community, and I must give strong weight to general deterrence in a bid to deter others who are tempted to behave as you have.

48You are still a young man, and although your offending is serious, you have not reached a stage where you are beyond hope, so I must do what I can to maximise your prospects of rehabilitation.  This is what the law provides and this is what I must do.  Your counsel ultimately submitted that a period of imprisonment on the basis of time served and bearing in mind the 28 days (indistinct) time that you had previously served, in combination with a community corrections order was appropriate in your case.  The prosecution agreed with this.

49Last week I arranged for you to be assessed once more, for a community corrections order and you have been found suitable for that disposition although, with a degree of reservation by the assessing officer. 

50In the end and very much on the basis of your behaviour while on supervised bail, I have come to the view that I can do justice to all relevant sentencing principles by imposing a gaol term in combination with a community corrections order.  Further, it would be a retrograde step, that is a backwards step to return you to prison in view of your progress so the gaol term that I will impose will be the time that you have already served.  However, make no mistake Mr Skordilis, if you commit any further offences in breach of this community corrections order or if you do not comply with its conditions, you face the very real risk of a further sentence of imprisonment.  Do you understand that?

51ACCUSED:  I understand, Your Honour.

52HER HONOUR:  All right.  In sentencing you, I have factored in the 28 days imprisonment that you have previously served in respect of matters which were subsequently withdrawn. 

53Would you  please stand up.

54You are convicted of each of the offences, both on the indictment and the summary matters:

Ancillary orders:

55Firstly, I make a disposal order in accordance with the order sought by the Prosecution which is not opposed by you.

56Also, I make an order for a forensic sample to be taken by way of a buccal swab from the mouth. I make this order because of the seriousness of the offences, because of your criminal history, because the order is not opposed and because I regard it as being in the public interest to make such an order. I warn you that if you do not co-operate with the taking of the sample, reasonable force may be used in order to obtain it.

57You are sentenced as follows:

Charges 1 and 2:  I impose an aggregate term of 184 days, being time already served, in combination with a community corrections order, the terms and conditions of which I will explain in a moment.

In relation to Summary Charges 2, 4 and 8: I impose an aggregate term of imprisonment of 2 months, to be served concurrently with the 184 days, in respect of Charges 1 and 2 on the indictment.  Therefore the total effective sentence in respect of the period of imprisonment to be undertaken, is 184 days and I declare that the pre-sentence detention is 184 days which will be reckoned as having already been served.

58As I said, the gaol term in respect of Charges 1 and 2 on the indictment, will be served in combination with a community corrections order, the terms and conditions of which I will now set out.  I cannot impose a community corrections order unless you agree to it, so you need to listen carefully to what I propose.

59The community corrections order would run for a period of two years.  The conditions of the order would be as follows:

60Firstly, the mandatory terms that apply to all community corrections order which are:

61You must not commit another offence for which you could be imprisoned during the time that the order is in force;

62You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011;

63You must report to and receive visits from the Secretary of the Department of Justice, or his or her delegate;

64You must report to the Sunshine community corrections centre before 4 pm within two clear working days of today, if I were you I would go tomorrow;

65You must let a community corrections officer know within two clear working days of you changing your address or job;

66You must not leave Victoria without first obtaining permission to do so, from the Secretary of the Department of Justice, or his or her delegate;

67You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate;

68Further, the conditions that will apply in addition to the mandatory ones, are:

69You must undergo 100 hours unpaid community work within the next two years;

70Up to 50 hours of this unpaid community work can be traded off, against the successful completion of hours completed in respect of the treatment and rehabilitation conditions;

71You must be under the supervision of a community corrections officer for a period of two years;

72You must undergo assessment and treatment, including testing for drug and alcohol abuse or dependency, as directed by the Regional Manager;

73You must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuro-psychological  and psychiatric treatment and if necessary, in a hospital or residential facility as directed by the Regional Manager.  In this regard, I note that you are presently seeing Mr Bilic, psychologist.  I ask the Regional Manager have due regard to this in addressing this particular condition;

74Further, you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager; and

75Finally, you must attend at court to be monitored by me when required to do so.  Ahead of each appointment I will receive a report from the Community Corrections in respect of your progress, and I will discuss this with you.  Your first judicial monitoring appointment will be Friday 9 November this year at 10 am and I will be closely checking your progress.  If you wish to vary any of the conditions of the order, then you must apply to the court to do so.

76Do you consent to the terms and conditions of the order?

77OFFENDER:  Yes, Your Honour.

78HER HONOUR:  I should tell you that if you do not comply with all of the requirements of this order, then you will face breach proceedings before me, you will then be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a period of imprisonment.  I will regard the breach of the community corrections order as a most serious matter.  Whether it be because of further offending or because of non-compliance with any of the other conditions of the order.  Do you understand that?

79OFFENDER:  Yes.

80HER HONOUR:  Do you still consent to the order?

81OFFENDER:  Yes, Your Honour.

82HER HONOUR:  All right.  Therefore in relation to the charges on the indictment you are convicted and sentenced to 184 days imprisonment and to a community corrections order in the terms that I have just set out.

83If not for your pleas of guilty in relation to all matters, I would have sentenced you to a total effective sentence of 3 years' imprisonment with a non-parole period of 2 years. 

84Take a seat for a moment please.  Is there anything arising from those remarks?

85MS CONWELL:  No, Your Honour.

86MS SEOUD:  No, Your Honour.

87HER HONOUR:  All right.  We are going to have the order signed by Mr Skordilis with assistance from his counsel.

88MS SEOUD:  Yes, Your Honour.

89HER HONOUR:  Yes.  Thank you, I have signed that order.  I will be receiving a progress report from Community Corrections ahead of our monitoring appointment, Mr Skordilis, which will happen every time.  I look forward to hearing further good news.  All right.  Yes, thank you.  We will now adjourn.

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