Director of Public Prosecutions v Tegegne
[2022] VCC 725
•20 May 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-21-01974
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALULA TEGEGNE |
---
JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 April 2022, 29 April 2022 | |
DATE OF SENTENCE: | 20 May 2022 | |
CASE MAY BE CITED AS: | DPP v Tegegne | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 725 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Kidnapping - Category 2 offence - substantial and compelling circumstances that are exceptional and rare - trafficking in a drug of dependence – unlawful assault – committing an indictable offence whilst on bail – complicity - plea of guilty – risk of deportation – youthful offender – delay – impact of COVID-19 on burden of imprisonment
Legislation Cited: Sentencing Act 1991 (Vic) s5(2H)
Cases Cited:Azzopardi v The Queen [2011] VSCA 372; Fariah v The Queen [2021] VSCA 213; Farmer v The Queen [2020] VSCA 140
Sentence: Convicted and sentenced to a term of imprisonment of 5 months, with a Community Correction Order of 18 months
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Damien Hannan (7 Apr 2022) Ms Penny Thorp (29 April 2022) | Office of Public Prosecutions |
| For the Accused Tegegne | Mr Sai Ranjit | Papa Hughes Lawyers |
HER HONOUR:
Introduction
1Mr Tegegne, you have pleaded guilty to one charge of kidnapping, Charge 1, one charge of trafficking in a drug of dependence, Charge 2 and have consented to this court hearing, and pleaded guilty to three related summary offences being one charge of unlawful assault, Charge 9, and two charges of committing an indictable offence whilst on bail, Charges 12 and 13.
2
The maximum penalty for unlawful assault is three months’ imprisonment and/or 15 penalty units; for committing an indictable offence whilst on bail is three months’ imprisonment and/or 30 penalty units; for trafficking in a drug of dependence is
15 years’ imprisonment; and for kidnapping is 25 years’ imprisonment. Additionally, kidnapping is a category 2 offence under the Sentencing Act 1991 (Victoria). This means that I must impose a custodial sentence (which is not imposed in combination with a community correction order) on you for that offence unless at least one of the circumstances set out in paragraphs (a) to (e) of s5(2)(H) of the Sentencing Act exists.
Circumstances of the Offending
3The full circumstances of the alleged offending, investigation and arrest are set out in the Amended Summary of Prosecution Opening for Plea dated 5 April 2022 which was tendered as Exhibit A on the plea. In shorter compass, however, on 30 April 2020, the victim in this matter, Jacob Turner, came into contact with yourself and your co-accused, Yousif Elias, when he met up with you to facilitate the sale of some methylamphetamine. There was an exchange between the three of you at a hotel whereby Mr Turner exchanged a Xanax tablet for 0.1 grams of cocaine. Mr Turner then went upstairs for about 10 minutes, and when he returned you and your co-accused had left. Each of you, including the victim, were 19 years of age at the time.
4
The next day, 1 May 2020, Mr Turner checked out of the hotel at around 11.30 am and came across you and Mr Elias in a nearby street. Both of you approached
Mr Turner, and Mr Elias demanded that Mr Turner give you back the cocaine that you had given to him the day before. Mr Turner offered to contact someone who would be able to assist you in obtaining some cocaine, however Mr Turner’s phone was flat and so you all attended at a phone repair store where the attendant allowed you all to recharge your phones. After your phones were charged,
Mr Turner made a phone call. About 15 minutes later, an unidentified male turned up to sell cocaine to Mr Elias, but he left again when Mr Elias was unable to produce any money.
5The three of you then walked across the road together. Once you had crossed the road, the two of you pushed Mr Turner from behind, then you each took hold of one of his arms and took him down a ramp and into an underground carpark. Once you were out of sight of the street, the two of you threw Mr Turner to the ground and Mr Elias began punching and kicking him, mainly in the abdominal area, whilst he lay on the ground. You watched this occur. One of you then told Mr Turner to get up, and as soon as he did, Mr Elias kicked him in the head and knocked him back down. Mr Turner then found a chair nearby and sat on it, whilst Mr Elias continually said, ‘I’m going to kill him’. Both of you recorded this incident on your mobile phones.
6Mr Elias then told Mr Turner that he was an undercover police officer and made various demands of Mr Turner including that he hand over two bags of ice, and that he set up his dealers. Mr Elias further told Mr Turner that he would have to come in the car with him and would not be able to go until he complied with his demands. Mr Elias also threatened him with ‘12 years in prison’ if he did not comply with what he wanted him to say. Mr Elias filmed himself making these demands of Mr Turner.
7
Both of you then stood in front of Mr Turner and prevented him from leaving, whilst Mr Elias continued to assault Mr Turner. Whilst you did not physically assault
Mr Turner, you were complicit in the offending in that you stood by, and filmed the assault on your mobile phone. That is related summary charge 9 on unlawful assault.
8Mr Elias took an electrical cable from a nearby air conditioning unit and whipped Mr Turner with it a number of times to the head, body and legs before picking up a fire extinguisher and stating ‘I’m gunna fucking kill him’. It was at that point that you put your hand out and tried to stop Mr Elias. Mr Elias then put the fire extinguisher down and after a push and shove between himself and Mr Turner, left the carpark for a short period.
9Whilst Mr Elias was gone, you asked Mr Turner to log in to his banking application on his phone and prove he did not have any money. Mr Turner did this and showed you he had 43 cents in his bank account. Shortly after this, Mr Elias returned to the car park with some drinks and a packet of cigarettes. He offered a drink and a cigarette to Mr Turner who accepted them. Mr Turner says that at this stage he began to feel calmer but still felt he could not leave and feared being further assaulted.
10
A short time later, the two of you escorted Mr Turner out of the carpark, along the street and into a tram and then a train. During this journey, Mr Elias slapped
Mr Turner a number of times to the head after he had tried to slip away; continued to verbally harangue him; and also continued to film his interactions with Mr Turner. Once the three of you had reached Footscray Railway Station, you then both escorted Mr Turner to the Commonwealth Bank so that he could withdraw his Centrelink money for you. Mr Elias threatened to kill Mr Turner if he told anyone about it. Due to COVID restrictions, the two of you were unable to accompany
Mr Turner into the bank. Once inside Mr Turner told a staff member he was being held hostage by the two males waiting outside, and the police were contacted. As police arrived, you walked away in a calm manner, whilst Mr Elias ran off in the opposite direction to you. Police did not speak with either of you on that day. They also did not take a statement from Mr Turner at that time as he appeared drug-affected.
11Your actions in taking Mr Turner away and holding him with the intention of demanding money from him for his release are the subject matter of Charge 1, kidnapping. You were also on bail at the time of this offending and accordingly also committed the summary related offence of committing an indictable offence whilst on bail, which is Charge 12.
Further Investigation, Arrest and Interview
12On 2 July 2020, police executed a search warrant at an address in Campbellfield in relation to an unrelated matter, and Mr Elias was arrested and his iPhone was seized. When police looked at his phone, they located four videos in Snapchat which depicted Mr Turner being assaulted, and having obvious swelling to his face. Mr Elias was interviewed that same day by police in respect of both the unrelated offending and the incident with Mr Turner. He was charged with the unrelated offences and released on bail. He was not charged with any offences involving Turner at this time.
13On 9 July 2020, Mr Turner provided a statement to the police. Mr Elias was then arrested on 14 July 2020 and interviewed a second time in relation to this matter. He was charged and remanded in custody.
14
On 17 July 2020, police executed a search warrant at an address in Tarneit and you were arrested. During the search two phones, seven grams of cannabis in Ziplock bags, a small set of scales, and $190 in cash were all seized from your address. You had a number of text messages on your phone which were indicative of drug trafficking. Charge 2, trafficking in a drug of dependence, is based on the combination of the items located at your address and the content of those text messages. This offence was also committed whilst you were on bail, which is related summary Charge 13, commit an indictable offence whilst on bail. Whilst inspecting your phone, police also located a video in Snapchat which depicted
Mr Turner sitting on a chair in the underground carpark whilst being whipped by Mr Elias. That video was dated 1 May 2020.
15
You were interviewed by police on 17 July 2020 and made some admissions in respect of your part in the incident with Mr Turner. You stated that Mr Elias approached Mr Turner in the street near the hostel and began asking about money that Mr Turner owed to him. You denied any involvement in the money owed and could not tell investigators what the money referred to. You said that it was
Mr Elias who forced Mr Turner to the underground carpark and assaulted him. You denied taking part in any physical assault, and said that you stopped Mr Elias when he went to strike Mr Turner with the fire extinguisher. You did however concede that you did not try and stop the earlier physical attack. You denied any involvement in forcing Mr Turner to attend the Commonwealth Bank in Footscray, and said that you wanted to go to Footscray to hang out with your 'home boys' and did not know why Mr Elias or Mr Turner came along.
16
After your interview, you were charged, and then taken to the Melbourne Magistrates’ Court whereupon you were remanded to appear back at court in relation to these matters on 8 October 2020. You were granted bail in the Magistrates’ Court on 18 September 2020, but your bail was subsequently revoked by me on 29 April 2022. You therefore have 86 days available to you as
pre-sentence detention in this matter.
Victim Impact
17During the plea I received a victim impact statement from Mr Turner in which he described the difficulties he has faced since you and Mr Elias offended against him.[1] Amongst other things, he said that he does not trust people anymore and is always looking over his shoulder. He is struggling with sleep and with his mental health, and suffers from flashbacks and panic attacks. He also struggles to eat, work, and talk to people, including his family. Mr Turner concluded by saying that he just wants his life back, and for things to be normal again. I accept that the impact of your offending upon Mr Turner has been significant and I take that impact into account in sentencing you.
[1] Exhibit B.
Gravity of Offending
18Kidnapping is, by its very nature, a serious offence as reflected in the maximum penalty which Parliament has imposed, which is 25 years, and in its designation as a category 2 offence. You fall to be sentenced as a principal offender in the kidnapping having actively participated in physically moving Mr Turner from the street and into the carpark, remaining with him in the carpark and ensuring he did not leave when Mr Elias went to buy drinks and smokes, getting him to access his internet banking to show you the status of his bank account; and assisting to escort him from the carpark to the bank in Footscray. This was not a short incident; it was committed in order to seek a benefit, either money or drugs, for yourself and the co-accused. It occurred over a period of two and a half to three hours; caused considerable distress to the victim; and occurred in circumstances where you were on both probation and bail. All of these factors contribute to the gravity of your offending. Having said that, I accept your counsel’s submission that many of the features which would ordinarily be present in the more grave examples of kidnapping were not present in this case. In particular there was little, if any, pre-meditation or planning; no firearms; no family violence; no breach of a position of trust; no vigilantism; and no injuries inflicted on the victim.
19
Insofar as the assault is concerned, it is a serious example of an unlawful assault but you fall to be sentenced on the basis of your complicity in the offending. You did not physically strike the victim, however you were present while the victim was being assaulted, filmed aspects of that assault and did not intervene in the assault or render any assistance to Mr Turner, until the fire extinguisher was produced by Mr Elias. It would appear that your action in stopping Mr Elias from hitting
Mr Turner with the extinguisher did assist in de-escalating the violent nature of that assault and I have taken this into account in your favour. I further note, in your favour, the limited maximum penalty for this offence.
20In respect of the trafficking charge, I am of the view that it falls at the lower end of seriousness for such offences being a single date charge involving a small amount of cannabis, albeit again you were on both probation and bail at the time of the offending.
21Finally, given that I am of the view that each of the kidnapping and trafficking charges were aggravated by reason of you being on bail at the time, I have been careful not to doubly punish you in respect of the two offences of committing indictable offences on bail. I have ensured that the sentence which I will impose in respect of those charges does reflect the separate element of breaching a court order, but does not incorporate an elevation in gravity by reason of the nature of the offending committed whilst on bail.
Plea of Guilty and Remorse
22Despite the length of time between charge and sentence in this matter, your plea of guilty was entered at an early stage. You had a filing hearing on 17 July 2020 and a committal mention on 6 October 2020. The matter was then adjourned for a contested committal, but due to delays engendered by the pandemic, the matter was not listed for committal until 28 June 2021, and was then further adjourned to 10 September 2021, some 14 months after the filing hearing. The matter resolved to a plea on 10 September 2021 without any witnesses being called. It was then listed for a plea in the County Court on 9 December 2021, which was also adjourned, before it finally commenced before me on 7 April 2022.
23Your plea is significant for a number of reasons. Firstly, you have saved the witnesses, and in particular the victim in this matter, from the ordeal of having to give evidence and re-live the traumatic events of 1 May 2020.
24Secondly, your plea facilitates the course of justice and has utilitarian value. That utilitarian value is further enhanced by the timing of your plea which has been entered during the pandemic and in circumstances where Covid-19 has had an unprecedented impact on the efficient running of the criminal justice system.
25Thirdly, I accept that your plea of guilty demonstrates remorse and an acceptance of responsibility for your conduct, to the extent that you are able to understand and articulate such concepts. It is clear from both the neuropsychological report tendered on your behalf, and the community correction order assessment report, that whilst you struggle to articulate concepts such as the difference between right and wrong, and the terms regret and shame, and have an impairment in your capacity to infer what others may be thinking, you have acknowledged that your actions are wrongful, that you are the sole cause of your actions, that you would have caused the victim to be scared at the time, and that you do not want to commit similar offences in the future.
26In the circumstances I have given you a substantial discount on sentence for your plea of guilty.
Personal Circumstances and Risk of Deportation
27Turning now to your personal circumstances. You are currently 21 years of age, having been born in January 2001, and reside with your mother in Tarneit. You were born in New Zealand and are the only child to your mother and father who separated when you were young. You came to Australia with your mother in 2011 when you were 10 years of age and have lived with her since that time. You have limited contact with your father who has re-partnered and currently lives in Perth with his new family.
28You completed Year 10 at school and commenced Year 11, however you struggled with schoolwork and did not manage to complete Year 11. You have never been employed, you do not have a license, and you are financially dependent upon your mother. I note that your mother is supportive of you and attended court for the initial plea hearing in this matter.
29Whilst you have lived in Australia since you were 10 years of age, have attained permanent residency, and have no other family remaining in New Zealand, I am informed by your counsel that you are still a New Zealand citizen and subject to the deportation provisions under the Migration Act 1958 (Cth). You will face mandatory cancellation of your visa if a term of imprisonment greater than 12 months is imposed, and may still face cancellation of your visa and deportation if you are sentenced to a total of 12 months imprisonment across multiple offences and sentences.
30Mr Ranjit submitted that this is relevant in two ways in your case. Firstly, the prospect of being deported renders imprisonment more onerous. Secondly, should deportation occur, it would constitute an additional punishment because it destroys the opportunity for you to settle permanently in Australia in circumstances where your family resides in Australia, you are reliant on your family, and you have no ties or support by way of family or residence in New Zealand. Given the sentence which I intend to impose upon you in this case, you will not be facing an automatic cancellation of your visa by reason of this sentence alone. However, there is some prospect that the combination of this sentence including the seriousness of the kidnapping offence, together with previous terms of imprisonment imposed upon you and any term which might be imposed upon you for outstanding matters, does raise the potential for your visa to be cancelled and for you to be deported by reason of failing the character test. I accept that in the circumstances, the time you spend in custody will be somewhat more onerous due to the prospect that you may have your visa cancelled and I have taken this into account in sentencing you.
Drug and Mental Health Issues
31You began using cannabis when you were 14 years of age and have continually used cannabis since then. You were introduced to Xanax at 17 years of age and report that you have used it regularly since that time as a form of self-medication to keep yourself ‘calm’ and to avoid feeling anxious or paranoid. Given that history, it is unsurprising that you were using both cannabis and Xanax at the time of your offending.
32You were assessed by Dr Linda Borg, neuropsychologist, for the purposes of this plea, who provided a report dated 20 January 2022. You had, prior to this assessment, been linked in with the Orygen Youth Health Forensic Mental Health Community Team following concerns that you have difficulty socialising with people, and had been experiencing mood-related issues.
33Dr Borg administered a number of tests and identified that you have relatively preserved intellectual function but have impairments to higher-order attentional systems and working memory which negatively impact upon the function of your memory. Further, your behaviour profile indicates a pattern of psychomotor retardation, limited emotional responsivity, concrete responses, and impairments to theory of mind. Dr Borg was unable to express a definitive opinion as to the cause of your presentation and cognitive difficulties, however she was of the view that your mood and your ongoing cannabis use are the primary contributors to your presentation. Dr Borg was of the view that your presentation could be a result of persistent depressive disorder with symptoms of social anxiety, and/or the acute impact of ongoing cannabis abuse. However, she also said that she could not exclude the possibility that you are in a prodromal phase of an emerging psychotic illness. Dr Borg also noted that you have a limited understanding of illicit substances and their detrimental impacts and, at this stage, that you do not appear to be even at the pre-contemplative stage of change regarding your drug use.
34
Given these findings, Dr Borg recommended that you be referred for psychological counselling; psychiatric review to determine whether pharmacological intervention is required; and drug education which is initially focused on harm minimisation but ultimately moves on to formal drug detoxification and rehabilitation programs.
Dr Borg noted that in order to gain the full benefit of this treatment, you will need to cease using drugs and remain drug-free in the future.
Youth, Prior and Subsequent Criminal History, and Prospects of Rehabilitation
35As already noted, you were 19 years of age at the time of the offending and are still now only 21 years of age. You have only had one prior appearance at Court, which was on 6 February 2020 at the Sunshine Children’s Court. You were sentenced on that day in relation to a large consolidation of charges which included dishonesty and driving offences, criminal damage and drug possession. You were placed, without conviction, on probation for a period of 6 months, which means that you were on probation at the time of all of the offences currently before this court. Despite this you still come before the court as a youthful offender with a very limited prior criminal history.
36I am told that you have in the period since being arrested on these matters been sentenced for some subsequent offences. This offending predominantly consisted of possession of a drug of dependence, bail offences and dishonesty-related offences for which you received a term of imprisonment of 40 days and fines. You were also recently further remanded on new offences prior to me revoking your bail on this matter. In considering the sentence to be imposed on the offences before me, I cannot, and do not intend to, further punish you in respect of your subsequent offending. However, your subsequent convictions do have relevance to sentencing in this matter in two ways. Firstly, they have some bearing upon my assessment of your prospects of rehabilitation and the weight which I might give to rehabilitation as a sentencing purpose. Secondly, given that you have served some further periods in custody, I have taken those additional periods in custody into account when applying the principle of totality.
37It was submitted by your counsel that whilst your offending is serious and weight must be given to the sentencing purpose of general deterrence, significant weight should still be given in the sentencing synthesis to the principles governing the sentencing of youthful offenders. Mr Ranjit relied on the principles in Azzopardi v The Queen [2011] VSCA 372 and submitted that despite the gravity of your offending, in your case there are still prospects of rehabilitation and the mitigatory considerations regarding youth are not extinguished. Further, he submitted that in light of your cognitive deficits as identified in the neuropsychological report; your limited insight into your substance use and its effects; your limited prior history; and the fact that you have not previously had a therapeutic sentence imposed in the adult jurisdiction, more emphasis should be given to your rehabilitation, as not only will it assist you, but it will also assist the community in the future. Further, he submitted that a lengthy term of imprisonment in adult prison will be deleterious to what he submitted were your good prospects of rehabilitation.
38
Ms Thorp for the prosecution did not take issue with the proposition that the sentencing purpose of rehabilitation carries additional weight given your youth, however she was more circumspect about your prospects of rehabilitation.
Ms Thorp submitted that any optimism about your prospects of rehabilitation should be guarded given your history of drug use and the clear limitations on your current capacity to control your drug issues in the community.
39Taking into consideration the various documents before me and the submissions of counsel, ultimately, I am of the view that you have reasonable prospects of rehabilitation. I acknowledge that it may be challenging for you to address your drug issues given your limited supports in the community, and the difficulties in your cognitive functioning which will have an impact upon your ability to fully understand and engage in treatment. However, I am firmly of the view that, in your case, the sentencing purpose of community protection will be best achieved by you receiving assistance and treatment. Further, I am also firmly of the opinion that the sentencing purpose of rehabilitation must be given substantial weight in the sentencing synthesis, given my conclusions as to the gravity of the offending not being of the highest order, your youth, limited prior criminal history, and obvious need for assistance and treatment.
Impact of COVID-19 on the Burden of Imprisonment
40During the period you have been on remand, you have been impacted by the pandemic in a number of ways. You have experienced two periods of isolation, been subjected to lockdowns, had limited access to psychological treatment or programs in custody, and faced restrictions on your contact with your family. I take this added burden of imprisonment into account both in terms of the time which you have already spent in custody, and any further period of imprisonment which I impose.
Category 2 Offence – Applicable Sentencing Principles
41Turning now to the category 2 and the applicable sentencing principles. As relevant, s3 of the Sentencing Act 1991 provides that kidnapping is a category 2 offence if the person who commits the offence is 18 years of age or more at the time of the commission of the offence. Accordingly, as noted at the outset, you have committed a category 2 offence.
42This enlivens s 5(2H) of the Sentencing Act 1991 which provides that in sentencing an offender for a category 2 offence, I must make an order imposing a custodial term, other than a term of imprisonment in combination with a community correction order, unless one of the circumstances set out sub-s (a) to (e) of that section exists. Mr Ranjit has submitted on your behalf that sub-s (e) applies, that is that:
There are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44).
43As rightly identified by Mr Ranjit, there is no burden upon you to prove on the balance of probabilities that there are substantial and compelling circumstances that are exceptional and rare. Rather, it is an evaluative judgment for me, the sentencing judge, to make once the relevant underlying facts have been established.[2] Further, it is important for me to keep in mind that the mere fact that some individual circumstances may commonly be encountered by sentencing judges in the County Court will not, by that fact alone, necessarily deprive them of their character as substantial and compelling and exceptional and rare. Circumstances which individually are relatively common may in combination enliven the exception in s5(2H)(e).[3] Having said that, the test is still a stringent one and in some cases may operate harshly and result in the imposition of a sentence which would be counterproductive from the viewpoint of rehabilitation, particularly in the case of young offenders.[4]
[2] See, eg, Fariah v The Queen [2021] VSCA 213, [24]
[3] Ibid, [25].
[4] See, eg, Farmer v The Queen [2020] VSCA 140, [52].
44In determining whether there are substantial and compelling circumstances, I am required pursuant to s5(2HC) to:
· regard general deterrence and denunciation of your conduct as having greater importance than other sentencing purposes;
· give less weight to your personal circumstances than to other matters such as the nature and gravity of the offence;
· not have regard to your previous good character (other than an absence of previous convictions or findings of guilt); your early guilty plea; your prospects of rehabilitation; or parity with other sentences;
· have regard to Parliament’s intention that a custodial order (which includes a youth justice centre order but does not include a combination sentence) should ordinarily be made; and
· have regard to whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
45It was submitted by your counsel, that a combination of
(a) your personal circumstances;
(b) complex mental health issues and difficulties in cognitive function;
(c) immigration status;
(d) age at the time of your offending;
(e) your status as a youthful offender and the principles associated with sentencing youthful offenders;
(f) the onerous prison conditions which you are subject to due to the pandemic and which increase the burden of any term of imprisonment upon you; and
(g) the delay in this matter which has caused you to lose the opportunity of being assessed for and partaking in a period of youth justice centre detention with its focus on rehabilitation;
in combination amount to substantial and compelling reasons which are exceptional and rare.
46Ms Thorp on behalf of the Director of Public Prosecutions, submitted that the prosecution does not agree that s5(2H)(e) has been met in your case, even when all of the circumstances put forward on your behalf are considered in combination.
47Before turning to my conclusions in respect of whether you do have substantial and compelling reasons which are exceptional and rare, and that justify not imposing a straight custodial order, I will briefly address the submission that one of the factors I should take into account is that you have missed out on the opportunity to be sentenced to a term of detention, rather than imprisonment, by reason of the delay caused by the pandemic in this case. You did not turn 21 years of age until 18 January 2022, and we are now just shy of two years from the point at which you were charged on these matters. I have previously outlined the progress of this matter, and the delays caused by the pandemic.
48I note that Ms Thorp, in her supplementary submissions, agreed that I could have regard to this consequence of delay in determining sentence but noted that reduced weight should be given to this fact where a youth justice centre disposition would not have been open on the facts due to the gravity of the offending. To the extent that that submission might suggest that a term of youth justice centre detention would not have been open in this case, I disagree with that proposition. Once I have determined that a term of confinement is justified in respect of a young offender, the consideration as to whether a youth justice centre order is imposed revolves around the suitability of the young person to be in detention and my assessment as to whether the prospects of rehabilitation of the young offender are reasonable; or whether the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. Given that the maximum term of detention which can be imposed in this court is four years, and given my findings in respect of your prospects of rehabilitation, I am firmly of the view that the delay in this case has deprived you of an opportunity to be sentenced to a form of custodial sentence which would have been more suitable given your particular vulnerabilities and circumstances.
49I am of the view that this factor, in combination with my conclusions that your offending on the kidnapping charge falls towards the lower end of gravity of such charges, your age at the time of offending, your continued status as a youthful offender, your cognitive difficulties, your lack of previous convictions and limited prior criminal history, your immigration status, and the increased burden of imprisonment caused by the previous and current restrictions in custody, amount to substantial and compelling circumstances that are exceptional and rare and justify not making an order of imprisonment which cannot be combined with a community correction order.
Parity
50I note as a matter of completeness, that whilst your counsel made submissions as to parity, given that I am yet to sentence Mr Elias, I will deal with any issues which arise as to a need for parity, or any bases for disparity when sentencing Mr Elias.
Sentencing Submissions and Comparable Sentences
51Turning now to the sentencing submissions made by counsel.
52Ms Thorp, on behalf of the prosecution, submitted that given the serious nature of your offending, that the relevant sentencing purposes in this case can only be met by the imposition of a term of imprisonment constituted by a head sentence and a non-parole period.
53By contrast, Mr Ranjit on your behalf, submitted that a combination of the time which you have already spent on remand, and an appropriately structured community correction order would be the most suitable disposition. In making that submission Mr Ranjit conceded that the sentencing purposes of general deterrence, specific deterrence, community protection and just punishment are all relevant in this case. However, he submitted that given your age, your role in the offending, and the need for therapeutic interventions to enhance your prospects of rehabilitation, that the sentencing purposes of rehabilitation and community protection should be paramount in sentencing you.
54Given the submissions made by each party, I inquired whether there were any comparable cases which the parties would like to bring to my attention. I was referred to a number of cases by each party where relatively youthful offenders had been sentenced for kidnappings at the lower end of the spectrum.[5] The sentences imposed for the kidnapping offence in those cases ranged from community correction orders on their own, through to terms of imprisonment of up to 2 years and 2 months. These cases reflect that even within this more limited sphere, no case is ever completely comparable in terms of the factual scenario or the circumstances of the accused. However, I have taken each of the cases referred to into account as they do provide some guidance as to the application of the relevant sentencing principles in this area, and can also be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available. Ultimately, I have sentenced you in this case on the basis of applying the principles to the specific facts of you and your case.
[5] Ms Thorp referred me to DPP v Odisho [2021] VCC 325 and DPP v Pontikis, Bekiri and Shabanov [2014] VCC 2166; whilst Mr Ranjit referred me to DPP v Chen [2018] VCC 1271, DPP v Jackson [2017] VCC 182, and DPP v Warby [2018] VCC 1173.
Other Sentencing Principles
55In sentencing you today, I have taken into account the principles of totality and parsimony. In the particular circumstances of this case, the principle of parsimony requires me to consider whether there is any feature of you or your offending which requires the conclusion that imprisonment, whether on its own or in combination with a community correction order, is the only option, given that a community correction order can be imposed for a period of years, with both punitive and rehabilitative conditions attached.
56I had you assessed for a community correction order and you were assessed as suitable, although Ms Monica Dankoff (the author of the assessment report) and Mr Barrie Jansen (the author of the accompanying mental health screening report) both expressed some concerns about your capacity to engage with such an order given your limited supports in the community, and your impairments in cognitive function. Ms Dankoff did however note that you engaged in a polite manner and that you are someone who is likely to benefit from engagement in therapeutic intervention. Ms Dankoff recommended that if I do impose a community correction order upon you, I attach a number of conditions being supervision, judicial monitoring, a non-association condition with your co-accused, that you undergo treatment and rehabilitation programs to address drug and mental health issues, and undertake programs to reduce re-offending. Ms Dankoff identified that in order for appropriate programs to be facilitated, an order of at least 18 months in length would need to be imposed.
57I have considered the submissions of each party, the report from Corrections and all of the relevant sentencing principles and factors in this case. Despite the significant mitigatory matters, the sentence which I impose today must still be of a nature which addresses the gravity of your offending, denounces your conduct, deters you and others from committing similar offending and administers just punishment, whilst still giving substantial weight to rehabilitation. Ultimately, I have concluded that a community correction order on its own will not adequately address all of the sentencing purposes in respect of the kidnapping charge, nor will a combination sentence where the term of imprisonment imposed is only equal to the time you have already served in custody.
58However, I am of the view that the mitigatory features in this case are such that a combination of a relatively short term of imprisonment with a community correction order on Charge 1, and a community correction order on all other charges can sufficiently achieve all of the punitive, deterrent and denunciatory purposes of sentencing, whilst also giving appropriate weight to rehabilitation.
Sentence
59Mr Tegegne, on Charge 1, kidnapping, you are convicted and sentenced to a term of imprisonment of five months.
60On Charge 1, and also on Charge 2, and related summary Charges 9, 12 and 13, you are additionally sentenced, with conviction, to a community correction order which will commence upon your release from custody and will be for a period of 18 months.
61So what that means is you have got to do five months imprisonment. You have already done almost three. Once you have done those five months in total you will get released and then you start on a community correction order that goes for 18 months. Do you understand how that works?
62OFFENDER TEGEGNE: Yes, Your Honour.
63HER HONOUR: So when you do that community correction order, in addition to the mandatory conditions of that order, you will be subject to the following conditions:
· you must report to Werribee Community Corrections Centre within two clear working days of being released from custody. So if you are released on a Monday you need to have reported by 4 pm on the Wednesday. If you are released on a Tuesday you have to have reported by Thursday and so on. Do you understand how that works?
OFFENDER TEGEGNE: Yes.
· you have to be under the supervision of Community Corrections for a period of 18 months. So you will have a case manager for the entire 18 month period that you are on the order.
· you must undergo mental health assessment and treatment as directed. So that means if you're asked to go and see a psychologist or a psychiatrist, or say that you need to take tablets, for example, you need to follow that and do those things. Do you understand that?
OFFENDER TEGEGNE: Yes.
· you must undergo assessment and treatment (including drug testing) for drug abuse or dependency as directed;
· you must participate in programs and/or courses that address factors relating to the offending as directed;
· you must not associate with your co-accused, Yousif Elias, in any way throughout the period of the order; and
· you will be subject to judicial monitoring. That means that you come back before me so I can see how you are going on that order.
· you must re-appear at court for a review of your compliance with the order as directed by the court and so your first review will be before me at 9.30am on Thursday, 22 September 2022. So you do your five months. As I say, it is about another two months you start your order. You have got to do what you are asked to do under the order and then you come back before me son 22 September and I will be given a report telling me how you are going, all right, and we will talk about that. If you are doing well, that is fantastic. If you are not doing so wells, then we will really have to have a very in depth talk about what is happening. All right, do you understand all of that?
OFFENDER TEGEGNE: Yes, Your Honour.
64HER HONOUR: I have to tell you that if you do not comply with the requirements of, the order, so if you do not do what you are asked to do, you do not do your drug testing, you do not do your treatment, you do not turn up to supervision, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order by Corrections and the matter gets brought back before me. One of the potential outcomes if you breach the order is that you may fall to be re-sentenced and may mean that you face a further term of imprisonment. All right, so do you understand what happens if you breach the order?
65OFFENDER TEGEGNE: Yes.
66HER HONOUR: So given all of those things that I have told you, give that you know what the conditions are that I am asking you to comply with and given that you know what can happen if you do not do the order, do you consent, do you agree to undertaking order?
67OFFENDER TEGEGNE: Yes, Your Honour.
68HER HONOUR: All right.
Pre-Sentence Detention
69The period of 86 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
s6AAA Declaration
70
Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them, you would have been sentenced to 10 months’ imprisonment in combination with a community correction order for a period of
18 months. I note that the s6AAA declaration is only in relation to the kidnapping, not the entirety of the offending, given the kidnapping was the only one in which I actually imposed the term of imprisonment. Does that make sense?
71MS THORP: It does, yes.
72HER HONOUR:
Ancillary Orders
73Pursuant to s78(1) of the Confiscation Act 1997 (Vic), I make a disposal order in respect of the following items:
(a) Seven Ziplock bags containing cannabis L;
(b) a set of electronic scales; and
(c) assorted empty Ziplock bags.
74The forfeiture order was agreed, wasn't it, Mr Ranjit, the phone and the cash? Yes.
75MR RANJIT: Yes, Your Honour, it was, yes.
76HER HONOUR: Pursuant to section 33(1) of the Confiscation Act 1997 (Vic), I make a forfeiture order in respect of the following items:
(a) a black Alcatel mobile phone; and
(b) $190 in cash.
- - -
0
8
0