Director of Public Prosecutions v Yakou

[2016] VCC 72

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00146

DIRECTOR OF PUBLIC PROSECUTIONS

v

EWAN YAKOU

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2016
DATE OF SENTENCE:	10 February 2016
CASE MAY BE CITED AS:	DPP v Yakou
MEDIUM NEUTRAL CITATION:	[2016] VCC 72

REASONS FOR SENTENCE
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Subject: Criminal law- sentencing- aggravated burglary- common assault and theft- sentence: time served to follow a CCO- excellent progress on strict bail conditions and demonstrated rehabilitation through drug counselling.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms. J. Fallar	John Cain Solicitor Office of Public Prosecutions
For the Accused	Mr. D. Cronin	Emma Turnbull Criminal Law

HER HONOUR:

1Ewan Yakou, you have pleaded guilty before me on Indictment to one charge of aggravated burglary, one charge of common assault and one charge of theft.

2Each of those offences are serious and that is reflected in the maximum penalty that is proscribed by Parliament, and they are, 25 years imprisonment for aggravated burglary, five years imprisonment for common assault and 10 years imprisonment for theft. 

3The offending occurred on 10 September 2014, and I shall now proceed to sentence you on the basis of the Crown opening that was read to the court by the prosecutor, and it is exhibited as part of the plea hearing.

4The victim in this matter is Tang Nguyen.  He was not known to you prior to this offending.  On that occasion, you attended his rental unit.  You barged in to his unit with an unknown Asian-looking female.  You were very aggressive and threatened Mr Tang.  You hit his head and face several times causing bruising to his face. He said he heard you swearing and asking for money a lot, and you told him he was not allowed to call the police.  Notwithstanding that, he was able to take out his phone and ring a friend and tell him what was going on, so eventually the police were notified of the incident.

5Whilst you were in the house, you picked up his wallet and took about $200 and also picked up his car keys.  Whilst you were in the home, his younger brother returned home from work and he questioned you why you were there.  He eventually got you out of the unit and you walked away. 

6Police attended, but unfortunately they went to the wrong unit, so that you were not arrested at the scene, but the informant was able to start investigations and your fingerprints were located at the scene and subsequently, on 3 October 2014, you were arrested. 

7You made a no-comment record of interview and you were remanded in custody from that day.  You spent approximately 181 days in custody, until you were bailed on 1 April 2015 on strict conditions.

8The matter then proceeded and was listed for trial on 12 October 2015.  The parties negotiated resolution of this matter, and an armed robbery charge was not proceeded with.  On the second day the matter was listed for trial, you entered a plea of guilty to the current charges.

9You admitted before me a prior criminal history and there are some five court appearances.  I note there is one prior conviction for burglary.  You have had a variety of dispositions from the court from an adjourned undertaking to Community Correction Order and imprisonment in the past. 

10I note that this is the first occasion that steps have been taken to address your underlying offending behaviour, and I will talk a little bit about rehabilitation shortly, and your efforts that you have undertaken since your release on strict bail conditions.

11I have regard to the Victim Impact Statement. It is obvious that as a consequence of your actions, that the victim in this matter, Mr Nguyen, was extremely scared.  He was frightened by your aggressive behaviour and is still haunted by what happened, and he is often worried if anything will happen to him and he suffers anxiety and palpitations.  He is very hyper-vigilant now and is wary of strangers. Physically, he suffered bruising and pain as a consequence of your assaulting him, but he says that that aspect is now resolved.

12So your offending has had a significant effect on Mr Nguyen whom I note is a person who comes from Vietnam.  He came here as a refugee and had very little understanding of English at the time of the offending, so that would have compounded his difficulties in understanding why it was that you had barged into his home without there being any obvious reason for your presence there.

13It is important for the court to denounce your behaviour.  You invaded his private residence.  You instilled fear in him by your aggressive behaviour and the assault, and there is a need for the court to emphasis both general and specific deterrence. 

14At the time of the offending, you were on bail for a number of possess drug of dependence charges which have been subsequently dealt with at the Broadmeadows Magistrates' Court on 13 February 2015 and I have been informed that you were convicted and fined $2000 for those offences. 

15As a consequence, I must have regard to s.16(3)(C) of the Sentencing Act 1991. This is a case, in my view, where a court need not cumulate the sentence in respect to these present matters, having regard to the factors that I will outline.

16I have had regard to the matters that were put on your behalf by your counsel, Mr Cronin, and in particular, these matters are of significance.  I have had regard to your plea of guilty to the amended indictment.  I note that it was a late plea entered on the first day of trial, but nonetheless there is still utility in your plea.  You have spared the victim the further trauma of having to come to court and give evidence on your trial.  You have saved the court the cost and inconvenience of a trial, and you have facilitated justice. Your sentence will be discounted for your plea of guilty.  I also accept that the plea of guilty does reflect remorse on your behalf. I have had regard to the evidence given before me this morning, by Ms Brown, your drug and alcohol counsellor.  In her view you now understand what you did was wrong, and you understand the impact on the victim of your actions. 

17I accept that there is a context for this offending.  At that time, you were in the grip of an addiction to the drug ice, and you were acting in a manner that was very anti-social. 

18You have, however, made significant efforts at rehabilitation since your release on bail, and I am satisfied, having heard the evidence of Ms Brown, that during the time that you have been under her care at the Millswyn Clinic, since 11 March 2015, you have made real in-roads in dealing with your severe substance abuse problem.  She confirmed your attendance for weekly counselling and relapse prevention appointments.  She confirmed that there were some 94 urine drug screen results that were negative, apart from one for which she had an adequate explanation.  She also noted that you have substantially reclaimed your life.  You now have regularised your relationship with your family, you are a full-time Carer for your elderly father, and you have also secured some employment in a mechanic's business owned and run by your cousin, your father's cousin, Samir Astipo, and in her view, you have substantially reclaimed your life and dealt with your addiction. 

19It is her view, and I accept having regard to her level of clinical experience, that it is most unlikely that you will return to drug use and reoffending, that you have moved away from your anti-social behaviour and that you have completely cut your ties with your drug taking peers. 

20Further, she said there was no objective evidence of any drug use and having regard to the nature of her contact with you over the time since you have been released on bail, I consider that to be significant.

21She considers that you can be a role model in your Syrian community and that you can carry the message that recovery is possible to other members of your community, and that you are now able to lead by example.

22You do have strong family support and I noted that there were numerous members of your immediate family and extended family in court during the plea hearing, including your parents and brothers.  Your parents live in Campbellfield and you are currently living with them and another brother, Evan.

23You were born in Iraq on 5 April 1990 and you are aged 25.  You lived in Iraq until age six, and then the family had to relocate to Jordan as a consequence of the war, and you lived there until you were 13.  You emigrated to Australia at age 13, and since coming to Australia, your parents have lived in Campbellfield.

24I understand by way of formal education you completed Year 11 but you did not complete Year 12.  You were expelled after a short period of time.  You do have some work history as a security worker and also working as a labourer and a picker and packer at TNT. 

25It is evident to me following your introduction to the use of the drug ice, that that coincided with an escalation in your criminal offending and that is reflected in your prior criminal history. 

26This is the first time that you have addressed your addiction to the drug, ice and I am satisfied having heard from Ms Brown, that you have overcome that addiction and reclaimed your life, in her view, you are now mentally and physically free of the effects of the drug, but if required, further drug and alcohol treatment is appropriate and is a positive thing, because there is a need to ensure that you continue in your recovery.  She was confident that you will follow directions and benefit from further treatment.

27She also underscored the three factors that are likely to lead to recovery, being employment, safe housing and strong relationships, and you have all three factors here. 

28Of note are the references from Samir Astipo, your employer.  He says you are reliable.  He is aware of these proceedings and he is prepared to continue to offer employment to you.  He notes your interest in mechanics and your interest in pursuing a career in this field.  He says you seem to have turned your life around.  You are looking much healthier, and your interactions between he and his staff are good, and you are making a real effort to better yourself. 

29I have also had regard to the comments of Reverend Toma from your church and he has been providing counselling to you.  He says you are extremely distressed, and immensely regret the wrongdoing of your past, and he notes your commitment to future plans and your determination to live a new, fresh and law-abiding life, so I have taken that into account. The report from Sargon Younan, the President of the Moreland-United Soccer Club also underscores your commitment to the future. 

30He considers that you are making a real contribution to the club through your involvement in playing, but also in your role as Senior Committee in the club and he considers that you have expressed regret to him and you now express full responsibility for your actions, and you make no excuses for your behaviour, and you have committed to a positive life change. 

31So, all in all, that is an excellent reflection of the steps you have taken in the time between your release from prison whilst you have been on bail. As the courts have said, and in particular the President of the Court of Appeal Maxwell, in R v Tiburcy[1], "Sentencing courts must look to the future as well as to the past and there is very great benefit to the community at large as well as to individuals themselves and their immediate families, if future criminal activity can be avoided.  It is important that courts, through their sentencing decisions, recognise and reward efforts at rehabilitation." 

[1] [2006] VSCA 244; 166 A CrimR 291 at [15]-[16].

32It is important also, not only for the individual, but also for the protection of the community.  There is very considerable public interest in the rehabilitation of offenders. 

33In formulating the appropriate sentence, I have had regard to the guideline judgment of Boulton[2] and in particular, I have had regard to the comments made by the Court of Appeal at para.131 in that judgment, where the court says that a Community Corrections Order may be suitable, even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, and they specifically refer to aggravated burglary. Overall, I have had regard to the objective gravity of your offending, your personal circumstances, your real steps at rehabilitation and I am satisfied that all the necessary sentencing principles and the need to impose just punishment, can be achieved through the imposition of a sentence that reflects the time you have already served to date, together with a Community Correction Order and that will afford you the best prospects of rehabilitation.

[2] [2014] VSCA 342 at [131].

34I note that you are currently living with your parents at the family home and that you are a full time Carer for your father, and you are working part time with your father's cousin.

35The formal court orders in respect to the three charges on the indictment, Charge 1, aggravated burglary, Charge 2, Common Assault, and Charge 3, theft, will be that you are convicted and sentenced to six months imprisonment to be followed by a two year Community Correction Order.  Apart from the core conditions, there is also a supervision order, that is, that you be under supervision of a Community Correction officer for two years, you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager and undergo other offence related programs are directed.  So that is the sentence. 

36S6AAA declaration, but for your plea of guilty, I would have convicted and sentenced you to 12 months imprisonment to follow a three year Community Correction Order on the same terms and conditions. 

37I make the compensation order sought, and I make the order sought pursuant to s.464ZF(2) of the Crimes Act.

38What that means, Mr Yakou, is that you will have to attend the Broadmeadows Police Station within the next 28 days and provide them with a forensic sample.  What they do is they provide you with a cotton bud to scrape your mouth.  I have to inform you that in the event that you do not consent to the taking of the mouth scraping under supervision of an authorised member of the police force, then the sample can be taken by way of a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted, and I have made that order.  I consider it is justified on the basis of the seriousness of the circumstances of your offending, your prior convictions, the fact that the order is made by consent, and I consider the granting of the order is in the public interest.

39That covers everything I believe?

40MS FALLAR:  There's a few, I understand with the - - -

41HER HONOUR:  Sorry?  What?

42MS FALLAR:  A few matters Your Honour.  I've not heard the declaration yet of the 181 days?

43HER HONOUR:  Yes, I will make the declaration of pre-sentence detention of 181 days, and I confirm that it is my intention that no further time be served in respect to the matter.

44MS FALLAR:  And now I don't know whether it is necessary to declare the Community Correction Order commences today, just so it's patently clear.

45HER HONOUR:  It commences from today's date. 

46MS FALLAR:  Finally, a fairly minor correction Your Honour indicated offending in 2015.  It should be 2014.

47HER HONOUR:  I meant 2014.  It is just a slip.  The declaration of 181 days PSD will be made and I've signed the order which makes it clear it lasts from - will last for two years and commences from 10 February 2016 and ends on 9 February 2018. 

48MR CRONIN:  As Your Honour please.

49HER HONOUR:  So I'll ask my associate to accompany you Mr Cronin.

50MR CRONIN:  Thank you, Your Honour.

51HER HONOUR:  To have that signed and can I give you these orders.  So I've signed the compensation order for $200 and also the forensic sample order.

52MS FALLAN:  Thank you, Your Honour.

53HER HONOUR:  All right, so my associate will provide copies once I leave the Bench.  It is important that you explain to your client, Mr Cronin, that he will have to pay the $200.

54MR CRONIN:  Yes.

55HER HONOUR:  Compensation and also attend to the taking of the forensic sample within the next four weeks and also attend Broadmeadows Community Corrections Service within the next two working days. 

56MR CRONIN:  Yes, apparently he's got a card.

57HER HONOUR: He has got an appointment , has he? 

58MR CRONIN:  He hasn't made an appointment yet, but he's got a card to call them and he offered to give me some money before to pay the compensation.  I said that's not a good idea. 

59HER HONOUR:  If he's got the money today, he can give it to Ms Fallan.  She can give it to her instructor.

60MR CRONIN:  Might be safer than me.

61HER HONOUR:  And then it's over and done with.

62MR CRONIN:  Yes, I'll see if we can arrange that. 

63HER HONOUR:  Yes.

64MR CRONIN:  Thank Your Honour.

65HER HONOUR:  All right.  Mr Yakou, hopefully things will continue on in the same vein that they have been over the last little while.  You have demonstrated that you can live a law-abiding life and be a more productive member of our community, and hopefully that will continue and I will not ever see you for a breach.  All right, thank you.

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