Director of Public Prosecutions v Yanni

[2014] VCC 1798

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01578

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANIS YANNI

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2014
DATE OF SENTENCE:	31 October 2014
CASE MAY BE CITED AS:	DPP v Yanni
MEDIUM NEUTRAL CITATION:	[2014] VCC 1798

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes
For the Accused	Ms N. Kaddeche

HIS HONOUR:

1Anis Joseph Yanni, you have pleaded guilty to an indictment charging you with one offence of armed robbery, which took place on 8 July 2011.   You have admitted a number of prior convictions and court appearances, the last previous court appearance being at the Broadmeadows Magistrates' Court in February of 2010.  A number of your prior convictions involve offences of dishonesty but there are no prior convictions for armed robbery, or it seems for any offence approaching the seriousness of the offence for which I have to pass sentence.

2The prosecution has tendered as Exhibit A on your plea hearing a summary of prosecution opening which was read earlier this afternoon.   I do not propose to repeat it suffice to say that the criminal enterprise to which you attached yourself was thoroughly disgraceful.  You played an important role in identifying the money that was to be the target of the armed robbery.   You were present during the course of the armed robbery and participated in it.

3I accept, as I indicated earlier, that you were not aware of the intended use of a weapon, or weapons, during the course of the armed robbery, until your co-offender, whose role was to enter the premises and effectively conduct the robbery, turned up with a hammer and a knife.  However, you having become aware of the existence of those weapons and the use of them in the offending conduct continued to participate in the offence, and you have pleaded guilty to the offence of armed robbery.

4The maximum term of imprisonment for armed robbery is 25 years.   It is to be regarded as a very serious offence, and where the victims are persons with intellectual disability who were clearly taken advantage of in the most disgraceful way the offending conduct is particularly serious.   Although the victim impact statements are brief, and I might say, restrained, I think that it is reasonable to infer that your conduct will have had a significant effect upon your victims and caused them a good deal of fear and ongoing distress, quite apart from the fact that they lost their savings.

5Turning to matters personal to you.  You are now 33 years of age and your counsel has helpfully provided me with a brief outline of submissions.  She puts that you are the black sheep of the family and that you have led an unusual life, the details of which I will not go into, but which has been a life of estrangement from your family.   You have not had the benefit of family supports during your late teens and your early adult years.

6The neuropsychological report of Mr Jackson sets out other details of your background and history and contains an assessment of your intellectual capacity, which is towards the lower end of the normal scale.  You clearly have had learning difficulties and you do not have a high degree of functioning in any area of intellectual capacity.  That is not to say that that reduces your moral culpability.  You were well and truly able to understand what you were about in this armed robbery and none of that provides an excuse for your conduct.

7You have been involved in offending conduct since this offence was committed and you have served two terms of imprisonment.  You have also been in custody in relation to these matters for 564 days.

8It is to your credit you have pleaded guilty and I give you credit for that.  You deserve a reduction in sentence because it has saved the state the cost of a trial and the witnesses the trauma of having to give evidence in a trial, and it has also facilitated the course of justice.  It is consistent with you being remorseful for your conduct.

9I would nevertheless have imposed a substantial term of imprisonment had it not been for another factor.   That is that I imposed a particularly lenient sentence upon one of your co-offenders, Ms Yuksel, and gave her credit for providing assistance to the police and promising future co-operation with the prosecution in this matter.  It may be that her statement had the effect of ultimately producing a plea of guilty in your case, but nevertheless I am not satisfied that the statement that she made was truthful.  Indeed it seems to me to be wholly at odds with the evidence as a whole which identifies the person who came in armed with the hammer and knife as someone other than Ms Constantinidis.

10That has, of course, left me in a situation where I have to consider the question of parity, that is passing a sentence on you that is consistent with, so far as possible, the sentence already imposed on one of your co-offenders so as to avoid a feeling of injustice on your part by being given a more severe sentence than a co-offender for the same crime.  That is the only thing that has saved you from a longer term of imprisonment.  I cannot think of anything else that would have reduced the sentence that I would have imposed below 564 days.   It is one of the disadvantages in imposing sentence on a person in advance of the plea on behalf of co-offenders, and ordinarily it is to be avoided.   But where there is a promise of evidence being called against co-offenders special considerations apply.

11In those circumstances I am persuaded that I should impose a sentence which would enable your immediate release.  The prosecution has conceded that in all the circumstances, and having regard to the principle of parity, that the time you have served is a sufficient punishment for your offending conduct.  In those circumstances, and doing the best I can to meet the competing sentencing considerations, including promoting your rehabilitation to the extent possible, I am persuaded to pass sentence which will enable your immediate release.

12Your prospects in the future may well depend upon the extent to which you receive support from family members and your partner in Perth.  I am aware of course of your child in Perth.  You have responsibilities now and it will be up to you to show that you are capable of living up to them.  If you commit another offence punishable by imprisonment then I think you can expect little mercy from the court.  I am now ready to pass sentence upon you.

13For the offence of armed robbery I convict you and sentence you to imprisonment for a period of 564 days, and I declare pre-sentence detention of 564 days as time to be reckoned as served on the sentence that I have imposed and to be deducted from that sentence of 564 days, which of course means that you are eligible for immediate release.  I would imagine you will have to go downstairs and be processed but that is the outcome that I am expecting.

14I would have imposed a sentence of four years with a non-parole period of three years if you had pleaded not guilty.  Any other orders that I need to make?  There's the s.464ZF.

15MS KADDECHE:  No, Your Honour.

16MS PARKES:  There's the forensic sample order.  Given that we just ‑ ‑ ‑ 

17HIS HONOUR:  Do you have drafts?

18MS PARKES:  We clarify that if a sample's required with the informant today my instructor doesn't have the orders but she will email those to Your Honour's associate.

19HIS HONOUR:  Yes, all right.  I should say a little bit about that then.  Mr Yanni I am going to make an order that you provide a forensic sample which will be by taking a scraping from the inside of your mouth.  You will have to report to a police station within a period of time specified in the order for the purpose of providing that sample.

20If you, when requested to do so, fail or refuse to provide the scraping from the inside of the mouth, the officer concerned will be authorised to take a blood sample and may use reasonable force to obtain that blood sample.  I am sure you will not put them to that trouble.  All right, that order is not available today but it will be made and you will receive a copy of it.

21MS KADDECHE:  Could I just approach Mr Yanni briefly in terms of the reporting station?

22HIS HONOUR:  Yes.  Find a reporting station and an address perhaps because ‑ ‑ ‑ 

23MS KADDECHE:  Yes.

24HIS HONOUR:  ‑ ‑ ‑ you may need to - yes.

25MS KADDECHE:  So if I could just approach for that, Your Honour?

26HIS HONOUR:  Yes.  It is 564 isn't it?  PSD, 564 days?

27MS PARKES:  Five six four, that's right.  Yes, Your Honour.

28MS KADDECHE:  If I can just have a brief moment, Your Honour?

29HIS HONOUR:  Sure.

30MS KADDECHE:  Just for issues of confidentiality, Your Honour, we just would - we would like the ‑ ‑ ‑ 

31HIS HONOUR:  I don't think I need to pronounce anything, it will - whatever the police station is will be incorporated in the order and if that's agreed between you and the prosecution then I don't think I need to say anything about it.  I'll sign the order on the basis that it has been agreed and when it's provided to me.  It may be necessary though to have some way of providing that to your client, he needs to have a copy of it.

32MS KADDECHE:  Yes.  The actual order - - -

33HIS HONOUR:  Yes.

34MS KADDECHE:  - - - when the order's received?  I've got the address I just don't want to announce it.

35HIS HONOUR:  No, I realise that.  Well perhaps it can be done through your instructing solicitor can it?

36MS KADDECHE:  Yes.

37HIS HONOUR:  Yes.

38MS KADDECHE:  Yes, I'll endeavour to do it.

39HIS HONOUR:  All right.  Well I'll get Mr Travers to ensure that it's one way or another got to you or your instructing solicitor.

40MS KADDECHE:  As Your Honour pleases.  And could I add we're indebted to Your Honour that Your Honour's sentenced immediately.

41 HIS HONOUR:  Well I didn't want him to be kept in custody any longer given that it was pretty clear what was going to be the outcome. 

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