Director of Public Prosecutions v Zaatiti

[2019] VCC 563

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00403

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMAR ZAATITI

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	14th March & 24th April
DATE OF SENTENCE:	24 April 2019
CASE MAY BE CITED AS:	DPP v Zaatiti
MEDIUM NEUTRAL CITATION:	[2019] VCC 563

REASONS FOR SENTENCE
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Subject:         Criminal Law – Contravention of CCO

Catchwords:  Contravention of CCO – Re-sentence on original charges of armed robbery and recklessly causing injury.

Legislation Cited:
Cases Cited:
Sentence:      TES – 1 month imprisonment and 6 months community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Fluxman	OPP
For the Accused	Dr M. Fitzgerald	Doogue O’Brien George

HER HONOUR:

1Omar Zaatiti, you have been charged with contravening the conditions of your community correction order, and I find you guilty of that offence.  As a result, I need to decide what happens next.  I can vary the order that you are on, I can confirm the order as it was made, which at the current stage goes through till December this year, cancel the order and then deal with you in any way that I could have sentenced you back in December 2017, or cancel the order and make no further order.

2As you are aware, the prosecution submits that I should cancel the order and resentence you, and that that should involve a term of imprisonment which is the only other option as Youth Justice assessed you as unsuitable.  If I was not of the view that imprisonment was the only option, then the prosecution submit that I should still cancel the order and resentence you to another community correction order with the recommendations provided by Corrections Victoria and additional work hours.

3On your behalf, your counsel submits that you should be continuing on the current community correction order and that if I did not agree with that, and that imprisonment was the only option, that there are a number of things that I need to take into account. 

4I have decided that I will cancel the current order and re-sentence you for the original offences, the two charges of armed robbery and one charge of recklessly causing injury.  In order to decide how I am going to deal with you,
I need to go back to the beginning as well as looking at the way in which you contravened your order.

5You may remember that I saw the CCTV footage of your offending, as well as hearing the prosecution read out what happened.  I will not go into the detail of all of that again, but it was a violent series of actions involving a group of you terrorising two 7-Eleven workers who were simply going about their business making a living.

6I was told that you were under the influence of both cannabis and cocaine at the time of the offending, but ultimately, I decided as at December 2017 that
I was of the view that you were only under the influence of cannabis. 

7I found that your offending was made even more serious by the fact that it was committed in a group, that each entry into the 7-Eleven store was violent and destructive; the plan was to steal cigarettes which could be sold for profit; that 7-Eleven stores were chosen in the middle of the night because they were seen as easy targets; you knew the plan in advance and thought it would be an easy way to make money to spend on drugs and live a homeless lifestyle; you were actively involved in stealing money and opening the safe in the first armed robbery, and stealing cigarettes in both incidents; there was a weapon used, a hammer, actually used by one of your co-offenders; and the value of what was stolen in the robberies was high.  The value of the cigarettes was about $35,000 to $40,000, and the cash that was stolen in the first armed robbery was $350.

8As against that very serious offending, I took into account, and still do, that you pleaded guilty, that you gave that indication at an early stage.  As at December 2017, I was not convinced that you were completely remorseful. 
I said:

"You have a very immature attitude, and I do not think that you have really understood yet exactly how serious all this is and how much you and your co-offenders terrified the attendants."

9I still think you have a very immature attitude this many months down the track. 

10I did, at the time, and still do, take into account ultimately that you provided assistance to the police and were prepared to promise to the court to give evidence if you were required to do so.  But that was not necessary, because your co-offenders pleaded guilty.

11I did decide that you would receive a lesser sentence because of your assistance, and also the danger that your assistance exposed you to in whatever form that took.  That assistance was given after you had told the police a number of lies, including in two written statements, until eventually you showed your willingness to assist the course of justice.

12So I take into account all of those things, and the two final matters that I take into account are first, of course that you had just turned 18 at the time of the offending.  And even though you are now 20, it is still the primary position that for a person with no criminal record, which you did not have at that time, at the age of just over 18, rehabilitation is the primary purpose of sentencing.

13Second, your co-offenders were dealt with in the Children's Court, and that is a different sentencing regime.  It is very difficult to compare any sentence that you may receive to theirs, but I do take into account that two of the others had criminal records and one of them received a nine-month Youth Justice Centre order - the most serious of the offenders who, in fact, was the youngest at 15.

14I also take into account your background which includes that you are the youngest of 12 children, and some family members, I think three of your siblings, went with your parents to Lebanon where you lived for about five years. You returned to Australia in 2014 at the age of 16, and for no reason that has ever been given, you began using cannabis shortly after that return to Australia.  Back in December 2017, you said that your cannabis use was up to daily smoking, and you had also used cocaine and ecstasy with the people that you were associating with then.

15That level of drug use meant that you were not continuing with your apprenticeship through TAFE and the work you were then doing with the family business, and your parents told you to leave home.  That was about a month before the offences were committed.

16After the offences, your brothers spoke on your behalf to your parents and arranged to have you return to living in the family home.  At that time, you returned to your training at TAFE and working in the family business full-time in your apprenticeship.  You then changed employment to work in a larger workshop, but clearly, since then you have gone back to working in the family automotive business. 

17Back at the time that I heard the plea, which was in October 2017, I received a number of references from people who were indicating that you had gained some responsibility and that you had strong family and other support.  None of those references[1] referred to your drug use and there were some reports before me, including from Mr Holzman[2] at the time, about your drug use, and also from Mr Cummins, the forensic psychologist[3].

[1] Exhibit 4 on the plea

[2] Exhibit 5 on the plea

[3] Exhibit 2 on the plea

18There was a difference in what you told people about your drug use then, and it seems that in April 2019, nothing has changed.  You still tell different stories to different people about your drug use.  

19You told Mr Cummins, the psychologist, back in June 2017, that smoking cannabis was against your religion and that you felt guilty about it.  I was told today that you have stopped smoking cannabis about two weeks ago in the approach to Ramadan.

20There were no results put before me from urine testing about your drug use at the time of the plea.  There have been some results during the time you have been on the community corrections order, including ones that were negative.  But also there have been positive tests, and then you have failed to attend for other tests because you knew that they would end up being positive.

21Your attitude has really not improved very much from the time I first started dealing with you.  At the time that you were first assessed by the Youth Justice assessing officer, you said that you "couldn't be fucked with counselling" and that it was "bullshit", but "if it will make me look better at court, I'll do it."  And that is pretty much the way that you have participated in this whole process in coming back to court and telling me certain things, and then going away and getting on with your life exactly how you want to live it, and not having much regard to your obligation to the court.

22This Morning the prosecutor read out some other passages of my sentencing remarks from December 2017, and I just will refer to a couple of those again as part of my summing up now.

23I thought, back then, that this might the beginning of you having some maturity about your life choices and facing up to the very real possibility that you could lose your freedom.  Subsequent events have shown that maybe you did not learn to make better life choices.  Back then, I said you had not learned yet to think about the consequences of what you say and do.  And I think you are still very much having to learn that.

24I found that your prospects of rehabilitation were reasonably good on the basis that you had begun counselling[4], and that is counselling that you have continued to now with Mr Holzman, who has put himself out considerably to continue to work with you by attending at your workplace rather than having you attend him. 
Your rehabilitation was also assessed as reasonably good on the basis of you having no criminal record, being fully employed, and having important support.  However, I said back then:

'Those prospects will only be advanced if you continue with treatment and counselling and begin to understand the consequences of your actions and make sensible choices.'

[4] Exhibit 1B on the breach

25In my view, you have not yet shown much increase in that understanding. 

26I also said to you that my sentence back in December 2017 had to try and prevent you from reoffending, as I thought then, and I still do, that you are naïve and immature and have still not got the message, even though then you were 19, that you have to grow up and not make foolish choices which impact on others as well as on you.

27So what I had to weigh up back then, and now, are the very serious offences you committed as against your very young age, the fact you are now still only 20, that you did not have any criminal record at the time of committing these offences, your assistance to police and your chances of rehabilitation.

28In considering how I will deal with you today, I also now, as at April 2019, take into account the extent of your compliance with your community correction order and the fact that you have reoffended.

29In taking into account the extent of your compliance, I know that you have in the last little while finally got around to demonstrating your ability to complete your work hours, and I take that into account.  However, that was with a great deal of effort on everyone else's part except yours, in the end.  You did put in the time, but one perfect example of your attitude is one where, having asked for extra days to be allocated to you to finish your hours off, you turned up one day and left at lunchtime because you said it was too hot to work.

30So whilst on the one hand you have completed the 100 hours, which was less than I would have otherwise given, because of the fact that you were working five-and-a-half days a week, I also need to take into account the way you completed that order or have completed it thus far.  And that includes your attitude, which I have been speaking about throughout.

31There are 46 unacceptable absences, and the first of these began in February 2018, on 3 February, when I had released you on the order, making clear what the conditions were, on 20 December 2017.  On 13 April 2018, you appeared before me for me to see how you were getting on and by that time, you had already racked up four failures to attend.

32Two days after I first saw you in court on 13 April, you failed to attend for community work.  And that pattern was repeated until, in June, when, I have heard, you then got back into bad influences, even if not with the same offenders as previously, and your driving offences began at that point. 
By the time I saw you for the next judicial monitoring in October 2018, all of that had been happening, that further offending and further failures to attend.

33I do not ignore, however, that there were some positive signs in your Corrections assessment.  You did talk about your drug use, although, as I said, once you began not attending for testing, you simply reported no ongoing substance abuse whereas we now know that that was a lie.  That is assuming, of course, that you were telling the truth to Mr Bell of Youth Justice when you said you were using two to three times a week.

34MR FLUXMAN:  Your Honour, I hesitate to interrupt your sentencing remarks, but I rise just to correct one aspect.  And that is in relation to the addendum report, where in the penultimate paragraph, Ms Dutton indicates there were 46 unacceptable absences.  In fact, the schedule indicates, in fact, there are 27.  So that is incorrect.  I'm sorry, I should've picked that up earlier.

35HER HONOUR:  Actually, you did tell me that on the last occasion and I did not go back and count them.  I was relying on the assessment report, so thank you for that correction.

36MR FLUXMAN:  As the court pleases.

37HER HONOUR:  Yes, well, that is considerably less but it is still an unacceptable number of absences, particularly in light of the work that was being put in by Corrections Victoria to continue to work with you.  You were given a good report in having completed the standard counselling of four sessions for the drug treatment, but as I said, that was coupled with you continuing to use cannabis and reporting that you were not.

38You did make efforts, as I have already said, to complete your work, having told me in court that you were going to try to do that.  That was with mixed success, as I have said, with you not turning up on some days when extra days had been put in, or leaving early.  But ultimately, I do take into account that you did complete the hours when you had finally said you would complete them, before we returned to court in mid-March.

39So on the one hand, you have complied with that condition before the order has been completed - that is, before December this year - but the way that you have complied has not been a good example of complying with a community correction order. 

40The further offending, the driving offences was not of the same nature as your original charges.  That offending has been dealt with in the Magistrates' Court and you got a CCO for that, and that has also been placed in breach, and you are being dealt with for that breach later in June in the Magistrates' Court. I am told by your counsel that you have apparently enrolled in a road trauma awareness seminar with a view to having completed that before you attend the Magistrates' Court in June.

41It is absolutely true that they are altogether different sorts of offences from the armed robberies and causing injury that you committed back in 2016, but the fact is that it is reoffending and it is the way that you effectively said, "I will do what I like" and just went out and drove whilst disqualified - not just once, but a number of times, including within days after that first appearance for the driving offence.

42I am told that you are starting to realise - not just because of the danger of receiving a gaol sentence for the Magistrates' Court matters - but realising that you need to live your life differently.  That you have sold your car so that you do not have that as a temptation for driving, and I am told that you are well aware that if you road-test any vehicles at work, that you would be driving whilst disqualified.

43You continue to work full-time in your family business.  I received a letter from your brother, who was one of the two brothers who originally had the business set up for them by your father.  That brother has left the business and you and your other older brother are now running it you clearly have been busy in that business, although I am told it is not in good financial shape.  I am not sure how that works out.

44So turning then to, as a result of all of those matters that I need to take into account, how I am going to deal with you today. In deciding that, I come back to what I have said to you a number of times in these hearings and that is that in December 2017, I decided you should be given one chance to show that you are becoming a mature, contributing member of the community.

45More recently, I said that I would give you the time to get a lawyer because of how serious it was that you had breached your community correction order, and you asked if you could work out your hours in that time whilst you were getting your lawyer, and I said that was up to you. I said that that was one way of showing me that you were becoming more mature.  But I also said I had not made up my mind, that whilst you had to do everything you could to stay out of gaol, I would still need to decide on the day what that all meant.

46So what I have decided, Mr Zaatiti, is that, as I said to you on the last occasion, I can only sentence you to a term of imprisonment if I think it is the only option.  I have decided that that is the only option that I have for you when I am resentencing you on the two armed robberies and the causing injury offence.

47I do take into account the extent to which you complied with the order along with all the other things that I need to take into account that I already listed, and as a result, the sentence will be a very short one.  But it is a sentence of imprisonment, as I consider that to be the only option.

48It will be combined, after your release, with a further community correction order.  That will be for six months.  The conditions of that order will be, as with the other orders, not to commit any other offences, not to leave Victoria without getting permission of Corrections Victoria, to advise Corrections Victoria of any change of address or employment, and to comply with any directions given by Corrections Victoria.

49I will also order that there be a condition that you are under supervision, as you have been previously on the order; that you undertake the offending behaviour program, that is, the road trauma awareness seminar -  and Corrections Victoria can decide whether you need to do that if you have done the other one, that will depend on the timing of all of this; and I will continue the condition of drug treatment and rehabilitation, as that is an ongoing issue for you.

50So stand up, please, Mr Zaatiti.  The order of the court is as follows.

51The contravention of the community correction order is found proved.  On the contravention charge, you are convicted and fined $1,000.  I will put a stay on the payment of the fine of six months.

52On the original charges, the two armed robberies and the causing injury charge, the community correction order made 20 December 2017 is cancelled.

53Instead, you are convicted and sentenced to an aggregate one month imprisonment on all charges, after which you are to be released on a further community correction order for six months on the conditions that I have outlined. 

54Do you understand the conditions of the order that will be in place after you have served your term of imprisonment?

55OFFENDER:  Ah, yes. 

56HER HONOUR:  Do you agree to being released on that six-month community correction order?

57OFFENDER:  Yep.

58HER HONOUR:  All right, thank you.  Take a seat.  So you will need to sign this new community correction order, Mr Zaatiti.  So if you want to just come and stand next to Dr Fitzgerald, and he will assist you with that if you have any questions. Thank you. So I have signed that order as well.  Dr Fitzgerald, is it best to give a copy to you for your instructor?

59DR FITZGERALD:  Yes, Your Honour.  I believe so.

60HER HONOUR:  Yes, all right.  We will have a copy provided before you leave court.  So Mr Zaatiti, that order will be in place after you have completed your one-month term of imprisonment.  Are there any other orders required?

61COUNSEL:  No, Your Honour. 

62HER HONOUR:  All right, thank you.  Mr Zaatiti may be taken into custody now.  I thank everyone for their assistance in this matter.

63DR FITZGERALD:  As the court pleases.

64HER HONOUR:  Thank you.  We will adjourn until 9 o'clock on Friday. 

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