Director of Public Prosecutions v Zaatiti
[2017] VCC 1993
•20 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 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: | 24 October 2017 | |
DATE OF SENTENCE: | 20 December 2017 | |
CASE MAY BE CITED AS: | DPP v ZAATITI | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1993 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Armed robbery – recklessly causing injury
Cases Cited:R v Lacey (2007) 176 A Crim R 331, Beasley v R [2017] VSCA 154, R v Henry (1999) 46 N.S.W.L.R 346 cited in McKee and Brooks [2003] VSCA 16, Boulton v The Queen (2014) 46 VR 308, DPP v McInness [2017] VSCA 374
Sentence: Community Corrections Order for 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Fluxman | OPP |
| For the Accused | Ms S. Stafford | Doogue O’Brien George |
HER HONOUR:
1 Omar Zaatiti, you have pleaded guilty to two charges of armed robbery, an offence with a maximum sentence of 25 years’ imprisonment, and one charge of recklessly causing injury, an offence with a maximum sentence of five years’ imprisonment.
2 I sentence you on the basis of the Prosecution Opening[1], read out in court as an agreed summary, as well as the CCTV footage of the two armed robberies.
[1] Exhibit A
3 In the summary of your offending that I will give, I will refer to your co-offenders by initials, as they have all been dealt with in the Children’s Court[2]. I will also not refer to the victims of your offending by name, to preserve their privacy, but I mean them no disrespect by referring to them as ‘the attendants’.
[2] Section 534 Children, Youth and Families Act 2005 prohibits identification of child offenders.
4 In the early hours of 28 November 2016, you and a friend FL met up with two other young men who were in a stolen car. At about 2.40am the four of you went to a 7 Eleven where the attendant was working alone.
5 One of your co-offenders, OA, used a hammer to smash open the locked door of the store and you followed him in, together with another co-offender, DS. You ran to the service counter and jumped through the wire barriers and opened the door to allow DS into the counter area, where you and DS began loading packets of cigarettes into a doona cover DS had been carrying for this purpose.
6 OA prevented the attendant from escaping and kicked him, which caused the attendant to fall through an internal doorway, and then took the attendant into the counter area where you still were, and demanded that he open the cash register. When he did, you and OA stole $350 from the register. These acts constitute charge 1 - armed robbery. It is an armed robbery because one of your group was armed with a hammer, and the actions of each of you, acting together to use force to steal items, means you are all guilty of armed robbery.
7 After the money was stolen from the cash register, OA demanded that the attendant open the safe. You obtained a crowbar from the car and used it to try and open the safe, without success. OA forced the attendant to his knees and threatened to hit him in the head with the hammer, and the attendant took you and OA because of this threat, to get some keys and returned to the counter area, but none of you were able to open the safe. You then all left, stealing some items on the way out.
8 The prosecution opening states that the attendant had no injuries, but he has provided a victim impact statement and medical reports[3] referring to injuries he received, that he has been diagnosed with Post-Traumatic Stress Disorder, and that he has suffered considerably in a number of ways from the events. He was working at 7 Eleven while he was studying his Master’s degree in Information Technology and Enterprise Systems. He had already qualified as a flight engineer in his country of birth. The effect of the attack on him meant he was unable to fulfil some requirements of his visa, which meant he had to re-apply for a visa, and this, along with the other impacts, caused him considerable stress. In deciding the appropriate penalty, I take into account that he was kicked by your co-offender and fell through a doorway during the armed robbery, and in the continuation of the events, was threatened by your co-offender with the hammer. I accept that the attendant has been significantly affected in a number of ways by the actions of you and your co-offenders. I hope that things improve for him and I wish him well for the future.
[3] Exhibit F
9 Within half an hour of that crime being committed, the four of you drove to another 7 Eleven, arriving at 3.12 am. Another attendant was working there alone. OA again used the hammer to smash open the doors, gaining entry to the store with your help, and you forced the doors open further for DS to come in with the doona cover, now empty, as the contents of the first armed robbery were unloaded into the car.
10 OA approached the attendant, put his arm around him and walked him to the counter area where he made him open the door. When the attendant could not open the cash register OA forced him back into the main store area and demanded his wallet, hitting him as he got it out. OA forced the attendant to kneel as he went through the wallet but found no money. You are not charged with any offence from these acts of OA, but it is background to the other offending that went on, which did involve you. I am satisfied that you knew that OA had a hammer and was prepared to use it.
11 While OA was with the attendant you and DS were again loading the doona cover with cigarette packets and DS took it out to the car. These acts all together constitute charge 2 - armed robbery.
12 After the doona full of cigarette packets was taken out to the car you returned to the counter area where OA was still with the attendant, who was asked to re-open the counter door but could not do so. You then hit him in the head, accidentally hitting OA in your movement, and OA reacted by hitting the attendant twice in the head with the hammer. You followed this up by punching the attendant in the face. These acts of you hitting the attendant constitute charge 3 - recklessly causing injury.
13 You then walked away but OA remained with the attendant, hitting him in the head and legs another six times. You are not charged with any offence from these acts of OA. In fact, in all this shocking offending your one good action was to come back and grab OA, moving him away from the attendant. I take this action into account in your favour.
14 After the four of you left, the attendant pressed his duress alarm and police attended.
15 The victim of the second armed robbery did not provide a victim impact statement, but it is part of the agreed summary that he suffered cuts to the side of his head and to his nose, as well as a fractured nose. Because you and OA were assaulting this man at the same time, it is impossible for me to say how these injuries occurred other than by both of you acting together, but I do take into account that you were hitting him with your hand and OA was using a hammer. Therefore I sentence you on the basis that charge 3 of recklessly causing injury is based on your actions alone. I have no doubt that the attendant suffered fear and considerable pain from these actions and would have been significantly affected by the actions of you and your co-offenders. I also wish him well for the future.
16 Not long after the second armed robbery, police found your group standing around the car at another location. You all got back in the car and drove off, so that the police had to chase the car you were in, but they lost sight of it. At about 4 am the car was located again by police and your group was arrested as you were attempting to unload the cigarettes into another car.
17 This was a violent series of actions involving a group of you terrorising both 7 Eleven workers. Each was a person just going about his business in each store, earning some income, and making his way in Australia. Australia is, on the whole, a country that welcomes people, which rewards hard work, and allows people to make a better life for themselves if they choose to make the most of what this country has to offer. This is what these two young men, only a few years older than you, were trying to do until they were badly frightened and suffered injuries as a result of the criminal actions of your group. Because of your family background and personal experiences, which I will refer to in a moment, you should understand the opportunities that this country offers for migrants to work hard and make a good life for themselves, and you should realise that it does not help a person new to Australia to get ahead if they are the victim of a violent crime with its consequences.
18 I was told by your lawyer that you were under the influence of both cannabis and cocaine at the time of the offending. I will return to this topic later.
19 These are serious offences, which can be seen from the maximum sentences of imprisonment that the law has set - 25 years in prison for armed robbery and 5 years in prison for causing injury recklessly. There are some details that make your offending even more serious.
20 First, these offences were committed in a group, with three of the four of you going into each store and confronting the attendant. You were active in some of that confrontation in each armed robbery, and personally injured the attendant in the second armed robbery.
21 Next, each entry was violent and destructive, involving the use of a hammer by OA to smash open the locked glass doors. You were active in the second entry.
22 Next, the plan was to steal cigarettes which could be sold for profit, and I am satisfied 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 knew that OA had committed an armed robbery before.[4]
[4] These last two findings come from the report of Jeffrey Cummins – Exhibit 2
23 Next, you were actively involved in stealing money from the register and trying to open the safe in the first armed robbery, and in stealing the cigarettes in both incidents.
24 Next, the CCTV footage shows that this was planned and co-ordinated to some extent, as on entry, each offender went straight to performing their role, and the group came ready to commit the armed robbery with one of you having a hammer, and another having the empty doona cover.
25 Next, the hammer was actually used in the armed robberies, not just held in someone’s hand. OA used it to smash open the doors as I said a moment ago, and he used it to threaten both attendants and to hit one of them.
26 Lastly, the value of what was stolen was high. Thirteen hundred and one packets of cigarettes were found in the car; some were damaged. The total value of the cigarettes was about $35,000 - $40,000, plus there was the cash of about $350 stolen in the first armed robbery.
27 I find that all these details make your offending very serious examples of this type of serious offence.
28 Against this very serious offending there are some factors in your favour which I must take into account in deciding your penalty.
29 The first of these is the fact that you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. Because of your plea the community has been spared the time and cost of a trial, and each of your victims has been spared the ordeal of giving evidence in your trial. I can tell you that the sentence I intend to impose is less than would have been imposed had you been found guilty after a trial.
30 Next, you indicated your intention to plead guilty at an early stage and I accept that shows that by then you accepted some responsibility for your criminal behaviour. You have told people that you are sorry for what you have done. However, I am not convinced that you are completely remorseful. 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. Until three weeks ago you also showed a very bad attitude to doing anything about your drug use. I will come back to this.
31 When you were first interviewed by police, you said you did not know the other people involved. This was a lie. Then, during that interview with police, you obviously realised it was not a good idea to lie to the police, and you started to give police some information about your role, including that you had assaulted one of the attendants. That shows acceptance of some responsibility, at least for some of your actions. Then, after the word ‘remorse’ was explained to you, you told police that you were remorseful for your actions. However, you still said this night was the first time you met the others and that you just did what they did and helped out. These were all lies.
32 Some hours after the interview finished you made a written statement to police in which you said: you and your friend who you named, (FL), met the other two and took up their offer to go for a drive; that you were told to get ready as “we’re going to do this one”, so you put your hoodie over your head and went in. You admitted that you helped push open the door, and opened the door into the counter area because you had been told to. You said you then helped the driver of the car load the doona cover with packets of cigarettes. You said that back in the car you did not really hear anything because the music was blaring, but the two unknown men said they were going to do another one, and a second armed robbery was committed, same as the first. You said the man with the hammer was hitting the attendant but you could not say where he was hitting him as you were outside waiting by the car. Again, this version shows acceptance of some responsibility at least for some of your actions, but a lot of other things you said were lies.
33 Another two hours later you made a further written statement. You said you had not wanted to name the other two men before, but after giving it some thought and knowing that your phone had messages on it from OA, and the police had your phone, you named him as the man with the hammer, and DS as the driver.
34 So you were not honest in your dealings with police at the start. It was a few hours before you told them the correct details, including the identities of the other offenders. This shows that eventually, you had some willingness to assist the course of justice, and is a matter I take into account in your favour, even if it did not happen when you first spoke to police.
35 I was told by your lawyer that it became known through Facebook that you had named OA, by OA’s brother posting a photo of your final statement to police, which had been provided to OA as part of the police brief. The timing is a bit unclear to me, but you told Mr Cummins, the psychologist who assessed you, that you reported this Facebook post to police, but the post remained. You also told Mr Cummins that OA’s brother asked you to meet him, which you did. You said he threatened you with a gun, saying, “You snitched on my brother”, and threatened to shoot you in the leg if you did not pay him $4000. You also told Mr Cummins that later that night, bullets were fired into the front of your family’s business.
36
The prosecutor told me that it had been reported to police that you met OA and his brother, were taken to a park, and a demand was made for money. A fight broke out, a knife was pulled out and you were stabbed in the leg and punched, resulting in you spending a number of days in hospital. The prosecution confirmed this was under investigation, but that you have not made a statement because of your fear of something worse happening to you or your family. Unfortunately, a cousin of yours decided to take matters into their own hands, and he has been charged with committing offences against a family member
of OA.
37 I cannot emphasise strongly enough that people must not take matters into their own hands, whether it is your family or relatives or that of OA. The police are the people to investigate and lay charges, and protect people, but they can only do so based on information leading to evidence that they can produce to a court to prove, if possible, the charges they have brought.
38 The point of describing all this though, is its impact on you. I am not deciding what to do about any efforts at evening up the score by anyone’s brother or cousin. I am here to decide the penalty you will receive for committing two armed robberies and causing injury. I accept that you provided assistance to the police. I accept that you were prepared to promise to the court to give evidence if you were required to do so, but that has not been necessary, as the co-offenders pleaded guilty. On the balance of probabilities, I accept that it appears you have been the subject of threats and violence as a result, even though there is no evidence before me about any of this, and the versions of events are different. Ultimately, I have decided that you will receive a lesser sentence because of your assistance, and the danger that has exposed you to, in whatever form that took.
39 The next matter I take into account in your favour is probably the most important one in reducing the penalty that you might otherwise receive today. You had just turned 18 when you committed the offences and so must be sentenced as a young offender, which means that your rehabilitation is the most important purpose in sentencing you.
40 As it happens, you are the oldest of the four offenders, and as I said at the beginning, the other three were dealt with in the Children’s Court. If you had not turned 18 only nineteen days before committing the offences, you would have been in the Children’s Court too. It is difficult to compare the sentences the other three got with any sentence you must receive according to law in the adult court, because their penalties were under a different process in the Children’s Court. However, I will set out what happened to them and take that into account to the extent that I am able to.
41 FL was aged 16 and had no criminal record. I do not know exactly what he was charged with but he received a probation order for nine months in the Children’s Court.
42 DS was also aged 16, and he was convicted in the Children’s Court of two charges of armed robbery as well as theft of a car and released on a Youth Supervision Order. He had a criminal record for dishonesty offences committed before these offences, being three charges of burglary, two charges of theft, two charges of committing an offence while on bail, and a charge each of dealing with the proceeds of crime and attempted burglary.
43 OA, the principal offender, is in fact the youngest, aged just 15 at the time of the offences. He was convicted in the Children’s Court of two charges of armed robbery, one charge each of intentionally causing injury and theft of the car, as well as other charges which must relate to other occasions of offending, being one charge each of robbery, possessing amphetamine, possessing cocaine, possessing cannabis, making a false document, and committing an offence while on bail. On all charges, he was sentenced to be detained in a Youth Justice Centre for ten months. He had been held in custody for 113 days before being sentenced. He too had a criminal record for dishonesty offences committed before these offences, being armed robbery and conspiracy to commit an armed robbery.
44 In your case, you have not been in trouble with the police before. That puts you in a different position to OA and DS, who had criminal records. You will be sentenced as a young offender who has no criminal record. This means that the sentence I impose must be one that has as its primary purpose, promotion of your rehabilitation, unless I consider that the offending is so serious that protection of the community outweighs that purpose. I will come back to this.
45 I next take into account your personal circumstances and background.
46
You turned 19 last month. You were born in Australia, the youngest of 12 children, being nine females and three males in an orthodox Muslim family. You attended school to Grade 6 in Melbourne and when you were aged 11 in 2009, your parents and three siblings returned with you to Lebanon where your parents and some of your siblings were born, and you lived there until you were
aged 16. You completed about four years of school there. I am told that in Tripoli you were apparently confronted by the armed conflict, and although no family members were involved, you were very much aware of gunfire, and bombing, and the results of these attacks.
47 When you returned to Australia in 2014 at age 16, you began an automotive apprenticeship through TAFE, completing your Certificate II in pre-vocational Automotive Studies in June 2015, and attaining a number of accredited units in December 2015[5]. At some stage you began your own automotive apprenticeship in the family business, which is a tyre and automotive workshop set up by your father for your two older brothers, who are aged in their late twenties.
[5] Exhibit 3
48 Shortly after the family returned from Lebanon you began using cannabis. There is no reason advanced for this. One could imagine that your exposure to the conflict in Lebanon would have had an impact on you, and Mr Cummins thought that you probably had developed an adjustment disorder with mixed anxiety and depressed mood as a result, but he drew no connection between that probable impact and you beginning to smoke cannabis. I can only act on evidence and I have no evidence as to why you began smoking cannabis.
49 You turned 17 in November 2015, and about then, you began hanging around with a group which included your co-offenders. Your cannabis use significantly increased, to a point where you were smoking daily and sharing up to 7 grams with these other teenagers. About five months before the offending you report that they introduced you to cocaine and you were sharing up to four grams twice a week with them. You also apparently experimented with ecstasy.
50 This high level of drug use meant that you became less and less involved with your work and training. About a month before the offences your parents told you to leave home because you were coming home late and not complying the with their house rules. You then slept on friends’ couches or slept on the streets. You stopped going to TAFE and no longer went to work in the family business.
51 At some stage, you and your co-offenders came up with the plan to commit armed robberies to steal a lot of cigarettes and sell them for profit[6]. After the offences, apparently your brothers spoke on your behalf to your parents to have you return to living in the family home, you have returned to your training at TAFE one week per month, and re-commenced your apprenticeship working full time in the family business, where you report to one of your brothers. At the plea date, I was told that you hoped to continue your apprenticeship next year and aspired to work with your brothers. Since then you have changed your employment and today I was told about this. The reason given was in order to obtain experience at a larger workshop, but you are still undertaking your apprenticeship at TAFE and working on six days of the week.
[6] As reported to Jeffrey Cummins, psychologist – Exhibit 2
52 I received a number of references[7] from friends who say that you no longer see or speak to the co-offenders, that you regret the choices you made and you do not want to go down that path again. You began seeing a young woman more than a year ago, before the offending. She has never been in trouble with the police, lives with her parents in a Christian family, and also provided a reference[8], saying that she believes you have changed and become more responsible and with a strongly supportive family, as well as her support, she considers you will not re-offend. While all that support is vital for your rehabilitation, and I note the presence of family members today, I do note that her attempts to stop you hanging around with your co-offenders was not successful back then. That says more about your immaturity than it says about her efforts to keep you in a proper lifestyle.
[7] Exhibit 4
[8] Part of Exhibit 4
53 None of the references referred to your drug use, past or present, or alcohol use. You were assessed by a psychologist, Mr Cummins, who provided a report to the court[9]. You told him in June this year that you had reduced your cannabis use to four to six times a week, and that you were not quite at the point where you wanted to stop smoking it, but did not consider yourself addicted. You also said that smoking cannabis was against your religion and that you felt guilty about it.
[9] Exhibit 2
54 After the plea hearing you were assessed for a Community Correction Order on 24 October, and for a Youth Justice Centre order on 14 November. I will return to the main recommendations shortly, but for now, concentrating on what you said about your drug use, you told the Community Corrections assessing officer that your daily use of cannabis, cocaine and ecstasy significantly impacted on your behaviour at the time of the offending, and that after the offending you only used cannabis ‘infrequently’ and that your use had not affected your ability to work.
55 Three weeks later you told the Youth Justice assessing officer that you were no longer using any drug. You also said that your lawyer had arranged drug counselling, but said the counsellor did not call you, so the appointment did not go ahead, and when later given another appointment, you said you were not given details of the date and time to attend. This did not show much commitment. You had told Mr Cummins in June that you only drank alcohol socially, but you told the Youth Justice assessing officer in November that having given up all other substances, you now drank half a bottle of vodka and then an unknown number of pre-mixed cruisers ‘on the side’ most weekends.
56
There was no evidence put before me, such as results of urine tests, on the plea date to show that you really have stopped using illegal drugs and to what extent you are now drinking alcohol. However, I was told that urine testing has been undertaken by you with Youth Projects since 20 November and they are clear, following on a test that was positive for cannabis in June and a negative test for cannabis in August. The last two tests were available in court today but I did not require their tender. The recent tests were not available. You told
Mr Cummins in June that your lawyers had encouraged you to do such tests, but you were reluctant to do so because you knew it would show that you were still using cannabis, but you said you would do tests before the court date, and you did, as I just said.
57 You also told the Youth Justice assessing officer that counselling is ‘bullshit’, and you also said, “I can’t be fucked with that shit but if it will make me look better at court, I’ll do it.” That attitude is another example of your lack of maturity.
58
After your lawyers were advised on Monday that you were to be sentenced today, Wednesday, the court received on Tuesday a report from an Alcohol and Other Drugs clinician without any forewarning that the report was coming. This report, dated 13 December[10], says that you have been attending since
20 November. Today I was told that there have been two counselling appointments since then. Unlike your attitude towards counselling that I have just referred to, your attitude towards this counselling is reported to be positive and you are reported to have resisted smoking cannabis even though you are apparently once more mixing with friends who smoke. The writer of the report says you have abstained from all drug use, but there is no mention of alcohol use, which I am told has not been the focus, and no reference in the report to the urine test results which I was told about today.
[10] Exhibit 5
59 Having said all that, the report is a positive one about your motivation and discipline, and I accept that it shows that you have begun to realise what you need to do to show that you will not re-offend. This might be 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, either in a Youth Justice Centre, or in an adult prison.
60
Against that background, I now return to the submission your lawyer made about your drug use at the time of the offending. She submitted that you were intoxicated at the time from using both cannabis and cocaine. You told
Mr Cummins that you were “certainly” under the influence of cannabis and “most probably” cocaine. I am not satisfied on the material before me that you were using anything other than cannabis at the time of the offending.
61 Your counsel referred me to a case[11] called Lacey which she said stated that drug use arising out of immaturity can reduce moral culpability if connected to the offending. I have carefully read that case, as well as the most recent citation of it in the Court of Appeal, in a case called Beasley.[12]
[11]R v Lacey (2007) 176 A Crim R 331, [12]-[18]
[12]Beasley v R [2017] VSCA 154
62 There the Court reiterated the proposition in the case of Lacey that, where drugs are involved in the commission of an offence, the circumstances in which an offender may have become addicted to drugs can have a bearing on his or her moral culpability.[13] The Court went on to say that this is only one of the circumstances that must be considered when a court is tasked with sentencing drug-affected offenders. The Court also reiterated the proposition[14] in the case of Lacey that an offender’s drug addiction ‘will only call for mitigation of punishment where it established on the balance of probabilities that there is a link between that addiction and the commission of the offences’.
[13] Ibid [36]
[14] Ibid [37], citing Lacey [16]
63 I have also considered other cases on the relevance of drug addiction to moral culpability, and armed robbery committed to feed a drug addiction. The authorities are clear that the extent to which a decision to experiment with drugs is freely made bears upon the moral culpability of the offender who commits a crime as a consequence of addiction, and age is relevant to that question.[15] Further, commission of armed robbery to feed an addiction is generally only of slight mitigatory effect.[16]
[15] See eg. R v Henry cited in McKee and Brooks [2003] VSCA 16, [13]
[16] See multiple cases referred to at 10.10.1.3 Victorian Sentencing Manual
64 I accept that you began using drugs at a young age and are still of a young age. However, before your drug use can be relevant to reduce your moral culpability, I must be satisfied that you suffered from an addiction and that there is a link between that addiction and the commission of the offences. There are difficulties with both assertions.
65 First, you do not consider yourself as having been addicted to cannabis or any other drug at the time, or since. You told Mr Cummins, “I don’t feel I’m really addicted to [cannabis] because it hasn’t taken me over.” Based on your other reports to Mr Cummins about your drug use, he formed the opinion that as at June 2017 you were suffering from a cannabis use disorder of at least mild severity. This does not really assist me with whether you were addicted to cannabis or any other drug at the time of the offending.
66 While you told the Community Corrections assessing officer that you were significantly impacted by your drug use at the time and that the offending occurred in that context, you told both assessing officers and Mr Cummins that you immediately stopped using cocaine and ecstasy after the offences. Being able to do that makes it unlikely that you were addicted to either of those drugs. You also told each of them that you continued to use cannabis after the offending: you told Mr Cummins in June your use was three times a week; you told Community Corrections in October your use was infrequent; and three weeks later, you told Youth Justice on 14 November that you had stopped use completely. This was confirmed by your AOD clinician from Youth Projects. This reduction in use to total abstinence was all achieved without counselling or other treatment.
67 On one view, if true, that shows that your chances of staying off drugs are good, because, even if you were addicted, you are no longer. On the other view, the fact that you were able to reduce your use to zero with no counselling or other treatment, makes it less likely that you were ever addicted.
68 Even if I were to find that you were addicted to cannabis, I need to find that this addiction was linked to your offending. There is a difference between taking into account the disinhibiting effects of drug use on a young person, who then makes bad decisions and commits a crime for the first time, and finding that the young person is addicted, that the addiction is causally linked to the offending, and that as a result, their moral culpability is reduced.
69 In the end, on the material before me, I am not satisfied on the balance of probabilities that you were addicted to cannabis or the other drugs at the time of the offending, and so there is no finding available that an addiction was linked to your offending and that your moral culpability could or should therefore be reduced.
70 However, I do take into account that the decision to begin taking drugs was made at an age where rational choices are not always made, and your cannabis use at the time of the offending probably inhibited your judgement and laid the groundwork for you to make a wrong choice to participate in the armed robberies, particularly taking into account that you were and are very immature, naïve and unsophisticated. You have not yet learned to think through the consequences of what you say and do.
71 The good news about finding that you did not suffer from an addiction is that it follows that your prospects for rehabilitation are better than if you did have an addiction which needs to be managed.
72 The report from the AOD counsellor is encouraging, although as I have said, there is still more work to be done.
73 On balance, I find that your prospects of rehabilitation are reasonably good, on the basis that you have begun counselling, you have no criminal record, are fully employed in work and training, and have important support from your family and girlfriend. However, 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.
74 I accept that rehabilitation is the most important purpose in my sentencing of you today. However, I must also take into account other matters such as deterrence. That means that by my sentence of you I must try to prevent other young men from making bad choices and committing serious offences, especially armed robberies on easy targets. My sentence must also try to prevent you from re-offending, as I think you are still naïve and immature, and still have not got the message that, even though you are only 19 you have to grow up and not make foolish choices which impact on others as well as on you.
75 The factors I have to weigh up are, in summary, the very serious offences you committed, as against your age, your lack of criminal record, your assistance to police, and your chances of rehabilitation.
76 Your counsel submitted that I should convict you and release you on a community correction order. The prosecutor submitted the sentence I impose should involve some time spent in custody, and that a community correction order alone is not within range. Those submissions were confirmed this morning.
77 You were assessed as suitable for a community correction order and, if a sentence involving custody was to be imposed, you were assessed as suitable for a Youth Justice Order rather than adult prison.
78 I can only impose a sentence of imprisonment or detention in a Youth Justice Centre if it is the only option. In all the circumstances, I have decided that I do have another option in your case. Weighing up the competing factors, I find that because of your young age and the fact that these are the first offences committed by you on the one occasion within a half hour, and considering as far as I can, the sentences received by your co-offenders, despite the serious nature of the offences you should be given one chance to show that you are becoming a mature, contributing member of the community.
79 If you agree, I will release you on a community correction order for two years. I am satisfied that such an order, with punishment and treatment conditions, will satisfy the sentencing requirements[17].
[17] Boulton v The Queen (2014) 46 VR 308, [131]. See also APPENDIX 1: COMMUNITY CORRECTION ORDERS: GUIDELINES FOR SENTENCING COURTS: Boulton, 377 [25]; DPP v McInnes [2017] VSCA 374
80 The conditions will have been explained to you at your assessment but as that was two months ago, I will go through them again.
81 Would you stand up, please, Mr Zaatiti?
82 The order will have the conditions that are attached to every order which are: that you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; must not leave the State of Victoria without the permission of Corrections Victoria; and must comply with any directions given by Corrections Victoria.
83 I will also order that you comply with other conditions during that two years. These other conditions are to help you with your rehabilitation so that you will not re-offend, but there is also some punishment because you broke the law in such a serious way.
84 The assessment did not recommend that you undertake programs to reduce your risk of re-offending, as they assessed your risk as being low. In my view, there are still a number of danger signs for you, and I think that you do need to complete programs that will make you think before you make a bad choice. Without this, I think there is more than a low risk that you will reoffend in some way because of your immaturity.
85 The other or special conditions are:
· you will be under supervision of Corrections Victoria;
· you must perform 100 hours of unpaid community work;
· you must undertake assessment and treatment for drug and alcohol use;
· you must come back and see me on a date that I will give you so I can check on how you are getting on, that is known as judicial monitoring; and
· you must undertake a program designed to reduce re-offending, as directed by Corrections Victoria.
86 Before I ask you if you agree to these conditions, I will just explain a bit further. I have given you 100 hours of unpaid community work as part of the punishment for your crimes. That is a lower number of hours than I might otherwise have given because you are already working six days a week, but let me make sure that you are absolutely clear that this takes priority. You simply have to arrange to do those hours of unpaid work. It is no excuse that you are working six days a week and studying at TAFE.
87 The next thing is that you are already undertaking treatment, counselling for your drug use and that may well be expanded to alcohol use given what I have said in these sentencing remarks. I have made this part of the condition of your order but Corrections Victoria will decide how best to go about that. It may well be that they will simply monitor you continuing to work with Mr Holsman but that is something that you will need to discuss with them.
88 So are you clear about what the proposed conditions are, Mr Zaatiti?
89 ACCUSED: Yes.
90 HER HONOUR: Do you agree to being released on a Community Corrections Order with those conditions attached?
91 ACCUSED: Yes.
92 HER HONOUR: Do you have any questions about those conditions?
93 ACCUSED: No, Your Honour.
94 HER HONOUR: If you are ill or there are exceptional circumstances, this order may be suspended for a period of time. Also if your circumstances change, the court may change the order or cancel it. In either case, you must tell the Community Corrections office you will be attending, and I recommend you also get legal advice.
95 If you do not complete any condition of this order, including by committing another crime, you will be brought back before me, you will be re-sentenced on these offences as well as on any other crime that you may have committed, and be otherwise dealt with for the breach of the condition. What will happen then will depend on a number of circumstances, but you should be clear that my options are limited, and one of those limited options will be imprisonment or detention in a Youth Justice Centre. So do you understand what will happen if you do not comply with the conditions of this order?
96 ACCUSED: Yes.
97 HER HONOUR: Very well then, the order of the court is that on the two charges of armed robbery and one charge of recklessly causing injury, you are convicted and released on a community correction order for two years with the core and special conditions that I have outlined.
98 I also order that any hours of treatment be counted towards your hours of unpaid community work.
99
I order that you return to court for judicial monitoring at 9.30 am on Friday
13 April 2018. Ms Stafford will give you some more information about that but generally that is just an attendance at court without a lawyer where Community Corrections provide me with a report as to how you are going and we have a discussion about that.
100 Mr Zaatiti, you have agreed to this order, but you must sign it to show that you have agreed, so I will ask you to step out of the dock now and take a seat beside your sisters while the documentation is prepared. Yes, you might just go through that, Ms Stafford. All right, so I have signed that order and you will get a copy of that before you leave today.
101 Finally, I advise you that if you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed is ten months’ detention in a Youth Justice Centre. Yes, take a seat, Mr Zaatiti. Mr Flaxman, I do not believe there are any other orders.
102 MR FLAXMAN: No other orders, Your Honour.
103 HER HONOUR: Thank you. So, Mr Zaatiti, I will see you next year on Friday, 13 April at 9.30 am and I am hoping that your attitude will have improved by then and that things will be going better for you on the order. Otherwise you know the consequences. Thank you.
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