DPP v Odisho

[2021] VCC 325

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR 20-01606

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANGELO ODISHO

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JUDGE:	HIS HONOUR JUDGE D SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	15 March 2021
DATE OF SENTENCE:	25 March 2021
CASE MAY BE CITED AS:	DPP v Odisho
MEDIUM NEUTRAL CITATION:	[2021] VCC 325

REASONS FOR SENTENCE
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Subject:

Catchwords:              Plea of guilty – one charge of reckless cause injury, one charge of kidnap, youthful offender, pre-sentence detention to which s.18 Sentencing Act 1991 does not apply.

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:R v Verdins (2007) 16 VR 269; Hanna v The Queen [2014] VSCA 187; Young v The Queen [2015] VSCA 265; Huynh v The Queen [2020] VSCA 222; DPP v Ghadami-Loran; DPP v Samimi [2019] VCC 1146; DPP v Dyer [2017] VCC 1522; R v Renzella [1997] 2 VR 88; Karpinski v R (2011) 32 VR 85;R v Arts & Briggs [1998] 2 VR 261; Azzopardi v The Queen [2011] VSCA 35 VR 43; R v Mills [1998] 4 VR 235

Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms Michelle Zammit (Plea) Ms Bergshoeff (Sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Mr Damian Sheales	Massi Ahmadzay & Associates

HIS HONOUR:

Introduction

1

Angelo Odisho, you have pleaded guilty to one charge of causing injury recklessly, contrary to s.18 of the Crimes Act 1958, which carries a maximum penalty of

5 years' imprisonment, and one charge of kidnapping contrary to s.63A of the Crimes Act 1958, which carries a maximum penalty of 25 years' imprisonment. Furthermore, as kidnapping is a Category 2 offence pursuant to s.3(1) of the Sentencing Act 1991, a custodial term must be imposed (excluding a combined term of imprisonment with a Community Correction Order), unless one of the exceptions contained in s.5(2H) of the Sentencing Act 1991 applies.

2You have also admitted your criminal record.

Circumstances of your Offending

3The details of your offending were set out in the 'Summary of Prosecution Opening' dated 19 February 2021 (Exhibit A) at your plea hearing.  This document contains the factual basis of your offending, for which you will be sentenced.

4Your offending can be briefly summarised.

5In January 2019 your victim, ‘JS’[1], a young man who had attended the same high school as you, borrowed $1,000 from you.  Notwithstanding the fact that JS repaid this money within one week of it being borrowed, in April 2019 you contacted him and told him that he owed another $8,000, being interest on the original loan.

[1]        The victim has been referred to as ‘JS’ throughout this document, to protect their identity.

6Upon JS telling you to "get fucked", you told him that he needed to pay the money otherwise you would come and get him.  You subsequently sent further messages to JS, but he ignored your messages.

7

On the evening of your offending, 22 December 2019, JS met with some friends at a carpark at Hothlyn Drive Reserve in Craigieburn at about 6.30 pm, arriving in his 2018 Toyota HiLux vehicle.  About 30 minutes later a Nissan Pulsar arrived at the scene and men from this vehicle got out and approached

JS.  Shortly afterwards a second vehicle, a black Holden arrived, and further individuals got out and approached JS.  In total, from both cars, around eight people got out of the cars and approached your victim, who, at this time, was sitting in the front passenger seat of a friend’s vehicle.

8JS recognised you as one of the men approaching him.  You began to yell at JS, saying, "fucking dog…it’s time to pay up".  You also threatened to stab JS, telling him that you were going to fuck his mother, and you said "you’re fucked, you can’t run anywhere now".

9You were one of about four men to approach JS and, together with the others in your group, you punched JS through the open window whilst the remaining men stood and watched.

10Your conduct in this regard forms the basis of Charge 1 on the indictment; recklessly causing injury to JS.  Photographs contained in the depositional material reveal a cut under the right eye of JS.

11When JS’s three friends got out of the car and tried to stop this assault you produced a flick knife, as did two other unknown males.  As a result, the victim’s friends stayed back.

12The car door of the vehicle where JS was seated was opened and he got out of the car.   He was then punched and kicked for a short period of time and then manhandled into the back seat of the first car to arrive at the scene; the Nissan Pulsar.  This was despite JS resisting.  In the circumstances he could not defend himself.

13You sat on JS’s right whilst one of your co-accused sat on his left, with the other co-accused driving the vehicle away.  Your conduct in this regard forms the basis of Charge 2 on the indictment, kidnapping.

14During this journey you video recorded JS.  That footage, tendered at your plea hearing by the prosecution and marked Exhibit B, was played during your plea hearing.  In that recording JS is clearly injured and clearly in a distressed state.  In that recording you can be heard repeatedly telling JS to call himself a "dog".

15As this vehicle was driven to a sporting field carpark in Roxburgh Park you and your co-accused continued to assault JS.  You also demanded $8,000 or you would take the victim’s car.  JS said that he did not have that money.  You took the keys from JS’s pocket.  Also during the journey you said to one of your co-accused "take me home to get the 22 so I can put one in his leg".

16Upon arriving at the sporting field carpark in Roxburgh Park you produced a Vic Roads Transfer Form and told JS to sign his car over.  JS signed the form, although he was not the registered owner of the vehicle.  You took the paperwork and said to JS that he needed to pay $8,000 in the next month if he wanted to get his car back.  You and your two co-accused then left JS in the carpark and drove away.

17

JS called one of his friends to pick him up and he was taken to the Royal Melbourne Hospital, where he then called 000.  As a result of the assault

JS sustained a cut under his right eye, soreness to his jaw and the back of his neck, head and elbow.  The injuries included an open wound to the face and bruising on the right side of the face and a painful right thumb.

18You were arrested by police in the early hours of 23 December 2019 at the Roxburgh Park Secondary College carpark.  At that time police, located a flick knife in your vehicle, the Nissan Pulsar, and seized that item, together with various items of clothing.  On that same day you were interviewed by police at the Broadmeadows Police Station, where you essentially denied any knowledge of the victim and any involvement in the offending to which you have now pleaded guilty.

Impact on your Victim

19

Whilst your victim, JS, had indicated that he would be making a victim impact statement in this matter, ultimately no such statement was provided.  Nevertheless, the immediate impact on JS of your conduct is readily apparent from the footage recorded from inside the vehicle (Exhibit B).  Given the nature of the offending and the injuries sustained to him, and the fact that

JS was known to you, I have little doubt that your offending has significantly and adversely impacted JS.

Nature and Gravity of Your Offending

20The gravity of the crime of kidnapping, in particular, is reflected in the statutory maximum penalty of 25 years’ imprisonment.  It is, by its very nature, a violent and threatening offence.  In this instance you offended in company.  The presence of others at the time of both the reckless cause injury and the kidnapping no doubt increased the degree of fear and helplessness experienced by your victim.  Whilst in company with others you physically assaulted JS whilst he was seated in his friend’s vehicle.  Again, in the context of analysing the objective gravity of the kidnapping offence, this no doubt informed the degree of fear and apprehension when he was soon after taken away by you and your co-accused.

21In the face of resistance on the part of the victim’s friends you produced a weapon, a flick knife, both demonstrating your determination in this criminal endeavour and, again, no doubt demonstrating to JS the gravity of his predicament.  You then, in company with others, manhandled the injured JS into your vehicle whilst he resisted.  As graphically shown through the video footage, while the injured JS was clearly in a distressed state, whilst in company with others you verbally disparaged him, calling him a "rat” and repeatedly demanding that he call himself a "dog".  Your behaviour in this regard demonstrated a complete disregard for JS’s welfare and, again, would no doubt have reinforced to him the gravity of his predicament, therefore it would no doubt have accentuated his degree of fear and apprehension.

22No doubt further adding to his degree of fear and apprehension would have been your veiled reference to one of your co-accused acquiring a weapon so that you could shoot JS in the leg.

23During this car trip you made your demand for $8,000 or you would take the victim’s car, and shortly thereafter you essentially forced JS to sign a Vic Roads Transfer Form in this regard, again showing the determination with which you engaged in this criminal endeavour.  Your conduct in this regard also, in my view, demonstrates a degree of planning and pre-meditation.

24At your plea hearing on 15 March 2021 the prosecution indicated that the duration of the kidnapping, when JS was essentially held captive in your vehicle, was no more than 15 minutes.  I accept that, comparatively, this is a relatively short duration.  I also accept that there are certainly more serious examples of the crime of kidnapping.  Nevertheless, due to the features which I have described I regard this as a serious and concerning example of the crime of kidnapping and certainly one that exceeds a low level example of such an offence.

25In relation to the recklessly cause injury charge, likewise, I regard it as a concerning example of the offence of recklessly causing injury, given the circumstances in which this offence took place.

Personal Circumstances

26You are now 21 years of age.  At the time of your offending you were aged 20.  You are the second oldest of seven children born to your parents' union.  You were primarily raised around the Broadmeadows and Roxburgh Park areas.  You have described a positive relationship with your family and denied any instances of abuse, violence or mistreatment in the family home.  You have, however, acknowledged that you have suffered with significant behavioural issues in your upbringing.  You have reported[2] being exposed to drug use from a young age, with two of your maternal uncles using methamphetamines heavily, and that you often witnessed them in a highly intoxicated state.

[2]Dr Mathew Barth, Psychological Assessment Report (8 March 2021)

27You apparently had significant issues with concentration and focus during your primary school years; being formally assessed at the Royal Children’s Hospital when you were in Grade 5 and apparently diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).  You apparently resisted efforts to explore viable treatment options in that regard.  You have reported that your behavioural issues intensified during your secondary school years, when you were oppositional towards teachers, aggressive and frequently truanted; resulting in multiple suspensions, associated behavioural problems and, ultimately, your expulsion from Roxburgh Park Secondary School during the latter part of Year 11.

28You then attempted a pre-apprenticeship in plumbing, working as a plumber for approximately 18 months before leaving amidst a financial dispute with your employer.

29You have reported a problematic substance abuse history.  You apparently began using alcohol and drugs heavily in the aftermath of an aunt’s death in 2015 in Iraq in distressing circumstances, as outlined in Dr Barth's report.[3]  At this time you commenced using cannabis and your use of this substance escalated rapidly.  You apparently smoked cannabis to alleviate your anxiety and concerns, and also used Xanax to alleviate your distress.  From the age of 17 you have apparently experimented with several other illicit substances including MDMA, ecstasy and cocaine.  Your use of cocaine quickly became compulsive and problematic and, similar to your cannabis use, your cocaine use became a daily habit.  You apparently used cocaine in a dysfunctional attempt to alleviate your distress regarding the deaths of several of your close relatives and also due to your lack of direction in your life.

[3]Dr Mathew Barth, Psychological Assessment Report (8 March 2021), paragraph 18

30In the context of your cocaine use your behaviour became increasingly reckless and irresponsible and you have admitted that your social networks mainly encompassed other drug users and those involved in criminal activity.  You have also supplemented your drug use with heavy binge drinking, reporting to Dr Barth that you would drink heavily twice a week and consume in excess of 16 drinks a night.

31In terms of your physical and mental health, you endured a significant episode of food poisoning during a visit to Iraq when you were approximately six years of age, warranting hospitalisation for a period of some six months in Iraq and then approximately 12 months upon your return to Australia.  You have reported a period of intense depression and resentfulness following the death of your aunt in Iraq in 2015.  You have reported several other distressing incidents during the past three years including the death of an uncle, your grandfather and your grandmother.  You have reported to Dr Barth that you have continued to experience depressed moods and feelings of grief regarding the multiple losses that you have suffered in recent years.

32Perhaps unsurprisingly, given the personal difficulties to which I have referred, you have a criminal history, albeit relatively limited.  In December 2016 you received a without conviction penalty in the Children’s Court for a dishonesty matter.  In May 2018, you received a without conviction adjourned undertaking at the Broadmeadows Magistrates' Court for dishonesty and bail offences, and of particular relevance in this matter, recklessly causing injury.  At your plea hearing I was informed by the prosecution that this offence took place in July 2017 when, in company with another, you trespassed on a property and were chased by victims to a school, where you engaged in an altercation, resulting in minor cuts to the arm of your victim.

33Finally, on 7 November 2019, a matter of weeks before your current offending, you received a without conviction undertaking with various conditions at the Broadmeadows Magistrates' Court in relation to driving offending and the offence of affray, which apparently was committed in 2017.  It is of concern that these prior court outcomes did not deter you from re-offending and, in particular, your attendance at Broadmeadows Magistrates' Court in November 2019 did not deter you from engaging in this current serious criminality only a matter of weeks later.

34You were arrested and remanded in custody in relation to this current matter on 23 December 2019.  You were then bailed on 5 February 2020, after spending some 47 days in custody. However, on 13 July 2020 you were arrested and remanded in custody in relation to alleged drug trafficking offending.  That matter is currently listed for a contested committal hearing on 26 April 2021.

Sentencing Factors

35In sentencing you, s.5(2) of the Sentencing Act 1991 requires me to take into consideration various matters. I have already referred to the relevant maximum penalties, the nature and gravity of your offences, and the impact on your victim, and your previous character.

36I turn now to a consideration of your culpability and level of responsibility for your offending.  It is clear from the report of Dr Barth that your offending occurred within the context of your problematic use of illicit substances, which involved you developing social networks centred around drug use and criminal activity.[4]  It is also clear from the report of Dr Barth that your offending occurred in the context of your growing anger with your victim due to your perception that he had not sufficiently repaid you for the loan, notwithstanding repeated requests on your part.[5]  Your sentiments to Dr Barth of course are inconsistent with the Summary of Prosecution Opening, which refers to you making a quite frankly absurd request for $8,000 interest in relation to a prior loan of $1,000.

[4]Dr Mathew Barth, Psychological Assessment Report (8 March 2021), paragraph 22

[5]Dr Mathew Barth, Psychological Assessment Report (8 March 2021), paragraph 29

37At your plea hearing your counsel confirmed that no reduction in the level of your culpability was warranted, pursuant to the well-known Verdins’[6] mental impairment principles.  Further, your counsel colourfully referred to your almost "apprentice gangster" behaviour in the lead up to the offending.  In my view, your threatening and lawless behaviour, as graphically shown in the video from inside the car, was deplorable – you were an enthusiastic and active participant in serious criminality.

[6]        R v Verdins (2007) 16 VR 269

38In all the circumstances I regard your level of culpability and degree of responsibility for your offending as high.  You were clearly a significant participant in this criminal endeavour; both in terms of the recklessly cause injury and the kidnap offending.

39I have also taken into consideration your plea of guilty in this matter.

40In terms of the timing of your plea of guilty it certainly cannot be considered a plea of guilty at the earliest opportunity.  Having been arrested on 23 December 2019, and subsequently being bailed and then remanded due to further alleged offending in July 2020, your matter resolved on 24 November 2020; the day upon which the committal hearing had been listed but prior to the calling of any evidence.

41I accept that this matter was delayed due to the COVID-19 pandemic, with the previous date for the committal hearing, 28 April 2020, being administratively adjourned in this context.

42A sentencing discount is warranted for utilitarian reasons due to your plea of guilty.  No witnesses were required to give evidence.  The court, and indeed the community, has been spared the costs and delays which would otherwise be associated with a criminal trial in this matter.  Particularly in the context of the COVID-19 environment there is an increased need to appropriately reflect the value of your plea of guilty in these circumstances.

43Particularly given the nature of the offending, credit is warranted due to your plea of guilty obviating the need for JS to give evidence and endure the trauma of cross-examination.

44I turn now to the issue of remorse.

45As indicated by your counsel,[7] your plea of guilty demonstrates a measure of remorse.  Furthermore, your comments to Dr Barth in relation to the offending:  "I’m sorry, it is not a nice thing to do.  I’m sorry for hitting him and forcing him into the car”,[8] are further reflective, in my view, of remorse.  I have also taken into consideration your letter to JS, a person known to you, which was tendered at your plea hearing (Exhibit 3), where you apologise for your offending.

[7]Mr Damian Sheales Outline of Submissions (15 March 2021), paragraph 4(f)

[8]Dr Mathew Barth, Psychological Assessment Report (8 March 2021), paragraph 30

46However, as I previously indicated, your explanation to Dr Barth in relation to the background to the offending, which is inconsistent with the Summary of Prosecution Opening, is problematic in relation to your level of insight and, indeed, remorse.

47Your counsel appropriately conceded, in these circumstances, that "remorse is limited here".  Nevertheless, a further sentencing discount is warranted, to some degree, in relation to remorse.

48Your youth remains a significant mitigatory aspect in sentencing.  You are currently 21 years of age.  You were only 20 at the time of the offending.  Whilst you have a relevant criminal history it is relatively limited, with each of your prior court appearances resulting in without conviction penalties.  You fall to be sentenced as a youthful offender.  As the authorities such as Mills[9] and Azzopardi[10] make clear, rehabilitation must remain a significant sentencing purpose in relation to the sentencing of young and youthful offenders; particularly when the offender has not previously been to jail.

[9]        R v Mills [1998] 4 VR 235

[10]        Azzopardi v The Queen [2011] VSCA 35 VR 43

49Whilst the increased gravity of offending can necessarily reduce the importance of rehabilitation for young and youthful offenders, you are to be sentenced on the basis that your rehabilitation remains an important and appropriate sentencing purpose.  Ultimately, the community will be best protected through your rehabilitation.  Your youth, in my view, is a significant factor to be considered in formulating an appropriate sentence.

50In relation to your prospects of rehabilitation your counsel conceded that your prospects are "guarded".  Previous court penalties did not, it seems, deter you from re-offending.  Indeed, notwithstanding your attendance at Broadmeadows Magistrates' Court on 7 November 2019, where you received an adjourned undertaking, you breached that undertaking just a few weeks later through the current offending, which represents a significant escalation in criminality.

51I accept that since being in custody you have used your time productively.  I have read and considered the Certificate of Achievement in relation to the 'Cannabis and Me' program which you completed whilst on remand (Exhibit 2).  You informed psychologist, Dr Barth, that whilst in custody you have been working as a kitchen hand and as a gardener.  You also indicated to Dr Barth an intention upon your release from prison to complete your training as a plumber[11].

[11]        Dr Mathew Barth, Psychological Assessment Report (8 March 2021), paragraph 16

52

I have read and considered the two character references tendered on your behalf (Exhibits 4 and 5), from Mr George Homa and from your family.  As indicated by the prosecution, there appear to be some factual inconsistencies in relation to your work history in particular.  The reference from Mr Homa, who appears to be an electrician, refers to you having worked with him before, and Mr Homa expresses the view that you aspire to be an electrician.  Mr Homa indicates that he is willing to provide you with support and possibly employment within this trade when you are released from prison.  The family character reference refers to you previously having owned and worked in a cleaning business; a matter not referred to by

Dr Barth in his lengthy and comprehensive assessment report.  Nevertheless, I accept that you are loved and supported by your family and others and, significantly, that this support will continue upon your release from prison.  These matters auger well in terms of your future rehabilitation.

53In conducting a comprehensive psychological assessment of you, Dr Barth indicated that at the time of assessment you were suffering with noteworthy anxiety-related and depressive symptoms.[12]  According to Dr Barth your symptoms are sufficiently severe to warrant the diagnosis of an adjustment disorder with mixed disturbance of emotions and conduct in relation to the multiple losses that you have experienced in recent years.

[12]Dr Mathew Barth, Psychological Assessment Report (8 March 2021), paragraph 46

54According to Dr Barth your history of substance abuse is sufficiently severe to warrant a diagnosis of stimulant use disorder and cannabis use disorder, both in the severe category.  Your history of binge drinking is sufficient for a diagnosis of alcohol use disorder at the moderate level.

55According to Dr Barth you present as an immature man who has had considerable difficulty managing personal stressors and has engaged in various acting out behaviours – mainly heavy substance abuse and aggression – in an attempt to alleviate your stress.  This has increased your propensity for engaging in impulsive and reckless behaviour as a dysfunctional coping mechanism.[13]

[13]Ibid

56According to Dr Barth, therefore, your conflict resolution skills are poor and you resort to intimidating and aggressive behaviour when you feel challenged in order to prove your worthiness.  Dr Barth refers to your maladaptive personality traits, which only narrowly fail to meet the DSM-V diagnostic criteria for a personality disorder.[14]

[14]Ibid

57According to Dr Barth you are able to display an appreciation of the noxious impact of drug and alcohol abuse on your behaviour and your life more generally, but you are still in the early phase of addressing a significant addiction and your insight into your behaviour is limited.  Dr Barth concludes, in relation to his analysis of the various risk factors present in your life, that you currently pose a moderate to high risk of engaging in further criminal behaviour without extensive treatment and support.

58Dr Barth carefully set out a number of recommendations dealing with substance abuse treatment, mental health treatment and anger management.  It is to be hoped that these recommendations are adopted by the agencies dealing with your rehabilitation in the future.

59Whilst, in all the circumstances, your rehabilitative prospects must be viewed cautiously, particularly given your youth and the family supports in place, I retain a measure of optimism that, with appropriate specialist interventions, you can be rehabilitated.

60Following your remand in custody in relation to allegations of drug trafficking in July 2020 you have been in custody in the context of the COVID-19 pandemic.  Like all prisoners, I accept that your time in custody has been made more onerous due to the pandemic.  There have been significant disruptions in relation to face to face visits, employment and therapeutic courses.  All prisoners have had to live with the increased anxiety in relation to the consequences of COVID-19 entering the custodial setting.  These are unprecedented times and I accept, particularly given your youth and psychological fragilities, that your time in custody has been particularly onerous for you.  As the authorities make clear, a mitigatory allowance is therefore warranted on sentencing.

61In formulating an appropriate sentence in your case I have considered, as one of the sentencing factors, current sentencing practices.  Clearly the serious offence of kidnapping warrants a sentence of imprisonment.  Your counsel did not submit that any exceptional circumstances existed such as to avoid the imposition of a custodial sentence in relation to the kidnapping charge.[15]  Significant sentences of imprisonment have been imposed in relation to the offence of kidnap.[16]

[15]Sentencing Act 1991 (Vic), s5(2H)(a)-(e)

[16]Hanna v The Queen [2014] VSCA 187; Young v The Queen [2015] VSCA 265; Huynh v The Queen [2020] VSCA 222

62Your counsel drew to my attention a sentencing decision from this court of His Honour Judge Parrish in DPP v Ghadami-Loran & DPP v Samimi.[17]  I have considered that decision, noting that in that case the victim was not forced into the car.  Neither offender had any criminal history and both offenders faced the risk of deportation.  I have also considered the matter referred to by the prosecution – DPP v Dyer.[18]

[17]DPP v Ghadami-Loran; DPP v Samimi [2019] VCC 1146

[18]DPP v Dyer [2017] VCC 1522

Sentencing Principles

63Any sentence I impose must manifest the denunciation by the court of your serious offending in this case.  Any sentence I impose must also deter other persons from committing such serious criminality.  Given the nature of your offending I regard this aspect of general deterrence to be an important aspect of sentencing.

64As I have indicated, given your prior criminal history and, it seems, a level of problematic insight in relation to your current offending, any sentence I impose must also specifically deter you from engaging in such conduct again.  Any sentence I impose must also seek to protect the community from you, given the nature of your offending.

65As I have previously stated, particularly given your youth, it is my view that the community ultimately will be best protected through your meaningful rehabilitation.  Any sentence I impose must appropriately reflect the need to facilitate your rehabilitation.

66In my view, your actions in engaging in the offence of recklessly causing injury to JS, whilst overall forming a broader criminal endeavour in combination with the subsequent kidnapping, represents distinct criminality.  There is a need to reflect the distinct criminality as between the two charges in any penalty I impose through a measure of cumulation, subject to the overriding principle of totality.

67Finally, I turn to a consideration of any allowance for your time in custody to date.

68You have now spent 168 days in custody in relation to this matter. Pursuant to s.18 of the Sentencing Act 1991 a declaration in this regard will be made so that this amount will be deducted from the sentence I impose. In addition to this, from 13 July 2020 until 24 November 2020 you were in custody for 135 days, having been arrested in relation to the outstanding charges relating to alleged drug trafficking. During this period your bail in relation to the kidnapping matter had not been revoked. Accordingly, this period of time in custody cannot be declared under s.18 of the Sentencing Act 1991. Your counsel submitted that this period also should be taken into consideration in sentencing you, pursuant to what is referred to as the Renzella[19] discretion.

[19]R v Renzella [1997] 2 VR 88

69Having considered that authority, together with the decision of Karpinski v The Queen[20] and the various other decisions cited therein, I am satisfied that such an allowance is warranted.  I proceed on the basis that the outcome of your pending charges is clearly unknown.  In those circumstances considerations of totality cannot be relevant, as I am not in a position to make an overall assessment of overall criminality.  It is rather a matter of ensuring that, at the first opportunity, all unallocated pre-sentence detention is taken into account in the exercise of the sentencing discretion[21].

[20]Karpinski v R (2011) 32 VR 85

[21]Karpinski v R (2011) 32 VR 85, paragraph 70

70Indeed, having considered the relevant authorities, I am satisfied that there is clearly an unambiguous obligation on me as the sentencing judge to take into account all pre-sentence detention to which s.18 of the Sentencing Act 1991 does not apply[22].  Pre-sentence detention to which s.18[23] does not apply should ordinarily be taken into account at the first opportunity, in case the offender is acquitted at a later trial or hearing or a discontinuance is entered.

[22] Ibid

[23]        Sentencing Act 1991 (Vic);

71The court in Karpinski[24] referred with approval to the prosecution argument in that case of the need for there to be a "single anchor point".  That anchor point was the date on which the appellant in that matter was sentenced:

"At that point in time the sentencing judge should have taken into account as a relevant consideration any unallocated pre-sentence detention (that is, detention to which s.18 would not apply), including detention with respect to the unrelated offending for which the charges were still pending."

[24]        Karpinski v R (2011) 32 VR 85, paragraph 69

72In my view, therefore, so long as you are prevented essentially from counting this period of 135 days twice, it is appropriate that I take this period into account in fixing both your head sentence and non-parole period.

73Whilst in Karpinski[25] it was articulated that there was no requirement to reduce the head sentence or non-parole period by the entire period of pre-sentence detention to which s.18[26] does not apply, I can see no rational basis not to do so in your case.  For the sake of clarity, I have taken into consideration the entirety of the 135 days pre-sentence detention, to which s.18[27] does not apply, in fixing the head sentence and non-parole period in this case.

[25] Ibid 73

[26]        Sentencing Act 1991 (Vic)

[27] Ibid

Sentence to be Imposed

74Mr Odisho, in relation to the two charges on the indictment you are sentenced as follows.

75On Charge 1, recklessly cause injury, you are convicted and sentenced to 12 months' imprisonment.

76On Charge 2, kidnapping, you are convicted and sentenced to 2 years and 2 months' imprisonment.  This is the base sentence.

77I order that 4 months of Charge 1 be served cumulatively upon the sentence imposed on Charge 2, making a total effective sentence of 2 years and 6 months' imprisonment.

78I turn now to the issue of a parole period.  The purpose of parole is to provide for mitigation of punishment, in favour of rehabilitation, through conditional release where appropriate.  A non-parole period is the minimum time that I determine justice requires you must serve, having regard to all of the circumstances.  Given your relative youth, and the other mitigatory factors to which I have referred, I am satisfied in your case that the sentence imposed should have a substantial parole eligibility component.  I therefore order that you serve 18 months before becoming eligible for parole.

79Pursuant to s.18(4) of the Sentencing Act 1991 I declare a period of 168 days to be reckoned as already served under the sentence. This declaration will be noted in the records of the court and this period will be administratively deducted from the sentence to be served.

80Pursuant to s.6AAA of the Sentencing Act 1991 I declare that had you not pleaded guilty I would have imposed a total effective sentence of 3 years and 6 months with a non-parole period of 2 years and 6 months.

81Finally, I will make the forfeiture order sought by the prosecution in relation to all of the items listed in the schedule to that application; that application not being opposed by you.  Yes, thanks.  Mr Sheales, firstly any ambiguities in relation to the sentencing?

82MR SHEALES:  Not at all, Your Honour.  Nothing to say, thank you.

83HIS HONOUR:  Thanks.  I think we have Ms Bergshoeff – I'm probably mispronouncing your name.  Any issues?

84MS BERGSHOEFF:  It is Bergshoeff, Your Honour.

85HIS HONOUR:  Yes.  Any issues in relation to the sentencing?

86MS BERGSHOEFF:  There's no issues.

87HIS HONOUR:  Yes, thanks.  Mr Swindon, if you can adjourn the court.  Thanks.

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