DPP v Pontikis, Bekiri and Shabanov
[2014] VCC 2166
•12 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-14-00980
CR-14-00984
CR 14-00985Indictment: E 10822346
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Naomi PONTIKIS Tomor BEKIRI Fluron SHABANOV |
---
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Plea :1st , 2nd and 3rd December 2014 | |
DATE OF SENTENCE: | 12 December 2014 | |
CASE MAY BE CITED AS: | DPP v Pontikis & Ors | |
MEDIUM NEUTRAL CITATION: | [20214] VCC 2166 | |
REASONS FOR SENTENCE
---
Catchwords: Drug trafficking (Pontikis) , Blackmail (All) , Kidnap (All). Theft (Shabanov). Uplifted summary matters (for Shabanov).
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Livitsanos | Office of Public Prosecutions |
| For the Accused | Mr Reynolds for Pontikis Mr Gullaci for Shabanov Mr Melasecca for Bekiri |
HIS HONOUR:
1. Naomi Pontikis, Tomor Bekiri and Fluron Shabanov, you have each pleaded guilty to one charge of blackmail and one charge of kidnap laid on the indictment. You, Ms Pontikis, have pleaded guilty to an additional indictment charge of trafficking in a drug of dependence, whilst you, Mr Shabanov, have pleaded guilty to a charge of theft also laid on the indictment. You, Mr Shabanov, have also pleaded guilty to two uplifted summary matters, being offences of dealing in property suspected of being proceeds of crime and possession of a controlled weapon. The kidnapping is punishable by a 25 year maximum prison term. The blackmail and the trafficking are punishable by a 15 year maximum term of imprisonment. The theft is punishable by a ten year maximum term. The proceeds of crime matter is punishable by a two year maximum term and the weapons offence carries a 12 month maximum or a fine. Only you, Mr Shabanov, have any prior criminal record and you also have some matters awaiting finalisation in the Magistrates Court. You, Ms Pontikis, also have some charges awaiting finalisation in the Magistrates’ Court. In each case, the matters awaiting finalisation are for offences committed prior to the matters for which I must pass sentence. You, Mr Shabanov, and you, Mr Bekiri, were 25 years of age at the time of the offences and you are each now 26 years old. You, Ms Pontikis, were only 20 at the time but turned 21 shortly after you were committed to this court.
Facts
2. The details of your offending are set out in Exhibit A, the written summary of prosecution opening. I was told by each of your counsel that this was an agreed factual statement. In the circumstances, I see no need to restate all of the facts in these reasons. I will incorporate exhibit A, the summary of prosecution opening, into my reasons for sentence. It will remain on the Court file and be available for inspection. Stated briefly, at around 9.00 am on 4 March this year, the three of you attended premises owned by the Brohier family in Keysborough. The Brohier’s had a son, Lance, and the claim is that the son owed you some money for a drug debt, Ms Pontikis. You knocked on the door, Ms Pontikis, and were admitted by Mr and Mrs Brohier, a couple in their 50’s. Their son, Lance, was not there. He is the person who is alleged to have owed money. When it was found that he was not there, that should have been the end of the matter. There has been much talk in the course of the plea of you, Ms Pontikis, being at the cross-roads in your life. You were at the cross-roads at that moment. You should have left. The debt had nothing to do with the man’s parents. However, once inside, you explained the existence of the debt. The debt was for $4000 but you told the parents they had to pay $6000, the extra $2000 being for the inconvenience. You, Mr Bekiri, and you, Mr Shabanov, had been outside but knocked on the door and said you were seeing how your cousin was. Mr Brohier said she was fine and shut the door. He spoke the truth. She was fine. Had your charter been merely to look after her, there was no need to do anything else. However, a short time later, you knocked again, asked again as to your cousin's welfare and then entered the house. I make plain none of you are to be sentenced as having committed an aggravated burglary. However, once inside the house, things escalated badly, as paragraph 9 makes plain. The three of you began to ask for money. The males were aggressive. No doubt this was your role. Muscle. Intimidation. Standover. Not protection. You were both saying "We want the fucking money now, we want it now, the longer we wait the more it goes up. Our bigger cousin will come around". That unlawful demand with menaces constitutes the blackmail. The Brohier’s were telling you they had no money. They were made to strip off items of jewellery as collateral. Suggestions were made by you, Mr Shabanov, of walking upstairs to search for objects and as to taking their car. You even demanded their wedding rings but did not follow through on that request. Ultimately, the three of you left, having secured the promise that they would have the money when you returned at 11.00am. You left with a variety of jewellery as collateral. You, Mr Bekiri, issued a very firm injunction against them ringing the police. This was a very nasty scene, more akin to something out of a movie than real life. Or so it must have appeared to this couple. What were they to do? Ring the police? No doubt they had a concern about their own son’s predicament, as well as their own. Each of you were behaving like gangsters. You knew that the debt, such as it was, related to Lance not his parents. You had plenty of time to think about the strong illegality of your actions. However, return you all did a few hours later. As a group. You, Mr Bekiri, told them that the debt had gone up another $1000. Mr Brohier tried to write you a cheque and ultimately a cash cheque was written. The couple were then compelled to come from their home to the bank with you all to cash the cheque. They were fearful for their position and complied. Hence began the kidnap. Ms Pontikis and you, Mr Shabanov, rode in the car that you had come in, whilst you, Mr Bekiri, rode with the Brohier’s in their car. You travelled in convoy to the bank where the Brohier’s went inside. You hovered in the immediate vicinity just outside the door, Mr Shabanov, deliberately conveying the fact of your presence. They were aware of your presence and were fearful of their position. The cheque was cashed, $6000 was received by Mr Brohier and snatched by you, Mr Bekiri. They were taken back to their home and most of their jewellery was restored. Not the necklace the subject of Charge 4, Mr Shabanov, nor the iPhone. You stole each of those items and, in fact were, wearing the necklace upon your arrest on 5 March. Mr Brohier had begged you for the return of the necklace. It was a 25th anniversary present. His plea fell on deaf ears. I accept that you, Mr Bekiri, told Mr Brohier at the house that you would try to get the chain back. The Brohier’s went to their daughter’s house. Their daughter spoke to a friend who was a policeman and the local police were notified. Upon a search of the car you were driving, Mr Shabanov, police found a hunting knife (uplifted summary matter), as well as a collection of property suspected of being stolen (uplifted summary matter). You made a 'no comment' interview, Mr Shabanov. You made a quite detailed interview, Ms Pontikis, and made a confessional statement; and you, Mr Bekiri, on 11 March, claimed little recall though admitted some involvement in the incident.
3. So much then for my summary of the summary. This was serious and nasty offending with a hard, opportunistic and exploitative edge to it. Their son may have had issues with drugs. The summary really seems to accept that there was a debt and so, in those circumstances, I act on that basis. What right did that give any of you to behave in this way to them? The answer is pretty simple and you would have known as much on the day. You were all prepared to be involved in this intimidation purely to gain money and from people who had no role in any debt being incurred.
Victim Impact
4. There were three victim impact statements filed. There was no challenge to the materials, however, I indicated there were some matters I would not have any regard to, for instance, reference to a gun or threats to kill. Now, the direct victims are Mr and Mrs Brohier. I see no need to set out chapter and verse their impact statements. There has been very significant impact upon this couple. They no longer feel safe. They haven’t since this day. They have felt the need to sell their house and to move. They are hyper-vigilant about security now. They have been left with a real sense of fear and dismay. A tarnish on their lives.
5. You were playing the role of enforcers in the drug world. Playing it very well as it is exactly what you had become on this day. Each of you. It is hardly surprising that you caused them fear and a sense of loss of security. You hoped to shock and worry them into paying up and you succeeded. The menaces were issued for a reason. To intimidate. To overbear.
6. The Brohier’s daughter, Tanya Bondin, has made a victim impact statement. The Sentencing Act definition of “victim” is not intended to be narrowly interpreted. I accept that is the position. It is common to have ‘indirect’ victims detail the impact of crimes. For instance, grieving relatives in a culpable driving or dangerous driving causing death case. Or adult family members speaking of impact of sexual crimes upon children. Of course, I say indirect victim but they are not. They are themselves victims. I wonder if it is designed to include an adult relative of the direct victims, each who are capable of describing, and who do describe amply in their own words, their own impact. I accept that the daughter, Ms Bondin, has been affected by the events on the day. She was contacted on the day by her distraught parents amidst your crimes and her parents sought refuge at her house at the end of the day and beyond. No doubt she has picked up some of the burden with her parents following their loss of sense of security. She speaks of the impact upon her parents. I have no problems with that at all. However she speaks also of impact upon her in her work and in a number of other areas and I judge it as fairer not to act on that account. Not because I doubt any aspect of it. I do not. Rather because of the increasing remoteness from the crime itself committed upon her parents. I take into account the impact of your crimes upon your victims. It is clear that this was frightening offending with a significant impact upon this family.
Submissions in mitigation
7. Ms Pontikis, your counsel, Mr Reynolds, raised a number of matters in mitigation, relying primarily upon: Your early guilty plea; Your level of co-operation with the police in the interview; The presence of remorse; Your age and lack of any criminal history - you were a youthful first offender;
8. Mr Reynolds relied upon the report of Ms Mui, a psychologist, though not as attracting any of the principles from the case of Verdins; there was a large range of other materials including references and certificates;
9. As to the offending, he argued that it was unsophisticated and with very limited planning and evolved on the day with escalation inside the house. You were pursuing a drug debt having commenced using drugs many years ago, you were owed money for the drug debt, that caused pressure upon you and the decision to act in the way that you did had to be seen in such a light;
10. He argued that the reports, certificates, references and other material, and evidence of Ms Thompson presented to the court, showed that you had already taken significant steps along the path to rehabilitation. You had re-engaged with your supportive family, had gone back to study and had been very compliant in treatment. Given your youth and lack of history, he argued that you had very strong prospects of rehabilitation that should not be interrupted.
11. He conceded the seriousness of the offending but argued that when regard was had to all the mitigatory matters, that an immediate term might be avoided in favour of a community corrections order which would serve both you and the community.
Shabanov
12. Mr Shabanov, your counsel, Mr Gullaci, relied upon many of the same matters including your early guilty plea, the existence of some measure of remorse and the steps you had taken along the road to rehabilitation. He conceded that the steps were clearly more limited than those taken by your two co-accused and that a further disparity was the fact of your having a criminal history and being both on bail and a suspended sentence at the time of the offending. He obviously had to concede that you were a good deal older than Ms Pontikis. Still, he argued that you had reasonable prospects of rehabilitation given the presence of family support, a stable girlfriend and a work history that was quite encouraging. You were still relatively young. The offending was in stark contrast to matters in your criminal history. He also made submissions as to the offending adopting the suggestions made by Mr Reynolds of lack of sophistication, limited planning and unplanned escalation. However, Mr Gullaci conceded there was an intended aspect of providing “muscle”, as he put it. You had no interest in the debt but were being asked by Ms Pontikis to help to recover it. You were not going for a “cup of tea” as he put it. You thought there might be some benefit for you. Mr Gullaci accepted that the offending was serious and that in your case, given your age and criminal record, that an immediate term extending beyond your pre sentence detention was inevitable. That could be achieved either by a term in conjunction with a community corrections order or, alternatively, a term with a lengthy parole period fostering your rehabilitation.
Bekiri
13. Mr Bekiri, your counsel, Mr Melasecca, also relied upon many of the same matters including your early guilty plea and the presence of remorse. He relied upon your relative youth and the absence of any criminal history. He relied upon evidence and documentary material placed before the Court speaking of your response since the offending. Your travels along a rehabilitative path. Efforts to deal with your drug addiction, including attendance upon Mr Lamberti, then upon Odyssey House as an inpatient. He relied upon the evidence of witnesses including your wife, father and aunt and two witnesses from Odyssey House. He argued that imprisonment for you would have an increased burden given that you know that your wife will be left alone with a small child and her study commitments. He adopted the submissions as to lack of sophistication, planning and the fact of escalation occurring once inside the house. He took me to a number of factual matters, arguing that you were a placating force. To considerations of the wrongfulness of Lance Brohier’s conduct. These, if I might say so, were quite unwise and potentially unhelpful submissions. Your position is not advanced by any close reading of the statements. I return, though, to the agreed statement as it is agreed. You were like the other two, standing over the Brohier’s, Mr and Mrs Brohier. Lance Brohier’s conduct is not what I have to examine. Whatever it was, it in no way could justify your criminal conduct. He had done nothing to you. It is pure speculation to consider his role beyond the existence of a debt. Whether he was just a user or dabbling in or trafficking, I don’t care, he is not before me. There is nothing too placating about shaking hands whilst at the same time announcing that you will be back and issuing a very direct warning about the Brohier’s going to the police. You, like Mr Shabanov, were engaged in the house as muscle. Ultimately, Mr Melasecca argued that you could be dealt with by way of a community corrections order .
Crown submissions
14. Mr Livitsanos, who appeared to prosecute on behalf of the Director of Public Prosecutions, submitted that this was serious offending. Well there was never any doubt on that score, it was readily conceded by each of your counsel. He took issue with the existence of remorse, citing the lack of apology and lack of effort to repay the amount outstanding, though retracted that submission at least in relation to you, Ms Pontikis, given the letter of apology tendered as the final act on the plea. He raised a number of concerns as to the level of minimisation engaged in on the plea by your counsel, especially counsel for Mr Bekiri, and challenged the suggestion of your placating the victims, Mr Bekiri. He accepted that the offending was relatively unsophisticated but argued that there clearly was some level of planning given the phone contact chart marked as exhibit 36 in the depositions. There may not have been much of a plan but there was a plan and it was to recover the debt. If it required intimidation, so be it. There were differing roles but a joint liability and the two males were acting as no more or less than standover men. He accepted that there had been varying efforts at rehabilitation and conceded the mitigatory effect of youth, especially for you, Ms Pontikis. He accepted that the benchmark for conduct leading to incarceration of a youthful first offender such as you, Ms Pontikis, must be a high one indeed, but was achieved here. He argued that you had leapt drastically from no offending to very serious offending and such conduct required your immediate imprisonment. That submission made on behalf of the Director as to the need for an immediate prison term was voiced in relation to each of you. There was a need for general deterrence, specific deterrence and punishment. This conduct originated in the house of these vulnerable victims and was serious indeed, he argued.
Background
15. I suppose in each case I could now recite back to you the details of what I have been told of your own backgrounds. These reasons are going to be quite long enough without such an approach. I do not believe there is any particular need to now restate each one of your personal backgrounds. They were placed before me by way of oral and written submission, as well as being contained in a variety of documents tendered on the plea in your case, Ms Pontikis, and your case, Mr Bekiri. I have no reason not to act on the family background materials placed before me. You are now 21 years old, Ms Pontikis. You are now years old 26 years old, Mr Shabanov, and so too are you, Mr Bekiri. There is very little, if anything, in any of your family or personal backgrounds which explains the offending. The offending is more connected to your being involved in drug use, Mr Shabanov and Mr Bekiri, or use and trafficking in your case, Ms Pontikis. It is speculative indeed to wade through the family backgrounds trying to work out why you have individually turned to drugs. That you have is clear enough to me. Drug use was not relied upon in a mitigatory sense. It is clear that you suffered a large blow in your life, Mr Bekiri, when you had a very close friend, your girlfriend Lana, commit suicide a few years ago. That changed you significantly. In your case, Ms Pontikis, you have been using drugs for very many years, right back to your early teens, and it is hard to fathom your descent into that lifestyle. Your parents were occupied to a degree with a sick relative and the running of a community-style cafe/ministry which may have exposed you to a dark side of life and had them spend perhaps less time with you than may have been wise. But really, it is highly speculative as to why any of you started using drugs. What I am satisfied about, having seen a large contingent in court for each of you, is that you are instantly in a far superior position than many who appear before me with not a soul to support them. I was impressed by the evidence of your family members and Mr Gani, Mr Bekiri. I was very impressed by the character material placed before me in relation to you, Ms Pontikis, and the attitude of your family to the offending. Ms Pontikis, the fact of a very large and proud contingent attending your graduation at the drug residential program at Tandana says a lot to me, as does your emotional response to that event. You all come from good families, that is encouraging. However you had those good families as you descended into drug use and as you committed these crimes. In your case, Mr Shabanov, though your counsel described you as having a relatively lengthy criminal record, it is far from the worst history coming before the Courts. I accept that you also come from a supportive family. You have a long term girlfriend and neither she nor her family have been in trouble with the law. So the existence of family support in each case is very encouraging.
16. Each one of you was using drugs at the time of the events. You were each addicted to drugs of dependence. I suppose it might be said you have each freely made the decision to use drugs. Knowing what I know of you and your backgrounds, I seriously doubt that you ever would have contemplated this style of crime, absent drugs in your life. Your letter of apology speaks quite eloquently to me in that area, Ms Pontikis. I am confident that young people who ‘freely’ experiment with drugs have little sense of where that decision might take them.
Drug use
17. There is nothing in any of the materials placed before me, in any of your individual cases, which is relied upon as, in any way, attracting any of the principles from the case of Verdins.
18. I have no difficulty at all in accepting that each one of you was addicted to a drug of dependence (‘Ice’) at around the time of this offending.
19. Your drug addiction cannot be a major mitigatory matter here. It was not relied upon as such nor could it be. It provides a context and goes not much further than that. I certainly do not ignore it. I get the sense that without drug addiction in your case, Mr Bekiri and Mr Shabanov, without addiction and a drug debt connected to your trafficking, Ms Pontikis, that you would each be unlikely to descend into this sort of crime. Though you have prior criminal appearances, Mr Shabanov, they bear no similarity to this offending, there is no history of violent offending. So these conclusions do factor into the judgments that I make in each case as to your rehabilitative prospects. Successfully treat the underlying cause and I think you are unlikely to re-offend in this way again. Obviously then, the extent of the steps taken since the crime in this direction are highly relevant to my ultimate conclusions as well. There are differences between the three of you in your response to treatment and counselling which I will turn to shortly. There are, of course, many other differences in your personal circumstances.
Criminal history
20. You have no criminal history alleged against you, Mr Bekiri and Ms Pontikis, and that is obviously highly relevant to my task and I take it into account. Ms Pontikis, you have a pending matter awaiting finalisation in the Magistrates Court relating to trafficking in Xanax, methamphetamine and some other charges, conduct predating this offending. Your counsel took me to those matters. In your case, Mr Shabanov, you have a prior criminal record. You were on a suspended sentence at the time you committed these offences, that is a matter of aggravation. You were also on bail for some previously committed dishonesty offences and a drug offence committed in December 2013 and which are awaiting finalisation in the Magistrates’ Court. You also have a criminal history. Well you are, in this way, in a different position. The history has no matters of violence but still there are a number of appearances before the Courts for a range of offending including dishonesty, drug, weapons and driving offences. You have committed burglaries, thefts and other dishonesty offending in the past. You have failed to comply with Court orders including a Community Based Order. You have breached, in the past, a suspended sentence and stand to be breached for the most recent one imposed in April 2012. You have served an actual term of imprisonment of two months in April 2012, following the suspended sentence restoration and a partially suspended term being imposed. You were liberated with three months' imprisonment suspended over your head and were on bail as well, but neither of those matters impeded your commission of these crimes. However, there is nothing in that history that speaks to me of your being beyond rehabilitation. You are also still quite young.
Guilty plea
21. In each case your plea of guilty must have a strong utilitarian value. It was entered at the very earliest opportunity, and you will each be given the appropriate discounts for that earliest of guilty pleas. Witnesses have been spared the experience of coming to court. The community has been spared the time, cost and effort of a contested hearing in this Court or in the Magistrates’ Court. It can be a worrying thing for a witness to be cross-examined or to face that prospect. Your victims, the Brohier’s, have been spared that worry. You, Ms Pontikis, co-operated with the police, making relatively full admissions. You made some admissions, Mr Bekiri. So in each case you have facilitated the course of justice. I will pass a substantially lesser penalty because of your guilty plea and the stage it was entered. In each case I take into account the extent of co-operation.
Remorse
22. In each case, your counsel relied upon the existence of remorse. The prosecutor, in each case, challenged that submission given the seeming lack of any apology or attempt to repay the Brohier’s and the minimisation engaged in by your counsel, Mr Bekiri. He changed his stance in relation to you, Ms Pontikis, once the letter of apology came to light. Even before that fact, I had reached a provisional view that each one of you likely harboured some remorse for these crimes. The support for such a finding was scattered through the materials in your case, Ms Pontikis and Mr Bekiri, including in personal references and the evidence of witnesses placed before me. That is not to say that shame for your families' predicament - for the shame brought upon your family - equates with remorse, it doesn’t. The materials are probably most equivocal in your case, Mr Shabanov, but I still have your early guilty plea and, if I might say so, a refreshingly old-fashioned plea in mitigation conducted by your counsel, which was very direct in accepting your responsibility for the serious crimes. I would expect no less from Mr Gullaci. He dealt realistically with your reasons for attendance. He did not 'sugar coat' your role at all or engage in any process of minimisation. Mr Gullaci and, hence, you, Mr Shabanov, squarely faced up to the crime. Mr Melasecca’s plea and written submissions had an air of minimisation in some areas, Mr Bekiri. There was a pretty extraordinary reference in the written outline to the failure of the Brohier’s in their victim impact statements to have attributed any blame to their son who was “primarily responsible for much of their problem” . Now Mr Melasecca retracted that filed submission. But there were others he persisted in which were problematic. Counsel have differing approaches but the simplicity and economy of Mr Gullaci’s plea should not deceive you, Mr Shabanov. it was very effective and suggested to me the existence of remorse, whereas there were aspects of Mr Melasecca’s approach which suggested otherwise, when, in fact, I am sure you do have a level of remorse, Mr Bekiri. So I certainly do not hold your counsel’s submissions against you. The matter is made plainer still for you, Ms Pontikis, in the letter of apology which was tendered. It was not going to see the light of day, I am glad it did. It is a highly valuable document for the sentiments it expresses and for the insight that it demonstrates.
23. I do not accept the prosecutors’ submissions as to the absence of remorse. True it is, not every guilty plea is indicative of remorse. Some are, some are not. I accept that you all have, in varying degrees, remorse for these crimes. Certainly, none of you is revelling in the crimes. I have no doubt at all that you are all actually remorseful.
24. I am sure you are all sorry for your own predicament as well and that in your case, Mr Bekiri, the shame brought upon your family is very heavily mixed in with your regret for the position of the Brohier’s, maybe even overshadowing it. I sense you are each actually sorry for what you have done to these two victims and I take that into account. You, Ms Pontikis, have demonstrated true and genuine remorse in your letter of apology in a manner which would be of real value to your victims. I accept that you have a sense of empathy for them, as to what you have put them through. You express your regret to them in the manner in which you have departed from your family values acting in the way that you did. You don’t seek to excuse your conduct. You speak of harm to your family and others and the process of regaining trust and support from your family. Your letter would, I am sure produce in many, a better sense of the complexities of the descent into criminal conduct, well beyond the one dimensional portrayal of criminal offending and offenders so often offered on talk-back radio or the tabloid media. It is a most thoughtful and insightful letter. So, in each case, I take into account the presence of remorse, though, as in every aspect of the case, it varies as between you.
Custodial burden
25. Sending a person to prison almost always has some reverberations. It is sadder still when it has none. A court cannot take into account the impact upon others except in the rarest of circumstances and it is conceded that this exceptional level is not reached, Mr Bekiri. That is not the end of the matter though. I am prepared to accept that your time in prison will be difficult, Mr Bekiri, in that you will be going there for the first time and in a setting where you will leave the day to day care of your young child in the hands of your young wife, who is also studying. True it is you committed these serious crimes despite having responsibilities to your wife and young son. Happily, she has plenty of support on hand, as I was told of the family compound with a variety of relatives able to assist her. You will, however, be physically absent from your young child and your wife. You will be worried by the impact upon her and that will not be easy for you. I accept that you will find prison more difficult than a prisoner without those considerations but it is not a large matter in mitigation. In fact, I am sure in each case, prison will be a most unhappy experience.
Rehabilitation
26. I turn now to submissions made as to your rehabilitation. Again, I have to be sensible in the way I spell these things out. If I endeavoured to address in these reasons every document, every witness and every submission, my reasons would resemble "War and Peace". They are long enough as is. You must trust me when I tell you that on a number of occasions since the plea, including late into the night last night, I have reviewed every note I made on the plea and have read all of the documentary material placed before me. I have reviewed my notes of the evidence given by each of the witnesses and re-read all of the submissions made on your behalf. I have also read the cases to which I was referred.
27. So then, I set out in a broad sense my conclusions in each case without necessarily footnoting or cross referencing to every aspect of the evidentiary materials or even mentioning every exhibit placed before me.
Pontikis
28. Firstly you, Ms Pontikis. You were initially ambivalent as to treatment and made a tentative and faltering start. Your initial assessment at Tandana adolescent rehabilitation was unsuccessful as your heart was not in it. An initial attempt at detoxification was unsuccessful. If it had been left there, your efforts would have amounted to virtually nothing. However you re-committed. You were challenged by Ms Thomson to do it properly or not at all. You successfully detoxified at a seven day SEADS residential program and then went into Tandana Place towards the end of May. Ms Thomson gave evidence before me and is also the author of a report marked as exhibit NP3. Tandana Place is a small residential program specialising in adolescent rehabilitation. It has a maximum of four residents and caters to people aged 12 to 20. Ms Thomson documented your progress in the 84 days you spent before graduation. Once in the program, the three times weekly drug screens were all negative. Once you were there and realised the extent of your problem, you let down your guard and fully engaged with the program. It was not easy. You were the only girl there and there were challenges. Ms Thomson said that you did incredibly well in the program. This is supported by Ling Mui, a psychologist who saw you nine times. Ms Thomson told me that you had transformed from the girl in denial sitting swearing in the corner at the first assessment, to a bubbly, bright, happy, intelligent and engaging young woman. You graduated in an emotional ceremony attended by very many relatives. Your good progress has continued since your departure, as the report of Fiona Lian (exhibit NP5) and Dr Mau attests. You maintain contact with Ms Thomson. You have re-engaged with your family. You have completed a methamphetamine education program and have also completed a certificate of adolescent counselling at Monash University. You wish to do some form of youth work. Since your exit from the program, you seem not to have put a foot wrong, though I would doubt the wisdom of ceasing the Narcotics Anonymous meetings. There are some very strong and insightful references from your current boyfriend, Ben Capuano, and his father, Rod Capuano, an ex-policeman. Also from Ms Komninoglou, Ms Grapsas and your aunt, Ms Triantafillou. There is also your letter of apology, an insightful document indeed. So, you have made very significant, if not remarkable, changes in your life.
29. About the only aspect I do not accept is the suggestion in the report of the psychologist that you failed to understand that your behaviour was inappropriate and illegal outside of the drug culture. I do not accept that for one moment, you knew.
30. In your case, I believe you have excellent prospects of rehabilitation. You have done much already to return to the land of the living. Rebuilding relationships with family and friends and re-integrating back into the community proper, not the warped and warping drug subculture that you lived within at the time of this offending. Much has already been achieved but you are still a work in progress. As strong as the gains are, we are only in December and your conduct occurred in March. Your buckling down to the task started really only in May. If you maintain your approach, there is no reason at all why you cannot be a highly valuable member of the community, one, perhaps looking back at this offending in the years ahead, as an extraordinary aberration in your life. If only your offending was not so serious, but it is.
Shabanov
31. Mr Shabanov, your counsel conceded the qualitative differences in the plea material available in your case. Simply, you have not done nearly as much as either of your two co-accused. Still, you have taken at least some steps. You had spent 49 days on remand prior to being released on bail. You were accepted into treatment in April 2014 and attended seven sessions of counselling between April and early August 2014 (See exhibit FS 4). You were then referred off to a second raft of treatment but it was due to start the week following the plea. You have committed no further offences since your release on bail. You obtained a full time job tiling, this being an occupation you had done for many years in the past. You were living with your parents until my remand of you and were supported at Court by your family and your long-term girlfriend, who has no criminal history. You have the criminal history I have spoken of and it includes instances of your breaching Court orders. These crimes, for which I must pass sentence, occurred whilst you were on a suspended sentence as well as on bail for the earlier committed offences which now await finalisation in the Magistrates’ Court. Your counsel argues that I should find you have reasonable prospects of rehabilitation. Well, I can only be quite guarded in your case but you are still relatively young. Your criminal history is not disastrous and I am prepared to accept your counsel’s submission. If you abstain from the use of drugs, I am prepared to find that your prospects are reasonable. If you do not abstain, well, quite simply, your prospects will plummet. They will be poor indeed. Now, your girlfriend may be a very tolerant individual. I don’t know. I am certainly no clairvoyant, but the thought of a future life with an ice using addict may not be that attractive to her. Life with you off the drugs may be an altogether different proposition. The point I make is that your life will be pretty miserable if you do not successfully address your drug use. You have taken some small steps in the right direction. If you do not address your drug issues in a meaningful manner, you will resemble the man depicted in the photograph marked as exhibit FS 5. A photograph tendered by Mr Gullaci to demonstrate the change in your physical appearance since that photograph of you was taken on the day of your arrest in March. A photograph where you look a decade, if not two decades, older than you were. You will shape your own future. Address the drug use and you may yet have a normal and decent life ahead of you. I hope you do but you will have to decide.
Bekiri
32. In your case, Mr Bekiri, you took some real and positive steps to address your drug issues. You have never been in trouble before and you have a range of family support. So, strong support from your family, as well as from the Albanian community as attested to by Mr Gani, who gave evidence before me. You come from a decent hardworking family who live in a family compound. The extended family live across the two houses on the double block. You have always worked and did much work on the family flower farm between jobs. You are a good soccer player. You were married very young to Floriye who gave evidence before me. She is doing a Bachelor of Business Information Systems. You have a two year old child. Now I have spoken already of the impact upon you of the death of your old girlfriend, Lana. You seemingly have bottled that up and shut out your friends and family. Your father, Mal, approached neighbours, being the Bensons, in February 2014 asking for help in relation to your drug use. That was before the commission of the crimes. You failed to keep an appointment with the doctor they recommended and the rest is history. You committed these crimes. A later appointment was made and you kept that appointment and from that point, positive steps have been taken. The Bensons speak of your transformation since. You attended upon Joseph Lamberti from about 12 March and maintained a drug-free status. There is a report from Mr Lamberti marked as exhibit TB 3. Mr Lamberti stated that you did very well under his care but recommended in-patient treatment at Odyssey. You committed to that course and were interviewed in early June. Because of the nature of the charges involving, as they did, violence, there was some initial reluctance expressed by Odyssey House. That was overcome and you were accepted as suitable in early August. Unfortunately, no place was available until 29 September when you entered Odyssey House. Mr Lamberti assessed you as someone truly committed to rehabilitation. You entered Odyssey House on 29 September and remained there until I remanded you in custody on 3 December 2014. There is a letter from Amanda Brown, who also gave evidence before me. Mr Eric Allen from Odyssey House also gave evidence. You settled into the community well. Really, I regard it as unnecessary to descend to all that is in the report of Ms Brown or her evidence or the evidence of Mr Allen. You have given no cause for concern. You have done well at Odyssey. You have worked hard, both physically and in your rehabilitation. You have remained drug-free and have demonstrated real motivation to change your life. You have been enthusiastic and have engaged in counselling. You have progressed to the first level. It has not been easy as you have been separated from your wife and child. I was told that ideally you needed to remain there for a further 12 to 18 months. That you had progressed well but there was still a long way to go. That you showed a real potential for change and were within a window of opportunity for change. In your case, my rating of your prospects of rehabilitation falls somewhere below the position I have announced in relation to Ms Pontikis, but above the level expressed in relation to Mr Shabanov, who has done far less than you to address his issues and who has a criminal history. So I have the excellent progress and prospects of Ms Pontikis and the lesser efforts and prospects of Mr Shabanov. You fall somewhere in the middle, but closer to Ms Pontikis than to Mr Shabanov. I think you have done a lot to address your issues. You are still very much a 'work in progress' and are a good deal older than Ms Pontikis. You have taken some positive steps, you have family support, I think you have quite good prospects of rehabilitation subject obviously to one rider; that you successfully address your drug use whilst in custody and upon your release from prison. If not, well a life of misery awaits you.
Youth
33.
I have mentioned already the issue of youth or relative youthfulness and turn to the issue of youth which is a matter of great importance in your case, Ms Pontikis, but still of some importance in your case, Mr Bekiri and Mr Shabanov. You are both still quite young men. Ms Pontikis is a good deal younger than you both. Her youth is highly relevant to my task. With youth comes hope for change. Ms Pontikis is a youthful first offender and that must lead to a greater focus being placed on rehabilitation and, accordingly, some lessening of the weight to be placed on other sentencing purposes. Rehabilitation is usually far more important than general deterrence. The community must have a strong vested interest in her reclamation or rehabilitation. It is notorious that young people are more prone to act without regard to consequences. They can lack the degree of self-control, judgment and insight possessed by adults. Young people using drugs will not appreciate the sinister purchase that such an addiction may ultimately achieve in the user’s life. Ms Pontikis speaks of her abandonment of her normal values, submerged as they were below the destructive lifestyle she was leading. She had taken leave of her normal decent values that had been instilled in her by her family, values that are spoken of in the references and in her letter of apology. They still reside within, I am confident of that. Young people are more amenable to change for the better. They can be reclaimed. The courts hope they can be reclaimed and rehabilitated. So, too, does the community. The rehabilitation of young offenders is one of the great objectives of the criminal law. There is a strong focus on rehabilitation. There is very naturally a strong interest in the reclamation of young offenders, especially first offenders. The community surely has a strong interest in that successful outcome. So in each case I pay regard to these principles, dealing with the sentencing of youthful offenders, referred to in cases such as Misoka, Mills and Azzopardi. The principles are brought very sharply into focus in the case of
Ms Pontikis, who is a good deal younger than her two co-accused, but they are still undoubtedly relevant considerations in the case of you, Mr Bekiri, and, to a lesser extent, you, Mr Shabanov. It is here that consideration of rehabilitative steps to date is also a strong consideration and, again in her case, I am most impressed with her steps to date. That is not to disregard your strong efforts, Mr Bekiri, or even your more minimal efforts, Mr Shabanov.
34. It is also notorious that the potential rehabilitation of a young offender may not be served by the corrupting influences that abound in adult prisons. Courts understand that adult prison is more likely to impair rather than improve rehabilitative prospects. Clearly, if prison can be avoided it must be and the benchmark for conduct deserving of sending a young first offender to prison is high indeed. Even where reached, matters of youth will have a real role in shaping a reduction of the weight to be placed on general deterrence. However, it is clear that sometimes the conduct of a youthful offender, even a youthful first offender, leaves the Court with no choice. The principles dealing with the importance of youth are not automatically applied in the same way in every case where there is a youthful offender. There is always a need to consider youth, but the extent to which it reduces the weight given to other purposes of sentencing will depend on the nature of the crime and the age and antecedence of the offender. Sometimes it will surrender some ground to other purposes of sentencing. Where that is the position, the weight to be attached to youth will be correspondingly reduced. On the second day of the plea, the Court of Appeal delivered a judgment reaffirming these various matters (See Russell [2014] VSCA 308). I have most anxiously considered these principles during and since the plea. I was anxious in taking the steps I took in remanding you, Mr Bekiri, but felt then, and indeed since, that I was left with no option in your case but to impose a prison term.
35. Your counsel conceded the inevitability of such a course, Mr Shabanov. That is not to say your relative youth is unimportant. Of course it isn’t, but you also have a relevant history and some record of disobedience to Court orders. So it is a less prominent consideration than, for instance, in the case of Mr Bekiri. As to you, Ms Pontikis, I have wrestled with the matter since last I saw you. I experienced a level of anxiety upon contemplating taking the step of revoking your bail, given your age and the very many positive materials placed before me. I wanted to review all of the material again and called for a report as to your suitability for a community corrections order, which, predictably, says you are suitable for such an order (Exhibit NP10). I made plain to you and to your counsel that this call for such a report should not buoy you up with any confidence. I made plain that I was still contemplating an immediate term of imprisonment. I have most anxiously considered your youth and your rehabilitative prospects and the potential for any sentence to retard or derail your progress.
36. I never lose sight of your youth, Ms Pontikis, or these principles. Nor do I lose sight of your relative youth, Mr Bekiri and Mr Shabanov and though you are older, the principles still have some application but necessarily a lesser one in my judgment than in the case of Ms Pontikis. They have less application in your case, Mr Shabanov, than they do in relation to Mr Bekiri.
Current Sentencing Practice
37. I have to take into account current sentencing practices. I do. I have looked at the most recent Sentencing Advisory Council snapshot for trafficking. There are no Sentencing snapshots for kidnapping or blackmail. I also have had regard to the Judicial College of Victoria Sentencing Manual Case Collections dealing with trafficking, kidnap and blackmail. It is of no value at all looking at theft cases or a sentencing snapshot for theft offences dealt with in the higher Courts, given the nature of this theft. I have looked at the cases to which I was referred, including those referred to in Mr Reynold’s outline. They were very different factual settings. Different crimes, different backgrounds. The closest in terms of a drug debt and quantum was the case of Cini but it is very different with actual violence, if not torture, being employed over a sizeable period in that case. In the end, the cases do not assist me much, if at all. Nor the Sentencing Snapshot. Every case is different, so, too, every offender. I must, in each of your cases, pass an appropriate sentence given all the matters before me.
Parity
38. This was a joint crime committed in the house and beyond by the three of you. You had different roles. The debt was owed to you, Ms Pontikis, and, in that sense, you are fundamental to the whole unfolding event. But you, Mr Shabanov, and you, Mr Bekiri, attended because of the debt and you certainly were not protecting Ms Pontikis in the house. Once inside, you two, the two males, took a lead role. It is clear enough that the role you were providing in the house was a level of intimidation and muscle, if needed. Now there was no physical violence. All of what occurred took place in Ms Pontikis’ presence and in relation to the debt owed to her. This was a joint crime. You acted as a group, and a nasty group at that. Ms Pontikis, you may have done and said less than your two co-accused, but it was your debt and the two males were there by arrangement to assist you. You are each liable for the conduct of the other and it is not greatly productive breaking down the roles.
39. I want you to understand then, how it might be that differing sentences are passed upon three members acting as a team. There is a concept referred to by lawyers as parity of sentence. In the broadest sense, and this is very much a gross simplification, parity speaks of the notion that like offenders will be dealt with in a like manner. Ordinarily, if there are no points of distinction between the actual offenders or their role or their background, then identical or, at least, very similar dispositions should be imposed. I repeat this is a gross simplification of the principle. It is a principle which makes good sense and which strives to avoid any justifiable sense of grievance as between like offenders. It is not my job to prevent any unjustified grievance. I can’t stop someone from having unjustified feelings. I can try to explain disparities of sentence. I have said more than once in the past that the principle of parity is very easy to state in the hypothetical but is often a much more difficult principle to grapple with in the real world. That is because, of course, there is almost never such a thing as a like offender or like backgrounds. There are far more commonly differences in the individual features of offenders or in their role or as often both. There are differences in the acts of the three players here. Ms Pontikis, the debt owed to you is the starting point for all that occurs. On the one hand, it explains by way of context - not excuse - why you are present, why you were acting as you were. On the other, it makes plain that without the debt, Mr Shabanov and Mr Bekiri would not be attending. You, Ms Pontikis had a strong interest or stake in recovering the money owed. Neither you, Mr Shabanov, or you, Mr Bekiri, had any direct interest in the debt. However it is inescapable that you were acting with some hope of financial reward or reward in kind. You were not going there for a cup of tea. You were going there to be available if needed. Once inside the house, the summary makes clear that the two males took more of a lead role in the aggression.
40. There are also many personal differences. Mr Shabanov ,your counsel correctly conceded the existence of much more limited mitigatory material to rely upon. He conceded the disparities that existed. As between you and Mr Bekiri, you have a criminal record and committed the offences whilst on a suspended sentence and on bail. He has none of those things. He has more material as to his progress since and his motivation for change.
41. As between you, Mr Bekiri, and Ms Pontikis, there is the obvious and important difference of age. It is of great importance. She was 20 years of age. you were 25. I believe her prospects of rehabilitation are stronger than yours and must receive a greater focus given her youth.
Sentencing considerations
42. I have taken into account all of the submissions made by your counsel and all of the exhibits that have been tendered before me. Sentencing is never an easy task. Those who say it is have never done it or have long since ceased doing it. Then there are those who do it - judges, doing their level best to give appropriate weight to a variety of purposes of sentencing, endeavouring to do justice in the given case. There are very many matters which must be taken into account by the court. I must take into account the maximum penalty, here it is 25 years for the kidnapping, 15 years for the trafficking and the blackmail and ten years for the theft. I must pay regard to current sentencing practices. I must take into account the impact of your crimes. There are a host of other matters that the court must have regard to including the nature and gravity of the offence. I must pay regard in each case to your prospects of rehabilitation. To the conditions within which your rehabilitation may be facilitated. That is not the only purpose of sentencing. If it was, sentencing would be quite simple. There are many other sentencing purposes which have a role to play.
43. Punishment is one such purpose. You must be punished for these crimes, justly and proportionately; you all know that. This court must also denounce your conduct; I do denounce it. As to the kidnap and blackmail, this was serious and frightening conduct committed upon two totally innocent people. They were within their own home when the crime commenced. As to trafficking in drugs, Ms Pontikis, the community is heartily sick of drugs, drug traffickers and crimes committed because of drugs. Drugs are a blight on our community. You were selling drugs, Ms Pontikis.
44. I must also consider the protection of the community from the three of you. I do not place much weight on that purpose for any of you, given your youth or relative youth, your remorse and the various conclusions I have reached as to rehabilitation.
45. I must also pay regard to the principle of specific deterrence: that is the need to deter you. You must be deterred from ever committing such crimes as these again. I significantly reduce the weight to be given to that purpose in relation to you, Ms Pontikis, and reduce it in relation to you, Mr Bekiri, as I am fairly confident that in each case, your deterrence will, to a degree, have been achieved by the course of your arrest and being charged and then your progress through the criminal justice system for the first time, as well as the sentences I will shortly pronounce. Still, it has some relevance. It has more prominence in your case, Mr Shabanov, given the history that you have and the fact of your being on a suspended sentence and on bail. It is disturbing that you have committed these offences whilst on Court orders.
46. The principle of general deterrence is also usually a significant sentencing purpose for crimes such as the trafficking laid against you alone, Ms Pontikis, as well as the blackmail and kidnapping laid against you all. That is, the need for the courts to deter others who might be considering committing these type of serious offences. Drug use is not uncommon. It follows that the purchasing of drugs is not uncommon and it is not that unusual for debts to be incurred. Unlawful debts that cannot be chased down in a Court. Self-help is always a potential solution but must be strongly discouraged by the Courts. The remedy of pressure or force being employed in the recovery of the debt. The message must be sent from these courts to those in the community, that this style of offending will not be tolerated by the courts. The weight to be given to this purpose is moderated in your case, Ms Pontikis, given your age and lack of history and response since. It is moderated, but to a lesser extent in your case, Mr Bekiri. In each case and, in your case Mr Shabanov, it is still a relevant consideration.
Offence gravity
47. I must pay regard to the nature and the gravity of the offences before the court. The drug trafficking is what it is. A relatively low-level between dates trafficking by you, Ms Pontikis, of a relatively low quantity of a drug of dependence in the setting of your own drug use. As to the blackmail and kidnap offences, they were certainly not intricately planned offences. I certainly don’t find against you that you have gone to that house with an understanding of exactly what would pan out. You could not have known, but you were going there together and meant business. The son may have been there, the debt settled. However, that is not what happened. Unmistakably though, you were there to do what was necessary to get the money. Once inside the house, it was a fluid and evolving crime. You had the weight of numbers and, very swiftly, a menacing and nasty approach was adopted. There was opportunism in your setting a $2000 increase, Ms Pontikis. The kidnap was more to secure the funds with a not unnatural distrust of a cheque and a reticence to receive a cheque payable to your true name. I note that you, Mr Bekiri, started to spell out your name which says much as your naiveté. However, you each knew that what you were doing was seriously wrong and unlawful and you each had the chance to rethink your involvement. You all chose to come back two hours after the blackmail. $6000 cash was received from people who owed you not one cent and in relation to a debt said to be $4000. Now at least neither crime descended to actual physical violence. The blackmail was not a long on-going event. The kidnap was not lengthy and was to secure the payment and was not accompanied by your victim’s being tied or abused or in any way assaulted. No weapons were employed at either stage.
48. It is impossible to accept your account of not receiving any money, Ms Pontikis. I cannot work out who got precisely what, but I act on the basis that each one of you obtained some of the cash. I am satisfied of that beyond reasonable doubt. It is relatively unimportant anyway and, despite my level of satisfaction, it would in no way impact upon the actual sentence, given the setting and the nature of the crime. As to your theft, Mr Shabanov, it was opportunistic indeed. As a group, you had all taken items as collateral, then received the cash, then you failed to return property, that is the necklace and the iPhone. You stole them, Mr Shabanov, and the necklace was retained in the face of the plea of Mr Brohier, even after he had given the $6000 cash. Pretty nasty stuff when you think about it. Dishonesty even after he had been menaced in the blackmail, then kidnapped and had complied with the group’s unlawful demand to give $6000. The summary offences are clearly less serious.
49. So the offences, and I am speaking now of the blackmail and the kidnapping and the theft for you, Mr Shabanov, they were not intricately planned. The kidnapping was not entirely spontaneous. The kidnap was thought through. The Brohier’s were taken for a reason. The blackmail unfolded quite fluidly but the three of you had met up. You had gone to the house together for a reason. There had been phone contact, much phone contact between your phone, Ms Pontikis, and Mr Shabanov. You may not have developed together in advance any real idea as to how the day would play out, but the three of you went there together with, at the very least, a sense that intimidation or muscle may be needed. I am satisfied of that beyond reasonable doubt. None of the offending was intricately planned, it was certainly unsophisticated. No disguises were employed.
Sentence
50. Sending any person to prison is always a matter of last resort for any court. It always has been and, hopefully, always will be. I must not confine a person unless the purposes for which sentence is imposed cannot be achieved by a community corrections order. Prison is, after all, a last option. I was taken to some cases which I found to be of very little assistance. One I have not mentioned was the case of Walsh [2000] VSC 433 referred to by your counsel, Ms Pontikis. It was said to be a sentencing authority. It was no such thing but was merely an example of another judge in another age dealing with another offender in another way. It said nothing at all about the outcome in this case. It was no authority for anything. I was taken to cases speaking of the lack of any mandate of imprisoning every person who commits a serious crime. I was taken to cases dealing with the alternative dispositions that exist, the deterrent effect of such alternatives, the rehabilitation considerations that may come into play for drug-addicted offenders. That a community corrections order is no slap on the wrist and is, in fact, an onerous disposition. I do not quibble with any of these “motherhood statements”, I accept the principles. Again though, those statements of principle do not provide the answer to the exercise of my discretion in these cases.
Totality
51. I have paid regard to the principle of totality of sentence. I have taken a last look at the effect of the sentences shortly to be pronounced, to ensure that the overall effect is just and appropriate and to guard against a crushing outcome. I have concluded that, in this case, there must be a level of cumulation as between prison sentences imposed for the blackmail and the kidnap. They were separate and serious crimes, though, committed in a tight timeframe. There is a relationship between the two offences but still, they are each serious criminal offences, each, no doubt, having a separate effect upon the victims. So, too, is the theft deserving of some cumulation, Mr Shabanov.
52. I will moderate the degree of cumulation, and in that regard, I do pay regard to the tight timeframe involved. In your case, Mr Shabanov, I must contend with the provisions of ss16 [1A] (e) and 16 [3C] of the Sentencing Act. Well you are not yet undergoing any sentence in relation to the offences for which you were on bail, so I wonder whether the provision operates. I cannot order concurrency in relation to a non-existent sentence and presumably the Magistrate will have a power to consider totality when he sentences you. I cannot otherwise direct under the provision.
Forfeiture
53. I will deal with the ancillary orders. Application is made for a Disposal Order against you, Mr Shabanov, for the property found in the car and for the knife. Those two orders are not opposed. I have signed those orders and I now pronounce them, having convicted you, as I will, for the offence of dealing with property suspected of being the proceeds of crime. I am satisfied that the property referred to in the schedule is tainted property and I order, by consent, pursuant to s.34(1) of the Confiscation Act, that the property referred to in the section be referred in the schedule be forfeited to the Minister. So the application is brought pursuant to ss. 32 and 34 of the Act and I have signed it. Likewise, I make the same order in terms of the large knife and the cardboard sheath, they were adapted obviously to the relevant legislation. I am satisfied you are convicted of the offence of possession of a controlled weapon, that the relevant provisions of the Control of Weapons Act 1990 has been breached and that the knife is such a weapon that is amenable to forfeiture under the provisions of s.9 of the Act. I have signed and pronounced that order also.
Compensation
54. There is in each case an application for compensation as against the three of you. The order is consented to and I have signed and now pronounce that order. I am satisfied that each of you are convicted of the offence of blackmail, which is a Schedule 1 offence. And that as a result of the commission of that offence that the named victims, that is Mr and Mrs Brohier - Ralston and Sylvia Brohier - have suffered loss of property, namely the cash that remains outstanding - there was $600 that had been recovered - so there is $5400 outstanding. I order, by consent, pursuant to s.86 of the Sentencing Act, that each of you pay the sum of compensation in the sum of $5400. I make the order against you in the full sum, it does not permit the Brohiers, obviously, to go to well three times and get that amount, they are only entitled to payment of the one amount of $5400 but it is appropriate that it be made against you in the full sum. I have signed that order also.
Forensic Shabanov and Bekiri
55. Application is also made for a forensic sample order. In each case again it is not opposed and I have signed those orders. I pronounce the order against you, firstly, Mr Bekiri. I am satisfied, pursuant to the provisions of the Crimes Act s.464ZF(2) that it is appropriate to make this orders. I order that, pursuant to those provisions, you, Mr Bekir, undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with sub-division 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I make the order having considered the seriousness of the circumstances of the offence. I am satisfied that it is justified to make this order, given the seriousness of the offending, the fact that it is not opposed and that I judge it to be in the public interest. What this involves for you is a relatively simple procedure of the running of a swab within your mouth.
56. Notwithstanding your lack of opposition to the order. I have to tell you that, if at the time of the request, you are not then consenting then reasonable force can be engaged in to obtain that sample or, for that matter, the authorities could take a blood sample, again where reasonable force could be employed. I have signed that order.
57. It is exactly the same position in your case, Mr Shabanov, again it is an application for a forensic that is not opposed and I order that, pursuant to the provisions of 464ZF(2) that you undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with sub-division 30(3) of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. For the same reasons, I make the order, the existence of prior convictions. I am satisfied that I am justified in making this order because of the seriousness of the offending. Your prior convictions are such as to warrant it, the order is not opposed and that I judge it to be in the public interest. I inform you, as I informed Mr Bekiri, that if, at the time when they come to take the sample, you are at that point not consenting to it, then the authorised officer can use reasonable force or, for that matter, may determine it is appropriate to take a blood sample in those circumstances and use reasonable for to do that. That should not (indistinct), it should be done by way of a swab which is a relatively non-invasive procedure. I have signed and not pronounce that order.
Sentence Shabanov
58. On Charge 2, blackmail, you are convicted and sentenced to 18 months' imprisonment.
59. On Charge 3, kidnapping, you are convicted and sentenced to 21 months' imprisonment, that is the base sentence.
60. On Charge 4, theft, I convict and sentence you to three months' imprisonment.
61. On the summary offence of dealing in property suspected of being the proceeds of crime, I convict and sentence you to two months' imprisonment
62. On the weapons offence. you are convicted and sentenced to seven days' imprisonment.
Cumulation Shabanov
63. The base sentence therefore is the 21 months that I have imposed on Charge 3. I make the following orders for cumulation in relation to the other sentences.
64. I direct that eight months of the sentences imposed on Charge 2 and one month of the sentence imposed on Charge 4 be served cumulatively upon the base sentence and upon each other. The sentence imposed on the summary offences will be concurrent with all other sentences imposed today.
Total effective sentence Shabanov
65. What this results in is a total effective sentence in your case of 30 months or 2 ½ years ' imprisonment.
Non parole Period Shabanov
66. I fix a period of 14 months, during which you will not be eligible for release on parole.
Section 18
67. I declare, under s.18 of the Sentencing Act 1991, that the period of 60 days be reckoned as a period of imprisonment already served under this sentence by way of pre-sentence detention. That declaration is to be noted in the records of the court.
Section 6AAA
68. I have told you I have taken into account the fact of your guilty plea, and the early stage of that plea. Had you been found guilty, having run a trial before a jury, I would have sentenced you to a term of 4 ½ years' imprisonment. I would have fixed a non-parole period of three years. That statement is to be noted in the records of the court, pursuant to s.6AAA.
Sentence BEKIRI
69. On Charge 2, blackmail, I convict and sentence you to 14 months' imprisonment.
70.
On Charge 3 kidnapping, I convict and sentence you to
17 months' imprisonment; that is the base sentence.
Cumulation Bekiri
71. I direct that eight months of the sentence imposed on the blackmail be served cumulatively upon the base sentence.
Total Effect Sentence Bekiri
72. This results in a total effect sentence in your case of 25 months' imprisonment.
Non-Parole Period Bekiri
73. I fix a period of nine months during which you will not be eligible for release on parole.
Section 18
74. You have spent nine days by way of pre-sentence detention. That period is to be declared as having already been served, pursuant to section 18 of the Sentencing Act. It is to be noted in the records of the court.
Section 6AAA
75. I have told you that I have taken into account the fact of your guilty plea, and the early stage of that plea. Had you been found guilty, having run a trial before a jury, I would have sentenced you to a term of four years' imprisonment. I would have fixed a non-parole period of 2 ½ years. That statement is to be noted in the records of the court, pursuant to s.6AAA.
Sentence Pontikis
76. Finally there is you, Ms Pontikis. I have considered whether there is any alternative to a term of imprisonment. Whether the purposes of sentencing can be achieved in your case by a community corrections order. If they can, then I must adopt such an approach, that much is clear. I have reached the view that in the case of your co-offenders they cannot be so achieved, that they each must be sent to prison. I tell you that I have swung in differing directions over the last day in your case. I do not ignore any submission made by any party who comes before me. I do not ignore the Director’s call for an immediate term in your case, I just do not agree with the submission. I believe, in your case, it is open to me in the sound exercise of my sentencing discretion, to place you on a community corrections order. Perhaps it might be suggested I am placing too much emphasis on mitigatory matters and your rehabilitation and not enough emphasis on the nature and gravity of the crime and purposes of sentencing other than rehabilitation. I have considered all of these matters, as I hope my reasons would surely confirm. I have endeavoured to place appropriate weight on appropriate factors and purposes. In the time that I have presided as a Judge, there has hardly been a flood of complaints to the Court of Appeal as to the leniency of my sentences. Nor a trickle of such cases. Nor one case actually. It seems to me, at least, that you have very powerful mitigatory matters. They must and do attract significant leniency. You are a very youthful first offender who has made excellent progress, demonstrates insight and has excellent rehabilitative prospects. I judge that both you and the community are better served by the order I propose and neither would be advanced by the bleak alternative. I have, of course, considered whether a short sharp prison sentence in tandem with such an order is required in the sound exercise of my discretion. It occurs to me that such a disposition may very well defeat the very purpose that I judge to be the paramount consideration in your case - your rehabilitation.
77. On all charges, I intend to convict and sentence you to a community corrections order for a period of three years. I know the order has been explained to you by the assessment officer, however, I need to explain it to you as it requires your consent. The order commences today. It is for a three year period. You will need to attend at the Dandenong Community Correctional Services within two clear working days of order. They are 46-50 Walker Street, Dandenong. The address will be on the document that you receive.
78. Every one of these orders has the same mandatory terms. They are mandatory so they apply to every person who gets an order, whether it is you or whoever else happens to be sitting in the dock. Those mandatory terms are as follows. Listen carefully.
· You must not commit another offence for which you could be imprisoned during the period of the order. So for the next three years, do not break the law. It is pretty simple because almost every offence these days is punishable by imprisonment. If you commit an offence punishable by imprisonment, you will breach this order. That would, of course, include any of the offences on the indictment. It would include also, possession of drugs. That really is the way that many of these orders are breached by people who go out and commit further offences. I do not expect that to be the position with you but if I am wrong and you do, you will see me again.
· There is another condition on the document that, when you get it will mean very little to you. It probably means very little to most people, I do not know why it is on the document. It is in these terms. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. You will not have any idea what that regulation suggests. What is means is that you have to turn up in a fit state. You turn up at supervision, at unpaid work totally unaffected by substances, totally unaffected by alcohol, totally unaffected by drugs (obviously enough). If you have any of those in your system, you will be in breach of the order. So you must not be under the influence of alcohol or drugs when you front for supervision or unpaid work or (indistinct). That is pretty straightforward. You understand also, I think, that you have to have your photograph taken for inclusion in the records. That is what Regulation 17 speaks of.
· You must report to and receive visits from the Secretary - which will be from your Community Corrections Officer.
· You must, as I have said, report to the Community Corrections Centre within two clear working days of the order starting.
· You must let a Community Corrections Officer know within two clear working days of your changing an address or job.
· You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate, that will be from the Community Corrections Centre.
· You must obey all lawful instructions from and directions of the Secretary who will be giving instructions via his or her delegate, the Community Corrections Officer. You obey their directions, you obey the law instructions they give you.
79. So they are the mandatory terms. They are the terms that apply to every person who gets one of these orders. Breach any of them and you breach the order. So many of these orders are breached by people who are happy enough, sometimes relieved to enter the order at court. And then they leave court and their relief and happiness evaporates when they are back out in the community and the reality of the onerous nature of the order actually kicks in. They do not turn up to their work. They do not turn up for supervision, they cannot be bothered. Or they lose track of their requirement to notify of change of address or job. Do not put yourself in that position, if you do, you will see me again.
80. In addition, there are special conditions that I tailor for your individual needs. Listen carefully because a breach of any of these will have you coming back before me.
81. The first of those is that you are going to be under the supervision of a Community Corrections Officer for the three year period of this order. So when you are told to turn up for supervision, turn up - very simple. I know this, you do not. You have no history before the courts. I place people on these order and I see people who breach these orders and so I tell you this: so many of these orders are breached by people who do not turn up for supervision, who do not turn up for work. Then after the event try to construct or provide some reason as to why they did not turn up. If you have a good reason, if there is a pressing reason for not attending - whether it be work or supervision or treatment, maybe it might be a medical reason or a medical appointment or some other valid reason - tell them. Tell them in advance. Tell them on the day if it only arises on the day. But tell them - let them know. The will not be silly about it. If you have got a good reason for not turning up, let them know and there will be a re-arrangement. But I can assure you, if you do what so many people I see back before me, that is not turn up, then try after the event to construct some reason, you will see me again. You will be sitting where you are sitting now on your own. So you are under supervision for the three years of the order.
82. The second heading on the order - or the bottom heading in fact although you will see it specified as Treatment and Rehabilitation - it is to deal with aspects of rehabilitation for you. Your on-going rehabilitation. You must undergo assessment and treatment, including testing, for drug abuse or dependency, as directed by the regional manager.
83. You must also undergo assessment and treatment, including testing, at a residential facility for withdrawal from or rehabilitation for drug abuse or dependency as directed by the regional manager. I do not know what sort of assessment or treatment or testing may be suggested that you engage in but what I am sure of is this: whatever they say, goes. You do what they tell you to do. If they tell you go and engage in treatment, you do it. If they give you a direction to reside at a treatment facility, you do it. If they tell you to attend for testing, you do it. It is very simple. Do you understand that?
84. The next condition is you must undergo medical assessment and treatment, including but not limited to general or specialised medical treatment or treatment in a hospital or residential facility as directed by the regional manager. This is concerned with aspects of the depression that are spoken of in the reports. Again, it is a bit of a mouthful and I do not know what particular directions will be given to you. You have had a raft of treatment from qualified individuals and those supervising this order may make a judgment that there is no need for further treatment or send you off to one of the people that you are familiar or do nothing. I do not know. But again, whatever they say to do, you do it.
85. Finally, in fact when you see the order it is the first of the conditions, I am deal with it last.. This embraces an aspect of punishment that is built into this order: it deals with your obligation to perform unpaid work. You must perform 300 hours of unpaid work in the three year period of the order. Again, I do not know where you will be directed to attend and what you will be told to do. What I do know is whatever it is, wherever you are told to go, turn up. Attend where you are told, do what you are told to do. Again, if you fail to comply with that particular condition, you will breach the order.
86. Do not be lulled into a sense of false security by a condition you might see on the order that says if you fail to comply with that particular condition, the unpaid work condition, that the Secretary to the Department of Justice or the Community Corrections Officer can give you a direction to perform additional hours of unpaid community work. It refers off to s.83AU of the Sentencing Act. Do not worry about that: work on the assumption if you do not comply with the unpaid work condition, you will be brought back and have a pretty unpleasant day in front of me in breach of this order.
87. So they are both the mandatory terms and the special conditions that I have tailored in relation to this order. Do you understand the effect of those conditions?
88. OFFENDER PONTIKIS: Yes.
89. HIS HONOUR: You understand what they mean?
90. OFFENDER PONTIKIS: Yes.
91. HIS HONOUR: Very well. What I have not told you is what happens if you breach this order, though I am sure you have been told by the assessment officer. The last thing I want is for someone who consents to such an order coming back in one year or two or three or four years, stand where you are standing and saying "I didn't know what could happen". You will know because I am telling you. You breach this order by breaching any of the terms or the conditions - so any criminal offence punishable by imprisonment, any of the other mandatory conditions, any of the tailored terms - breach any of those, you breach the order. That, itself, is a criminal offence - contravening a community corrections order is a criminal offence punishable by imprisonment. But that is not the real sting. The sting to it is this, if you breach this order you will be brought back to this building and it will not be just to this building, you will be brought back before me. I will come onto the Bench bearing the pink books that cover the two or three days of the pleas that were conducted. So I will know everything that has taken place and, rest assured, I will make a very detailed note of the lecture that I am giving you now.
92. Breach this order and you see me again. You really do not want to see me again, at least in court. Because if you do, it will mean you have breached this order. Of course I would listen to anything that had to be said on your behalf on that occasion in relation to any breach, but you really need to understand this: you have been given a real opportunity here. I am not sure you necessarily understand - maybe you do - have you close you have sailed to heading out the door to your right today: that is to commence a term of imprisonment. These offences, as you would know, are very often punished by significant immediate terms of imprisonment. After all, you are flanked on either side by people who are about to head out that door to commence terms of imprisonment.
93. The disposition that I have selected gives you the opportunity of avoiding a significant term of imprisonment. But if you breach it, you see me again. I hope you do not see me again and I mean what I say. If you do not, it will demonstrate to me that my order was correct. If you do, I will see you again. You would be brought back before me. You probably had a sense of uncertainty as to what lay ahead, I am sure you did as you got up this morning, as you went to bed last night. Probably every night for the last several months. What would happen when you went to court? Would you be returning home or would you be going to prison? Breach this order and you will be plunged back into that level of uncertainty, though maybe it will not be uncertain. Because in that sort of position, you would come back before me in breach, having breached the order that I have actually extended to you to give you the opportunity of avoiding imprisonment. I would need to them contemplate cancelling the order and then re-sentencing you: that is re-sentencing you for these very same offences, not as a person with no history, but as a person who has been given an opportunity to avoid any further transaction, who has breached the order, who then comes back before me. Work on the hypothesis of the certainty of you then being sent to prison. So it is in your court. Comply with the order and you will not see me again. That is, as I say, my hope but you will make your own judgments.
94. I should also pronounce, in your case, there is an order for a forensic sample also. Pursuant to s.464ZF(2), I order that you undergo a forensic procedure for the taking of a scraping from the mouth and/or blood sample in accordance with the provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I order, in your case because it is a non-custodial order, that, pursuant to 464ZF(2A) of the Crimes Act, that you, for the purposes of undergoing the procedure, report to the officer in charge of the Springvale - is it?
95. It says Springvale on the order, is that the right police station or is it Dandenong, Mr Reynolds?
96. MR REYNOLDS: I understand that that would be closest to her home address, Dandenong covers the area for the Office of Corrections.
97. HIS HONOUR: Let me see if there's any rationale for the selection of Springvale. That is the station selected by the Office of Public Prosecutions in the form. I understand Springvale is probably closer geographically for your client.
98. MR REYNOLDS: That's correct, Your Honour, I understand that.
99. HIS HONOUR: Very well, it involves her going there once and getting this procedure done.
100. MR REYNOLDS: We will go wherever we need to.
101. HIS HONOUR: You need to go where I am specifying. So for the purpose of undergoing this procedure, you must report to the officer in charge of the Springvale police station at 314 Springvale Road during a period of four weeks commencing 28 days after the day of sentence, or once any instituted appeal is finally determined. In any event, you have pleaded guilty in this matter so what I suggest you do is get down there reasonably swiftly and get the swab done, get it behind you. That is all it involves. I regard it as justified to make this order given the seriousness of the offence, the fact that it is not opposed and that it is in the public interest.
102. The authorised member of the police can use reasonable force if you are not consenting on the day that you attend, I am sure that will not be the position. If that were the position, you might also contemplate the taking of a blood sample, again, I am sure that will not be necessary. You will get a copy of the actual document in due course. I have signed that order.
103. Mr Livitsanos, there is no s.6AAA declaration required for a community corrections order?
104. MR LIVITSANOS: Not required, discretionary for her, Your Honour.
105. HIS HONOUR: I am not going to make any declaration at all. Is there any other matter that I have overlooked?
106. MR LIVITSANOS: No, very thorough, Your Honour.
107. HIS HONOUR: Mr Melasecca, the other day when I left the Bench when I remanded your client in custody I made an indorsement on the form, I'm sure, the other day. I have made an indorsement in terms of a custody management issue, I was concerned about him going where he was going for the first time and I alerted the authorities to that, saying please note this is Mr Bekeri's first time in custody, all care should be taken. He has come from there and he is going back there. Is there any need for me to make any particular indorsement at all.
108. MR MELASECCA: No, Your Honour, he's had his medications and I think prisoner management will classify him in due course.
109. HIS HONOUR: I will provide the relevant material to the Parole Board obviously and in that sense I am referring to the material from Odyssey House in particular. I should see if there is anything else there - Mr Lamberti's statement and Ms Brown's report. I don't think there is much pint in sending the personal references. I might also, if you want, send the Odyssey House psychological report as well.
110. MR MELASECCA: That would be of great assistance, Your Honour.
111. HIS HONOUR: I will have each of those sent to the Adult Parole Board, as to where else they are sent, you are free to send them where you want to send them in terms of informing the way in which his custody is managed.
112. Mr Parker, I do not regard it as necessary to make any endorsements in relation to your client.
113. MR PARKER: No, Your Honour, there is no (indistinct words).
114. HIS HONOUR: Very well, are there any other matters that I may have overlooked in terms of the formalities.
115. MR PARKER: No for Mr Shabanov.
116. MR REYNOLDS: Not for Ms Pontikis, Your Honour.
117. HIS HONOUR: There is one thing I have overlooked, I have to get Ms Pontikis to come out of the dock, please take a seat.
118. Could you have a look at the order, Mr Livitsanos and Mr Reynolds?
119. MR LIVITSANOS: It's right from my point of view, Your Honour.
120. MR REYNOLDS: And from mine, Your Honour.
121. HIS HONOUR: Very well, Ms Pontikis, if you would step forward and sign that order please.
(Order signed and acknowledged.)
122. Ms Pontikis, step forward towards the lectern, thank you. Do you acknowledge that you have signed that community corrections order?
123. OFFENDER PONTIKIS: Yes.
124. HIS HONOUR: You have signed it under the words "I understand the effect and the conditions of this order and consent to it being made"?
125. OFFENDER PONTIKIS: Yes.
126. HIS HONOUR: You understand that if you breach any of these conditions, either the mandatory terms or the special conditions that you are likely to be brought back before me in breach?
127. OFFENDER PONTIKIS: Yes.
128. HIS HONOUR: What do you understand as to the likely outcome, if you are brought back?
129. OFFENDER PONTIKIS: I’ll go to prison.
130. HIS HONOUR: Correct. There will be a copy of the order made and available to you. I am sorry to have kept you waiting up the back, Mr Bekiri and Mr Shabanov.
131. Mr Bekiri and Mr Shabanov can now be removed.
---
2