The Queen v Pratley [2013] VSC 298

2 The offending may be briefly described. It is fully described in the Crown opening, Exhibit A, and I need only set out the essential facts.

3 On the 9th day of February 2012 you and your friend, Thorn Brown, met with a man named 'Kosta'. At that meeting you both incited Kosta to murder Ahmad Keshtiar ('Keshtiar'). Unbeknown to you and Brown, Kosta was in fact a member of the Victoria police who was engaged as a covert operative.

4 Prior to the meeting you and Brown had been engaged by Wahid Najibi ('Najibi') to murder Keshtiar, and the purpose of your meeting was for you to enlist Kosta's help in that task. You and Brown had been told that someone in the Afghani community wanted Keshtiar murdered because he had brought dishonour on their family.

5 Unfortunately for you, and perhaps fortunately for Keshtiar, prior to your meeting with Kosta, police became aware that there was a plot to kill Keshtiar. They thus arranged for covert operative 258 to telephone Brown to offer assistance. For the purposes of the investigation covert operative 258 used the assumed name of 'Kosta'.

6 You met Brown at school when you were about 14 or 15 years old. It seems to me that your offending arose out of a misguided sense of loyalty to him.

7 The origin of your part in the offence can be traced back to mid to late January 2012, when you visited Brown at his mother's home and saw that he had a black eye and swollen mouth. Brown told you that he had got into a fight. He would not leave the house and wanted to rest up. You were suspicious of the circumstances leading to the injuries, since you were aware that Brown had been in fights before and it had not worried him.

8 On a second occasion you visited Brown's mother's home and saw that again Brown had been beaten up. You asked if it was the same guy. Brown answered 'nah man I'm in trouble'.

9 Brown told you that it was serious to the point that a group had jumped him and stuck him in a boot. Brown asked you if you 'had his back'. You answered, 'we're brother's man; I won't let you go down alone.' In a statement to police you indicated that Brown had told you that the trouble he was in was over a drug deal between two sets of associates that had gone wrong which Brown had been overseeing. A week or two later Brown called you and said he had a meeting with one of the associates who he referred to as 'the Afghan' at Monahan's Reserve, Cranbourne. You said you would meet him there and arrived shortly after the call.

10 The man previously referred to as 'the Afghan' arrived and was introduced to you as 'Shaz'. He was in fact Najibi. I need not go into detail, but Najibi accused Brown of owing him money because of a drug deal and implied you were involved in the deal. He also threatened your girlfriend and family. And he told Brown to get a gun.

11 In succeeding days you and Brown made attempts to source a gun. During this time Brown told you that the real reason for obtaining the gun was because of a so-called honour killing.

12 Another meeting took place between Najibi, Brown and you at an internet café in Dandenong where Najibi gave Brown a picture of 'the Afghan' ('Keshtiar') who was the target. At every later meeting Najibi pushed for you and Brown to get a gun because he wanted 'the job' of killing Keshtiar accomplished soon.

13 The critical events occurred on 9 February 2012. Kosta called Brown and arranged to meet him at the Settlement Hotel in Cranbourne.

14 You then met Kosta for the first time. Kosta drove you and Brown to Shakers Nightclub in Narre Warren. Once there the three of you spoke about the contract to kill Keshtiar. Brown and Kosta did most of the talking, but you contributed. I need not set out the conversation in detail. It is in the Crown Opening. The manner in which the murder was to be conducted was discussed. Significantly, when questioned by Kosta as to why a twelve-gauge double barrel shotgun was to be used in the killing, you said, '...you can't trace them'. And when Kosta asked about receiving payment from the contractor you said, '... I'm the guy that goes after them if they fuck us over'. It was clear that you were actively involved in requesting and encouraging Kosta to kill Keshtiar.

15 On 10 February 2012 the police were granted warrants to lawfully intercept calls on mobile telephones that were then used regularly by you and Brown. Police monitored calls on those mobile telephones between 10 and 14 February 2012.

16 Kosta contacted Brown on Tuesday 14 February 2012. It was confirmed that Kosta would be committing the murder that evening.

17 After this telephone call the police arrested both you and Brown.

18 As I have said, you have pleaded guilty to one count of incitement to murder. You indicated that plea soon after Mr McMahon became involved in your case, and entered that plea when arraigned in this Court on 6 May 2013. In the circumstances I regard that as an early plea. It has facilitated the course of justice, by obviating the need for a trial (with the associated cost and inconvenience), but in my view it is also indicative of a significant degree of remorse. I intend to significantly ameliorate the sentence I would otherwise have passed in light of your guilty plea. In my opinion, those in your position who plead guilty must know that they will receive a palpable discount for so doing.

19 Further, I should make plain that I also take into account in your favour your cooperation with police and your undertaking to give evidence against Najibi. Your evidence will be, as is acknowledged by the prosecution and by the informant, Detective Goldsmith, very significant in establishing a case against Najibi. Your cooperation with police, and your undertaking to give evidence, also indicate significant remorse for your actions. You will be given full benefit for your cooperation. Again, those in your position, who cooperate in bringing co-offenders to justice, need to know that such cooperation will attract more than mere platitudes, and will result in a real reduction of sentence.

20 Your cooperation has also resulted in the prosecution urging upon me that a community corrections order is within the range of sentences open, a proposition with which, unsurprisingly, your counsel does not quibble. Of course, the fact that both parties agree would not justify me in imposing a manifestly inadequate sentence, but in the peculiar circumstances of this case I am of the view that to deal with you by way of a community corrections order is entirely appropriate.

21 I should say that the prosecutor, Ms Borg, those instructing her and the informant, Detective Goldsmith, are all to be commended for adopting the sensible and compassionate approach that they have. Mr McMahon, and those instructing him, have also taken a wise and pragmatic approach to the matter. The very wise stance adopted by all involved has made my task far easier than it otherwise might have been.

22 Imposition of a community corrections order is not a mere exercise in leniency. The stringent work component and other conditions will punish you in a manner that is just, and the fact that I will impose it with conviction will emphasise the court's denunciation of your conduct. It will also serve to deter others from committing similar offences.

23 Although I do not ignore it entirely, I regard the need for specific deterrence to be of minimal importance in your case. In my opinion it as highly unlikely that you will ever re-offend. For much the same reason, I regard the need for the community to be protected from you as of little or no importance.

24 You are a young man who is capable of reclamation. In reaching this conclusion I have had regard to your previous good character, and what I regard to be excellent prospects of rehabilitation. Indeed, I have endeavoured to arrive at a sentence which will facilitate your rehabilitation, consistently with the other purposes for which I must sentence you.

25 You are a youthful offender. You will turn 22 years of age tomorrow. I regard youth as a highly relevant factor when sentencing, even for serious offences. Anybody who has spent any time in these courts knows the polluting influence that imprisonment has on the immature and impressionable. Very often those imprisoned when young emerge from gaol considerably more anti-social than when they went in. It is in the community's interest for this court to impose a sentence that will promote your rehabilitation. As a very wise judge, Sir John Young, said three and a half decades ago - expressing sentiments which are as relevant today as when he uttered them:[1]

I think it should be remembered that in the long run the community is better served and better protected if a young offender is rehabilitated and led away from a life of crime than if after a short or long gaol sentence, imposed to satisfy a public clamour for retribution, he is taught the ways of the criminal.

26 So far as your personal circumstances are concerned, you emigrated with your family from Britain at age 13. You left school in Year 10, and because of circumstances in your home, have lived rough since you were about 15 or 16 years of age. Despite these unfortunate circumstances, you have accomplished a lot and shown that you are generally a public-spirited, community-minded and generous young man.

27 I received a reference from Mr Nicholas Smith, with which I was impressed. He spoke very highly of you, and of your participation in SLAM - Sports, Lights and Message. This involved you visiting a number of prisons including the MRC, Langi Kal Kal, Port Phillip, Deer Park Juvenile Centre, Marngoneet, and in all of these prisons playing soccer. SLAM is a kind of religious outreach through the church where volunteers play soccer with prisoners and, as Mr Smith described it, 'speak the gospel by actions and words'. The program gives prisoners a break from their usual prison life.

28 Mr Richard Randall of the Pakenham Soccer Club also provided a reference which spoke very highly of you, and he attended court to support you. You are very highly regarded in the club, where you help with the development of juniors, and in the wider community.

29 Raymond and Toni Costelloe, who took you in at a time when you left home at age 16 or thereabouts because of your abusive father, provided a moving testament as to your good qualities.

30 Mr Nirmal Singh also provided a reference which gave some insight into your potential.

31 Finally, Reverend Walter Starchenko, who also came to court to provide support for you, spoke of your work in the church, your struggles with your upbringing and your very fine personal qualities.

32 A number of people, including your sister, attended court. Clearly you have a wide circle of support, and a large number of people who think that you are a worthy person despite the offence which brings you before the court.

33 I have also taken note of the various certificates tendered on your behalf. It is unnecessary to recount all of their contents. They paint a picture, however, of a young man doing his best to better himself within the modest means available to him.

34 The very strong impression I have, as I have said, is that you participated in this crime out of a misguided sense of loyalty to Brown. Immaturity also had a part to play. I am confident that you have learned from this experience, and I very much doubt that you will re-offend.

35 There is one final matter I should mention. I am, of course, aware that your co-offender was sentenced to be imprisoned on the charge of incitement to murder for a period of four and a half years with a non-parole period of two years. As a result of the submissions made to me by both Ms Borg and Mr McMahon, although I must have regard to principles of parity, I am satisfied that those principles do not dictate that I must imprison you. There are a number of distinguishing features between you and Brown, only some of which are your lesser role, lack of prior convictions and otherwise good character. Your prospects of rehabilitation are far better than are his.

36 In anticipation that I might impose a community corrections order I sought and received an Assessment Outcome Report dated 5 June 2013 and a further such report dated 6 June 2013. I note that you have signed a consent to the order being imposed.

37 Dean Pratley, on the charge of incitement to murder you will be convicted and sentenced to a community corrections order for two years to commence this day. Apart from the mandatory terms required by s 45 of the Sentencing Act 1991, I impose the following conditions:

1. Pursuant to s 48C, you are to perform 400 hours on unpaid community work.

2. Pursuant to s48E, that you be supervised, monitored and managed as directed by the Secretary.

3. Pursuant to s 48F, you must not contact or associate with Thorn Brown or Wahid Najibi.

4. Pursuant to s 48G, you must reside at 25 Grice Quadrant, Pakenham, Victoria, or such other place as directed by the Secretary.

38 Section 6AAA of the Sentencing Act 1991 requires me, if I impose a less severe sentence than I would otherwise have imposed because of your guilty pleas, to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Given that any sentence I pass must represent my instinctive synthesis of all relevant factors, and given that I cannot look at mitigating features in isolation, and given also that I am required to factor into any sentence I pass particular allowance for your cooperation and undertaking to give evidence, s 6AAA requires me to indulge in a somewhat artificial (although legislatively mandated) exercise in order to apply it. Doing the best I can, I state that, but for your pleas of guilty, I would have imposed a sentence of three (3) years' imprisonment, with a non-parole period of 18 months.

39 Pursuant to s 464ZF(2) of the Crimes Act 1958 I order you to undergo a forensic sample by way of scraping of the mouth in accordance with the Order I will sign. The order is justified because the seriousness of the circumstances of the offending warrant the order, and it is not opposed.

[1] AG v Chmil, Zanoni & Ross (Unreported, 1 August 1977, Vic, CCA).