Dabaja v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0076

HUSSEIN DABAJA	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2023
DATE OF JUDGMENT:	6 September 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 209
JUDGMENT APPEALED FROM:	[2023] VCC 541 (Judge Lauritsen)

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CRIMINAL LAW – Appeal – Sentence – Whether judge erred in finding Sentencing Act 1991, s 5(2HA) engaged – Section 5(2HA) directed to whether impaired mental functioning caused substantially by self-induced intoxication, not whether offending caused substantially by self-induced intoxication – Applicant resentenced.

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Counsel
Applicant:		Mr J Portelli
Respondent:		Ms KB Hamill
Solicitors
Applicant:	Balmer & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
KAYE JA:

On 28 November 2022, the applicant, now aged 20 years,[1] pleaded guilty to one count of armed robbery, one count of intentionally damaging property, one count of common assault and one count of making a threat to inflict serious injury. He also pleaded guilty to the summary charge of committing an indictable offence whilst on bail.
[1]The applicant’s date of birth is 7 December 2002.
Following pleas on 28 November 2022 and 28 March 2023, the applicant was sentenced on 5 April 2023 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Armed Robbery[2]	25 years	15 months in YJC	Base
2	Intentionally Damage Property[3]	10 years	9 months in YJC	—
3	Common Assault[4]	5 years	6 months in YJC	—
4	Threaten Serious Injury[5]	5 years	9 months in YJC	—
SC 1	Commit Indictable Offence Whilst on Bail[6]	3 months	1 month in YJC	1 month
Total Effective Sentence:		16 months’ detention in a Youth Justice Centre
Non-Parole Period:		Not applicable
Pre-Sentence Detention declared:		33 days
Section 6AAA Statement:		24 months’ detention
Other Relevant Orders: 1. Forfeiture and Disposal Orders

[2]Contrary to Crimes Act 1958, s 75A.

[3]Contrary to Crimes Act 1958, s 197(1).

[4]Contrary to common law.

[5]Contrary to Crimes Act 1958, s 21.

[6]Contrary to Bail Act 1977, s 30B.

On 29 December 2022, the co-offender, SM,[7] had his matter finalised in the Broadmeadows Children’s Court. The charges were dismissed and compliance with a good behaviour bond ordered.
[7]The co-offender was dealt with in the Children’s Court and conformably with s 534 of the Children, Youth and Families Act 2005, a pseudonym has been given to him.

Grounds of appeal

The applicant sought leave to appeal against sentence on two grounds:
1.The sentencing judge erred in not finding that there were substantial and compelling circumstances that are exceptional and rare, within the meaning of section 5(2H)(e) of the Sentencing Act 1991.
Particulars
That the sentencing judge erred by engaging in a comparative analysis of the factors relied on by the applicant with the factors referrable to the respondent, Lombardo in the decision of DPP v Lombardo [2022] VSCA 201.
2.In all of the circumstances of the offending and the offender, the sentences imposed on all charges and the order for cumulation are manifestly excessive.
Particulars
The sentencing judge erred by giving insufficient weight to the following matters:
(a)      Young age;
(b)     Intellectual disability;
(c)      Mental health issues;
(d)     Strong family support;
(e)      Proven rehabilitation.
Following communication from the Court drawing attention to an aspect of the reasons of the sentencing judge dealing with s 5(2H)(c) of the Sentencing Act, the applicant sought, and was granted, leave to add a new ground 1(b) in the following terms:
1(b).The sentencing judge erred in finding that s 5(2HA) was engaged such that the exception under s 5(2H)(c)(i) could not be relied upon by the applicant.
Particulars
The sentencing judge erred in finding that s 5(2HA) is concerned with whether self-induced intoxication is causally linked to the offending in question, rather than whether it is the substantial cause of the offender’s impaired mental functioning.
In light of the new ground, the applicant abandoned the original grounds and it will not be necessary to determine them.

Circumstances of the offending

At the time of the offending, the applicant was on bail for unrelated matters.
On 21 July 2021, the applicant and SM drove to Campbellfield. At approximately 6:21 pm they parked on a residential street and walked to the Ampol Service Station at the corner of Sydney and Barry Roads. They entered the store at about 6:44 pm. The only other person in the store was a female shop attendant.
CCTV footage shows the applicant wearing a grey hooded jumper with a red t-shirt over the top with the word ‘PUMA’ written across his chest, and SM wearing a red hooded jumper. Both men have their hoods on and are wearing facemasks.
Upon entering the store, the pair loitered for approximately nine minutes. At approximately 6:46 pm, the applicant removed a pink shopping bag from under his top and minutes later, he removed a bat with black duct tape around one end, from under the back of his t-shirt and hid it down his pants. At the same time, SM removed a reusable Coles shopping bag and a metal wheel brace from his jumper pocket.
At approximately 6:53 pm, the shop attendant approached the pair at the rear of the store. As she did so, the applicant removed the bat from his pants and began threatening her with it. He directed her to the cash register at the café section of the store. SM then ran behind the service counter to the second cash register.
Both offenders demanded cash and cigarettes and threatened to assault the young attendant if she activated the duress alarm.
Understandably, the young shop attendant was overcome with fear and struggled to comply with the applicant’s directions. The applicant repeated the demand for her to ‘open the cigarettes’ multiple times whilst swinging the metal bat around and hitting the cabinets. When all persons are off screen, the CCTV still captures the applicant making the same demands and loud thuds can be heard as he continued to hit things with his bat.
The applicant, SM and the attendant returned to the cash register. The applicant continued to shout ‘just open the cigarettes’ and proceeded to smash the cake stand, computer monitor and plastic dividers as SM instructed the attendant to unlock the Winfield cigarettes.
SM asked the attendant about a sound and demanded to know whether she hit the alarm, which she denied, before he said to her ‘I know your name, I can find out where you live’. The applicant then spoke to the attendant telling her, ‘If you’re lying to me, I’ll smack you in the face with this’ and ‘If you call the Police, I will break your face… you fucking bitch… give me more cash’. The attendant gave the assailants access to more cigarettes and opened the cash register for them.
At 6:58 pm, a second victim entered the store to enquire about the diesel pumps. The offenders yelled at him to leave the store, with the applicant striking the counter. The second victim fled the store and called 000.
Not long after, the two offenders spotted the police vehicles and fled the store.
The two offenders were in the store for approximately 17 minutes and the confrontation lasted approximately 8 minutes. They stole approximately $3,920[8] worth of cigarettes and $1,415 in cash from the store. The cost of repairs of the damage to the store was $4,291.80.

The application of s 5(2H)

[8]98 packets of cigarettes.

Armed robbery is a category 2 offence,[9] with the consequence that s 5(2H) of the Sentencing Act required the judge to impose a custodial order[10] (not including a combination sentence with a community corrections order (‘CCO’)) unless one of the limited exceptions to that provision applied.
[9]Sentencing Act 1991, s 3.
[10]Ibid pt 3 div 2.
The applicant had submitted that two exceptions applied:
(a)s 5(2H)(c)(i), on the basis that he had impaired mental functioning that is causally linked to the offending; and
(b)s 5(2H)(e), on the basis that there were substantial and compelling circumstances that are exceptional and rare and that justify not making a custodial order.[11]
[11]Other than a combination order.
Sections 5(2H)(c)(i) and (2HA) are in the following terms:
(2H)In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
…
(c)the offender proves on the balance of probabilities that—
(i)subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender's culpability; or
…
(2HA)Subsection (2H)(c)(i) does not apply to impaired mental functioning caused substantially by self‑induced intoxication.
Section 10A(1) of the Sentencing Act defines ‘impaired mental functioning’ in the following way:
‘impaired mental functioning’ means—
(a)      a mental illness within the meaning of the Mental Health Act 2014; or
(b) an intellectual disability within the meaning of the Disability Act 2006; or
(c)      an acquired brain injury; or
(d)     an autism spectrum disorder; or
(e)      a neurological impairment, including but not limited to dementia;
In turn, ‘intellectual disability’ is defined in the Disability Act 2006 as the concurrent existence of significant sub-average general intellectual functioning and significant deficits in adaptive behaviour, each of which became manifest before the age of 18 years.[12]
[12]Disability Act2006, s 3.
The applicant relied on two reports of forensic psychologist Sandra Cokorillo obtained for the purpose of sentencing on the present charges and an earlier report of psychologist Gina Cidoni dated 28 October 2019 which related to previous offending.
Ms Cidoni reported the applicant’s full-scale IQ as 66, placing him in the 1^st percentile with 99 per cent of his age related peers performing better on testing. Ms Cidoni described his IQ as extremely low and in the impaired range of mental functioning. His adaptive skills were assessed as low.
In her first report, Ms Cokorillo took a detailed history and administered some psychometric testing. She concluded that the present offending was to be attributed to the complex interplay of three matters: intellectual impairment, poor mental health and substance abuse. In relation to the first matter, Ms Cokorillo accepted Ms Cidoni’s assessment of a full scale IQ of 66. As to the second, Ms Cokorillo diagnosed a persistent depressive disorder with intermittent and current major depressive episode and a generalised anxiety disorder. For the third matter, Ms Cokorillo obtained a history of heavy alcohol and cannabis use. At the time of the offences, the applicant reported to Ms Cokorillo that he was ‘drugged off my face’ and that he did not consider his actions due to being high.

The reasons for sentence

The judge referred to the applicant’s personal circumstances. In short, the applicant was 20 years of age, and has good family support. The applicant is one of three children. He completed year 11 at a TAFE but found school difficult, where he was disruptive and isolated. He started drinking alcohol and cannabis at age 14 and started using cocaine, MDMA and LSD at 16.
The judge accepted that the applicant was remorseful as evidenced by his guilty plea, which also had utilitarian value, all the more so because of the COVID-19 pandemic.
The applicant has a limited prior criminal history in the Children’s Court involving two driving offences and the possession of cannabis. Although not prior convictions, the applicant had three subsequent convictions involving theft and robbery. These convictions related to three offences committed on 3 December 2020, some eight months before the present armed robbery. The robbery was also on a petrol station and involved the applicant saying to an attendant, ‘Give me what I want or I’m gonna kick down this door’.
The judge noted that the applicant had performed well on supervised bail, engaging with supports and finding employment.
In the context of both s 5(2H) and the plea more generally, the judge addressed the psychological evidence to which reference has already been made.
Dealing first with s 5(2H)(c), the judge noted that one of the three matters that Ms Cokorillo said had contributed to the offending was deficits due to the applicant’s intellectual functioning. He noted the consequences of these deficits were:
(a)a reduced self-inhibition, self-awareness, and self-control leading to impulsivity and disinhibition;
(b)compromised social decision-making and functioning with a poor understanding of others' perspectives;
(c)thinking in the short-term with an inhibited ability to comprehend future consequences of actions; and
(d)vulnerability to negative peer influences.
The judge concluded that the applicant’s impaired mental functioning was causally connected to the offending and it substantially and materially reduced the applicant’s culpability.[13] The judge also found that the applicant’s ‘intellectual disability’ substantially and materially reduced his culpability.[14]
[13]DPP v Dabaja [2023] VCC 541, [35] (‘Reasons’).
[14]Ibid [38].
The judge then addressed the application of s 5(2HA). He noted that Ms Cokorillo said self-induced intoxication played a ‘significant’ role in the offending but intellectual disability and poor mental health were also seen as significant contributors. In that context, the judge accepted that there can be more than one ‘substantial’ contributor to a person’s offending behaviour and one factor may be more substantial than another or others.[15]
[15]Ibid [40].
The judge noted that in her first report Ms Cokorillo had not said whether she regarded the applicant’s self-induced intoxication as of sufficient significance to be considered ‘substantial’. A second report was subsequently obtained.
In her second report, Ms Cokorillo said:
It is my professional opinion that Mr Dabaja’s self-induced intoxication is of sufficient significance to be considered ‘substantial’. Whilst he reported he has been using alcohol and cannabis from age 14 and Xanax from age 15, he explained that at the time of the offending he was heavily affected by the combination of all three substances, noting that ‘those three are a bad mix’.
To use his words, he was ‘drugged off my face’. According to his own account, the robbery was his friend’s idea and he stated that he ‘went along with it’ as he did not consider the consequences of his actions due to being ‘high’.
It is worth noting that individuals with Intellectual Disability (‘ID’), such as Mr Dabaja, are more vulnerable to mental, organic, and behavioural adverse effects of alcohol and substance intoxication, when compared to people without ID.
Of particular relevance to Mr Dabaja’s case is that research has shown that in ID populations, behavioural consequences of alcohol and substance abuse are associated with increased vulnerability to exploitation, risk taking, aggression, and violence.
Therefore, it is difficult to assess the prevailing or the most substantial cause of Mr Dabaja’s offending, which as already stated in my original report, I believe has arisen from the complex interplay of multiple organic and nonorganic factors.
His ID in itself impairs his reasoning and judgement and makes him more susceptible to negative peer influences. It also predisposes him to problematic alcohol and substance misuse and intensifies the adverse effects of intoxication due to his underlying cognitive deficits.
However, even in the absence of Mr Dabaja’s underlying intellectual deficits, his acute and heavy intoxication with alcohol, cannabis and benzodiazepines would have exerted an independent effect on his insight, decision-making and judgement by reducing his insight, inhibition and self-regulation.
After referring to this report, the judge concluded that the applicant ‘cannot rely on’ s5(2H)(c).
The judge then turned to s 5(2H)(e) which provides for an exception in circumstances that are substantial and compelling, exceptional and rare. The judge found that there were substantial and compelling circumstances that would justify not imposing a custodial sentence. In reaching that conclusion the judge relied on the applicant’s age, impaired intellectual functioning, mental health issues, that imprisonment or detention could well be counterproductive as the applicant is easily led, strong family support and good performance on bail including obtaining satisfactory employment.
The judge was not persuaded, however, that the circumstances were exceptional or rare. The judge said that this required something ‘wholly outside the run of the mill factors typical of the relevant kind of offending’.[16] The judge then undertook a comparative analysis of this Court’s decision in DPP v Lombardo,[17] comparing the facts in that case, which was a dangerous driving matter.
[16]Ibid [61].
[17][2022] VSCA 201.
The judge concluded that the circumstances that he had identified as being compelling were not exceptional or rare. He noted that ‘offenders often suffer from mental health issues and some suffer from intellectual disabilities’.[18] Accordingly, he concluded that the applicant could not rely on s 5(2H)(e).
[18]Reasons, [59].

Ground of appeal

As already noted the applicant sought, and was granted, leave to rely on a third ground concerning the application of ss 5(2H)(c)(i) and (2HA) and now relies solely on that ground. For the reasons that follow the ground must be upheld.
Ms Cokorillo identified three factors pertaining to the applicant that contributed to the offending: intellectual disability; mental health problems and intoxication.[19] Dealing (only) with the first aspect, the judge found that the applicant’s intellectual disability, as evidenced by his low IQ and poor adaptive skills, was causally linked to the offending and reduced his culpability.[20]
[19]Ibid [34].
[20]Ibid [35], [38].
Thus, the judge made an express finding that the applicant had ‘impaired mental functioning’[21] that was ‘causally linked to the offending’. That finding was well based in the evidence. It followed that s 5(2H)(c)(i) was engaged.
[21]In the form of an intellectual disability.
The judge then turned to s 5(2HA) which provides that the exception in s 5(2H)(c)(i) ‘does not apply to impaired mental functioning caused substantially by self-induced intoxication’. It is plain from the Reasons, and by his acceptance of the second report of Ms Cokorillo, that the judge approached s 5(2HA) on the erroneous premise that it was directed to the question of whether the offending was substantially caused by self-induced intoxication. In its terms, the correct question for the judge was whether the impaired mental functioning that he had identified was caused by self-induced intoxication.
The fact that at the time of the offending the person was under the influence of self-induced intoxication may be relevant to s 5(2H)(c)(i) but not through the disqualifying effect of s 5(2HA). Rather, intoxication may mean that an underlying impaired mental function was not causally related to the offending or that there is no reduction in moral culpability. Although that is how the prosecution appeared to rely on the applicant’s drug affected state, that is not how the judge reasoned.

On the findings made by the judge, the impairment identified by the judge (based on his intellectual disability) was causally connected to the offending but it was not caused by intoxication. It follows we would give leave to appeal and uphold the ground of appeal.
In our opinion, on the facts found by the judge s 5(2H)(c)(i) was satisfied. That is sufficient to vitiate the sentencing discretion. This Court must resentence the applicant.
In resentencing the applicant it is appropriate to proceed on the findings of fact made by the judge including that, at the time of the offending, the applicant suffered from impaired mental functioning in the form of an intellectual disability and that this was causally related to the offending and reduced his culpability. It was open to the judge to find that his intellectual disability affected his reasoning and judgment, including by reduced self-inhibition, self-awareness and self-control leading to impulsivity, and made him more susceptible to negative peer pressure.[22]
[22]Ibid [34]–[35].
In a commendably fair submission, Counsel for the respondent accepted that it would be open to this Court to proceed on the basis of these findings made by the judge. We shall do so and on that basis find that s 5(2H)(c)(i) is satisfied.
This was a difficult sentencing exercise. We have viewed the CCTV footage of the armed robbery. Armed robbery in company of a soft target is an inherently serious offence for which denunciation and general deterrence will be important sentencing considerations. It carries a maximum term of imprisonment of 25 years.
In many respects this was a serious example of the offence. Although not all of the incident is captured, as some of the interactions between the two offenders and the attendant occur in a room without CCTV coverage, the footage shows a terrifying and prolonged robbery. Of the two offenders, the applicant is the most aggressive and plays a more pronounced role. He repeatedly and violently uses his bat to smash the shop counter, destroying the cash register, terminals and Perspex barrier. He repeatedly wielded his weapon in a rage, and the bat comes perilously close to hitting the attendant on multiple occasions.
The robbery was also relatively protracted, as the two offenders made repeated attempts to access cigarettes behind a locked dispenser. During the robbery, violent threats were repeatedly yelled at the attendant from very close quarters accompanied by wild swinging of the bat.
It was a cowardly, despicable attack on a defenceless worker who was entitled to a safe place of work.
Offending of this gravity would require powerful mitigating factors in order to avoid very lengthy periods of imprisonment. In this case there were a number of powerful matters.
First, the applicant is a young person. Although he was 20 years of age when he was sentenced, his intellectual disability and personality made him impressionable, immature and disinhibited. Although some of his conditions, including his level of intellectual functioning, are unlikely to change, there are reasonable prospects of rehabilitation if he receives appropriate support and is willing and able to access it. In that respect it is very relevant that, as the judge noted, the applicant behaved very well on bail including by obtaining employment.
The applicant has coped reasonably well in youth detention making the most of his time. He has engaged well in appointments with his community worker and in education and employment opportunities, including courses in engineering and hospitality. He says he wishes to continue his studies to obtain a Certificate III in Automotive and Electrical at TAFE. He has conducted gardening and ground maintenance at the Malmsbury and Cherry Creek Precincts as part of the Vocational Training Unit program, and participated in a number of leaves in the community as part of the Pre-Release Program. He has an automotive apprenticeship opportunity at a car repair shop upon release.
The applicant has largely maintained positive behaviour. He was involved in incidents of substance use and threatening a peer a few months ago, but it is reported his behaviour has since improved. He has consistently attended sessions, engaged well and demonstrated an open attitude towards treatment of his intellectual disability and mental health issues.
In a report from Youth Justice tendered on the plea, the applicant was assessed as suitable for youth justice. In that report, the authors observe that:
(a)the applicant was able to show insight into his offending and demonstrated an appropriate level of remorse and victim empathy. He acknowledged that the victim would have been feeling scared and vulnerable and expressed disappointment in his own behaviour;
(b)with support the applicant was able to reflect on and understand what was occurring in his life at the time of the offending and understood the effect of substance abuse, negative peers, impulsiveness and lack of ability to problem solve;
(c)the applicant demonstrated a positive attitude and commitment towards meeting the supervisory requirements of bail and participating in programs and interventions to address his identified criminogenic needs;
(d)the applicant had obtained full-time employment which gave him a level of purpose, stability and structure which the applicant reported as satisfying, giving him a source of income, prosocial relationships and mitigating the risk of negative antisocial peers;
(e)the applicant had engaged positively with mental health support and reported strong relationships with his family members, which was identified as a strong motivator; and
(f)the applicant was suitable for detention in a Youth Justice Centre having regard to his ‘high prospects for rehabilitation’ and because he was particularly impressionable, immature and likely to become subjected to undesirable influences in adult prison. The report notes that the applicant spent 33 days on remand in an adult prison where he was assaulted.
Rehabilitation for young offenders remains an important aspect of sentencing. There can be no doubt that protection of the community and the interests of the community more generally are best served by rehabilitation and support. In this respect it heavily favoured moderating the sentence.
Second, the applicant’s intellectual disability reduced his culpability for the offending.
Third, his plea of guilty is a powerful mitigating factor, both for its utilitarian value and for its evidence of remorse.
In our view, the offending demanded a period of detention. A youth justice centre order was open and we consider it to have been the best option for the applicant. He had a period of remand in an adult prison and has spent some five months in youth justice.
The applicant has been assessed as suitable for a CCO and we are persuaded that taking into account the time served by the applicant in custody this is now the most appropriate sentencing option. Although it is not open to combine a CCO with a period of detention in youth justice, we take into account his period of detention, of 154 days, as a factor in arriving at the appropriate sentence. In effect, he has been in custody for six months.
In the unusual circumstances of this case where a period of detention in youth justice is called for and there was a period of remand in adult prison, we propose to make a combination sentence, comprising an aggregate sentence of 33 days and a CCO of 2 years in duration with treatment and therapeutic conditions. The period of adult remand will constitute time served under that sentence.
A declaration under s 6AAA of the Sentencing Act is even more difficult than usual. Had the applicant not pleaded guilty, there would have been no evidence of remorse, his prospects of rehabilitation may have been worse and it may have been difficult for him, as a 20 year old, to be sent to youth justice centre. Doing the best we can, on the hypothesis that does not reflect the facts as they exist, we would have sentenced the applicant to 2 years and 3 months’ imprisonment with a non-parole period of 14 months.
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[2023] VSCA 209

6 September 2023