Director of Public Prosecutions v Akec

[2014] VCC 2106

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT GEELONG
CRIMINAL JURISDICTION

CR 14-01855

DIRECTOR OF PUBLIC PROSECUTIONS

v

AKEC AKEC

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	17 November 2014
DATE OF SENTENCE:	17 November 2014
CASE MAY BE CITED AS:	DPP v Akec
MEDIUM NEUTRAL CITATION:	[2014] VCC 2106

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson	Office of Public Prosecutions
For the Offender	Mr S. Northeast	Michael Brugman Lawyers

HIS HONOUR: 

1Akec Akec, you are a troubled young man.  You have the very serious and debilitating illness of schizophrenia.  Currently it appears to be treatment resistant. 

2Your significant mental health problems are made much worse when you are in the community by reason of your daily heavy use of drugs, in particular, ice.

3These problems have seen you before the courts, mainly the Children's Court, and of late have seen you incarcerated in the Youth Justice Centre, and on remand in an adult gaol.

4In July 2014, you were released from the Malmsbury Youth Justice Centre on youth parole.  The regime of parole that you were on was intense and tailored to your considerable needs.

5Notwithstanding that, very soon after your release, you were again using drugs on a daily basis.

6On 24 August 2014, you were in Norlane.  You say men were after you for a drug debt, but  your story in this regard is a shifting one.

7In any event, you called a taxi.  When you got in you were behaving erratically and in a confused way.  You called a cousin for better directions, but this hardly improved things.  The taxi driver, understandably, became frustrated and unnerved, and asked you to pay or to get out.

8You say he swore at you and you cracked.  You pulled a most frightening pruning saw from down your trouser leg and threatened him with it.  You said that you were going to kill him.  You demanded money and grabbed at the coin dispenser.  The taxi driver got out but remained near his front door and you also got out and went to him demanding his wallet and phone.  He refused and ultimately you ran away.

9Police were nearby and quickly arrested you.  The saw and the coin dispenser were found over a fence nearby.  You made full admissions to the police.

10You have pleaded guilty to armed robbery, threat to kill, and attempted armed robbery, all arising from this most frightening episode.

11It seems upon your arrest your youth parole was cancelled, however, you have been in adult gaol for 35 days.  You have been stood over and a fracas has led to you being in 23 hour lockdown for a period of time.

12Your mental health is a central feature of my sentencing task.  You are a very unwell young man.  Your problems have been evident for some time, but significant deterioration in 2012 occurred in the context of almost extreme drug use.

13You were born in Somalia in 1995.  You are from a large family that have endured hardships and ultimately went to Egypt.  In Egypt there were further problems as your family are not of the Muslim faith.  At age eight your family migrated to Australia as refugees.

14You are one of nine children.  It seems you have moved between Geelong and New South Wales.  You have been described in a psychiatric report provided by Dr Cidoni as being an angry child, beating up other students at school and damaging property by punching holes in walls and setting fires.

15Your time at school was very difficult and by Year 10, you rarely went.  You were, by that time, aged 16, a heavy user of cannabis.  From 17 you took to ice and at least from April 2012, your use was very regular and of significant amounts per day.

16It was in late 2012 that you started to have symptoms of psychosis.  You were admitted to the Swanston Centre with frank psychosis in early 2013.  I do not need to describe your bizarre beliefs, but they are firmly held and debilitating to you. 

17You consider, in general terms, that you are being controlled by things that have been inserted into your body.  You have auditory hallucinations, and frightening ones, most nights.

18In April 2014, you were sentenced by a Geelong Magistrates' Court to six months' in a Youth Justice Centre, for offences including attempted robbery, burglary and theft.

19After your release in July 2014, your use of ice increased.  In the days before the crimes in late August 2014, you were consuming, so it is reported, up to 1.7 grams of ice.  This is very concerning.

20Most aspects of my sentencing task necessarily intersect with your poor mental health.  I consider that your impaired mental functioning is realistically and causally connected to your offending with the taxi driver.  Your capacity to reason and deal properly with your paranoia is very limited and was at the time that you took a saw and threatened the taxi driver and took the coins.

21Accordingly, I am authorised to reduce the weight to be given to denunciation and punishment because your moral culpability is, in my view, lower, than might otherwise be the case.

22The crime remains a serious one, but explicable as arising out of your serious mental ill health. 

23I intend to moderate general deterrence because you, with your mental health problems, are so different and thus not suitable to be used as an example to others.  I will also reduce specific deterrence.

24Ordinarily, due to your poor past criminal history, deterrence to you would be a matter of real weight, however, it is appropriately moderated in your case due to your mental health problems.

25Your mental health problems will make incarceration harder as access to psychological assistance is limited within the penal system, however, I have no doubt you will receive appropriate medication for your psychotic difficulties.

26You are still young and although you are far from a first offender, and you have committed here a serious and violent crime, I still must give weight to your rehabilitation.  That consideration must yield, to a degree, to other matters such as denunciation and deterrence, though, as I have said, those matters are themselves moderated by reason of your mental ill health.

27To give some practical effect to trying to have you rehabilitate in a more conducive environment, I had you assessed for suitability for another period of Youth Justice Centre detention.  Your Juvenile Justice case worker, Mr Butcher, gave very helpful evidence before me.

28You would be vulnerable in an adult gaol.  That is my finding.  The Youth Justice Centre staff at Malmsbury approve of your return to that place, notwithstanding that you have spent time in gaol.

29Your counsel urged that I impose a period of detention in the Youth Justice Centre.  The prosecution submission that the inevitable incarceration can, in the circumstances unique to you, and unusual, the incarceration cannot be, so the prosecution submitted, within the Youth Justice system.

30In my view, all sentencing purposes are best met by Youth Justice Centre detention.  It is no soft option, Mr Akec, you are incarcerated and it will be for a significant period in a young person's life.

31The matter of parole is for the experts in the area of Youth Justice.

32The offending, in my view, was one episode and I consider there is no need for cumulation, notwithstanding the chilling threat that you made.

33For committing the crime of armed robbery, you are sentenced to two years in a Youth Justice Centre.

34For committing the crime of threat to kill, you are sentenced to four months' in a Youth Justice Centre.

35For committing the crime of attempted armed robbery, you are sentenced to 14 months' in a Youth Justice Centre.

36All those sentences are concurrent, giving a total effective sentence of two years detention in a Youth Justice Centre.

37Determining what I would have done had you pleaded not guilty to these matters is a difficult one.  However, in my view, would have involved a period of gaol, adult gaol, in the vicinity of three years' with a minimum term of two years'.

38I should emphasise that that should make plain that I have given very significant weight to your plea of guilty and at your insistence the speed with which this matter has moved through the criminal justice system.

39Yours is a plea of guilty that attracts the highest type of discount and it is evidence of your remorse and your growing insight into your difficulties.

40There have been two orders sought by the Crown.  One is to dispose of the weapon that you used and that order will be signed.  The other is that you provide a forensic sample, that is, a scraping from your mouth so that your DNA can be extracted.

41I always take into account some of the potential problems that might arise with those with such serious mental illness, but in the end I think it is appropriate that you undergo the forensic sample procedure because of the seriousness of these offences, because of your prior convictions; because it is in the interests of justice and you do not stand in the way of it.

42For all those reasons I will grant the application.  I should make it clear to you that when the authorities come to take the sample from you, a scraping from your mouth, then if you do not co-operate, they are authorised to use reasonable force to get the sample through you.  The way through it, of course, is just co-operate and have the scraping taken from your mouth.

43I should declare that 35 days of the sentence that I have imposed, of two years, has been reckoned as part of the sentence and I will ensure that the declaration I have just made is entered into the records of the court, so all Corrections authorities are left in no doubt that he has already served 35 days of the sentence that I have just imposed.

44MR GIBSON:  Your Honour pleases.

45MR NORTHEAST:  Your Honour pleases.

46HIS HONOUR:  I have signed those orders.  There is nothing further required?

47MR GIBSON:  No, Your Honour.

48HIS HONOUR:  Thank you very much for your assistance, Mr Northeast.

49MR NORTHEAST:  Thank you, sir, if I could be excused.

50HIS HONOUR:  And counsel, Mr Gibson, as well.  Mr Akec will be now taken, as I understand it, downstairs, but be transferred into the care and custody of the Youth Justice folk who will deliver him to Malmsbury later today.

51(Offender removed.)

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