Director of Public Prosecutions v Akoch

[2023] VCC 1213

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. 23-00823

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMMANUEL AKOCH

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	3 July 2023
DATE OF SENTENCE:	14 July 2023
CASE MAY BE CITED AS:	DPP v Akoch
MEDIUM NEUTRAL CITATION:	[2023] VCC 1213

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Causing injury recklessly – Assaulting an emergency worker on duty – Commit indictable offence whilst on bail – Relevant criminal history – Diagnosis of paranoid schizophrenia – Substance use history – Relatively serious example of offending – Past compliance with community dispositions – Verdins – Reasonable prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:      Crimes Act 1958 ss 18, 31(1)(b); Bail Act 1977 s 30B; Sentencing Act 1991 ss 6AAA, 10A(2)(c), 18.

Cases Cited:Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Imprisonment for a period of 6 months and following the period of imprisonment to be placed on a 2 year community correction order. 

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms K Farrell	Office of Public Prosecutions
For the Accused	Ms H Edwards	Victoria Legal Aid

HIS HONOUR:

Introduction

1Emmanuel Akoch, you have pleaded guilty to:

(a) one charge of causing injury recklessly contrary to s 18 of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 5 years imprisonment (Charge 1); and

(b) one charge of assaulting an emergency worker on duty contrary to s 31(1)(b) of the Crimes Act, which carries a maximum penalty of 5 years imprisonment (Charge 2).

2You have also pleaded guilty to the related summary offence of commit indictable offence whilst on bail contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 3 months imprisonment (Summary Charge 4).

3You have also admitted your Criminal Record. 

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5You were born in 1989 and were 33 years old at the time of the offending.

6On 8 December 2022, you were bailed from the Footscray Police Station to attend the Melbourne Magistrates’ Court on 16 February 2023. You were therefore on bail at the time of this offending.

7The victims in this matter are Acting Protective Services Officer Sergeant Emerald Paniagua and Protective Services Officer Patrick Farrugia.

8On 8 February 2023 the victims and Protective Services Officer Arshpreet Kaur were on duty at Footscray Train Station. All three officers were wearing their uniforms which clearly identified them as members of Victoria Police, including high visibility vests with the words ‘Protective Services Officer’ clearly displayed on the front and back.

9At about 6.50 pm, you got off the train on Platform 5 at Footscray Station. You walked through the Myki barriers without touching off a valid Myki ticket.

10Officer Farrugia approached you and asked you if you had a valid ticket. He attempted to stop you to confirm your ID. You attempted to get past Officer Farrugia by pushing him in the chest with your right hand. Officer Farrugia grabbed your shirt to stop you. You punched him in the head causing swelling and bruising to his head. The marking on his head was in the shape of the rings you were wearing.

11Sergeant Paniagua attempted to help restrain you, but you turned and threw punches with your left and right hands connecting with her face. A punch from you struck her right eye causing immediate swelling and minor bruising, and momentarily disorientating her. Medical scans revealed that you had fractured her left eye socket.

12Officer Kaur deployed OC spray on you and you were then restrained and arrested by the three officers. The incident was partially captured on CCTV footage.

13You were taken to the Footscray Police Station for interview. You were assessed to be unfit for interview and were remanded into custody.  

Nature and gravity of the offending

14Both victims of your offending were emergency workers on duty and there is no dispute that you were aware of this fact when you assaulted them. Charge 1 carries a maximum penalty of 5 years imprisonment. It is also a Category 1 offence and as such the Court must impose a custodial sentence unless an exception is established. Further as the victim in relation to Charge 1 was an emergency worker, unless a special reason exits pursuant to s 10A of the Sentencing Act 1991 (‘Sentencing Act’), a term of imprisonment that is not less than six months must be imposed. Such provisions reflect the intention of Parliament that conduct such as yours is considered to be serious conduct.

15In this instance the two victims were acting Protective Services Officers simply doing their job when they approached you after you had walked through the Myki barriers without touching off a valid ticket. Rather than responding to the enquiries of the officers, you assaulted each of them by punching them both to the head. Officer Farrugia suffered bruising and swelling while Sergeant Paniagua suffered a fracture to her left eye socket.

16Ms Edwards who appeared on your behalf, highlighted that the offending lacked features of aggravation in that it was of short duration, it was unplanned, that you did not use any weapon and that you did not act in company. In effect, that your offending was spontaneous and reactive. Ms Farrell, who appeared on behalf of the Director of Public Prosecutions, submitted that in circumstances where you did not have a valid ticket, simply answering the enquiries of the officers may have only led to a fine.

17While I accept that your offending was spontaneous and absent some features of aggravation, in the circumstances your conduct was entirely unwarranted, violent conduct in public and in my view still remains serious.

Victim Impact Statement

18Tendered on the plea was a victim impact statement prepared by Sergeant Paniagua.

19In describing the emotional impact of your offending, Sergeant Paniagua states that ever since the incident, she has been thinking of ways that she and her fellow officer could have avoided being injured. In terms of the physical impact, Sergeant Paniagua notes that she was advised by her GP not to return to work for three weeks until she had completely recovered from the concussion. She was also unable to participate in recreational physical activities for a period after being injured. Sergeant Paniagua describes having to switch from night shifts to day shifts because of the injuries she sustained, resulting in the loss of penalty rates thereby negatively impacting her personal finances.

20I take the contents of the victim impact statement into account.

Personal circumstances

21You are now 34 years of age. You are the youngest of four siblings, and you were all raised by your mother after your father passed away from illness when you were just a child. You are of South Sudanese descent, having fled South Sudan in 2001 due to the outbreak of civil war. You arrived in Australia in 2003 as an adolescent refugee after spending two years in Egypt.

22Upon arriving in Australia, you and your family initially resided with an uncle in Werribee and then settled into housing in St Albans. You were enrolled in a language school and then matriculated to mainstream schooling, completing Year 11 at a Catholic Regional College in Sydenham. You have since worked in various labour roles, including as a welder, in a meat packing factory, and in a laundromat. At the time of this offending, you were unemployed and in receipt of the Disability Support Pension (‘DSP’), although it was submitted on your behalf by Ms Edwards that you did not have unfettered access to these funds in reality, a matter which I will address in further detail below. 

23You report first experiencing symptoms of mental illness in 2006 and received a formal diagnosis of schizophrenia in 2007, followed by a diagnosis of Post-Traumatic Stress Disorder in 2009. Whilst living in St Albans, you left the family home due to your worsening mental health symptoms, which caused conflict within the family unit. You found yourself experiencing homelessness during this time, and this went on for some years until you were able to secure accommodation in Richmond. You later moved into DFFH accommodation in an apartment complex in Werribee with your older brother. In 2021, after your brother was prohibited from remaining in the apartment complex, you moved into your own one bedroom flat in the same building.

24Your discharge summary from Mercy Health, tendered on the plea, confirms you have been admitted as an inpatient to psychiatric impatient units on numerous occasions due to your schizophrenia, and you have also been the subject of continuous Community Treatment Orders (‘CTO’), the most recent one ultimately being revoked once you were remanded on these matters.

25Your complex mental health condition was the basis on which you were found eligible for a NDIS package in 2021. However, a letter from senior Registered Nurse and your mental health care case manager, Katelyn Acciarito, dated 28 June 2023, explains how you were approached by a couple who held themselves out to you as your cousins and members of your community. They operated an unaccredited NDIS provider which purported to coordinate support services for NDIS participants in the western suburbs. They made an application for NDIS funds on your behalf, which was approved for a start date in June 2021 and amounted to over $282,000 in total, to be used over a period of three years. They went on to invoice your NDIS package for services that were ultimately never provided to you, exhausting your funds within months of them being received.

26Ms Edwards submitted that the couple involved themselves in your life to such an extent that they had full control over your finances, including your DSP payments, and issued to you only a small stipend. Ms Acciarito states in her letter that if the NDIS package had been properly administered, it would have allowed for you to receive, among other things, assistance in accessing free or reduced public transport fares. The couple have since been referred to law enforcement for further investigation.

27Ms Acciarito advises in a subsequent letter to the Court, dated 3 July 2023, that a new NDIS package was approved for you last month. It will be administered by an accredited NDIS provider but has been placed on hold until you are released into the community. Ms Acciarito understands that upon your release, you will be placed on an Inpatient Assessment Order and will likely return to being on a CTO. Having remained involved with your mental health care whilst you have been on remand, Ms Acciarito observes that you remain very motivated to engage with your treatment and notes you are proactively making requests for supports to be put in place upon your release, to assist you with daily household tasks, accessing public transport, attending medical appointments and skill building.

28You were assessed by psychologist Gina Cidoni across two sessions on 13 and 20 June 2023, and the subsequent psychological report of Ms Cidoni, dated 20 June 2023, was tendered on the plea. You did not engage well in your first session with Ms Cidoni but engaged better at the second session, answering questions for about an hour. You displayed perceptual disturbances and the content of your thoughts consisted of delusions. Due to your condition during the assessments, Ms Cidoni was not able to complete any psychometric testing with you or comprehensively assess your cognitive function. She concludes that you meet the diagnostic criteria for Paranoid Schizophrenia and Substance Use Disorder. She notes that you also have a historical diagnosis of Post-Traumatic Stress Disorder.

29It is clear that you have a history of problematic substance use which started when you first left home back in 2007. Your counsel submits that you were not drug affected at the time of offending and your presentation when stopped by the police was simply a reflection of your disarrayed mental state. It was further submitted that your drug use has historically been sporadic and opportunistic, something you only engage in when your finances permit it. Your history does not reflect criminal offending in order to fuel your substance dependency. Nevertheless, Ms Cidoni opines that you have a ‘significant and extensive history’ of substance misuse, and specifically polysubstance misuse. She notes that your schizophrenia symptoms – namely delusions of persecution and harm – are compounded by ‘a chronic pattern of cannabis and methamphetamine abuse’.

30Ms Acciarito also notes that in the months leading up to your imprisonment, although you had made some gains in stabilising your mental state, she also observed some fluctuations that were suspected to be ‘in the context of opportunistic substance use’ and that you were at an increased risk of offending when intoxicated. I am ultimately of the view that it is difficult to draw a conclusion either way about whether or not you were drug affected at the time of the offending, although I note your condition on the day of the offending was such that you were not able to be interviewed following your arrest, according to the police, because you appeared drug affected. In any event, the clinical evidence of Ms Acciarito, who has worked closely with you since 2017, supports the conclusion that you must genuinely engage with support services targeting substance use if you are to stabilise your mental health and ultimately reduce your risk of reoffending.

Sentence considerations

31Ms Edwards highlighted a number of matters in mitigation.

32First is your plea of guilty. The matter proceeded to this court by way of straight hand-up brief and no witnesses have been cross-examined. As such your plea has saved significant court time and expense and therefore has facilitated the course of justice. Your plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]

[1] Worboyes v The Queen [2021] VSCA 169, [39].

33It was submitted on your behalf that your offending in this instance must be viewed within a matrix of not only your significant and longstanding schizophrenia symptoms, but also your exploitation by the couple whom you trusted and believed to be your next of kin, and who ultimately deprived you of much needed financial and mental health care support. Ms Edwards notes that it was your failure to have a valid Myki ticket which brought you to the attention of police, and the severity of your mental illness symptoms was such that you were not able to explain to the officers why you did not have money for the fare.

34Ms Edwards also submitted on your behalf that all six limbs of Verdins are enlivened on the basis of Ms Cidoni’s report. Your long term diagnoses are undoubtedly debilitating and difficult for you to manage on a day to day basis and I take them into account as part of your personal circumstances. However in my view in all the circumstances, the evidence does not provide for a realistic or causative connection to the offending in order to enliven limbs 1 to 4 of Verdins. Also, there remains some uncertainty as to whether your substance use played a part in the offending – you maintain that you were not under the influence however, as noted, you were assessed as unfit for interview due to being drug affected in the view of the police. As to Verdins limbs 5 and 6, I note the comments of Ms Acciarito in her letter of 3 July 2023, that during your time in custody your mental state has remained very stable and you have continued to voluntarily accept your psychiatric medication. As such in all the circumstances I am not satisfied that Verdins principles 5 and 6 are enlivened.

35Turning to your prospects of rehabilitation, you come before the court with a limited prior criminal history and you have in the past complied with community dispositions. You now have the availability of a properly managed NDIS package upon your release and the support of Mercy Mental Health and it likely that you will be placed on a further CTO. In all the circumstances, while your future direction depends largely on you utilising the supports offered to you in the community, you have demonstrated that you are willing and able to engage with health professionals and you have good insight into your illness. As such in my view your prospects of rehabilitation are reasonable.

36Ms Edwards submitted that a special reason exists pursuant to s 10A(2)(c)(i) of the Sentencing Act, as you had impaired mental functioning that is causally linked to the commission of the offence and/or pursuant to s 10A(2)(c)(ii), you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden of imprisonment.

37In my view, for similar reasons I have found in relation to the application of Verdins principles, I am not satisfied that your mental functioning is causally linked to the offending. Further, while I have taken your mental functioning into account in the general sentencing discretion, I am not satisfied that your condition would subject you to substantially and materially greater than the ordinary burden or risks of imprisonment.

38Ms Edwards submitted that while a term of imprisonment may be required in relation to Charge 1, that in the circumstances a community correction order would be able to meet the relevant sentencing principles in relation to the remaining charge. I accept that submission. I had you assessed for such an order and you have been found suitable. As part of the assessment it was also recommended by the Mental Health Advice and Response Service that a mental health condition should form part of any community correction order with the intention that you also maintain your current supports.

Sentence

39Mr Akoch, would you please stand.

40Emmanuel Akoch, on Charge 1, causing injury recklessly, you are convicted and sentenced to 6 months imprisonment.

41On Charge 2, assaulting an emergency worker on duty, you are convicted and will be placed on a community correction order for a period of 2 years. In addition to the standard conditions, you will be required to undertake treatment for your mental health and you will be subject to supervision. You will also be required to attend court for Judicial Monitoring.

42On Summary Charge 4, commit indictable offence whilst on bail, you will be convicted and discharged.

43Pursuant to s 18 of the Sentencing Act, I declare that 157 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

44Pursuant to s 6AAA of the Sentencing Act, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 16 months imprisonment with a non-parole period of 10 months.