Director of Public Prosecutions v Arow

[2019] VCC 818

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-02414

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY AYUM AROW

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2019
DATE OF SENTENCE:	4 June 2019
CASE MAY BE CITED AS:	DPP v Arow
MEDIUM NEUTRAL CITATION:	[2019] VCC 818

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:     Plea of guilty – three charges of armed robbery – carrying prohibited weapons without exemption or approval - committing an indictable offence whilst on bail – imitation firearm – 20 years old at the time of offending – youthful offender – mitigatory principle of youth diminished – significant prior criminal history involving other serious violent offences – specific deterrence. 

Legislation Cited:  Crimes Act 1958 (Vic), Control of Weapons Act 1990 (Vic), Bail Act 1977 (Vic), Sentencing Act 1991 (Vic).

Cases Cited:  Azzopardi v The Queen (2011) 35 VR 43 at [44].

Sentence:      Total Effective Sentence of 5 years imprisonment, non-parole period of 2 years and 8 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Dickson (Sentence) Ms M. Brown (Plea)	Office of Public Prosecutions
For the Accused	Ms L. Dubroja	Slades & Parsons

HIS HONOUR: 

Introduction

1Timothy Ayum Arow, you have pleaded guilty to three charges of armed robbery contrary to s75A(1) of the Crimes Act 1958 which carries a maximum penalty of 25 years imprisonment in each instance.

2You have also pleaded guilty to two related summary charges:

3Charge 8, carrying prohibited weapons without exemption or approval being a Tazer knuckle duster, a flick knife and a sling blade contrary to s5AA of the Control of Weapons Act 1990, which carries a maximum penalty of 2 years imprisonment.

4Charge 11, committing an indictable offence whilst on bail contrary to s30B of the Bail Act 1977, which carries a maximum penalty of three months’ imprisonment.

5You have also admitted your prior criminal record.

Circumstances of the offending

6An Agreed Summary of Facts was tendered on the plea which may be summarised as follows:

Charge 1

7On 24 August 2018, the complainant in this matter, bus driver Amarbir Boparai, was driving a bus in Dandenong. You and three other males boarded the bus on Menzies Avenue at approximately 7.30 pm. You and the other males walked straight to the back seat and sat down. Mr Boparai stated that he could smell alcohol when you boarded the bus. You and the other males chatted amongst yourselves before one of you pressed the buzzer for the bus to stop at the next stop. The other three males got off the bus at the next stop, at Ann and Cleeland Streets. You remained on the bus and changed your seat so that you were sitting at the front of the bus, opposite Mr Boparai.

8You then pointed what Mr Boparai believed to be a semi-automatic gun at Mr Boparai and demanded that he give you money, stating “Just give me money”. Mr Boparai recalls seeing what he thought was the black barrel of the gun, but that the rest of the gun was covered in a sand coloured dirty hanky. At the point that you made the demands, you had your face covered with something like a black hanky or balaclava, and you had pulled your hood over your head.

9Mr Boparai was scared that you were going to shoot him as you kept yelling “Give me money, give me money”. Mr Boparai gave you $50 from a pouch.

10You then yelled “Open the door”. Mr Boparai told you that the door was already open and you turned and ran. Mr Boparai drove to the next stop at Herbert and Cleeland Streets, where he pressed the duress button and called both the police and his employer.

Charge 2

11Also on 24 August 2018 at about 7.45 pm, Mr Kandasamy Vadivel was sitting in his parked car, a Honda Civic, on Herbert Street, Dandenong. Mr Vadivel was on the phone when four males, one of which was you, approached his front passenger door. One man physically entered the car and sat in the front passenger seat. One male pointed what Mr Vadivel thought was a grey coloured firearm in his face and demanded the car key and Mr Vadivel’s wallet.

12Mr Vadivel took the key from the ignition, got out of the car and ran away, calling for help and banging on the door of a neighbouring house. As he was getting out of the car, the male who was in the vehicle snatched Mr Vadivel’s mobile phone from his hand. You and the three other males followed him. The one male again demanded Mr Vadivel’s wallet and car key, and said “I’m going to shoot you”. The male then tried to grab the car key from Mr Vadivel’s hand, but Mr Vadivel shouted “police, police, police” and all four of you ran away.

13The mobile phone taken from Mr Vadivel was an iPhone 8 valued at approximately $1200.

14This charge is put on the basis of acting in concert, as no specific role can be attributed to you. However, by your plea of guilty, you have acknowledge your part in the commission of this offence.

Charge 3

15On 24 August 2018, Ms Farah Abdullah was at home with her three children watching television. Just before 8pm she heard a knock at the door. She followed her seven year old son to the door.

16You were standing on the doorstep with a covering over your face. There was a second person hiding outside, however Ms Abdullah was unable to clearly see the second person. You were holding what Ms Abdullah believed to be a firearm. Initially, this was pointed at Ms Abdullah’s son, and then at Ms Abdullah herself.

17You said to Ms Abdullah “I’ll shoot you, I’ll shoot you”, and then you threatened to shoot her son by pointing the gun towards her son’s face. You demanded Ms Abdullah give you her mobile phone. Ms Abdullah, who was holding her mobile phone at the time, gave you her white Oppo branded phone. You then turned and left.

Arrest

18Police Air Wing advised that they had observed two persons walking down Berry Lane, Dandenong, shortly after the armed robberies. Other police officers, acting on that information, located and arrested you. They conducted a pat down search and searched a bum bag which also belonged to you, locating the Oppo branded phone, along with a silver and black coloured cut throat razor, a set of Taser knuckle dusters and a silver flick knife, Summary Charge 8.

19Police also located $50 of currency matching the denominations of those taken from Mr Boparai, being 1 x $10 note and 8 x $5 notes.

20Two other males were arrested in Close Avenue Dandenong, not far from where you and the second male were located and arrested. Also found in Close Avenue under a doormat at a block of flats, was the mobile phone that had been taken from Mr Vadivel.

21You participated in a taped record of interview on the morning of Saturday 25 August 2018 in which you said that you could not remember what happened the previous night. You were shown CCTV images taken from the bus and denied your involvement, saying that the police had the ‘wrong person’. You exercised your right to make no comment in relation to the armed robbery of Mr Vadivel and of Ms Abdullah, and in relation to the possession of a prohibited weapon.

22The weapon which the complainants thought was a firearm was actually a knife that was being used as an imitation firearm.

23You were on bail at the time of this offending, Summary Charge 11.

Objective seriousness of the offending

24It is self-evident that the circumstances that make up each of the armed robberies are serious. In each instance you approached vulnerable victims who were simply going about their daily lives. In each case the victims were isolated and may be referred to as soft targets because of the circumstances in which you approached them.

25The seriousness of the offence of armed robbery is also reflected in the maximum penalty imposed by Parliament, which is 25 years imprisonment.

26In each case you produced a weapon, which you intimated to the victims was a firearm. In the case of Mr Boparai, he believed you were holding a semi-automatic gun. In the case of victims Mr Vadivel and Ms Abdullah, you threatened to shoot them, and in the case of Ms Abdullah you also pointed the weapon towards her seven year old son’s face, after threatening to shoot Ms Abdullah.

27There can be no doubt that your conduct would have been a frightening experience for the victims involved. In relation to charge three, you did not moderate your words or conduct despite the fact that a young child was with his mother at her front door when you threatened to shoot her.

28In my view, these are all serious examples of this type of armed robbery on vulnerable victims.

Victim Impact Statements

29Each of the victims provided victim impact statements that were tendered and read on the plea.

30Amarbir Boparai states that the incident has adversely affected his sleep, he continues to see your face in his mind and that he could not go back to work for a number of days. He notes that before the incident he had worked in his job for 10 years, and never felt fear until this incident.

31Kandasamy Vadivel states that he was scared that someone was suddenly in his car, and although at the time he did not believe you would shoot him, he now has thoughts that he could have died. As such, he now locks his car doors and is scared someone will open them. He notes that it took him about seven months to get over the incident.

32Farah Abdullah states that since the incident she wakes up feeling anxious. She has lost her sense of security and does not feel safe in her own home. Ms Abdullah cannot erase the image of a gun pointed at her and her son. She believed the gun was real, and believed you would shoot her and her son. She thinks she failed to protect her children. Her son continues to ask her if ‘the bad guy will come again’.

33I have taken the contents of the victim impact statements into account.

Personal circumstances

34You are 21 years old and you were 20 at the time of the offending.

35Your mother fled the war in South Sudan while still pregnant with you and you were born in a in a refugee camp in Egypt in 1998. You are the youngest of five children. You have not met your father due to your father’s refusal to immigrate to Australia. You moved to Australia in 2002 when you were four years of age.

36Your family relied on charitable support for a number of years and ultimately gained permanent housing in 2009. Because of the instability of your early years in Australia, you changed schools a number of times and required assistance due to English being your second language. You attended Maribyrnong College for years seven to nine. You were expelled during year nine due to your high rate of absence. You enrolled in an alternative education program through the Melbourne City Mission, however you were not able to complete year 10 as result of being remanded in custody in 2014.

37You began a Certificate II in Building and Carpentry at Sunshine Polytechnic in early 2016, however again you were not able to complete that course because you were remanded in custody for further offending.

38From ages 16 to 21 you have spent the majority of your life in detention. You spent some time in the community between the ages of 18 to 19. Your first appearance in the Children’s Court was in 2014 where you were detained at a youth justice centre for a period of 12 months, as a result of being convicted on charge of intentionally causing serious injury. I was told that that injury was as a result of you stabbing a 14 year old boy in the neck.

39You were paroled in October 2014, however you reoffended a short time later. You were again paroled in January 2015 that parole being cancelled in March 2015 for further offending. You have a number of other appearances in court, significantly in November 2015 when you were sentenced to 16 months in a youth justice centre as a result of serious offences including armed robbery. In June 2016, you were given another nine month period of detention in a youth justice centre in relation to a number of charges of burglary and theft.

40When you were last back in the community at the age of 18, you did not return to reside with your family, rather you resided with friends. You met your current partner during this period and before being remanded in relation to this matter, you had moved in with her and her child.

41You have in recent times suffered significant trauma. Your eldest brother Richard was the victim of a shooting at a nightclub in Prahran on 14 April 2019. Your brother was an innocent patron at the nightclub, however he received catastrophic injuries from which he passed away on 19 April 2019. You were released on bail on a compassionate basis in order to attend the Alfred Hospital to say goodbye to him before his life support was turned off. You also attended his funeral on compassionate leave on 11 May 2019.

42You do not have a significant drug history, although you state that you tried marijuana at about the age of 14. You have denied use of any other illicit substance. However, with respect to alcohol you have had a significant problem. You began drinking at the age of 15. In relation to this offending, you state that you had been drinking heavily during the day and were extremely intoxicated when these offences occurred.

43A report was prepared by clinical psychologist Carla Lechner, and tendered on the plea. Although Ms Lechner only interviewed you on one occasion via audio visual link, she was able to administer some testing. Ultimately, Ms Lechner drew the conclusion that you are evidencing symptoms of clinical depression and that you fulfil the criteria of a diagnosis of adjustment disorder with depression, which is reactive to your brother’s recent death.

44Ms Lechner is of the view that your ability to reflect on the impact that your behaviour has on both yourself and others is hampered by social and emotional factors that cloud your judgement. You conceded to her that you are easily angered and short tempered. You stated that if someone speaks to you in a disrespectful manner you can ‘self-destruct’ and ‘blow up.’

45Ms Lechner also conducted testing in relation to your risk of violent reoffending. Having reviewed the various categories relevant to that test, Ms Lechner concluded that you currently present as a moderate/high risk of violent behaviour. She notes that that risk would be reduced through the absence of substance abuse and psychological assistance to manage your impulsivity and low mood.

46Six reference letters were tendered on the plea, which I have read and taken into account. Most of those letters were written by family members and one was from your current partner. It is clear from the letters that you have a loving and supportive family who continue to believe that you have the ability to turn your life around. One letter was prepared by Mr Ring Mayar who is the Chairperson of the South Sudanese Community Association. Mr Mayar has known you for a number of years and speaks of your talent as an outstanding sportsman. He too believes you are able to turn your life around, and has offered to continue to support and counsel you.

47Following the plea hearing I received a letter written by you. In that letter you express the regret you feel in relation to your offending. You apologise to the victims and acknowledge the fear and trauma you caused them by your actions. You also speak of the great effect your offending has had on your family in this instance, and in relation to your previous offending.

Sentencing considerations

48Turning firstly to your plea of guilty. Your plea of guilty in relation to these offences was entered at the first committal mention. As such it is a plea at the earliest opportunity and has, as a consequence, avoided the need for a committal and a trial. Your plea has therefore saved court time and resources, and most importantly has avoided the need for witnesses to give evidence and relive the events. In all the circumstances your plea demonstrates a willingness to facilitate the course of justice.

49There is some evidence of you demonstrating genuine remorse, and in my view you are beginning to appreciate the effect of your conduct on others. While you seem to have some appreciation that when heavily intoxicated and in a distressed state your judgement and decision-making can be adversely affected, it involves a further degree of insight in order to express genuine remorse towards the victims of your conduct, and in my view you still have some distance to go. Further, your brother’s death has had a significant impact on you and you have become acutely aware of the impact of violent offending on innocent people. As a result, you have begun to appreciate the psychological impact on victims of crime and their families.

50At 21, you are a youthful offender. I am also mindful of the fact that you were 20 at the time of the commission of the offences. With youthful offenders the starting position generally is that youth, and therefore rehabilitation, should be the primary sentencing consideration. However, in your case, where you are pleading guilty to very serious offences, together with the fact that you have at 21, a significant prior criminal history involving many other serious violent offences, the principle of youth must give way to other sentencing considerations.

51As was noted by Redlich JA in Azzopardi v The Queen[1]:

The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.

[1] (2011) 35 VR 43 at [44].

52In my view while the principle of youth must be diminished in your case, you do have some prospects of rehabilitation. You have a very strong and supportive family who will continue to support you on your release. While you have some difficulties with alcohol, you do not have any other drug issues to deal with. Further, you and your family have suffered enormous trauma with the violent death of your brother. I have no doubt that this event has had a significant effect on you and may well be the catalyst in turning your life away from crime and dealing with some of the issues that draw you into that life.

53That said, your prospects must be approached with caution. You have prior history for violent offending, including a prior for armed robbery, and you have been assessed as a moderate/high risk of reoffending. While you are fortunate to have family and community support, you need to make significant changes to avoid the risk of reoffending. For similar reasons, in my view specific deterrence must be given weight in the sentencing discretion.

54Ms Brown who appeared on behalf of the Director of Public Prosecutions, emphasised the objective gravity of the offending and that the offence involving Ms Abdullah and her son was most aggravating. I agree. I also accept her submission that general deterrence, denunciation of your conduct and protection of the community are also important sentencing considerations.

Sentence

55Mr Arow, please stand.

56Timothy Ayum Arow, on Charges 1 and 2, armed robbery, you are convicted and sentenced to 3 years and 6 months imprisonment on each charge. On Charge 3, armed robbery, you are convicted and sentenced to 4 years imprisonment.  This will be the base sentence.

57On Summary Charge 8, carrying prohibited weapons without exemption or approval, you are convicted and sentenced to 4 months imprisonment.

58On Summary Charge 11, committing an indictable offence whilst on bail, you are convicted and sentenced to 1 month imprisonment.

59I direct that 6 months of the sentence on Charge 1 and 2 be served cumulatively on each other and on Charge 3, making for a total effective sentence of 5 years imprisonment. I direct that you serve 2 years and 8 months before becoming eligible for parole.

60Pursuant to s.18 of the Sentencing Act 1991, I declare that 213 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.

61Pursuant to s.6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a period of imprisonment of 6 years and 6 months' imprisonment, with a non-parole period of 3 years and 6 months' imprisonment.

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