Director of Public Prosecutions v Atonio
[2020] VCC 1280
•21 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02548
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JUSTIN ATONIO |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 July 2020 | |
DATE OF SENTENCE: | 21 August 2020 | |
CASE MAY BE CITED AS: | DPP v Atonio | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1280 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of armed robbery and one summary charge of committing an indictable offence whilst on bail – 20 year old offender – prior convictions for theft, robbery and assault by kicking and also for possessing a controlled weapon without excuse, stating a false name when requested and contravening a conduct condition of bail.
Cases Cited:Boulton v R [2014] VSCA 342; R v Verdins (2007) 16 VR 269; DPP v O’Neill [2015] VSCA 325
Sentence: Total Effective Sentence of 21 months’ imprisonment, with a non-parole period of 14 months. s6AAA: Total Effective Sentence of 3 years’ imprisonment, with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Maguire | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr G Chisholm with Mr M Murphy | James Dowsley and Associates |
HER HONOUR:
1 Justin Atonio, you have pleaded guilty to one charge of armed robbery which carries a maximum penalty of 25 years’ imprisonment. You have also consented to one summary charge of committing an indictable offence whilst on bail being heard in this Court and have pleaded guilty to that offence. It carries a maximum penalty of three months’ imprisonment or 30 penalty units.
2 Your offending is summarised in the Prosecution Opening (Exhibit “A”).
3 Your victim of the armed robbery was a 17 year old Year 11 student who was travelling home after having attended tutoring in maths. At approximately 3.46pm on 15 September 2019, he boarded a bus at Sunshine Railway Station. He was travelling alone and sat at the rear and was the only passenger on the bus. You then boarded the bus and had two females in your company. Towards the end of the bus journey, you approached your victim and asked him for money, but he told you that he did not have any. You then produced a knife which you pointed at your victim, demanding that he give you his phone. A photograph of the knife has been tendered as Exhibit “B”.
4 Your victim handed over his phone and you asked for his passcode to the phone. You assured him that, if he gave it to you, you would return the phone. Your victim provided the passcode. When the bus reached its final stop in Sunshine West, you and your victim alighted from the bus together. Your victim asked for the return of his mobile phone, but you struck him to the face, causing his glasses to fall off. Whilst he was looking for his glasses, you left, taking his phone with you.
5 Following the armed robbery, you walked to another bus stop and caught a bus back to Sunshine Railway Station. As you exited the foot tunnel at the railway station, police approached you and told you that you were going to be searched. This action was not related to your commission of the armed robbery, of which the police were unaware. The knife which you had pointed at your victim was in your jacket and officers also located two mobile phones. You told police that your victim’s mobile phone belonged to you and you entered the passcode. Police retained possession of the knife but, as I have stated, at that stage, they were unaware that it had been used in the offending against your victim.
6 At the time of committing the armed robbery, you were on bail for charges of assault and theft for which you were due to appear in the Broadmeadows Magistrates’ Court on 26 November 2019. The fact that you committed an armed robbery whilst on bail is the basis for the summary charge to which you have pleaded guilty.
7 You are presently aged 21 years, having been born on 15 August 1999. You were aged 20 years at the time of the offending.
8 You come before the court with the following criminal history:
· On 7 February 2019, you appeared at Sunshine Magistrates’ Court on charges of theft from a shop, robbery and assault by kicking. Without conviction, these matters were adjourned upon you entering into an undertaking to be of good behaviour for a period of 12 months with a condition that you complete the Youth Junction Program.
According to the prosecution summary relating to this offending, you had committed the robbery and assault on 15 August 2017. At 9.00pm, your victim had left work at a pizza shop in Caroline Springs and was walking towards Coles. He had a pizza in his possession. At the bus stop you approached him and asked him for cigarettes, money and some of his pizza. Your victim gave you a slice of his pizza and then kept walking and crossed the road. He was then approached by you again. You were in the company of another male. Your victim was asked for his pizza and his phone. When he refused, he was pushed to the ground. He got up, but you and your co-offender demanded his phone and pushed him down again, and then kicked him to the face, causing him to blackout. When your victim came to, he found that his phone, wallet, jacket, shoes, glasses and bag had all been taken from him.
Two days later, on 17 August 2017, you and two other males entered Dan Murphy’s liquor store at Taylors Lakes at approximately 4.45pm. You stole a bottle of rum from the store.
· On 28 August 2019, you attended before the Bail and Remand Court in Melbourne on a charge of possessing a controlled weapon without excuse, which had been committed earlier on that same day. You were convicted and fined $600. You were also convicted of stating a false name when requested and contravening a conduct condition of bail, for which you received a further aggregate fine of $600.
The Court was informed by the prosecutor, Ms Maguire that the circumstances of this offending were as follows: you were on bail for the previously mentioned offences of assault and theft for which you were due to appear at Broadmeadows Magistrates’ Court. It was a condition of your bail that you not attend the Melbourne CBD. In contravention of that condition, you were present at Hosier Lane in the city on 28 August 2019. You were in the company of two other males and a female. A member of the public observed you place a small axe down the front of your pants before entering a clothing store. The person who made the observation called 000 and, at 12.55pm, police attended Hosier Lane, where they located you and conducted a search pursuant to the Control of Weapons Act 1990. Down the front of your pants, police located an axe of 40 centimetres in length. When police asked for your name and address, you provided a false name. However, police detected that you were not telling the truth and you ultimately provided your actual name.
· The previously mentioned offences of assault and theft, with which you had been charged on 29 July 2019, are still awaiting resolution at Broadmeadows Magistrates’ Court pending the outcome of the sentence imposed by me on the charges of armed robbery and committing an indictable offence whilst on bail.
The prosecutor stated that the outstanding charges allegedly relate to events which occurred when you were part of a group of males and females who entered the Converse store at the Direct Factory Outlet in South Wharf. The group engaged in rowdy behaviour and security staff were called. As the group left the store, the store alarm sounded. A security officer approached the group of which you were part. You allegedly punched the security officer three times to the side of his head, and nearby police arrested you. You were found to have in your possession a pair of stolen shoes valued at $100. I mention these matters as counsel drew them to my attention during the plea hearing in order to explain the breach of bail offences but, at the time of passing sentence upon you, you have not been convicted of any charges relating to the alleged events. Hence, they are not to be taken into account as part of your prior criminal history.
9 In a plea on your behalf by Mr Chisholm, the Court was told that you were born in Samoa, where you lived for the first four years of your life, but claim that you were largely raised by your grandparents because your parents were always working. You and your siblings and mother and father moved to New Zealand, where you lived from age 5 to 11 years, following which the family came to live in Australia. You apparently still have relatives residing in Samoa to whom you are close, namely your grandparents and two of your sisters.
10 It was a significant part of the plea on your behalf that you had been subjected to very seriously violent physical abuse and emotional abuse by your parents from a young age, as detailed in a psychological report from Mr Ball dated 18 February 2020 (Exhibit “1”) and by Ms Ferrari dated 26 July 2020 (Exhibit “2”). In essence, it was put on your behalf that the abuse from your parents had resulted in a Persistent Depressive Disorder and a stimulant, cannabis, opioid and alcohol use disorder according to Mr Ball, or a Major Depressive Disorder, Persistent Depressive Disorder, Post-Traumatic Stress Disorder and Cannabis Use Disorder and Alcohol Use Disorder according to Ms Ferrari.
11 Mr Chisholm told the Court that, in the context of family dysfunction, you had begun running away from home at age 14 and used alcohol and drugs to “self-medicate” for the distress that you felt from your parents’ abuse. You apparently ceased attending school from approximately age 14 or 15 and have had only sporadic employment in unskilled positions since, the most recent of which appears to have been in late 2018 or early 2019.
12 It was put on your behalf that you had regularly suffered periods of homelessness and, on the day of committing the armed robbery, you and your partner, Monica, had again been rendered homeless. Monica was aged 19 years and was the mother of your two year old son and was pregnant with your second child (who was later born in March 2020). Mr Chisholm submitted that your motivation for the armed robbery was to obtain something to sell for food or accommodation.
13 During the plea hearing I expressed my concern that the opinions of Mr Ball and, more particularly, Ms Ferrari, were based solely upon your self-report. I asked your counsel whether he had any corroborative evidence of the physical and emotional abuse which you claim to have suffered from your parents. Interestingly, a reference from both your mother and father had been tendered on your behalf as part of Exhibit “3”. I asked Mr Chisholm whether the Court was going to be hearing from your parents, but he claimed that he did not propose to call them but, rather, to have you swear on oath as to the abuse.
14 You then gave evidence on oath. You stated that you had little recollection of your time in Samoa and were largely reared by your grandparents as your parents were working. After you moved to New Zealand at approximately age five years, you described your parents as being present but always working, so that you only saw them in the evenings. You claimed that you would be punished for “the tiniest little mistake” as they cared more about what others thought of them and you were abused when you did something to make your family look bad. You stated that the abuse started with a slap or hit on the ear and progressed to you being struck with a wooden spoon to the head or belted or slapped or punched multiple times. Your father would make you take off your shirt and whip you with a belt on your back, stomach and legs and you would get bruises or welts. Your mother was aware of this. The abuse came from both parents and your mother would use whatever she could get her hands on, such as shoes or jandals. You thought that this was a normal thing in Polynesian families. You claimed that, at times, the abuse could be more than once per day and could be more than once or twice per week. It had continued up until age 11 and got to the point where you were struck with extension cords or sticks or pieces of wood. You claimed that your parents would say that they wished you had never been born and that you were a disgrace to the family. You stated that they claimed that they punished you out of love. You were aware that there were other Polynesian children who were treated as harshly by their parents as you were by yours. You claimed that you did not tell anyone because you did not want to get your parents into trouble.
15 You stated that, when you came to Australia, the whippings you received with an extension cord never stopped. You and your family were living with an uncle and aunt and you used to see your cousin getting the same sort of treatment from his parents, even though he was older than you. The treatment by way of whipping on your back and legs, after you had been made to strip off your clothes, continued and your mother would step on your foot and you would be told that you were a waste of a life and your parents wished that you could live out on the street. You said that you felt unwanted. You stated you tried to run away because you felt that your parents did not love you and you no longer had their trust, but they would find you and tell you to come home and that things would change. From age 14 you had run away a few times, but, when you returned, the violence would stop for the first week and then be back to the same thing as before. Both of your parents described it as “tough love”.
16 You claimed that you felt sad and started drinking alcohol at age 14 and then, by age 14 or 15, you began using cannabis, as well, because it made you feel good. You engaged in this with other boys who were around the same age as yourself. Your counsel asked “What were you thinking when you did this?” and you stated, “I did it so as not to think about home.” You stated that you did not really think of the negative consequences of alcohol and drug use, but sometimes thought it would be good if you overdosed and died because you did not care as your parents did not want you. From age 15 to 16 you were smoking more cannabis. When your counsel asked you why you were smoking more then, you stated, “It took me away from home. I used to not want to come home. I wanted to stay out.”
17 In your sworn evidence you stated that you had most recently been asked to leave your parents’ home towards the end of 2018 or the beginning of 2019. This had happened after some form of argument involving your mother and your partner, Monica. After that, you moved to an uncle’s house for one or two or three months, but stated that there had been times when you had slept in a car belonging to your partner’s brother. In or about July 2019 you and your partner moved into the home of a cousin of your partner but, on the day of the armed robbery, there was an argument over you having missed payment of rent, which resulted in you leaving that house in Sunshine West. You claimed that, as your partner was pregnant with your second child, you were trying to get money to find some accommodation and you described the armed robbery occurring in the context of you “doing whatever I had to do to get the money”. You stated you did not want her to be on the street. Your counsel asked what your mindset was when committing the armed robbery and you stated, “not thinking”. You conceded that you had been under the influence of drugs, having taken ice on each of the nights preceding the armed robbery. You claimed that you were too embarrassed to go back to ask your parents for assistance after having been asked to leave there because of the argument. You agreed that you were drug-affected during the behaviour that had caused your parents to kick you out, but claimed that you were not aggressive and also that your parents had no idea about your alcohol and drug abuse. You stated that you love your parents despite their abuse and they had still put clothes on your back and food on the table. They had come to see you in custody and told you that, if you had listened to them, you would not be in custody. You think that they are right about that.
18 Mr Atonio, I must say that I do not find you to be a very convincing historian. As mentioned to your counsel prior to your giving evidence I found a number of inconsistencies in the histories which you had given to Mr Ball, the psychologist who assessed you on 18 February 2020 and provided a report in support of your bail application, and that given to the psychologist, Ms Ferrari, who saw you on 25 July 2020, just four days prior to the date upon which the plea hearing was listed. I note that Mr Ball stated that he saw you over a 90 minute consultation. Ms Ferrari did not reveal the length of her consultation, although her report is the longer and more detailed. Some of the inconsistencies are as follows:
·You told Mr Ball that you had been an average student at school and had not experienced significant difficulties with social development or discipline.[1] On the other hand, you told Ms Ferrari that during your primary education in New Zealand you were often in trouble for general misbehaviour. You understood the curriculum but chose not to put in effort or complete school work. You also told her that, after your family moved to Australia and you transferred to St Albans Secondary College, you began to rebel and were suspended multiple times for physical altercations and eventually expelled in Grade 10. You later attended an alternative school, which you believed to be associated with the Youth Junction Program, however you did not like school and began truanting and associating with negative peers.[2]
·Whilst on remand at Ravenhall on 18 February 2020 you told Mr Ball that you were not prescribed any regular medications and considered yourself to be in good health. He found your mental status examination to be broadly unremarkable and you denied any significant symptoms of depression or anxiety and described your mood in mostly stable terms, although you stated that you had been experiencing some minor anxiety relating to your current circumstances.[3] When seen by Ms Ferrari on 25 July 2020, you reported low mood and stress regarding the outcome of your sentencing and possible deportation, such that Ms Ferrari diagnosed you as suffering with symptoms consistent with a Major Depressive Disorder preceding, during and post offending, as well as having a Persistent Depressive Disorder and also symptoms of Post-Traumatic Stress Disorder (of which Mr Ball recorded none). Whilst it is understandable that your mood and anxiety might increase as your plea hearing and sentence became imminent, it is difficult to understand why you would not have mentioned symptoms of Post-Traumatic Stress Disorder to Mr Ball.
·You gave a history of substance abuse to Mr Ball, namely that you began drinking alcohol at age 14 with a pattern consistent with heavy binge drinking and, on a weekend, would often consume two slabs of full strength beer at night. You also stated that you used up to 7 grams of cannabis daily, .5 of a gram of methylamphetamine and varying quantities of Buprenorphine to help you sleep.[4] On the other hand, you told Ms Ferrari that you began smoking cannabis around the age of 14‑15 “to self-medicate (your) depressive symptoms and block out the negative thoughts caused by (your) parents’ hurtful comments towards (you). This gradually increased and (your) average use was estimated to be around 14 grams per day as it was easily accessible to (you). (You) also began abusing alcohol at this time and reported that by age 16 (you were) drinking heavily at least four or more days per week. (You) also used recreational pills (MDMA) in social settings and abused benzodiazepines such as Xanax to reduce the effects of withdrawal. (You) admitted to occasional methamphetamine use but noted that this was not regular and (you) would not seek it out on (your) own, only smoking (it) if offered by friends.”[5]
[1]Exhibit “1” page 3
[2]Exhibit “2” paragraph 32 page 4
[3]Exhibit “1” page 2
[4]Exhibit “1” page 3
[5]Exhibit 2 paragraphs 52 to 53 page 5
19 I had the opportunity of hearing and seeing you give sworn evidence over a period of some 3 hours spread over two days. I must say that this enhanced my impression of you as an unreliable historian. In your sworn evidence you stated that you stole your victim’s mobile phone for the purpose of trying to get money for accommodation. In your record of interview conducted on 20 September 2019, you had initially told police that you’d been kicked out of home and your partner was hungry.[6] However, later, you told them that you were going to keep the stolen phone but you didn’t like being on the street for days and your partner was getting hungry. You stated that you sold the stolen phone for $150 and that got you one night’s accommodation in a hotel. That was a couple of days after the armed robbery.[7] However, you later repeated that you had been holding on to the phone because you thought “I’ll keep it”, but as “the girls” were hungry and your partner had “cravings”, you decided to sell the phone for money.[8]
[6]Record of Interview, Q&A 13
[7]Ibid, Q&A 158 - 159
[8]Ibid, Q&A 172 - 176
20 Neither the explanation that you urgently needed the money for food or accommodation made sense in the light of the fact that you told police that it was not until two days later that you actually sold the mobile phone in the CBD area for $150. Moreover, you told police in your record of interview that two days previously (that is, on 18 September 2019) your partner had purchased a new mobile phone and given her old one to you.[9] There also seemed to me to be a tension between you claiming that you committed the offence out of homelessness and necessity and your own sworn evidence that you were affected by methamphetamine and were not thinking at the time. Further, when I asked you a number of questions whilst you were giving evidence on oath, you agreed that arguments in which you had become involved were the immediate cause of you having been asked to leave your parents’ home, as well as having been asked to leave the home of your partner’s cousin where you had been staying up until the day of the armed robbery. You conceded that on that day you had become aggressive when you became involved in an argument that your partner was having with her cousin and that this was because you were under the influence of ice. You stated that your partner pushed you away because you had moved between her and her cousin. You also conceded that you had been drug-affected in the behaviour which had caused you to get kicked out of your parents’ home, although claimed that you were not aggressive. In any event, it is clear that 5 days later, when you were arrested by police, you were back living at 3 Ryker Place, Sunshine West, from which you had been “kicked out”, although you did tell police that you had not thought that you would be back staying there anymore.[10]
[9]The purchase of a mobile phone by your partner does not suggest an absence of funds with which to buy food.
[10]Record of Interview, Q&A 49
21 My impression of you is that you would say anything to assist your current predicament. After I had mentioned to your counsel the differing histories about your drug use given to Mr Ball and Ms Ferrari and, in particular, that you had mentioned a habit of up to 7 grams of cannabis per day to Mr Ball, but 14 grams of cannabis per day to Ms Ferrari, your sworn evidence about this conveniently became a habit of “7 to 14 grams per day.” Apart from the fact that I find it unlikely that you would be able to quantify your cannabis use with any precision, given that you claimed that it was being provided to you by friends, this does not explain your history of only occasional methamphetamine use to Ms Ferrari compared to daily use of .5 of a gram to Mr Ball.
22 The other significant concern I hold about your evidence relates to your truthfulness or otherwise as to the nature and extent of physical and emotional abuse alleged to have been inflicted upon you by your parents. As previously stated, at the plea hearing, references were tendered from each of your parents. Presumably, they were tendered on the basis of inviting the Court to find that your parents are people of good character, who should be believed. Your father stated that you deserve another chance because he believes you have learned your lesson and he will do his best to support you to keep you from getting into trouble. Your mother stated that since being in detention, you speak with some maturity “unlike the childish Justin that I knew.” She stated that you were very much involved with the church youth group and that you are a person “of good character” and honest and reliable “but have just made some wrong choices.”[11] Yet, much of the plea hearing was devoted to impugning your parents’ character as people who had relentlessly abused you both physically and emotionally. This is a curious situation. Either I reject the references as being of no weight because I believe your evidence that your parents have been relentless violent child abusers, or I draw the inference that, had your parents been called, their evidence would not have assisted your plea in mitigation. When I raised the issue as to whether the failure to call your parents to give evidence opened the discretion to draw an inference adverse to the defence case, I was offered no assistance by either counsel for defence or the prosecution. In all the circumstances, I do consider it appropriate to infer that, had your parents been called, their evidence would not have assisted your case.
[11]See references forming part of Exhibit “3”
23 I must express my concern that it is becoming increasingly common for material to be put before a Court which has seemingly not been critically analysed by the party tendering such evidence. It is also of concern that, in circumstances such as those which exist in this case, no issue is taken by counsel for the prosecution with portions of plea material which contain obvious inconsistencies. It is the role of counsel to assist the Court to arrive at a sentence which is just and fair in all the circumstances. Specifically, where the defence plea in mitigation is heavily reliant upon allegations of serious childhood abuse, cogent evidence, presented to the Court in a logical, consistent way, is crucial to discharging this obligation. The fact that both parties seem to have simply accepted, without question, the veracity of the history given by you to psychologists shows a lack of appropriate forensic analysis by both parties. All of the defence material tendered to support the key submissions on the plea in mitigation, those regarding your childhood trauma, was founded on your self-report. You have a history of prior bad character by reason of dishonest offending – not only for theft and robbery, but for giving a false name to police. You plainly lied to the victim when you promised that you would return his phone if he gave you his passcode and you plainly lied to police who searched you in the tunnel of Sunshine Railway Station when you claimed that the stolen phone in your possession was owned by you.
24 Whilst I understand that it is a sensitive issue if parents have been abusive, my ultimate view is that, while you may well have been subject to corporal punishment by your parents (which I certainly do not condone), you have embellished the nature and frequency of such punishment in order to assist your plea in mitigation. Further, it seems that, up until very recently, you have been blind to the impact of your behaviour upon others, particularly where you have been under the influence of alcohol and drugs.
25 When I raised the veracity of your histories to Mr Ball and Ms Ferrari, which were given in circumstances where you knew that their reports would be tendered to a court, your counsel announced that he would call evidence from Ms Briar Mikus, your case manager from The Youth Junction Inc. at Sunshine, whose report to the Magistrates’ Court dated 17 December 2019 had been tendered as Exhibit “4”. Ms Mikus’ evidence corroborates that you had complained of some physical and emotional abuse from your mother and an atmosphere of anger which was physically vented in your home environment, but does not corroborate the nature and extent of regular physical and emotional abuse, particularly from your father.
26 The Youth Junction Inc. ran the program to which you had been referred for assessment prior to the sentence imposed on 7 February 2019 by Magistrates’ Court at Sunshine. As previously mentioned, the sentence was an adjourned undertaking to be of good behaviour for 12 months with the condition that you complete the Youth Junction Program. Ms Mikus explained that there was no program, as such, other than the assessment which had been completed prior to sentencing, but both herself and a counsellor, Ms Tongun, had made themselves available to support you during the period of the order. In particular, Ms Tongun made herself available for one-on-one tailored counselling as part of a Countering Anger and Learning Moderation (“CALM”) program. Ms Mikus, in her sworn evidence, stated that you had a good rapport and working relationship with both herself and also with Ms Tongun, who had seen you on four separate occasions. She read from notes made by Ms Tongun on the following dates:
·On 30 January 2019 – “Comes from very dysfunctional family. His parents often fought. His mother thought that his father favoured him (my emphasis). This caused his mother to be physically, verbally and emotional abusive with Mr Atonio to the point where she said she wished Mr Atonio was dead. He was very emotional when he spoke about this.”
·On 4 February 2019: “Mr Atonio comes from an environment where everyone deals with their anger by either using violence or destroying property.”
·On 27 February 2019: “Mr Atonio very distressed. His mother was admitted to hospital to have her gall bladder removed. His mother threw him out and said she never wanted to see him again and wished him dead. She said she wanted an intervention order against him …”
27 The notes of Ms Tongun corroborate to some extent that you come from a dysfunctional family setting, however, they contain no mention of your father’s alleged regular brutal belting and whippings and, instead, refer to your mother as having been the abuser in a context of her believing that your father favoured you. Courts are aware that victims of abuse may not be consistent in their complaints about such abuse. However, where the evidence is that you had a good rapport and trust with Ms Tongun, whom you voluntarily saw for 4 counselling sessions (the last of which was a double session, according to Ms Mikus) it seems to me to be a very glaring omission. This is relevant to the submission which has been made by your counsel today on this point.
28 Whilst I do take into account that you have grown up in an environment of conflict and that you that you have been subject to some abuse, I am not satisfied on the balance of probabilities that it was to the full nature and extent as described by you on oath or in histories to the psychologists. Indeed, I assess you as someone who can look doleful when it suits you, as you did at times when giving evidence. I consider that you are a person who can be quite manipulative and, in that context, I note that Ms Ferrari assesses you as having evidence of Cluster B personality traits, although she says these are also consistent with a history of complex trauma. The Court of Appeal made it clear in DPP v O’Neill[12] that personality traits do not attract the principles in R v Verdins[13] which relate to offenders who suffer from mental impairment or impaired mental functioning at the time of offending or at the time of sentence, albeit that they may be taken into account as part of an offender’s personal circumstances. I do take them into account in that way, particularly as they apparently have their genesis in your traumatic upbringing, but I am not satisfied that you have suffered a mental impairment or impaired mental functioning at the time of offending or at the time of sentence in accordance with Ms Ferrari’s report, such as to attract the principles of Verdins.
[12][2015] VSCA 325 at para [71]
[13](2007) 16 VR 269
29 On all the material before me, I am not satisfied of the truthfulness and accuracy of the material given to Ms Ferrari upon which she has made her diagnoses of Major Depressive Disorder and Post-Traumatic Stress Disorder. I here interpolate that Ms Ferrari’s report at paragraph 46 refers in very general terms to “trauma symptoms” relating to your upbringing and an incident in 2015 where your family were threatened by a group of youths who were attempting to retaliate against your group of peers. You mentioned that your parents had issues about your behaviour in staying out late and, given this history, one might ask rhetorically whether your parents’ concerns were also about your behaviour and the behaviour of those with whom you associated. Clearly, I must not speculate about this as I have not had the benefit of hearing from your parents.
30 Also, in her table setting out the criteria and subscales relating to Post-Traumatic Stress Disorder, she simply indicated your respective scores alongside generic symptoms without relating them to specifics such as the context of flashbacks or avoidance behaviour or what circumstances triggered hyper-arousal symptoms. In addition, it is evident from paragraph 75 of her report that her scoring of your depression, anxiety and stress scores were based on your self-report “during the past week” which was, of course, the week prior to your plea hearing when one might expect such scores to be higher. It is also unclear to me how Ms Ferrari at paragraph 92 of her report arrived at her conclusion that you presented with symptoms consistent with Major Depressive Disorder “preceding, during and post-offending” given that she has only seen you on the one occasion 10 months after the offending. She refers to you “self-medicating” with drugs and alcohol because of your mental health issues, but does not acknowledge any contribution of such drugs and alcohol to your mental health status. Further, although she identifies that you have some Cluster B anti-social personality traits, she does not descend to any specificity as to what role they may have played in your offending. Moreover, in arriving at her conclusions she seems to ignore that “you now acknowledge that (your) behaviour and poor decision-making contributed to (your) family kicking (you) out of home and that (you have) lost the people around (you) that would support (you), largely through (your) own actions.”[14]
[14]Exhibit “2”, paragraph 67
31 I do accept, as is consistent in the reports of both Mr Ball and Ms Ferrari, that you suffer from a Persistent Depressive Disorder, but on close analysis of the reports and the other evidence before me, I have concluded that there is not sufficient evidence that either your dysfunctional background or depressive symptoms, alone or in combination, led to substance abuse which, in turn was responsible for your offending. Your answer to a question from your counsel asking why you started drinking alcohol and smoking cannabis at the age of 14 or 15 with other boys around the same age, namely, “I did it so as not to think about home” impressed me as contrived and rehearsed, particularly in light of Ms Ferrari having noted that when you were a young teenager, you
“did not recognise or understand (your) emotions.”[15] I also note that Mr Ball in his report gave the caveat that he had “no way of confirming (your) historical details and as such, the possibility of exaggeration, minimisation or confirmation cannot be immediately ignored.”[16] In this regard I note that, in response to questions from me, you stated that drinking alcohol to excess and abusing drugs occurred regularly as part of your normal socialisation with your peer group. In addition, some of your evidence made no sense in that you claimed that at school you were “trying to be the person (you) wanted to be” and enjoyed the time away from home, yet you also conceded that you were getting into trouble at school for fighting and violence, even though you found camaraderie in playing rugby at which you apparently excelled.
[15]Exhibit “2”, paragraph 27
[16]Exhibit “1”, page 3
32 Although I do not accept the full extent of the abuse from your parents described by you, I acknowledge that developmental disadvantage by way of a dysfunctional home environment and abusive behaviour can have long term adverse impacts upon a person. However, I also find that you have been something of a law unto yourself from your early teen years and you are “street smart”. It is perhaps unsurprising that your parents were concerned, as you say they were, if you were staying out late and truanting from school albeit that I in no way endorse corporal punishment or psychological abuse. The material before me indicates that you have shown scant respect for authority or the law and there is theme of arrogant, bullying behaviour in your limited but relevant criminal history. It is of concern that only two weeks prior to the commission of the armed robbery you had been before a court for possession of a controlled weapon, namely a small axe. It is an aggravating feature of the armed robbery that it was committed in breach of the adjourned undertaking which you had been given only seven months previously on 7 February 2019. Further, in relation to the summary offence of committing an indictable offence whilst on bail, it is of concern that only two weeks previously you had been before the Bail and Remand Court on 28 August 2019 for contravening a conduct condition of bail. I here note that at no time during the plea hearing was any explanation given for you possessing the nasty-looking knife depicted in the photograph comprising Exhibit “B”, or, indeed, for why you had been in possession of a small axe (hidden in your pants) in your offending two weeks previously.
33 I find that the immediate cause of your offending was that you were in a drug-affected state coming down from having used ice on each of the previous nights. I am satisfied of that finding beyond reasonable doubt. I do not accept your sworn evidence that your motivation in taking your young victim’s phone at knifepoint was to obtain accommodation, particularly in the light of the evidence from your case worker at Youth Junction, Ms Mikus, that she had repeatedly tried to assist you to obtain accommodation. On 26 July 2019 you had dropped in to see her without an appointment and said that you had been kicked out of your brother’s place and had earlier been kicked out of your parents’ place. She obtained short term crisis housing at a youth refuge in St Kilda, where you stayed that weekend. This was accommodation through the Salvation Army Social Housing Service (SASHS). On 29 July 2019 she had sent you a text message reminding you that you had an appointment the following day, but you did not turn up. On 31 July 2019 you dropped in without an appointment. You gave Ms Mikus the phone number of your partner, Monica, as you did not have a mobile phone anymore. Ms Mikus stated that she tried to contact you on that number on 1 August 2019 to no avail. On 6 August 2019 she sent a text message to Monica’s number asking if you would attend an appointment. There was no response, but you turned up on 8 August 2019. You reported that your housing was still unstable so she went to SASHS to speak with someone to get help for you. There was nobody available but she obtained an appointment with a housing worker for you the following day, 9 August 2019. On 9 August 2019 Ms Mikus called you on Monica’s mobile number, but there was no response and you did not turn up to the appointment. On 14 August 2019 Ms Mikus made another appointment for 15 August 2019, but you did not attend. On 30 August 2019 Ms Mikus sent an SMS message asking you to arrange another appointment, but, again, there was no response. On 6 September 2019 Ms Mikus managed to make phone contact with you and you stated that you were staying at Monica’s place but your housing situation was still precarious. You had one further contact with Ms Mikus on 11 September 2019 and, soon after, were arrested for the armed robbery and remanded in custody.
34 Ms Mikus impressed me as a very intelligent, hardworking and caring case worker who had tried her best to help you obtain a housing worker in order to facilitate accommodation for you, but you were unreliable in turning up to appointments to make this possible. In addition, she had facilitated drug and alcohol counselling but you apparently attended only one scheduled appointment with the Youth Alcohol and Drug Outreach worker, Ms Shannon Bell, from the Youth Empowerment Project before disengaging.[17] Apart from the four appointments with Ms Tongun for anger management, you had no further contact with her after 6 March 2019 and totally disengaged from Youth Junction Services for a period of three months between 20 March 2019 and 20 June 2019 during which you apparently went to Sydney for a couple of months. Given the evidence of Ms Mikus of trying to facilitate services to help you, I do not accept that following the argument with your partner’s cousin on the day of the armed robbery, you were without assistance to try and find accommodation or other support. Ms Mikus said that she had repeatedly tried to check up on you and made it clear to you that you could contact Youth Junction Services for support.
[17]Exhibit “4”, p. 1
35 Mr Atonio, you should be in no doubt as to the seriousness of the offence of armed robbery as indicated by the maximum penalty of 25 years’ imprisonment. There is no Victim Impact Statement from your victim. A representative from the Child Witness Service informed the Court that he did not wish to make a Victim Impact Statement as he is currently focussed on his Year 12 studies. However, it does not take much imagination to envisage that a 17 year old schoolboy would be intimidated if a person of your powerful build was pointing a knife like that depicted in Exhibit “B” at him. The knife was approximately 15 centimetres long with a pointed blade of approximately 6 centimetres, which folds into the handle of the knife itself. You described it to police as a “flip up knife.”[18] Certainly, your victim promptly handed over his phone when you confronted him with the knife.
[18]Record of Interview, Q&A 97
36 Your behaviour towards your victim was intimidating and brutish. It was brazen in that it was committed on public transport in the middle of the afternoon and it was cowardly, given that your young victim was alone in the back of the bus with no other passengers. You plainly lied to him in claiming that you would return his phone if he gave you his passcode. When he attempted to have you honour your promise, you gratuitously struck him to the face and took off with his phone while he was endeavouring to find his glasses which you had knocked off.
37 A person should be entitled to ride on public transport without fear of being subjected to such frightening and dishonest behaviour. There is a need to protect the community from it and, generally speaking, emphasis in sentencing must be on the principle of general deterrence. That means that in sentencing an offender for such behaviour, the courts must send a message to other members of the community that, if they engage in such conduct, they will be appropriately punished. There is also some need for emphasis upon specific deterrence in light of the fact that it had only been two weeks since you had been before a court for being in possession of a controlled weapon without excuse and only seven months since you had been before a court for robbery and assault by kicking and, indeed, were in breach of your undertaking to be of good behaviour given on that occasion.
38 In your favour I take into account the following factors.
(1)You pleaded guilty at a committal case conference on 18 December 2019 so that the matter proceeded by way of straight hand-up brief for a hearing of your plea of guilty. You are entitled to the full benefit of the utilitarian value of your early plea, which facilitated the course of justice, saved the victim having to give evidence and saved the State the time and cost of a trial. It was argued on your behalf that you have exhibited remorse for your offending. In particular, your counsel relied upon the fact of your plea of guilty, the letter of contrition written to the Court by you at the time of your application for bail on 19 February 2020 (Exhibit “5”) and what you had told Ms Ferrari about being ashamed of your behaviour, wishing that you had sought treatment for your various issues at an earlier stage and recognising that your actions not only affect you, but also your victims and their families, as well as your family, your partner and your children who have been adversely affected by your stupidity.[19]
[19]Exhibit “2” paragraph 66 page 6
I accept on the balance of probabilities that your having spent some five months on remand and a further 5 ½ months in Immigration Detention has given you time for reflection and it is possible that you have developed some remorse, but I do not consider that it can be characterised as full and true remorse. Very recently, when you saw Ms Ferrari, you still sought to justify your offending as being “due to the immense stress (you were ) under … due to an argument between Monica and her cousin … rendering (you both) homeless.”[20]
[20](ibid) paragraph 63
(2)I take into account in a general way that you have had a dysfunctional background, in the sense that you have come from a home environment where arguments and anger manifest themselves in a physical way and that you have been subject to some corporal punishment. I accept that the effects of such a background can be enduring in a psychological and behavioural way.
(3)As a New Zealand citizen you had been granted a visa to reside and work in Australia but apparently your visa was cancelled on 29 January 2020. There was a rather confused account given to the Court by you and/or your counsel that, in or about June 2020, notwithstanding that you were due to appear at your plea hearing on 29 July 2020 and still had outstanding charges to be heard at Broadmeadows Magistrates’ Court, you had made application to the Department of Home Affairs to be voluntarily deported to New Zealand. However, upon the Office of Public Prosecutions being notified of this, you withdrew such application on 8 July 2020.
In the event that this Court imposes a sentence of imprisonment of one year or more, the provisions of the Migration Act 1958 make the cancellation of your visa mandatory unless the Minister is satisfied that there is reason to revoke the cancellation. Your counsel has stated that you have instructed a specialist migration lawyer to appeal the cancellation of your visa, but plainly, this Court cannot speculate as to any future exercise of a Ministerial discretion.
It has been submitted on your behalf that the Court should take into account that, as you have resided here since the age of 11 years, and your family is in Australia, this would make the burden of a term of imprisonment more onerous and also lead to you being separated from your family and friends, as well as losing the opportunity to settle in Australia permanently. In this regard, I note that your parents towards whom you apparently have something of an ambivalent attitude are certainly resident in Australia, although two sisters with whom you are close and your grandparents live in Samoa. Your counsel placed significant emphasis upon the fact that your partner and your two children, your son born on 23 December 2017 and your daughter born on 20 March 2020, are resident in Australia and, if you are deported, you would suffer the hardship of being separated from them.
Although your counsel stated that your partner, Monica, had been requested to provide a letter of support to be tendered to the Court, no such letter has been tendered. I am told that she is residing with the two children at the home of her parents here in Melbourne. In the absence of a letter of support from her when one had been specifically requested, I infer that such evidence from her would not have assisted your case.
Recently, when assessed by Mr Gene Bell, Senior Court Advice Officer, Youth Justice Central Courts Unit, on 12 August 2020 (Exhibit “C”), you stated that you feel distressed that you are not able to support your partner and child in the community. However, the material before the Court suggests to me that, prior to being taken into custody, you were roaming around the streets with other youths and abusing alcohol and illicit drugs rather than diligently applying yourself to looking for work or providing a stable roof over the head of your partner and child. Since absenting yourself from attending school at age 14 or 15, you have had minimal employment and, apparently, you have not worked, at all, since either late 2018 or early 2019.
In your sworn evidence, you stated that your son has largely been in the care of your partner’s mother since towards the end of 2018. You have not yet met your daughter who was born after 20 February 2020 when you were released from custody and placed on bail in Immigration Detention. Nevertheless, you are young and it is conceivable that you could yet develop skills to be a decent parent.
As your partner is a citizen of New Zealand, there is no reason why she would not be able to take the children with her to live there with you if she was so minded. Thus, whilst I take into account that you are left in a state of uncertainty until an ultimate determination by the Minister is made and that this may weigh upon your mind and ultimately you may be deprived of the chance to settle in Australia, I am not satisfied that, if deportation does occur, it would necessarily incur the enormous hardship of being separated from your partner and children, however, your counsel has indicated to the Court this afternoon that your partner would like to have the support of her parents here in Melbourne.
So many factors relating to the prospect that you may be deported are in the realm of speculation and, thus, it is really difficult to be in any way definitive about this issue. In any event, I note that you told Mr Bell last week, when he assessed you for a Youth Justice Order, that in the event that you are returned to New Zealand, your partner has stated that she is willing to travel at short notice to be with you and settle there and you indicated that you would prefer to just return to New Zealand, rather than have to fight to be released in Australia.[21] Today, your counsel has indicated that your view is contrary to that and that you would prefer to remain in Australia.
(4)I do take into account that you were only 20 years old when you committed this offence. Courts recognise the factor of immaturity in youthful offenders and, generally speaking, this warrants moderation of the emphasis upon the principles of general deterrence and denunciation in favour of rehabilitation. I note that Mr Ball in February 2020 stated that you impressed him as an immature person with an impaired capacity to exercise good judgment and to plan and execute positive and self-sustaining behaviours.[22] Ms Ferrari stated that when she saw you in late July 2020 that you reported that, having been remanded for a period had matured you somewhat and you had reflected upon your behaviour and poor decision making and the impact that it had had on others whose support you had lost.[23] More recently, Mr Bell in his report dated 13 August 2020 (Exhibit “C”) stated that you did not present as being particularly immature, although you agreed that your offending and presentation prior to your remand in custody certainly indicated a level of immaturity and that you had matured significantly whilst in remand and think differently now.[24] I accept that your youth does warrant some moderation of the emphasis upon the principles of deterrence and denunciation.
(5)I have carefully reviewed all of the material before me and I regard your prospects of rehabilitation as being guarded at this stage, noting in particular that the offence of armed robbery represents an escalation in your offending. In custody, you have shown a preparedness to work in the kitchen and apparently enjoyed this. You also undertook two courses in Kitchen Operations via Box Hill Institute and undertook an Adapt program and attended a Bible study group.[25] However, your time on remand in custody appears not to be a model of good behaviour. Mr Bell’s report reveals that there have been a number of incidents whilst you have been in custody. These included an incident in which you pushed a note under the door of another prisoner who was in lockdown and on a behavioural management regime, a second incident where you were found outside the allocated unit area and, when challenged, became abusive towards the prison guard and engaged in a heated exchange, and a third incident where you were observed attempting to pass something to another prisoner and, when searched, were found to have a cigarette on your person. In addition, on 26 December 2019 and 20 January 2020, you returned positive drug screen tests for the medication buprenorphine which had not been prescribed for you. Clearly it is no part of my role to sentence you for any of those incidents but, in combination with your prior offending, they do not lead me to be overly optimistic about your prospects of rehabilitation at this point in time.
I have found the primary instigating factor for your offending to be your drug abuse and until such time as you commit to abstaining from that and abuse of alcohol, it is unlikely that you will make rehabilitative progress in other areas of your life. Further, you have a significant anger management issue. Notwithstanding that you had a good rapport with Ms Tongun at the Youth Junction Centre who was endeavouring to help you address this, you attended only 4 counselling sessions. In addition, Ms Mikus appears to have very regularly tried to contact you to try to get you to engage with a variety of rehabilitative and supportive services, but you failed to do so. I note that Mr Ball in February stated that you are likely to present with a number of challenges in terms of your safe management in the community and would benefit from drug relapse prevention treatment, mood management and cognitive behavioural therapy for your depressive disorder. Although Ms Ferrari stated that you impressed as having good insight and motivation to reform yourself and showed a strong propensity for rehabilitation if given appropriate supports, she did not appear to be aware of the behavioural issues in custody which are referred to in Mr Bell’s report. She assesses your risks of reoffending as moderate albeit able to be mitigated through treatment. Although you have had time to reflect since this offending occurred and this has perhaps contributed to you maturing somewhat, I consider that you have a long way to go in terms of insight into your own anger, psychological makeup and dependence upon illicit drugs and alcohol. Hence, my guarded view of your prospects of rehabilitation.
(6)Although I do not accept Ms Ferrari’s assessment that you suffer from severe mental health issues, I do accept that you have a Persistent Depressive Disorder and a Substance Abuse Disorder. I accept that, as a general principle, a person like you who suffers depressive symptoms is likely to find a period in custody more onerous than someone who does not suffer such symptoms although, based upon what you told both Mr Ball and Mr Bell, it appears that you coped well with your period on remand and found some older mentors and enjoyed working in the kitchen. Ms Ferrari opines that your mental health issues may be exacerbated by a period of imprisonment unless you are properly supported, particularly your Post-Traumatic Stress Disorder but I have already expressed my reservations about the basis of her diagnosis. Nevertheless, there remains the possibility that your depressive symptoms may deteriorate in custody, particularly with the added anxiety of the risk of deportation and the inability to connect physically with your partner and children. Accordingly, I consider it appropriate to have regard to these matters in arriving at the sentence which I intend to impose.
(7)I take into account that, since 20 February 2020, you have been in Immigration Detention at the Broadmeadows Transit Centre. Up until yesterday, 20 August 2020, you have been detained there for 184 days. This is not time which can be declared as pre‑sentence detention pursuant to s18 of the Sentencing Act 1991. However, it is appropriate for me to take it into account in arriving at the sentence which I intend to impose. Having said that, it is apparent from the evidence which you gave on oath that, leaving aside that you have been separated from your partner and children and concerned about whether you will be deported to New Zealand, your period in Immigration Detention has not been as onerous as being incarcerated in a prison.
You told the Court that you get up at 8:30am and have been at liberty to engage in a variety of activities until 2:00am when the doors are locked. Between those hours, you have engaged in educational programs on such things as world history or English, you are able to spend time in the gym or engage in sports such as volleyball or art class or participate in social games such as playing pool or table tennis. You are also permitted to upload and watch videos and have your own mobile phone so that you are able to contact any people outside the Immigration Detention Centre as often as you wish.
At one point in your evidence you expressed concern about the inability to socially distance whilst in Immigration Detention and said that masks had only been made available to detainees only fairly recently prior to the last date of the plea hearing on 6 August 2020. However, later in your evidence, you said you did not really have any feelings about not being able to socially distance, but simply commented that the detention authorities seemed to be breaking the rules in this regard.
I do take into account that, during your time in Immigration Detention, you have not been permitted to have actual visits from your family or friends due to restrictions in place during the COVID-19 pandemic. I also accept that being in a group environment during the COVID‑19 pandemic may create some anxiety albeit that I am not aware of any COVID‑19 cases having been reported in the Broadmeadows Transit Centre where you have been detained. Although the conditions in immigration detention are less onerous than those in a prison, such detention is, nevertheless, a substantial curtailment of your liberty and I have taken the time you have been detained into account by reducing the sentence which I might otherwise have imposed in a meaningful way.
[21]Exhibit “C” page 3
[22]Exhibit 1 page 3
[23]Exhibit 3 paragraph 67
[24]Exhibit “C” page 4
[25]See Exhibit “6”
39 Mr Chisholm submitted on your behalf that an appropriate sentence for this offending was one pursuant to s44 of the Sentencing Act involving a term of imprisonment of 1 year or less in combination with a Community Correction Order. The prosecution agreed that such a disposition would be a suitable one. I do not agree with the submission of the defence or the prosecution that a combination sentence of that type is adequate to reflect the gravity of your offending taking into account all the circumstances put before me.
40 The only purposes for which sentences may be imposed are set out in s5 of the Sentencing Act, namely, punishment which is just in all the circumstances, general and specific deterrence, rehabilitation, denunciation, protection of the community or a combination of two or more of those purposes. In this case it is incumbent upon the Court to impose punishment which is just in all the circumstances and I have found that the principles of general deterrence, specific deterrence and denunciation of your conduct all have application albeit with some moderation by reason of your youth. I have not found matters by way of mental health or homelessness to be linked with your offending and find that there is a need to protect the community from you given your limited but relevant history for dishonest and violent offending. At this stage, I have found that your prospects of rehabilitation are guarded.
41 I am mindful of the guideline judgment in the matter of Boulton v R[26] and, in particular, the need for proportionality in sentencing and that the Court of Appeal has stated that a Community Correction Order in combination with a term of imprisonment may, in appropriate cases, serve the sentencing objectives of general and specific deterrence, denunciation and protection of the community. For the following reasons I have determined that the only appropriate sentence is a term of imprisonment with a non-parole period.
[26][2014] VSCA 342
·Armed robbery, by its nature, is a serious offence as reflected in the maximum penalty of 25 years’ imprisonment. Whilst clearly there is a gradation of seriousness in armed robbery cases the fact is that armed robbery is a prevalent offence in our community. I have found that the primary causative factor in committing the armed robbery was that you were affected by having taken methylamphetamine on the two nights prior to the offending and as you stated, you “were coming down” from it. This does not provide a basis for reducing your moral culpability for the crime.
·Although the armed robbery appears to be have been essentially opportunistic, as I have previously stated there has been no explanation provided to the Court for why you were carrying the nasty looking knife with which you confronted your victim.
·The offending was brazen as it was committed in broad daylight in the middle of the afternoon on public transport.
·The offending was cowardly as you took advantage of a 17 year old schoolboy who was alone on the bus.
·Thefts of mobile phones are particularly common and are items which are easily exchanged for money or other things. Members of the community rely heavily upon their mobile phones for communication, as well as usually having useful data stored on them. Your 17 year old victim was deprived of any means of communicating with anyone after the armed robbery and I note that his mobile phone has never been recovered.
·You have shown a disregard for court orders in the past by breaching an adjourned undertaking which you had entered into at Sunshine Magistrates’ Court only seven months prior to the offending and had contravened a condition of bail only two weeks prior to this offending which, again, contravened your undertaking of bail.
·Whilst you claim to have matured during the time that you were remanded in custody it is apparent from the report of assessment of your suitability for a Youth Justice Order (Exhibit “C”) that you have been involved in a number of behavioural incidents whilst on remand which included an abusive and heated verbal exchange with a prison guard who challenged you about being found outside your allocated unit area. Further, on two occasions, namely 26 December 2019 and 20 January 2020, you have returned positive drug screens for buprenorphine which was not prescribed for you. These factors, in combination with your longstanding drug and alcohol abuse and anger management problems, which you failed to address notwithstanding very supportive assistance from Ms Mikus and Ms Tongun at Youth Junction Centre, have caused me to be guarded as to your rehabilitative prospects at the present time.
·Mr Ball, psychologist, in his report (Exhibit “1”) expressed the view that you are likely to present with a number of challenges in terms of your safe management in the community and Ms Ferrari assessed you as being at moderate risk of reoffending due to your history of similar prior convictions, association with an antisocial peer group who were involved in substance use and chronic history of substance use. Also, as previously noted, the offence of armed robbery represents an escalation in seriousness compared to your prior offending.
42 Although I consider a combination sentence of imprisonment to be inappropriate, I did consider it appropriate to have you assessed to see if you were suitable for a Youth Justice Centre order. Mr Bell’s report (Exhibit “C”) states that you did not present as being particularly mature and did not present as being particularly impressionable or subject to undesirable influences whilst in gaol. Indeed, you told him that you had associated with slightly older males in remand. You were adamant in your view expressed to Mr Bell that you did not wish to be housed with young and more immature males and would much prefer to return to the adult prison system.
43 In arriving at the sentence which I intend to impose, I have taken into account as best I am able the more restrictive prison conditions which prisoners are generally enduring during the COVID‑19 pandemic at the present time and, in particular limitations on out of cell time in order to facilitate social distancing, the reduction in programs and the inability of prisoners to receive contact visits albeit that there is increased availability of Skype and telephone calls available to prisoners. I am also conscious that, as you are being transferred from outside the prison system, namely from Immigration Detention, you will most likely be required to be in isolation for the first 14 days of your sentence which is a very challenging way to commence serving a term of imprisonment. However, it is inappropriate for a Court to speculate as to how long the current restrictive regime in prisons will endure.
44 On one charge of armed robbery, you are convicted and sentenced to be imprisoned for a period of 20 months.
45 On one charge of committing an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of 1 month.
46 I direct that the term of imprisonment imposed on the summary charge be served cumulatively upon the sentence of 20 months imposed on the charge of armed robbery.
47 The total effective sentence is 21 months’ imprisonment.
48 I direct that you serve a period of 14 months’ imprisonment before becoming eligible for parole.
49 Mr Atonio, whether you are granted parole depends upon your behaviour whilst serving your sentence. It is a matter for the Adult Parole Board, not this Court.
50 Pursuant to s18 of the Sentencing Act I declare a period of 152 days pre‑sentence detention to be time reckoned as already served under the sentence imposed this day.
51 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 3 years’ imprisonment with a non-parole period of 2 years.
52 Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the knife, and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
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