Director of Public Prosecutions v Blango
[2020] VCC 1090
•23 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-19-02043
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMMANUEL BLANGO |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 July 2020 | |
DATE OF SENTENCE: | 23 July 2020 | |
CASE MAY BE CITED AS: | DPP v Blango | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1090 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge of armed robbery – Three charges of theft – Offender confronted victims at abandoned property armed with a tomahawk – Offender on bail at time of offending – Serious offending – Genuine remorse – Youthful offender – Relevant and extensive prior criminal history – Reasonable prospects of rehabilitation – Circumstances surrounding the COVID-19 pandemic taken into account.
Legislation Cited: Crimes Act 1958; Road Safety Act 1986; Summary Offences Act 1966; Bail Act 1977; Sentencing Act 1991.
Cases Cited:DPP v Weybury [2018] VSCA 120; Hasan v The Queen (2010) 31 VR 28.
Sentence: Imprisonment for a period of 14 months, together with a Community Correction Order for a period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J McGarvie | Office of Public Prosecutions |
| For the Accused | Ms J Hughes | Papa Hughes Lawyers |
HIS HONOUR:
Introduction
Emmanuel Blango, you have pleaded guilty to one charge of armed robbery contrary to s 75A of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment (Charge 1), and three charges of theft, contrary to s 74 of the Crimes Act 1958, which carries a maximum penalty of 10 years imprisonment (Charges 2, 3 and 4).
You have also pleaded guilty to the following related summary offences:
· Unlicensed driving, contrary to s 18(1)(a) of the Road Safety Act 1986, which carries a maximum penalty of 60 penalty units or six months imprisonment, (Summary Charges 7 and 10);
· Unlawful assault contrary to s 23 of the Summary Offences Act 1966, which carries a maximum penalty of two years imprisonment in this instance, as the assault involved the use of a weapon (Summary Charge 2);
· Commit indictable offence on bail, contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of 30 penalty units or three months imprisonment on each charge (Summary Charge 8, which is a rolled up charge); and
· Trespass contrary to s 9(1)(e) of the Summary Offences Act 1966, which carries a maximum penalty of 25 penalty units or six months imprisonment (Summary Charge 1).
You have also admitted your prior criminal history.
Circumstances of the offending
The victims in this matter are Luke Sbaglia and Anthony Ward, who were friends and both 18 years of age at the time of the offending.
On 8 April 2019, Mr Ward arranged to meet an old friend, Kaitlyn Barnes, at an abandoned property at 543 Hume Drive, Plumpton. This address was suggested by Ms Barnes. Mr Ward invited Mr Sbaglia and another friend Brendan Way, who was 15 years of age at the time of the offending.
At approximately 2.30pm, Mr Sbaglia drove himself, Mr Ward and Mr Way to the abandoned property in his 2017 Mitsubishi Lancer Sedan.
When they arrived, Ms Barnes was already present at the property.
Mr Sbaglia, Mr Ward, Mr Way and Ms Barnes entered the property and went into the bedroom within the premises. Mr Sbaglia asked Ms Barnes if the property was hers and she told him that it was abandoned.
A short time later, you entered the premises via an opened rear door carrying a tomahawk. It is these facts that relate to Summary Charge 1, trespass.
You entered the bedroom where the victims were and shut the door behind you. You yelled ‘What are you doing here, this is my area'.
Whilst holding the tomahawk, you made a demand to Mr Sbaglia to hand over his mobile phone. Mr Sbaglia handed you his Samsung S8 phone as he was in fear of his safety. It is these facts that relate to Charge 1, armed robbery and Summary Charge 8, commit indictable offence on bail.
You then approached Mr Ward in a threatening manner whilst in possession of the tomahawk. It is these facts that relate to Summary Charge 2, unlawful assault with a weapon.
You reached for Mr Ward’s pocket and he resisted. A wrestle ensued between you and Mr Ward. The wrestle moved from the bedroom out into the kitchen. Whilst wrestling in the kitchen, you stole Mr Ward’s Oppo mobile phone. It is these facts that relate to Charge 2, theft, and Summary Charge 8, commit indictable offence on bail.
As you and Mr Ward were wrestling, Mr Sbaglia and Mr Way ran from the premises and got into Mr Sbaglia’s vehicle. Ms Barnes remained in the bedroom.
Mr Ward broke free from you and also ran from the premises. You chased
Mr Ward from the premises and out to the vehicle that Mr Sbaglia and Mr Way were waiting in. Mr Ward also got into the vehicle. You hit the rear of the left side of the vehicle with a pole. Mr Sbaglia, Mr Ward and Mr Way left in the vehicle leaving Ms Barnes behind.
Mr Sbaglia drove his vehicle along Hume Drive and observed a Medical Transport Van approximately 200 metres from the vacant premises on Solstice Drive. Mr Sbaglia parked his vehicle and approached the van to report what had happened. Mr Ward walked back towards the vacant premises.
As Mr Ward got to the intersection of the Solstice Drive and Hume Avenue, he observed you approximately 15 metres away walking towards him. You were in possession of the victims’ stolen mobile telephones.
Mr Ward ran back to Solstice Drive toward Mr Sbaglia and Mr Way. You chased Mr Ward and approached Mr Sbaglia, asking what else he had in his pockets. Mr Sbaglia produced his car keys. You took Mr Sbaglia’s car keys and drove away in his vehicle. It is these facts that relate to Charge 3, theft, Summary Charge 8, commit indictable offence on bail and Summary Charge 7, unlicensed driving.
On 9 April 2020 at 2.39am, you drove the stolen Mitsubishi Lancer Sedan to the Coles Express in Doncaster. You filled the vehicle with $84.95 worth of fuel before getting back into the driver’s seat and driving off without making any attempt to pay for the fuel. This incident was captured on CCTV. It is these facts that relate to Charge 4, theft, Summary Charge 8, commit indictable offence on bail and Summary Charge 10, unlicensed driving.
At the time of the offending, you were on bail and unlicensed to drive a motor vehicle in Victoria.
On 15 April 2019, the stolen Mitsubishi Lancer was located by police in Tollhouse Road, Kings Park. Police members observed damage to the left side of the vehicle at the rear. The vehicle was towed to a secured garage pending forensic examination.
On 16 April 2019, you were arrested at your home address in relation to an unrelated incident. You were searched and police located identification and personal cards in the name of Mr Sbaglia, an Optus SIM registered to the stepfather of Mr Way and a Vodafone SIM registered to Mr Sbaglia’s father.
On 17 April 2019, you were interviewed at the Sunshine Police Station. You stated, amongst other things, that you knew Ms Barnes and had arranged to meet her at the house. You said that she had an axe at the house. You stated that you had asked the victims for their mobile phones and that the phones were at your home. You stated that you drove the car before parking it in Kings Park, leaving the keys in the abandoned house. You denied that it was you captured on CCTV filling up the car with petrol on 9 April 2019.
Mr Sbaglia’s keys were later located by police, but the victims’ phones were not recovered.
Nature and gravity of the offending
The charges to which you have pleaded guilty represent an episode of offending that occurred in a relatively short space of time. However, they also represent serious offending, where the young victims involved, were placed in great fear as a result of your conduct. When you first confronted the victims, you were carrying a weapon, you were aggressive and when the young people tried to flee from you, you pursued them and stole one victim’s car as you continued to offend. Further, on your own admission, during the episode, you were under the influence of ice. The fact that you were also on bail at the time of the offending aggravates your conduct.
Armed robbery is by its nature, a serious charge which is reflected in the maximum penalty of 25 years imprisonment. In this instance, you entered the house carrying a tomahawk, before entering the bedroom where the victims were and closed the door before making your demands. It is self evident that this conduct involved a degree of forethought, even though you were behaving erratically and under the influence of drugs at the time.
It was submitted on your behalf that the armed robbery may be viewed ‘at the lower end of the scale of seriousness’. Such terms are often unhelpful and as the Court of Appeal noted in DPP v Weybury[1], classifications in terms such as 'mid-range' (or in this case, the ‘lower end’), carries a risk that it will attract reference to current sentencing practices for offences previously categorised in a particular range, thus bringing the risk of limiting the instinctive synthesis. While I accept that your conduct does not represent the most serious example of armed robbery, it is still serious offending, as it involved you threatening young people with a weapon, which was a terrifying experience for the victims involved.
[1] [2018] VSCA 120 at [54] (Priest JA).
As to the other offences to which you have pleaded guilty, while they are part of the one episode, in my view the offences that occurred after the victims sought to flee from you, are also relatively serious. By the time you approached the victims for a second time, they were already aware of your erratic behaviour and that you were in possession of a tomahawk. In those circumstances, on one occasion, you struck the car they were in with a pole and then later stole that car after demanding the keys, again undoubtedly causing further fear for the young victims.
Victim impact statement
A victim impact statement was prepared by Luke Sbaglia and tendered.
Mr Sbaglia states that at the time of the offending, he felt scared and in shock. He states that he later became anxious and did not attend work for some weeks. His eating and sleeping were affected and he has seen a counsellor in order to deal with the issues he has faced. He notes that as a result of you taking his phone, he lost many photographs of his family and friends, which also caused him distress.
Personal circumstances
You are 22 years of age and were 20 at the time of the offending.
You were born in Sierra Leone during the civil war. You have three older brothers and two younger brothers. As a result of the civil war, you and your family fled to a refugee camp in Ghana when you were three years of age.
In 2005, when you were six years of age, your family migrated to Launceston, Tasmania. You experienced difficulties adjusting, with limited English skills and also being subjected to racism and bullying. The family remained in Launceston for five years and you attended the local primary school.
In 2010, when you were 13 years of age, your family moved to the western suburbs of Melbourne. You attended two different high schools and again, experienced racism from other students and the wider community. Your father was a harsh disciplinarian and by the time you were about 14 years of age, you began running away from home staying with friends or sleeping rough. Within this lifestyle, you met others who were involved in drug use and crime. You began using cannabis and became involved in offending behaviour. Your first appearance in the Children’s Court was in 2012 for robbery and other charges.
You were diagnosed with Attention Deficit Hyperactivity Disorder at age 14 and you were expelled from your high school following an altercation with the principal. You then attended an alternative school up to Year 9. Since leaving school, you have obtained various certificates in machinery operations, warehousing and in building and construction.
At 13 years of age, you were in a relationship with a young woman who became pregnant at age 16. Your son was born in March 2016, when you were 16 years old.
In late 2014, you were the subject of a sexual assault where you and your younger cousin were threatened by a group of men with weapons in a park. You were forced to perform sexual acts on each other which was filmed and uplifted to social media.
Your drug history escalated from cannabis to amphetamines after you were released from Parkville Youth Training Centre in 2014 and in 2018, you began to use regularly. Your criminal history is extensive, although predominantly represents Children’s Court appearances.
Despite your drug use, prior to your arrest, you were able to maintain employment, working with a friend who was installing insulation. You had planned to take over your friend’s business, however, your drug use was such, that you were not in a fit mental state to follow through with your ambition.
Two psychological reports were tended on the plea. The first was prepared by Alice Crole, clinical psychologist and dated 31 March 2019, which was prepared for a bail application before the matter had resolved. The second was prepared by Dr Laura Anderson, psychologist and dated 20 May 2020.
Dr Anderson conducted more extensive psychometric testing and assessment. I have read both reports and taken the contents into account.
The writers of both reports conclude that at the time of the offending, you were suffering from a drug induced psychosis. Dr Anderson is of the view that prior to this offending, you did not have any insight into your emerging psychotic features, nor the link between your drug use and your psychotic features. As such, it was submitted on your behalf, that as you did not at the time appreciate the relationship between your drug use and your psychotic symptoms, that your moral culpability can be reduced. I will discuss this matter further in relation to Verdins principles below.
Dr Anderson notes that your early life experiences have contributed to your association with antisocial peers, making you also vulnerable to substance addictions and antisocial behaviour. She notes, however, that you do not present with deep entrenched antisocial attitudes, but rather, as an individual for whom violence is normalised. Dr Anderson ultimately formed the view that you suffer from a number of identifiable conditions, including post-traumatic stress disorder, stimulant use disorder and attention deficit hyperactivity disorder.
Dr Anderson is also of the opinion that your ongoing incarceration will continue to have a significant negative impact on your psychological functioning.
Ms Crole was of the view at the time of writing her report, that imprisonment would weigh more heavily on you than a peer that does not suffer anxiety and depressive disorders.
Since being on remand, you have become substance free and have completed a number of courses to enable you to better transition into the community, upon your release. You have also engaged in counselling where you have begun to address some of the core issues that have led to the situation you are now in. A letter from Indrani Barau of counselling service Caraniche, confirms that despite the current restrictions in the prison system, you have been able to engage in counselling on a weekly basis and have attended 15 sessions.
A letter was tendered from your father, Francis Blango, who provides further information in relation to the sexual assault you suffered. He also outlined his commitment to you in assisting you in your rehabilitation, by providing you with a home, undertaking to remain in regular communication with you and to encourage you to continue to engage with support services. To that end, letters were tendered confirming future appointments with various support agencies.
A letter was also tendered from Jeremie Nyetam of Jesuit Social Services in relation to your involvement in the African Visitation and Mentoring Program. You have been actively involved in that program since May of this year. The program focuses on preparing men and women of African backgrounds for their reintegration into the community, following a period of incarceration. In your case, you have been involved in a targeted service with focus on construction work and education, and you have been referred to a job network agency on your release. You will also be linked with a community based mentor.
In a letter you wrote to the court, you detailed your experience of being in custody for the past 15 months. You maintain that you have now realised the effect your conduct has had on your partner and your son. You are committed to your relationship with your young son and your parents have offered to accommodate you and support you on your release. You apologise to the victims and the pain you have brought them, saying that you are truly sorry. You acknowledge that you have let down your family and make a commitment to turn your life around upon your release by continuing the rehabilitation you have commenced in custody.
Relevant sentencing considerations
You pleaded guilty to these offences following a contested committal in October 2019, however, you indicated your willingness to plead guilty in February 2020. While it is not a plea at the earliest opportunity, your plea still represents your willingness to accept responsibility and facilitate the course of justice, saving court time and sparing the victims the trauma of having to give evidence.
I accept that your expressions of remorse in the letter you provided to the court are genuine. When consideration is given to the opinions of the psychologists and the other materials, it would appear that the insight you express in your letter, demonstrates that you are beginning to appreciate the consequences of your lifestyle and how it affects others.
You are at age 22, still a youthful offender, albeit with a significant prior criminal history. That said, it appears from the psychological reports that you have developed some insight and understanding in relation to your criminal behaviour and drug use. The reports also share a common view that you are not inherently antisocial, but that your behaviour can be linked to past trauma and other psychological conditions. As such, it was submitted on your behalf that rehabilitation should still feature prominently in the sentencing equation. That said, your offending is serious, and the focus on rehabilitation must give way to some extent, to other sentencing considerations in the circumstances.
As noted above, it was submitted on your behalf that Verdins principles are enlivened as a result of your drug induced psychosis. As is well established, when the effect of drugs is self induced in circumstances where the person has used many times before, and thus aware of the effect, it is only in exceptional circumstances that they are able to call into aid, the principle that allows for a reduction in moral culpability[2]. However, I accept that at the time of the offending, you did not have an appreciation of the full impact of your drug use and its effects in relation to your complex mental health issues. As such, as was conceded by the prosecution, there is room for some limited degree of moderation of general deterrence. In relation to your custodial experience in light of your mental health concerns, I also accept the views of the psychologists, that your time on remand has been more onerous as a result and thus that aspect of Verdins also has some application.
[2]Hasan v The Queen (2010) 31 VR 28 at [33].
General deterrence, denunciation of your conduct and protection of the community are relevant sentencing considerations. As to specific deterrence, it too must carry weight. You have a relevant and extensive prior criminal history where the sanctions of the court and the assistance provided has failed to deter you. That said, I accept the view of the psychologists that you are now at a stage as you begin to mature, where you are developing greater insight. In that regard, I also accept that your prospects of rehabilitation are reasonable, given the work you have done, however, you will need further assistance on your release including counselling and drug treatment.
Finally, I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community. In your specific circumstances, I accept that this is a matter to be taken into account in your favour, although I note that at least in terms of counselling, you have been able to continue that process through the restricted period.
It was submitted on your behalf that the time you have spent on remand, is sufficient in relation to Charge 1 and that the remaining charges are able to be dealt with by way of a community correction order. The prosecution submit that time served would not meet the relevant sentencing considerations in relation to Charge 1, however also submit that that a combination sentence, pursuant to s 44 of the Sentencing Act 1991 is within range. In my view, a combination sentence pursuant to s 44 is able to meet the relevant sentencing considerations, however, the community correction order component of the sentence will have both punitive and therapeutic conditions.
Sentence
Mr Blango will you please stand.
Emmanuel Blango, on Charge 1, armed robbery, you will be convicted and sentenced to 12 months imprisonment.
On Charges 2 and 4, theft, you will be convicted and sentenced to 3 months imprisonment on each charge. On Charge 3, theft of the motor vehicle, you will be convicted and sentenced to 6 months imprisonment.
On Summary Charges 1, 7, 8 and 10, you will be convicted and sentenced to 1 month imprisonment on each charge. On Summary Charge 2, assault with a weapon, you will be convicted and sentenced to 3 months imprisonment.
I direct that one month of Charge 2 on the indictment, and one month of Summary Charge 2, be served cumulatively on each other and on Charge 1 on the indictment. That makes for a total effective sentence of 14 months imprisonment as the prison component of the sentence pursuant to s 44 of the Sentencing Act 1991.
In addition to the prison component of the sentence, upon your release, you will be placed on a community correction order with conviction for a period of 18 months. The community correction order will be both punitive and therapeutic.
You will be required to complete 150 hours of community work over the period of the order.
You will be required to complete programs to further address your drug use and your alcohol use. You will be required to engage in programs to reduce reoffending and you will also be subject to supervision.
Pursuant to s 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete, pursuant to the program conditions, may be credited as hours of unpaid community work.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 434 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today. Therefore, after the s 18 declaration, the result is a term of imprisonment of less than one year which complies with s 44.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 2 years imprisonment with a non-parole period of 16 months.
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