Director of Public Prosecutions v Corstorphan
[2021] VCC 254
•17 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-00969
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MBARAKA CORSTORPHAN |
---
JUDGE: | HER HONOUR JUDGE LAWSON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 17 February 2021 |
CASE MAY BE CITED AS: | DPP v Corstorphan |
MEDIUM NEUTRAL CITATION: | [2021] VCC 254 |
REASONS FOR SENTENCE
---
Subject:Criminal law – sentencing – robbery – armed robbery – Koori Court Division – sentencing conversation – early plea of guilty – deferral of sentence
Legislation Cited: Sentencing Act 1991; Criminal Procedure Act 2009
---
APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr A Moore | Ms A Hogan, Solicitor for the Office of Public Prosecutions |
For the Offender | Mr S Northeast | Simon Northeast Lawyers |
HER HONOUR:
1 Mbaraka Corstorphan, you have pleaded guilty before me to one charge of robbery and one charge of armed robbery.
2 Those offences are serious and that is marked by the maximum penalties prescribed by Parliament and for robbery, that is 15 years' imprisonment, and for armed robbery, that is 25 years' imprisonment.
3 You admitted your prior criminal history. It is somewhat limited and relates to various summary offences committed in Queensland. It spans a period from 16 September 2013 until 13 July 2017, predominantly for dishonesty offences, wilful damage, possession of drugs and pipes, and breach of probation order for which, in the past, you received fines by way of penalty, both with and without convictions being recorded.
4 I will now sentence you for the indictable charges on the basis of what was contained within the prosecution opening that was filed in the proceeding and is dated 25 August 2020.
5 In brief, your offending related to two occasions when you entered the Herne Hill Bottlemart on 19 April 2020 and on each occasion you stole some alcohol. The first occasion occurred at about 3.45 pm. You spoke to the store attendant, Saraj, also known as Sam Gangoli, and said to him that you wanted a cask of wine but did not have any money. He told you that you could not have one. You then said words to him to the effect that if he did not allow you have one, that you would bash his face in and that you had assaulted many times before. You then asked him, 'Are you going to give it', that is the cask, 'to me?' He said he felt threatened so he did so. You thanked the victim and said that you would come back and pay for it the following week. (Charge 1, robbery).
6 The second occasion happened shortly thereafter. About two hours later you returned to that same bottle shop and Mr Gangoli was still on duty. On this occasion you had armed yourself with a sword that was in a sheath and that was placed up your arm, I understand. On this occasion you walked into the store straight past Mr Gangoli who was standing behind the counter. He saw you collect some cask wine off a shelf and he asked you, 'What are you doing?' You stopped, placed the cask wine down, applied hand sanitiser to your hands and removed the sword from its scabbard and waved the sword in a figure eight motion in front of him and a nearby customer. You replied, 'Don't call the police and I'll pay for it next week'. The victim was very frightened and did not wish to confront you. You replaced the sword into its scabbard, you apologised to the customer and you left the store. (Charge 2, armed robbery).
7 On 27 April 2020 you, in company with your father, presented to Geelong police station. You were arrested and charged for these offences. Bail was refused and then you were remanded into custody. A ‘no comment’ record of interview was made.
8 Mr Corstorphan, your actions of those two occasions when you entered into the store, have had a profound affect upon Sam Gangoli. He no longer feels safe at work and he has suffered emotionally and psychologically. In his victim impact statement, he says he has been deeply disturbed, his sleep is very disrupted. He was not able to work for 12 weeks after the event because he was so frightened and scared. He has been hypervigilant ever since and is socially withdrawn. He stopped talking to his friends about the impact of the incident and he has been really frightened by your actions.
9 On behalf of the community, I must condemn your actions. Deterrence and community protection are very important considerations in determining the appropriate sentence. I accept that the offending happened in the context of you being heavily intoxicated and the fact that you were in poor physical and mental condition at the time. Whilst that goes some way to explain your behaviour, it does not excuse it in any way.
10 The matter proceeded in the Koori Court Division of this court and a sentencing conversation was conducted with Aunty Faye Muir and Uncle Rod Jackson. The sentencing conversation has been recognised as being designed to further the reformation of Aboriginal offenders.[1]
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11
11 Both Elders condemned your behaviour and pointed out to you the significant impact that it has had on Mr Gangoli's life and they urged you to think about the consequences of your actions and to take responsibility for your conduct. They told you it was not culturally appropriate behaviour and that you should be very ashamed of your behaviour. But they did recognise that you are a person who has great potential and implored you to make good your stated desire to change.
12 You expressed to them your concern that you were caught up in a continual cycle and that you were ruining your life. You told them that you had commenced AA meetings in gaol and that you were following the 12 steps and that you were committed to total sobriety in the future. You indicated a keen desire to remain sober and said that you wanted to complete the Galiamble Men's Recovery Program (“Galiamble”) so that you could then take up further study.
13 In your conversation you demonstrated a good insight into the connection between abusing alcohol and drugs and offending, and that you understand what needs to be done to change your pattern of behaviour. Both Uncle Rod and Aunty Faye urged you to take all the opportunities provided to you through the Galiamble Program so that you may become a strong Aboriginal man, capable of making a positive contribution to the community.
14 You were respectful and demonstrated real insight into your offending behaviour. You expressed a willingness to be open to seek out help to support you to make good your expressed goals. I have taken your genuine participation in the sentencing conversation into account, in mitigation of penalty.
15 It is accepted you entered a plea of guilty at the earliest opportunity at the committal mention on 7 August 2020.
16 On 13 October 2020, at the plea hearing, Mr Northeast sought a deferral of sentence so that you could participate in the 16 week program at Galiamble and that would enable your capacity for and prospects of rehabilitation, to be better assessed and also it would provide you with a chance to demonstrate that rehabilitation has taken place through your active participation in the program.
17 Mr Andy Moore, the prosecutor, agreed that a deferral of sentence was appropriate to address your underlying offending behaviour, notwithstanding the offending was serious.
18 On that day you were released on strict conditional bail, so that you could participate in the Galiamble Program. The program provides advice and support in respect to health, alcohol and drug counselling, well-being, living skills, short course and cultural issues. The aim of the program is to offer a culturally safe place for offenders to work on underlying offending behaviours and difficulties away from the distractions of community and to assist and support transition back into the community.
19 You successfully completed the 16-week program on 2 February 2021 and you have now been clean and sober for 9 months. It is intended that you will now move to long-term recovery supported accommodation provided by Oxford Houses SHARC in late February.
20 I have had regard to the contents of the report provided to me from Damian Zylstra, Support Worker, Galiamble Men's Recovery Centre. In his letter
5 February 2021 he said you have shown commitment, determination and have steadfastly taken part in your recovery.
21 On his advice, I accept that you actively participated in the program. You participated in counselling sessions as well as the transitional therapy and you engaged well with your sponsor. You have now set up an ongoing recovery plan, attending meetings with NA and AA after your departure from the program.
22 Also, steps were being put in place for you to gain a driver's licence. You are currently studying herpetology with a view to a career in this field. I accept his description that your growth was sure and steady and that you showed strength of character, commitment to recover, further education and an unwavering sense of direction pointing to a prosperous life and future.
23 Your completion of the program and sobriety was confirmed in Dr Joseph Sherman's letter dated 4 February 2021.
24 Furthermore, Greg Smith and Marnie Sather, counsellors, confirmed in their letter 17 February 2021, that you were also very focused and purposeful and participated in a positive way during their counselling. They confirmed the offer of the place at Oxford Housing, which is a shared housing program that will support your transition back into community. It is a program supported by Oxford Housing on an ongoing basis, with an expectation of sobriety and involvement in employment or training and it is available on an ongoing basis providing you with security for the future.
25 Viv Parry, the Art Therapist at the Galiamble Aboriginal Men's Recovery Centre, also confirmed your commitment and determination to positive change.
26 These testimonies are all very useful indicators as to your rehabilitation prospects. The fact that you did so well at the Galiamble Program and have remained sober for so long, means that I do believe you have reasonable prospects of rehabilitation.
27 I have taken into account your background. You are of Waanyi, Garawa and Lardil Lardil descent. You were born in Alice Springs. You have connections to the Gulf country in the Northern Territory and Doomadgee country around Nicholson River, Queensland. Your early years were somewhat disrupted. I noted that you were raised in various locations, including the remote dessert towns of Nyirripi, Jamieson, and in Central Australia in Alice Springs, and also in Katherine in the Northern Territory. You lived in Geelong, Victoria as well as Doomadgee in Northern Queensland and Mt Isa in Central Queensland. You moved about quite a lot in your early years and attended a number of different schools.
28 Your parents' marriage broke down in 2010 when you were aged 15. You were left in the care of your father who responded badly to the marriage breakdown. He too, had issues with alcoholism, however he is now many years sober and is a source of support and guidance to you. Tragically, your mother died of cancer in 2014.
29 In the material, your upbringing was characterised by trauma and mental health issues and I accept that the circumstances of your childhood deprivations and other social disadvantage that occurred during your formative years have been profound and those effects have not diminished with the passage of time and repeat offending. I have applied the principles enunciated in the case of Bugmy.[2] The High Court recognised that “the effects of profound deprivation do not diminish over time and … are to be given full weight in the determination of sentence in every case”.[3]
[2]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
[3]Ibid, paragraph 42
30 In formulating the appropriate sentence, I have had regard to the gravity of the offending. Objectively, it was serious, involving you making threats against the store attendant on two occasions and on the second occasion, you brandished the sword, which would have been terrifying, not only for the attendant, but also the nearby customer.
31 Finally, I have accepted all the matters put in mitigation on your behalf by
Mr Northeast. The plea is one of real utility, entered at the earliest opportunity. In this time of the pandemic, the utility of such pleas is acknowledged. You avoided the cost and inconvenience of the trial and avoided Mr Gangoli having to be further traumatised by having to be examined. You have facilitated justice, and your sentence will be discounted accordingly.
32 I accept in this case you have acknowledged what you did was wrong and that the plea demonstrates acceptance of responsibility and reflects genuine remorse. You truly now deeply regret your behaviour. You spoke about your shame in the sentencing conversation.
33 You have through your conduct, demonstrated a real conviction and strong desire to remain sober and you have ambitions to complete Year 12 and undertake further tertiary study. Through your commitment to change and the real progress made during the Galiamble Program you have made good, in part, your conviction and I encourage you to further develop and grow and make the most of every opportunity that you have been provided.
34 Because Galiamble's program conditions were very restrictive, I have taken into account those restrictions in accordance with the principles enunciated in a case called Akoka.[4] In that case the Court of Appeal recognised the punitive nature of time spent in a residential rehabilitation facility, following offence and before sentence was a form of detention that should be credited in the sentencing exercise.[5]
[4]Akoha v The Queen [2017] VSCA 214
[5]Ibid, [105], [109]
35 I have also had regard to your genuine participation in the Koori Court sentencing conversation.[6] I have had particular regard to the fact that you completed your program at Galiamble and all the effort that you have made following the deferral of sentence means that you now have a proper foundation to build on to realise your future goals and ambition.
[6]Honeysett v The Queen (2018) 56 VR 375
36 In formulating sentence, I must impose just punishment. I must emphasise both general and specific deterrence and community protection.
37 In conclusion, having regard to all the factors that I have highlighted and the very real and substantial efforts that you have made to address your underlying offending behaviours, I consider that a sentence which combines a period of time in imprisonment (equivalent to time served) and a community correction order in the manner that has already been described to you, provides for your best rehabilitation prospects and also for community safety for the future.
38 I will now announce the formal order in respect of the charges of robbery and armed robbery. You will be convicted and sentenced to an aggregate term of imprisonment of 169 days, being equivalent to time served, to be followed by a two year community correction order with the conditions already outlined with, supervision, treatment and assessment for drug, alcohol and mental health, as well as other offending behaviour programs directed at reducing reoffending.
39 You have acknowledged that you understand the effect and the conditions of such an order and you have consented to it being made. I have also explained to you the consequences of any breach of the conditions of the community corrections order and you understand that if you were to breach any condition, that you would be brought back before the court in respect to another offence of contravention of a community correction order and you would possibly have to be resentenced in respect to these offences.
40 I have imposed an aggregate term of imprisonment having regard to the fact that the robbery and armed robbery relate to a series of charges that occurred on the same day, very close in time, and I consider that such an order is appropriate in all the circumstances.
41 I declare 169 days' pre-sentence detention.
42 I make a s.6AAA declaration, but for your plea of guilty, I would have imposed a term of imprisonment of three years, to serve two years.
43 And finally I make the disposal order sought.
- - -
44 HER HONOUR: I don't believe that there was any other ancillary orders, sought, Mr Moore?
45 MR MOORE: Your Honour, could I just enquire as to the item or items in the disposal order which you signed?
46 HER HONOUR: All right. It hasn't been provided yet, it's just in the opening. So, if you could get your instructor to provide that to me, I'll sign it today.
47 MR MOORE: I understand it's for the sword, so - - -
48 HER HONOUR: The sword, yes.
49 MR MOORE: I think he's doing that, as I speak.
50 HER HONOUR: Thank you. And the only other thing I need to do is, we will send the signed community correction order to the Box Hill Community Correctional Services and also Mr Northeast, what's the best way to get a copy to your client today?
51 MR NORTHEAST: If you send it to our office, we'll arrange to get it to Galiamble to be signed Your Honour.
52 HER HONOUR: Thank you. All right, that will be done. So, Mr Corstorphan, I hope that you understand the order that's been made, and the terms of the order, and this is really an opportunity for you to continue the very good work that you've done to date.
53 ACCUSED: Yes I do Your Honour.
54 HER HONOUR: Thank you. I will send the order through my associate to Mr Northeast today. But it's important that within two clear working days, you make connection to Box Hill Community Correctional Services. There is a telephone number provided. I believe an in-person attendance is not required, but you must make telephone contact within the two days, given the current circumstances of the pandemic, that is appropriate. And so that's what will have to be done Mr Northeast and Mr Corstorphan.
55 ACCUSED: Yes, Your Honour.
56 HER HONOUR: He will have to telephone the number.
57 MR NORTHEAST: Understood Your Honour, we'll do that today.
58 HER HONOUR: Thank you. And thank you very much for your assistance to the court, but really Mr Corstorphan, you have been very attentive to the commitments that you made when you spoke with the Elders, so I very much appreciate that. And they will be told about your progress and also the sentence that I have given, because it's important that they get that feedback too.
59 ACCUSED: Yes, Your Honour.
60 HER HONOUR: Because they really – they are very concerned about Aboriginal offenders breaking the cycle of offending, so it's really good when we see somebody like yourself, who has done something very wrong, but acknowledged that and has worked hard to deal with what it was that drove them to their offending. So, thank you.
61 ACCUSED: Yes. Look, may I say one thing, Your Honour?
62 HER HONOUR: You may.
63 ACCUSED: The herpetology course isn't actually a snake handling course, but a reptile and amphibian science course, you know - - -
64 HER HONOUR: Sorry about that. That was just my colloquial understanding but I accept that. It's a snake handling - a reptile handling course is it and you get a - - -
65 ACCUSED: Yes. A reptile and amphibian science course.
66 HER HONOUR: All right.
67 ACCUSED: I was going to get a certificate after that for snake handling.
68 HER HONOUR: All right. So, thank you for that and all the best.
69 ACCUSED: No problem, you too.
70 HER HONOUR: Thank you. We'll discontinue the link now, thank you everybody.
71 MR MOORE: Thank you.
72 MR NORTHEAST: As Your Honour pleases.
- - -
0
4
0