Director of Public Prosecutions v Dabaja

[2023] VCC 541

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 21-02572

DIRECTOR OF PUBLIC PROSECUTIONS

v

HUSSEIN DABAJA

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2022 and 28 March 2023
DATE OF SENTENCE:	5 April 2023
CASE MAY BE CITED AS:	DPP v Dabaja
MEDIUM NEUTRAL CITATION:	[2023] VCC 541

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Charges of armed robbery, intentionally damaging property, common assault, making a threat to inflict serious injury and committing an indictable offence while on bail – robbery of a service station whilst armed with a bat – limited criminal history – intersection of offending with intellectual impairment, poor mental health and substance abuse – significant advances made whilst on bail – reasonably early plea of guilty – evidence of remorse – young offender - impaired mental functioning causally linked to offending – reduced moral culpability – custodial sentence of category 2 offence – discussion of s 5(2H) exceptions – applicability of s 5(2HA) – satisfied of circumstances which are substantial and compelling – not satisfied circumstances are exceptional and rare -

Legislation Cited:     Sentencing Act 1991; Disability Act 2006; Mental Health Act 2014

Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP v Lombardo [2022] VSCA 201

Sentence:                 16 months’ detention in a Youth Justice Centre

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Paganis	Office of Public Prosecutions
For the Accused	Mr J. Portelli	Balmer & Associates

HIS HONOUR: 

1Hussein Dabaja, I propose to sentence you to 16 months’ detention in a Youth Justice Centre. I will declare your 33 days of pre-sentence detention as time served under my sentences.

2You pleaded guilty to a charge of armed robbery, intentionally damaging property, common assault and making a threat to inflict serious injury. You also pleaded guilty to the related summary offence of committing an indictable offence while on bail. 

3Exhibit A is the summary of the prosecution opening for plea. You agree with its contents.

Circumstances

4At about 6.44 pm on 21 July 2021, you and Salmaan Malik entered the store of a service station in Campbellfield. You were armed with a bat and Mr Malik with a wheel brace. Both of you spoke to the female attendant, demanding cash and cigarettes. You threatened to hit her in the face if she lied to you or called the police.

5The attendant was fearful. She struggled to comply with your demands. You smashed items in your apparent frustration. These items included glass cabinets, CCTV monitors and a cash register.  These circumstances constitute the charges of armed robbery, threat to inflict serious injury and intentionally damaging property.

6At about 6.58 pm, a customer entered the store. He approached the counter unaware of your actions. Both of you told him to leave while you struck the counter with your bat. He fled.

7The two of you stole 98 packets of cigarettes, worth about $3,920 and $1,415 in cash. The cost of repairs of the damage to the store was $4,291.80.

8Shortly after leaving the store both of you were arrested.

9You were interviewed. Largely, your replies to questions were 'no comment', but you did make some partial admissions.

10Having been arrested, you were bailed on 23 August. Following a committal hearing on 2 December 2021 where no oral evidence was given, you were committed for trial. There was to be a plea hearing in May 2022 but that was adjourned.

11At the time of you committing these offences, you were on bail for other matters.

Criminal history

12You have a limited criminal history. You appeared in the Children's Court on 6 October 2020 and were found guilty of seven charges, including a charge of reckless conduct endangering serious injury. Without convicting you, the proceeding was adjourned to 5 April 2021 on you entering a good behaviour bond and being of good behaviour during the period of the adjournment.

Psychologist

13Sandra Cokorilo is a psychologist. At the request of your solicitors, she interviewed you on 18 May 2022 and reported[1].

[1] Report dated 16 August 2022.   

14Ms Cokorilo accepted the earlier finding of your intellectual disability. She diagnosed you as suffering from several disorders including a persistent depressive disorder and a generalised anxiety disorder.

15She ascribed your offending to the interaction of three factors: intellectual impairment; poor mental health; and substance abuse; with the last playing a significant role. She explained how those factors worked together[2]:

'His chronically compromised mental health, in combination with heightened susceptibility to negative peer influences, impoverished interpersonal relationships, poor insight into his own emotional states and low coping resources inherent in his intellectual impairment, are inferred to have contributed to the development of alcohol and substance abuse as a form of self-medication. His drug abuse in turn additionally undermined his emotional and social development and negatively impacted on his behavioural outcomes.  

The implications of intellectual limitations thought to be relevant to Mr Dabaja's case include his impairment in executive functioning, with reduced self-inhibition, self-awareness, and self-control leading to impulsivity and disinhibition. His social decision making and functioning is compromised and he has a poor understanding of others' perspectives. He has a distorted temporal perspective, whereby he reasons in terms of short-term consequences as his ability to understand future consequences is inhibited. Taken together, these factors impair his ability to think clearly and exercise appropriate judgment. His cognitive deficits also make him more vulnerable to negative peer influences. He reported that at the time of the offending he "went along" with the co-accused's idea to commit the robbery'.

[2] At [76] – [77].     

16As to the effect of imprisonment, Ms Cokorilo said[3]:

'…it is noted that Mr Dabaja's mental health issues would likely be exacerbated by a period of imprisonment. He presents with severe anxiety and depression with suicidal ideation and the concern with incarceration is that it would place him at increased risk of additional emotional deterioration in view of his low coping resources'.

[3] At [96].

17These difficulties would be exacerbated by your intellectual deficits in that you no longer grasp things and have difficulty in adapting to new environments.  

Personal

18You are now 20. You were born in Australia, you lived in Lebanon between the ages of eight and 10. You have three sisters. Your upbringing has been unexceptional except your parents argue frequently. You are close to your parents and sisters.

19You struggled in school but were able to complete Year 11 at a TAFE. In April 2022, you started an automotive apprenticeship.

20You have had two significant relationships, both of which have finished. There are no children.

21As to substances, you first drank alcohol at 14, used cannabis also at 14, used Lyrica and Xanax at 15, cocaine, MDMA and LSD at 16. You have stopped using all drugs following your remand on these charges.

Reports

22I have received these reports:

(a)   Statement of intellectual disability, dated 1 December 2022.

(b)   Disability overview report, dated 27 February 2023.

(c)   Pre-sentence report, dated 27 February 2023.

(d)   Extended Pre-sentence Assessment – Outcome Report, dated 3 March 2023.

23The Disability overview report recommends a justice plan with certain components.

24You have been on bail for a considerable time. The pre-sentence report sets out the significant advances you have made while on bail for these offences.

25The extended pre-sentence assessment assesses you as suitable for a community correction order. Its author recommends certain conditions, including a justice plan. 

Discussion

26All of the purposes of sentencing bear upon your case.

27The maximum penalties for the offences are:

·        armed robbery – 25 years' imprisonment;

·        intentionally damaging property – 10 years' imprisonment;

·        common law assault – 5 years' imprisonment;

·        making a threat to inflict serious injury -- 5 years' imprisonment; and

·        committing an indictable offence on bail – 3 months' imprisonment.

28The possibility of fines applies to each of those offences.   

29Your guilty pleas were entered after a 'submissions only' committal hearing. In terms of their timing, they were entered reasonably early in a process which starts with the laying of the charges and ends with the verdict of a jury. These pleas deserve an enhanced utilitarian benefit described in the case of Worboyes[4] and other cases. Your pleas are evidence of remorse. This, and other factors, lead me to conclude you are remorseful. 

[4] Worboyes v The Queen [2021] VSCA 169.

30Much of the submissions in your case has focussed on the charge of armed robbery. In the circumstances of your offending, armed robbery is a category 2 offence under the Sentencing Act 1991. I am obliged to sentence you to imprisonment or detention unless you establish an exception under s5(2H) of that Act.

31First, you rely on s5(2H)(c)(i), which provides that at the time of your offending, you seek to establish you had impaired mental functioning which is causally linked to the commission of the offence and substantially and materially reduced your culpability.

32Since you have an intellectual disability within the meaning of the Disability Act 2006, you have impaired mental functioning. However, s5(2HA) excludes impaired intellectual function caused substantially by self-induced intoxication.

33Although your counsel did not specifically rely upon your mental illnesses, based on Ms Cokorilo's findings, you have a 'mental illness' as defined by s4 of the Mental Health Act 2014 - which provides subject to subsection (2), mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory. Subsection 2 has no application here when one excludes intellectual disability.

34Ms Cokorilo identified three factors behind your offending, one of which is the deficits due to your intellectual functioning. The consequences of these deficits were:

(a)   a reduced self-inhibition, self-awareness, and self-control leading to impulsivity and disinhibition.

(b)   compromised social decision-making and functioning with a poor understanding of others' perspectives.

(c)   you think in the short-term and your ability to comprehend future consequences of your actions is inhibited.

(d)   you are vulnerable to negative peer influences.

35Overall, these factors impair your ability to think clearly and exercise appropriate judgment. I consider your impaired mental functioning is causally linked to your offending and it substantially and materially reduces your culpability.

36Both s5(2H)(c)(i) and s5(2HA) use the word 'substantially'. They do so in different contexts. The first provision uses the word to describe in part the effect of your culpability. The second provision uses the word to link self-induced intoxication with your impaired mental functioning.

37In interpreting s5(2HA), one must remember the expression 'impaired mental functioning' is used in the narrow sense defined in s10A of the Sentencing Act. You have 'impaired mental functioning' because you have an intellectual disability within the meaning of the Disability Act 2006. Your intellectual disability arose well before your offending. Although undiagnosed until 2019, it was probably evident during your school years. Literally, your intoxication through substances has nothing to do with your kind of impaired mental functioning. The same could be said of the other forms of impaired mental functioning in s10A. However, Parliament did not intend such a narrow construction.

38The simple fact of a full-scale intelligence quotient of 66 does not necessarily reduce your culpability. In your case, it does so in the manner described by Ms Cokorilo in her report. That is, the effect of your intellectual disability upon the way you behave. Despite the prosecution's submissions, the effect of your intellectual disability on your cognitive abilities does reduce your moral culpability from a very high level. Your intellectual disability substantially and materially reduces your culpability. 

39Examined in the same way, s5(2H) raises Ms Cokorilo's analysis of the causes of your offending. She sees your self-induced intoxication playing a 'significant' role in your offending. The other factors of intellectual disability and poor mental health are also seen as significant contributors.

40The adverb 'substantially' is used three times in s5(2H) and the adjective 'substantial' once. In The Macquarie Dictionary, 'substantial' is given a number of meanings. The most appropriate meaning in this context is 'of ample or considerable amount'. In terms of causation of a person's behaviour, there may be more than one cause. If more than one, then those causes may have different weight or importance. There may be important causes. There may be minor causes. There may be causes of substance. In the terms of the legislation, there can be more than one 'substantial' contributor to a person's offending behaviour and one factor may be more substantial than another or others.

41To Ms Cokorilo, it is the underlying nature of your compromised mental health and cognitive deficits which led to your drug addiction and the offending with your intoxication contributing to your disinhibition, recklessness and impulsivity. The issue she does not answer is whether your self-induced intoxication is of sufficient significance to be considered 'substantial'.   

42You bear the burden of establishing a ground under s5(2H), which includes establishing s5(2HA) does not apply.

43A further report was obtained from Ms Cokorilo, dated 29 March 2023. A copy of my remarks from the last hearing, a large portion of which I have already just read again, were given to her. In paragraphs [18] through to [24], Ms Cokorilo discusses my sentencing remarks in the context of her assessment of you.  I will not read all those paragraphs out, except I will read this. 

'[18] It is my professional opinion that Mr Dabaja's self-induced intoxication is of sufficient significance to be considered "substantial". Whilst he reported he has been using alcohol and cannabis from age 14 and Xanax from age 15, he explained that at the time of the offending he was heavily affected by the combination of all these substances, noting that "those three are a bad mix"'.

'[19] To use his words, he was "drugged off my face". According to his own account, the robbery was his friend's idea and he stated that he "went along with it" as he did not consider the consequences of his actions due to being "high"'.   

44She then goes on to talk about intellectual disability and its effects on a person's behaviour.

45In my view, in light of Ms Cokorilo's opinions, expressed both in the supplementary report and the original report, s5(2HA) applies so that you cannot rely upon the exception contained in s5(2H)(c)(i).

Section 5(2H)(e)

46Your counsel also relied upon the exception in s5(2H)(e), which reads:

'there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with s44)'.

47The application of this clause has been further limited by s5(2HC) and s5(2I).  They provide respectively:

(2HC)      In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—

a)must regard general deterrence and denunciation of the offender's conduct as having greater importance than the other purposes set out in s5(1); and 

b)must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and

must not have regard to—

i.the offender's previous good character (other than an absence of previous convictions or findings of guilt); or

ii.an early guilty plea; or

iii.prospects of rehabilitation; or

iv.parity with other sentences.’

48Sub-section (2I) provides:

'(2I)   In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—

a) the Parliament's intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 should ordinarily be made; and

b) whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.'

49Division 2 of Part 3 of the Sentencing Act deals with custodial orders.  Among the specified custodial orders are youth justice centre orders and youth residential centre orders.  I will return to this aspect shortly.

50Recently, the Court of Appeal examined the operation of this clause and the associated provisions in s5(2HC) and s5(2I) to in DPP v Lombardo.[5]  In applying the test created by para (e), there are two key steps:

(a)   the court must identify whether there are substantial and compelling circumstances.  'Substantial and compelling' means the circumstances are weighty and forceful or powerful so as to justify not imposing a custodial sentence; and

(b)   if the answer is 'yes' to (a), then the phrase 'exceptional and rare' requires circumstances wholly outside the run of the mill factors typical of the relevant kind of offending - in this case, armed robbery.

[5][2022] VSCA 201.

51Ignoring those circumstances which the legislation requires me to ignore, you are a young offender. Your intellectual functioning is impaired in the manner described earlier. Imprisonment or detention could well be counterproductive as you are easily led. You are afflicted by mental health issues. You have strong family support and are an important part of your household. You have behaved very well while on bail including obtaining satisfactory employment.

52As to the first key step, I would say those matters are substantial and compelling so as to justify not imposing a custodial sentence.

53As to the second key step, Lombardo’s case is instructive about its application. Mr Lombardo pleaded guilty to dangerous driving causing death. The dangerous driving was due to a momentary lapse of judgment. In your case, the armed robbery was a lengthy affair with threats and acts of violence, which are the subject of separate charges. It did not cause death or physical injury but would have caused the victim significant psychological damage. I cannot say as to the effect on the second victim.

54Mr Lombardo was young at the time of his offending, as were you. He took immediate responsibility for his offending and was remorseful. You did not take immediate responsibility for your offending when interviewed by the police. It was not until after a committal hearing that you indicated an intention to plead guilty. Of course, you were entitled to take those courses but, for the purposes of this plea, the timing of your acceptance of responsibility is relevant. Nevertheless, I am satisfied you are remorseful.

55Mr Lombardo had no criminal history. You have a limited criminal history with a significant collection of charges dealt with in the Children's Court. The present offences occurred about three months after the end of your good behaviour bond. You learnt little from the leniency extended to you and then escalated your offending to these charges. 

56As with Mr Lombardo, you have strong family support. You have gained very satisfactory employment. You have ambitions for more skilled employment. 

57Although Mr Lombardo suffered from mental health issues, stemming from his reaction to the death he caused, in your case, your mental health issues are longstanding, occurring as early as your primary school years.

58Unlike Mr Lombardo, you have an intellectual disability. In 2019, a psychologist, Gina Cidoni, assessed your full-scale intelligence quotient at 66. That figure meant that 99 per cent of your age-related peers would do better than you in terms of cognitive functioning and adaptive skills.

59An armed robbery of a service station is frequently committed by young persons, often in the company of others. Owing to their youth, they have limited criminal histories. The extent of violence in your case is somewhat unusual in that there is often less actual violence. The offenders often suffer from mental health issues, and some suffer from intellectual disabilities. Frequently, they have an addiction to drugs and are affected by drugs at the time.

60At the time, you were on bail for other alleged offending. Apart from Parliament's way of dealing with that aggravating circumstance in s16(3C) of the Sentencing Act, it is a circumstance which I must consider in this context. 

61If one examines all of the circumstances, I do not consider they are exceptional and rare. It is the word 'rare' which is particularly important. It takes the exceptional to its outer edges or, as the Court put it in Lombardo’s case, wholly outside the run of the mill factors typical of the relevant kind of offending.

62The overall circumstances, including those of the offending, are not exceptional and rare in the sense necessary to justify not making the required order.

Section 16(3C)

63In sentencing you, I am conscious of the effect of s16(3C) of the Sentencing Act.

Sentence

64On Charge 1, a charge of armed robbery, I sentence you to 15 months' detention in a Youth Justice Centre. 

65On Charge 2, a charge of intentionally damaging property, I sentence you to 9 months' detention.

66On Charge 3, a charge of common law assault, I sentence you to 6 months' detention. 

67On Charge 4, a charge of making a threat to inflict serious injury, I sentence you to 9 months' detention. 

68On the summary Charge 5, a charge of committing an indictable offence while on bail; the indictable offence being the armed robbery, I sentence you to one months' detention.

69The sentence on Charge 1 is the base sentence. The sentence on summary Charge 5 is to be served cumulatively on the base sentence. The other sentences of detention are to be served concurrently with themselves and the sentences on Charge 1 and the summary charge. The total effective sentence is 16 months' detention.

70I declare the 33 days of your pre-sentence detention as time served under my sentences.

Section 6AAA

71Absent your guilty pleas, I would have sentenced you to 24 months' detention.

Forfeiture and disposal

72I will make the forfeiture and disposal orders in the terms sought.

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