Director of Public Prosecutions v Damuni

[2023] VCC 262

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00425

DIRECTOR OF PUBLIC PROSECUTIONS

v

IAN DAMUNI

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JUDGE:	Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2022
DATE OF SENTENCE:	24 February 2023
CASE MAY BE CITED AS:	DPP v Damuni
MEDIUM NEUTRAL CITATION:	[2022] VCC 262

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Armed robbery – Intentionally causing injury – Plea of guilty – Delay – Worboyes – Verdins – Covid-19 pandemic.

Legislation Cited: ss 5, 6AAA, 18 Sentencing Act 1991 (Vic).

Cases Cited:R v Verdins [2007] VSCA 62; Worboyes v The Queen [2021] VSCA 169.

Sentence:                  Two years and eight months’ imprisonment with a non-parole period of 17 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the DPP	M. Roper for the plea A. Dickens for the sentence	The Office of Public Prosecutions
For the Accused	C. Edwards	Marshall Jovanovska Ralph Criminal Lawyers

HER HONOUR:

1Ian Damuni, you have pleaded guilty to the following charges, Charge 1 armed robbery, and Charge 2 intentionally causing injury.

Circumstances of the offending

2The full circumstances of your offending are set out in the summary of prosecution opening.[1]

[1] Exhibit A.

3At the time of your offending you were 36 years of age.  You had no fixed address and were staying in a makeshift tent at the rear of an address in Treloar Crescent Braybrook. The victim, Pasquale Gabrielle was 53 years of age and also had no fixed address and was living out of his car. He had parked his car, a Holden Commodore Wagon, at an address in Treloar Crescent a few doors down from where you were staying. You were both known to each other as acquaintances through living rough on the streets in Braybrook over the past year.

4On 25 December 2021, at approximately 3.00am Mr Gabrielle and witness Bill Resulani were sitting in Mr Gabrielle’s vehicle while it was parked in the driveway of the Treloar Crescent address. Mr Gabrielle was in the driver’s seat and Mr Resulani was in the front passenger seat.

5You approached the driver side of the vehicle and demanded a DVD player from the Mr Gabrielle. He got out of the driver’s seat and started to look through the back seat for the DVD player but was unable to locate it. He then returned to the driver’s seat of his vehicle and closed the door.

6You were still standing near the driver door and were screaming at him to hand over the DVD player. Whilst Mr Gabrielle was seated in the drivers seat you smashed the driver side window then produced a black handled kitchen knife and said, ‘Give me the fucking DVD player or I’ll fucking stab you’.

7You attacked him through the broken window and proceeded to stab him three times. Mr Gabrielle sustained two five centimetre lacerations to the right forearm and superficial cuts to the right leg from the broken glass.

8Mr Resulani, who was still seated in the front passenger seat next to Mr Gabrielle, yelled at you ‘Stop he has had enough’. You then punched Mr Gabrielle to the face causing his nose and mouth to bleed.

9Mr Gabrielle retrieved the portable DVD player from the vehicle and gave it to you.  You then left the scene and returned to your tent.

10Mr Resulani called the police and remained at the scene with Mr Gabrielle until the police and ambulance arrived. Mr Gabrielle was conveyed by ambulance to the Sunshine Hospital where he underwent medical treatment for the injuries caused by you.

11Surgery was performed on lacerations sustained to  Mr Gabrielle’s right arm. Pieces of broken glass were also removed from the lacerations on his right arm and right leg. Whilst at the hospital police obtained a statement from him in which he nominated you as the offender.

12Police spoke with Mr Resulani at the scene.  He nominated you as the offender but refused to make a statement.   

13At approximately 4.10am police attended the makeshift tent and arrested you. During the arrest you told police where the knife you had used to stab Mr Gabrielle was and pointed to a black handled kitchen knife on a nearby bench. You also surrendered the DVD player to police which was also in the tent.  Both items were seized by police.

14You were interviewed by police and you made full admissions to stabbing Mr Gabrielle, stating:

(a)   ‘Something made me angry I stabbed the cunt’;

(b)   You admitted to stabbing the victim ‘quite hard’ and described the knife you used as being ‘knife with a black handle’;

(c)   You keep the knife in your pocket for your own safety;

(d)   You stated the incident was over you wanting to retrieve a DVD player;

(e)   You stated you knew the victim from living on the streets.

Gravity of the offending

15The maximum sentences prescribed by Parliament for both offences indicate their seriousness.  In addition, the armed robbery charge that you have pleaded guilty to is a Category 2 offence as your victim suffered an injury as a result of the offence. The Court must therefore impose a period of imprisonment unless a statutory exception applies under the section.  In your case it was not suggested that one does. 

16Quite properly, your Counsel conceded that your offending is serious. You made threats to Mr Gabrielle and used a knife to cause him injury. I accept the prosecution submission that for offences of this type, just punishment, general deterrence and denunciation are important sentencing considerations.  While there is no victim impact statement by Mr Gabrielle, unsurprisingly, he describes in his statement being left feeling terrified by the attack.

17I have also had regard to the factors relied upon by your Counsel and accept that your offending falls somewhere within a ‘mid-range’ of seriousness.  In particular, your offending occurred within a relatively short period of time; there was a low level of organisation, sophistication or planning behind the offending and the value of the property was low. Totality is an important consideration in your case, given the close relationship between the charges and that they occurred in the one incident. I need to ensure that the sentence is not a ‘crushing’ one and that the aggregation of the sentences appropriate for each offence are a just and appropriate measure of the total criminality involved.

18In respect of the offending you reported to Dr Cunningham that you were told to get a DVD player from the victim by a friend. He didn’t want to give the DVD player and so the two of you had a fight. You stated that you regretted your actions and were shocked by your behaviour. You had a knife on you, due to previously being attacked when homeless. At the time of your offending you were in crisis, homeless and abusing drugs daily. While this doesn’t excuse your offending it offers some context. 

Personal history

19Your history and circumstances were canvassed in the reports of Dr Aaron Cunningham and Dr Leonie Keall and also by your Counsel, Mr Edwards, in a comprehensive and considered plea. 

20You were born in Fiji and moved to Australia at around the age of five. Your parents raised you and your brothers and sister in a loving and stable environment. Your father was a minister of the Church and your mother worked in hotels.  She continues to work as a cleaner. You remained living in the family home until you moved to live with your partner in your thirties. Your father passed away in December 1999. You remain in contact with your mother and she is your main support. 

21You completed Year 12 and obtained various work and your longest period of employment was as a courier for a number of years. In more recent times you have not worked and are in receipt of Newstart Allowance. 

22You married your partner in 2015 and relocated from Melbourne to Sydney. Your marriage was not a happy one and it ended badly sometime in 2017. There are two children of the relationship, your seven year old son and five year old daughter.   

23You returned to Melbourne from Sydney and you report then getting ‘caught up in Melbourne’ and not returning to your family. Your circumstances deteriorated and you became homeless. You have mainly lived on the streets for two to three years and your drug use has escalated.

24You report a history of cannabis and methylamphetamine abuse. You used cannabis from the age of 15, sometimes smoking daily. You started using methylamphetamine from the age of 30, in the context of your marriage breakdown, and up until your remand you were using regularly.

25You report being severely beaten on the streets and you told Dr Cunningham that the gaol doctors told you that you suffered from an acquired brain injury. 

Priors

26Your prior history generally coincides with your personal history and the breakdown of your marriage.  As your Counsel submits, until your early 30s you were, in the main, a law abiding and productive member of the community. From 2017 you began to regularly appear before the Courts. You have a number of New South Wales prior matters which mostly attracted relatively modest fines. After you moved to Melbourne from 2020 you have been dealt with for a range of matters, including violent, drug and dishonesty charges.  You have received a variety of dispositions, including relatively short periods of imprisonment, with time served as declared and a Community Corrections Order which was subsequently breached. 

Mental health

27You are currently prescribed the anti-psychotic, Risperidone. You have been told that you receive it for a diagnosis of schizophrenia. You were apparently first told that you suffered from this illness at the age of 35 when first incarcerated.  You report being in a psychiatric hospital in 2019 for a month and as suffering from severe paranoia and auditory hallucinations. According to available medical material, you received a diagnosis of drug induced psychosis in July 2019. You were subsequently an inpatient at the Werribee Mercy Hospital from 18 October to 22 October 2019 where the principal diagnosis was drug induced psychosis, on a background of chronic psychotic illness precipitated by non-compliance and amphetamine use.  Your criminal history report indicates that you were diagnosed with schizophrenia and prescribed Quetiapine in 2021. 

28From a psychological perspective Dr Cunningham considers that you would benefit from a disposition that facilitated your rehabilitation and allowed you to engage with mental health and drug and alcohol rehabilitation in the community.  He recommended that you be referred for case management under the National Disability Insurance Scheme. He also considered that you would benefit from undergoing an assessment for a brain injury. 

29Pursuant to Dr Cunningham’s last recommendation, your plea was adjourned to allow your practitioners to have you assessed by a neuropsychologist.  Clinical Neuropsychologist, Dr Leonie Keall provided a report of 13 February 2023.  Dr Keall undertook a formal assessment of your cognitive abilities. You reported to her a progressive decline over the last five years in your attention, speed of thinking and short term memory. You demonstrated cognitive difficulties on formal testing. Your difficulties fluctuated and varied. You have poor inhibitory control, impaired abstract reasoning skills and also difficulties with speed of information processing and some aspects of attention. Your conversational language and planning and organisational skills were within expected limits. Dr Keall opines that ‘at this point, it is not possible to determine the exact cause of [your] cognitive difficulties’.  While she considered it unlikely that a neurodevelopmental condition underlined your current cognitive difficulties, she considered that there may be multiple contributing factors; including your methamphetamine use, a possible traumatic brain injury or your diagnosed schizophrenia.  On the information before her, she considered it possible that you had suffered a traumatic brain injury arising from a reported strike to the head, but she was unable to confirm this. She also opined that your cognitive difficulties would have been more apparent and severe when you were in the community, at the time of the commission of the offences She states at page eight:

In my opinion, Mr Damuni’s cognitive difficulties alone would not have led him to commit the criminal offences in question. In my opinion, however, Mr Damuni would be more vulnerable than his same aged peers in terms of having difficulty making well-reasoned decisions and stopping himself from acting on his impulses, which has implications for his behaviour including criminal offending … He does not have the same potential capacity as his peers to stop and think before acting, process and weigh up information, and use that information to come to decisions. These difficulties would be further exacerbated if he had acute mental health issues and/or drug use at the time.

30Dr Keall also opines at page nine of her report that your cognitive difficulties, and the way in which they would likely impact on you, would make you more vulnerable in the prison setting than your same-aged peers.  

31Dr Keall considers that in light of your cognitive difficulties you would likely require ongoing support in order to maintain compliance with psychiatric treatment and to maintain abstinence from drug use. She states ‘he would be more likely to struggle with independently achieving long-term treatment compliance and drug abstinence than his same-aged peers who do not have cognitive difficulties.’

32Your Counsel submits that at the time of your offending your circumstances were impoverished.  You were living a chaotic and unstable life and abusing methamphetamine. At the time of your offending, your cognitive difficulties would likely have been more extreme and your impulse control compromised.  It was not submitted that this ought to reduce your culpability but rather it was a matter that assists to explain the circumstances leading up to your offending. It was submitted that limbs two, five and six of Verdins[2] have application in your case. I accept that your cognitive difficulties and poor mental health have a bearing on the structure of the sentence to be imposed. I also accept, on the material before me, that in light of your conditions imprisonment will weigh more heavily on you than it would on a person in ‘normal health’ and that there is a serious risk of imprisonment adversely effecting your mental health.  I take these matters into account in sentencing you. 

[2] R v Verdins [2007] VSCA 62.

Early plea of guilty

33You entered a guilty plea at the first available opportunity, namely at the first committal mention.  Your early plea of guilty entitles you to a substantial discount in sentencing.  It demonstrates that you are willing to facilitate the course of justice and it has saved the victim and any witnesses the trauma and further delay of a trial.  It also reflects your remorse, consistent with your immediate admissions and co-operation with police. I accept that your admissions were of significant value, particularly in a case where the main eye-witness was not prepared to make a statement. Your plea of guilty has utilitarian benefit, which is heightened in accordance with the Worboyes[3] principles.

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

34There has also been some delay in your matter finalising to sentence and I take this delay into account in your favour in sentencing you. 

Prospects of rehabilitation

35Dr Cunningham formally assessed your risk of future violent offending and considered that you presented as a moderate risk. In his opinion, at page two of his report, your risk would increase in the presence of drug abuse. He also spoke to your mother, who is quite obviously supportive of you. She stated that when you use drugs you become angry, aggressive and paranoid. She believes that you need rehabilitation and is worried about your ability to cope if released straight into the community.  Dr Keall also considers that you would be at risk of exacerbation of your cognitive difficulties and possibly of further decline in cognitive functioning should you resume drug use.  She suspects that your long-term rehabilitation with regard to your psychiatric condition and drug use will be at least partly dependent on the availability of appropriate ongoing support in these matters.

36You have ongoing weekly contact with, and the continuing support of, your mother and when released from gaol you will live with her in Ardeer. I accept that stable housing is integral to your rehabilitation and it appears that you have this available to you. 

37I was told that you have not had any contact with your children while in custody, aside from a chance encounter during a video contact with your mother. You want to play a role in their lives and you are apparently motivated to do so. Your Counsel submitted that your young children provide you with a powerful incentive to get back on the ‘straight and narrow’.

38In assessing your prospects of rehabilitation and the weight to be given to specific deterrence, I also have regard to your prior criminal history which is relevant. I take into account that your offending history largely doesn’t commence until you were into your thirties. I also take into account that your current period on remand is the longest period of time you have spent in custody. Further, it has been during the pandemic and you have experienced more restrictive and onerous conditions, including quarantines and lockdowns, which I have also had regard to. 

39In prison you have completed several courses, including education and drug courses and you currently hold a billet role in your unit, which is a position of some responsibility. 

Your prospects of rehabilitation largely depend on you maintaining your current resolve to stay off drugs, continuing your treatment and having available to you appropriate, ongoing supports. 

Sentencing principles

40The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation and protection of the community. 

41I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic), where relevant to your case. I have also had regard to the current sentencing practices for the offences for armed robbery and intentionally cause injury, to the snapshots referred to by the prosecution and to relevant cases. These cases are of assistance but in a limited manner given that the offences in question are capable of capturing a range of different conduct and each case turns on its own particular facts.

42There was no dispute in your case that a term of imprisonment structured with a non-parole period was required. In all the circumstances, this is the only just and appropriate sentence.

43On your behalf your Counsel submits that you are now at a crossroads. Over the last five years you have had regular contact with the criminal justice system. You have now spent a lengthy period on remand. You have struggled in the custodial setting but have achieved some stability and you are ultimately directed towards, and motivated, to reform. He submits that extending some leniency to you at this particular stage of your life might lead to sustained reform. The mitigating factors in your case should cause a reduction in sentence and also call for a longer than usual parole period.  

44As to the other legal principles that I have already discussed, including Verdins and totality, there was no dispute between the parties as to their application and relevance in your case. 

Sentence

45Synthesising all relevant considerations and principles in your case, I sentence you as follows.

46Charge 1, which is the charge of armed robbery, you are convicted and sentenced to two years and five months' imprisonment;

47Charge 2, intentionally cause injury, you are convicted and sentenced to one year and seven months' imprisonment.

48Charge 1 is the base sentence.  Considerations of totality, already canvassed, cause me to moderate and adjust the orders for cumulation.  I will cumulate three months of Charge 2 on the base sentence, which results in a total effective sentence of two years and eight months' imprisonment.

49

In structuring the parole period I have had regard to the submissions made and the mitigatory factors advanced on your behalf, including the opinions of

Dr Cunningham and Dr Keall.  I consider a substantial period on parole will best promote your rehabilitation and also, in the long term, better protect the community.  I therefore set a non-parole period of 17 months.

50Pursuant to s18 I declare that you have served 426 days in custody, which is close to or approaching 14 months.

51Pursuant to s6AAA, but for your plea of guilty I would have imposed a sentence of some four years and two months with a non-parole period of around three years.

52I make the disposal order, which was the order for the knife and blue jeans, which was unopposed.  Counsel, is there anything else? 

53MS DICKENS:  No, thank you.

54MR EDWARDS:  No.