Director of Public Prosecutions v Dates

[2023] VCC 144

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR-22-00573

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEVEN DATES

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	9 February 2023
CASE MAY BE CITED AS:	DPP v Dates
MEDIUM NEUTRAL CITATION:	[2023] VCC 144

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. MacDougall
For the Accused	Mr A. Malik

HIS HONOUR:

1Steven Dates, you have pleaded guilty to one charge of armed robbery.  That crime carries a maximum penalty of 25 years' imprisonment.

2You are now 32 years of age.  You pleaded guilty at the earliest reasonable opportunity and I accept that your plea of guilty is accompanied by profound remorse.  You must also get the utilitarian benefit of that plea of guilty, and in these times of Worboyes it must be a benefit which is clearly discernible in the sentence given.

3Insofar as remorse is concerned you participated in Koori Court, being an Aboriginal man, and your interaction with the Elders, your responses to the powerful victim impact statements – particularly that of Ms Haines – was, in my view, one of genuine remorse, and I take that very much into account.

4As I will be referring to in a moment, since the age of 12, and you are now 32, you have spent something like 18 years of that 20 years in detention, either as a ward or as a prisoner.

5You have now served 392 days in respect of this matter.  I take into account that that time has been served during the period of COVID and the difficulties that that has imposed.  Clearly, you have been subject to lockdown on many occasions.  I understand that you have had no actual visits now for an extended period of time, so you are able to occasionally have a visitor on Zoom.

6You do have prior convictions, and very significant ones.  You have been gaoled, as I have indicated, on many occasions.  In New South Wales, where the bulk of your criminal history is from, you received, at one stage, something in the order of eight years for armed robbery – I am not aware of the details – and then later on you received a sentence of two years and three months for robbery whilst armed, or with a weapon, so whatever the difference is I have no idea.

7You committed this offending while you were on parole for that last sentence that had been imposed and, accordingly – on the face of it, at least – you owe the New South Wales Parole Board 13 months.  It is difficult to know how to take that into account.  I understand from your counsel there will be attempts made to have your sentence in Victoria transferred to New South Wales, but there is nothing I can do about that other than take it into account in terms of totality.

8As will become evident from the Crown summary, the offending is serious.  In the normal course of events, of course, the application of general and specific deterrence, as well as denunciation and an appropriate punishment.

9A summary of the offending is that on 6 January 2022, at approximately
11 o'clock at night, a Ms Haines and a Mr Di Cicco – I apologise if I am pronouncing that incorrectly – were working at the Mooroopna Golf Course. 
Ms Haines was working behind the bar and he was working a distance away.  You entered the golf club via the front door and walked through the bistro, removing a grey backpack from your shoulders.  You then walked behind the bar, holding a black-handled knife.  You stood close to where Ms Haines was standing before walking behind her.  You paced back and forth, waving the knife around, and shouted at her, 'Open the drawer, open the drawer.  It's not worth it, give me the money'.

10Upon hearing you, Mr Di Cicco walked behind the bar and observed Ms Haines frozen in fear, and you holding the knife.  You again shouted, 'Give me the money'.  Mr Di Cicco opened the cash register and handed over all the cash notes; a total of something in the order of $2,600.  Once it was empty you demanded more money and said, 'Is that all you've got?  You must have more money'.  You were told there was no more money.  You then pointed the knife towards a person who was attempting to call Triple 0 and told her that she was not to do that.  You then left the bar area and exited the golf course, walking west on Ann Street in Mooroopna, and then were able to get to a car, which you drove away.  As I understand it, you were identified from fingerprints and CCTV footage and I do not need to go into detail there.

11You, as I said, participated in Koori Court, and I did, as did the Elders – and indeed, as did your counsel – felt that it was very impressive in the way in which you were able to accept responsibility for what you have done.  You acknowledged that it was very serious and expressed sorrow for what you had done, particularly to Ms Haines.  Her victim impact statement has been tendered and was read out in open court and she says a number of things.  I might say, with respect, it is a very succinct and very balanced victim impact statement.

12She pointed out that you have caused her great difficulties psychologically, ongoing.  Even going into the gaming room at the golf club causes her fear.  She describes how terrified she was at the time; that she froze, and the genuine fear of being killed.  She says:

'I want to tell him this is not right.  His actions have destroyed my life; taken the enjoyment I had at work away from me.  He's broken the law and there has been serious consequences for me.  If he had done the right thing I wouldn't be in this situation.  There should be serious consequences for him.  I need to know he won't do something like this again'.

13I am not going to go into detail of the very personal matters that Ms Haines refers to, but clearly this has caused her great distress, and ongoing distress.  I agree with her that something needs to be done, which will give every opportunity for this never to happen again, and hopefully the sentence that is imposed will be able to achieve that, bearing in mind all the appropriate sentencing factors.  The only sentencing option open is one of adult custody with a minimum term.

14I then turn to matters personal to you.  You are, as I said, an Aboriginal man, 32 years of age.  You were born in Brisbane and are the eldest of 10 children and are of Aboriginal descent.  You were raised in Brisbane till you were about five, after which time your family relocated to Newcastle.  Your father was violent towards your mother and your parents divorced when you were about seven years old.  You have not had any contact with your father after that time.  Your mother remarried and your stepfather was also violent; an alcoholic.  You began running away from home at an early age.

15When you were quite young you were hit by a taxi and suffered broken legs and a head injury and were hospitalised for 12 weeks, unable to walk for nine months.  Following that you were placed in various juvenile justice centres and I am not going to go into detail of this, it is contained very distinctly within the reports that have been outlined, but you were at New South Wales at the Reiby, the Cobham, and the Kariong juvenile justice centres.

16You were sexually abused; grossly sexually abused.  You were grossly sexually abused on other occasions, by an Aboriginal Liaison Officer, and that is all stemming from around about the age of 12.  You obviously, and this is your situation, turned to polysubstance abuse in response to your emotional distress and, as I said, you have spent most of your life incarcerated.  I think the longest you have ever been in the community was four months.

17You say you have no knowledge of any family history of psychiatric or other emotional disorders.  You do try to maintain contact with your siblings and you do have, I hope, a good relationship with your mother still.  You commenced high school in juvenile justice; completed Year 10 in juvenile justice.  As I indicated, I am not going to go through the gross sexual offending that occurred against you other than to say it clearly has caused post-traumatic stress disorder; a very, very significant consequence.

18The psychiatric report said that you presented well on the assessment.  You presented as genuine and honest and the psychiatrist was impressed by your direct manner.  He said you did not try to exaggerate or overdramatise your problems.  There is no evidence of a thought disorder or abnormal psychomotor activity.  He pointed out that you suffer a deep sense of anger, sadness, fear, intense shame and embarrassment.  You told him that you have, since that abuse at those various juvenile justice centres in New South Wales, committed crimes to go to gaol, just to get away from everything.  You told him that you were unable to function in the normal community; you cannot even go into shops.

19After you were released from juvenile justice at one stage you turned to ice, ecstasy, heroin, pills and alcohol; all in response to emotional distress.  You have all the symptoms of post-traumatic stress disorder; flashbacks, irritability, inability to sleep, and the like, and I do not think I have to go through that.  You avoid interaction with people because you do not trust anybody, and you do not want to be friends and you want to be isolated.  You have had severe difficulties trying to develop and maintain relationships since that abuse.

20He opines – that is, Dr Khoo – that you have a post-traumatic stress disorder that is chronic and I have no doubt that is in fact the case.  I do not think we need to go through the symptoms of all that.  He also said that you have a polysubstance dependence, which is obvious, and he said that you also have a generalised anxiety disorder, which causes all sorts of psychological difficulties.

21Apparently, up until the time that you saw him a couple of years ago, you had never received psychological treatment at all, addressing the abuse.  It is clear from the sentencing conversation in Koori Court it is only in very recent times that you have been able to tell people about the abuse that you received and, indeed, when we were having the Koori Court sentencing conversation with you, and with the Elders, we asked your family to leave the room because they never heard the details of it.  As I said, it is quite distressing to read and it has obviously had a dramatic effect upon you.

22The major principles involved in your situation are those contained in Bugmy.  You have an extraordinarily deprived existence.  Your background as a child is dreadful and you have been effectively institutionalised since the age of 12.  Those matters have to play a very significant part in this sentencing.  However, on the other hand, as I have pointed out, the offending is serious and must attract an appropriate sentence.  In the end, it is a situation of trying to give an appropriate sentence for what you did do, bearing in mind Bugmy, and trying to have a situation in existence where the community is protected.  It is my view the community, in your situation, would be best protected by your rehabilitation.

23There was also a report tendered from a Ms Bollenkirk and, again, I do not think I need to go into all the detail of that.  It confirms what was in Mr Khoo's report.  She also describes you as having a major depressive disorder and, on the face of it, one with this would think that the situation was simply hopeless.

24I agree with your counsel that your improvement and endeavours of self-help during this period of incarceration have been extraordinary.  You sometimes, in Koori Court, get these situations, and the Elders are very impressed and very pleased when it does happen.

25You are at the age, in my view, where these things can be turned around.  You have done everything you can to try and turn them around.  Your conduct in gaol has been, in effect, exemplary.  You have done every course you can, you are a service worker within the gaol system, you have undertaken a TAFE course in Aboriginal history and culture, you run a men's group every Friday.

26You have taken into account very much what was said by the Elders during the course of that sentencing conversation.  I understand, from what we have been told, that whilst you have been in custody you have had unfinished Sorry Business in that a brother of yours has passed away and you were obviously unable to attend the funeral.

27There is not much else you could have done to rehabilitate.  There is a report I have already referred to where the real rehabilitative process I think is the best that the author had seen, and I agree with that.  There is not much point in me going on and on about this.  The decisions of Lacey and Verdins is debatable, but this is the point where you can turn your life around and Ms Haines says all she really wants in this situation is for you to be given an appropriate penalty and not to do it again.  As I have said, I think the best way for that to occur is for your rehabilitation to continue.  I am hindered, obviously, in that, because of the seriousness of it, and because of the fact that you owe the New South Wales Parole Board 14 months.  The prospects of your rehabilitation are probably the best they have ever been and the risk of you re-offending is probably the lowest it has ever been, certainly since you were about 12 years of age.

28So taking all those matters into account, and endeavouring to give you encouragement in terms of what has been a massive turnaround for a young Aboriginal man, I sentence you as follows.

29On the charge of armed robbery you are sentenced to be imprisoned for a period of two years.  I direct that you serve a minimum term of 15 months before becoming eligible for parole.

30I direct that 392 days be reckoned as having been served under this sentence and whilst there is – as misleading as a s6AAA can ever be, but for your plea of guilty I would have given you three with a two.  I make it very clear that the plea of guilty here is completely entwined with the enormous rehabilitative process you have been through in the last year or so.  Had you not pleaded guilty and had you not rehabilitated in this way, then clearly the sentence I would have imposed would be significantly higher than what I have described.

31It is a case that is viewed as a lenient sentence, and some might take that view.  I simply refer back to what the Court of Appeal said in the matter of Toumngeun, where it referred to the DPP v Leach:

'It's particularly important this court should not devalue or deny the right of a sentencing judge to act mercifully in a case where it seems, to the judge, to be an instance where an opportunity for reformation of an offender ought be grasped.  That, after all, may be a decision which redounds very much to the benefit of the community'.

32As the then President of the Court of Appeal said in DPP v Tokava:

'A sentencing judge should be astute to investigate whether a
non-custodial disposition is to be preferred, even in the case of a serious offence, if, in the long-term, the community's best interest will be best served by that course.  This court should seek to promote public understanding of the fact that apart from the interest of the individual whom it's sought to rehabilitate - an important interest in itself – there's a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime'.

33I think the matters here are fairly obvious as to what I have relied on.  If it involves an aspect of mercy from my part, so be it.  All right.

34MR MALIK:  Your Honour pleases.

35HIS HONOUR:   There's no other orders I need to make?

36MISS MacDOUGALL:  Your Honour, there's a disposal order.

37HIS HONOUR:  I've made that.  Disposal order's made and handed down.

38MISS MacDOUGALL:  Thank you, Your Honour.

39MR MALIK:  Your Honour, just one brief matter from me.

40HIS HONOUR:  Yes.

41MR MALIK:  His brother hasn't passed away, he's been diagnosed with Stage 4 cancer and is in palliative care.

42HIS HONOUR:  Sorry, it's the palliative care that's got to me.  I thought he'd passed away.

43MR MALIK:  No.

44HIS HONOUR:  All right.  Well, I'll change that to 'future Sorry Business'.

45MR MALIK:  Yes, Your Honour.

46HIS HONOUR:  Yes.  When I revise I'll do that, thank you.

47MR MALIK:  Thank you, Your Honour.

48HIS HONOUR:  Yes, all right.  That's made and handed down.  Now, there's no other orders I need to make?

49MISS MacDOUGALL:  No, Your Honour.  Thank you.

50HIS HONOUR:  All right, thanks for that.  Thanks, Mr Malik.  Thanks,
Miss MacDougall.

51MR MALIK:  Thanks very much, Your Honour.

52HIS HONOUR:  I'll let you talk to your client if you need to.

53MR MALIK:  Thank you.  I appreciate that, Your Honour.

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