Director of Public Prosecutions v Dau

guj

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE

Revised
Not Restricted
Suitable for Publication

CRIMINAL DIVISION

CR-19-01616

Indictment No: K10687349

DIRECTOR OF PUBLIC PROSECUTIONS

AWER DAU

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2020
DATE OF SENTENCE:	28 February 2020
CASE MAY BE CITED AS:	DPP v Dau
MEDIUM NEUTRAL CITATION:	[2019] VCC 186

REASONS FOR SENTENCE

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Subject: Criminal Law
Catchwords: Armed Robbery
Legislation cited:

Sentence:

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Green	Office of Public Prosecutions
For the Accused	Mr J. Hofman	Emma Turnbull Lawyers Pty Ltd

HER HONOUR:

Introduction

Shortly after 9 pm on 1 March 2019, the 32-year-old victim in this matter, Maysam Rahimzadeh, was innocently sitting astride his bicycle when you approached him on your own bicycle. You told him that his bicycle was now your bicycle. You dismounted and retrieved a partially covered machete from your bag and said ‘Give it to me, give it to me, give me the fucking bike back or I will hit you’. After some initial reluctance, Mr Rahimzadeh, in fear of his life, complied. You rode off on your bicycle, wheeling his bicycle beside you.
Mr Rahimzadeh immediately called police who began an investigation. You were arrested, interviewed and charged on 17 March 2019. You have been remanded in custody since that time.
On 23 September 2019, you pleaded guilty in the County Court to one charge of armed robbery and admitted your prior convictions. A plea on your behalf was conducted before me on 10 February 2020 and it now falls to me to sentence you for your conduct.
In arriving at an appropriate sentence I am required to have regard to all the factors set out in s5(2) of the Sentencing Act 1991. These factors are sometimes overlapping and sometimes contradictory in nature. Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.
Objective Gravity of your offending and moral culpability
Your offending was a serious example of a serious offence. True it is that there is nothing to indicate that you had specifically planned your crime and true also that the value of the item you stole was low, being only $180, however your carrying a machete in your backpack tends to undermine any claim to spontaneity, as does your readiness to produce it.
Further, the offence was targeted in the sense that you had a special interest in this particular bicycle and appeared to hold a grudge against the victim in relation to it. This arose from an interaction you had with Mr Rahimzadeh about two months prior when you approached him and asked him to borrow his bicycle. When he agreed you rode off on his bicycle and did not return it. He eventually tracked you down and had to pay you $50 to get his own bicycle back.
On this night, you can be seen on video footage advancing on the victim holding the covered machete, whilst he was backing away from you holding his bicycle between the two of you. You were 26 years old and manifestly strong and powerful. Your behaviour was threatening and terrifying. You were not deterred by the fact you were in a well lit shopping mall with people and cars around. There were also CCTV cameras around, although it is not clear whether you knew this. Your offending was alarming for its brazenness.
Moreover, at the time you were on two different community corrections orders. This was an aggravating feature. You had been placed on these community corrections orders only weeks before this night for offences primarily of violence, including use of a weapon on one occasion, against innocent people.
Your counsel, Mr Hofman, argued that your moral culpability for your offending was reduced based on the principles enunciated in two well known cases of Bugmy and Verdins. He relied on your history of childhood trauma in South Sudan and Kenya and a pyschological report of Mr Mackinnon which opined that you were 'probably' suffering from post traumatic stress disorder at the time of your offending and that 'probably made a significant contribution to [your] offending by degrading [your] ability to reason and make sound judgment, fuelling paranoid and highly defensive reactions, distorting [your] perception, elevating [your] impulsivity, lowering [your] powers of consequential thinking and lowering [your] frustration tolerance threshold'. Mr Mackinnon considered that your 'probable' PTSD arose, not because of your early childhood or your older brother’s death in 2017, although they 'probably' predisposed you to it, but because of the fact you were shot in the leg during a street fight in 2018 and hospitalised for about 11 days.
The prosecutor, Ms Edwards, submitted in response that the principles of Bugmy and Verdins were not invoked in the circumstances of this case. She pointed to the qualified nature of Mr Mackinnon’s diagnosis, in particular his repeated use of the word probably, and she disputed any causal connection between either your PTSD, assuming you had it, or your history of childhood deprivation, to the present offending.
The only information I have in relation to your early childhood and its effects upon you is contained in Mr Mackinnon’s report. Clearly the fact you were not brought up in a safe, stable environment is relevant to an assessment of your moral culpability. However, whilst the court in Bugmy acknowledged that the effects of profound deprivation do not diminish over time, it also emphasised the need for individualised justice according to the circumstances of the case. In this case, I am not persuaded that your disadvantaged background significantly reduces your culpability. Similarly, to the extent that you may have been suffering from PTSD at the time, I do not consider it such as to reduce your moral culpability to any great extent.
This was not a case where you over-reacted to a perceived threat or frustration or acted completely on impulse. Rather, less than two weeks after having been placed on corrections orders for aggressive and violent behaviour, you decided to carry around an inherently dangerous and frightening weapon in your backpack. You then initiated the interaction with the victim and were the aggressor throughout. That you concealed the machete in a cloth and denied having it when interviewed by police confirms you were well aware of the wrongfulness of your conduct. I do not accept, as you told Mr Mackinnon, that you had the machete merely for the purpose of self defence. The events of this night belie that explanation as do the circumstances of your prior convictions.
Further, it is notable that after coming to Australia at age 10 you were able to complete most of your schooling, complete a VCAL automotive engineering program and maintain work for five years. You also excelled in soccer and were accepted into the Victorian Institute of Sport. Mr Mackinnon described you between 2010 and 2018 as 'a very self motivated, productive and responsible individual, playing competitive soccer and working in cold storage warehouseing'. All this is to your credit, but it tends to undermine the connection between your early history and your actions on this night. It is also worth noting that, except indirectly, Mr Mackinnon did not attribute your probable PTSD to the experiences of your childhood.

14.In any event, if I am wrong about the applicability of the principles of Verdins and Bugmy to your circumstances, to the extent your moral culpability is reduced, the danger to the public and the need for community protection is correspondingly increased.
Current Sentencing Principles

One, and only one, of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing principles. The reason is to promote consistency of approach in sentencing, and in particular, in the application of relevant sentencing principles.

16.The maximum penalty for the offence of armed robbery is 25 years’ imprisonment. Whilst no two cases are the same, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case. Upon specific enquiry, I was not referred to any comparable cases by counsel appearing. However, I was provided with the most recent Sentencing Advisory Council Statistics of the higher courts (June 2018) and a table of relevant cases by the prosecutor for which I am grateful.
17.The Sentencing Advisory Council statistics indicate that by far the majority of people charged with armed robbery over the relevant period received an immediate term of imprisonment with the most common term being three to four years.

Whilst these statistics and the sentences in the cases in the table are informative, ultimately my duty is to impose a just and appropriate sentence on you in the circumstances of this case.
Impact of your offending
Your victim, Mr Rahimzadeh, did not submit a victim impact statement to the court. There may be many reasons why a victim chooses not to do this and I draw no inference either for you or against you in relation to that fact. I was informed, however, that the victim was distressed after being cross-examined at the committal hearing. Further, his statement to the police indicates that at the time he was very scared and thought he was going to be killed and that he remained very scared after the event given that you both lived in the same area.
In relation to the bicycle, I was informed that Mr Rahimzadeh did ultimately recover it although once again he had to pay for it, this time to a third party.
Plea of Guilty, co-operation and remorse
Mr Hofman submitted that I should find that your plea of guilty is accompanied by remorse. I am not satisfied that is so.
When formally interviewed by police on 17 March 2019, you denied the offending. You claimed that the victim had given you the bicycle, that he had stolen it from you two weeks earlier and that you did not have a machete.
You had plenty of time to reflect after being remanded in custody and yet you maintained this defence by instructing your counsel to cross-examine the victim at a committal hearing, some five months later. Similarly, at the initial directions hearing in this court on 15 August 2019 you were still indicating an intention to plead not guilty and the matter was booked in for trial. You persisted in your desire to contest the charge, despite a particularly strong Crown case in light of the CCTV footage.
The matter initially resolved after the initial directions hearing and you were arraigned and pleaded guilty on 23 September 2019. Although Mr Mackinnon referred to you as expressing remorse the only detail in his report was that you told him ‘I really shouldn’t have been carrying it [referring to the machete]. I had no intention of hurting anyone but I was carrying it because I was scared after being shot’. In my view this explanation was an attempt to minimise your culpability rather than an expression of true remorse. There was no reference to you appreciating the impact of your actions on the victim or feeling sorry for him.
Whilst Mr Hofman insisted that you had expressed remorse to him, this appears somewhat contradicted by the fact that even at the plea hearing you initially denied improperly taking the victim's bicycle from him two months before the instant offending.
I stress that I do not regard your attitude, whether it be in subjecting Mr Rahimzadeh to cross-examination, or in disputing the charges, as aggravating your offending. You are not to be punished for that. Rather, you have failed to persuade me of a mitigating factor, namely the existence of genuine remorse.
That said, you are entitled to a utilitarian discount in sentence for the fact you have pleaded guilty. In so doing you have facilitated the course of justice and taken legal responsibility for your crimes. The victim was spared the experience of coming to court to give evidence a second time. The discount is not as big as it would have been if you had pleaded guilty at an earlier time, or if your plea was accompanied by remorse, but it will be significant nonetheless.
Background and personal circumstances
I have already touched upon your background and personal circumstances which were set out in some detail in the outline of defence submissions and Mr Mackinnon’s report and elaborated upon during the plea.
Very briefly, you are now 27 years old. You are single and have no children.
After fleeing South Sudan with your mother and several siblings at age three, you travelled to Kenya where you all lived for six years in a refugee camp until being granted refugee status. Your father stayed in South Sudan to look after other members of your family and he remains living there today. You were exposed to serious violence and conflict during your time in South Sudan and Kenya.
When you were 10 you moved to Australia with your mother and siblings and joined your older brother who was already here. You lived in the western suburbs where you attended school. You completed part of Year 12 before completing a two year VCAL automotive engineering certificate, which I am informed qualifies you as a mechanic. You were an excellent sportsman, excelling at soccer, but gave it up because of family pressure to obtain work.
For the next five years you worked in a range of different jobs including an abattoir, a cold storage warehouse and a forklift driver. You also held a private security licence and worked as a security officer. During this time you supported your mother and a brother who was studying.
After your older brother died at age 48 you were consumed with grief and guilt and began consuming alcohol, cannabis and occasionally ice and, also, offending. This was 2017. The next year you were shot in your leg necessitating hospital admission and resulting in a large scar.
It was said that you were a carer for your mother prior to your remand on this matter, however this was disputed by the Crown on the basis that you mostly did not live at home. I am not able to resolve that issue, save that I accept that you did perform some role in caring for your mother.
You had not received any psychological treatment prior to your incarceration for this offence and had never been assessed until you saw Mr Mackinnon whilst in prison on 23 January this year. He considered that you were suffering from Post-Traumatic Stress Disorder, (‘PTSD’) at that time at a moderate level of intensity. He assessed you as having normal intelligence.
There have been no incidents whilst you have been in custody and you have been working as a paint billet. Your mother and family regularly visit you and remain supportive of you. Apart from their presence in court, this is evidenced by your brother Majok Dau’s character reference for you.
Your character and risk of reoffending
You have a number of prior convictions, worryingly, a number of them involving violence. Your first involvement with the criminal law was as a child when you were charged with a number of offences, including affray, resulting in a non-conviction disposition in May 2010. There was then a gap in your offending until you returned to court in October 2018.
On 7 February 2019 and 18 February 2019 you received community corrections orders for offences including violence, weapons and dishonesty. You did not avail yourself of the rehabilitative components of those orders and instead committed the offence before me. Your prior convictions, the brazenness of your armed robbery, your disregard of the two community corrections orders and your lack of remorse do not bode well for your future.
On the other hand you are still relatively young and have demonstrated by your years of study and employment that you are capable of being a worthwhile member of society. You have family support. All this is in your favour. Mr Mackinnon considered your prospects for rehabilitation to be good as long as you receive appropriate treatment. He noted that your time on remand appeared to have helped stabilise your psychological health.
In my view there is some cause for hope in relation to your future, however I would have to assess your prospects of rehabilitation as moderate.

Purposes of Sentencing
41.In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community.
42.A custodial sentence must only be imposed as a last resort, but is conceded to be the only appropriate disposition in your case. That said, I am obliged not to impose a more severe sentence than is necessary to achieve the sentencing purposes.
43.Having regard to the fact that you had spent 330 days in custody your counsel, Mr Hoffman argued that a combination sentence of imprisonment and a community corrections order was within range. Alternatively, he submitted that I should impose a lengthy parole period to address community protection and rehabilitation. The prosecutor submitted that having regard to the maximum penalty, objective seriousnes of your offending and your criminal history that only a term of imprisonment with a non-parole period was within range.
44.In your case general and specific deterrence, just punishment, denunciation and community protection loom large in the sentencing process. For the reasons already discussed I am not satisfied that either your psychological state or your disadvantaged background justify any significant moderation of general and specific deterrence. In any event, to the extent that some moderation is warranted, the need for community protection is increased. Rehabilitation does have some role to play and I recognise that community protection can be advanced by imposing a sentence which promotes your rehabilitation by allowing for the prospect of you being released back into the community under supervision. Weighing all the competing considerations, in my view, any such period of supervision must be by way of parole, not a community corrections order. Nothing but such a sentence will fulfil the sentencing purposes in your case.
Sentence
45.If you could please stand.
46.On the charge of armed robbery I convict and sentence you to three years' imprisonment and I fix a non-parole period of 22 months.
Pre-sentence Detention
47.I declare that you have served a total of 348 days of - now, what is that today?
48.MS GREEN: I found it to be 348 days, Your Honour.
49.MR HOFMAN: Correct.
50.HER HONOUR: Three hundred and 48 days of presentence detention, not including today, in respect of this sentence and order that this declaration be entered in the records of the court and that the period be deducted administratively.
Section 6AAA
51.If you had not pleaded guilty to these charges and then been found guilty by a jury, I would have sent you to prison for four years with a non-parole period of three years.
52.Now, are there any other matters that I need to attend to?
53.MS GREEN: Nothing further, Your Honour.
54.MR HOFMAN: No.
55.HER HONOUR: All right, thank you. If you could remove Mr Dau, thank you. I will just leave the Bench while we get the next matter on.
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[2020] VCC 186

28 February 2020