Director of Public Prosecutions v Daw
[2021] VCC 918
•28 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01787
CR-20-01788
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AROP DAW |
| and |
| RICHARD PETER |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2021 | |
DATE OF SENTENCE: | 28 May 2021 | |
CASE MAY BE CITED AS: | DPP v Daw & Anor | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 918 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – aggravated burglary – armed robbery – early plea of guilty – remorse – youthful offenders – deprived background – application of Verdins principles – parity – impact of COVID-19
Cases Cited:Bava v The Queen [2021] VSCA 34; Hogarth v The Queen [2012] VSCA 302; R v Mills (1998) 4 VR 235.
Sentence: Total effective sentence for Richard Peter – 5 years 6 months with a non-parole period of 3 years 6 months. Total effective sentence for Arop Daw – 4 years with a non-parole period of 20 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Office of Public Prosecutions |
| For the Accused Daw | Mr S. Tovey | Markotich Lawyers |
| For the Accused Peter | Mr R. Backwell | Greg Thomas Barrister & Solicitor |
HER HONOUR:
Introduction
1Mr Daw and Mr Peter, you have each pleaded guilty to one charge of aggravated burglary, being Charge 1, and one charge of armed robbery, which is Charge 2. Mr Daw, you have additionally pleaded guilty to one charge of possession of a drug of dependence, namely cannabis, which is Charge 3, whilst you, Mr Peter, consented to this court hearing and pleaded guilty to a related summary offence of committing an indictable offence, aggravated burglary, whilst on bail and that was Charge 8 on the summary charges.
2The maximum penalty for possession of a small quantity of a drug of dependence (cannabis) on a first offence is not more than five penalty units; for committing an indictable offence whilst on bail is three months' imprisonment or 30 penalty units; and for each of aggravated burglary and armed robbery is 25 years' imprisonment. Additionally, armed robbery committed in company is a category 2 offence under the Sentencing Act 1991 (Vic). This means that I must impose a custodial sentence (which is not imposed in combination with a community correction order) on each of you for that offence unless at least one of the circumstances set out in paragraphs (a) to (e) of s5(2)(H) of the Sentencing Act exist. It was conceded by each of your counsel that in the circumstances of this case it is not necessary for me to consider the application of these provisions, as you would each realistically face a term of imprisonment with a non-parole period even if one of the circumstances in paragraphs (a) to (e) was made out.
Circumstances of the offending
3The full circumstances of the alleged offending, investigation and arrest are set out in the prosecution opening for plea dated 22 April 2021, which was tendered as Exhibit A on the plea. Given that you, Mr Peter, challenged some of the facts in respect of your alleged role as set out in that opening and given that there was disagreement between the parties over the manner in which I should assess the gravity of the aggravated burglary, I have referred to the facts in some detail in these reasons for sentence.
4The charges arise from events which occurred on 23 August 2020 when you, Mr Daw, were 19 years of age and you, Mr Peter, were 22 years of age.
5At 11.20 pm on 23 August 2020 the victims in the case, 79-year-old Raymond Townley and 63-year-old Cecilia Townley, were in their home at Deer Park. Mr Townley was in the bedroom and Mrs Townley was in the loungeroom, speaking to her sister on the telephone.
6Whilst on the telephone, Mrs Townley heard the sound of glass breaking in the kitchen area. She went to the kitchen and saw that a bench seat from outside the house had been thrown through the window. Mrs Townley yelled to Mr Townley for help and he also came to the kitchen just as the two of you, Mr Daw and Mr Peter, came through the broken window. Neither of you were armed on entry into the house. This conduct constitutes Charge 1, aggravated burglary.
7The prosecution case is that upon entering, the two of you both immediately made demands for money and commenced searching through the drawers and cupboards in the kitchen area. You, Mr Daw, retrieved a kitchen knife from the kitchen and said to Mrs Townley, 'If you don't give money we will kill both of you. You give us money, that's all we want, we won't touch you, we just want the money'. You then pushed Mrs Townley back into the loungeroom where Mr Townley was standing and made further demands for money. You made repeated demands for Mrs Townley to open and unlock her phone in order to access her internet banking. You also pushed Mrs Townley hard in the middle of her back, causing her to fall over. Mrs Townley returned to her feet, at which point you stated, 'If you don't get the money, I'm gonna hit you with the vase'.
8It is the prosecution case that by this time you, Mr Peter, had retrieved a kitchen knife from the kitchen, grabbed hold of Mr Townley and put the knife to Mr Townley's neck. It is alleged that, whilst holding the knife to Mr Townley's neck, you said, 'Don't call the police. Money, we only want money. If you call the police we'll come back. We'll come back on Wednesday and get your pension'. It is alleged that you then pushed Mr Townley back into the bedroom and shoved him onto the bed. It is alleged that each time you pushed Mr Townley, you would also hit Mr Townley with an open hand to the right side of his face. Mr Townley describes being hit in the face approximately eight or nine times.
9It is alleged that whilst Mr Townley was on the bed you, Mr Peter, searched through the bedroom, made further demands for Mr Townley's wallet and asked if there were any drugs in the house. Mrs Townley says that she could hear Mr Townley screaming whilst in the bedroom. It is alleged that you then put your arm around Mr Townley's neck, dragged him off the bed and forced him out of the bedroom, before you returned to the bedroom, tipping the mattress upside down and continuing your search. You then forced Mr Townley back into the loungeroom.
10Once in the loungeroom, Mr Townley observed you, Mr Daw, dragging Mrs Townley by her arm from the kitchen into the loungeroom whilst continuing to make demands of her for her key cards and pin numbers to her accounts. You, Mr Peter, also made demands, stating, 'We're sorry for doing this, we only want money, but if you don't give us any, we'll kill you'. After these demands were made by both of you, Mrs Townley provided three bankcards and $200 in cash to you, Mr Daw. This conduct constitutes Charge 2, armed robbery.
11While still in the lounge room, one of you hit Mr Townley to the head as Mrs Townley pleaded for you to stop. You, Mr Daw, then made further demands of Mrs Townley to unlock her internet banking, telling her that if she did not do this you would kill her. Mr and Mrs Townley then remained in the lounge room as the two of you ripped out numerous drawers and caused extensive property damage.
12Mrs Townley's sister, who had been on the phone when the two of you entered the home, heard some of the incident and contacted another family member who then attempted to contact Mrs Townley by telephone. At one point, Mrs Townley answered the phone and was heard to be distressed and to ask someone to 'Sit down and don't hurt me'. As a result of this, Mrs Townley's son-in-law, Heinz Inabnit, called the police and headed to the house himself. In the 20 minutes between that phone call and the arrival at the house of both the police and Mr Inabnit, both of you continued to search through the home and make demands for money. At one point Mr Townley asked to go to the toilet and you, Mr Peter, allowed him to go but stood at the door and watched him as he used the toilet. You then pushed and dragged him back into the lounge room before continuing to search the house.
13At approximately 1 am, Mr Inabnit arrived at the house and knocked on the door repeatedly. You, Mr Peter, directed Mr Townley not to let anyone inside. Mr Townley went to the door and said to Mr Inabnit, 'We're right', but then whispered, 'Call the police, they are still inside'. Mr Inabnit conveyed this to police at the scene and then returned to the front door, whereupon Mr and Mrs Townley managed to get to the front door and run out of their home.
Arrest, interview, further investigation and remand
14After a stand-off with police, during which you both smashed several windows of the house, caused further damage, and during which one of you armed yourself with a glass bottle and confronted police, both of you were arrested by police members in the side yard of the home.
15Upon being arrested you, Mr Daw, falsely claimed to have a firearm and coughed in the face of a police officer stating that you had 'corona'. Given your claim of being infected with COVID-19 during the arrest, and given Mr Peter's proximity to you throughout the incident, neither of you were interviewed by police. You were, however, searched and you, Mr Daw, had various items upon you including bankcards in the names of Raymond Townley and Cecilia Townley, $200 in cash and a small metal cylinder which contained a small amount of cannabis (Charge 3, possess drug of dependence).
16Both of you were then charged and remanded by police.
17At the time of this offending you, Mr Peter, were on bail in respect of dishonesty offences and accordingly committed these offences whilst on bail, which is summary Charge 8, commit indictable offence whilst on bail.
18Mr Townley was taken to hospital after the incident where he was treated for chest pain, which was diagnosed to be likely anxiety-related, and pain to his head and knees. It is not alleged that Mrs Townley suffered any physical injuries.
The disputed facts
19During the plea you, Mr Peter, denied that you had engaged in the conduct described in paragraphs 8 and 9 above. That is the conduct of retrieving a kitchen knife, holding it to Mr Townley's neck, forcing Mr Townley into the bedroom and the acts which are said to have occurred within the bedroom. It was submitted on your behalf that it was actually Mr Daw who grabbed the knife and held it to Mr Townley's throat and that it was Mr Daw who went into the bedroom with Mr Townley.
20Both your counsel and prosecuting counsel submitted that in order to resolve this factual dispute I could rely solely on the depositional material without the need to hear oral evidence from the victims or other witnesses. It was further accepted by Mr O'Toole that, given the disputed allegations would amount to matters of aggravation, I would need to be satisfied of the facts beyond reasonable doubt before I could take them into account.
21Based on the depositional material Mr Backwell submitted that given the description by Mr Townley of the first male being the taller of the two males and having blood on him from breaking the window that the male being described by Mr Townley as taking him into the bedroom was Mr Daw rather than you, Mr Peter.
22By contrast, Mr O'Toole submitted that based on the combination of a number of matters, being:
(a) there were only two offenders;
(b) Mr Daw was wearing pants which were a distinctive colour (red), whilst you were wearing grey pants;
(c) Mrs Townley described her interactions as being with the male in the red pants; and
(d) Mrs Townley's evidence that while she was interacting with the male in the red pants, the 'other guy' took Mr Townley into the bedroom;
the court could be satisfied beyond reasonable doubt that the male Mr Townley describes as having the knife and taking him into the bedroom was in fact you, Mr Peter.
23Having regard to the depositional material, I am satisfied beyond reasonable doubt that the man whom Mr Townley describes as holding the knife to his neck and taking him into the bedroom is you, Mr Peter.
24The photographs taken by police of the clothing worn by each of you upon arrest clearly show that Mr Daw was wearing red pants, you were wearing grey pants and that both of you were wearing black tops with hoods.[1] Mrs Townley in her statement describes the offenders as both wearing black parkas, one male wearing red pants and the other male wearing black pants.[2] Mrs Townley describes the man in the red pants as grabbing a knife, pushing her into the loungeroom and pushing her in the middle of her back, causing her to fall to the floor. Mrs Townley then describes seeing Mr Townley going into the bedroom with the 'other guy'.[3] Mrs Townley further describes Mr Townley later coming back into the loungeroom, at which point the man in red started to hit Mr Townley, with the man in black telling him to stop.[4]
[1] Depositions, p183 (photographs of Mr Daw’s clothing upon arrest), and p185 (photographs of Mr Peter’s clothing upon arrest).
[2] Depositions, p40.
[3] Ibid.
[4] Ibid, pp 40-41.
25Mr Townley gave limited descriptions of both men. He described one male as being approximately 5 foot 8 inches wearing blue tracksuit pants and the other male as being approximately 5 foot 2 inches. He could not recall what the second male was wearing.[5] Mr Townley described the first male as grabbing his left shoulder and putting a knife to his neck, pushing him into the bedroom and shoving him onto the bed.[6] Mr Townley says he was unsure as to where the second male was during this time but thought he was in the kitchen or loungeroom.[7] At a later point Mr Townley said that the first male forced him out of the bedroom and back into the loungeroom, at which point the second male was dragging his wife by the arm from the kitchen into the loungeroom.[8]
[5] Ibid, p30.
[6] Ibid, p31.
[7] Ibid.
[8] Ibid.
26Mr Townley's description of the clothing worn by the first male does not match the clothing worn by either of you. He could not describe the clothing of the second male. By contrast, Mrs Townley's description of the clothing worn by the male with whom she had the most dealings was consistent with the clothing worn by Mr Daw. The pants worn by Mr Daw were a distinctive colour, being red, and were clearly different to those worn by you, Mr Peter. Mrs Townley's description of the clothing of the other male, whilst partially inaccurate, does not detract from the strength of her evidence as to which male was interacting with her and which male was interacting with Mr Townley. Accordingly, I am satisfied beyond reasonable doubt that the male interacting with Mrs Townley was Mr Daw. Therefore, as a matter of logic, and irrespective of any description given of the offenders by Mr Townley, I am further satisfied beyond reasonable doubt that the man interacting with Mr Townley was you, Mr Peter. Flowing from that, I am satisfied beyond reasonable doubt that it was you, Mr Peter, who committed each of the alleged acts described in paragraphs 8 and 9 of these reasons for sentence.
Victim impact
27I received victim impact statements from both Mr Townley[9] and Mrs Townley[10] during the plea. Each of them described feeling scared and traumatised in the aftermath of your offending against them.
[9] Exhibit C.
[10] Exhibit B.
28Mrs Townley says that she has a hard time sleeping, wants to be home before dark as she gets scared and nervous, but at the same time feels unsafe within the home in which she has lived for 35 years. Mrs Townley further describes having stopped work since the break-in due to her anxiety about undertaking afternoon and night shift.
29Mr Townley described being unable to stay in his home of 35 years for a number of months after the incident due to being too scared to go home. Like Mrs Townley, he is unable to sleep properly as every noise wakes him, he finds himself double-checking locks on doors, leaving lights on around the home and putting chairs behind front and back doors to try and feel safe in his own home. He also describes wanting to be home before dark, which has affected his ability to have contact with extended family and friends during the week and at night.
30I accept that the impact upon the elderly victims of your offending has been profound and I take that impact into account in sentencing you both.
Gravity of offending
31The offending which you both committed on the evening of this offence was very serious. The offending occurred in company, late at night, in the residential premises of the victims, over an extended period of time, in circumstances where the victims were elderly and vulnerable.
32There is no dispute between the parties that the armed robbery was a serious example of such an offence taking into account the following factors:
· the armed robbery occurred within the victims' home;
· each of you armed yourselves with knives shortly after entering the home;
· repeated demands were made by each of you of the victims for money;
· the victims were vulnerable by reason of their age; and
· the armed robbery occurred over an extended period of time with each of you continuing to threaten the victims and make demands until the property was handed over.
33However, it was submitted by Mr Tovey and conceded by Mr O'Toole that the armed robbery was spontaneous, with no clear evidence of premeditation or planning.
34Despite agreement as to the seriousness of the armed robbery and the offending generally, there was dispute between the parties as to how the aggravated burglary should be categorised in this case.
35Mr O'Toole submitted that the aggravated burglary was similarly a serious example of such an offence. He submitted that the duration of the ongoing trespass, being part of the aggravated burglary, is a highly relevant consideration in assessing the seriousness of the offence. Further he submitted that despite the absence of any evidence of premeditation, or any evidence as to why you targeted the victims' residence, the mode of entry to the premises was such that it evinced an intention to cause considerable damage and fear to those inside, if indeed persons were present. He submitted that for these reasons the aggravated burglary could be viewed as a confrontational aggravated burglary, notwithstanding that you entered with an intent to steal.
36By contrast Mr Tovey, with Mr Backwell adopting Mr Tovey's submissions, submitted that the aggravated burglary could not be characterised as a confrontational aggravated burglary in circumstances where each of you entered without weapons, without any premeditation and without any pre-existing grievance. He submitted that you fall to be sentenced on the basis that your intent upon entry was to steal items of value, being reckless as to whether any person was present within the home. He further submitted that the armed robbery which followed, whilst shocking, was spontaneous and it was clear that neither of you planned for or necessarily envisaged a confrontation.
37I agree with Mr O'Toole that the aggravated burglary was also a serious offence based on the period of time for which you were in the house. However, I do not agree that it falls into the category of a confrontational aggravated burglary. As explained in Hogarth v The Queen [2012] VSCA 302, the defining characteristic of a confrontational aggravated burglary is entry in the context of a dispute with, or grievance against, someone in the premises.[11] This was not such a case.
[11] See, e.g., at [4] and [54].
38In my view, whilst both the armed robbery and the aggravated burglary were serious offences, the armed robbery was the more serious of the two. In sentencing you for each of these offences I have been careful not to aggravate the sentence I impose for each offence by reference to any offences which may have been committed by each of you whilst in the home or whilst being arrested but which have not been charged.[12] I have also been careful to avoid doubly punishing you on each offence by reference to the same aggravating features. The offences of armed robbery and aggravated burglary do, however, warrant separate sentences with some degree of cumulation to reflect the distinct criminality and elements of each charge and this is reflected in the sentences I have imposed.
[12] See, e.g., Bava v The Queen [2021] VSCA 34, [61].
Plea of guilty/remorse
39Each of you pleaded guilty to the offences at committal mention, being the earliest available opportunity for a plea to be entered. You have both also provided letters of apology in which you have expressed concern for the victims and acknowledged the significant impact which your offending has had upon them.[13]
[13] Exhibits D5 and P3.
40Your pleas are significant for a number of reasons.
41Firstly you have saved the witnesses, and in particular the victims, from the ordeal of having to give evidence and re-live the traumatic events of 23 August 2020.
42Secondly, your pleas facilitate the course of justice and have utilitarian value, especially in the current climate of the pandemic and the significant impact that COVID-19 has had on the efficient running of the criminal justice system.
43Thirdly, I also accept that in each case your plea of guilty demonstrates an acceptance of responsibility and remorse for your conduct. I note that in your case, Mr Peter, that despite your challenge to some of the factual circumstances alleged by the prosecution, and my findings in respect thereof, it has not been suggested by the prosecution and I do not take the view that your challenge detracts from the genuineness of your remorse, nor your acceptance of responsibility in respect of the charges before the court. You have at all times indicated a willingness to plead guilty to an indictment which contained the two major charges, with a particular of the armed robbery charge being that you had with you an offensive weapon, being a kitchen knife, and I accept the combination of your plea and your letter of apology do demonstrate a genuine remorse and acceptance of responsibility on your part.
44In the circumstances I have given each of you a substantial discount on sentence for your plea of guilty.
Personal circumstances – Mr Peter
45Turning to personal circumstances and I will deal with you, Mr Peter, you are still 22 years of age and accordingly come before the court as a youthful offender. You were born in Sudan. When you were four years of age your family, consisting of yourself, mother, father and older brother, fled to Egypt. You lived in Egypt for approximately two years and whilst there your parents separated. Your father subsequently passed away.
46At six years of age your mother, your brother and you came to Australia. You initially went to language school before attending primary school in Sunshine. You then attended a government school for your high school years and, according to a letter I received from your brother on the plea,[14] you started to lose your way towards the end of high school. As your brother describes it, you started hanging around with the wrong people, taking bad advice and taking substances you should not have.
[14] Exhibit P2.
47You ended up leaving school prior to completing Year 12 and, although you commenced a pre-apprenticeship course, you did not go on to establish a trade for yourself. You did take on some labouring jobs and worked in general construction; however, your last job prior to this offending ended in March 2020.
48I am told that you commenced taking drugs as a teenager and you have used cannabis, MDMA and ice. Since the age of 18 you have also used Xanax on a regular basis, including on the night of the offending.
49Your criminal history, albeit limited, reflects your history as outlined. You appeared before the Children's Court in 2017 in respect of three robberies, an assault in company, theft of a bicycle and an aggravated burglary for which you received seven months' probation. Then in February 2019 you appeared before the Magistrates' Court for possession of cannabis for which you received a without conviction fine. Whilst your prior matters are limited, it is relevant that this is not the first time you are coming before the court in respect of offences of aggravated burglary and robbery. I have taken this into account in your case when assessing the weight to be given to both specific deterrence and rehabilitation in the sentencing synthesis.
50It was submitted on your behalf that your prospects of rehabilitation are 'at least reasonable' given your age, your relatively minor criminal history and the ongoing support from your mother and brother. In his reference, your brother indicates that you have had a significant change of attitude since you have been in custody, that you have acknowledged to him that you must face the consequences of your actions, but at the same time are eager to set your life straight when you are released from custody. This is also reflected in the efforts you have made whilst in custody to date to engage in a number of education and work opportunities when these have been available. You have undertaken courses in construction, warehousing, occupational health and safety and food handling. You have also worked in prison industries. Taking into account each of these matters I accept that your prospects of rehabilitation are reasonable and that weight should be given to rehabilitation as a sentencing purpose, especially in light of your youth.
51Finally I note that Mr Backwell submitted that whilst you have been in custody you have been prescribed antidepressants. I have not received any material which identifies the reasons for that medication being prescribed, any impact that any mental health condition might be having upon you whilst in custody, nor any impact that taking such medication may have on your rehabilitation. Accordingly the only manner in which I have taken this matter into account is by noting it as a custody management issue.
Personal circumstances – Mr Daw
52Turning now to the personal circumstances of Mr Daw, you also come before the court as a youthful offender, being 20 years of age now and only 19 years of age at the time of the offending, and I take account of the principles in R v Mills (1998) 4 VR 235 in sentencing you.
53Like Mr Peter, you were also born in Sudan. You are one of originally eight and now six siblings.
54You had a traumatic childhood which commenced when you were in Sudan. Your mother, in her reference to the court,[15] describes you being kidnapped from your grandmother's care as a three-year-old by the local witch doctor. She further describes the horrific acts which you were both witness to and forced to engage in whilst with the witch doctor. After a number of months you and a few other children managed to escape and you then lived on the streets for a period of time until your auntie located you and brought you back in to your grandmother's care. Your mother describes you having multiple physical wounds and scars to this day from that experience and it has also impacted upon your mental health, which I will return to in due course.
[15] Exhibit D3 (part).
55When you were four years of age your family fled from Sudan due to the state of the civil war. You then spent a period of time in a refugee camp in Egypt before your mother managed to obtain refugee protection visas for the family to travel to Australia in 2005. On arriving in Australia, your family struggled to find stable accommodation and had to move house regularly, although you did manage to largely be located in the western suburbs.
56Once in Australia, you and your siblings also became the target of abuse by your father who regularly used physical violence towards you and your siblings. You were only six years of age when this violence towards you began. In your mother's reference, she describes your father as having always had it out for you and using any excuse for retaliation against you. She describes you being beaten with multiple objects and stomped on by your father. Both you and she also describe your mother becoming the target of your father's physical and verbal abuse if she attempted to intervene on your behalf. She says that everyone in the house was terrified of your father, including her. Unbeknownst to your mother at the time, your father's abuse of you was not only physical but sexual. It has only been in recent times that you have revealed this to your mother.
57The abuse of you by your father continued until you were 15 years of age, when you started to fight back. You ended up being in a serious physical confrontation with your father which ultimately resulted in an intervention order being put in place against your father to protect you and your siblings.
58Perhaps unsurprisingly, given the difficulties in your home life, you commenced binge drinking during your teenage years and then commenced taking illicit drugs in 2017. You began using cannabis regularly in 2017 and then Xanax from mid‑2018 following the death of a close friend. By 2019 you were regularly using MDMA, amphetamine and methamphetamine.
59Despite your traumatic childhood and home life, and your descent into alcohol and drug use, you did manage to complete Year 12. Your friend, Laurence Pipczak-Borg, who wrote a reference on your behalf,[16] says that whilst at school you displayed both academic and sporting skills and were someone who was always willing to help anyone who needed it. He noted that you were the only one in your group of high school friends who managed to finish Year 12 and that he was surprised and saddened when he heard of your current charges, as they do not reflect your usual demeanour.
[16] Exhibit D3 (part).
60After completing school, you then worked in a number of manual jobs before commencing a roof-tiling apprenticeship approximately five months before this offending occurred. Consistent with Mr Borg's assessment of you, you largely managed to keep yourself out of trouble prior to this offending, although you did have two appearances before the Children's Court in 2016 and 2017, one for affray and assault, which arose in the context of you being subjected to racially motivated bullying, the other for theft of motor vehicle. You received good behaviour bonds in respect of both matters. It has been conceded by the prosecution that neither of your prior matters are relevant.
61In 2017 you met your now partner Karina Pope and she continues to be very supportive of you, attending at court and writing a reference on your behalf.[17] At the time of the plea Ms Pope was 37 weeks' pregnant and you are both now the parents of a baby daughter.
[17] Exhibit D3 (part).
62However, in the period leading up to the offending, your relationship with Ms Pope was significantly affected by your ever increasing use of drugs and alcohol. You commenced using extreme amounts of Xanax, often mixing it with other drugs, to assist you to shut out the pain in your life. This drug use led to a severe deterioration in your functioning and thinking to the extent of you experiencing recurrent blackouts and I am told that your work experience and your relationships all deteriorated as a result. You instruct that on the night of the offending you had taken a large amount of Xanax and methamphetamine as well as other substances which you cannot identify and have no recollection of the offending, albeit you accept that you committed the conduct described by the victims and police present on that evening.
Relevance of mental health, drug and alcohol issues and deprived background to sentencing – Mr Daw
63You undertook a psychological assessment with Mr Patrick Newton for the purposes of the plea. In his report, Mr Newton noted that any one of the events you have faced in your childhood and adolescence – your kidnapping and exposure to trauma in Sudan, dislocation on account of civil war, trauma at the hands of your father, and racial vilification from your peers – would have been capable of causing significant emotional distress to you. In Mr Newton's opinion, the combination of each of these matters has had a profound and lasting effect.[18]
[18] Ex D2, Report of Mr Patrick Newton, dated 12 April 2021, p6.
64In his report, Mr Newton stated that you are at present manifesting clear symptoms of emotional distress, experiencing significantly elevated anxiety and moderately intense depressive symptoms.[19] Mr Newton is of the opinion that whilst you have clearly suffered post-traumatic stress disorder in response to your experiences in childhood and adolescence, that condition is currently in partial remission.[20] However, your present depressive symptoms are sufficiently intense to meet the criteria for major depressive disorder with your emotional distress being of such a severity as to cause auditory hallucinations.[21] You are also experiencing a level of anxiety which is well in excess of that normally evidenced in other individuals who are in custody for the first time.[22] Overall, according to Mr Newton, your mental state is fragile and the combination of your age, distress and vulnerability more generally mean that you are vulnerable for more severe psychosis and mental disorder in custody.[23] In his opinion it is imperative that you continue to be closely monitored by mental health professionals to ensure that your mental state does not deteriorate further whilst in custody.[24]
[19] Ibid, p13.
[20] Ibid.
[21] Ibid, p14.
[22] Ibid, p9.
[23] Ibid, p11.
[24] Ibid.
65Turning to your issues with drugs and alcohol, Mr Newton proffered the view that misguided attempts on your part to manage the symptoms of your PTSD through use of alcohol and drugs have been instrumental in the development of your drug addiction.[25] Whilst it is clear that you have been, and continue to suffer from a range of mental health issues, in Mr Newton's opinion there was no direct nexus between your mental health issues and your offending conduct. Rather, it was your intoxication with illicit substances which had the most significant impact upon your mental state at the time of your offending.[26] You are now, however, in a period of enforced remission from drug use and have been able to enunciate to Mr Newton a set of goals, including structured drug treatment, anger management training and vocational training, which you are eager to undertake to provide a fresh start upon your release into the community.[27] In Mr Newton's opinion your prospects for rehabilitation are guarded and are firmly linked to your ability to obtain and engage in treatment specifically designed to address your drug issues, mental health issues and violent offending and to enhance your adaptive living skills.[28] However, he was of the view that provided you can maintain effective control of your behavioural problems, you should have good prospects of benefiting from further education and other rehabilitative efforts.[29]
[25] Ibid, p10.
[26] Ibid.
[27] Ibid, p15.
[28] Ibid, pp15-16.
[29] Ibid, p11.
66It was submitted by Mr Tovey, and conceded by Mr O'Toole, that I can take into account in sentencing you that your experience of imprisonment will be more onerous by reason of your ongoing mental health issues and I intend to do so.
67It was further submitted by Mr Tovey that I can also take into account in your favour in sentencing the fact that you are vulnerable for more severe psychosis and mental disorder whilst in custody. Mr O'Toole opposed that submission arguing that there is no evidentiary basis for the court to conclude that there is a serious risk that imprisonment will have a significantly adverse impact on your mental health. In particular, Mr O'Toole submitted that:
'Whilst Mr Newton opines that Daw's mental state is "vulnerable" and states that it is "imperative that he continues to receive active mental health care", Mr Newton does not advance an opinion about the likelihood (or otherwise) of Daw's mental state deteriorating if he is further imprisoned'.[30]
[30] Prosecution Sentencing Submissions, [30].
68Whilst Mr O'Toole is correct that Mr Newton does not overtly refer to your mental health deteriorating if you are further imprisoned, Mr Newton's opinion in respect of the requirement for you to be closely monitored follows on from him expressing particular concerns about the deterioration of your mental health after being incarcerated. He makes reference to you beginning to experience regular bouts of intrusive auditory hallucinations, which resulted in you harming yourself, and the fact that you continue to experience noteworthy symptoms of depression and anxiety even after receiving treatment and counselling in custody. He further states that your mental state remains fragile and that you are struggling to cope with the rigours of incarceration.[31] It is in this context that Mr Newton makes his observations in respect of your continued vulnerability and the need to closely monitor your mental state. Taking Mr Newton's opinions in the context in which they have been expressed, I am satisfied that imprisonment already has had a significant adverse impact on your mental health and there is a serious risk of further deterioration in the future such that you must be closely monitored to ensure that the eventuation of any such risk can be immediately addressed. I am therefore satisfied that I can take this into account in sentencing you and I have done so.
[31] Report of Mr Patrick Newton, pp10-11.
69I have also taken into account the impact of the extraordinary hardship suffered by you during your childhood and adolescence when assessing your criminal responsibility for your offending. It is clear from Mr Newton's report that, whilst there is no direct nexus between your diagnosed mental health issues and the offending, there is a clear linkage between your past trauma, your psychological presentation, your reliance on substances to deal with that trauma and the impact of the use of substances on your behaviour in respect of this offending. Whilst general deterrence still carries significant weight in the sentencing synthesis, I am of the view that your culpability must be assessed in the context of your personal history of trauma and deprivation and that any sentence imposed should allow within it the opportunity for you to engage with rehabilitative supports to address the impact of those traumas. Accordingly, I am of the view that in the particular circumstances of your case the weight to be given to the sentencing purpose of general deterrence should be moderated to a degree to reflect the profound impact of your background upon you and the weight to be given to rehabilitation should be enhanced.
70Insofar as your prospects for rehabilitation are concerned, I accept the opinion of Mr Newton and the submissions of your counsel that your prospects for rehabilitation are strongly tied to your access to, and engagement in, appropriate treatment. I accept that you are motivated to make changes and have support from your family, partner and prosocial friends. I am of the view that any term of imprisonment imposed should allow the opportunity for you to spend an extended time on parole in order to foster that rehabilitation.
Impact of COVID-19 – Mr Daw and Mr Peter
71Turning now to the impact of COVID-19 on both of you, each of you has been in custody since your arrest on 24 August 2020, which was during the height of the second wave of the COVID-19 pandemic in Victoria. During the period that you have been in custody you have both been impacted by the COVID-19 pandemic in a number of ways. I take into account that your time in custody to date has been more burdensome than it might otherwise have been due to the restrictions which have previously been imposed and are likely to be imposed again given the current stage three lockdown which has just been introduced for those in the community. As a result of these restrictions your access to rehabilitative and work opportunities are limited, you have reduced access to family and friends and have been, and most likely will continue to be in the near future, restricted from having face-to-face contact with family and loved ones. This will be particularly onerous upon you, Mr Daw, in circumstances where you have missed the birth of your daughter and are unlikely to be able to have face-to-face contact with her or your partner in the near future.
72I also accept that you are both subject to heightened stress and anxiety by reason of your incarceration and resultant lack of control of the measures to reduce your risk of contracting the virus. This additional stress extends not only to concern about your own health in custody but also the health of your family in the community, especially in circumstances where there have been a number of outbreaks of community transmission whilst you have been in custody.
73I take this added burden of imprisonment into account in sentencing each of you.
Other sentencing principles
74In sentencing each of you I have also had regard to the principle of parity.
75Insofar as your respective offending is concerned, your roles are broadly similar and do not, in and of themselves, justify any disparity in sentence between you. Further you are both young offenders and have entered pleas of guilty at an early opportunity.
76There are, however, a number of matters which do justify disparate sentences as between the two of you. Mr Peter, you committed these offences whilst on bail; your criminal history, whilst limited, contains relevant prior matters; you are not as young as Mr Daw; and there are some substantial mitigating circumstances present in Mr Daw's case which are not present in yours, including the impact of the trauma suffered throughout his childhood and adolescence and the impact of his mental health issues. Accordingly the sentence imposed on you, Mr Peter, is higher than that imposed on you, Mr Daw.
77I have also taken into account in each case the principle of totality and current sentencing practices, although I note that I was not provided with, nor was I able to find, any directly comparable cases.
Sentencing submissions
78Turning now to the sentencing submissions made by each party, Mr O'Toole submitted that general deterrence, specific deterrence (especially in your case, Mr Peter), denunciation, punishment, community protection and rehabilitation are all relevant sentencing considerations in this case and that the only appropriate disposition is a term of imprisonment with a non-parole period.
79Neither Mr Backwell nor Mr Tovey submitted that any disposition other than a term of imprisonment with a non-parole period was appropriate in the circumstances of this case.
80Mr Tovey, however, submitted on your behalf, Mr Daw, that there is a significant tension in your case between the need to give weight to your personal circumstances including your age and traumatic past and the consequent desirability of rehabilitation and the need for general deterrence and punishment. He submitted that whilst a term of imprisonment with a non-parole period to be served in adult custody is an appropriate sentence that any such sentence should be significantly moderated in its length as well as structured in a way that promotes your long term rehabilitation.
81For all of the reasons which I have already set out above, I agree that a term of imprisonment with a non-parole period must be imposed on each of you to reflect the gravity of your offending and to properly meet the sentencing purposes of general deterrence, denunciation and punishment. I have, however, in each case given weight to the various mitigating factors which I have identified and have imposed a term of imprisonment and non-parole period which in each case appropriately reflects the various mitigating factors and the weight to be given to rehabilitation in the sentencing process.
Sentence – Mr Peter
82Turning now to sentence, Mr Peter, I think if you stand up, Mr Peter, you might go out of the screen. Can you just try standing up for me and see whether I can still see you properly.
83ACCUSED PETER: Is this all right?
84HER HONOUR: No, we can still see you. Yes, it's fine, thank you.
85So, Mr Peter, in respect of Charge 1, aggravated burglary, you are convicted and sentenced to four years' imprisonment.
86On Charge 2, armed robbery, you are convicted and sentenced to five years' imprisonment. That is the base sentence.
87On the related summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to 14 days' imprisonment.
88I direct that six months of the sentence imposed on Charge 1 be served cumulatively upon Charge 2. I direct that the 14 days' imprisonment for the related summary offence be served concurrently with the sentences imposed on Charges 1 and 2.
89That makes the total effective sentence five years and six months.
90I direct that you serve a minimum of three years and six months before becoming eligible for parole.
Pre-sentence detention
91The period of 277 days of pre-sentence detention, not including today's date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
Section 6AAA declaration
92Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them you would have been sentenced to a total effective term of imprisonment of seven years with a non-parole period of five years.
93So you can have a seat, all right? So the sentence for you is one of five years, six months and you have got a minimum period of three years and six months before you become eligible for parole. The 277 days that you have already served comes off that three years and xix months. Do you understand that?
94ACCUSED PETER: Yes, I do.
HER HONOUR: All right, good.
Custody Management Issues
95Mr Backwell, I will note as a custody management issue that Mr Peter is currently prescribed antidepressants. Are there any other custody management issues that you wish me to note for Mr Peter which the authorities are not already aware of?
96MR BACKWELL: No.
97HER HONOUR: All right, thank you. Mr Daw, if you could now please stand up for me. All right, we have lost your head. You need to sit down. Sorry about that, you are a little bit too tall.
Sentence – Mr Daw
98All right, so in respect of Charge 1, aggravated burglary, you are convicted and sentenced to two years and six months' imprisonment.
99On Charge 2, armed robbery, you are convicted and sentenced to three years and six months' imprisonment. This is the base sentence.
100On Charge 3, possession of a drug of dependence being cannabis, you are convicted and discharged.
101I direct that six months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 2.
102The total effective sentence is therefore four years' imprisonment.
103I direct that you serve a minimum of 20 months' imprisonment before becoming eligible for parole.
Pre-sentence detention
104The period of 277 days of pre-sentence detention, not including today's date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
Section 6AAA declaration
105Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charges for which you received a term of imprisonment today and been convicted of them you would have been sentenced to a term of imprisonment of five years and six months, with a non-parole period of three years and six months.
Ancillary orders
106Pursuant to s78(1) of the Confiscation Act 1997 (Vic), I make a disposal order in respect of the cannabis located in your possession.
107So, Mr Daw, in your case the total sentence is four years. You have to serve a minimum of 20 months before you are eligible for parole. You have already done 277 days of that 20 months. Do you understand that?
108ACCUSED DAW: Yes. Yes, ma'am.
Custody management issues
109All right. So, Mr Tovey, as a custody management issue for Mr Daw I am noting that he suffers from PTSD, major depressive disorder and anxiety. Are there any other custody management issues for Mr Daw which you wish me to note and which the authorities are not already aware of?
110MR TOVEY: No, those are the matters, Your Honour.
111HIS HONOUR: All right.
Other matters – Mr Peter and Mr Daw
112Counsel, are there any other matters that any of you wish to raise at this stage in respect of either the sentence or reasons for sentence?
113MR O'TOOLE: Your Honour, just with respect to the maximum penalty for Mr Daw, Charge No.3 - - -
114HER HONOUR: Yes.
115MR O'TOOLE: - - - you had it on it being a first offence. Your Honour, it's my submission that it's a quantity-based regime. It's provided the cannabis is a small quantity, which it is in this case, the maximum penalty is then five penalty units.
116HER HONOUR: It's five. All right.
117MR O'TOOLE: So it's not predicated on it being a first or second offence.
118HER HONOUR: Sure. I think I ruled that out as the - so I will change that, Mr O'Toole. It doesn't make any difference.
119MR O'TOOLE: It doesn't make any difference, Your Honour, but I just wanted to make sure Your Honour's got that right.
120HER HONOUR: Yes.
121MR O'TOOLE: Section 73(1) of the Drugs Act.
122HER HONOUR: Yes. Yes, I don't k now where I pulled that from, Mr O'Toole, but I will amend that and it will now read the maximum penalty for possession of a small quantity of a drug of dependence, cannabis, is five penalty units.
123MR O'TOOLE: Yes, not more than five penalty units. As Your Honour pleases.
124HER HONOUR: Thank you. All right, are there any other issues?
125MR O'TOOLE: Nothing from me, Your Honour. If Your Honour pleases.
126HER HONOUR: All right. Mr Backwell, anything further?
127MR BACKWELL: No, Your Honour.
128HER HONOUR: All right. Mr Tovey?
129MR TOVEY: No, Your Honour.
130HER HONOUR: All right, thank you. Well, in that case we'll adjourn the court.
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