Director of Public Prosecutions v Dawale

[2019] VCC 1482

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00939

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBLEH DAWALE

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	26 June 2019
DATE OF SENTENCE:	26 June 2019
CASE MAY BE CITED AS:	DPP v Dawale
MEDIUM NEUTRAL CITATION:	[2019] VCC 1482

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti
For the Accused	Ms R. Avis

HIS HONOUR: 

1Robleh Dawale, you are to be sentenced for two charges of assault, one charge of attempted armed robbery, and one charge of recklessly causing injury. 
The respective maximum sentences are five years' imprisonment for assault and recklessly causing injury, and 20 years' imprisonment for attempted armed robbery.  You are also to be sentenced for the summary offence of committing an indictable offence whilst on bail.

2You pleaded guilty before me on 18 June.  When interviewed by police on
22 February 2018, you made admissions.  The committal went by hand-up brief on 3 May 2018, after which you entered pleas of guilty.   At your plea hearing, which also ran on 18 June, Ms Pezzimenti for the Crown tendered a written Crown opening and photographs of the scene of offending, your weapon, and injuries you caused to your primary victim.  She tendered the victim impact statements of Timothy Churchwood, Justin McKinley and Andrew Barron.  Ms Pezzimenti provided a Sentence Advisory Committee snapshot document in respect of the offence of attempted armed robbery.

3Ms Avis, for you, tendered the forensic psychological report of Alison Mynard, dated 2 June 2019.  This morning, she called your uncle, Abdid Ghamadid, to give evidence about parts of your earlier life and that you may live with his family upon release. 

4The circumstances of your offending are described in the tendered Crown opening, which is Exhibit A.  My own summary may be short.

5On the night of 22 February 2018, you were at an area on or near the Yarra River at the Batman Avenue bridge.  You were, as best can be seen, associated and drinking with a group of people there.  There does not seem a close association.  You were intoxicated, using the prescription drug Xanax and alcohol.  You were then aged 21, almost 22.  You were on bail for offences which were ultimately withdrawn.

6Your three victims were Timothy Churchwood, Justin McKinley and Andrew Barron, men in their 30s who had been at a work function, and shortly after midnight, on 23 February, they were walking along the river.  You approached them at the bridge, it seems away from or separate from your larger group.

7You were carrying a stick.  The photographic evidence suggests to me a relatively thin but solid part of a tree branch.  You asked about their mobile phones, at first stating you wished to borrow them; and,  soon after, demanding they give them over.  You were menacing them with the stick.  You were also demanding their wallets.

8Charge 1 and Charge 2 on the indictment are offences of assaulting Justin McKinley and Andrew Barron.  It is assault by intimidation.  You are not to be sentenced for attempting to rob them.

9Timothy Churchwood was closest to you and tried to calm you down. 
You grabbed at his pockets, attempting to obtain the contents.  He prevented you.  You began striking him with the stick, mainly to the arms and legs. 
You caused injuries, including swelling and bruising, a laceration or swelling behind his ear, and laceration to his hands.  I have viewed the tendered photographs of some of his injuries.  You also punched him to the face and nose.  You moved away and seemed to return to the group you had been with.

10Your victims rang 000.  Not long after, you were arrested in the area.  After an initial apparent attempt to flee, you complied with police direction and they took you into custody.  Your victims identified the stick, which you had dropped.

11The victim impact statement of Timothy Churchwood speaks of his physical injuries.  These took several weeks to fully recover.  You damaged cartilage in his nose, which remains slightly misshapen.  There is residual soreness in his hip.  He also speaks of the emotional impact.  He has felt anger and mistrust.  There have been episodes of panic in public situations.  Generously, he has reflected sadly upon your life's trajectory and situation.

12The other two victims, unsurprisingly, have also felt emotional impacts.  These include anxiety, mistrust, impact upon family and social life.  There is a loss of a sense of safety.  They reflect upon a feared loss of community safety. 
I am not complete.  There has been significant victim impact which must be taken into account in my sentence of you.

13You are now a 23-year-old man, awaiting this sentence in remand custody.

14You have had a quite remarkably dislocated upbringing.  Your parents are Somalian people who fled the civil war there.  You were born here.  They separated when you were five.   Until seven, you were with your mother in Carlton.  She left you when you were seven and,  you were told, went to Sydney.  You told psychologist Alison Mynard of waiting for her after school and then getting picked up by your father, who you had not seen for some time.  You next saw your mother at 15.  You went to your paternal grandmother, after that, at 12, to your father and stepmother.  Both of your parents re-partnered, and you have many half-siblings.

15At 16, you went with your father and grandmother to Somalia.  They came back here after several weeks, but you remained with extended family for another six months.  Things went badly.  You found it a harsh, violent place.  You fell into bad company, and you were placed into custody several times, albeit, on your account, for relatively minor offending.  Conditions were very tough.  You told Ms Mynard of witnessing a man being shot dead when you were in prison. 
He was homosexual.  You were also shot at in the street.  You have retained a graphic recollection of the dead man.

16Ms Mynard diagnoses symptoms of post-traumatic stress disorder, such as intrusive memories, nightmares, hypervigilance, anxiety and low mood.  She states that you have used alcohol to relieve this.  You remain distressed at your mother's abandonment of you.

17You returned to Australia at 17 and began to offend here.  In 2017, you lived with your mother in Sydney, but that failed.  Back in Melbourne, you became often homeless and were so at the time of this offending. 

18It is not surprising that you attended a number of schools.  Despite this, you completed half of Year 12.  Since, there has been work in trade and labour jobs.  You started
pre-apprenticeship courses in plumbing and bricklaying.  You completed nine months of a plumbing apprenticeship.

19You are stated to be of average intelligence.  You appear to be a talented soccer player and hope to return to that.  You state that you seek to do an electrician's apprenticeship.

20You used some drugs, including cannabis and, to some extent, cocaine in late teen age but not very excessively.  You have abused alcohol.  Ms Mynard also diagnoses alcohol abuse disorder.  As stated, you were drunk and affected by that combination with Xanax on the night of offending.  You did not usually use Xanax. 

21Your criminal record states four prior court appearances between June and December 2017, a period of about six months, when you were also 21. 
The last is in New South Wales.  There are offences of dishonesty, causing damage, and what can be called 'street offences.'  There are no convictions but for a New South Wales court appearance in respect of what seems the equivalent of car theft.  These are convictions apparently in your absence, the record indicating, I quote, 'warrant to issue.'

22There was a June 2017 Victorian court appearance for breaching a family violence intervention order.  This was related to your father and stepmother.  Ms Avis told me that you are reunited, and both are supportive of you.

23Whilst it is relevant, your criminal record is not yet a major one.  This offending is much more serious. 

24This was serious offending with adverse features of a weapon, a public setting, and that you violently set about a man who showed no animosity to you - indeed, the opposite.  There is some significant victim impact.  You have prior offending, although not of this level.  Your intoxication does not mitigate the seriousness of your offending.

25These circumstances make relevant the sentencing considerations of deterrence - that is, both general and specific deterrence - your moral culpability, the need to condemn the offending, and to proportionately punish it.  There must be a sentence which at least includes imprisonment.

26However, there are also moderating factors, mainly personal to you, which go to reduce your sentence; that is, compared to what the objectively viewed seriousness may otherwise require.  These include the following.

27(1),  Your plea of guilty and cooperation.  You have expressed remorse of some insight;   for example, in the Community Corrections suitability assessment report  which has been provided to the court;

28(2), Your personal history and circumstances.  There have been very serious episodes of dislocation, abandonment and trauma in your still-young life;

29(3), Related to that, it is just to recognise association between it, your post-traumatic stress disorder symptoms, and your alcohol abuse from late teen age.  The Verdins principles do not apply and were not put.  However, these factors are relevant to your present situation at sentence, and the full personal context of your offending;

30(4), As stated, you are still a relatively young man, and your rehabilitation is relevant.  Ms Mynard states some improvement in your psychological symptoms.  There are now identified diagnoses, post-traumatic stress disorder and alcohol abuse, which have the potential for treatment.  You have renewed family support.

31The final paragraph of Ms Mynard's report states as follows, under 'Recommendations':

'For Mr Dawale to engage with a psychologist in order to address his underlying attachment traumas and his ongoing relationships, as well as his more current post-traumatic stress disorder symptoms.  Mr Dawale would benefit from a Men's Behavioural Change Program in order to learn more about communication, assertiveness, managing anger and dealing with his own emotions.  Mr Dawale would benefit from drug and alcohol counselling to address his relapses into substance abuse.'

32It is in the community's interest that these be addressed. 

33The community assessment has found you not suitable for such an order.  That is because of the existence of warrants to face charges in New South Wales and Queensland.  The alleged offending occurred in the latter half of 2017.  This was raised and discussed with counsel this morning, including the alleged circumstances of the offences which were to some extent described.  There has been no admission of guilt in respect of them.   Further, I was advised that upon a community corrections order release, Victoria Legal Aid (VLA) can and will make arrangement with its counterparts in those states to enable voluntary attendance and resolution of the matters. 
I agree that they do not present, to the best I understand, in the range of things as at the high end of seriousness. 

34I have decided, for the reasons further developed this morning, to sentence you in accordance with my earlier indication.

35Also, this morning, the circumstances of your summary offence of committing an indictable offence on bail were made clear. The relevant offending is that for which you are being sentenced by me. As I have said, the bail charges were withdrawn. However, that you offended whilst on bail remains an adverse feature of the offences on which I sentence you. Section 16(3)(C) of the Sentencing Act requires prima facie cumulation because of this.  This must be balanced against the requirement of an appropriate and just total sentence.

36What I propose, in terms of structuring this sentence, and I would be grateful for your assistance, is simply a sentence of eight months under s.9 of the Sentencing Act.  Is there any reason I cannot - eight months, followed by a community corrections order.  Is there any reason why I cannot impose such an aggregate sentence?

37COUNSEL:  No. 

38HIS HONOUR:  The only part that would stop you doing it would be the summary offence.

39MS AVIS:  Yes, I was about to raise that.  I think the related summary offence cannot be part of the aggregate - or it can?  That might be the only ‑ ‑ ‑ 

40MS PEZZIMENTI:  No, I don't see - I think you can, Your Honour. 

41MS AVIS:  Can be.

42MS PEZZIMENTI:  I don't think there's any reason why it can't be.

43HIS HONOUR:  Because it is part of the relevant period of offending, because it is the offence that ‑ ‑ ‑ 

44MS PEZZIMENTI:  Yes. 

45HIS HONOUR: I understand what Ms Avis is saying. But it seems to me, particularly in mind of the fact that the charges on which he was on bail were withdrawn, I should impose an aggregate sentence under s.9.

46MS PEZZIMENTI:  All the charges are included before this court. 

47HIS HONOUR:  Yes. 

48MS PEZZIMENTI:  There's no difference.  Your Honour's not being asked to exercise any different jurisdictions.  There's no reason why that would be a sentence that can't be imposed.

49HIS HONOUR:  No, and they sit within a range of offences very closely.

50COUNSEL:  Yes. 

51HIS HONOUR:  Very close in time and in type.

52MS PEZZIMENTI:  Yes, Your Honour. 

53HIS HONOUR:  All right. 

54MS AVIS:  Sorry, it's simply that the related summary offence can't be on the indictment directly.  That’s the only reason it's related.

55HIS HONOUR:  No, that is right, but I can still set an aggregate sentence.

56MS AVIS:  Yes. 

57HIS HONOUR:  As long as I identify the fact that the summary offence is part of it.

58MS AVIS:  Yes. 

59HIS HONOUR:  Am I right about that?

60COUNSEL:  Yes. 

61HIS HONOUR:  Yes, thank you.  We are just going to produce the document, Mr Dawale, and then I will formally sentence you.  And just to make it clear,
it is unpaid community work of 200 hours.  He can be credited with 100 hours of therapeutic program work.  There will be assessment and treatment for drug and alcohol, supervision, judicial monitoring on that day - what day is that? 
The 18th of ‑ ‑ ‑ 

62ASSOCIATE:  18 September.

63HIS HONOUR:  Yes.  Mental health assessment and treatment, and offending behaviour programs.  They are specifically related to this offending.  Can I ask you a question whilst we are doing this?  I listened to your uncle give evidence today, and he is an impressive man.

64OFFENDER:  Thank you, Your Honour. 

65HIS HONOUR:  Who does a lot of good for his community, and clearly, cares about you and other members of his family.  Do you think well of him?

66OFFENDER:  Yep.  Um, also ‑ ‑ ‑ 

67HIS HONOUR:  How much older than you is he?

68OFFENDER:  Ah, he's around - I think around 31, 32?

69HIS HONOUR:  Yes.  I mean, you have almost grown up with him.

70OFFENDER:  Yeah, I've grown up with him.  I lived with him and his grandma during that period ‑ ‑ ‑ 

71HIS HONOUR:  I know.

72OFFENDER:  ‑ ‑ ‑ of split with my mum that he said, he spoke about.

73HIS HONOUR:  Yes, I know.

74OFFENDER:  I lived with him, for like, a few months.  And then ‑ ‑ ‑ 

75HIS HONOUR:  But maybe you need to reflect on positive things that could happen in your life.  I mean, he is a good man. 

76OFFENDER:  Also ‑ ‑ ‑ 

77HIS HONOUR:  Why not try and do what he has done?

78OFFENDER:  Um, Your Honour, I also helped him as well. 

79HIS HONOUR:  Good. 

80OFFENDER:  Some community work, in the community, during, um, a soccer program, I helped volunteer for two years.  Um, that he - like, he was one of the organisers of it, that soccer program.  Ah, it's a tournament, actually - actually, no, a tournament.

81HIS HONOUR:  How did you feel - did you have to tell him what you had done?

82OFFENDER:  Um, he found out, um, roughly when I first got remanded last year, he found out.

83HIS HONOUR:  How did you feel about that?

84OFFENDER:  Um, well, I didn't feel happy about myself.  Felt, like, a bit down.

85HIS HONOUR:  No, you would have felt pretty embarrassed in front of him.

86OFFENDER:  Yeah.  Yeah, it is embarrassing.  Like, cause of my family, like, my dad's done so much just to come to this country, and it's basically letting him down.  Like, the rest of my family's all good, and it's basically a letdown.  But I can't change the past.

87HIS HONOUR:  Well, you are going to get an opportunity in two months to make good on that.

88OFFENDER:  Yeah, I can't change the past, Your Honour, but hopefully, I can change my future.

89HIS HONOUR:  Yes, all right.  Well, let us find out.  I mean, you seem to be talking about it in the right way.

90OFFENDER:  Yeah.

91HIS HONOUR:  Let us find out whether you really mean it.

92OFFENDER:  Yeah.

93HIS HONOUR:  That will be the test, will it not?

94OFFENDER:  Yeah.

95HIS HONOUR:  All right.  Thank you. 

96OFFENDER:  You're welcome.

97HIS HONOUR:  Yes.  Stand up, please.  Having considered the matters that
I see as relevant to this sentence, I sentence you as follows.

98On the indictment for two charges of common assault, one charge of attempted armed robbery and one charge of recklessly cause injury, and on the summary offence of committing an indictable offence whilst on bail, you are sentenced to eight months' imprisonment.

99I declare pre-sentence detention of 161 days in respect of that.

100As well, on all of those offences, you are sentenced with conviction to a community corrections order of two years' duration, with the usual terms and the following additional conditions:

101(1), That you perform 200 hours of unpaid community work over that time.  One hundred hours of your involvement of performance on other programs can be set off against that.  You must be under supervision of a community corrections officer.  You must undergo assessment and treatment for drug abuse or dependency, and for alcohol abuse or dependency.  You must undergo mental health assessment and treatment, as you are directed.  And you must participate in programs that particularly address factors related to this offending.  Also, I will require you to attend before me on 18 December 2019 for me to monitor your performance at that stage.

102All right.  What did I say?

103MS AVIS:  December.

104MS PEZZIMENTI:  You said December.

105HIS HONOUR:  December, did I?

106MS PEZZIMENTI:  Yes. 

107HIS HONOUR:  I am sorry.  September 2019.  Sorry, September.  All right. 
I am going to read out more particularly what the conditions of this order are, the community corrections order, and then ask you whether you consent to it and understand it, and ask you to sign the document.  All right?

108OFFENDER:  Yep.  Yes, Your Honour. 

109HIS HONOUR:  It will run for two years.  The usual terms are these:  you do not commit another offence for which you could be imprisoned, that you do not attend any appointment, work site or otherwise affected by alcohol or drugs, or in possession of illegal drugs.  You will receive visits and have to report to community corrections.

110You must report to the relevant community corrections centre upon release, you will be advised of that before your release from prison, within two days of that release.  You must let community corrections know within two days of a change of address or a job.  You must not leave Victoria without getting their permission, and you must obey all of their lawful directions.

111The additional conditions are these, as I said to you before:  200 hours of unpaid community work over that two years - 100 hours of the other participation in programs and the like can be set off against that.  You must be under supervision of a particular community corrections officer for the period.

112You must undergo assessment and treatment for both drug abuse or dependency and alcohol abuse or dependency.  You must undergo mental health assessment and treatment, as you are directed, and you must participate in programs that address factors particularly related to the violence of this offending.

113You must also, as I told you before, attend before me on 18 September 2019 at 10 o'clock, here, for me to see how you are going.

114OFFENDER:  18th or the 19th, Your Honour?

115HIS HONOUR:  18th.  Did I say 19th, did I?

116OFFENDER:  Sweet.

117HIS HONOUR:  All right.  Well, anyway, 18th.

118MS PEZZIMENTI:  18th.

119HIS HONOUR:  18th, all right.  18 September 2019.  It will be written down for you.  You will know what to do.  Now, do you understand all of that?

120OFFENDER:  Yes, Your Honour. 

121HIS HONOUR:  Do you agree to it?

122OFFENDER:  I agree to it, Your Honour.

123HIS HONOUR:  All right.  I will get you to sign it, then.

124OFFENDER:  Do you know - Your Honour, if I may ask, do you know when my release date?

125HIS HONOUR:  Sorry?

126OFFENDER:  Do you know when my release date is?

127HIS HONOUR:  It will be about two months from now, I would say.

128OFFENDER:  Okay.  Nah, I think it would be ‑ ‑ ‑ 

129HIS HONOUR:  Two-and-a-half.

130OFFENDER:  ‑ ‑ ‑ two-and-a-half, yeah.  Thank you, Your Honour. 

131HIS HONOUR:  All right.  I will sign it now.  I think we will just get a copy for
Ms Avis and a copy for Ms Pezzimenti.  Anything else to do?

132MS PEZZIMENTI:  6AAA, Your Honour.

133HIS HONOUR:  Yes.  Had you not pleaded guilty to these matters, I would have sentenced you to prison for two years with a minimum term of 15 months. 

134OFFENDER:  So 15 with a - two years?

135HIS HONOUR:  Yes, well, do the arithmetic.  You are getting out in eight.

136OFFENDER:  Yeah.  Much, much, much more.  The discount ‑ ‑ ‑ 

137HIS HONOUR:  Much earlier.  Much earlier.

138OFFENDER:  Much earlier, yeah.

139HIS HONOUR:  And just as a comment between you and me, with those warrants in Queensland and New South Wales, you would not have got parole. 

140OFFENDER:  Yeah.

141HIS HONOUR:  It would have been two years.  So do the arithmetic.  All right?

142OFFENDER:  Thank you very much, Your Honour.

143HIS HONOUR:  I need to tell you that.  Is there anything else?

144COUNSEL:  No, Your Honour. 

145HIS HONOUR:  All right.  I do not know you, but there are parts of what I have heard that indicate to me that you are a basically decent young man.  But if you do not control your anger, and your drinking - you have already developed quite a significant record, and you could end up spending most of young adult life in prison.

146OFFENDER:  Your Honour, I won't have no problems with my drinking. 
I'm pretty sure of that.  Yeah.

147HIS HONOUR:  Well, I am glad to hear that.  But if you do not control your anger, it will not be much of a life for you.  If you can, I think you have got the ability to have a good life.  So it is up to you, is it not?

148OFFENDER:  Yep.  The ball's in my court, Your Honour.

149HIS HONOUR:  Sorry?

150OFFENDER:  The ball's in my court, Your Honour.

151HIS HONOUR:  Yes, well said.  Good on you.

152OFFENDER:  Thank you.  Thank you very much. 

153HIS HONOUR:  Thank you.  'The ball's in my court.'  I think he has heard it before.  Let us find out if he means it.  We will adjourn.

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