Director of Public Prosecutions v Deng
[2012] VCC 1234
•29 August 2012
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01430
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| DAVID DENG |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 August 2012 | |
DATE OF SENTENCE: | 29 August 2012 | |
CASE MAY BE CITED AS: | DPP v. Deng | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1234 | |
REASONS FOR SENTENCE
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Catchwords: Plea - sentencing - armed robbery - attempted armed robbery -
intellectual disability - mental illness
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms N.C. Burnett | Office of Public Prosecutions |
| For the Accused | Ms I. Bolger | Revill & Papa |
HIS HONOUR:
1 David Deng, you have pleaded guilty to one charge of armed robbery and one charge of attempted armed robbery.
· The offence of armed robbery carries a maximum penalty of 25 years’ imprisonment.
· The offence of attempted armed robbery carries a maximum penalty of 20 years’ imprisonment.
2 You are now 24 years old, having been born on 25 December 1987. At the time of the offending you were aged 23.
3 You have an extensive criminal history for one so young, starting in the Sunshine Magistrates' Court in September 2005 for weapons and resist police offences when you were aged 17, for which you were fined. This was followed by another appearance at Sunshine in February 2007 on theft, violence, weapons and fail to answer bail charges, for which you were sentenced to 45 days’ imprisonment. You again appeared at Sunshine two weeks later in March 2007 on a theft charge, for which you received an adjourned undertaking.
4 You appeared there yet again in October 2007 on theft, assault and criminal damage charges, for which you were put on a Community Based Order. You appeared there again in November 2007 on theft charges, for which you were sentenced to two days’ imprisonment. You have since appeared at either the Sunshine or the Melbourne Magistrates' Courts in May 2008, October 2008, February, June and August 2010, and November and December 2010 on similar charges.
5 In July 2008, when you were aged 20, you were sentenced in the Melbourne County Court on aggravated burglary, criminal damage and fail to answer bail charges to 12 months’ imprisonment with a 4-month non-parole period.
6 You were born in the Sudan and migrated to Australia with your family during your teenage years.
7 The victims are both from Germany and were visiting Melbourne at the time of this incident.
8 The circumstances of the offending are as follows.
9 On Friday 21 January 2011 at approximately 9.45 p.m. you got off a train at the South Kensington railway station. You were there with five or six male friends. You and your friends walked from the station platform to a pedestrian underpass where you encountered the two victims.
10 You extended your arm and blocked the first victim's path. You said to him, "Do you have any money?" You grabbed him by the shoulder and he noticed that you were holding a knife in your hand. He describes the knife as being approximately six inches long with a three-inch blade. He told you that he did not have any money. You then swung the knife, cutting him in the webbing of his right hand between his ring and little finger. He felt instant pain and the wound began to bleed.
11 The first victim said to you, "If I give you money will you leave us alone?" You replied, "Yeah", at which time he handed over to you $40 in cash.
12 You continued making demands for more money and the victim handed his wallet over to you. You shook his wallet and threw it on the ground after realising there was not any money in it. This conduct constitutes Charge 1, armed robbery.
13 You then turned your attention to the second victim demanding, "Where's your money?" He told you that he did not have any money and both victims were then able to run away from you. The victims subsequently called ‘000’ and police attended the scene.
14 You were identified by means of a photo in photo-boards which were shown to the victims. The victims identified you from 12 images contained on the photo-boards as being the offender in this incident.
15 The first victim's injury to his hand required no further treatment.
16 On 7 March 2011 at approximately 10.59 a.m. you were arrested by police at your residence in Werribee. You were transported to the Victoria Police Centre where you were assessed by forensic medical officers and deemed unfit to be interviewed.
17 At a County Court mention on 25 May 2012 the matter resolved and you entered a plea of guilty to the charges on the Indictment.
18 I now turn to your personal circumstances.
19 As I have said before, you are now 24 years of age, having been born on 25 December 1987 and you were 23 at the time of this offending.
20 You were born in Khartoum in the Sudan. You came to Australia with your family via a refugee camp in Egypt when you were in your mid teens.
21 You have a history of mental illness with current diagnosis being schizophrenia. You demonstrate ongoing psychotic symptoms, predominantly positive symptoms, and when unwell there are manic features present. You have poor insight into your illness, poor compliance with oral medication and are opposed to the depot medication which has been prescribed.
22 Your condition is further complicated by intellectual disability within the meaning of the Disability Act 2006, together with alcohol and drug abuse and dependence.
23 You have had multiple admissions over two years to the Orygen Youth Health Service, the first occurring at the age of 17. You experience marked difficulties in impulse control, disinhibited behaviour, perseveration and poor auditory comprehension despite fair English language skills.
24 You require supported accommodation. You are at escalated risk of decompensation in mental state due to substance abuse or non-compliance with medication if not residing in a staffed environment. A Continuing Care Unit (“CCU”) would be the most appropriate for you; however your recent history within such a unit has been very problematic.
25 You were resident at the Werribee CCU from 9 March 2010 until 12 May 2011 whilst you were receiving psychiatric treatment within a Community Treatment Order under the Mental Health Act.
26 You have posed a major clinical and ethical dilemma for the mental health clinicians because of your unacceptable behaviour at the CCU. A report from the Werribee centre has explained that the unit is limited in how it can manage you and, as it is in a community setting, imposing all components of rehabilitation are just not possible for such a complex patient as you.
27 I accept that your intellectual disability and mental health diagnosis means that the application of principles of general and specific deterrence need to be substantially reduced and that there is a serious risk that any sentence imposed would have a significant adverse effect on your mental health. The various limbs of Verdins are engaged.
28 On 12 May 2011 you were discharged from the Werribee CCU and have from that date been in remand in the Mental Health Ward at Port Phillip Prison.
29 The offences are obviously serious, and are preceded by many previous court appearances, as I outlined before, which include convictions for robbery in July and October 2008 and attempted robbery in August 2010.
30 In mitigation I take into account the matters urged upon me by your counsel and, in particular, your intellectual disability, mental health and associated substance abuse problems.
31 Mr Deng, could you please stand.
32 On Charge 1 of armed robbery you are convicted and sentenced to two years’ imprisonment.
On Charge 2 of attempted armed robbery you are convicted and sentenced to 12 months’ imprisonment.
33 Charge 1 is the base sentence. I order that six months of the sentence imposed on Charge 2 be served cumulatively on Charge 1.
34 The total effective sentence is 30 months’ imprisonment.
35 I order that you serve a minimum period of 18 months’ imprisonment before being eligible for parole.
36 I declare that the period that you have been in custody, namely 476 days including today, be reckoned as a period of imprisonment already served under the sentence which is to be deducted administratively.
37 Pursuant to s.6AAA of the Sentencing Act I declare that but for your plea of guilty the sentence that I would otherwise have imposed is a total effective sentence of three and a half years’ imprisonment, with a minimum term of two and a half years’ before being eligible for parole.
38 You may be seated, Mr Deng.
39 HIS HONOUR: Now, from either counsel anything else?
40 MS BURNETT: No, thank you, Your Honour.
41 HIS HONOUR: All right, I'll leave the court. Thank you very much, Ms Bolger, for everything you've done and the health supporting personnel. Thank you.
42 MS BOLGER: Thank you, Your Honour.
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