Director of Public Prosecutions v Dhal

[2019] VCC 212

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00712
CR-19-00369

DIRECTOR OF PUBLIC PROSECUTIONS

v

BARNABAS DHAL

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	20 & 27 February 2019
DATE OF SENTENCE:	1 March 2019
CASE MAY BE CITED AS:	DPP v DHAL
MEDIUM NEUTRAL CITATION:	[2019] VCC 212

REASONS FOR SENTENCE
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Subject:  Criminal law
Catchwords:  Armed robbery; Robbery; Related offences; Potential deportation
Legislation Cited:           Migration Act 1958 (Cth)
Cases Cited:                   Loftus v The Queen 2019 VSCA 24
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Karamicov	Director of Public Prosecutions
For the Accused	Ms K. Mildenhall	Matthew White & Associates

HIS HONOUR:

1On 20 February 2019, you Barnabas Dhal, pleaded guilty to indictment
No. J10098036.1, containing six charges, together with a further five summary offences.  That indictment contained charges of robbery, theft, handling stolen goods, intentionally damage property; and two charges of possessing drugs of dependence.  The summary charges consisted of driving whilst disqualified, two charges; careless driving of a motor vehicle; possess a controlled weapon without excuse; and enter a private place without authority.

2You had earlier been arraigned and pleaded guilty to indictment
No. J10098036, containing a single charge of armed robbery.  You were represented by counsel at your plea hearing, which commenced on 20 February and concluded with further submissions being made on 27 February 2019.

3The detailed circumstances of your offending are contained in the summary of prosecution opening upon the plea, which was tendered in evidence before me.[1]  In short compass, your offending occurred over a period of approximately two and a half months from 24 November 2017, to 9 January 2018.

[1]      Exhibit C

4The robbery offence occurred in circumstances where you had entered a hotel in Footscray on 23 November 2017 and befriended your victim, with whom you had played on poker machines during the evening.  At approximately 1 am, outside the hotel, you demanded money from the victim and called another man who joined you whilst you confronted your victim.

5You had threatened him with the words, "If you don't give the money, we will hurt you or bash you".[2]  You snatched $400 from your victim and questioned whether that was all he had.  I do note the prosecution summary records that at least before running away, you threw $50 at your victim, to give him sufficient cash to return home.

[2]      Exhibit C

6You were then involved in further offending of a serious nature on 2 December 2017 when you committed an armed robbery at an IGA supermarket in Talintyre Road, Sunshine West.  The armed robbery occurred at approximately 1.15 pm.  Shortly prior to that time you were driving a motor vehicle with one of your co‑offenders in the armed robbery, between Altona Meadows and Sunshine.  You were disqualified from driving at that time.

7While driving on the Princes Freeway in Laverton North you were involved in a collision, losing control of the vehicle you were driving in very heavy rain, and spinning out across three lanes of traffic, colliding with another vehicle.  You and your co-offender were then given a lift to a property in Sunshine West.  It is not alleged against you that the person giving you a lift from the scene of the motor vehicle collision was in any way involved in the subsequent armed robbery.

8The armed robbery was committed in company with two co-offenders, Gary Scown and Majur Magok.  CCTV of your offending was tendered during the plea hearing.[3]  I note from that, and from the Crown opening, that you were the first to enter the store, followed by your two co-offenders.  The CCTV footage depicts you jumping the counter, having been observed removing an imitation firearm from your clothing.

[3]      Exhibit A

9You pointed this at your victim as your co-offenders jumped over the counter and began ransacking the service area.  You were observed removing the cash register drawer from under the counter, using your teeth to free the drawer from its electrical cord.  You then ran out of the store holding the drawer, with a crude wig falling from your head, as you did so.  Your co-offenders followed with Magok carrying a duffle bag, and Scown taking a charity donation tin from the store counter.  You all ran from the scene.

10Three days later, police executed a search warrant at an address in Sunshine West where the cash register drawer, the donation tin, and various items of clothing resembling those worn by you and your co-offenders at the time of the armed robbery were recovered. 

11On 9 January 2018 you were observed by police at an address in Kings Park, where you had attended to purchase a motor vehicle from a man who had advertised the car for sale.  Police were involved in an unrelated investigation at that time.  During the transaction to purchase the vehicle you produced a driver's license in the name of another person, telling the seller that the person depicted on the driver's license was your brother.  You then drove this vehicle back to the Kings Park address, while remaining a person who was disqualified from driving.

12Police attended at that address in Kings Park in an unmarked vehicle, parking in front of the vehicle you had purchased earlier that day.  Two other police vehicles then attended, so that the vehicle driven by you was surrounded by three police cars.  You then slowly reversed your vehicle, before driving it quickly into the unmarked police car, causing damage.  You then reversed again and drove from the address.

13Later that day, shortly after lunch time, police were called to an address in Altona Meadows following a report concerning a person who was looking into houses carrying a knife.  You were then observed riding a bicycle, and when police attempted to speak to you, you rode away and then ran from police over fences, and the roof of residential properties, before confronting a resident in the backyard of her home.

14She asked you to leave and led you through her house to the front door.  You initially refused to leave and then, despite the resident's protests, you took a mountain bike from her front yard and rode from that address.  You were eventually arrested by police a short distance away.  When searched you were found to be in possession of a knife, a small quantity of methylamphetamine and two tablets of Mirtazapan.

15You were found in possession of the driver's license that had been produced when you purchased the vehicle on 9 January 2018.  This vehicle was fitted with a number plate that had been stolen from an address in Caroline Springs the day before; that is, 8 January 2018.

16When interviewed by police, you denied being involved in the armed robbery and lied about your whereabouts on that day.  You maintained these denials when shown the CCTV footage.  In relation to the robbery, which had earlier occurred in November 2017, you agreed that you were present, being identified in CCTV images, but maintained your victim owed you money and had refused to pay.  You accepted that you used force to get the money on that occasion.

17When asked about the driving incident involved the collision on 2 December 2017 you told police you did not remember anything about it and were probably at home cooking.  You denied driving and otherwise did not comment on matters put to you.

18You generally made admissions to police about the events on 9 January 2018, and stated you ran from police because you felt that you were being chased by them, and also stated that you had been under the influence of drugs for a few weeks but ran away because you were scared.  You admitted being in possession of a flick knife, carrying it for protection.  You also made admission to possession of the drugs of dependence.

19By way of background, you are now 24 years of age.  Your date of birth is stated as 1 January 1995.  You were born in Sudan, and I accept that your childhood was particularly traumatic, in view of the tribal wars that were then occurring.  You were taken by your mother to Uganda at the age of six, where you initially resided with five of your six siblings in a refugee camp.

20Your education was substantially curtailed and eventually, following the death of your mother, you found yourself orphaned and you and your siblings were assisted by an older brother to come to Australia.  On arrival in Australia you settled with your siblings in the Shepparton region, and attended primary school for two years.  You experienced difficulties at school and required the support of a teacher's aide, prior to leaving school during Year 10.

21At around that time you were convicted of a serious sexual offence as a juvenile and detained in a youth justice centre.  Following your release, you obtained work at the SPC factory in Shepparton until the seasonal work concluded, and you found yourself unemployed.  You had at that stage met and commenced a relationship with your present girlfriend and had moved to Melbourne in 2014 to live with her.  Sadly, you had become involved in illicit drugs and continued to be involved in criminal behaviour.

22You have admitted an extensive list of prior convictions contained in the criminal record, spanning some 12 pages, first recording a conviction in the Melbourne Children's Court on 5 March 2012.  You have relevant prior convictions for violence, drug offences, dishonesty and weapons offences in addition to a number of driving and traffic offences.  You are not an Australian citizen and reside in Australia in accordance with the terms of a permanent residency visa.

23Your long-term residency in this country was a matter to which I was directed at some length by your counsel during the plea hearing.  At the time of your offending you were subject to two community corrections orders which had been imposed by the Broadmeadows Magistrate's Court, on 24 October 2017 and the Melbourne Magistrates' Court on 28 September 2017.

24By way of sentencing considerations, Mr Sturges, who appeared on your behalf during the plea hearing, submitted the following material:

·     A reference from your girlfriend, Ms Alanea Page dated 20 February 2019 (Exhibit 1)

·     A Prisoner Education Summary Report dated 20 February 2019. (Exhibit 2);

·     A Forensicare psychological report dated 14 June 2017 which was addressed to Melbourne Magistrates' Court.  (Exhibit 3);

·     A report from Dale Duran and David Drysdale, who are outreach workers in the Youth Support and Advocacy Service in Sunshine.  That report was dated 31 August 2017.  (Exhibit 4);

·     A report from Victorian Forensic and Clinical Consulting, Ms Pamela Matthews, psychologist, dated 18 February 2019.  (Exhibit 5) 

25Mr Sturges also referred me to the sentencing remarks made in respect of the co-offenders in the armed robbery, Gary Scown[4] and Majur Magok.[5]  Mr Scown was aged 29 and had relevant prior offending; he had pleaded guilty at an early stage and the sentencing judge accepted that he was remorseful.  He had maintained that he was unaware that you were carrying a weapon, "until he produced it during the robbery".[6]

[4]      His Honour Judge M.P. Bourke, 9 August 2018 (unreported)

[5] His Honour Judge M.P. Bourke, 17 August 2018 ([2018] VCC 1296)

[6]      His Honour Judge M.P. Bourke, 9 August 2018 (unreported) at p 1

26Mr Scown was sentenced on the basis that his decision to continue with the plan to rob the store, once he became aware of the imitation firearm produced by you, in the judge's words, "Did not much reduce his criminality".  He was sentenced to a term of imprisonment of three and a half years, with a minimum term of two years before being eligible for parole.

27Your co-offender Magok was aged 18 years at the time of the offending and also maintained no knowledge that you were in possession of a handgun or an imitation firearm until it was produced inside the IGA store.  The court again stated that his decision to continue in that knowledge, to embrace and fulfil the plan to rob the store, "Did not much reduce his criminality".  The court, however, took into account the significant prior history involving a sentence to youth justice detention for offences including robbery, attempted robbery, theft, and array.

28Mr Magok had apparently been using cannabis and amphetamines shortly prior to the armed robbery and was described as having a borderline IQ.  His youth was clearly a factor involved in the judge's sentencing decision, and he was sentenced to 12 months' imprisonment together with a two-year community corrections order.

29In taking into account the specific sentencing considerations in your case, I have set out the maximum sentences which the legislation prescribes for the offences to which you have pleaded guilty:

·     Armed robbery, 25 years' imprisonment. 

·     Robbery, 15 years' imprisonment.  

·     Possess a drug of dependence for each of two charges,
one-year imprisonment, if it is for personal use.  

·     Intentionally damage property, ten years' imprisonment.  

·     Theft, ten years' imprisonment.  

·     Handle stolen goods, 15 years' imprisonment.

30The summary charges:

·     Each of the two counts of driving whilst disqualified, two years' imprisonment. 

·     Careless driving does not involve a custodial sentence.  The maximum penalty is 12 penalty units for a first offence. 

·     Possess a controlled weapon without excuse, one-year imprisonment.

·     Enter a private place without authority, six months' imprisonment.

31I must take into account the principle of parity in relation to the offence of armed robbery, which I regard as the most serious offence to which you have pleaded guilty.  Mr Magok was 18 years at the date of his offending, and this, together with his low IQ, drug use prior to the time of the armed robbery, and early acceptance of his role in the offending, distinguishes his involvement significantly from your own.

32Mr Scown, although older than you, and having a similar criminal history, was clearly not the person holding the imitation firearm, nor was he the first person into the IGA store.  You are the first one to leap to the counter.  In my view your role in this offending was considerably greater than that of Mr Scown and this must be reflected in the sentence that I impose on you.

33I accept that you have pleaded guilty to the armed robbery offence, the robbery offence, and the other offending, although I do not accept that there is significant evidence to show remorse or even insight into your offending.

34Having discussed various psychological conditions, Ms Matthews, whose report was tendered by your counsel, regards you as meeting the diagnostic criteria for post-traumatic stress disorder.

35She refers to the extreme violence and loss of family members experienced during your formative years and states,

"… many of the behaviour of concern evident in his offending such as possessing weapons, preying on others, violence towards others,
antisocial and violent ideation, and the emotional indifference with which these behaviours are carried out, are in the writer's views intimately linked to his childhood exposure to similar behaviours and form part of his

[7]      Exhibit 5, p 6

Post Trauma symptomology in that these behaviours are largely acted out without thought or insight".[7]

36Ms Matthews regards you at a high risk of reoffending in a similar manner, while your mental health issues remain unaddressed.  On a more positive note both the recent reference from your girlfriend, Ms Page, and the Prisoner Education Summary Report, coupled with your relative youth and some support from your family, are relevant in enabling me to conclude that there are at least some prospects favourable for your rehabilitation in the future.

37The robbery committed on 23 November 2017 is a further matter which requires consideration in view of the circumstances involving you befriending your victim, and later threatening violence by yourself and another in the commission of this crime.  Although there is no victim impact statement in this case, or indeed in your plea in relation to the armed robbery, crimes of this type carrying significant maximum penalties must involve a considerable degree of fear and apprehension on behalf of victims in virtually every case.

38I have read the sentencing remarks in relation to your co-offenders in the armed robbery and references are made in those sentencing remarks to victim impact statements that were noted by the sentencing judge.  These are consistent with the conclusions I have reached about the effects of your crime.  The remaining offences need not be discussed individually, although I do not accept “crime spree” as apt to describe your behaviour between late 2017 and early 2018.

39Your repeated offending is perhaps not unexpected, given your use of illicit substances and the matters relevant to your mental state, to which I have previously referred.  Your counsel raised matters concerning your residency status in the course of your plea, urging me to impose a combination sentence, rather than a head sentence and a minimum term.  The Crown oppose such a disposition.

40I was referred in particular to a recent decision of Loftus v The Queen[8] in relation to consideration of the operation of the Migration Act in circumstances where a sentence of 12 months' imprisonment gave rise to the automatic cancellation of a visa under s.501(3A) of the Migration Act 1958 (Cth). I accept that the potential for an offender to be deported at the completion of a sentence of imprisonment has relevance as described in Loftus' case in the following terms.

“First, the prospect of deportation renders the imprisonment more onerous because the prisoner will face the prospect of deportation.  This, in turn, may render the incarceration more difficult.  Secondly, the deportation, should it occur, would constitute an additional punishment because it destroys the opportunity to settle permanently in this country.”[9] 

[8] [2019] VSCA 24

[9] Ibid at [79]

41Nevertheless, the Court of Appeal reinforced the need for such considerations not to control or dictate the sentencing outcomes, stating:

"It would be an error for the sentencing judge to impose a sentence, that would otherwise not be appropriate, for the purpose of avoiding the operation of the Migration Act".[10]

[10] Ibid at [81]

42I should also state while there was some argument raised initially concerning the application of s.5(2)(h) of the Sentencing Act 1991, it was ultimately agreed between counsel that given the date to which the legislation was assented to, it was not applicable to the sentencing disposition in your case.

43In arriving at a sentencing disposition, I consider the nature and gravity of your offending, particularly in relation to the armed robbery, requires the sentencing guidelines of just punishment, specific and general deterrence, denunciation of your conduct, and community protection as carrying considerable weight in the sentence I intend to impose on you.  Frankly, I am not satisfied that the nature of your offending is such that I could reasonably impose a combination sentence upon you.

44Nevertheless, your plea of guilty, the circumstances of your early life, and the positive comments made by Ms Page, together with the family support and the steps you have taken since incarceration to participate in educational programs, must to some extent moderate the severity of a sentence which I regard as just.  I therefore propose to sentence you as follows.

45Stand up please, Mr Dhal.  On the charge of armed robbery, you will be convicted and sentenced to four years' imprisonment.  This will be the base sentence. 

46On the charge of robbery, you will be convicted and sentenced to imprisonment for one year and six months.  I direct that nine months of that sentence be cumulated upon the base sentence. 

47On each of the two charges of possessing a drug of dependence, you will be convicted and sentenced to three months' imprisonment on each count.  One month of each sentence to be served cumulatively upon the base sentence.

48On the charge of intentionally damaging property, you will be convicted and sentenced to six months' imprisonment.  I direct that two months of that sentence be served cumulatively on the base sentence. 

49On the charge of theft, you will be convicted and sentenced to six months' imprisonment.  I direct two months of that sentence be served cumulatively on the base sentence. 

50On the charge of handling stolen goods, you will be convicted and sentenced to six months' imprisonment.  I direct that two months of that sentence be served cumulatively on the base sentence.

51On the summary charge of possessing a controlled weapon without excuse, you will be convicted and sentenced to two months' imprisonment.  I direct that one month of that sentence be served cumulatively with the base sentence. 

52On the summary charge of entering a private place without authority, you will be convicted and sentenced to two months' imprisonment.  I direct that one month of that sentence be served cumulatively on the base sentence.

53In relation to the two summary charges of driving whilst disqualified you will be, in respect of each sentenced to two months' imprisonment.  In each case, I direct that one month be served cumulatively with a base sentence. 

54In relation to the summary charge of careless driving of a motor vehicle, you will be convicted and fined $1000.

55The total effective sentence I impose on you is five years and nine months.  You are to serve a minimum term of three years and six months, before being eligible for parole.  I make a declaration as to pre-sentence detention, which I have calculated at 236 days, not including today.

56MS KARAMICOV:  That is accurate.  Yes, Your Honour.

57HIS HONOUR:  Yes.

58MS MILDENHALL:  Yes, Your Honour.

59HIS HONOUR: Thank you. But for your plea of guilty and for the purposes of s.6AAA of the Sentencing Act 1991, the sentence I would have imposed would have been a total effective sentence of seven years imprisonment, with a minimum of four years and nine months, before you would be eligible for parole.

60I propose to make a disposal order in accordance with s.78(1) of the Confiscation Act and I make that order specifying that the items in the schedule attached to the disposal order dated 11 January 2019 be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date, or the conclusion of any appeal proceedings, where it may be tested and/or analysed and then destroyed.

61I propose to make an order pursuant to s.464ZF of the Crimes Act 1958, and that will require you, Mr Dhal, to undergo a forensic procedure for the taking of a scraping from the mouth, and/or blood sample for the placement on the database. I must inform you that if at the time of request, you do not consent to the taking of such sample under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and the police may use reasonable force to obtain that sample.

62Ms Mildenhall, is there any reason why I should not ask Mr Dhal to be removed?

63MS MILDENHALL:  No, Your Honour.

64HIS HONOUR:  Thank you.

65MS KARAMICOV:  As the court pleases.

66HIS HONOUR:  Thank you, Ms Karamicov.  Nothing further, all right.

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