Director of Public Prosecutions v Dieng (a pseudonym)

[2025] VCC 343

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Not Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARNO DIENG (A PSEUDONYM)

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JUDGE:	His Honour Judge Cahill
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2025; 18 March 2025
DATE OF SENTENCE:	27 March 2025
CASE MAY BE CITED AS:	DPP v Dieng (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 343

REASONS FOR SENTENCE
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Subject:Armed Robbery

Catchwords:              Guilty plea –Remorse – Background of disadvantage – impaired mental functioning

Legislation Cited:      Sentencing Act 1991 (Vic) s 5(3); s 5(1)(a).

Cases Cited:R v Williscroft (1975) VR 292; Bugmy v The Queen (2013) 203 ALR 192; Azzopardi [2011] VSCA 372; R v Orelikowski (Uunreported, Victoria Supreme Court of Appeal, 16 October 1997); Mark John Swingler [2001] VSCA 26; DPP v Hermann [2021] VSCA 160; Wong v The Queen (2001) 207 CLR 587

Sentence:                  Total Effective Sentence of two years and ten months imprisonment with a non-parole period of one year and ten months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Pickering	Office of Public Prosecutions
For the Accused	Mr D Thomas	Victoria Legal Aid

HIS HONOUR:

1Arno Dieng,[1] you have pleaded guilty to:

(a)   one charge of armed robbery;[2] and

(b)   two charges of attempted armed robbery. [3]

[1] A pseudonym.

[2] The maximum penalty is 25 years imprisonment.

[3] maximum penalty is 20 years imprisonment

2Your offending occurred on 22 January 2023 at Carlton South.

Circumstances of Offending [4]

[4] The circumstances of your offending are set out in the Summary of Prosecution Opening dated 31 January 2025 (Exhibit A). They are agreed facts.

3Around 9 pm, while you were walking along Swanson Street Carlton, near the Queensbury hotel, you grabbed Ying Rui Zhang, who was walking ahead of you, from behind. You produced a knife and threatened to stab Zhang if he did not give you money.

4He did not have any money and handed over his Apple iPhone. Inside the phone case was the access card to his apartment. You walked off with his phone (charge one – armed robbery).

5About five minutes later, you approached Ziyue Zhang who was sitting on a park bench in Lincoln Square with his wife. You grabbed his jumper near his neck and produced a silver bladed knife. You demanded money from him. When he said he didn’t have any you demanded he show you his pockets to prove it. His wife spoke to you. When you hesitated, Zhang grabbed your hand, which was holding the knife. You tried to bite him.

6With a passerby’s help, they ran away. They found a security guard at a nearby apartment and called 000. You ran along Bouverie Street and then Grattan Street towards Melbourne University (charge two – attempted armed robbery).

7At the University, you approached Kevin Law as he was walking into the Kevin Meyer building. You brandished a knife in front of his face and demanded money from him. Law opened his backpack. You said you needed money for “crack". Law said he didn’t have any money. When two of his friends approached, you asked whether they had money. They said they didn’t have any.

8Law told you he would get cash from a nearby ATM for you. The two of you walked towards the Royal Melbourne Hospital to go to an ATM. As Law went into the building, you said, “you lied to me, you’re not getting any money" and you walked off along Royal Parade. Law’s friends called 000.

9Ying Rui Zhang was able to track the location of his mobile phone. He informed police.

10Around 10:16 PM, police arrested you while you were walking along Lygon Street. You had Zhang’s apartment access card and an 8 cm silver bladed knife. Police found Zhang’s phone about 10 metres from you.

11You refused to give your name and address. You were taken to Melbourne West police station and remanded in custody.

12Kevin Law made a victim impact statement.

13In the moment you held the knife to his chest he thought he would die. He felt scared and helpless. Afterwards, he worried you would return to Carlton to hurt him. He needed police reassurance you had been remanded in custody. His PhD studies were disrupted, and he saw a counsellor to help manage his fear. [5]

[5] Victim Impact Statement of Kevin Law (Exhibit B).

Objective seriousness

14Because it invariably involves a frightening experience for the victim and threatens the wider community sense of safety, armed robbery is a serious offence.[6]

[6] R v Williscroft (1975) VR 292, 301.

15Your victims were soft targets. The first was walking alone, the second sitting with his wife and the third also was alone. You confronted them, at night, in public places, the street, a park and at the University, where they are entitled to feel safe.

16You threatened each of them with a knife and demanded money.

17You took Ying-Rue Zhang’s phone and walked off.

18Ziyue Zhang was able to get away from you.

19You walked away from Kevin Law.

20No doubt it was a frightening ordeal for all of them.

21Your crimes were spontaneous.

22You acted alone. No one was physically hurt.

23Overall, I assess the objective seriousness of your crime to fall below mid-range for a crime of the type.

Criminal Record

24You have admitted a criminal record of summary violence, dishonesty and weapons convictions.

25In April 2019 and August 2019, you were released on community corrections orders for street crimes including assaulting an emergency worker on duty, unlawful assault, handling stolen goods and possessing a controlled weapon.

26You have also served short sentences of imprisonment.

27On 1 September 2020, you were sentenced to six months imprisonment for robbery and attempted robbery.  

28On 29 January 2021, you were sentenced to 173 days imprisonment, with a 12 month community correction order, for attempted robbery, unlawful assault and burglary and theft

29On 13 September 2022, you were sentenced to 7 days imprisonment for shop stealing, being drunk and breaching your bail.

Chronology of proceedings

30You have a history of psychotic illness. [7]

[7] Dr Khan report prepared on 17 January 2025 (Exhibit C).

31Between May 2020 and September 2022, you had multiple contacts with mental health professionals while in custody and in the community. [8]

[8] Report of Dr Pratheek Sharma dated 28 March 2024 (Exhibit F).

32On 16 January 2023, six days before your offending, you were treated in ICU for alcohol intoxication. Hospital records recorded that you “presented with paranoid behaviour asking for scissors, wanting to cut [your] eyelashes and thinking that the IV [intravenous] lines [were] poisoning [you]” and also stated that “[you] wanted to jump in front of a car”. [9]

[9] ibid, [30].

33Following your arrest on 22 January 2023 and remand in custody, you spent nearly all your time in your cell, mostly in the dark, you refused to engage with psychiatric nurses and a lawyer and you missed all your court hearings. [10]

[10] ibid, [42].

34Dr Sharma, a Forensicare psychiatry registrar, tried to interview you on 2 November 2023. You refused to speak to him. He reviewed your records and concluded “there is a reasonable likelihood that Mr Dieng has a chronic psychotic disorder, for example schizophrenia, and that he has remained symptomatic and untreated during the current custodial admission”. [11]

[11] ibid, [56].

35On 6 December 2023, Judicial Registrar Wilson reserved the question of your fitness to stand trial for investigation.

36On 1 February 2024, you refused to see another Forensicare psychiatrist, Dr James Belshaw, when he attempted to interview you.

37Because you were eliciting psychotic symptoms and refusing to accept treatment, a prison psychiatrist placed you on a secure treatment order on 19 February 2024 to mandate your transfer to Thomas Embling Hospital for compulsory mental health treatment. [12]

[12] Report of Dr James Belshaw dated 28 March 2024, [19] (Exhibit G).

38You were admitted to Thomas Embling Hospital into the Argyle unit, which is an acute admissions unit, on 18 March 2024. [13]

[13] Report of Dr Luke Vlatko and Dr Sobia Khan dated 14 June 2024, [5]. (

39You were agitated and anxious, thought disordered and laughing inappropriately at times. Your antipsychotics (Olanzapine) were increased. [14]

[14] Ibid, [38].

40When you assaulted another patient, you were secluded for three weeks and commenced on an injectable depot antipsychotic.

41You were secluded again, twice, when you assaulted other patients. [15]

[15] Ibid, [42] and [46].

42Doctors believed your acts of impulsive violence[16] may be explained by internal psychotic symptoms.[17]

[16] In all, you were involved in 25 serious incidents, requiring seclusion at times: see report of Dr Sobia Khan dated 19 September 2024, [24] (Exhibit J).

[17] ibid [40].

43After they increased the dose of your zuclopenthixol (Depot) and your antipsychotic (olanzapine), your mental health improved significantly[18]

[18] ibid, [44] and [45].

44On 24 May 2024, Dr Vlatko and Dr Khan reviewed you. You said you were hearing “weird voices”. They concluded you were experiencing psychotic symptoms which made it difficult for you to concentrate[19] and found you were temporarily unfit to stand trial.[20]

[19] ibid, [68].

[20] ibid, [77).

45They believed with continued treatment with antipsychotic medication, in the safe hospital environment, it was likely you would regain fitness. [21]

[21] ibid, [77].

46Dr Khan tried unsuccessfully to review you on 13 September 2024. You refused to engage so she terminated the interview. [22]

[22] Report of Dr Sobia Khan dated 19 September 2024, [11] (Exhibit J).

47Your medical notes indicated you were experiencing auditory hallucinations, delusional beliefs, disorganised thinking and behaviours leading to negative interpersonal dynamics between others and you. In Dr Khan’s opinion, you had an enduring mental illness, paranoid schizophrenia, with evidence of treatment resistance. [23]

[23] ibid, [34].

48She noted there was some improvement in your level of functioning and the severity of your symptoms with treatment. She recommended you continue to receive treatment in Hospital, with your clozapine,[24] which you had commenced on 1 June 2024. [25]

[24] ibid, [36].

[25] Report of Dr Sobia Khan dated 17 January 2025, [13] (Exhibit C).

49Dr Khan was able to review you on 13 January 2025.[26]

[26] ibid, [21].

50You told her you were no longer hearing voices or feeling the presence of “two weird individuals” around you. Your mood was bright, and you were relaxed and happy with your progress on the unit. You accepted you have a mental illness and said were willing to take medication and willing to stay abstinent from alcohol and drugs. [27]

[27] ibid, [23], [27] and [28].

51Your mother and sister were visiting you regularly and you were speaking with your mother over the phone. [28]

[28] ibid, [24].

52In Dr Khan’s opinion, your psychotic illness had responded well to your treatment regime. She noted “Additionally, being nursed in a 24-hour supportive environment with access to nursing, social, psychological and occupational therapy supports have aided in his recovery. His symptoms have reduced markedly with only occasional observations of self-limiting behaviours. He is looking at his future and is making plans for his release, planning for accommodation and purchase of a car. He has reported improved family interactions”. [29]

[29] ibid, [50].

53She found you fit to stand trial. [30]

[30] ibid, [51].

54Shortly after, you indicated you would plead guilty to the charges on the indictment before the court. [31]

[31] In August 2023, because you had refused to appear in any procedural hearings, the Director of Public Prosecutions filed in indictment directly in this court.

55On 10 February 2025 you were arraigned and remanded in custody.

56Your time in prison has been difficult.

57On 3 April 2023, you were placed on long-term management (LTM) after you had assaulted a number of staff members. This meant long periods of isolation for you and reduced access to programs. [32]

[32] Letter of Ms Rosheen Nikakis (Manager, Projects and Workforce Development, Department of Justice and Community Safety) dated 26 March 2025 (Exhibit 6).

58There were other incidents involving other prisoners. [33]

[33] Ibid.

59I accept your behavioural issues occurred when were acutely unwell. [34]

[34] Letter of Ian Berrisford dated 18 March 2025 (Exhibit E); Letter of Ian Berrisford dated 26 March 2025 (Exhibit 5).

60Your mental health improved in the therapeutic hospital environment of Thomas Embling Hospital.

61On 10 March 2025, you were returned to prison at Ravenhall’s Erskine unit.

62You have been compliant with the medications and have not presented with any behavioural or physical issues. Your violence rating has been lowered, and you have been approved to progress from LTM onto a behavioural management plan (BMP), which will allow a gradual reduction in restrictions. [35]

[35] Letter of Ms Nikakis dated 26 March 2025 (Exhibit 6).

63When you are released from prison, you will attend mid-west AMHS Outer Community Team (Melton) for voluntary follow-up. MHARS will assist you with an appointment. [36] And you will also live with your mother, who will have you at home.

[36] Letter of Ian Berrisford dated 18 March 2025 (Exhibit E).

Personal circumstances

64You were born in June 1999 in Khartoum, Sudan.

65You are the middle born of seven siblings. You report you witnessed war crimes, including the deaths of family members, during your childhood. [37]

[37] There is some dispute as to whether you did witness violence in Sudan. Your mother denies it: see Report of Dr Luke Vlatko and Dr Sobia Khan dated 14 June 2024 (Exhibit H), at [13] and [18].

66Your family came to Australia in 2004 when you were five years old.

67Your family lived at Carolin Springs. You went to local schools, until year 12, and worked at Hungry Jacks while at school. Since, your contact with you family has been inconsistent and you have been unemployed. [38]

[38] Report of James Belshaw dated 28 March 2024 (Exhibit H), [16].

68In 2019, you suffered facial injuries when somebody assaulted you with a baseball bat.[39] You have hearing loss in your right ear. [40]

[39] ibid, [20].

[40] ibid, [19].

69In 2022, you lived at Frontyard youth services for a time. [41]

[41] ibid, [14].

70When you offended you were homeless. [42] You were also drinking heavily and abusing methamphetamine.[43]

[42] ibid, [17].

[43] Report of Dr Sobia Khan dated 17 January 2025 (Exhibit C), [17].

71You have been in enforced drug and alcohol remission since. You have expressed a wish to stay abstinent. [44]

[44] ibid, [28].

72A psychologist, Gina Cidoni assessed you on 16 February 2025 and 11 March 2025.[45]

[45] Psychological report of Gina Cidoni dated 17 March 2025 (Exhibit 2)..

73A neuropsychologist, Jane Lofthouse, saw you on 7 March 2025. When she tried to administer psychometric tests you struggled to understand the instructions and could not complete any testing.[46]

[46] ibid, p 7.

74Ms Cidoni’s report is comprehensive. I accept her assessment and opinions, which were unchallenged.

75In her opinion, you have borderline verbal comprehension and low average working memory. [47]

[47] ibid, [104].

76Using the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM – 5), she assessed you to have schizophrenic spectrum disorder, post-traumatic stress disorder and methamphetamine and alcohol use disorders.

77There are some odd features to your offending. For example, when Mr Law went into the Royal Melbourne Hospital to go to an ATM to get your money, you said, contrary to what he was doing, “you lied to me, you’re not getting any money” and you walked off before he got to the ATM. [48]

[48] Summary of prosecution opening for plea (Exhibit A), [23] and [24].

78I accept when you offended you were experiencing schizophrenic symptoms, compounded by acute intoxication with methamphetamine and alcohol,[49] which will have substantially impaired your capacity to think clearly and make rational choices.

[49] Ibid, [111] and [112].

79Accordingly, I accept there is a nexus between your psychiatric illness and your offending, which engages Verdins principles to moderate your moral culpability and to reduce the need for deterrence.

80I also accept, because of your mental illness, prison has been “profoundly burdensome”[50] and, without proper therapy, is likely making your illness worse. [51]

[50] Ibid, [117]-[119].

[51] Ibid, [119].

81Your background is also relevant consideration.

82Notwithstanding your mother’s contrary report to a Forensicare psychiatry registrar,[52] I accept it is likely in your early childhood years, living in war-torn Sudan, you were exposed to war trauma, displacement and violence. As the High Court said in Bugmy,[53] the effects of childhood deprivation do not diminish with the passage of time and must be given proper weight in sentencing. It reduces your moral culpability to a moderate degree.

[52] Report of Dr Luke Vlatko and Dr Sobia Khan dated 14 June 2024, [13] and [18].

[53] Bugmy v The Queen (2013) 203 ALR 192, at [44].

83Your guilty plea and remorse are also relevant considerations.

84I accept soon after you were well enough to instruct your lawyers, you indicated your guilty plea. It has spared your victims the ordeal of giving evidence and has high utilitarian value.

85During her fitness assessment, Dr Khan asked you about the type and seriousness of the charges against you. You said the charges were serious because you were holding a knife. You said you were high on drugs, not yourself and did not mean to commit the offences. You said you wanted to rob your victims of their money to obtain drugs to get high again. [54]

[54] Report of Dr Sobia Khan dated 17 January 2025 (Exhibit C). [32].

86You also wrote a letter of apology. [55]

[55] Letter of Mr [Dieng] dated 6 November 2024 (Exhibit 4).

87In it, you wrote, “I have spent time thinking about my crimes that I have committed, and I am deeply sorry. I have learnt my lesson, and I will stay out of trouble.” [56]

[56] Ibid.

88I accept your voluntary disclosure to Dr Khan, your apology and your guilty plea show you are remorseful.

89You are a relatively young offender.

90Courts recognise the potential for young offenders to be rehabilitated. The community has an interest in enhancing the prospects of your rehabilitation.[57]

[57] Azzopardi [2011] VSCA 372.

91Unfortunately, your poor mental health, in combination with substance abuse, pose risk factors for your reoffending. [58]

[58] Psychological report of Gina Cidoni dated 17 March 2025 (Exhibit 2), at [116].

92While I must be guarded about your prospects of rehabilitation, I have some optimism, with proper treatment of your mental illness, you can change (as you wrote in your letter of apology) and make a better life for yourself. However, the change must come from within you.

Conclusion

93The crimes you committed are very serious. They “instil terror into the victims”. [59]

[59] R v Orelikowski, (Unreported, Victoria Supreme Court of Appeal, 16 October 1997) at p 4.

94As Buchanan JA said, in Mark John Swingler,[60] “The crime of armed robbery perpetrated against defenceless, isolated persons late at night is serious and calls for condign punishment in order to deter others”.

[60] [2001] VSCA 26, at [11].

95I must have regard to the impact of your crimes on your victims and the seriousness of your offending. Central sentencing purposes include general deterrence, denunciation and community protection. However, because your offending, in part, reflects the operation of factors which are beyond your control your moral culpability is to be moderated. [61]

[61] DPP v Hermann [2021] VSCA 160, [14] and [15].

96Your guilty plea, your remorse, your childhood trauma, your poor mental health and your relative youth are all factors which moderate the sentence I shall impose.

97I must impose punishment which is “just in all of the circumstances”[62] and deliver “individualised justice”. [63]

[62] Sentencing Act 1991 (Vic), s 5(1)(a).

[63] Wong v The Queen (2001) 207 CLR 584, [77].

98To enable me to consider sentencing options, which would include imprisonment, with or without a community corrections order, I had you assessed for a community correction order. [64] You have been found unsuitable.

[64] Community correction order assessment outcome report dated 21 March 2023 (Exhibit 7).

99You have been subject to seven previous community-based orders. You offended during the operational period of all of them and completed none.

100Notwithstanding the unfavourable assessment, the decision whether to impose a combination sentence of imprisonment and a CCO is mine.

101I am mindful I must impose a sentence that is no more severe than that which is necessary to achieve the purposes of sentencing.[65]

[65] Sentencing Act 1991 (Vic) s 5(3).

102Considering your failure to complete seven previous orders, I have little confidence you could successfully complete a another.

103I have concluded your rehabilitation can be best addressed by allowing you the opportunity for supervised parole release into the community.

104Overall, I am satisfied only a sentence of imprisonment, with a non-parole period fixed, and achieve sentencing objectives in your case.

105In reaching that view, I will impose a sentence which will not punish you more than the composite sentence, of imprisonment and a CCO, I would have otherwise considered.

106Mr Dieng, by the sentence I impose I must denounce your conduct, punish you, and deter you, and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

107Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:

(a)   on charge one, armed robbery, you are sentenced to two years imprisonment. This is your base sentence.

(b)   on charge two, attempted armed robbery, you are sentenced to one year and seven months imprisonment.

(c)   on charge three, attempted armed robbery, you are sentenced to one year and seven months imprisonment.  

108I direct five months of the sentence I have imposed on charge two and five months of the sentence I have imposed on charge three be served cumulatively upon your base sentence and each other.

109Your total effective sentence is two years and ten months imprisonment.

110I fix a minimum period of one year and ten months before you are eligible for parole.

111I declare you have served 795 days of your sentence by way of pre-sentence detention.

112As you have already served your minimum term, I urge you to make your application for parole as soon as possible.

113While there is some artificiality to the process, I declare, but for your plea of guilty, I would have sentenced you to four years imprisonment and imposed a minimum non-parole period of four years imprisonment with a non-parole period of two years and six months imprisonment.