Director of Public Prosecutions v Diing
[2020] VCC 1003
•7 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
| AT MELBOURNE GENERAL LIST |
CR 19-02238
Indictment No. K12150813
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUOT DIING |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 8 May 2020, 2 June 2020 | |
DATE OF SENTENCE: | 7 July 2020 | |
CASE MAY BE CITED AS: | DPP v Diing | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1003 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of armed robbery – one charge of intentionally destroying property – one charge of being a prohibited person carrying a firearm – pleas of guilty
Legislation Cited: Crimes Act 1958, s.75A, s.197(1); Firearms Act 1996, s.5
Cases Cited:Phillips v R [2012] VSCA 140; Bugmy v R (2013) 249 CLR 571; Marrah v R [2014] VSCA 119; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Guden v R (2010) 28 VR 288; Schneider v R [2016] VSCA 76; R v Brown (aka Davis) [2020] VSCA 60; R v Sazimanoska [2020] VSCA 66; R v Nguyen [2020] VSCA 36
Sentence: Total effective sentence is four years ten months' imprisonment with a non-parole period of three years and four months. 326 days of pre-sentence detention declared as time already served under this sentence; 6AAA declaration – six years, six months' imprisonment with a non-parole period of four years.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Hogan | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M. Sturges | Stary Law |
HIS HONOUR:
1 Duot Diing, on 8 May 2020 you pleaded guilty to the following offences:
Charge 1
That you, at St Albans in Victoria on 16 August 2019, robbed Ms Tamara Harrison of certain property, namely $136.10 cash, a packet of cigarettes and a Samsung mobile phone, and at the time had with you a firearm.
The offence of armed robbery is contrary to s.75A of the Crimes Act 1958 and carries a minimum penalty of 25 years’ imprisonment.
Charge 2
That you, at St Albans in Victoria on 16 August 2019, intentionally and without lawful excuse, damaged a computer monitor belonging to Coles Express, St Albans.
The offence of intentionally destroying property is contrary to s.197(1) of the Crimes Act 1958 and carries with it a maximum penalty of 10 years’ imprisonment.
Charge 3
That you, at St Albans in Victoria on 16 August 2019, being a prohibited person, carried a firearm.
The offence of being a prohibited person possessing a firearm is contrary to s.5 of the Firearms Act 1996 and carries a maximum penalty of 10 years’ imprisonment.
2 When you were arraigned on 8 May 2020, you were remanded in prison and the plea hearing was to proceed through a video link. Some confusion arose as to whether you accepted your criminal record when that was put to you. In discussion between your counsel and counsel for the prosecution (who was on a computer link), it was agreed that the matter would proceed on the basis that the plea would be adjourned for a discussion between you and your counsel regarding your prior convictions. The matter was subsequently adjourned to 2 June 2020, at which time you accepted your criminal record. Apparently, the confusion came about when the word “conviction” was used.
The circumstances of the offending
3 During the plea hearing on 8 May 2020, counsel for the prosecution tendered a document headed 'Summary of Prosecution Opening' dated 7 April 2020 (Exhibit 1). I was informed by your counsel that you agreed with the contents of that document. In particular I note the following:
·You were born on 25 February 1988 and are now 32 years old. You were 30 years old at the time of the offending.
·On 16 August 2019, at 1.35 am, you attended a Coles Express at 267 Main Road West, St Albans. At that time, the victim, Ms Tamara Harrison, was working alone and there was another customer in the store.
·The front door was locked and Ms Harrison unlocked it and allowed you to enter the store, after which you waited in the store until another customer left, after which you approached the counter where Ms Harrison was working.
·You requested a packet of cigarettes and Ms Harrison obtained the cigarettes and scanned them, after which you then removed your black backpack from your back and placed it on the counter area, which caused a heavy thud. You then opened the backpack and Ms Harrison saw a blue pipe object protruding from the backpack, which she thought was a bar with which you were going to bash her.
·You removed the blue pipe object from your backpack and held it in both hands, which caused it to discharge a powerful shot into the rear-counter area, just missing Ms Harrison.
·Ms Harrison notes that it was a very loud noise which affected both her ears, causing everything to go quiet, and there was a bang. She then heard you ask for all the money that was available.
·Ms Harrison was then in fear of her safety and she pressed the panic button on her necklace and walked to the rear staff toilet area. She intended calling 000 to alert police, but then, sorry, though she had left her phone on the counter, causing her to return to the counter to retrieve her mobile phone and then quickly return to the staff toilet area.
·She locked herself in there and called 000 while you were on the outside of the staff service area and behaving in a violent and an aggressive manner. You reached under the wire security barrier from the far side of the counter and attempted to open the cash register but was not successful. You then forced yourself under the security wire barrier and into the staff service area, where you went through the register and cupboards, removing several packets of cigarettes from the cupboards and put them into your backpack.
·You then went back to the locked staff toilet door and banged on it, demanding that Ms Harrison come out and give you some money. You were told that the police were on their way, but you continued to threaten Ms Harrison before you returned to the front counter area.
·You then returned to the front entrance door, where you observed two men. You then returned to the rear counter area, again threatening Ms Harrison, and ultimately forced open the door to the staff toilet area and ripped her phone from her hands. Mrs Harrison’s key ring was attached to her phone.
·She thought you were going to hit her, as you raised your hands at her. She requested her phone back but you said “no” and then said, “Open the till; give me all money”.
·You ushered Ms Harrison back to the till and told her to hurry up. You opened the till and you said, 'Give me the money'.
·Ms Harrison lifted the till and gave it to you, then you removed all cash from the till and placed it in your backpack.
·You then asked her to open the back door, which she did, and again she asked you for her phone and car keys and you said no, after which you exited the store from the staff-only rear entrance.
·Police attended the scene and obtained Ms Harrison’s mobile phone number and ultimately identified where the phone had been taken: 26 Pennell Avenue in St Albans, where you resided.
·When police attended the Coles Express where your offending took place, it was also observed that one of the computers at the store was damaged and had a broken screen.
·On 16 August 2019 at 9.34 am, you were arrested by the Special Operations Group members and transported to Melbourne West police complex, where you were interviewed in relation to the offending. You remained mute during the interview.
·A search warrant was executed at the premises of Flat 1/24 Pennell Avenue in St Albans and there was found, among other things, 16 packets of cigarettes, $135.10 in cash, a blue-coloured metal pipe with a spent cartridge inside and a Samsung black mobile phone with a key ring attachment.
4 You were remanded in custody on 16 August 2019 and, as at the date of the plea hearing on 8 May 2020, you had spent 266 days in custody.
5 You expressed your desire to plead guilty to the subject offending on 8 November 2019, which was accepted by counsel acting for the prosecution to be an early plea of guilty.
6 Counsel for the prosecution also sought orders for the disposal and forfeiture of the various items seized by the police during the execution of the warrant. I was informed by your counsel that such orders were not opposed.
7 The incident involving your offending was captured on CCTV footage and counsel for the prosecution tendered a copy of such CCTV footage (Exhibit 2). I have viewed such footage.
Your criminal record
8 In your criminal record dated 18 May 2020 (Exhibit 4), I note the following:
(a)on 23 July 2010 at the Dandenong Magistrates’ Court you were convicted of one charge of having a certain prescribed concentration of alcohol within three hours of driving a vehicle, two charges of criminal damage, one charge of unlicensed driving and one charge of failing to answer bail, and was sentenced to a community based order for 12 months with a variety of conditions;
(b)on 31 August 2012 at the Dandenong Magistrates’ Court you were convicted of one charge of recklessly causing injury, one charge of unlawful assault, two charges of resisting police and two charges of using threatening words in a public place, and was sentenced to a community based order for a further period of six months with a variety of conditions.
You were also convicted of failing to answer bail, drink-drive in a public place and refuse or fail to state name and address, and discharged in relation to these offences;
(c)on 31 August 2011 at the Dandenong Magistrates Court it was proven that you failed to comply with the Community-Based Order made on 23 July 2010. The order was cancelled, and you were convicted of the original offences and the matter adjourned to 28 February 2012;
(d)on 28 April 2014 at the Dandenong Magistrates’ Court you were found to have breached the community-based order made on 31 August 2011. On that date, the earlier order was confirmed.
Also on that date, you were convicted of one charge of theft, one charge of unlawful assault, one charge of contravening a family violence safety notice and one charge of failing to answer bail, and sentenced to an aggregate fine of $1,500, together with an order for compensation to be paid in the sum of $600 (in relation to the theft);
(e)on 8 May 2014 at the Melbourne Magistrates’ Court you were convicted of one charge of intentionally destroying property, one charge of resisting police, one charge of recklessly causing injury, one charge of intentionally damaging property and one charge of dealing with property suspected of being proceeds of crime. You were sentenced to 24 days’ imprisonment, reckoned as your pre-sentence detention, and the matter otherwise adjourned to 8 May 2015, with the condition that you were to attend Foundation House for assessment and review of your support needs, including grief and loss counselling, alcohol abuse and anger management;
(f)on 3 March 2016 at the Sunshine Magistrates’ Court you were charged and convicted of two charges of driving whilst authorisation suspended, three charges of using unregistered motor vehicle on a highway, one charge of having present prescribed concentration of alcohol within three hours of driving a vehicle, one charge of refusing to remain until breath test completed and one charge of exceeding the concentration of alcohol within three hours of driving a vehicle, and convicted of all offences and sentenced to a community correction order for 15 months, commencing on 3 March 2016. Such order also had the added conditions of supervision, treatment and rehabilitation for alcohol abuse and offending behaviour programs and unpaid work for 100 hours during the currency of the order. At that time, your licence was cancelled for four years and such order to be from effectively 3 March 2016.
Victim Impact Statement
9 Ms Tamara Harrison made a statutory declaration in respect of a victim impact statement on 20 September 2019. Such document was tendered (Exhibit 3).
10 In that document Ms Harrison describes how she has had a sore lower back and painful right ear. More particularly, she comments that since the offending she has been depressed, loses sleep and is scared to leave her home or complete a shift at work. She is trying to cover all her windows so no one can see inside. She also complains of being anxious all the time and in particular about not being able to work and provide for her family (being a single mother). By not being able to work she has become more stressed about paying her bills and daily living needs, and generally her loss of independence. She continues to feel lost and alone and confused and messed up with daily tasks.
Your education, employment and general background
11 Your counsel tendered the following documents which were marked:
(a)a document headed 'Submissions on behalf of the accused' (Exhibit A)
(b)report from the clinical psychologist Mr Guy Coffey, dated 7 May 2020 (Exhibit B); and
(c)sentencing snapshots in relation to armed robbery produced by the Judicial College.
12 Partly based on submissions made by your counsel and partly based on the aforementioned documents, I note the following:
·You are the eldest of three siblings who were born in what is now known as South Sudan. Your biological father left your mother in your infancy and you and your younger half-brother and sister were raised by your mother and a stepfather. Your family was of Dinka ethnicity and Christian faith. Dinka and Arabic were spoken at home.
·You have only isolated memories of your life prior to your 10th birthday. During this time, you lived in the South Sudanese town of Narus, close to the Kenyan border, and attended early primary school. You remember living with your mother, grandmother, siblings and orphaned cousins in a traditional village hut, having no running water and often feeling hungry, and only attending school intermittently. Furthermore, you recall hearing the sounds of warfare around you and it was during this time that the second Sudanese civil war was waged.
·When about eight to 10 years old, you travelled with your mother and siblings to the Kakuma refugee camp in Kenya, where you lived with your mother, siblings, cousins, and sometimes other relatives in a single‑roomed hut made of clay and wood. In particular, you informed Mr Coffey that the conditions were harsh, with water needed to be collected from a pump and a perennial lack of food causing you to constantly feel hungry. You had one set of clothes, which you wore until they were entirely worn out.
·You attended a school which taught in Swahili and English. You considered that most of the students could not concentrate because they were malnourished. A few days a week, rather than attending school, you would forage for food in the bush, sometimes finding berries and edible foliage. At that time you played soccer with some friends and kept tame pigeons for company.
·You witnessed violence in the camp which erupted due to ethnic tensions and which was conducted with machetes and sometimes resulted in death. You were intermittently bullied by other children who took your clothes or shoes.
·You attended school up to Year 7 but did not become literate in any of the languages that you spoke. That is Arabic, Dinka and Swahili.
·Although conditions were harsh, the family remained close and you describe your mother as giving it everything she could as a mother. On occasions, you and the family travelled back to Sudan to visit your grandmother, who was still living in Narus. Although you loved seeing your grandmother, there was also the chance to eat meat, which was not available at the refugee camp. Such visits were very dangerous as the town was subject to rocket attacks and you remember sheltering in holes in the ground and people being killed.
·Although not certain, you believe you were at the Kakuma refugee camp for about five to seven years. It was through the agency of a relative living in South Australia who offered to sponsor the family to Australia, that the family applied for sponsorship entry into Australia under the Refugee and Humanitarian Program. Your family arrived in Australia on 25 September 2004, when you were 16 years old, and settled in Adelaide.
·Your stepfather, who had not lived with the family for much of your childhood, remained in Sudan and ultimately died in the civil war while your family was living in the refugee camp.
·On your arrival in Adelaide, the family lived with a cousin for a few weeks and then rented a house on their own. You attended an English school for a year and acquired spoken English quickly but never learned to write more than elementary sentences and to read beyond basic texts.
·As the oldest child within the family, you could not afford to continue your education and, after a year of English classes, you decided to work. At the age of 17 you went to Mildura to pick fruit for nine months, then after a brief period back in Adelaide went to the Kimberley, where you picked rockmelons for two years while living in a caravan park. You enjoyed your time in the Kimberley as there was a camaraderie amongst the pickers, who were of various nationalities including Sudanese. During this time you worked hard, often seven days a week, and in the evening, as was the custom, you went to the “pub” and began to drink heavily but thought nothing of it because everyone else was drinking.
·When aged 19 and 20 you spent a few months in Bundaberg picking vegetables, after which you returned briefly to Adelaide and travelled to Victoria, where you lived in Noble Park and worked for three years full time in a timber factory, driving a fork-lift. You formed good relationships with your fellow employees. While working in the timber factory you did not drink every night, but on the weekend you would regularly drink until heavily intoxicated.
·When about 20 years old, you commenced a relationship with a Sudanese-Australian woman but such relationship was tumultuous. You only lasted a few months living together before breaking up, then resuming the relationship. You had three boys together, who are now aged nine, six and three years. The relationship ultimately failed partly due to ethnic differences and ongoing arguments.
·After the timber factory job, you had a number of short-term jobs until 2014 when, at the age of 25, you found full-time work at a Coles warehouse. You remained at that position - or in this position until you were remanded in custody in August 2019.
·During 2012, at a time when you were separated from the mother of your three children, you commenced a relationship with another woman, who became pregnant. Ultimately your baby daughter was placed into foster care soon after her birth, apparently due to the mother’s inability to care for her. You have not seen your daughter since she was nine months old, with you and the mother breaking up soon after her birth. Apparently, there was conflict between you and your then partner and in 2014 you breached an intervention order and were held in custody for 28 days.
·When working for Coles, you picked fruit for orders, drove a fork-lift and typically worked from 2 pm until at least 10 pm, and sometimes midnight, five to seven days a week. Apparently, you rarely missed work and were considered hardworking and reliable by your supervisors, and generally had good relations with the other employees. You earned a good income and were able to continue to financially support your mother and also send money to relatives in the Kakuma refugee camp and to Sudan.
·When working at Coles you drank considerably less alcohol. You were able to achieve this because of the long working hours and the work involved using heavy machinery requiring your full attention.
·At the beginning of 2019, you described your life as following a stable routine. You were largely content, living by yourself and working five or six days a week and having contact with your former partner, M, and her three children every few weeks. Although you did not have a lot of time for recreational pursuits, every few weeks you would go with friends from work to a restaurant or a nightclub and you met a new girlfriend, whom you saw every week or two.
·In January 2019 you learned that your 56 year-old-mother was ill and went to visit her in Australia. Sorry, I apologise, went to visit her in Adelaide. In March 2019 her condition deteriorated, and she was admitted to hospital, where she was diagnosed with a rare lung disease. You told your employer that you needed time off work in order to care for your mother. You took unpaid leave, during which time you stayed at your mother’s house and spent the days and evenings with her in hospital, helping her to communicate and also bringing her food which she found palatable and managing the many people from the Sudanese community who wished to visit her.
·During the last weeks of her illness, your mother was in pain and distressed and you informed Mr Coffey that being with her constantly was both harrowing and your obligation as the eldest child. Apparently sometimes when you left the intensive care unit you would vomit. You were with your mother when she ultimately died.
·Your mother was a senior woman in the Australian Sudanese community who often spoke at community gatherings. Her funeral attracted over 300 people, many travelling from interstate. You said that money had to be raised for the funeral, so you borrowed money from friends and relatives, and the community made donations. You told Mr Coffey that, “my mother was given a proper farewell”.
·In about June 2019 you returned to Melbourne and recommenced your work at Coles. You described yourself to Mr Coffey as 'grief stricken, shaken and disoriented by his mother’s death' and found resuming work difficult. You began working three or four days but found you were distracted and made mistakes, and on one occasion driving a pallet transporting vehicle into a pole and did not complete orders correctly. You often went home early.
·You described to Mr Coffey that your bereavement was pervading every aspect of your life and, besides going to work, you rarely left home. You reduced contact with your girlfriend, who insisted you seek medical help, and your drinking extended from weekends to every night, usually involving both beer and spirits to the point of heavy intoxication. You were eating very little and by August 2019 you weighed about 60 kilograms, more than 10 kilograms less than your normal weight. You slept poorly and dreamt of your mother, both about her dying and also the happier times in your childhood. In addition to the symptoms of grief, you were also fatigued, lacked energy and had difficulty concentrating.
·Because you were working fewer hours, your employer reduced your number of shifts, causing the dilemma that your capacity to work was greatly reduced but you needed to repay large debts arising from your mother’s funeral. You estimated that you owed relatives and friends about $15,000 and were also in arrears with your rent.
The circumstances described by you leading up to the subject offending
13 Mr Coffey in his report sets out the circumstances and events leading up to your offending. In particular I note the following:
·On 15 August 2019, you called work to say you needed the day off as you had barely slept and did not feel you could work safely. You passed a quiet day at home and tried to get some sleep. That evening at about 7 pm you went to the casino with a friend. This was unusual as you had rarely been out socially in recent months and had not been to the casino since your last return from Adelaide. You told Mr Coffey you were wanting to make some money, but instead lost several hundred dollars. You spent a few hours at the casino, became intoxicated and then returned to your home by train a few hours later.
·When at home, you drank whisky and were quite intoxicated. You said that a friend had rung you and told you he had obtained some methamphetamine, which would assist you to sleep and feel better. You took an Uber to your friend’s house and smoked the methamphetamine and later returned home in an Uber.
·Hoping that the drug would knock you out soon after returning, you began to sweat, felt energetic and paced around the house in an agitated way. You experienced a flood of thoughts, among which was the idea that you should commit an armed robbery to obtain the money you needed. According to Mr Coffey, you claimed that this was the first time that the idea of committing a robbery to solve your financial problems had entered your head or entered your mind. You told Mr Coffey another thought rapidly followed, that you could obtain money by robbing the Coles Express in St Albans, which you knew because you had bought petrol there. Mr Coffey reported that you then said that, without further planning, you armed yourself and set off on foot to commit the robbery- you estimated a walk of about 20 minutes.
·You told Mr Coffey during your interview that you had no recollection of committing the armed robbery.
The evidence of Mr Guy Coffey
14 The clinical psychologist Mr Guy Coffey interviewed you on 30 April, 1 and 5 May 2020, details of which are set out in his report dated 7 May 2020 (Exhibit B). In particular, he obtained a detailed history from you in relation to your past and the events leading up to the subject offending, to which reference has already been made. Mr Coffey also obtained a history in relation to your experiences in prison. Initially you spent some days at the Melbourne Assessment Prison, where you felt ill, having headaches, vomiting and were unable to sleep, which Mr Coffey felt possibly could be related to alcohol withdrawal. You were then transferred to Fulham Correctional Centre (“Fulham”), where you tried to cope by keeping busy: undertaking a number of short courses, working each day emptying bins, going to the gym daily and borrowing books to read, although you found your concentration was poor. And you went to the prison chapel a few times a week.
15 After about six months at Fulham, you had a fight with another prisoner and were placed in solitary confinement, which you found very difficult. There was no TV or books and on most days you spent 24 hours in your cell. On occasions, you were permitted a brief time in a closed area outside your cell.
16 In early March 2020, soon after being released from solitary confinement, you were transferred to the Metropolitan Remand Centre, where you have remained to the present time. At the Metropolitan Remand Centre, you were placed initially in a protection unit, owing to the public health measures in place, and have been largely confined to your cell. Mr Coffey said some days you are locked down for 24 hours. On other days, you can go to the yard for 20 minutes or so. All your meals are brought to the cell and, owing to the public health measures, there are no courses, work or other activities that you can presently undertake. Furthermore, there are no visits permitted to the prison, but you can contact people via Skype. You have spoken to your brother on Skype on two occasions for the allocated 12 minutes.
17 When interviewed, Mr Coffey noted that you acknowledged the gravity of the offences but deflected your full responsibility for the offending. Mr Coffey noted that you showed some degree of empathy with the victim, but he noted that your understanding of your culpability was incomplete and vacillated between condemning such a crime and resisting any imputation that you are a person who is normally in any way capable of such criminal conduct. You also informed Mr Coffey that you did not foresee the effect that the methamphetamine would have on you and stressed that you have been raised by your family to view theft as morally unacceptable and violence towards women repugnant, although noting that you stated that your actions were wrong, senseless and inexplicable. You also informed Mr Coffey you did not know (or would not disclose) why you had a pipe gun. With respect to the victim, you informed Mr Coffey that you would like to explain to her that the drug caused you to commit the crime and you felt sorry for her, and that she did not deserve to have that happen to her when she was doing her work.
18 You informed Mr Coffey that after your sentence you intended to find employment, work hard, see your children more often and then return to Kakuma and South Sudan to see what you can do for people there. You also informed Mr Coffey that you could not recall having childhood illnesses, noted that malaria was endemic, and you possibly suffered from it. You were also malnourished in childhood and often felt weak but could not recall suffering any serious injuries during your childhood.
19 In 2009 you had a car accident in which you suffered a brief loss of consciousness and were hospitalised, but you do not believe there was any lasting effects of this accident. In 2010 you had an altercation with police, lost consciousness and your teeth were damaged. In 2012 you were hospitalised with pneumonia for a few days.
20 You also informed Mr Coffey that you had not received any counselling, psychological treatment or medication for a psychological condition prior to your arrival in Australia. You attended a service for refugees (Foundation House) and received some counselling in 2010 for a few months. In 2015 you attended a drug and alcohol service a few times in compliance with a court order and in 2017 you went to a general practitioner to seek assistance for insomnia. You had received the medication Seroquel (an antipsychotic) that disagreed with you and you stopped taking that medication.
21 You also informed Mr Coffey that when you were about seven years old you were given wheat flour-based gruel containing alcohol. Mr Coffey has noted that you informed him that subsequent to your mother’s death in May 2019 until your arrest you drank very heavily each day, which involved both beer and spirits. The period of your present incarceration is the longest period you have been without a drink since you were 17 years old. You told Mr Coffey that you tried cannabis once in 2010 and did not like its effects and, other than that, had never used illicit substances save for the methamphetamine smoked immediately prior to the index offending. You rarely gambled and never felt a compulsion to gamble.
22 After making a mental state examination, Mr Coffey was of the opinion that you were experiencing depressed mood and grief in relation to the loss of your mother. Diagnostically, Mr Coffey considered you met the criteria for an “Adjustment Disorder with depressed mood” occurring in the context of a complex bereavement. Furthermore, Mr Coffey considered you had some post-traumatic memories and dreams which have been present for your adult life and which have increased in their frequency while you have been in custody.
23 You experienced the sequelae of childhood deprivation and trauma, which do not meet the full diagnostic criteria of post-traumatic stress disorder but nonetheless are currently affecting your quality of life, and in the past have contributed to your relationship instability and proclivity to abuse alcohol. Prior to being in remand, you met the diagnostic criteria of alcohol use disorder, which is now in remission due to your custody.
24 Ultimately, Mr Coffey was of the opinion that you do not appear to have ever experienced a severe mental illness and were not suffering from a mental illness at the time of the offending which was capable of seriously compromising your reasoning and judgment.
25 Furthermore, Mr Coffey noted that when you found employment in late adolescence you have worked almost continuously and have a solid employment history up until a few months before your arrest, and your capacity to work industriously does not appear to have been significantly affected by any psychological difficulties.
26 In particular, Mr Coffey was of the opinion that it is probable that the legacy of your childhood adversity contributed to a psychological vulnerability to stresses, difficulty managing emotions invoked by intimate relationships, a predisposition to alcohol abuse, rapid resort to the use of alcohol in response to dysphoric emotions and susceptibility to depression.
27 Mr Coffey was of the opinion also that in consequence of you and your mother’s mutual alliance and your difficulty managing dysphoric emotions, when your mother died you experienced intense and complex grief. The loss pervaded all your working hours and your sleep. You were distraught. Your capacity to work was severely compromised. You wanted to return to full-time employment and pay various debts accrued as a consequence of your mother’s death but could not. You suffered depression and insomnia, ate erratically, lacked energy, withdrew socially and drank heavily every day and felt increasingly trapped by your debts.
28 I refer to the comments of Mr Coffey in relation to your rehabilitation. He states:
“I have indicated that when interviewed he stated he regretted his offending but that in my view his remorse while present was nascent. He acknowledged the adverse effect of his actions on the victim but somewhat obliquely and reluctantly. He accepted that he has a long-standing problem with alcohol. He understood that he was still affected by the adversity of his past. He did not reject the view that he sometimes feels overwhelmed by his emotional reactions to stresses and loses. He agreed that he needed to address all these issues through appropriate treatment. He was able to identify psychological assistance that was helpful in the past but conceded it was too brief and insufficient to produce any enduring improvements.
Mr Deng requires a specialist program of treatment to address his alcohol abuse and to educate him about substance abuse generally. This should continue until he has demonstrated a sustained ability to abstain from alcohol and for at least a year. He requires psychotherapy delivered by a psychologist experienced in the treatment of developmental trauma among refugees. He requires psychological and psychiatric reviews of his grief reaction and his mood over the course of at least a year and appropriate psychological and pharmacological treatment as required. He requires offence specific treatment by a forensic clinician directed at him increasing his understanding of the precipitants of his offending, the development of remorse congruent with the nature of the offending and an empathic engagement with victims of crime.
In my opinion, if Mr Deng receives this range of treatment, the probability of him perpetrating further violent offending, or offending more generally, is reasonably low. However, if he does not receive the treatment required and continues to abuse alcohol of other psychoactive substances he is likely to reoffend.
Finally, I will address how Mr Deng is likely to fare during a term of imprisonment. He does not suffer from a severe mental illness but has a vulnerability to stress and his mood is currently dysphoric. He is still distressed by the loss of his mother. He has found confinement in his cell almost continuously since mid-March 2020 frustrating and oppressive. Before the increased restrictions over the past six weeks he had attempted to cope with his worries and grief through keeping active, but the forced inactivity recently has resulted in increased grief and post-traumatic related thoughts. I would expect a further decline in his psychological well-being if these conditions of imprisonment continue.
In my opinion his psychological vulnerabilities and lowered mood will make imprisonment mild to moderately more onerous than it would be for someone without these conditions”.
Matters relied on by your counsel in mitigation of sentence
29 Your counsel conceded that your offending is 'serious' and warranted a term of imprisonment with a head sentence and a non-parole period. Furthermore, it was accepted by your counsel that the offending did involve some planning by you - albeit not overly sophisticated planning as you made no meaningful effort to disguise yourself. Furthermore, you left forensic evidence at the scene whilst climbing over the counter and left on foot to return to your address. You also retained the items you had stolen and did not dispose of the clothing that you wore during the incident or the firearm. In such circumstances, so it was submitted, the likelihood of your detection was very high.
30 Your counsel also highlights that the financial value of the robbery was small, consisting of 16 packets of cigarettes and $135.10 in cash.
31 It was also accepted by your counsel that an aggravating feature of your offending was that you procured a crude and dangerous firearm which was loaded and that the subject of your offending was what may be referred to as a soft target, especially so being a service station and given the time of day that the offending occurred, that is 1.35 am on 16 August 2019.
32 In particular, it is submitted that you accidentally discharged the firearm when you first produced the weapon out of your bag. In this respect, your counsel highlights that no demands were made on the victim prior to producing the weapon.
33 In particular, your counsel referred to the following matters submitted in mitigation of your offending:
(a)Early plea of guilty
You pleaded guilty to the offences on the indictment at the earliest opportunity. It was submitted that you are entitled to the utilitarian benefit of the plea and reference was made to the well-known case of Phillips v The Queen [2012] VSCA 140 [36]. In particular, such a plea saves the state and the victim the cost and trauma of a trial. Reference was made to Anderson v The Queen [2013] VSCA 138 [14].
(b)Remorse
It was submitted that your plea of guilty is also an indication of remorse. Reference was made to your interviews with the psychologist Mr Coffey, where it is recorded you acknowledged the gravity of the offences and showed some empathy with the victim. In particular, Mr Coffey recorded that you, 'Felt sorry for her and that she didn’t deserve to have that happen to her when she is doing her work'.
Your counsel noted, correctly, that Mr Coffey was of the opinion that your understanding of your culpability was incomplete. To this end, it was submitted that although you have not shown outright contrition there is some remorse present.
(c)Motivation for offending
It was submitted by your counsel that financial stress motivated the offending rather than greed. Such financial stress was brought about by your indebtedness following the funeral of your mother. It was submitted that this partially moderates your culpability, and reference was made to Shakhanov v The Queen [2019] VSCA 38 and in particular to paragraph [44] subparagraph (5), wherein it is stated:
“Shakhanov’s motivation was due to large financial pressures arising from debts incurred supporting his young family and mother. While this is not necessarily a mitigating factor [reference was made to Phommalysack (2011) 31 VR 673, 682 [34](6); Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1, 63–4 [261]], it stands in stark contrast to Nguyen’s position. Nguyen was ‘motivated by greed’, and was not under any financial pressures which could explain his engagement in the crime.”
(d)Childhood deprivation and trauma
Your counsel noted that Mr Coffey recorded that most days you have recollections of the violence and hardship that you witnessed as a refugee. You also disclosed you had been sexually abused and were found by Mr Coffey to suffer 'some of the long term sequelae of childhood deprivation and trauma'.
Again, your counsel referred to the following opinion of Mr Coffey:
“While drawing a direct causal link between developmental experience and adult functioning must always be undertaken with caution, it is probable that the legacy of his childhood adversity contributed to a psychological vulnerability to stresses, difficulty managing the emotions invoked by intimate relationships, a predisposition to alcohol abuse, rapid resort to the use of alcohol in response to dysphoric emotions, and a susceptibility to depression”.
It was submitted that this troubled and deprived background has application in assessing your moral culpability. Reference was made to the well-known case of Bugmy v R (2013) 249 CLR 571.
(e)Application of Verdins principles
Your counsel submitted that the so-called limbs 5 and 6 in the well-known decision of R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 ('Verdins') dealt with 'impaired mental functioning' of a defendant, whether temporary or permanent, and in what circumstances such condition is relevant to sentencing. In the circumstances of this case, your counsel relies on limbs 5 and 6, which read:
“5. The existence of the condition [that is the impaired mental functioning] at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment”.
If these limbs are enlivened on the basis of the evidence before the court, they are seen to be mitigating factors in your sentence.
The genesis of the basis for the application of such limbs is founded on the opinions of Mr Coffey. It is submitted that Verdins limb no 5 is enlivened on the basis that Mr Coffey states:
“[H]is psychological vulnerabilities and lowered mood will make imprisonment mild to moderately more onerous than it would be for someone without these conditions”.
Furthermore, it is submitted that limb 6 of Verdins is also enlivened as a result of the COVID‑19 pandemic combined with your psychological presentation. In this respect, reference is made again to the report of Mr Coffey wherein he states:
“Before the increased restrictions over the past six weeks he had attempted to cope with his worries and grief through keeping active but the forced inactivity recently has resulted in increased grief and post-traumatic related thoughts. I would expect a further decline in his psychological well-being if these conditions of imprisonment continue”.
Your counsel expressly disclaimed any reliance on principles 1–4 contained in Verdins (op cit).
(f)Deportation
Your counsel notes that you are not an Australian citizen but hold permanent residency. Although you have applied for citizenship, you have never completed the process. However, your brother and sister and all your children are Australian citizens.
It was submitted that you are likely to be deported at the conclusion of your sentence, and it was submitted that such prospect of deportation is relevant to the sentencing process in the following ways:
- It will increase the burden of the sentence when compared to the burden of a prisoner who faces no such risk, and
- It will be an additional punishing consequence removing the opportunity for you to settle in Australia. Reference was made to Guden v R (2010) 28 VR 288.
(g)The COVID‑19 crisis
Your counsel relied on the history you gave to Dr Coffey detailing the limitations that you suffer in prison because of the COVID‑19 crisis, giving rise to stress and anxiety, and submitted there should be some mitigation of sentence due to the extra hardship that such a situation engenders. Reference was made to the recent Court of Appeal decision of Brown (aka Davis) v The Queen [2020] VSCA 60 at [48] and Sazimanoska v The Queen [2020] VSCA 66 at [48].
(h)Rehabilitation
It was submitted by your counsel that you have indicated a willingness to undertake treatment and cease alcohol consumption. You were willing to discuss the experiences in your life and demonstrated some insight in relation to your problems.
While your counsel accepted that you have had issues with compliance with orders previously, your most recent court appearance was early 2016, and you have shown an ability to remain offence-free in the community whilst gainfully employed.
It was submitted that your prospects for rehabilitation should be viewed as 'positive', and it is noted that Mr Coffey found that with the treatment he recommends the likelihood of reoffending would be 'reasonably low'.
The position of the prosecution
34 Counsel for the prosecution referred to a document headed ‘Prosecution submissions on sentence’. Such document was inadvertently not tendered and I will have that document tendered and marked as exhibit 5.
35 In relation to the nature and gravity of offending, it was submitted that there are a number of serious features of the offending, including:
-Evidence of premeditation and planning.
-You arming yourself with a loaded firearm.
-The choosing of a soft target in the early hours of the morning.
-Bringing a backpack which contained a firearm and in which you put the stolen items.
-Waiting for another customer to leave the store before you approached the victim in the store.
-That during the armed robbery you discharged the firearm, with the projectile narrowly missing the victim. In this respect, it was submitted by counsel for the prosecution that you intentionally discharged the firearm rather than it discharging accidentally, as submitted by your counsel.
-After obtaining the cigarettes you did not desist, and continued with the offending by threatening the victim through the locked toilet door, and then you forced open that door, ripped her phone and keys from her hands, and then got her to open the cash register.
Impact on Victim
36 Counsel for the prosecution referred to the victim impact statement, characterising the incident for the victim to be “clearly a terrifying experience for her and she feared for her safety during the incident”. Counsel also highlighted that the victim has continued to experience loss of sleep, nightmares, anxiety and depression. In particular, she feels scared to leave her house or go to work, which has affected her ability to provide for her family.
Timing of the plea
37 The prosecution accepts that the matter resolved at the earliest available opportunity. Such plea does have utilitarian effect and obviates the necessity for the victim of your offending to give evidence in a trial.
Remorse and insight
38 Counsel for the prosecution referred to the various comments of Mr Coffey, and ultimately submitted that although you are entitled to a discount for your plea of guilty, you should not receive a full discount for remorse, given that you express limited insight and do not appear to appreciate the full gravity of your offending and the full effect that your actions had upon the victim.
39 Counsel for the prosecution acknowledged that there has been some level of insight into the offending, but, as Mr Coffey described it, as “nascent”.
40 It was submitted that you have relevant prior convictions for offences of violence, including recklessly causing injury and unlawful assault in 2014, and recklessly causing injury and unlawful assault in 2011. You also have a relevant prior conviction for a dishonesty offence of deal with property suspected of being the proceeds of crime in 2014.
Application of Verdins principles
41 Counsel for the prosecution submitted that on the available evidence, there was no basis to enliven limbs 1–4 of Verdins (op cit). However, it was submitted that it was open to the court to find that principles 5 and 6 of Verdins have application, in that your psychological vulnerabilities and lowered mood will make imprisonment mildly to moderately more onerous than it would be for someone without these conditions (principle 5). Also it was probable that your psychological state would deteriorate in prison, particularly because of the various restrictions brought about by COVID‑19.
Rehabilitation
42 Counsel for the prosecution submitted that you acknowledge that you have a longstanding problem with alcohol and were under the influence of alcohol at the time of your offending. Reference was made to the opinion of Mr Coffey that:
“He requires offence specific treatment by a forensic clinician directed at him increasing his understanding of the precipitants of his offending, the development of remorse congruent with the nature of the offending and an empathic engagement with victims of crime”.
43 In particular, counsel for the prosecution highlighted that if you received appropriate treatment then your risk of further violent offending is reasonably low, but without treatment, and f you continue to use alcohol, you are likely to reoffend.
44 Counsel for the prosecution also noted:
(i) On 23 July 2010 you were sentenced to a community-based order which included conditions to undergo assessment and treatment for alcohol/addiction or submit to medical/psychological/psychiatric assessment and treatment, and to undergo assessment for programs to reduce reoffending and participate in such programs as directed.
(ii) On 31 August 2011 you were sentenced to a community-based order which included the same conditions as above.
(iii) On 8 May 2014 you were sentenced to 24 days’ imprisonment (time served on remand) and an adjourned undertaking with the condition that you attend at Foundation House for an assessment and review of your support needs, including, amongst other things, alcohol abuse relapse prevention and anger management counselling, and to provide evidence to the court of that attendance.
(iv) On 3 March 2016 you were sentenced to a community correction order which included the conditions that you undergo assessment and treatment, including testing, for alcohol abuse or dependency as directed, and participate in offending behaviour programs as directed.
It was submitted that it was clear that you had had multiple court orders aimed at assisting your rehabilitation, and to date “none have had much impact on [you] ceasing [your] alcohol use”.
45 Ultimately, counsel for the prosecution submitted that your prospects of rehabilitation are 'guarded', taking account of your age, work history (which was described as good), Mr Coffey’s assessment of future risk of reoffending, your past opportunities of rehabilitative sentences, your limited insight into the current offending, and your prior criminal history.
Deportation
46 Counsel for the prosecution submitted that it is likely that you will be deported at the conclusion of your sentence, and that the prospect of deportation is relevant in the ways put by your counsel in mitigation of your sentence.
COVID-19 pandemic
47 Counsel for the prosecution submitted that there is no general principle regarding how the COVID‑19 pandemic mitigates sentence in Victoria (reference was made to Brown (op cit), Sazimanoska (op cit) and Nguyen v The Queen [2020] VSCA 76).
It was submitted that the court should be cautious when attributing weight to COVID‑19 in the “sentencing synthesis”. It was conceded by counsel for the prosecution that “some inferences can be drawn by the court about the likely effect of COVID‑19 on the Corrections system in the absence of evidence”, specifically:
(a)An offender is a higher risk of contracting COVID‑19 if they are incarcerated. Reference was made to DPP v Tennison [2020] VCC 343 [36].
(b)The pandemic is causing additional stress and concern for prisoners and their families, as it is for every member of the community. Reference was made to Brown (op cit) at [48]. This may take the form of:
(i) An offender worrying about the health, wellbeing and future of those who may be affected by the pandemic (reference was made to DPP v Morey (a Pseudonym) [2020] VCC 320 [82]); and/or
(ii) Restrictions imposed by the prison authorities on the daily life of prisoners, such as reduced visits, phone calls or work opportunity.
Furthermore, counsel for the prosecution submitted that the lack of personal visits may cause some hardship to you and should be taken into account. However, counsel did submit that when balanced against the need for general deterrence and denunciation in the case, it is of limited weight in the sentencing exercise.
Conclusion
48 The offence of armed robbery is a very serious offence, as is made plain by the maximum sentence of 25 years’ imprisonment. The objective seriousness of your offending is largely determined by the circumstances surrounding it.
49 On 16 August 2019, you committed an armed robbery on what may be referred to as a 'soft target' – that is, a Coles Express outlet situated in St Albans. You also performed such armed robbery at 1.35 am when few or no people were in the vicinity of the outlet, and there was only one person, the complainant, Ms Tamara Harrison, who was working in the store. When you entered the store, you waited until another customer left before you approached the counter where Ms Harrison was working.
50 After the other customer left, you went to the counter requesting a packet of cigarettes, after which Ms Harrison obtained the cigarettes and scanned them. You then removed your black backpack from your back and placed it on the counter area which caused a heavy thud. You then opened the backpack and Ms Harrison saw a blue pipe object protruding from the backpack, causing her to think it was a bar with which you were going to bash her.
51 You moved the blue pipe object from the backpack and held it in both hands, which caused it to discharge a powerful shot into the rear counter area, just missing Ms Harrison. Ms Harrison noted there was a very loud noise which affected both her ears and caused everything to go quiet.
52 An issue arose during the plea as to whether or not you intentionally discharged the 'weapon' or, alternatively, it was discharged when you manually handled the 'weapon' taking it from your backpack. I have viewed the CCTV footage of the incident, which replays in a type of stuttered format. It is clear enough that you removed the 'weapon' from your backpack and shortly thereafter the 'weapon' discharged. I am not persuaded beyond reasonable doubt that you intentionally discharged the 'weapon' at that time as I consider it at least equally plausible that the 'weapon' discharged by the movement of being brought out of the bag or coming into contact with some part of the counter.
53 Furthermore, consistent with the submission of your counsel, it would appear that no demands were made of the victim prior to the production of the “weapon”.
54 However, I do find that the “weapon” was removed from the backpack to intimidate the victim and also for the practical reasoning of allowing space in the backpack for stolen goods. There is no evidence as to the precise nature of the “weapon”, save to say it was referred to on several occasions as a 'pipe gun'. Furthermore, there is no evidence as to where you obtained such 'weapon', or who made it up. Be that as it may, it is, as your counsel submitted, an aggravation of your offending that you saw fit to use such a “weapon” during the robbery.
55 After the discharge of the weapon, Ms Harrison heard you ask for the all the money that was available. During this process, Ms Harrison was in fear of her safety, pressed the panic button on her necklace, and walked to the rear staff toilet area where she intended call 000 to alert the police. Realising she had left her phone on the counter, she returned to the counter, retrieved the mobile phone and then quickly returned to the staff toilet area and locked herself in. She did call 000 while you were behaving in a violent and aggressive manner on the outside of the staff service area.
56 You then reached under the wire security barrier from the far side of the counter and attempted to open the cash register but were not successful. You then forced yourself under the security wire barrier into the staff service area, where you went through the register and the cupboards, removing several packets of cigarettes from the cupboards and putting them into your backpack.
57 You then went to the locked staff toilet door and banged on it, demanding that Ms Harrison come out and give you some money. Even though you were told that police had been called and were on the way, you continued to threaten Ms Harrison before you returned to the front counter area. You moved to the front entrance door and then returned to the rear counter area, again threatening Ms Harrison and ultimately forcing open the door to the staff toilet area and ripping her phone from her hands. At that time, she thought you were going to hit her, as you raised your hands at her. After she requested her phone back, you said “no” and, “open the till, give me all the money”.
58 You ushered Ms Harrison back to the till and told her to hurry up. She opened the till and you said “give me the money”, after which Ms Harrison lifted the till and gave it to you. You removed all cash from the till and placed it into your backpack. You then asked her to open the back door, which she did, and you exited the store from the staff only rear entrance.
59 Clearly enough, the armed robbery was the subject of some planning – the place, the timing, the bringing of the backpack containing the “weapon” are clear evidence of some planning, even if such planning could not be characterised as “sophisticated”. I accept you made no meaningful effort to disguise yourself, left forensic evidence at the scene whilst climbing over the counter, and left on foot to return to your address. Furthermore, you seemingly retained the items you had stolen and did not dispose of the clothing you wore during the incident, or the firearm.
60 One can well understand the fear that Ms Harrison must have suffered – initially confronted with you holding a weapon which discharged, her retreat from behind the counter to the staff toilet area where she locked herself in, and continuing to hear you behaving in a violent and aggressive manner, and then you forcing yourself under the security wire barrier, entering the staff service area, and, after various threats, ultimately forcing the door of the toilet area to be open and Ms Harrison to give you what cash was available.
61 The consequences of such ordeal are set out in Ms Harrison’s victim impact statement and, in particular, I note she has become depressed, loses sleep and is scared to leave her home or complete her shift at work. She is a single mother who is anxious all the time, and unable to work and provide for her family. She continues to feel lost, alone, confused and messed up with daily tasks.
62 I do accept that your motivation for the armed robbery was to pay for debts which you had incurred in respect of your mother’s funeral. Indeed, based on your comments to Mr Coffey, I do accept that you perceived it was your duty, as the eldest child, to arrange the funeral and at a level commensurate with your mother’s standing in your community. Furthermore, I accept that leading up to the subject offending, you were under financial stress, largely in part because of these debts.
63 Your counsel submitted that such motivation “partially moderates your culpability” and reference was made to the Court of Appeal decision of Shakhanov v The Queen [2019] VSCA 38. After reading that decision, and associated decisions, I have come to the view that in the circumstances of this matter your motivation is not a mitigating factor or moderates your culpability but is, rather, one of context. However, I do accept that such offending was not driven by “greed”.
64 I also accept that at the time of your offending you were intoxicated and, on your account, probably had used methamphetamine late in the day. Again, in general terms, neither of those matters are mitigatory but, again, set the context of your offending.
65 The second charge on the Indictment involves the damage to the computer monitor at Coles Express, brought about by your activities on that night. The third charge on the Indictment relates to you being a prohibited person possessing a firearm – the pipe gun.
66 I consider that the objective gravity of Charge 1 on the Indictment is high, particularly when one takes account of you choosing to use a loaded pipe gun, which, as I have found, was not intentionally discharged by you but, nonetheless, did discharge, giving rise to all the attendant risks that that may have produced. Similarly, I consider that your moral culpability is also reasonably high, notwithstanding you were driven by the importance of arranging an appropriate funeral for your mother.
67 In mitigation of your offending, I also take account of the following matters:
(a)I accept that your plea of guilty was at the earliest possible time. I accept that the plea does have the utilitarian value in saving the time and cost of a trial, as is made clear in Phillips v R [2012] VSCA 140 at paragraph [36]. In particular, such a plea saves the state the time and cost of a trial and, in particular, obviates the need for the complainant in this matter to relive her trauma at a trial;
(b)your counsel submits that your plea of guilty is also an indication of remorse. Reference was made to your interviews with the psychologist, Mr Coffey, where it is recorded you acknowledged the gravity of the offences and showed some empathy with the complainant. Reference was made to the report of Mr Coffey, in which he states therein, that you 'felt sorry for her and she didn’t deserve to have that happen to her when she is doing her work'. Again, as was conceded by your counsel, Mr Coffey was also of the opinion that your understanding of your culpability was 'incomplete'. In particular, Mr Coffey was of the view that you expressed limited insight and did not appear to appreciate the full gravity of your offending and the full effect that your actions had on the victim. Mr Coffey inferred your understanding of these matters to be 'nascent'.
Ultimately, I do accept that you have shown some remorse for your offending, although, consistent with the opinion of Mr Coffey, such is not complete.
(c)I do accept that your childhood was one in which you were exposed to violence and hardship, both in your country of birth and later as a refugee before coming to Australia. You also disclosed that you had been sexually abused. Your counsel made reference to the well-known High Court decision of Bugmy v R (2013) 249 CLR 571. I refer to the Court of Appeal course of Marrah v R [2014] VSCA 119, where the court speaks of, in part, the consequences of a deprived earlier life. The Court of Appeal stated:
“Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour.” (reference was made to DPP v Terrick (2009) 24 VR 457)
In this matter, Mr Coffey stated:
“While drawing a direct causal link between developmental experience and adult functioning must always be undertaken with caution, it is probable that the legacy of his childhood adversity contributed to a psychological vulnerability to stresses, difficulty managing the emotions invoked by intimate relationships, a predisposition to alcohol abuse, rapid resort to the use of alcohol in response to dysphoric emotions, and a susceptibility to depression.”
I accept the submission that your troubled and deprived background has application in assessing your moral culpability, and consistent with the principles enunciated in Bugmy (op cit), I consider that your moral culpability is reduced to some extent in relation to the offending – particularly Charge 1 on the Indictment;
(d)I do accept that the evidence of Mr Coffey enlivens so-called limbs five and six in the well-known decision of R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
I note that counsel for the prosecution accepts that on the evidence both limbs are enlivened;
(e)I also accept the general proposition that if you are sentenced to a term of imprisonment of 12 months or more, your visa will be automatically revoked and you will be subject to deportation pursuant to the provisions of the Migration Act 1958. As your counsel stressed, although you hold permanent residency, you have never completed the citizenship process. However, your brother and sister, and all your children are Australian citizens.
Your counsel referred to the Court of Appeal decision of Guden v R (2010) 28 VR 288. When Guden (op cit) was handed down, the cancellation of a visa under the Migration Act was only discretionary. Since then, it is mandatory for someone who is sentenced to 12 months or more. I refer to the Court of Appeal decision of Schneider v R [2016] VSCA 76 at paragraph [25], wherein the Court stated, explaining the relevance of the amendments:
“Prior to the amendments to the Act upon which the appellant placed reliance, the relevant principles concerning the risk of deportation were spelled out in Guden … More recently, the principles to be applied following the changes to the Act were analysed in Konamala and Da Costa (both cases having been heard by a similarly constituted Court on the same day). I need not repeat that analysis in detail. But I note that in Konamala it was said:
Self-evidently, whether the prospect of deportation in a given case will make the burden of imprisonment more onerous will depend on the prisoner’s personal circumstances. It is an unhappy fact that many offenders come to this country for the sole purpose of criminal activity. They have no interest in making Australia their home. For offenders such as those, deportation to their country of origin may impose no burden upon them at all. Indeed, deportation might be something of a blessing, particularly where language or culture have caused them to be isolated. On the other hand, the prospect of deportation might be a severe additional punishment for an offender who had aspired to make Australia his or her home, particularly if the offender has a spouse, children or other family resident in the country, or has other ties to the Australian community.
In Guden, it was recognised that – subject always to the state of the evidence before the sentencing judge – the prospect of deportation is a proper matter for consideration in determining an appropriate sentence. Despite the changes to the Act, that must remain so. Without evidence bearing on the issue, although it may be said with some confidence that the visa of an offender in the applicant’s position will be cancelled, it cannot be assumed that the minister will not revoke the original decision to do so.
… .'
(footnotes omitted.)
In all the circumstances, I accept that any incarceration for longer than 12 months will increase the burden of the sentence when compared with the burden of a prisoner who faces no risk of deportation and, also, it will be an additional punishing consequence removing the opportunity for you to settle in Australia – more so that you have members of your family and children, who are all Australian citizens;
(f)I also accept that the circumstances of COVID-19 can be relevant as to hardship in imprisonment. To date, the Court of Appeal has been hesitant to express a general statement of principle in relation to sentencing practices. I refer to R v Brown (aka Davis) [2020] VSCA 60 (a decision of Priest and Weinberg JJA) on 23 March 2020; R v Sazimanoska [2020] VSCA 66 (again, a decision of Priest and Weinberg JJA), delivered on 26 March 2020 and R v Nguyen [2020] VSCA 36, a decision of Niall JA and Croucher AJA, delivered on 1 April 2020. In particular, the court in Brown (op cit), at paragraph [48] stated:
“With regard to the COVID-19 pandemic, and the submission put forward on behalf of the applicant in that regard, we readily acknowledge that this is a matter that is certain to come before this Court again in the immediate future. In the absence of any adequate material concerning the impact of the virus upon the Corrections system, as matters stand, and given that the situation is one that is rapidly evolving, we are hesitant to express a general statement of principle regarding how this Court (and others) should deal with this crisis as regards its effect upon relevant sentencing principles. We do accept, however, that the situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community. The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.”
As noted by the court, it is difficult to make a statement of principle, as the situation continues to evolve and it cannot be deemed precisely how Corrections will react to the changing manner.
In the circumstances of this matter, I do take account of the following:
(i)generally, the greater risk of contracting the virus, given the social distancing, is so much harder to apply in prison;
(ii)such problems have also given rise to longer periods of lockdown; and
(iii)the reduction in the use of services and facilities for education and training in prison. You are permitted to use Skype for limited periods to contact those who would have otherwise come to prison.
I consider that your sentence is mitigated to some extent, recognising the increased hardship you will experience if incarcerated as a result of COVID-19 to a person who otherwise lives in the wider community.
Your sentence
68 Your counsel submitted that your prospects of rehabilitation should be viewed as 'positive' and noted that Mr Coffey found that with the treatment he recommends, the likelihood of your re-offending would be 'reasonably low'. Furthermore, your counsel notes you have had a reasonable employment history leading up to your remand and that, as already noted, you have demonstrated some insight into your problems.
69 Against this, counsel for the prosecution, as I have already recorded, noted Mr Coffey said if you had no further treatment and continued to use alcohol you are likely to re-offend. Counsel for the prosecution also referred to various orders made over time, where it was arranged for you to be rehabilitated – particularly in relation to alcohol abuse – and as submitted by counsel 'none had had much impact on you [ceasing your] alcohol use'.
70 Counsel for the prosecution submitted that taking account of your age and work history, Mr Coffey’s assessment of future risk of re-offending, your past opportunities of rehabilitative sentences, your limited insight into the current offending and your prior criminal history, your prospects of rehabilitation are “guarded”. I consider that is an appropriate description of your prospects of rehabilitation.
71 I consider that such matters as general deterrence, in particular, just punishment and the protection of the community are all relevant matters in coming to an appropriate sentence. Furthermore, as touched on, previous sentences have seemingly had little impact on your control of alcohol and you also have previous convictions for intentionally destroying property, resisting police, recklessly causing injury and intentionally damaging property and dealing with property suspected of being proceeds of crime (see Melbourne Magistrates Court, 8 May 2014). You also have earlier convictions of theft and unlawful assault (28 April 2014 at the Dandenong Magistrates’ Court); and earlier convictions for recklessly causing injury, unlawful assault and two charges of resisting police (31 August 2012 at the Dandenong Magistrates’ Court. I consider that there should be some weight given to specific deterrence given your ongoing problems with alcohol and some previous offending involving violence, although, of course, no previous convictions for armed robbery.
72 I intend to convict you of each offence and sentence you to a period of imprisonment. I do point out, given the issues of double punishment and totality, I consider there should only be a very small amount of accumulation of the sentence in relation to Charge 3 – that is, the possession of the pipe gun – given the role it plays in Charge 1, that is the armed robbery.
73 Please be upstanding:
(a)in relation to Charge 1 on the Indictment, you are convicted and sentenced to four years’, eight months’ imprisonment. This is the base sentence;
(b)in relation to Charge 2 on the Indictment, you are convicted and sentenced to a period of three months’ imprisonment;
(c)in relation to Charge 3 on the Indictment, you are convicted and sentenced to six months’ imprisonment.
I direct that one month of the sentence relating to Charge 2 and one month of the sentence relating to Charge 3 be accumulated with each other and the sentence in relation to Charge 1. The total effective sentence is four years and 10 months' imprisonment, with a non-parole period of three years and four months;
(d)I declare that you have served 326 days in pre-sentence detention, not including this day, and such days should be administratively deducted from the sentence ordered against you;
(e)I grant the application made by counsel for the prosecution seeking orders for the disposal and forfeiture of the various items seized by the police during the execution of the warrant. I was informed by your counsel that such orders were not opposed;
(f)pursuant to s.6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty on Indictment No. K12150813 I would have sentenced you to six and a half years’ imprisonment, with a non-parole period of four years.
74 HIS HONOUR: All right. So that's the end of the sentence. Now what I will do - - -
75 MR STURGES: Your Honour, I'm sorry to interrupt one last time. I heard almost everything you said except for the non-parole period of the 6AAA.
76 HIS HONOUR: Very well. I'll just read that again. I'll just go back slightly.
I direct that one month of the sentence relating to Charge 2 and one month of the sentence relating to Charge 3 be accumulated with each other and the sentence in relation to Charge 1. The total effective sentence is four years and 10 months, with a non-parole period of three years and four months.
77 Did you pick up the time served? I'll go again.
I declare that you have served but not including this day 326 days in pre-sentence detention and such days should be administratively deducted from the sentence ordered against you;
(e)I grant the application made by counsel for the prosecution seeking orders for the disposal and forfeiture of the various items seized by the police during the execution of the warrant. I was informed by your counsel that such orders were not opposed;
(f)pursuant to s.6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty on Indictment No. K12150813 I would have sentenced you to six and a half years’ imprisonment, with a non-parole period of four years.
78 MR STURGES: Thank you, Your Honour.
79 MS HOGAN: If the court pleases.
80 HIS HONOUR: All right. If we haven't when I leave the Bench before you go - if we haven't got your email addresses I - - -
81 ASSOCIATE: Yes, we've got them.
82 HIS HONOUR: We've got your email addresses. We'll send this straight out but on the basis that it is restricted to the parties and on the basis that it is unrevised. In other words I don't think there'll be really - well, I doubt there'll be much difference at all between the revised and what's here, but be that as it may that's on that basis. Do you understand that?
83 MS HOGAN: If I could just seek one clarification, Your Honour, does that mean that I'm not to disseminate it to Mr Tamara Harrison?
84 HIS HONOUR: Sorry, what's that?
85 MS HOGAN: When Your Honour said that it was restricted to the parties does that mean that I cannot - - -
86 HIS HONOUR: I think - - -
87 MS HOGAN: - - - provide it to Ms Tamara Harrison?
88 HIS HONOUR: No, I don't mind you perhaps reading relevant parts to Ms Harrison.
89 MS HOGAN: Yes.
90 HIS HONOUR: But I don't want a copy at this stage - certainly she will be entitled to a copy of the revised.
91 MS HOGAN: Certainly, Your Honour.
92 HIS HONOUR: And I might add, as I say, there's a few typos which you'll see. There's a couple of things I've made marks through.
93 MS HOGAN: Yes, Your Honour.
94 HIS HONOUR: But nothing which is of great significance now. So is everybody happy with that course?
95 MS HOGAN: Yes, Your Honour.
96 MR STURGES: I take no issue, Your Honour.
97 HIS HONOUR: Yes. It's just, look, we'll report back about this. Unfortunately as you may or may not know, the civil courts are using the Zoom process, which we have up to now - I've been in civil mainly or just - sorry, I've just changed over to civil. The problems we've had this morning unfortunately is not the first time these problems have occurred. We'll report back and see if our department can do anything about it, but it's not good enough. It's not good enough for anyone, to be quite frank, and it's very frustrating for me, I can tell you.
98 So anyone else want to raise anything?
99 COUNSEL: No, Your Honour.
100 HIS HONOUR: Yes, thank you. We'll adjourn sine die.
---
0
17
0