Director of Public Prosecutions v Dinkneh
[2023] VCC 2170
•17 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01752
CR 23-00679
CR 23-00777
Indictment Nos
M10639099; N12393619.1 & N12393481.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIDRAK DINKNEH |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 November 2023 |
DATE OF SENTENCE: | 17 November 2023 |
CASE MAY BE CITED AS: | DPP v Dinkneh |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2170 |
REASONS FOR SENTENCE
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Catchwords: Armed robbery x3; breach of community corrections order imposed for earlier attempted armed robbery; 3 armed robberies occurred whilst on that community corrections order; disadvantaged background; Bugmy; youth; Mills; Azzopardi; 23 years of age at time of sentence; relevant prior criminal history; early and relatively early plea; Worboyes v The Queen [2021] VSCA 169; Verdins limb 5.
Cases Cited:Bugmy v The Queen [2013] HCA 37; 249 CLR 571; R v Mills (1998) 4 VR 235 ('Mills'); Azzopardi v The Queen [2011] VSCA 372 ('Azzopardi'); Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’); DPP v Dinkneh [2021] VCC 2055
Sentence:Global Total Effective Sentence – 5 years
Non-parole period – 2 years 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Allan | Office of Public Prosecutions |
For the Accused | Mr C. Oldham | Valos Black & Associates |
HIS HONOUR:
1Sidrak Dinkneh, you have pleaded guilty to three charges of armed robbery. As you know, each of those offences took place whilst you were on the community corrections order I placed you on when I sentenced you back in 2021 for the offence of attempted armed robbery. That community corrections order took effect upon your release from prison, which followed on from serving the prison sentence that I imposed as well as the remnants of an earlier sentence imposed by this Court. You were released in April 2022.
I then monitored you on that community corrections order. Those three fresh armed robberies occurred in November of that same year.2The breach of that community corrections order is now before me, and you have admitted that breach constituted by this fresh offending as well as by non-compliance in the various manners specified in the amended schedule attached to the summons.
3The maximum penalties are correctly set out in the opening. Charge 1 on the indictment – that is Indictment N12393619.1 – is a Category 2 offence and in the absence of one of the exceptions set out in s5(2H) of the Sentencing Act, a prison term is required and not one in combination with a community corrections order. Nothing hangs on that provision in this case, as your counsel was not suggesting that any exception arose before me. I will say nothing more about those complicated provisions in s5(2H), as none of the exceptions arise here and it is conceded by your counsel that the only available disposition in this case is a head sentence with a non-parole period. Plainly, that submission is correct.
4You are now 23 years of age.
5You have an obviously relevant prior criminal history.
Facts
6The prosecutor, Ms Allan, opened this case to me last Friday in accordance with a lengthy written summary which was dated 10 October 2023. That summary was marked as Exhibit A. The CCTV footage was part of that same exhibit, and I have now viewed it.
7Your counsel, Mr Oldham, informed the court that this was an agreed factual statement, and so there is simply no utility in my restating all of the agreed facts in my reasons for sentence. I will sentence pursuant to that agreed document.
8I will provide only a relatively brief summary so that anyone who happens to access these reasons will have a better understanding of the serious nature of the crimes that you have committed and hence the reasons for my ultimate sentences in this case.
9Before turning to the three fresh offences committed in November of last year, let me backtrack just a little.
10On 10 December 2021, I sentenced you to 10 months' imprisonment in combination with a two-year community corrections order for the attempted armed robbery of a pharmacy which took place on 29 March 2021. You already had a prior conviction for the August 2019 armed robbery on that very same pharmacy, see Judge Lawson's reasons at [2020] VCC 620.
11In April 2022, as I say, you were released from prison following service of the prison component of the sentence that I imposed as well as the remainder of an earlier sentence. That was a youth justice centre sentence transferred to adult imprisonment by order of the Youth Parole Board, which is why your release onto my community corrections order was delayed until April.
12Once you were released, I judicially monitored you on that community corrections order. As you will recall, I saw you in July and then in September of last year. Regrettably, though, by the time of the third monitoring hearing in December 2022, you were back in custody. That was as a result of your being charged with the matters I am now dealing with as fresh matters on these two indictments now filed before me. You had also been charged with some other matters, though they did not proceed, and hence they have no role to play in my task at all.
13Let me turn, then, briefly to the fresh offending.
14The agreed summary discloses that over the space of a couple of days in November of last year, whilst on that community corrections order for attempted armed robbery, you committed these three armed robberies. They were all a good deal more serious than the attempted armed robbery that I dealt with back in 2021. That much is conceded.
15On 1 November, in company with others, you attended at the Metro service station in Ascot Vale. It was in the early hours. The female store attendant, Ms Pidamarthi, was persuaded to unlock the door, and that was to let a female from your group in to use the toilet. When she unlocked the door to permit the female to access the premises and the toilet, you and your offsiders entered. You had, in fact, been there earlier in the morning. Once you and your offsiders came inside, you were seen to speak briefly to one of your male associates, an 18-year-old named Dominic Ahamed. You then walked around the counter and pulled out a machete. You were taking steps to partially conceal your face. Pretty obviously, he was as well. You then went into the attendant's space behind the counter and made a demand of her, saying:
‘Open the cash register, don't do anything, don't call anyone, just give me the cash, otherwise I will chop your head.’
See paragraph 10.
16She went about complying with your demand. Ahamed was on the other side of the counter and was taking some of the notes from your victim's hands. You remained behind the counter on the other side, and you were collecting cash, vapes and cigarettes. At one point, a customer entered the store to make a purchase. You were behind the counter and then bent down near Ms Pidamarthi's legs and said, 'If you make a noise, I will chop your legs'.
17You left the store soon after, and the offence came to an end.
18Your victim told that customer what had happened and contacted Triple 0. This was no fleeting armed robbery, as the footage makes very clear.
19Two days later, you attended at the 7-Eleven store in Boundary Road, North Melbourne. It was 2:44 am. As luck would have it – or misfortune, more correctly – a young woman named Keely Young was a customer in that store. She was not having a great night. I see in her statement she describes having had some disagreement with her friend, and she was in the store trying to replace her SIM card to use her phone so she could get a lift. Well, her night got a whole lot worse for she was on the wrong side of the counter; that is to say, the public side. You, pretending to be a customer, put an item on the counter and stepped into Ms Young, then put your arm around her shoulder and pulled her in tightly towards you. With your other hand, you held a screwdriver at Ms Young's neck, and in this position, whilst holding her in that style of headlock, you said to the store attendant, Mr Singh, who was on the other side of the counter, words to the effect, 'Hand over all the money and smokes or I will stab her'. You yelled out, 'Now', and threw Ms Young's phone across the counter. You took an amount of cash and cigarettes, hence Charge 2. You also took Ms Young's handbag, which contained a number of items, hence Charge 1.
20You left the store.
21Again, the footage and the stills disclose that you were disguised with face covering, and on this occasion, you were wearing gloves.
22A warrant was executed on your family home in the Racecourse Road flats the next day, 4 November. There were a number of items seized which connected you to the various armed robberies. Your phone was seized, and there were some messages referred to at paragraph 34 referring to the prospect of going back to prison, a prospect which is being fulfilled now, of course.
23You were interviewed and predominantly made a no comment interview, as was your right. However, from what you did say from time to time in the course of that interview, you were seemingly disputing any involvement in these various crimes, as again was your right, so that is not a matter in any way in aggravation.
24The agreed summary sets out the chronology of these matters before the court as well as the earlier community corrections order matter and the chronology of that order.
25A contested committal was conducted where the two victims the subject of the offending on 3 November were cross-examined. I must say it was a puzzling decision to head down that path, but that is the path that was headed down. You pleaded not guilty, as was your right. The other matter settled without any cross-examination. The matters to which you had pleaded not guilty resolved soon enough once you were committed to this court, and you were then arraigned on an earlier form of the two indictments on 18 August of this year. However, the plea was not ready to proceed on that date. Your counsel wanted to obtain a neuropsychologist's report, and hence it was adjourned to last Friday. For some strange reason, the victims particularised in those original indictments, at least in some of the charges, was the franchisee of the store. That altered, and hence there was the need to re-arraign you last Friday.
26Last Friday, I was advised by the authorities that you were refusing to come to court, saying that you were ill. I arranged an urgent audiovisual link to see what was going on. Your counsel told me that you wished to proceed in that fashion, using the audiovisual link. Had he said otherwise, of course, I would have adjourned the hearing of the plea to a later date.
27However, you wished for the matter to proceed, and so I had you
re-arraigned, and I then heard the full plea last Friday.28There is no issue of parity of sentence here, as no sentence has been imposed upon Dominic Ahamed. He awaits his trial.
29You have been in custody since 4 November of last year. That is a period of 371 days, not counting the day of the plea. Of course, that total has risen since.
30So much, then, for what is only my brief summary of your offending. I will sentence pursuant to the more detailed agreed statement, which, as I say, was marked as Exhibit A on the plea. Also the CCTV footage marked as part of that same exhibit and the still photographs within the depositional material, which no one said needed to be marked.
31As to the breach of the community corrections order, it is conceded that the only alternative is to cancel that order and to resentence. There is a breach package that has been filed which includes an amended breach report and the original summary. That is marked as Exhibit C. I had a range of materials placed before me at the time of that original plea back in 2021. Your counsel, Mr Oldham, had access to those materials. Many of those are referred to in my sentencing remarks, which were delivered on 10 December 2021, see [2021] VCC 2055. Of course, in that resentencing exercise, I have the additional materials now placed before me and must also take into account the extent of your compliance with that order.
32It is really worthless, my setting out all the details of that past offence. These reasons should be read in conjunction with those earlier reasons for sentence and the materials then relied upon, including of course the original agreed summary and your original letter to the court, which I will mention later.
Victim impact material
33There were no impact statements in this matter. Your counsel conceded that there was obvious impact. I raised the matter with him, and he took no issue with my acting on the references in the statements of the victims set out within the depositions. I would hardly need Ms Young to tell me that this was a terrifying incident. Of course, it was. The look on her face in the CCTV footage and the stills taken from that footage says it all. This crime just erupted, and she was caught up in it as a matter of pure bad luck. She was being used by you to commit the armed robbery upon the 7-Eleven with the threat of force to her. The screwdriver was held at her neck with your indications that you would use it if your demands were not complied with by the store attendant, Mr Singh.
34This was a very frightening event, and she spoke in her statement of the short-term impact of being scared of 7-Eleven stores and her fear of having people behind her or wearing masks and even of living alone now
('now' referring to the time that she made the statement, of course). Mr Singh, who was on the other side of the counter – the safer side, if I can put it in those terms – said that the incident was horrifying.35The victim in the earlier armed robbery was very scared. She was a female. You were on her side of the counter. You were right in her space. You were wielding a pretty nasty weapon, a machete, and indicated that you would chop her head if she did not comply, then her legs when the person came into the store during the course of the armed robbery. She feared for her life. Again, the footage shows her obvious distress at the very outset where she clasps her hands across her chest when you come into her space.
36In the absence, though, of any impact statements – and there are not any here – I cannot speculate about any serious long-term impacts sustained by any of the victims. However, none of those caught up in your crimes will ever forget the day that you chose to commit these serious offences. Of that, I have no doubt at all.
37I take into account the impact, as I am required to.
In Mitigation
38I turn to consider the very thorough plea in mitigation conducted by Mr Oldham on your behalf. He relied upon a detailed written outline of submissions dated 7 November, though he varied some of the submissions in the running, either adding to them or disavowing some of what had been included. For instance, though the written submission raised as an outside possibility a combination-type disposition here, that was explicitly abandoned in the oral presentation of the plea. Though the written submission mentioned reliance on two of the principles from the Court of Appeal decision of Verdins,[1] he explicitly withdrew any reliance on the sixth limb. He said that had been included in error. Conversely, though, in the written submissions, there had been no mention of the application of the principles from the Bugmy[2]/Herrmann[3] line of authority, though he made clear in his oral submissions that those principles were in fact relied upon in a general fashion in this case.
[1]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’).
[2]Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’).
[3]DPP v Herrmann [2021] VSCA 160.
39He filed a neuropsychological report from Ms Bronwyn Hall and a psychological report from Marlese Bovenkerk. They were new reports. He also placed before me an older report from Sandra Cokorilo and an older report still from Matthew Staios. I was familiar with those older reports, as when I first dealt with you back in 2021, Ms Cokorilo's report was in fact placed before me on that plea and Mr Staios' report was referred to in the earlier set of sentencing reasons from Judge Lawson that were before me.
40Finally, Mr Oldham relied upon a letter written by you in relation to these matters.
41Either in that voluminous written material or in the course of the oral presentation, Mr Oldham placed before me detail as to your family, educational, work, relationship, drug, medical and mental health history.
Of course, I was well familiar with much of this, having dealt with it in my sentencing reasons back in 2021. I had also monitored you on two occasions and had been encouraged to learn you were back in the workforce and hopeful that you might have been heading in the right direction.42Mr Oldham made some submissions as to your efforts in custody. I was told that you were working as a billet. He made some submissions as to the nature and objective gravity of the offending and the weight to be given to the various sentencing purposes. He also made some submissions as to the risk of institutionalisation in this case. He submitted that you had some future prospects of rehabilitation, that those prospects were not completely extinguished here.
43In a sensibly conducted and realistic plea in mitigation conducted on your behalf, Mr Oldham relied chiefly upon the following matters in mitigation:
·your early guilty plea;
·the presence of some remorse;
·your relative youth;
·your disadvantaged background (Bugmy);
·the application of the fifth limb from the case of Verdins.
44He conceded, though, the seriousness of the offending and that a prison term was required here and one with a head sentence of a dimension requiring the fixing of a non-parole period. As I say, he explicitly withdrew the faint suggestion that had been contained in the written submissions as to the possible availability of a combination-type disposition here. He argued that the Court might provide for the possibility of an earlier availability for parole to enable you to access the services mentioned in the reports placed before me. He conceded that cancellation and resentencing on the community corrections order was the only available outcome.
Prosecution
45The prosecutor, Ms Allan, had prepared some detailed written sentencing submissions that were dated 9 November of this year. The written document contained submissions as to the nature and gravity of the offending, see paragraphs 5-9. Also, it dealt with the relevant sentencing purposes. The prosecution written and, for that matter, the oral sentencing submissions were really quite uncontroversial here, so I see no need to set them all out. The prosecution fairly conceded the presence of various matters in mitigation, including your relative youth, the worth of your guilty plea, the disadvantaged background enlivening the Herrmann principles and the application of the fifth limb from the case of Verdins. The Director of Public Prosecutions was calling for a head sentence with a non-parole period. So much had been readily conceded by your own counsel.
Background
46I will shortly deal with the various matters raised before me. Let me firstly deal, though, with your background. I see no point setting out your background in any great detail in these reasons. It is spelt out in the written submissions placed before me as well as in the various reports that have been filed on the plea. Further, of course, I am well awake to your personal background, and I dealt with it in detail in my sentencing reasons back in 2021 at paragraphs 17-22.
47Very briefly, then, you are now 23 years of age. You were born in Eritrea and were the only child of your parents. You never met your father. You migrated to Australia when you were about nine years of age. You are an Australian citizen. When in the community, you have lived in public housing. There was interrupted schooling and you have a limited employment history. You are single. You have no children. You are close to your mother, who attended court the other day and again today. Drugs of dependence have obviously been very problematic over a number of years.
48That is only a very bare summary of your background. Far more detail is contained in the various reports. I accept that background placed before me. I have said previously at paragraphs 17 and 18 of my original sentencing remarks back in December 2021[4] that it was an unenviable background, involving, as it did, migration from Eritrea to Egypt, no contact with or memory of your father, bad experiences with your mother's new partner and also at the hands of a relative. So there was poverty, movement, some exposure to violence and also sexual abuse, the absence of positive role models, fragmented education and all the usual difficulties of adapting to life in a new country. I said in 2021 that there was nothing to envy in that background and that I would give the Bugmy principles full weight. Nothing has changed. Your committing these fresh offences does not alter my view of your background and its mitigatory value before me. Yours was a pretty unstable and dysfunctional upbringing with few decent role models and some pretty bad influences along the way. Our backgrounds have a very decent role in shaping who we become. Your background was unenviable and no doubt these things all have a role to play in the faltering trajectory of your life, so I do take into account what I judge to be a significantly disadvantaged background pursuant to cases such as Bugmy and Herrmann.
[4]DPP v Dinkneh [2021] VCC 2055 at [17]-[18].
49An offender's circumstances and their experience during their childhood and their formative years must be considered in the sentencing process, and that is because it is well recognised that the effect of social disadvantage does not diminish with time. A background of significant disadvantage is likely to have a profound and lasting consequence, as it no doubt has had in your case. There is no need to demonstrate a causal connection and nor does your counsel seek to establish one here. He was relying on the general approach referred to by the Court of Appeal in the case of Herrmann. I accept those submissions and give full weight to your background in the way that that phrase is employed in these cases to which I have referred. There is undoubtedly, amongst other things, some reduction in your moral culpability. I will not mention that again, but it arises here. However, your background is not going to alter overnight. It is your background, it remains with you, and it must be taken into account when I make judgments, as I must, as to your prospects of rehabilitation in the future and also your risk of reoffence.
50I have said already drugs have been a major issue for many years, though I see no basis at all to conclude that you were actually labouring under any psychosis at the time of any of these offences that I am dealing with. I am not satisfied of that on the balance of probabilities at all. Your actual conduct and the steps taken to avoid detection suggest otherwise. These were perfectly logical crimes. No doubt you were disinhibited by drug use, and they probably were motivated by the need for money associated with your drug use. Drug use is, however, not mitigatory in this case, as your counsel conceded on the plea.
51When I dealt with you in 2021, you had a worrying criminal history which at that time included four prior convictions for armed robbery, one for attempted armed robbery and prior convictions for aggravated burglary as well as convictions for a range of violence offences. We then add that appearance before me for the March 2021 attempted armed robbery, and I said then in my reasons that it was a disturbing history. It was. You had failed to comply with various orders. You had committed the armed robbery, which was dealt with by Judge Lawson, whilst you were on youth parole. Likewise, the attempted armed robbery that I dealt with. So it was then and is a disturbing past criminal history. It is more disturbing now that you have committed these three more serious offences in the currency of a community corrections order, one with monitoring, an order primarily focusing on your rehabilitation. An order that you have breached by offence and also by non-compliance.
52Now, with the exception of the resentencing task on the community corrections order breach, you do not fall to be sentenced a second time for any of your past crimes. Your past criminal history does not aggravate this offending. I must pass proportionate sentences. You have received those past sentences and you have served them. I told you, though, back in December 2021 that the criminal history assumed some importance, as I had to make judgments as to your prospects of rehabilitation, the extent of the need to deter you, your risk of reoffence and the weight to be given to the need to protect the community from you. Well, it is conceded by your counsel that you have done yourself no favours by committing these fresh offences. The matter I dealt with you for occurred when you were only 20 years of age. Well, you were older when you committed these current offences. Plainly, I must strive to deter you, and I must protect the community from you. They are matters of some significance in my task.
53You have been in custody now on these matters for over a year and are working as a billet. You have a level of insight, I believe. That can be gleaned from the letter that is placed before me. I do not dismiss that letter, no more than I did the first letter written at the time of the 2021 hearing. They are, in fact, quite insightful letters. I do not believe you are just writing what you think the Court wants to hear. That is not the nature of your recent letter at all, nor your first one for that matter. I do accept that you do want to change your life. Change has been really beyond you to this point. Maybe that will alter in the future. I do not rule that out. You still have family support.
Guilty Plea
54Let me now turn to some of the other matters raised on the plea. Firstly, to your guilty plea. You have taken early responsibility for your crimes by pleading guilty. That is important. Nothing I said in the course of the plea or will say now as to the conduct of the committal hearing impacts upon that position. You have in each case pleaded guilty. That is what is important. For the armed robbery relating to the events of 1 November, no witnesses were cross-examined at all. It settled on the day of a committal hearing. I will treat that as a very early plea. The other matter had proceeded earlier, though, by way of a contested committal on 2 May of this year. There was another charge related to another allegation, and that was discharged. However, for whatever reason, the decision was taken to cross-examine Ms Young and Mr Singh. That was a bit unfortunate. Though it was, of course, your right to cross-examine them through your counsel, it follows that they have not been spared the experience of cross-examination altogether. The matter then settled very swiftly once up in this court, which makes a bit inexplicable the decision to cross-examine them at all. Anyway, as I say, it was your right to do so. It is just that the utilitarian benefit is not quite as large in that case; they have not been spared cross-examination in the Magistrates' Court.
55However, those two victims and indeed all other witnesses including the first victim have been spared the experience of cross-examination at trial, so I am dealing with early pleas here. I make that very plain.
56As a result of your guilty plea, the time, cost and effort of a hearing in the Magistrates' Court in the case of Ms Pidamarthi or a trial up in this court in relation to all witnesses has been avoided. As I say, other than Mr Singh and Ms Young and the informant, witnesses have not been required to give evidence, and they were spared the experience of giving evidence in this court as a result of the speedy resolution of the matter. I note also that the cross-examination of Mr Singh and Ms Young was relatively brief and seemed to me sensitively conducted.
57You have facilitated the course of justice in these various ways and must be rewarded for doing so.
58There was some discussion about the status of the so-called Worboyes[5] discount. Your counsel accepted that there was some reduced weight attaching to that line of authority, and I am sure that is correct. Indeed, it is probably close to the point now where a future decision to plead guilty will not be met by any heightened benefit at all. That is because we have not only sailed beyond the pandemic, but more critically, the pandemic backlog in this court has now been cleared. We are operating at pre-pandemic levels, as the Chief Judge recently announced to the profession. This case, however, settled at an earlier point, and though to a large extent the backlog was then under control, it still seems appropriate to give some heightened benefit to the fact of the guilty plea in line with that decision. No doubt that would have been an expected outcome at the time of the resolution of the matter, so I will treat your guilty plea as worthy of some extra weight for the reasons set out in the Court of Appeal decision of Worboyes.
[5]Worboyes v The Queen [2021] VSCA 169.
59I take these various matters into account in mitigation.
Remorse
60Your counsel argued you had some remorse. He accepted that there was none disclosed in the police interview and that at least as of the date of the contested committal in May of this year, there was none on display. However, you pleaded guilty at an early stage. A guilty plea is often indicative of some remorse. I have statements as to remorse in the two reports prepared for this hearing. They are mixed in, though, with accounts that downplay your recollection and control over the offending. See, for instance,
paragraphs 29-31 of Ms Hall's report.61She says that you did not seem to appreciate the impact of your behaviours on the individuals affected and displayed only superficial remorse. Ms Bovenkerk speaks of taking limited responsibility, see paragraph 86. But I also have your letter. Again, in that letter, you speak of drug use, but you also seem to recognise the effect of your crimes upon the victims. I am ultimately satisfied on the materials placed before me that there is actually some remorse on display here, and I take that into account in your favour.
Youth
62I turn, then, to your relative youth. I spoke of these things when I last sentenced you in 2021, see paragraphs 28-34 of my reasons. The case law that I then mentioned has not altered. The application of it to my sentencing task has to a degree given the chronology and what has occurred since.
63As to this current offending, well, you were older, so 22 years of age at the time of this offending, and you are still only 23 now. You are, then, still a young man.
64I do accept that your relative youth is still of importance to my task. I say 'still', so that is to say despite what has occurred since I sentenced you in December 2021.
65I do take into account those principles as set out in cases such as Mills[6] and Azzopardi.[7] Young people are not fully developed. They can and do make very poor decisions without necessarily considering the consequences, and they are viewed generally as being more amenable to successful rehabilitation.
[6]R v Mills (1998) 4 VR 235 ('Mills').
[7]Azzopardi v The Queen [2011] VSCA 372 ('Azzopardi').
66The law generally treats youth as involving some reduction in culpability and as leading generally to some moderation of the punitive purposes of sentencing, including the need to deter and to punish. There is, generally speaking, a stronger focus on rehabilitation and less weight devoted to punishment. Well, this all makes perfect sense because of course the successful rehabilitation of a youthful offender actually serves to protect the community. After all, the community needs no protection from an offender who is rehabilitated.
67However, the weight to be given to youth will necessarily vary from case to case. Sometimes, of course, there is no choice but to send even a youthful first offender to prison. You were not some silly teenager, nor a youthful first offender. You are now 23 years of age, you were 22 years old at the time, and you have a highly relevant criminal history. It is, as I have said, a disturbing history, and you continue to offend seriously despite the various steps taken to foster your rehabilitation. Your counsel recognised the reduction of the weight to be given to youth in this case given the chronology, see paragraph 33 of the written outline.
68The fact is, the more serious the crimes, the less weight can be given to youth and to rehabilitation, and that is because more weight must be given to other purposes of sentencing, including community protection, deterrence and punishment. I do not lose sight of your youth in my task. I do accept that it is still of importance to my task, but you are a long way removed from being a youthful first offender. Unfortunately, you just continue to seriously offend. These offences that I am dealing with represent a sizable escalation in seriousness over and above the matter I last dealt with you for. You were on a community corrections order focusing on your rehabilitation. I did not load you up with any unpaid work. I wanted to try to foster your ongoing rehabilitation. You were being monitored. I do that rarely. I hoped that that would be beneficial. You had a job, you had family support. Still, you offended. The weight given to youth must surrender some sizable ground to the other purposes of sentencing. You present, I am afraid, a high risk of reoffence here.
Verdins
69I turn to the application of the fifth limb from the case of Verdins, which you heard discussed on the plea. That relates to the submission that you will experience an increased custodial burden owing to conditions spoke of in the two most recent reports.
70I have voluminous materials touching upon your psychological and neuropsychological makeup. Much detail as to your background is set out within those various reports, and I do have regard to that detail. I see no point in setting out slabs of those reports. Two are quite dated. I do note that any application of the principles from Verdins was specifically disavowed when the matter was before me back in 2021. That does not, though, determine the present position, of course, as I must act on the materials placed before me on this plea. The materials are different. I will not set out slabs of the two recently commissioned reports. When Ms Hall saw you in October, you were reporting symptoms consistent with moderate depression and mild anxiety in the week preceding the assessment. In fact, that report was commissioned to determine if there was any neurological or any other cognitive deficit enlivening the principles from Verdins, so a deficit either reducing your culpability or heightening your prison burden. There is none. She says at paragraph 73 that she did not form the opinion that you suffer from a level of cognitive impairment which would adversely affect your ability to cope with a term of imprisonment. Your counsel relies on later portions of that paragraph read in conjunction with portions of Ms Bovenkerk's report to enliven some application of limb 5 of Verdins. It seemed to me on the plea to be a pretty marginal proposition. Ms Hall at paragraph 73 went on to say that you have complex mental health needs that have remained largely unaddressed in a custodial setting and that an extended period of incarceration may impede your ability to access specialised and appropriate therapeutic interventions that you will require in order to effectively address your mental health issues. On its own, there was a level of speculation in that statement that I did not believe satisfied the burden that you assumed in this area. Your counsel pointed, though, to that conclusion in combination with some references in Ms Bovenkerk's report to enliven the fifth limb. He specifically disavowed any reliance on the sixth limb. He referred, amongst other things, to paragraphs 41, 44-45, 78 and 98 of Ms Bovenkerk's report. I note that Ms Bovenkerk did not complete any psychometric testing and to some extent relied on past assessment results as well as self-assessment. It is really all a bit unsatisfactory. However, I am prepared to find that you suffer from the conditions she spoke of, so persistent depressive disorder, post-traumatic stress disorder and generalised anxiety disorder. Obviously, there have been substance use disorders and there have undoubtedly in the past been
drug-induced psychoses, though I am not at all satisfied that any of the offending I am dealing with occurred in a setting of a psychosis. You plainly do not function at a high level. That much is clear from Ms Hall's report. She comments on your various strengths and weaknesses and the things needed by way of treatment. So too does Ms Bovenkerk. You have a high risk of reoffending. That much is clear.71Having considered the matter afresh since the plea and having read the reports relied upon and the submissions made, including the Crown's concession in this area, I am ultimately prepared to accept there should be some weight given to the fifth limb of the case of Verdins. There is some increased burden arising from the matters addressed in those reports. It is not a sizeable matter at all. I take into account this increased burden in all the sentencing exercises confronting me, including the community corrections order resentencing task.
Rehabilitation
72Let me turn, then, to your prospects of rehabilitation. You are still a young man and with youth comes hope for change. When I sentenced you in 2021,
I spoke of rehabilitation and my findings in that regard at paragraphs 35-44. What I said then, of course, must now be viewed as against someone who has committed these serious offences after being released from prison onto a community corrections order. Again, you are doing your best in custody. You are drug free, I believe, and you are working. Again, you write an insightful letter, but it is putting those words and sentiments into effect which has been so problematic. You claim to recognise the damage that you are causing others, and yet you offend against them. I accepted previously that you had some prospects of rehabilitation, and I said then that those prospects were fair. In my past reasons, I set out two scenarios, obviously hoping that you would fall into the first scenario of complying with my community corrections order and looking back, perhaps, as a 25-year-old at that bad chapter of your life but with rehabilitation well and truly achieved. Well, that is not the road you have taken, unfortunately. However, I still will not write you off.
73You speak of feeling that you have let me and others down. Do not concern yourself with letting me down. I extended you an opportunity. I hoped I would not see you again other than in monitoring you. You have obviously let yourself down, not me. But there is material before me, including in your current letter, that does suggest to me that you do actually want to change, and I had that sense when I was actually monitoring you. Hopefully, you can make real change in your life. I warned you that there would come a time when a court would not put any focus on your age and on your rehabilitative prospects. We are not at that stage yet. I do accept your counsel's submission that you have some prospects of rehabilitation. You also, though, regrettably, have a high risk of reoffence. Of course, I am concerned about the risk of institutionalisation, but the reality is if you offend as seriously as you have here, a court will be left with no choice but to impose substantial prison terms.
74So I accept the submission that you have some prospects of rehabilitation. It will take a lot of work and effort from you both when you are in custody and upon your release. Abstinence from illegal drugs and abandoning negative peer associations will be absolutely critical. If you cannot abstain from illegal drugs, your future prospects will be very bleak indeed. They will be almost non-existent, and you will be looking back on a wasted life. If, however, in the future, you can abstain from using illegal drugs, it is obvious that your rehabilitative prospects would rise very significantly indeed. It is not too late for you to change. The ball is in your court. You will have to make the choice.
COVID-19
75Your counsel placed no submission before me as to any increased custodial burden arising from COVID-19, no doubt in recognition of the fact that your time in custody on this occasion has been at a stage where the impacts of the pandemic on prisoners has dissipated. You have only been held since November of last year and by that point, all of the harsher restrictions which had been in play had been relaxed. So the things that I did take into account when I sentenced you back in 2021 have no application, at least in terms of my sentencing on the fresh indictment, so the things that were referred to at paragraphs 45-49 of my original reasons.
The Offences
76I have already briefly summarised the offending earlier in these reasons. The agreed summary goes into far greater detail. I also have the footage and the stills. The footage speaks for itself, including the look of unbridled fear and distress on the face of Ms Young as you manhandled her and threatened to stab her. I see no need to descend in detail now to the facts. It is conceded by your counsel that this offending is very serious, see paragraph 23. I accept there was not too much by way of detailed planning. Many soft target armed robberies, probably most, have very little planning. There was obviously some planning here, as we can see from the attempts taken to disguise your appearance, wearing either a face mask or scarf or balaclava and also gloves on one occasion and of course the carriage of the weapons. Also the interaction with others and the timing of events. We see, for instance, you wait for a customer to exit prior to launching the second armed robbery. You were in the store for a very decent period. Likewise, the first armed robbery, there was discussion and movement, and we can see you move around towards the side entrance to the counter, at which time you are seen to remove the machete from your clothing. I do not accept it was necessarily impulsive offending. You selected a target and you went in. There was plainly some planning. You were in company for the armed robbery upon Ms Pidamarthi, and there was the obvious interaction between you and your co-accused.
77The offending occurred in the early hours. Two of the victims were staff employed within these outlets. This was their workplace and a vulnerable one at that.
78It is not mitigatory that you were likely affected by drugs. I do not act on the submission from your counsel that the offending was aggravated by use of the weapon, see paragraph 24, in the sense that this was an armed robbery and a weapon was essential as an element. ‘Having with you’ a weapon is not aggravating. Rather, though, he clarified the position. He was referring to the manner in which you used the particular weapon. Your use of it and your reference to it in your demands is a matter of seriousness here. These were all vulnerable victims. All of them were soft targets. Your demand to Ms Pidamarthi indicated to her that you meant business, that you might use the machete if your demands were not complied with. It was a drawn-out offence with further reference to 'chopping her' when the offence was interrupted by a customer. It was terrifying. You were right in her face, invading her space, armed and threatening.
79The armed robbery that Ms Young was caught up in was worse still. I say armed robbery, but there were two, and of course she was caught up in both. You robbed her with physical force and with the weapon at her neck, but you also robbed the 7-Eleven, and that was also a serious example of soft target armed robbery. You were using her to effect that armed robbery and to bring about compliance by Mr Singh. You were doing that by threatening that you would stab Ms Young if Mr Singh did not comply. She is, if you like, a victim of each offence.
80Each of these three offences are serious examples of soft target armed robbery. They are a decent distance removed from what commonly occurs where a person enters an outlet, makes a demand to the person protected by a screen or security wire, a demand that is typically complied with and one that may not spell out any dire outcome at all. Well, here Ms Young was on your side of the counter, and she was being used by you as a prop in this serious offending. You made it clear to Mr Singh that you meant business, and this was obviously being conveyed to Ms Young as well. After all, you physically restrained her and placed the screwdriver at her neck and said you would stab her if Mr Singh didn't comply. You yelled out, 'Now', to reinforce your demand. It was terrifying offending, and I have indicated already, for Ms Pidamarthi, you were in her space.
81You were on a community corrections order at the time. That was a community corrections order imposed for the crime of attempted armed robbery. I had monitored you in September and was due to monitor you again in December.
82This was serious offending.
Purposes
83I have to consider a number of purposes of sentencing. One of those purposes is your rehabilitation. I must pay regard to those prospects of rehabilitation. There are some prospects here – I have said that already – and I do not ignore them, but they are not strong.
84I am required to punish you and to do that justly and proportionately. That is an important enough purpose of sentencing here.
85I must also denounce your conduct. Again, that is important. This was serious offending, and I must denounce your conduct.
86I must give real weight to specific deterrence here. Specific deterrence relates to the need to deter you from offending in the future. That is obviously important here. You have not been deterred by past court orders. You keep offending and seriously. I must deter you from ever offending in this way again. You must understand you cannot and must not act in this way in the future.
87There is also the need to adequately reflect general deterrence. General deterrence relates to the need to deter other people. It is an important consideration for these sorts of crimes. This court is required to send a clear message to others in the community who might be thinking of committing the sorts of crimes that you have committed. Regrettably, soft target armed robberies are not at all uncommon. Well, likeminded future offenders must be deterred from offending in this manner.
88Community protection is yet another purpose of sentencing, and it is of real importance here, and that is despite your relative youth, I am afraid. Your continued offending at such a serious level whilst on a community corrections order makes clear that I must seek to protect the community from you. I do not abandon hope that you may yet be rehabilitated. I do hope you can be, but the signs presently are not good. There are some prospects of rehabilitation. I can put it no higher than that. I am satisfied beyond reasonable doubt that there is a high risk of reoffending against totally innocent members of the public. Community protection is of obvious importance here.
89I must pay regard to the maximum penalties. Twenty-five years is the maximum penalty for armed robbery.
90I also have to pay regard to current sentencing practices and the impact of your crimes.
91Current sentencing practices are not a single controlling factor.
92I have looked at the relevant Sentencing Advisory Council Snapshot for armed robbery (Snapshot No. 261 of 2021). I think I told you when I originally sentenced you that the most common sentence when prison was selected, at least in relation to this snapshot, fell between three and less than four years. There are, though, a large range of sentences imposed, as is usually the position, spanning sentences of less than a year to a sentence that exceeds 10 years.
93I have looked at some instances of sentences for the offence of armed robbery, on the Judicial College of Victoria sentencing site.
94Statistics have inherent limitations. All the details which would explain the reasons for a particular sentence are omitted from the statistical data.
95No amount of looking at other cases or the statistics will ever provide the answer to my task. Sentencing is not some statistical or mathematical task. I am sentencing you for your crimes, taking into account the matters in mitigation and aggravation in your case.
Totality
96I have taken a last look at the orders that I intend to make, and I have done that to guard against a crushing outcome and to ensure that the total effect of my sentences is commensurate with your overall criminality here. In terms of the two indictments, I have three separate victims. There is no relationship at all between the victim on 1 November (Ms Pidamarthi) and the victims the subject of second offending on 3 November. Though occurring in a similar period of your life, it was a quite separate crime upon a separate victim at a different venue. The crimes committed at the 7-Eleven had that close connection, in that you robbed Ms Young personally whilst holding the screwdriver. You also effected the armed robbery upon the store by using her as a prop in the nasty fashion that I have described. There is that temporal and factual relationship, but of course each are serious instances of armed robbery, and there are differing victims and impacts.
97When I come to deal with the community corrections order and the resentencing exercise there, well, there is no relationship between that offending in March 2021 and any of the current offending.
98It follows, then, that there must be a level of cumulation here. That is obvious. These victims are not some job lot. They must be separately and adequately recognised. Still, though, there must be some moderation of the extent of cumulation to pay regard to the principle of totality of sentence.
99Prison is a disposition of last resort. Your counsel concedes there is no other option here. That a head sentence and one of a dimension requiring the fixing of a non-parole period is required here. I will be required as a matter of law to fix a non-parole period, and I will still provide for a decent gap between your head sentence and the non-parole period. This is really more a recognition of your youth than of your having favourable prospects of rehabilitation. Whether you are in fact released on parole is not something I am allowed to consider. That will be exclusively in the hands of the Adult Parole Board. It will be, if you like, between you and them.
Sentence
100I will have you stand up now, then, please. Mr Dinkneh, you will lose track of all these sentences. I will explain what it all means towards the end, all right.
Indictment N12393619.1
101I will sentence firstly on Indictment N12393619.1.
102This is the charge relating to the armed robbery upon Ms Pidamarthi. On that charge relating to that armed robbery upon Ms Pidamarthi, you are convicted and sentenced to three years' imprisonment.
103That is the only sentence on that indictment, and hence it is, if you will, the total effective sentence on that indictment, being three years.
Indictment N12393481.1
104I move, then, to Indictment N12393481.1. This relates to the 7-Eleven a couple of days later.
105On Charge 1 – this is the armed robbery upon Ms Young – you are convicted and sentenced to three years and three months' imprisonment. That will be the base sentence on that indictment.
106On Charge 2, the armed robbery upon Mr Singh, you are convicted and sentenced to three years' imprisonment.
N12393481.1Cumulation as between charges on Indictment
107On that indictment, the base sentence is the three years, three months imposed on Charge 1.
108I direct that:
·six months of the sentence imposed on Charge 2 is to be served cumulatively upon that base sentence. This order produces, then, six months' cumulation, and I hence have a total effective sentence on that indictment of three years and nine months' imprisonment.
Cumulation as between the two indictments
109As to the three years imposed on the charge relating to Ms Pidamarthi, I direct that 12 months of that sentence is to be served cumulatively upon the total effective sentence pronounced on the other indictment and upon any other part cumulative sentence imposed today, so this adds a period of 12 months, which to this point, then, is a total effective sentence between the two indictments of four years, nine months' imprisonment.
CCO breach
110Finally, I have the community corrections order. I take into account the various materials placed before me, not just the breach report but the original material placed before me on the plea as well as the other materials placed before me in the course of this current hearing. No one is suggesting that the recommendation in the breach report is realistic. It just is not. I do take into account the extent of your compliance at each stage, firstly, in determining what step to take under s83AS of the Sentencing Act and, secondly, as I am of the view that there is only one course open – that is, cancellation and resentencing under s83AS(1)(c) – I take into account the extent of your compliance in that resentencing exercise. I have the breach report spelling out what you did and of course what you failed to do. It was a bit of a mixed bag, with openness and some positive engagement sometimes but sporadic attendance and obviously some failures. Also of course serious breach by offence. It was not, however, a completely derisory performance, and I said earlier I had a sense when monitoring you that you were actually making some efforts.
111Again, there is no utility in setting out the original summary or restating all of my findings back then or now. Some things have not altered – for instance, the stage of that plea in that matter, the presence of remorse and the nature and gravity of that offence. Obviously enough, some things have altered. For instance, previously there was no reliance on any of the principles from Verdins. Well, in resentencing you, I have regard to my limb 5 finding made on the materials now before me. Other things, though, have altered in a less favourable direction, owing to your being older and your continued offending. There is, of course, some alteration of my view as to your prospects of rehabilitation and my judgment as to the need to deter you and to protect the community from you. I see no need to restate all of my current findings. My current sentencing remarks, which are very lengthy, spell them out in detail, and they apply to this resentencing task.
112The breach is proven. Well, of course, it was admitted, and what I said about the benefits of a guilty plea apply to the guilty plea to the charge of contravention. I cancel the order. On the offence of contravening that order, on the offence itself, you are convicted and sentenced to seven days' imprisonment. On the resentencing exercise, I follow the directive from the case of Luu[8]. I set aside that previous sentence that was imposed by me back in December 2021, and I sentence afresh on this single charge of attempted armed robbery, then I must declare the pre-sentence detention previously served on that matter.
[8]Luu v The Queen [2018] VSCA 92 at [23] (‘Luu’)
113On the charge of attempted armed robbery, I convict and sentence you to 21 months' imprisonment. I declare in relation to that matter that you have spent 304 days in custody by way of pre-sentence detention on that matter.
Cumulation upon the two indictments
114I direct that three months of that 21-month sentence is to be served cumulatively upon the global total effective sentence of four years, nine months that has been reached as between sentences imposed on the other two indictments.
115The seven-day sentence imposed on the breach offence will be served concurrently with all other sentences. As I say, you will be losing track of what this all means.
Global Total Effective Sentence as between all matters
116These various orders are designed to produce a total effective sentence as between all these matters of five years or 60 months' imprisonment. That is my intention.
Non-parole period
117I fix a period of 30 months or two and a half years during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
118On the two indictment matters, you have already served 378 days of this sentence by way of pre-sentence detention, and that s18 declaration is entered into the records of the court.
119I have mentioned already the s18 pre-sentence detention in relation to the community corrections order resentencing exercise. That period of 304 days is also to be entered into the records but specifically in relation to that matter. That period of 304 days is not added to the other pre-sentence detention declaration and credited against the global total effective sentence. You served that 304 days, leading to your release on the community corrections order, which is why I now redeclare it in accordance with the case of Luu. I have cumulated three months of that 21-month sentence upon the other sentences, and so it follows that in relation to the global total effective sentence of five years' imprisonment, you have served 378 days.
Section 6AAA
120I have taken into account your guilty pleas. I have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to seven years' imprisonment. I would have fixed a non-parole period of four and a half years.
121Grab a seat, then, for a moment. I will see if there is anything else. Is there anything from either of you?
122MS ALLAN: No, Your Honour.
123MR OLDHAM: Nothing further, Your Honour.
124HIS HONOUR: Do you understand the mathematics of all of that?
125MR OLDHAM: Yes, Your Honour.
126HIS HONOUR: Is it correct, at least the maths of it?
127MS ALLAN: It is correct, Your Honour, yes.
128MR OLDHAM: Yes, Your Honour.
129HIS HONOUR: Yes, all right. Well, look, I will revise these remarks once I get them back from VGRS. I typically do it on the day that I get them, and I will make them available to the parties. Anything else, then, from either of you, or not?
130MS ALLAN: No, Your Honour.
131HIS HONOUR: There is no need for any sort of directions or anything like that?
132MR OLDHAM: No, Your Honour.
133HIS HONOUR: Yes. And you will go down and see your client downstairs and discuss what has occurred and what it all involves?
134MR OLDHAM: Yes, I will, Your Honour.
135HIS HONOUR: Yes, all right. Well, that completes the matters, then, Mr Dinkneh. Mr Oldham will come down and have a chat to you about what has occurred, what it all means and your rights in relation to the sentence that I have imposed. So he will come down and see you downstairs, all right? So Mr Dinkneh can be removed now, thank you. Yes, I have got a couple of appeals. I will stand down and come back onto the Bench once they are here, thank you.
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