Director of Public Prosecutions v Donaldson

[2021] VCC 723

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-20-01703

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEFYALEW DONALDSON

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2021, 2 June 2021
DATE OF SENTENCE:	7 June 2021
CASE MAY BE CITED AS:	DPP v Donaldson
MEDIUM NEUTRAL CITATION:	[2021] VCC 723

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentencing.                

Catchwords:              Plea of guilty – Three charges of armed robbery – One charge of prohibited person in possession of imitation firearm – Offender entered three stores armed with imitation firearm and stole cash and cigarettes – Offending fuelled by drug addiction – Serious examples of soft target armed robberies – Relevant criminal history – Insight – Schizophrenia – Verdins – Relative youth – Totality – COVID-19 conditions in custody.

Legislation Cited:      Crimes Act 1958 s 75A(1); Control of Weapons Act 1990 s 5AB; FirearmsAct1996 s 3; Sentencing Act 1991 ss 6AAA, 18, 44.

Cases Cited:DPP v Stevens [2013] VSCA 187; The Queen v Alashkar [2007] VSCA 182; DPP v Weybury [2018] VSCA 120.

Sentence:                  Imprisonment for a period of 3 years and 6 months with a non-parole period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E Fargher	Office of Public Prosecutions
For the Accused	Mr S Andrianakis	Paul Vale Criminal Law

HIS HONOUR:

Introduction

1Kefyalew Donaldson, you have pleaded guilty to three charges of armed robbery contrary to s 75A(1) of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment on each charge (Charges 1, 2 and 3), and one charge of being a prohibited person in possession of an imitation firearm, contrary to s 5AB of the Control of Weapons Act 1990, which carries a maximum penalty of 10 years imprisonment (Charge 4).

2You have also admitted your Criminal Record.

Circumstances of the offending

3A prosecution opening was tendered on the plea and may be summarised as follows:

4At the time of the offending, you were 23 years of age and residing at Salvation Army crisis housing in St Kilda.

5The three victims in this matter were unknown to you and carrying out the terms of their employment as store attendants at the time of the offending.  Aditya Janga and Prasanna Yedida were employed at 7-Eleven stores in St Kilda and Prahran and Quang Nguyen at Shell Coles Express in St Kilda.

6The offending relates to three separate incidents on the morning of 24 July 2019 at those stores.  The cash and property stolen by you was the property of the victim’s employers.

7The offending in each case was captured on CCTV installed in each respective store.

Charge 1

8On 24 July 2019, at approximately 12.03 am, you entered the 7-Eleven store located at 255 Chapel Street, Prahran.  At that time the victim, Mr Janga, was working behind the store counter.

9

You asked Mr Janga for a packet of Bond Street 20's cigarettes, which Mr Janga retrieved from the cupboard behind him and placed on the counter.  You told

Mr Janga you had to get money from outside, and briefly left the store before returning at 12.05am.

10While you were gone, Mr Janga locked the front door to the store.  Before unlocking the door to allow you to re-enter, Mr Janga looked and checked that you did not have anything in your hands.

11After entering the store the second time, you approached the counter where
Mr Janga was standing and produced what the victim described as, 'a firearm… a black handgun' from the waistline of your pants.  This was an imitation firearm. You pointed the imitation firearm towards Mr Janga and repeatedly told him to, 'give me the notes'.  Mr Janga opened the cash register drawer and handed you approximately half the banknotes that were contained inside.

12You took the banknotes and walked towards the front door, while repeatedly telling Mr Janga to 'open the door'.  Mr Janga unlocked the door from his position behind the counter and you left the store with the packet of cigarettes and the banknotes.  It is these facts that relate to Charge 1, armed robbery.

Charge 2

13A short time later at approximately 1.17am, you attended the 7-Eleven store located at 80B Acland Street, St Kilda where Ms Yedida was working.  The front door was locked and upon seeing you, Ms Yedida went behind the counter to unlock it for you.

14You entered the store and immediately approached the counter where Ms Yedida was standing.  You produced what the victim described as 'a gun…an old gun with some red paint on the end of the nozzle', from the pocket of your pants and held it in front of your stomach, using your left hand to partly cover the gun.  This was an imitation firearm.

15You told Ms Yedida to 'give me the till'.  Ms Yedida, scared and shaking, opened the cash register and placed the drawer on the counter.  You took a number of banknotes from the drawer.

16You asked Ms Yedida, 'where's your mobile?'  Ms Yedida told you it was in her locker and she could not get it.  You left the store with the banknotes.  It is these facts that relate to Charge 2, armed robbery.

Charge 3

17A short time later, at approximately 1.22am, you attended the Shell Coles Express store located at 120-134 Barkly Street, St Kilda at which time Mr Nguyen was working behind the counter.

18You rang the bell and Mr Nguyen, upon seeing you, unlocked the front door and you entered.

19You immediately approached the counter where Mr Nguyen was standing.  You asked Mr Nguyen for a packet of Bond Street 25's cigarettes.  Mr Nguyen turned around to retrieve the cigarettes from the cupboard behind him.  While his back was turned, you produced the imitation firearm.

20When Mr Nguyen turned back around to face you, he saw you were holding what Mr Nguyen described as 'a gun… a small handgun' pointed towards him.  You told Mr Nguyen to give you money.  Mr Nguyen began collecting money from the register and you told him only to give you the notes and also the cigarettes.

21Mr Nguyen threw the banknotes from the register and the packet of cigarettes on to the counter.  You took the money and cigarettes and told Mr Nguyen to open the door.  Mr Nguyen opened the doors and you left the store.  It is these facts that relate to Charge 3, armed robbery.

Investigation, arrest and interview

22The descriptions of you obtained by police after the three incidents were consistent.  After the third armed robbery, numerous police units including the Critical Incident Response Team were patrolling the area to locate you based on the descriptions given.

23At approximately 3.05am, police observed you standing on the corner of Chapel Street and Malvern Road in Prahran.  You were wearing the same clothing as was depicted in the CCTV footage, though you were not wearing a t-shirt under your hooded jacket.  You responded to questions from police and provided your name and details.  Police informed you that you matched the description of a male wanted for armed robberies committed in the area and waited for further police units to arrive.

24After other police units arrived, you were placed under arrest, cautioned by police and informed of your rights.  Police commenced a search of your person and located a black coloured plastic imitation handgun in the front left pocket of your pants.  The imitation firearm was seized by police.

25As at 24 July 2019, you were a ‘prohibited person' within the meaning of s 3(1) of the Firearms Act 1996, because not more than five years had expired since you finished serving a term of imprisonment of less than five years for an indictable offence.  It is these facts that relate to Charge 4, being a prohibited person in possession of an imitation firearm.

26You were conveyed to the Prahran police station and interviewed by police. During the interview you were shown excerpts of the CCTV footage of the armed robberies.  You denied that you were the man depicted in the footage and largely responded 'no comment’, to questions asked by police.  You were remanded in custody the same day.

27At 6.30am, police executed a search warrant at the address provided by you, namely 4B Upton Road, St Kilda.  The onsite manager confirmed that you were residing in Unit 5.  Police seized a number of items from Unit 5 including:

·        

a mustard t-shirt matching the t-shirt depicted in the CCTV footage of the

7-Eleven Prahran armed robbery;

·        a white cap matching the cap depicted in the CCTV footage of all three armed robberies;

·        two packets of Bond Street cigarettes; and

·        $450 in Australian currency, made up of various banknotes.

28Police also seized CCTV footage from the vicinity of your Upton Road address. That footage showed you leaving your address prior to the armed robberies on 24 July 2019 at 11.41pm, returning to the address after the third armed robbery at 1.37am, and leaving the address prior to your arrest at 2.47am.

Nature and gravity of the offending

29Armed robbery is a very serious offence which is reflected in the maximum penalty of 25 years imprisonment.  In this instance your victims are rightly described as soft, vulnerable targets working late at night in isolated circumstances.  As was observed by Osborne JA in DPP v Stevens[1]:

Armed robbery is a very serious offence. It is predatory in its violence and fundamentally destructive of the security and confidence in the law which those who operate facilities such as convenience stores are entitled to enjoy.

[1] [2013] VSCA 187 at [31].

30In The Queen v Alashkar[2], Kellam AJA noted:

There is no need to recite any of the many statements by this Court concerning the gravity with which the robbery of persons who are sometimes termed “soft targets” is viewed.  It is both a reality and a necessity in our community for many people to work in isolated situations that render them vulnerable to criminal attack.  Taxi drivers, service station and convenience store attendants, and persons operating small family businesses, such as milk bars, spring readily to mind in this context.   They must be able to rely upon the full protection of the law and those who contemplate exploiting their vulnerability in the fashion of the appellant, must anticipate that the consequences for them may very well be the imposition of a substantial gaol term.

[2] [2007] VSCA 182 at [36].

31I respectfully adopt the comments of Justices Osborne and Kellam.

32Whilst no victim impact statements were prepared, there is no doubt that your conduct which involved confronting the victims with an imitation firearm and making demands would have instilled great fear.  For example, as outlined in the prosecution summary, Ms Yedida stated that she was 'scared and shaking'.  The fact that the firearm was an imitation would not reduce the fear experienced by the victims, although I note that in relation to Mr Nguyen, he stated that the gun looked like a real gun but thought it may be a fake.

33The value of the property stolen was not significant and the prosecution accepts that your offending was spontaneous and clearly a desperate attempt to obtain money quickly in order to fuel your serious drug addiction.  It was submitted on your behalf that the offending lacked features of aggravation in that you did not threaten to shoot the victims or harm them, you did not try to jump over the counter and you were not in company. Thus, it was submitted that your offending falls towards the 'lower end' of this type of armed robbery.  However, as the Court of Appeal noted in DPP v Weybury[3], classifications such as 'mid-range' or in this case 'lower end', carry a risk that it will attract reference to current sentencing practices for offences previously categorised in a particular range, thus bringing the risk of limiting the instinctive synthesis.

[3] [2018] VSCA 120 at [54] (Priest JA).

34The psychological evidence provides that while you were under the influence of ice at the time and suffering your underlying psychological illnesses, you made a conscious decision to approach three separate targets in succession at night and you clearly understood the wrongfulness of your conduct.  Your aim was to quickly obtain money to fuel a serious drug addiction.  Thus, in all the circumstances in my view your offending represents serious examples of this type of soft target armed robbery.

35As to Charge 4, possession of the imitation firearm as a prohibited person, it is also a serious offence. However in this instance, it does not fall within the more serious category of a person in possession of an operable handgun and it appears from the evidence that you obtained the firearm for the sole purpose of committing the armed robberies.

Personal circumstances

36You were born in Ethiopia on 3 June 1996 and are 24 years of age.

37Your father died suddenly when you were two and your mother died when you were three.  You have four siblings.  In 2000 at the age of four you and one of your sisters were adopted by Wesley and Andrea Donaldson and you emigrated to Melbourne to live with them.  Six years later, your adoptive parents adopted your eldest sister and she relocated to Australia.

38You attended Chelsea Heights Primary School.  In 2007 and 2008 you engaged with speech pathologists who identified that you had an expressive language disorder.  In 2012 at the age of 15, you were referred to Dr John Bench, audiologist and psychologist, as a result of behavioural issues identified by your parents and teachers.  Dr Bench assessed you and identified features of attention deficit hyperactivity disorder.

39You attended Mordialloc College.  You were a very talented and motivated AFL footballer in your teen years.  You played for Chelsea, were involved in the inaugural Junior Multicultural Program and were working towards AFL preselection through the Dandenong Stingrays.

40At the age of 16 you joined an antisocial peer group, began using cannabis and became disengaged in school and AFL football.  You left school in Year 10.  At the age of 17 you began experiencing psychiatric symptoms including auditory hallucinations.  You sought treatment from Headspace and were prescribed medication.

41After leaving school you completed VCAL at Holmesglen and Chisolm TAFE. This course included pre-apprenticeship and work experience with Kingston Electrics.

42In 2015 you commenced work with Jayco Caravans and in 2016 you began using ice regularly.  After 14 months working at Jayco Caravans, your employment was terminated as a result of non-attendance, linked to your mental health issues, and you have been unemployed ever since.

43It was at this point that you became acutely unwell and your life became unstable.  You were using ice regularly as well as other illicit substances such as GHB and ecstasy.  Your mental health declined and you were experiencing auditory hallucinations, which led to you being admitted to hospital under the Mental Health Act 2014. In 2017 you engaged with Headspace and had the first of seven inpatient hospital admissions due to your psychotic symptoms.  You were ultimately diagnosed with schizophrenia and medicated to manage this illness.  You experienced housing instability after moving out of home, living between Neami (Mental Health Support) Seaford Accommodation, Salvation Army supportive accommodation and with friends.  Your substance use and addiction issues also became very problematic and in 2018 you committed your first offence and entered the criminal justice system.  

44In February 2019 you were admitted to the Dandenong Hospital after experiencing command auditory and visual hallucinations to harm others.  You were managed under an inpatient temporary treatment order pursuant to the Mental Health Act 2014 and subsequently discharged on a community treatment order.  You were unable to commence the residential rehabilitation program at Odyssey House as you returned a positive drug test prior to entry.

45In April 2019 you presented at the Royal Melbourne Hospital and after about a week in the psychiatric unit, you were discharged to the Salvation Army crisis accommodation in St Kilda.  At the time of this offending you were living at this accommodation awaiting acceptance for Neami Housing in Hawthorn.

46You enjoy a strong and supportive relationship with your adoptive parents with whom you have regular contact via telephone.  They observed the plea virtually and prepared character references which were tendered at the plea.  Your mother, Andrea Donaldson, outlined key events in your upbringing and writes of your struggles with addiction and mental illness.  She also describes your concern for others, including the victims, and your tendency to seek help.  She maintains that you will always have your family's love and support.  Your father, Wesley Donaldson, writes of your struggles with schizophrenia and drug use leading up to the offending and how you have expressed your regret and sorrow for what you have done.  Mr Donaldson confirms that you will continue to have his support also.  Other references were tendered from family friends each of which speak of the positive sides to your character when you are not suffering from your drug addiction and each offer their continued support.

47A number of reports were tendered as follows:

·The Alfred Headspace Discharge Summary, dated 15 August 2019;

·a report from Dr Sachin Jindal, consultant psychiatrist, dated 12 December 2019;

·a report from Dr Warrick Brewer, Consultant Clinical Neuropsychologist, dated 20 April 2018;

·a report from Dr John Bench, audiologist and psychologist, dated 16 April 2012; and

·two reports from Dr Mathew Barth, psychologist, dated 13 September 2020 and 24 May 2021.

48I have read each of those reports and taken them into account.  The first report of Dr Barth was prepared for other offending for which you were sentenced in October 2020.

49In Dr Barth's second report he confirmed that the diagnoses he made in the first report remain relevant.  He confirmed the impacts of your schizophrenia and further, that you have now developed depressive symptoms since being in custody.  He also confirmed that you suffer from a stimulant use disorder at the severe level; however, that the disorder is currently in remission as you are in a controlled environment.

50As part of the second report, Dr Barth conducted a risk assessment concluding that your risk of general recidivism is more likely to fall in the higher range, noting that because of your ingrained mental health and behavioural problems it is very unlikely that you will be able to sustain any positive changes without the provision of strict long term structure, support and treatment.

Sentencing considerations

51Mr Andrianakis, who appeared on your behalf at the plea, outlined a number of matters in mitigation.  First, your plea of guilty.  This matter resolved on 4 December 2020 prior to any witnesses being cross examined at a committal. Your plea of guilty is an early plea and has avoided the cost and expense of a jury trial sparing the witnesses from having to give evidence and relive the offending.  Further, pleas of guilty in the context of the COVID-19 pandemic carry substantial utilitarian value.  Your willingness to facilitate the course of justice is a matter I take into account in your favour.

52Over and above your plea of guilty, it was submitted that you have demonstrated genuine remorse and insight into the effects of your offending.  In the references tendered, particularly your parents', the writers state that you have expressed remorse for your actions.  Further, in the second report of Dr Barth you stated, 'it's all a blur, I was on so much ice.  I just wanted money to get more drugs and thought it (the armed robberies) would be an easy thing.  I know it's a bad thing, they (the victims) are probably traumatised.  I truly am sorry'.  In the circumstances I accept that you are developing insight into your offending and that you now have some appreciation of the impact of your conduct on the victims.

53You come before the court with a relevant criminal history.  In April 2018, you received a term of imprisonment for a number of offences including a number of charges of aggravated burglary.  The historical materials note that the aggravated burglaries were committed whilst you were under the influence of methylamphetamines.  You were also placed on a community correction order as part of the April 2018 sentence upon your release.  These offences were committed shorty after that order had expired.  In October 2020 you were sentenced to a term of imprisonment in this court for offences of using a carriage service to access child pornography.  Therefore, specific deterrence must feature prominently in the sentencing discretion.

54Mr Andrianakis submitted that Verdins principles are enlivened in this instance. He relies on the psychological evidence and submits that the six limbs of Verdins have application.  Mr Andrianakis primarily relies on your diagnosis of schizophrenia and Dr Barth's opinion as to the general effects on persons suffering from the disorder including impacting the sufferer's capacity for clear reasoning and decision making.  More specifically, in your case, Dr Barth confirms in his second report that:

In regards to the functional impacts of these diagnoses, Mr Donaldson has poor social skills, has become increasingly alienated from mainstream society and has exhibited a propensity for impulsive and disinhibited behaviour to compensate for his remedial coping skills.  In particular, the significance of his emotional and behavioural dysfunction means that Mr Donaldson continues to suffer with deficits in his ability to apply appropriate judgment.  His significant drug addiction exacerbated this issue further.  Notwithstanding the severity of his poor judgment, I remain of the view that Mr Donaldson's cognitive functioning was not impaired to the degree that he was incapable of understanding the wrongfulness of his offending behaviour.

55Ms Fargher, who appeared on behalf of the Director of Public Prosecutions, submitted that the evidence does not allow for the application of Verdins principles 1 to 4, noting your comments to Dr Barth that you committed the offence to obtain money for drugs, that you were under the influence of drugs at the time and that you were well aware at the time of the wrongfulness of your conduct.  While that terminology may be a reference to the lack of a defence of mental impairment, nonetheless there is no evidence at all of bizarre behaviour or disordered thought in the time leading up to the offending or during the offending.  Your conduct involved a degree of forethought and you repeated the same conduct on three targets in the same manner each time.

56While I accept that your schizophrenia is a chronic and debilitating condition, having considered the evidence, in all the circumstances I am not persuaded that Verdins principles 1 to 4 are enlivened in this instance.  In my view, the evidence does not support a causal connection between your psychiatric condition and the commission of the offences.  As was made clear in Verdins, the particular condition that the person is suffering must have had the effect of impairing the person's ability to exercise appropriate judgement, or impairing the offender's ability to make calm and rational choices, or to think clearly at the time of the offence.[4]  That said, your long term battle with schizophrenia is a matter I take into account as part of your personal circumstances in the general sentencing discretion.

[4] The Queen v Verdins (2007) 16 VR 269 at [26].

57As to Verdins principles 5 and 6, I accept the evidence of Dr Barth that while your symptoms have stabilised to a degree, your disorder is chronic and that you are at risk of further deterioration in custody and that you have developed depressive symptoms since being in custody.  Further, I accept the evidence of Dr Barth that any period of imprisonment is likely to be more burdensome for you when compared with prisoners who do not suffer your disorder.

58As to your prospects of rehabilitation, you are fortunate to have the continuing support of your parents who are committed to assist you in putting this turbulent period of your life behind you.  You also have the wider support from family friends, some of whom demonstrated their support via the character references which were tendered on the plea.  You have also spent your time in custody productively, working in upholstery, making canteen and laundry bags for the prison.  You also actively play chess and use the gym.  Most importantly, you have remained drug free in custody and appreciate the connection between your drug use and your offending.  If you remain drug free your prospects will undoubtedly improve, and your illness will be easier to manage.  If you avail yourself of the support you have in the community, in my view your prospects are reasonable.

59I take into account your relative youth.  At 24 you are still a young man and while your drug addiction has very quickly led you into serious criminal offending and exacerbated your mental illness, rehabilitation must still play a part in the sentencing equation.

60Mr Andrianakis submitted that your time in custody has been particularly difficult as a result of the COVID-19 restrictions.  You were subjected to half day lockdowns on remand at Port Phillip Prison and when you were transferred to the Metropolitan Remand Centre and then Hopkins Correctional Centre you were required to quarantine for seven and eight days respectively.  You were unable to receive in person visits from your parents during the height of the pandemic and even though visits have resumed, they are sporadic and often cancelled which understandably causes you anxiety.  The very recent outbreak in Victoria will undoubtedly impact the correctional environment further.  You are entitled to have these matters taken into account.

61Ms Fargher submitted that general deterrence and protection of the community are important sentencing considerations, which I accept.  She also submitted that specific deterrence is relevant in this instance as you are well aware that when you use drugs you can behave in a desperate and violent manner which is reflected in your criminal history.

62Finally, I take into account the principle of totality.  While at the time of the plea hearing you have spent 406 days on remand in relation to this offending, you have, as a result of the matter for which you were sentenced in October 2020, been in custody for some 679 days.

63Mr Andrianakis submitted that all the sentencing principles could be met without the imposition of any further period of imprisonment, through a combination sentence pursuant to s 44 of the Sentencing Act1991.  As was discussed at the plea, in all the circumstances in my view the only appropriate disposition is a head sentence with a non-parole period.  However, in my view you would benefit from a longer than usual parole period.

Sentence

64Mr Donaldson, would you please stand.

65Kefyalew Donaldson, on Charges 1, 2 and 3, armed robbery, you are convicted and sentenced to two years and 6 months imprisonment on each charge.  On Charge 4, being a prohibited person in possession of an imitation firearm, you are convicted and sentenced to 9 months imprisonment.  I direct that 6 months of the sentence on Charges 2 and 3 be served cumulatively on each other and on Charge 1, making for a total effective sentence of 3 years and 6 months.  I direct that you serve 2 years before becoming eligible for parole.

66Pursuant to s 18 of the Sentencing Act 1991, I declare that 411 days be reckoned as the period of imprisonment already served under the sentence I have imposed.  That does not include today.

67Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 4 years and 6 months with a non-parole period of 3 years.   

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