Director of Public Prosecutions v Duff
[2022] VCC 1417
•19 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-00535
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZAC DUFF |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 19 August 2022 |
CASE MAY BE CITED AS: | DPP v Duff |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1417 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Dearman | |
For the Accused | Mr J. Bowden |
HER HONOUR:
1Zachary Duff, you have pleaded guilty before me to one charge of armed robbery.
2The facts underlying this offending are as follows. On 6 October 2021 you went to the BWS liquor store in Clarinda and went to a liquor display cabinet looking at the contents inside.
3A BWS employee, Joshua Huesden, who was serving someone else, saw you banging the cabinet with a screwdriver. He took a few steps toward you and yelled 'Oi'. You turned around to look at him and raised the screwdriver in your right hand to waist height, pointing at Mr Huesden and making some stabbing motions, forcefully saying 'Open the cabinet'.
4Mr Huesden told you the stock was on the front spirits display and said, 'Take what you want'. You said, 'Open the cabinet' two or three times, as Mr Huesden was backing away, shuffling towards him, threatening him with a screwdriver and saying, 'Open the display or I'll stab you'.
5As Mr Huesdon backed away you walked to the display cabinet and took two bottles of Wild Turkey Longreach costing $58 each, whilst Mr Huesdon called Triple 0.
6You left the store, walked to an alleyway and left on a push scooter.
7On 12 October police executed a search warrant at your home in Clarinda - you were not there - seizing two empty Wild Turkey Longreach bottles.
8On 16 November, your mother's address was raided by police, where you were located asleep in the bedroom and then placed under arrest.
9You cooperated by showing police a multi-tool screwdriver on the floor next to your bed, which police seized, as well as clothing you had worn at the time.
10You conducted a no comment record of interview. You have no prior convictions.
11You were charged and bailed on 16 November 2021, on which you have remained ever since. The matter proceeded by way of straight hand-up brief at a committal case conference, so a plea of guilty essentially was entered at the first available opportunity.
12The maximum penalty for armed robbery is 25 years' imprisonment.
Personal Circumstances
13You are now 20 years old and you were 19 at the time of the offending. You were born in Ballarat and raised by your mother along with your sister, Hailey. You have had no contact with your father since you were three.
14There were constant moves during your childhood. Your family moved to Darwin, Ballarat, Melbourne, then back to Darwin, then back to Melbourne. Your mother had periods of homelessness and difficulty and when you were 15, you were homeless with her for about three months, living out of a car until your mother found private rental in Frankston, where you lived for four years.
15You then moved to a house in Clarinda to live with a friend and that is where you were living at the time of the offending.
16Your father was apparently a violent alcoholic drug user. You tried to reconnect with your father early this year but he cancelled a face-to-face meeting on several occasions.
17You were in a relationship which began in 2020 but that ended in May of this year.
18You apparently attended six schools as a child because of the constant moving. You were often suspended, easily bored and you last went to school at Caulfield Park Community School where you dropped out at age 15. You completed Year 9 but failed Year 10. You did try to do the Victorian Certificate of Applied Learning in Year 11 but had trouble with that and did not complete it.
19In 2020 due to COVID you did not go to school for the entire year and only went to one week of class in 2021.
20Unsurprisingly, in the circumstances you do not have a particularly stable employment history. You worked on and off as a labourer and concreter for friends from about the age of 16, for which you were paid cash.
21Importantly in April of this year you started working for Clean Duct, an industrial cleaning service. I received a reference from your employer who described you as respectful, diligent and accommodating and, Ms Petra Edwards, who is the Administration Manager of Clean Duct - described you as an asset to the company and saw you as having a future with it. She stated, 'We have discussed the incident in great length, and he sincerely regrets his actions and understands that he must be accountable for the circumstances. I believe Zac Duff is a decent hardworking and trustworthy person and this behaviour was a one-off event'.
22Importantly also in my view, you have moved in with your sister who wrote a reference supporting you, saying that you are of great assistance with her son, your nephew, and generally speaking, your life has become far more stable and productive and that is very much to your credit.
23It appears at the time of this offending you were suffering mental health difficulties. I received a psychological report from psychologist, Gina Cidoni, and she said you have for a long time suffered the effects of an unstable and traumatic childhood. You developed a drug dependency which has decreased.
24You began using alcohol when you were 15 starting off as a social activity, by age 18 it was a habit. You started using cannabis when you were 12 and used daily between the ages of 16 and 19. You have also used ecstasy and party drugs. You told Ms Cidoni your use developed to daily use of cocaine, nitrous oxide, GHB and Xanax and you started drinking daily. This appears to have been in the context as well of a relationship that was on and off and then ended, causing you a great deal of distress.
25As a result of testing administered by Ms Cidoni you were diagnosed as suffering a major depressive disorder and a borderline personality style. Luckily, you have managed to cut back on your drug and alcohol use. Ms Cidoni said that your major depression had 'Developed in response to his ongoing psychosocial stressors and is linked to his low efficacy with problem solving struggles and interpersonal relationships and day to day functional struggles. It is accompanied by persisting feelings of hopelessness, sadness, worry and withdrawal'.
26That does not mean by any means, Mr Duff, that you are a person without promise or capacity. It just means that your mother, your sister and you have had a lot of struggles in life. There has been poverty, there has been homelessness, there has been a lot of moving around and anybody in those circumstances is going to develop the sort of psychological response you have, where you feel unstable, hopeless, and that things are not working out for you. It is very much to your credit that you have not previously ever been in trouble with police.
27I am satisfied that you present a low risk of reoffending based on your prior criminal history and based on the way in which you have managed to stabilise your life since being arrested in relation to this offending.
28I am satisfied that this offending did not start off as a planned armed robbery by you, but was a decision made in the fog of alcohol and drug use to obtain further alcohol. Your aim was to steal the alcohol and then once staff intervened, it turned into an armed robbery.
29I regard the offending as at the lower end of the scale in terms of the seriousness that can attach to this sort of offending.
30I have had you assessed for a community corrections order for which unsurprisingly, you have been found suitable. The submission was made, and I note that this was not objected to by the prosecution, that I should place you on a community corrections order without a conviction.
31You told the assessor you had completely stopped using drugs about eight months ago, but you are still drinking between 16 and 22 standard drinks once a fortnight. And so the recommendation has been that you undertake treatment and rehabilitation both for drugs, alcohol and mental health.
32So what I am going to do, Mr Duff, is I am going to place you on a community corrections order which I can only do with your permission, so I will have to go through the conditions with you, but it is my view that it is appropriate that no conviction be attached to the community corrections order.
33This is because you have no prior convictions, you are still a young offender so that rehabilitation is an important aspect of any sentencing exercise by this Court, you have stabilised your life employment wise and living condition wise and I am informed by your counsel that you have aspirations to join the Army and whilst a criminal conviction is not an absolute bar to that, a non-conviction disposition certainly would make it easier for you to go into the Army if that is what you decide you want to do ultimately.
34Now I am going to explain the conditions of the community corrections order to you. They are firstly, that you must report to the community corrections office within two working days of the making of this order, that is by Tuesday of next week. The order will last for 12 months and while you are on that order you must not commit another offence punishable by imprisonment.
35What that means, Mr Duff, is that it is not that you have to be gaoled for an offence that you might commit in the next 12 months. It is that you must, if you commit an offence that in theory you could be gaoled for, like knocking off alcohol, okay? Or stealing something small. The legislation says you can be gaoled for that and that is enough for you to breach the order. If you breach the order, you will be brought back in front of me and I will resentence you on this offending, all right.
36While you are on the order you may not leave Victoria without the permission of the community corrections office.
37You must report to and receive visits from the community corrections office.
38You must report any change of address or employment to the community corrections office within 48 hours of the making of that change.
39You must not attend upon the community corrections office under the influence of drugs or alcohol.
40And you must obey all lawful directions of the community corrections office.
41I am going to order that you undertake 80 hours of unpaid community work. You are to be assessed and treated for drug use, alcohol use and for mental health difficulties. Now the assessment may be, Mr Duff, that you do not need any treatment for drug use because you are no longer using, or they may decide that you need to do - there are varying numbers of courses that last varying periods of time - but they may decide it would be helpful for you to do one of the lesser courses. It is a matter for corrections, but I am ordering that you be assessed for treatment in all those areas.
42It also seems that you are still struggling with mental health difficulties. They do not go away in 10 minutes unfortunately so you will need to attend upon a psychologist, which corrections will order.
43Those are the only conditions that I am going to order. Are you prepared to enter this order, Mr Duff? Thank you very much.
44Pursuant to s6AAA I declare that had you not pleaded guilty I would have placed you on a community corrections order for 18 months and it would have had a conviction attached to it.
45All right, I think that is all I need to attend to. Now I am going to leave the hearing but my associate will stay on the line and speak to you, Mr Duff, about documentation that needs to be prepared. I note also that there is a compensation order of $116, which I am going to make, and that is to be paid to BWS in Clarinda and I will give you three months to pay that. All right, Mr Duff? All right, Mr Bowden will explain that to you. Is there anything else I need to attend to?
46MR BOWDEN: Yes, Your Honour.
47MS DEARMAN: Yes, Your Honour, just the forfeiture order in relation to the Wild Turkey bottles, the scooter and the multi-tool screwdriver.
48HER HONOUR: All right, yes, thank you. I will make those orders. And nothing you want to say about any of that, Mr Bowden.
49MR BOWDEN: Your Honour, there is just the one issue of the wording of the indictment. The indictment mentions screwdriver.
50HER HONOUR: Yes.
51MR BOWDEN: I have had a conversation with my friend and we agreed it should be changed to 'multi-tool screwdriver'.
52HER HONOUR: All right, well I will arrange for that to be - I will grant leave for that amendment to take place.
53MS DEARMAN: As Your Honour pleases.
54MR BOWDEN: As Your Honour pleases.
55HER HONOUR: Thank you so much. I thank counsel for their assistance and good luck, Mr Duff, and I hope this is the last time you ever appear before a Court. You are not the sort of young man who I would have expected to see otherwise and I hope the order works well for you, all right. Thank you. I thank counsel for their assistance in this matter, thank you. Yes, we can close the Court.
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