Director of Public Prosecutions v Dunlop
[2023] VCC 920
•30 May 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-22-00928
CR-23-00669
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BLAYDE DUNLOP |
---
JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2022, 3 February 2023 and 30 May 2023 | |
DATE OF SENTENCE: | 30 May 2023 | |
CASE MAY BE CITED AS: | DPP v Dunlop | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 920 | |
REASONS FOR SENTENCE
---
Subject:Sentence – CRIMINAL LAW
Catchwords: Armed robbery, robbery. Very young offender. Offending over course of deferral of sentence. Subsequent progress on supervised youth bail. Suitable for CCO. Deprivation in background. Dual diagnosis. Plea of guilty during pandemic.
Legislation Cited: Sentencing Act 1991, Crimes Act 1958.
Cases Cited:Worboyes v the Queen [2021] VSCA 169, R v Verdins [2007] VSCA 102, McKee and Brooks [2003] VSCA 16, Bugmy v The Queen (2013) 249 CLR 571, Marrah v The Queen [2014] VSCA 119, DPP v Drake [2019] VSCA 293, R v Williscroft [1975] VR 292, R v McKee (2003) 138 A Crim R 88, DPP (Vic) v Lawrence (2004) 10 VR 125, DPP (Vic) v Simpas [2009] VSCA 40, DPP (Vic) v Malikovski [2010] VSCA 130, Winch v The Queen (2010) 27 VR 658, Smith v The Queen (2013) 39 VR 336, R v Phillips [2012] VSCA 140 Azzopardiv The Queen (2011) 35 VR 43, R v Mills [1998] 4 VR 235, R v Khoder (No 2) [2020] ACTSC 76, Brown (aka Davis) v The Queen [2020] VSCA 60, Boulton v The Queen (2014) VR 308.
Sentence: Convicted and sentenced to combination of 54 days (time served) plus 2-year CCO with conditions.
s.6AAA declaration – 2years 6 months YJC.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Profitt | Office of Public Prosecutions |
For the Accused | Ms L. Dubroja | Slades & Parsons |
HIS HONOUR:
Introduction
1
Blayde Dunlop, I am sentencing you for two sets of offences, the first being an armed robbery that occurred on 27 January 2022. Your victim then was
Fletcher Taranto who was 15 years old. You robbed him of an iPhone and Nike clothing. You used a knife to do so. I will call this the Taranto offending (CR‑22‑00928).
2The second matter I am to sentence you for occurred while you were on bail awaiting sentence on the Taranto matter. It involves the robbery of two 16‑year‑olds, Tyrone Armand and Thawatcha Tongpanya of Nike shoes and other clothing. This occurred on 14 December 2022. I will refer to this as the Armand and Tongpanya offending (CR-23-00669).
3I am not going to send you to prison for any further time on these offences. I am going to impose a combination sentence involving a term of imprisonment that you have already served, combined with a lengthy community corrections order (CCO) on you, with conditions that are designed to punish you, to deter you, to denounce your conduct, to protect the community, as well as giving you structure and assistance to help you achieve the reform that I believe you are capable of.
4My reasons for this as follows. I will start with the Taranto offending.
TARANTO offending [1]
[1]Exhibit A- Summary of Prosecution Opening for plea dated 7 November 2022.
5At the time of that offending, you were 18 years of age and living in Carlisle Street, St Kilda.
Circumstances of the offending
6On Thursday 27 January 2022, sometime during the afternoon, you attended The Nook, a recreational area located within Sunbury Bicentennial Park, together with several unknown friends. You remained at the park for several hours, drinking alcohol and smoking cannabis with friends.
7
At approximately 5.30 pm, your victim Fletcher Taranto, together with
Ethan Sultana, Logan Carroll and Jack Klooster arrived at The Nook. There was also a large group of other young people present. Some of the group were known to Taranto and his friends through local schools, and others they had not met before.
8At 6.00 pm, one of the other young males present who knew Taranto and his friends told them to come down closer to the river to hang out with another group of young people. Taranto and his friends went down to the river and joined the other group for a while.
9At 6.30 pm, some of the males of the other group began to tease Taranto and his friends, and one of them began to rifle through their bags.
10Taranto and his friends decided to leave the park, when some of the young males, including you, decided to chase Taranto and his friends up the hill.
11As Taranto walked up the hill away from the other group, he heard a male voice call 'Come here mate'. Taranto turned around and observed you walking towards him, you then turned away again and began to run in the opposite direction.
12You then shouted, 'Oi fucken come here mate' and Taranto stopped running and turned to face you. You then lifted your shirt to show a knife in a holster tucked into your waist band.
13Taranto stood still and you walked up to him, put your hand around his waist and said, 'Let's go for a walk'. You walked with Taranto about five metres and then told Taranto to get his phone out.
14Taranto did not immediately take his phone out, so you pulled out the knife and held it against his waist and said, 'Get your fucking phone out'. (Charge 1 – Armed Robbery – maximum penalty 25 years).
15Taranto pulled his phone out of his pocket and held it in his hand, then you told him to unlock the phone and log out of his Facebook and Snapchat accounts. Taranto began to attempt to unlock his phone, when you, growing impatient, started to become aggressive and told him he was taking too long.
16You stuck the knife into Taranto's stomach, pressing the blade into his shirt. Taranto was now extremely scared and continued to struggle to unlock his phone as his hands were shaking so much.
17You then held the knife up to Taranto's neck and said, 'I'm not fucking around. I know you know how to do this, I'm not dumb'. The knife had a black blade approximately six inches long and you held that blade with the serrated edge pointed towards your victim's neck. Taranto immediately moved his head back to avoid the blade touching his neck.
18
At this point, several of the other young males who had been chasing Taranto and his friends walked up and stood nearby. This group included Ryley White,
Riley Doyle and Jack Guest.
19Taranto handed his phone to Ryley White and asked him to help him unlock it because he was so afraid. White then held the phone up to Taranto's face to unlock the phone using Face ID and then handed it back to Taranto. Taranto then handed the phone to you.
20Unsatisfied with what you had just taken, by force, without any right to do so, you then asked Taranto what he had in his backpack, and Taranto told you he had his Nike 'Tech fleece' tracksuit inside. You told him to take the tracksuit out, and he obliged, and he handed it to you. You looked through the rest of the bag as he held it open.21Taranto then fled the scene and a short time later met up with Caroll and Sultana who were waiting some distance away. Taranto told Carroll and Sultana what had happened, and Carroll and Sultana decided to return to The Nook to attempt to get Taranto's property back from you.
22
One of the other young men had been present during the incident,
Jack Guest, called Sultana via Snapchat and told him that you had Taranto's phone and wanted something in exchange.
23Sultana and Carroll then met up with the you not far from where the first incident occurred. Several of the other young males were present.
24You said to Sultana, 'I'll give you the phone, how much money do you have?' and Sultana replied, 'I have $150'. The accused then asked Sultana's name then told him to get the money and meet him at the same spot that day or the following day.
25Sultana agreed to get the money, and he and Carroll ran back to Sultana's house.
26By this stage, Taranto had also returned to Sultana's house and had called his father Victor to tell him what had happened. Victor then reported the matter to police.
Investigation and interview
27At 6.53 pm, First Constable Talmage and Senior Constable Moore attended the home address of Ethan Sultana, where they spoke to Taranto, Sultana and Carroll. The members obtained an account of what had occurred and broadcast a description of the alleged offender over the radio for other units to look out for.
28Talmage took several photographs of Taranto and seized the white T-shirt he was wearing at the time of the incident.
29Several other family members attended the address, including Taranto's father Victor. Victor took his son to Sunbury police station, where a statement was obtained.
30At approximately 8.03 pm, Senior Constable Quirk and Senior Constable Chaplin attended The Nook where the armed robbery took place. By this stage, the area was abandoned. Senior Constable Quirk took several photographs capturing the scene of the armed robbery.
31After committing the armed robbery, you left The Nook on foot and walked towards Sunbury Railway Station with two other unknown males. CCTV footage from the Sunbury Safe Streets network captured you walking up Brook Street about 7.09 pm.
32A few minutes later, as you approached Sunbury Railway Station, Protective Services Officers Walter and Sharp were on duty, they had heard the description of the offender who had committed the armed robbery broadcast on police radio, and observed you walking towards them.
33When you spotted the PSOs, you abruptly turned around and began to walk away from the station. The PSOs followed you and observed you approach a car park off Brook Street, not far from the station.
34They saw you crouch down and drop Taranto's phone on the ground under a bush near the entrance of the car park. This was captured on CCTV.
35You then turned around and walked back to the station, where you were approached by the PSOs, who had both by this time activated their body worn camera footage.
36You admitted to the PSOs you were in possession of a knife and PSO Sharp searched you and located the knife that you used in the armed robbery still tucked in your waistband. Sharp also located the Nike clothing belonging to Taranto in your bag, together with a small amount of cannabis in your pocket. (Charge 2 – Possess Drug of Dependence – maximum penalty 30 penalty units or one year imprisonment).
37The PSOs arrested you, took you back to Sunbury Police Station where you were secured until Sergeant Haining and Senior Constable Broadbear attended at 7.30 pm.
38Those members remained with the accused, the PSOs then returned to the bushes and located Mr Taranto's mobile phone.
39At 8.03 pm, Senior Constable Tuddin and Constable Tuazon arrived and transported you to Fawkner.
40You were interviewed by Senior Constable Chaplin and Detective Wilson-Hawe, during which you:
(a) made full admissions to the armed robbery;
(b) admitted to walking to Sunbury Railway Station with the stolen property and hiding Taranto's phone in the bush when you spotted the PSOs; and
(c) admitted to being in possession of the cannabis.
41You were charged and refused bail and held overnight for a filing hearing in January 2022. You spent four days in adult custody before being bailed on 31 January 2022.
42I commenced the plea in this matter on 15 November 2022 and I adjourned the matter as a deferral of sentence. During that period, what was expected of you was to remain offence free and engage in supervised bail. Instead, you re‑offended in the following way.
ARMAND & TONGPANYA offending [2]
[2]Exhibit D - Summary of Prosecution Opening for Plea (CR-23-00669) dated 3 May 2023.
43With respect to these latter offences, you had a co-accused, Junior Ioasa (co‑accused IOASA). You had turned 19 by the time you committed these offences and were living it seems, partially in St Kilda, but also potentially in Narre Warren.
44The victims in this matter are:
(a) Tyrone Armand, who at the time was only 16 and lived in Lynbrook;
(b) Thawatchi Tongpanya, at the time of the offending was 16 years old and lived in Rowville.
Circumstances of the offending
45On 14 December 2022 at 1 o'clock, Armand and his friend Abbas Akabari attended the Fountain Gate Shopping Centre in Narre Warren to do Christmas shopping.
46At 3.30 pm, Tongpanya finished work and he joined Armand his friend and Akabari.
47At 4.25 pm, Akabari, Armand and Tongpanya finished shopping and they walked from the shopping centre to the bus stop where they waited in the shelter next to the Priceline pharmacy.
48They walked past you, the co-accused Ioasa, Vaauliafa Ioasa (V IOASA) and two unknown male associates, who began staring at them.
49Once Akabari, Armand and Tongpanya arrived at the bus stop shelter, they were approached by you, your co-accused and the two male associates, who were concealing their faces with masks and hoods.
50Your group asked Akabari, Armand and Tongpanya which school they went to and what gangs they were affiliated with. Armand told you he goes to Hampton Park Secondary College.
51After being told what school they go to, the males' expressions changed, and they told Akabari, Armand and Tongpanya to hand over their clothes.
52Armand handed over his white Jordan 4 Military sneakers to co-accused Ioasa and his black Nike Tech Fleece jacket to an unknown male. (Charge 1 – Robbery – maximum penalty 15 years), Tongpanya handed over his black Nike vest to the group which was subsequently worn by you. (Charge 2 – Robbery – maximum penalty 15 years) (Related Summary Offence – Commit indictable offence whilst on bail – maximum penalty of 3 months).
53Akabari handed over his black North Face vest to V IOASA.
54CCTV footage captures you walking away from the bus stop shelter whilst wearing Tongpanya's black Nike vest. Co-accused Ioasa is captured carrying Armand's white Jordan 4 Military sneakers. V Ioasa is captured carrying Akabari's black North Face puffer vest in his hands. An unknown male is captured wearing Armand's black Nike Tech Fleece jacket.
55CCTV footage captures the co-accused Ioasa and an unknown female boarding a bus to Timbarra at 4.30 pm.
56CCTV footage captures you and your co-accused and two unknown males and an unknown female boarding a bus to Cranbourne at 4.43 pm.
57CCTV footage captures Ioasa wearing Akabari's North Face black puffer vest before removing his shoes and putting on Armand's white Jordan 4 Military sneakers while sitting at the rear of the bus. CCTV footage also captures you removing your face mask and hood to reveal your face, while wearing Tongpanya's black Nike puffer vest.
58You and your co-accused Ioasa and the other males got off the bus at approximately 5 o'clock near Casey Central Shopping Centre in Narre Warren South.
Investigation and arrest
59On 22 December 2022, you were identified and spoken to by Senior Protective Services Officer James, in relation to an unrelated matter. James activated his body worn camera which captured you still wearing the same black Nike TN cap and black Nike satchel as seen in CCTV footage on 14 December 2022.
60Senior Constable Snell submitted an Integrated Public Number Database (IPND) search which revealed your phone number and disclosed the various call charge records and tower checks confirmed you in the relevant area at the relevant time.
61On 30 December 2022 at 7.30 am, Victoria Police officers executed a search warrant in Fiona Court, St Kilda, where you were residing pursuant to bail granted on 31 January in relation to the charge of armed robbery that I had mentioned.
62You were not present, and a search was conducted. Senior Constable Snell seized from your bedroom and living room a black Nike satchel and black Nike tracksuit pants, both worn by you on 14 December 2022.
63On 30 December 2022 at 9.13 am, Victoria Police attended Rosewater Street, Manor Lake, and they arrested your co-accused.
64On 2 January 2023 at 3.50 pm, you attended Narre Warren police station to collect property which police had located. You were arrested by Sergeant Williams in relation to this incident.
65Detective Dunn seized a pair of black Nike sneakers from your property, which were worn by you on 14 December 2022.
66First Constable O'Dowd conducted a record of interview with you which was suspended, in order for you to exercise your rights to contact a friend or lawyer.
67You then proceeded not to comment to any of the allegations of the robberies on 14 December 2022. When asked if you were on bail for a County Court matter, you replied 'Yeah'. You also agreed that you were on a CCO at the time.
Case history
68Each of these matters progressed reasonably efficiently through the (adult) criminal justice system. I will treat each matter as being characterised by an early pela of guilty. I am conscious that by choice, you elected to have the Tongpanya and Armand offences uplifted and disposed of at the same time as the pre-existing part heard plea. Accordingly, I was apprised of the totality of your criminality. I consider the way that this was done is consistent with your willingness to facilitate the course of justice.
69You spent four (4) days in adult detention after the Taranto armed robbery offences before being bailed. You spent a further 50 days in custody after the Tongpanya and Armand armed robberies.
Matters personal to the Accused
Childhood and family
70You are still only 19 years of age. You were 18 at the time of the Taranto offending and 19 at the time of the Armand and Tonganya matter. Self‑evidently, you are very young. Your youth assumes a real prominence in this sentencing exercise.
71You were born in Victoria to parents Roxanne Barry and Shane Dunlop. Your parents met when your father was in prison and you recall your father being imprisoned during your childhood. You are the youngest of five children born to this relationship.
72You are a young Aboriginal man – a heritage that is traced through your father. Your father's family are from the Gunai and Kurnai tribes. You wish to learn more about your cultural background, and you have already been connected with elders through juvenile justice. Obviously, this is to be encouraged and supported.
73Your parents separated when you were four and a half years of age.
74Yours was a childhood that involved a high level of domestic violence perpetrated by your father, who was unable to control his temper when drunk or substance affected.
75This included verbal and physical violence towards your mother, your siblings and yourself. Examples of those incidents are as follows:
(a) your mother being hit over the head with a glass bottle by your father;
(b) you being strangled by your father over perceived transgressions, including having the temerity to ask to watch a different television show; and finally
(c) Being run over by your father at four years of age and as a result, still have a scar on your body from being burnt by the exhaust pipe.
76Your mother re-partnered with Phil Gray when you were five years of age. They remain married.
77You have had sporadic contact with your mother and siblings. You have had no contact with your father since you were 13. Your father was not respectful of your (and your siblings) wishes that you did not wish to see him. He attended your school in an attempt to take you and your siblings. Police were called to intervene. This was the last contact you had with him.
78You attended four primary schools, the last being Broadmeadows Valley Primary School where you finished Grade 6.
79Remarkably, given the history I have just recounted, you did not have academic or behavioural problems at this age.
Teenage and Early Adulthood
80When you were in Year 8 though, you were sexually assaulted by a stranger on the way to a school. This had a profound and enduring effect on you.[3]
[3]This is the genesis it seems of your PTSD referred to Ms Lechner and the MHARS assessor referring in turn to your history with ORYGEN youth mental health
81You continued to attend Hume Secondary College and completed Year 9, but you left school during Year 10.
82You reported the sexual assault immediately to the school, who reported it to police. You have given evidence in a Magistrates' Court hearing and were advised that the person concerned was found not guilty. Your VOCAT matter, victims of crime that is, has yet to resolve, and this continues to cause you a high level of stress.
83After the sexual assault, your mental health deteriorated. You stopped attending school, disconnected from family and started using illicit substances, first cannabis at 13 and then Xanax at 16.
84You fathered a child who died aged 21 months in April 2021 interstate with your former partner and her new boyfriend. Understandably, you still grieve that loss.
85After continued family issues at home, you left during Year 10 and you have not returned. You became homeless and have been transient until approximately mid 2022, when you obtained housing through the Jesuit Social Services (JSS). You had short periods where you would couch surf or be able to reside at friend's homes, but you would routinely sleep rough in the city. You also have a history of engaging in self-harm. This is not a sound foundation upon which to build a life.
86At the time of the Taranto offending, you were living at a property through St Kilda Community Housing and reports are that you were living with considerably older men who were usually unemployed, substance affected, substance addicted or violent. Even though you were employed, your drug and alcohol use increased significantly in this environment.
Prior criminal history
87You have a relevant and recent prior criminal history, including previous convictions for robbery, attempted robbery and some weapons charges.
88You received sentencing dispositions without conviction for previous offences that were committed, I stress, when you were a child. Those previous sentences have not involved detention, having received an adjourned undertaking in October 2022 and a youth supervision order in August 2021. Both of those sentences had finalised at the commencement of these proceedings before me.
89Despite this apparent compliance, you then committed the present offending on 27 January 2022, just months after the expiration of the second adjourned undertaking, which ran from April to October 2021.
90Your four (4) days in adult custody in 2022 was your first time in adult custody with grown men. You endured another harrowing 54 days in custody after your most recent offending. I am told that you witnessed a man having his throat slashed at.
Psychological make-up
91It is submitted that Verdins limbs 5 and 6 are enlivened, given Ms Lechner's opinion that for:
'Persons with Complex PTSD, such as Blayde, the ongoing stress associated with the conflict and violence, particularly within an adult prison, provides a constant source of potential danger and therefore the need to be hypervigilant. Persons with PTSD generally become more anxious and depressed in such an environment, particularly if the conflict is reminiscent of their original trauma. Blayde's mental health is likely to decline within a custodial setting. He is likely to continue suffering symptoms of PTSD that could potentially become more acute…'[4]
I will say more about this in a moment.
[4]Exhibit 22- Report of Carla Lechner dated 4 May 2023 at Page 7, see also Exhibit 17- MAHRS Report dated 2 May 2023.
Work History
92You first gained employment through JSS in carpentry when you were only 17. You lost this job after months during - because you attended late (apparently you were prescribed medication for sleep at the time, that would mean that you slept through your alarms). This was a significant setback as you had been attempting to save finances for rent and a bond of your own through this employment.
93You were able to gain further employment working in warehouses and continued to be employed through two agencies doing multiple roles within the warehouses.
94You are currently employed and have been working with the same agency for twelve months. You credit in part the government policy where funding hotels for the homeless during COVID-19 enabled you a period of relative stability in your life.
Jesuit Social Services
95You were placed on a Youth Supervision Order on 28 April 2021 and connected with a number of support services including JSS. Through JSS, you engaged with multiple support workers including housing, employment, community work, drug and alcohol programs designed to reduce the risk of reoffending. The JSS is a total wraparound service that is designed to scaffold and support you. They have done a remarkable job to help you. So too have Juvenile Justice.
96There was a significant time between the first offence and the plea, that you enjoyed what would seem to me to be actual meaningful stability. This includes a significant reduction in drug use, as well as comparatively stable housing and employment.
97It seems that this stability was a bit more precarious than I first thought, and certainly more fragile than I was led to believe on the plea on 22 November 2022.
98I have since been informed (after you re-offended) that your mental health had significantly declined.[5]
[5]Exhibit 21- Outline of Submissions on Plea and Further Plea dated 12 May 2023.
99In August 2022, your long-term worker ceased employment with JSS. Although you were assigned another worker with whom you now have a very positive relationship, you apparently very much struggled with the transition and the loss of the long-term professional relationship you had built with your previous worker.
Events leading up to further offending
100As noted in the letter prepared by Ms Miller,[6] in the later months of 2022, your substance use increased, and your engagement with your support team began to decline.
[6]Exhibit 22- Report of Carla Lechner dated 4 May 2023, Page 4.
101
In time, you gravitated towards negative peers and were remanded on
24 November 2022, for theft of motor vehicle and related offences. That is to say you were remanded in custody within a week of my hearing your plea.
102On 25 November 2022 at Dandenong Magistrates' Court, you received a therapeutic community corrections order (CCO) and released from custody.
103Shortly after your release, you were threatened. This act caused immense distress on you - a young man already labouring and continuing to labour from symptoms of PTSD.[7]
[7]Exhibit 21- Outline of Submissions on Plea and Further Plea dated 12 May 2023.
104You descended into even heavier substance use. The further offending, I am told, occurred in this context. It occurred again I note, in the company of others.
Post offence in custody, on bail and on CCO
105Having been interviewed for the Armand and Tongpanya offending on 2 January 2023, you were remanded in adult custody, this time for 54 days until you were bailed by the Magistrates' Court on 21 February 2023 on very strict conditions.
106This matter resolved on 14 April 2023 and then listed before me.
107Since being granted bail in February of this year, you have shown real commitment to ongoing reform.
108As noted in the Youth Justice Supervised Bail Report dated 9 May 2023,[8] you have continued to engage with JSS workers, improved your engagement on your community corrections order, and have positively engaged with Youth Justice Supervised Bail.
[8]Exhibit 17- MHARS Report dated 2 May 2023.
109Moreover, it is clear that you have reflected on your offending, shown appropriate levels of victim empathy and remorse, openly engaged in discussions with workers, and you have developed a meaningful insight into issues underlying your offending.
110You have been proactive in making changes to your lifestyle, including 'blocking' negative peers who might not enjoy the prospects you do and modifying your alcohol intake (see also the MHARS report).[9]
[9]Exhibit 15- Supervised Bail Report dated 27 May 2023, Exhibit 16- CCO Assessment Report dated 1 May 2023, Exhibit 18- Supervised Bail Report dated 9 May 2023, Exhibit 19- Supervised Bail Report dated 29 May 2023 and Exhibit 20- Supervised Bail Report dated 28 April 2023.
111You have secured full time employment, working night shifts in a factory in Laverton North. You have been determined that you will find employment in the face of several setbacks. This employment is submitted to be a protective factor. I agree. I will modify the community work component of the community corrections order to allow this positive working environment to continue.
The offending
112You have now offended twice in a way that frankly troubles me, in that you repeatedly took items by force or menace from children. This behaviour naturally shakes people's sense of safety in the community. I find it concerning that you, of all people, having had your own safety violated years ago, would wish this on anyone else.
TARANTO offending
113At the time of the Taranto offending, I am told that you were highly intoxicated. The offending occurs between 6pm and 7.15pm, where you were eventually arrested by PSOs.
114It was acknowledged by your counsel there are a number of factors that aggravate that offending, including:
(a) The age of the complainant, who was a boy of 15;
(b) The armed robbery involved a prolonged period while demands were made for the complainant to unlock and logout of accounts on his phone, which only increased his fear;
(c) The knife was held at his neck.
115The Crown points to the additional aggravating factors:
(a) The unprovoked nature of the armed robbery; and
(b) Your attempt to dispose of the proceeds of the armed robbery once you were detected.
116The offending was thuggish and mindless. You were buoyed in confidence with your friends nearby and armed with an inherently dangerous item, you had no place having. You took items that were of modest value, but that does not really seem to be the point of the exercise. There was an aspect of this that suggested it was sport for you.
117I heard a moving victim impact statement from Mr Taranto's mother, Nicole,[10] who paints a sad picture of the way her young son's life has been scarred by you holding a knife to him and menacing him the way you did. It shattered his burgeoning confidence in being out in the world.
[10]Exhibit B- Victim Impact Statement of Nicole Taranto dated 14 November 2022.
118I was impressed by your voluntary participation in the Insights and Lessons Program in August 2022, where you spoke openly about your offending, its causes, and your reaction to it. This is a process very few people engage in. You were confronted by the harm you did by police and those who work with victims every day. I hope you can still bear in mind the lessons you learnt from that.
119The cannabis possession is a low-level example of this offence. It was for personal use and in a small quantity. You will be convicted and discharged for this offence.
ARMAND & TONGPANYA offending
120I am told that this offending occurred when you were substance affected too. Despite acknowledging the harm you did to Mr Taranto, in the Insights and Lessons Program, you went and repeated very similar conduct.
121At its heart, these robberies have the same mindlessness to them that the Taranto offending had. It appears to be driven by some adolescent manufactured grudge about schools or gangs or allegiances, and involves standing over younger boys to take items that have some kind of cultural currency or cache. Perhaps behaving like this gives you a sense that you are strong, or you are in control, or you are not to be trifled with and that is not entirely inconsistent with your personal history or your lack of maturity, but whatever the cause of it is, it must stop.
122Your counsel conceded the offence of robbery is serious, while noting the lack of aggravating features as follows:
(a) It did not occur at night time;
(b) No weapons were produced;
(c) No actual or explicit threats were uttered;
(d) The offending is of short duration after which the victims were permitted to leave;
(e) It is not alleged that you are the primary offender; and
(f) The offending was not sophisticated and not necessarily pre-planned.
123Much of the above is self-evident. Had a weapon been produced, it would be a different kind of offence I am dealing with. Despite its lack of planning or preparation, it was a very effective robbery of two boys outnumbered by you and your friends, who had little choice, but to hand over their personal items in public because of the implicit threats to their safety.
124I have no victim impact statements from those affected by these crimes, but I can readily infer it would have been a frightening, upsetting and humiliating experience for your victims.
125At the time of the offending, you were on a deferral of sentence before me, and in the infancy of a community corrections order at the Dandenong Magistrates' Court in November 2022. This accentuates the gravity of the second offending.
Sentencing Factors
General sentencing considerations
126The Crown agreed that the sentencing considerations set out in your counsel's submission were relevant to this offending. They include:
(a) general deterrence, which has been particularly important in cases involving armed robbery,[11] (and robbery), where public safety is put at risk by violent acts fuelled by drugs or alcohol;[12]
(b) specific deterrence, in light of your prior convictions for violent offending (a factor requiring more emphasis given you offended during the period of deferral); and
(c) community protection, in circumstances where the armed robbery was committed upon an unknown person in a public place, and likewise other young men were robbed publicly by you (although I note that there are other ways from protecting the community from you that do not necessarily involve your extended removal from our number).
[11]R v Williscroft [1975] VR 292, 295 and 299; R v McKee (2003) 138 A Crim R 88 at [10].
[12]DPP (Vic) v Lawrence (2004) 10 VR 125, 132-133; DPP (Vic) v Simpas [2009] VSCA 40 at [13]; DPP (Vic) v Malikovski [2010] VSCA 130 at [50]; Winch v The Queen (2010) 27 VR 658, at [37]–[41]; Smith v The Queen (2013) 39 VR 336 at [54].
Plea of guilty and remorse
127You entered a plea at the earliest opportunity with respect to both matters.
128You have done so while the community has been gripped with the impact of the COVID-19 pandemic. It was submitted (and I accept), that your plea of guilty ought to attract a substantial discount for both the subjective and objective elements of that plea.[13]
[13]R v Phillips [2012] VSCA 140.
129Further, in relation to the objective element that the discount must be greater than would otherwise be the case, due to the timing of the entry of the plea, I follow the authority of Worboyes.[14] I can assure you that the discount that you receive will answer the description, ‘a pronounced amelioration of sentence’.
[14]Worboyes v The Queen [2021] VSCA 169.
130Your plea is indicative of remorse in both instances. It is clear from the combination of the early plea and your attendance at the community conference, that you can understand the impact of your offending on the first victim and the community. Further, you rightly express remorse, shame, and regret to your workers and Ms Lechner, with respect to the second set of offending. According to Ms Lechner you made 'no attempt to shirk responsibility or minimise the seriousness of (your) actions'.[15]
[15]Exhibit 22- Report of Carla Lechner dated 4 May 2023, page 5.
Youth
131You are still only 19 years of age, and you are to be sentenced as a young offender. Your rehabilitation is a paramount sentencing factor and ought to be given more weight than general deterrence.[16]
[16]R v Mills [1998] 4 VR 235.
132As our Court of Appeal said in Azzopardi v The Queen,[17] three considerations underlie the primacy given to the offender's youth as a sentencing consideration:
(a) Young offenders, being immature, 'are more prone to make ill-considered or rash choices'. They 'may lack the degree of insight, judgment and self‑control' possessed by a more mature adult. They may not 'fully appreciate the nature, seriousness and consequences of their criminal conduct'.
(b) The courts recognise the potential for young offenders to be redeemed and rehabilitated.
(c) Incarceration of a young person for an extended period in an adult prison may be counterproductive through the antisocial influences of fellow prisoners.
[17](2011) 35 VR 43.
133Whilst you have a relevant history, it is somewhat limited, and it has resulted in sentences of an adjourned undertaking and Youth Supervision Order without conviction. You are gaining the kind of insight one would expect with maturity. You have demonstrated under the right circumstances; you are capable of and amenable to supervision.
134I am told that your most recent period in adult custody was extremely aversive for you. I should hope so. Prisons are not known to be particularly reformative places for impressionable damaged young men.
135Your imprisonment now would see you lose accommodation and employment, as well as the sense of momentum that is building that you can positively change. A parsimonious approach requires a different outcome than imprisonment alone in this case.
Prospects for rehabilitation
136It is in no small part that because of the foregoing, I concluded that you have prospects of reform. You are still in your teens. You have engaged consistently with Jesuit Social Services reports and referrals, you have gained employment and you have a permanent and stable address. As a young man who has previously been homeless, the prospect of you losing accommodation through imprisonment would very much undermine the progress you have made. The community in my view would pay too high a price for punishing you in this way.
137
I accept that the path to reformation for a young man such as yourself is not always linear or an upward trajectory. I repeat, that under certain circumstances,
Mr Dunlop, you seem to be able to prosper, offering the community some hope for your reform. You are, in my view, worth persisting with in the community under supervision to assist and reform you, which after all, is the most enduring form of community protection.
Childhood Deprivation
138You were raised in an environment of alcohol and drug abuse and violence. The
'effects of profound childhood deprivation do not diminish with the passage of time…it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision'[18]
That will be the case here.
[18]Bugmy v The Queen [2013] HCA 37 at [44].
139The lack of parental nurturing and guidance means that your behavioural norms were shaped by the dysfunctional circumstances of your childhood and early adolescence.
140I take into account the principles in Bugmy and Marrah[19] as matters in mitigation. The manner in which the Court of Appeal in Director of Public Prosecutions v Drake[20] apply the Bugmy principles in the following terms are apposite in this case:
In particular, the profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, these experiences, none of which were of his making, all played a significant role in shaping the respondent's personality and his responses. As a consequence, his subjective culpability for the offending in which he engaged, could not be equated with that of a person who committed the same offence, but had the advantage of a normal, stable and regular home environment during his or her childhood years. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent's sentence.
[19]Marrah v The Queen [2014] VSCA 119.
[20]DPP v Drake [2019] VSCA 293 at [32].
141You, Mr Dunlop, have proven to be a resilient, and at times insightful young man who is genuinely trying to make the best of his lot. At risk of labouring the point, these are qualities the court considers worthy of nurturing and encouraging.
Verdins [21]
[21]R v Verdins [2007] VSCA 102.
142It is submitted Verdins limbs 5 and 6 are enlivened in light of Ms Lechner's opinion that 'for persons with Complex PTSD'[22] such as you, the custodial setting would be no place for you. I find that that is true.
[22]Exhibit 22- Report of Carla Lechner dated 4 May 2023, page 7, see also Exhibit 17- MAHRS report dated 2 May 2023.
Covid-19:
143The impact of COVID-19 on prisoners is well-known to this Court. In the present case the impact of the pandemic can be relevant in the following ways:
(a) The highly restrictive conditions of custody make any time burdensome;[23]
(b) The impact upon you in terms of your stress and concern for others during the pandemic;[24]
(c) The fact that there is restricted visits and programs is a matter well known to the court within the prison system that still persists.
[23]R v Khoder (No 2) [2020] ACTSC at [12].
[24]Brown (aka Davis) v The Queen [2020] VSCA 60 at [48].
CCO and MAHRS assessment
144I initially had you assessed for a CCO in January 2023.[25] You were at that time already on a CCO from the Magistrates Court. You were uncontactable and so no assessment took place. You were unsurprisingly found unsuitable for a CCO then.
[25]Exhibit 14- Extended Pre-Sentence CCO Assessment Report dated 12 January 2023.
145Things have changed. Your supervised bail has been a success. You were described as of having engaged in a high standard of compliance.
146You were once again assessed for a CCO [26] and in no small part because of your commitment to supervised bail and the supports you enjoy, you were found suitable. This came with the caveat that you were still a high risk of re-offending.
[26]Exhibit 16 – CCO Assessment Report dated 1 May 2023.
147I received a report from the Mental Health Advice and Response Service (MAHRS)[27] authored by nurse, Mr Greg Lane, as part of the CCO assessment process. They confirmed your earlier contact with Orygen Youth Mental Health Services between late 2019 and late 2020. You have been diagnosed with various behavioural disturbances, including PTSD and severe anxiety. You are currently medicated. It helps you. You are gaining slowly an insight into the links between your poor mental health and substance abuse. A condition to monitor, treat and improve your mental health is a fundamental part of the sentence I impose. The specific recommendations proffered by Mr Lane are eminently sensible. Though you are comparatively stable, you require help to build the skills to stabilise your mood, emotion, thoughts and to cope with the stress and distress of life.
[27]Exhibit 17- MHARS Report dated 2 May 2023.
Totality
148I am mindful of the significance in this case of the application of the principle that requires me, when sentencing you for multiple offences, to ensure the total term I impose is a just and appropriate one, according to the measure of the total criminality involved. That will be reflected in the sentence I impose.
Submissions on Disposition
149East of your Counsel submitted there is a way for me to impose a just outcome that reflects the gravity of your offending, the importance of general deterrence and denunciation, whilst still striking the right balance in terms of facilitating your reform.
150You are a very young offender, with a recent but not fully entrenched criminal history, who has engaged in a high level of appropriate treatment by way of supervised bail and assistance of the JSS. It is clear that general deterrence can be affected by the imposition of a CCO even for 'relatively serious offences' and for that, reason, combined with others, a CCO in combination with a short term of imprisonment is within range.
151Mr Proffitt submitted that taking into account the aggravating circumstances of the offending as well as your relevant criminal history, in order to properly achieve the relevant sentencing consideration, a combination sentence comprising of a term of imprisonment together with a community correction order is open to me.
Analysis
152In my view, having balanced and weighed the necessary considerations, a combination sentence provides a more flexible and suitable sentencing option, enabling both punishment and rehabilitation to be served together.[28]
[28]Boulton v The Queen (2014) VR 308.
153There is a constellation of powerful mitigatory matters in your case that compel an outcome.
154It appears to me I can denounce your conduct, punish you, deter others as well as you and foster conditions that assist in your reform by imposing a community corrections order on top of the term of imprisonment that you have served.
155It seems that you are maturing, and you are on the cusp of realising and consolidating some significant much needed stability in your young life.
156I have formed the view the community is best protected by your reform. I have also come to the view that despite a truly difficult childhood and adolescence, you have proven to be determined, resilient and capable of reform. Can you stand up please, Mr Dunlop.
Sentence
157Providing that you consent, what I intend to do is to convict you of each charge[29] and place you on a combination sentence involving 58 days' imprisonment and a community corrections order that will last for a period of 2 years.
[29]Save for charge 2 on indictment N10182020 for which you are convicted and discharged.
158Every community corrections order, including this one, contains core conditions. The core conditions are:
(a) You must not commit another offence punishable by imprisonment during the next two years.
(b) You must comply with any obligation or requirement prescribed by the regulations.
(c) You must report to, or receive visits from, the Secretary during the period of the order.
(d) You must report to Melbourne Community Correctional Services within two working days of the commencement of the order.
(e) You must notify the Secretary of any change of address or employment within two working days after that change.
(f) You must not leave the State of Victoria, except with the permission from the Secretary.
(g) You must comply with any direction given by the Secretary that is necessary for the Secretary to give, in order to ensure that you comply with the order.
159Those are the core conditions. In addition to the core conditions I would impose the following:
(a) You be the subject of supervision by Office of Corrections.
(b) You complete 125 hours unpaid community work over the 2-year duration of the order.
(c) You undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
(d) That you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.
(e) You undergo mental health assessment and treatment as directed.
(f) You undergo programs consistent with the purpose of treatment and rehabilitation, which may include, but are not limited to employment.
(g) In order to encourage you I propose that 50 hours of treatment and rehabilitation will be credited off the 125 hours community work that I have ordered.
(h) I will order that you be judicially monitored, that is that you will come before me regularly for me to monitor your progress, the first date of which will be 28 July 2023 at 9.30 am.
160I can only impose such an order if you, Mr Dunlop, consent to it. Do you consent to such an order?
161OFFENDER: Yes, Your Honour.
162HIS HONOUR: Thank you. Take a seat.
163You need to understand that if you were to breach this order in any way, by committing further offences or failing to honour its obligations, you could be charged with breaching the community corrections order.
164The offence of breaching a community corrections order itself carries a maximum penalty of three months' imprisonment. So if you were to breach the order, you would come back before me to be sentenced for the breach offence and also be resentenced for these offences that I have just sentenced you for.
165I think we have an understanding where you know that you would not want that to happen.
166Pursuant to s18 of the Sentencing Act 1991 I declare that the 54 days that you have already spent in custody be declared as reckoned as served and that time will be noted in the record of the court.
167I am obliged under s6AAA of the Sentencing Act 1991 to tell you, Mr Dunlop, what would have happened had you pleaded not guilty. But for your plea of guilty I would have sentenced you to be detained in a Youth Justice Centre for 2 and a half years.
Ancillary Orders
168I make the Disposal Order and forfeiture in the terms sought.
0
18
0