Director of Public Prosecutions v Edwards

[2020] VCC 486

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01161

DIRECTOR OF PUBLIC PROSECUTIONS

v

NAKKARA EDWARDS

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2019, 6 March 2020 and 23 April 2020
DATE OF SENTENCE:	23 April 2020
CASE MAY BE CITED AS:	DPP v Edwards
MEDIUM NEUTRAL CITATION:	[2020] VCC 486

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Criminal law – sentencing – Aboriginal offender – participation in sentencing conversation – early plea of guilty – combination sentence - Justice Plan

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Andrews (Plea) Ms J. Malobabic (Further Plea and Sentence)	Abbey Hogan, Solicitor for the Office of Public Prosecutions
For the Accused	Mr A. Vincent	Victorian Aboriginal Legal Service

HER HONOUR:

1Nakkara Edwards, you have pleaded guilty before me to one charge of theft and one charge of attempted armed robbery and one related summary charge of unlicensed driving.  The offences are serious and that is reflected in the maximum penalties that are prescribed by the law and they are 20 years' imprisonment for attempted armed robbery, ten years for theft and six months or 60 penalty units for the unlicensed driving summary charge.

2You have admitted your prior criminal history and you have two convictions recorded, one on 5 April 2011 when you were sentenced to seven years' imprisonment with a four year non-parole period for a manslaughter charge and one on 9 November 2017 where you were convicted and discharged for a breach of a condition of parole.

3The 2011 conviction relates to a manslaughter charge relating to the death of your stepfather, Mr Dow, and the details of that are set out in the sentencing remarks of Her Honour, the former justice, Betty King. You breached your parole conditions subsequently in that you drank some alcohol and then you were taken back into custody and finally released on 31 August 2017 when your sentence expired.

4After your release you experienced periods of disruption with homelessness and transience and you were using methylamphetamines heavily. 

5You do have some outstanding summary matters that are yet to be dealt with by His Honour, Magistrate John Hardy, on 4 May 2020 in the Magistrates' Court at Melbourne and that includes a consolidated hearing for various charges including unlawful assault, unlicensed driving, resisting police, fail to answer bail, criminal damage, assault with a weapon, burglary, contravene a family violence final intervention order and aggravated assault of a female.

6You are an Aboriginal man of Gunditjmara and Mutti Mutti descent. 

7An important aspect of your sentence is that I have had regard to the fact that you consented to having your matters heard in the Koori Court Division and you participated in a sentencing conversation with elders and respected persons from the Koori community.

8This was your first experience of Koori Court.  The Court of Appeal in your state has recognised that the sentencing conversation in the Koori Court is designed to further the reformation of an Aboriginal offender[1]. 

[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.

9You participated genuinely in the discussion with Uncle Wally Harrison and Uncle David Farrell who were the elders and respected persons present.

10The elders both challenged you concerning your behaviour that led to these offences and urged you to make the most of your opportunities and to seek help for your drug addiction and to regularise your life so as to minimise your involvement with the criminal justice system in the future.

11I am satisfied that you genuinely participated in the sentencing conversation.  The Elders both challenged you concerning your behaviour.  You genuinely participated and that has been taken into account in your favour[2].

[2] See The Queen v Steelie Morgan [2010] VSCA 14 at [11], confirmed in Honeysett v The Queen (2018) 56 VR 375 and DPP v Heyfron [2019] VSCA 130.

12I will now sentence you on the basis of the amended prosecution summary that was read out at the plea hearing. I have also taken into account the CCTV footage that was shown of the attempted armed robbery.

13On 12 March 2019 at about 1 pm you spoke with the victim, Alex Charalambous, at the Cranbourne Park Shopping Centre.  He approached you and asked you if you knew where he could get some cannabis.  You initially said ‘no’, that you were not from the area, and you walked away, but then you went back and said you had a cousin around the corner and you would go and see him.

14You then walked a short distance with him to where your car was parked.  You told him to stand by the vehicle and said you would be back in a minute because your cousin did not like random people going to his house.  You went across the street.  He could not see whether you entered the house.

15You returned within minutes and said to him, 'Pay the cash so I can go and get it', and he handed $410 to you.  You took the money and then got into your vehicle and drove away, and that constitutes the theft charge.  The fact that you were not the holder of a driver's licence at that time constitutes the summary charge of driving unlicensed.

16The second more serious incident occurred about 2.19 pm on 14 March 2019. On that occasion you went into the Doveton Cellars store. Walid Sawan, the store attendant, was present.  You placed a four pack of pre-mixed Jack Daniels drinks on the counter and muttered something.

17He asked you what you wanted and you said, 'I want the money.  Open the till now', and he responded to you, 'Are you serious?' to which you said, 'Yes, I am fucking serious, open the till and give me the money now or else I'll stab you'.

18You then produced a black handled knife from the left hand pocket of your jeans.  The blade was approximately 12 centimetres in length.  He said he was not going to open the till and that there were people out the back.  He held down the emergency button.

19You became agitated, increasingly angry and walked towards Sawan.  At this point he noticed you had a metal bar in your right hand and a knife in your left hand.  You were raising your voice and making demands that he open the till.

20Another person came out and when you saw that person you ran from the store. All that was captured on the CCTV footage and that is the attempted armed robbery. 

21You were arrested on 15 March 2019 and you made admissions to both the theft and the attempted armed robbery.

22You told police you had been using drugs heavily in the week prior to the offending. 

23Mr Walid Sawan's victim impact statement was read out at the plea hearing. I accept that the consequences of your criminal act has been profound for him.  He is suffering anxiety and depression for which he is receiving psychological counselling.

24He now finds working very difficult and is very fearful whenever he is alone in the shop and his anxiety has impacted upon him greatly. 

25The context of the offending was that you had experienced a breakdown in your relationship and you were using methylamphetamines heavily. You wanted to obtain money for drugs.  Whilst that may explain the offending it in no way excuses the offending and in sentencing you, general and specific deterrence are important factors as well as protection of the community.

26You have had a difficult family history and background.  You are one of eight children born of mixed parentage.  Both your parents had long term heroin addictions. You were removed from your parents' care when you were only an infant and Department of Health and Community Services have been involved and were involved in your long term care over the course of your childhood. You lived in many placements, including some with relatives in New South Wales and Victoria.

27At times you lived with your father in Balranald in New South Wales.  He repartnered and your stepmother was known to be physically and emotionally abusive towards you and you suffered greatly as a consequence.  Eventually you returned to live in Melbourne but your constant changing living arrangements meant that your schooling was severely disrupted and you did not complete Year 8 and you do not have any further formal education.

28There is a long term history of chronic drug use and alcohol abuse commencing when you were an early teenager and you have only limited work history.  You have a daughter, Hayley, aged nine from a relationship but have not been able to have ongoing contact with her.  You now express a desire to become reunited and you want to play a more positive role in her life.

29You also are very concerned about your younger brother, Terrick, and you want to be able to assist him upon your eventual release. 

30I have had full regard to the material that has been exhibited including in particular Ms Laura Scott's report.  She is a consultant neuropsychologist who confirmed you have a mild intellectual disability.

31She strongly suspects you meet the criteria for foetal alcohol spectrum disorder.  You have a low level of cognitive function and she assesses full IQ scale at 61 and she says that your serious neuropsychological impairments are very likely to be significant contributors to your offending behaviour.

32On the basis of her expressed opinion I accept that the Verdins' principles are enlivened.  I accept that your judgment was impaired to a degree by your cognitive impairments and have reduced moral culpability and also moderated the need for general and specific deterrence accordingly.

33Importantly, during the sentencing conversation, you were urged by both Uncle Wally and Uncle David to reflect on your behaviour and focus on what you can do to undertake to remain drug free in the community. Uncle Wally provided you with some information about your Aboriginal history and heritage and urged you to seek further assistance and help for the future.

34I accept that yours is a family history that is characterised by transgenerational trauma and you have been impacted by what is known as the stolen generations.  The sentencing conversation was one in which you made good your attitude to change your life.  Uncle Wally urged you to obtain ongoing assistance from organisations such as Narcotics Anonymous, Dardi Munwarro, a Men’s Healing and Behaviour Change Program and the Wulgunggo Ngalu Learning Place which is in Yarram.

35Uncle David also urged you to seek assistance in the future.  It was obvious that during your conversation with them that you were slowly changing your way of thinking and that is also reflected in the community correction assessment where you expressed remorse for the victim no longer feeling safe at work and also the impact on him of your offending.

36It is important that you do make good your expressed desire to deal with your underlying history of drug abuse and you know the link between drug taking and offending. 

37I accept all the submissions made by Mr Vincent on your behalf in terms of the mitigating factors.  This is a plea of great utility.  You pleaded at an early stage, at committal mention on 11 June 2019 and you have spared the cost and expense and inconvenience of a trial.

38You have facilitated justice so your sentence is discounted accordingly.  I have had regard to the fact that you were cooperative with police and you made full admissions. I have also had regard to your currently expressed attitude to the impact of the offending on the victim and I understand that you do have insight and you now express appropriate regret and shame for your actions and some victim empathy.

39You take full responsibility for your conduct.  I have also applied the principles of Bugmy[3].  That is I accept you have suffered significant depravation throughout your formative years and that has not diminished with the passage of time or further offending. Notwithstanding, that it is a situation where the protection of the community is still a real consideration in this sentence. 

[3] Bugmy v R (2013) 87 ALJR 1022; 249 CLR 571.

40I have also had regard to the fact imprisonment is more burdensome for you than for a person who does not suffer from your cognitive conditions and I have also had regard in a general sense to the conditions of your confinement following the declaration of the COVID-19 pandemic.

41Overall I consider that your prospects of rehabilitation are good given your current circumstances but will be improved if the authorities implement all the recommendations suggested by Ms Scott as set out in paragraph 7 of her report and that is referred to by Ms Dalton in her letter and she is going to assist you to provide you with appropriate services through the NDIS or other treatment options that are available in the community, so I urge you to take up the suggestion that Forensic Disability can assist you and I ask that Mr Vincent provide you with support so that that can be achieved once you are released from prison.

42Finally, Mr Vincent sought a sentence equivalent to time served followed by a Community Correction Order with appropriate conditions to provide for your supported release. Both Mr Andrews and Ms Malobabic on behalf of the Crown accept that this is an appropriate disposition that is available to the court.

43In formulating just punishment I have had regard to all the sentencing principles to which I must have regard and I have also balanced the interests of the protection of the community with the need to impose just punishment and to provide for your rehabilitation in the future.

44The formal court orders are in respect of the first charge of theft you will be convicted and sentenced to three months' imprisonment.  In respect of the second charge, attempted armed robbery, you will be convicted and sentenced to 418 days to be followed by a two year Community Correction Order in the terms I have already described with supervision, treatment and rehabilitation programs including testing for drugs, treatment and rehabilitation programs for mental health and other programs to address offending behaviour.

45In relation to the summary charge of drive whilst unlicensed you will be convicted and sentenced to 14 days' imprisonment and that sentence is concurrent with the sentences imposed in respect to Charges 1 and 2 on the indictment.  I declare that you have served 405 days by way of presentence detention and I direct that that be entered into the records of the court.

46I make a s.6AAA declaration but for your plea of guilty I would have imposed a term of imprisonment of two years to serve 15 months. 

47You have had explained to you all the core conditions and also the consequences of the breach and you consent to the order being made in the terms proposed.

48Finally, I make the forfeiture orders sought and I understand there is a s.464ZF order sought too.  Is that correct, Ms Malobabic?  Is there a s.464ZF?

49MS MALOBABIC:  No, Your Honour, they are no longer sought.

50HER HONOUR:  Not sought?  Thank you.  That concludes my sentencing remarks.  So the effect of all of that, Mr Edwards, is that you will be considered for release upon 4 May 2020 subject to my orders but that will be subject to what His Honour Magistrate Hardy does.

51In the event that there is any difficulties with that, Mr Vincent, you will have to come back and seek a variation or an extension of orders or some such.  What I will do is I will arrange for my sentencing remarks to be revised and provided to you, Mr Vincent, so that they can be provided to Magistrate Hardy.

52MR VINCENT:  Thank you, Your Honour.

53HER HONOUR:  I think that concludes this matter then.  What Mr Edwards will need to do now is we will have to change the address on this Community Correction Order.  He will receive at some stage today in the prison a copy of my signed order which is the Community Correction Order and he will need to sign that and provide that back to the authorities and then it will be sent back to us.

54Mr Vincent, can you just make a note?  He has to call 9838 2622 which is the Coolaroo Justice Service Centre number within two clear working days of his release in order to set up the induction process.

55MR VINCENT:  Your Honour, if I could just check that number?  9838 2622.

56HER HONOUR:  Yes, that is correct.  I think that concludes everything. 
Mr Edwards, it is important that you understand the nature of the order that I have made today so can you just confirm, do you understand that once you have served the 418 days pursuant to my orders you will be released on a two year Community Correction Order and I have explained to you all the terms of the order and you will be getting a signed copy of that today for you to sign?  Do you understand that?

57OFFENDER:  Yes.

58HER HONOUR:  This is the first time you will be released on a Community Correction Order so it is important that you adhere to the terms of the order, particularly in the early stages, so that they can regularise your return to the community even though it is going to be somewhat restricted given the COVID-19 conditions.

59It is important that you set up your relationship with your Community Correction Officer straight away upon your release and importantly, if there are any issues with you being unable to comply, you should make that known to your Community Correction Officer immediately because there is capacity to vary orders in the event that your circumstances change.

60But really this is putting the responsibility onto you with the support of Community Corrections but you also have got the additional support of Forensic Disability which you have never had before so everything is in place to support you back in the community.

61You have been lucky that Ms Mitsaris is prepared to allow you to live in the relative stability of her home with your own room.  Just remember that is a big responsibility for her because she has got a four year old boy so it is going to be really important that you just try to do your best upon your release.

62Otherwise you know what the alternatives are, they are pretty bleak.  You will be couch surfing and you will be in trouble in no time and you will be back where you are currently.  So I just urge you to really make the most of this.

63I know if Uncle Wally and Uncle David were here with me today they would be offering you as much support as they possibly can.  They are very committed in their role as elders to try to get people out of the system and breaking the cycle so please heed their words and I wish you well for the future.

64OFFENDER:  Thank you, Your Honour.

65HER HONOUR:  Thank you.  I think that concludes the proceeding now.  Thank you, Mr Vincent, for all your efforts.  It is much appreciated and also, Ms Malobabic.

66MS MALOBABIC:  If Your Honour pleases.

67HER HONOUR:  Thank you.  We will disconnect now.

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