Director of Public Prosecutions v Eriha

[2023] VCC 2199

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00933

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEVYNN ERIHA

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2023
DATE OF SENTENCE:	27 November 2023
CASE MAY BE CITED AS:	DPP v Eriha
MEDIUM NEUTRAL CITATION:	[2023] VCC 2199

REASONS FOR SENTENCE
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Subject:Criminal law

Catchwords:              Armed robbery  

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen [2013] HCA 37.

Sentence:                  Two year community correction order and ordered to pay compensation.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Petric	Office of Public Prosecutions
For the Offender	Mr A. Cameron	Angus Cameron Lawyers

HER HONOUR:

1Devynn Eriha, you have pleaded guilty on indictment to a single charge of armed robbery.

2In sentencing you for this crime I must have regard to the maximum penalty for the offence you have committed.  Armed robbery carries a maximum of 25 years imprisonment. That maximum reflects the seriousness with which Parliament regards this offence.

3The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening for Sentence Indication' dated 18 October 2023.  This is an agreed document and represents your acceptance of the elements of the offence to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

4I am not going to repeat the entire summary as it is a matter of record, but in brief terms, the offending that gives rise to this charge occurred over the evening of 23 December 2022.

The Offending

5At about 6.00 pm on that day, the victim, Mr Vavilov boarded a bus outside Mordialloc train station en route to Preston station.  He was 18 years of age and not known to you. He took the centre seat in the last row at the back of the bus.

6At approximately 7.45 pm, you and the co-accused, Aaron Millin, boarded the same bus in Heidelberg.

7You took a seat two rows in front of the victim. Your co-accused took a seat on the adjacent seat separated by the aisle.

8At about 7.51 pm the victim sent a text message to his mother requesting that she pick him up. He put his blue iPhone 13 back into his right jacket pocket.

9At 7.52 pm, you approached the victim and took a seat directly to his left and stated, 'Run your phone'. Mr Vavilov was shocked and fearful as he understood this to be a demand for his phone.

10You then lifted your shirt to display a knife in a leather case on your right side and stated, 'Give me your phone bro'. Mr Vavilov saw the knife cover and a blade and complied with your demands, handing over the iPhone 13, valued at $1,300. The iPhone was charging on a white magnetic portable phone charger valued at $160 which you also took.

11He was made to provide his personal PIN, so that you could access his phone.

12You made further demands for Mr Vavilov to hand over his wallet but changed your mind when you realized it only contained a bank card and $50.

13You then noticed the victim’s shoes and asked, 'What size are you?'. You then looked at the co-accused and asked, 'What size are you?'. Your co-accused responded stating, 'Just take them'.

14You turned back to the victim and demanded, 'Take off the shoes'. He complied with your request and handed over his custom Nike shoes valued at $200.

15At about 7.54 pm, you said to Mr Vavilov, 'I’ll get you to get off at the next stop'. He indicated he wanted to get off at Preston station, but you stated, 'Nah, I’ll get you to get off at the next stop.'

16When the victim exited the bus at the intersection of Waterdale Road and Bell Street, Heidelberg, he was left stranded without shoes or a phone to contact anyone for assistance.

17You and the co-accused exited the bus shortly thereafter at around 7.58 pm.

18The entire incident on the bus was captured on internal bus CCTV, clearly identifying yourself and the co-accused.

19A short time after the victim was able to call his parents from a pizza shop and attended Preston police station with his father to report the matter.

20On 3 January 2023, investigators obtained the CCTV footage from the bus and you and the co-accused were identified. A search warrant executed at the co‑accused’s address located the victim’s custom Nike shoes. I do not understand the mobile phone to have been recovered.

21On 31 January 2023, you were arrested and conveyed to Melbourne West police station and interviewed. You provided a 'no comment' interview, as is your right.

Victim Impact Statement and offence gravity

22The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime on them.

23A Victim Impact Statement authored by Mr Vavilov dated 24 November 2023 was tendered by the prosecution at your plea hearing. 

24Mr Vavilov describes feeling fear and increased anxiety as a result of your offending, particularly when travelling on public transport, which he needs to do to get to work and his study. He feels humiliated and has difficulty sleeping.  It was difficult for him financially to replace the items that had been taken from him.

25I suspect you ascertained Ms Vavilov had an item of value. Once you did so, you and your co-accused took up positions close to your victim which were designed to be intimidatory. I accept that your offending was relatively unsophisticated and probably unplanned. Nevertheless, it was simply nasty and quite cowardly given you had a weapon and there were two of you. This fact made your victim particularly vulnerable.  You did not stop at a request for his phone, you then sought his wallet and then sought his shoes.

26His vulnerability was furthered when you made him get off the bus without his shoes or his phone. These days people carry much of their lives on their mobile phone and it is obviously a means to contact others in a time of distress. You took items of value to him and from him.

27I note that your co-accused was also prosecuted. The parity principle is only of limited application, bearing in mind he pleaded guilty to robbery, committing an indictable offence on bail and possess a drug of dependence relating to 23 December 2022, as well as unrelated offending. He had previously served a short gaol sentence. Mr Millin’s matters were dealt with in the Magistrates’ Court where he was sentenced to six months' imprisonment in combination with an 18 month community correction order

Plea of guilty

28The Sentencing Act obliges me to take into account the stage at which you entered your guilty plea. 

29A committal hearing took place on 31 May 2023 where the victim and the informant were cross-examined. At that stage you were denying the presence of a knife.

30You determined to plead guilty on 14 November 2023, when your case was listed for a sentence indication.

31Whilst your plea is clearly not at the earliest opportunity there remains value in saving the victim the need to give evidence at any trial, and utilitarian value in saving the community the expense of contested proceedings. 

32Whilst remorse might be harder to discern, your decision to take responsibility for your actions combined with your efforts to rehabilitate would indicate some insight and burgeoning maturity.  I hope this assessment is correct.

33These factors will all be taken into account in your favour.

Personal Circumstances

34In terms of your personal circumstances, tendered on your plea were defence submissions and a report authored by clinical psychologist Carla Lechner, dated 16 August 2023, which helpfully sets out your personal background.

35You were born in March 2001 to your parents, Michelle and Allan Eriha. You are currently 22 years old and are a Maori-Australian man. You have two siblings; an older sister Alanys, who is currently 25 years of age, and Mieshele, who is currently 16. You have a positive relationship with Alanys and have plans to live with her and her partner. You are currently residing in Preston with your mother on a temporary basis. You have little contact with Mieshele, who lives in residential care. You have two half-siblings who you do not have contact with.

36Growing up, substance abuse, domestic violence and criminal behaviour were salient features of your family life. You told Ms Lechner that when you were younger your parents would physically abuse you and you would get 'beaten and belted with objects, anything they could find.'  You recall being burnt with cigarettes and being made to eat tobacco.  The Department of Health and Human Services became involved, with a total of 11 reports being made to Child Protection. You told Ms Lechner that at one stage you were living in residential care and that your dad would get violent when he drank and went to prison for strangling your sister.

37Your history of parental absence stemming from their lifestyle, drug use and abuse, together with your exposure to domestic violence and limited stability in your younger years, would appear to give rise to the consideration of the so-called Bugmy principles in which the High Court said, and I quote:

'The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life.  Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience.  It is a feature of the person's makeup and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.[1]'

[1] Bugmy v The Queen (2013) 249 CLR 571 at [594] – [595].

38Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision.  I do so in your case.  The application of these principles is capable of reducing your moral culpability for this offending.

39In terms of school life, you attended two local primary schools and Thornbury High School. You had friends, however, were bullied and called 'Asian'. You would react to that by getting into fights and being truant. You were often in trouble for fighting and for bringing drugs to school and were suspended a number of times. You dropped out around Year 9 and were absent from any schooling for a period of 18 months until you commenced at the Pavilion School, where you completed your Certificate III in hospitality and Year 12 VCAL in 2021.

40Your parents had separated when you were approximately 11 years of age and your dad had started using drugs. During your teenage years you would move between living with each parent. At one stage, when you were 16 years of age, you went to live with your dad and reported that he was taking 'ice'. You started taking it too for a period of about six months but decided to quit after being locked up in youth detention for a week.

41Also at around the age of 16 years, you were the victim of a hit and run accident. You were 'flipped a couple of times' and landed on your head. You were taken to the Royal Melbourne Hospital. Fortunately, the hospital reported no brain abnormalities detected, however, you say that you do feel slower in your thinking and that your memory is not that good. You experienced nightmares and flash backs for a period of time following the accident.

42Since the age of 16, you have used cannabis. You smoke it every day to assist with general coping and to help you sleep. You deny using any other illicit substances and rarely drink, although you have previously had some issues with alcohol, according to material filed.  You do report that you had been drinking on the night of these offences, however, deny consuming alcohol in a problematic manner. You do not take any prescribed medications.

43You were around 19 years of age when you formally moved out of home and would either sleep rough on the streets or couch surf, as you said your father got to be a 'bit too much on the ice' and you wanted to move away from it.

44You were not in receipt of Centrelink until you were 21 years old so started engaging in criminal activity as a means of supporting yourself. You told Ms Lechner that your current offending occurred in the context of not having much money and that you 'didn’t know any other way at the time'.

45In terms of mental health, Ms Lechner opines that you present with some features of complex traumatic stress disorder arising from your exposure to complex developmental trauma in your formative years. Your exposure to this trauma has undermined your social, emotional, and vocational development. You have cognitive limitations which affect your capacity for problem solving, decision making and consequential thinking. 

46Your counsel does not call into your aid the principles in Verdins & Ors.

47You have a limited employment history. You gained experience working in a food truck for three months whilst completing your Certificate III in hospitality and you worked in a Greek restaurant for six weeks in early 2021. You told Ms Lechner that you are currently registered with a job agency, however, have not really engaged with them due to your transient housing situation. You are currently in receipt of Centrelink Job Seeker Allowance.

48In terms of your future interests, you would like to obtain your driver’s licence and complete vocational certificates to work in either traffic management or warehouse logistics. You also have aspirations to one day become a rap artist.

Criminal history

49Your prior criminal history does form part of your personal circumstances and is unenviable for one so young. You have five previous court appearances.  

50On 12 November 2014, you first appeared at the Heidelberg Children's Court for a single charge of theft from a shop and were sentenced to a 12 month good behaviour bond in the amount of $50, without a conviction being recorded.

51There was then a three year gap in your offending before you appeared before the Heidelberg Children's Court on 29 November 2017 in relation to charges of theft of a motor vehicle, unlicensed driving, obtaining property by deception, attempt to obtain property by deception, shop theft, handle stolen goods, criminal damage, aggravated burglary, reckless conduct endangering life, and possess prohibited weapon without exemption. You were placed on a 12 month probation order with a condition to complete the 'Drive Alive' program.

52On 12 December 2018, you were charged with breaching that probation order and for further offending.  You appeared again at the Heidelberg Children’s Court for charges which included recklessly cause injury, burglary, theft, obtain property by deception, commit indictable offence whist on bail, fail to answer bail, possess cannabis, possess drug of dependence, theft of a motor vehicle, negligently deal with the proceeds of crime and possess cartridge ammunition without a licence. For the breach of the probation order the original order was confirmed. On the further offending, you were sentenced to a youth supervision order for a period of six months without a conviction being recorded.

53On 6 February 2019, you appeared at the Heidelberg Children’s Court for charges of theft of a bicycle and attempted theft from a motor vehicle. You received a six month good behaviour bond in the amount of $100, with a condition to pay $500 compensation. No conviction was recorded.

54After a gap of some two and a half years, you debuted in the Heidelberg Magistrates’ Court on 1 December 2021 for charges of possess controlled weapon without excuse, possess methylamphetamine, possess cannabis, commit indictable offence whilst on bail and fail to answer bail. You were sentenced to an adjourned undertaking for a period of 12 months and required to engage in programs to address your drug use. This order was also made without a conviction being recorded.

55You had just completed this adjourned undertaking at the time of your offending before me.

56This history in itself gives reason to be concerned about your ability to comply with court orders.

57Whilst not to be punished for your criminal history a second time, it is relevant to the assessment that needs to be undertaken by me as to the weight that should attach to specific deterrence, denunciation and protection of the community, all of which do carry importance in your sentencing exercise.  It is also relevant to the assessment as to your prospects for rehabilitation, to which I now turn. 

Prospects of rehabilitation

58As part of bail orders, you were placed on the Court Integrated Services Program known as CISP.

59A final progress report from that program tells me that you commenced with that program on 2 February 2023. During what appears to be approximately a nine month period, you maintained contact with CISP support managers. You are described as someone able to engage meaningfully with support services and professionals, as evidenced by your positive therapeutic relationship with your CISP worker, Ms Layla Silverstein.

60You also worked with Mr Darcy Morrison-Van Velson, youth outreach worker with the Youth Support Advocacy Service or YSAS. He has provided his own letter to the court dated 17 October 2023 and attended your initial plea hearing on 14 November 2023.

61Mr Morrison-Van Velson writes that you have worked with his service since March of 2023 and have engaged well with treatment and supports. You participate openly and honestly in discussions to reduce drug use and associated harms.

62You successfully completed the 'Flip My Ride' program, which is a 16-week program designed to support marginalised young people in your area and provide them with practical work skills and certifications, which will help with your goal of obtaining meaningful employment.

63An updated report dated 21 November 2023 has been provided today and you are still engaging fortnightly and still described as engaging well with treatment and supports.

64On 25 July 2023 you obtained your Certificate III in retail.

65In October you also obtained a white card confirming your competence to work safely in the construction industry.

66You are also engaged with AGA Transition to Work as an employment provider.

67You are currently residing with your mother, as I have already said. She has diagnoses of epilepsy and diabetes. You describe yourself as her carer. This is presently a supportive relationship.

68Whilst subject to CISP, you did participate in an initial telehealth psychological appointment with Ms Wenda MacPherson on 3 October 2023. You did find this somewhat confronting, which is perhaps understandable. You have obtained a mental health care plan and despite feeling better overall, you do see benefit in additional assistance. I do encourage you to take this up.

69You spoke to Ms Lechner of your shame for your actions in December of 2022 and acknowledged that your victim would have been scared. This does show some insight.  

70You have a supportive relationship with a partner, Megan. You have made efforts to cease relationships with previous antisocial peers.

71You were 22 years of age at the time of your offending and whilst not technically a 'young offender,' you are still obviously relatively young.

72By their very nature, younger offenders are immature, and may not fully appreciate the nature, seriousness and consequences of criminal conduct such that there is merit in continued focus on your potential for rehabilitation given recent efforts you have made.  I see your efforts as genuine.

73Importantly, you are seeing the benefits of a more positive lifestyle. If you can continue to work in the way you have over the last nine months and stay away from drugs your prospects are good.

Sentencing submissions

74In terms of sentencing submissions, the crown submits your offending calls for a term of imprisonment by way of a combination sentence, that is, a term of imprisonment in combination with a community corrections order.

75Your counsel contends that there are good reasons, including your youth and future prospects, for the court to consider a community corrections order in isolation of any term of imprisonment.

76In order to be better informed, I had you assessed as to your suitability for a Corrections order.

77A report from the Mental Health Advice and Response Service dated 14 November 2023, tells me that in terms of your mental health you presented as stable, but given your history it was recommended that there be ongoing assessment or treatment for your mental health as part of a condition on any community corrections order imposed.

78In an assessment outcome report dated 14 November 2023, you were assessed as suitable for a community corrections order

79Courts now have more discretion in terms of choosing a sentencing disposition which does enable all the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to the option of imprisonment which is skewed towards retribution and deterrence, factors which have less weight in the overall sentencing mix for you.

80Given your demonstrated compliance with court ordered treatment on bail and your relative youth, it does not seem advantageous to you or the community for you to be gaoled at this time.  

81Section 5(4) of the Sentencing Act 1991 reminds me that gaol is a situation of last resort.

82Just checking with you gentlemen whether there are any factual errors or issues?

83MR PETRIC:  No, Your Honour. 

84MR CAMERON:  No, Your Honour. 

Sentencing Principles

85Mr Eriha, I make the ancillary order in the terms sought for the compensation of Mr Vavilov’s mobile phone.  I appreciate that will be difficult for you financially, but it was pretty difficult for him to get the funds to replace that item.

86The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.  I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.

87I have taken into account the relevant sentencing purposes referred to in s5 of the Sentencing Act 1991.  I have taken into account current sentencing practices for the offence to which you have pleaded guilty.

88In relation to charge 1, armed robbery, you are convicted and placed on a community corrections order for a period of two years, that sentence period being reduced given your compliance with the CISP program.

89During that two year order you are:

(a)   To be supervised by the Office of Corrections;

(b)   To submit for alcohol and drug treatment as directed;

(c)   To submit for mental health treatment as directed;

(d)   To perform 175 hours of community work;

(e)   75 hours of community work are offset against the treatment conditions, that is more treatment, less community work;

(f)    Initially, I am going to have you judicially monitored so you can appear before me regularly and I can see how you are travelling and also make sure the Office of Corrections are implementing intended services.

90In addition to the conditions I have imposed there are standard conditions. The first and foremost of those is you must not commit any other offences punishable by imprisonment during the two year period.

91You must report within two working days to the nearest Community Corrections office. You are required to advise your Corrections office of any change of address of where you are living or working and must do so within two clear working days. It is a term of all community corrections orders that you submit to visits as directed and you obey all of the instructions and directions of a Corrections officer. You cannot leave the State of Victoria without their prior permission.

92In my view, this order presents you with a chance to change your life in a positive fashion should you choose to take up that opportunity and the supports that should be made available. The order can be breached if you do not comply with it in terms of the conditions or reoffend with an offence punishable by imprisonment whilst it is in place.  If you do, you will come back before me for breaching the order, I may have to resentence you for the original offence and to sentence you for a separate charge of contravening the order, and I do not want to do that.

93Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges.  If not for your pleas of guilty, you would have got 12 months' imprisonment, in combination with a two year Correction order. 

94I will set the judicial monitoring for 10 o'clock on 26 February 2024.

95MR PETRIC:  May it please the court.

96HER HONOUR:  I will make it 5 February, sorry.  So I will let you speak with Mr Cameron about that.  You will need to sign a document because I cannot put you on a Corrections order unless you are willing to comply.

97OFFENDER:  Thank you.

98HER HONOUR:  So we will see each other for judicial monitoring, I don't want to see you otherwise.

99OFFENDER:  Thank you, Your Honour. 

100HER HONOUR:  You are happy to assist with that, Mr Cameron?

101MR CAMERON:  Of course, Your Honour.

102HER HONOUR:  Thank you. 

103MR CAMERON: May it please the court.

104HER HONOUR:   Do you want me to stand down?

105MR CAMERON:  Yes, I'd be grateful for that, Your Honour.

106HER HONOUR:  Alright, I'll stand down.

107(Short adjournment.)

108MR CAMERON:  Thank you, Your Honour, that's all been signed.

109HER HONOUR:  Great.  Thank you, Mr Petric and Mr Cameron for your assistance during this matter, very much appreciated.  And of course the silent participants which are your instructors, although you have probably instructed yourself, Mr Cameron.  Mr Eriha, I will see you on 5 February.  Christmas can be particularly difficult for most people but I do want to read good things in that monitoring report.  So I get an update in a written form on 5 February when you come back for judicial monitoring.  You are required to physically attend.  So bear in mind I will read whatever the Office of Corrections tell me, so keep up the good work.  You have managed it for nine months, I'd like to think you can continue.

110OFFENDER:  I will.  I will, Your Honour.

111HER HONOUR:  Great.  Thank you very much, close the court until 10.30 tomorrow.