Director of Public Prosecutions v Foley
[2020] VCC 1411
•9 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00916
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAIMON FOLEY |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2020 | |
DATE OF SENTENCE: | 9 September 2020 | |
CASE MAY BE CITED AS: | DPP v Foley | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1411 | |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing - attempted armed robbery charges and a related summary offence, being a charge of commit indictable offence whilst on bail – plea of guilty – sentencing conversation – Koori Court – powerful mitigating factors – youth, early plea of guilty, genuine remorse, genuine participation in the sentencing conversation, application of Bugmy and Verdins’ principles, reasonable prospects of rehabilitation – Community Corrections Order imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Sprague (Plea) Ms A Walker(Sentence) | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms Thaufeeq | Greg Thomas Solicitors |
HER HONOUR:
1 Daimon Foley, you have pleaded guilty before me to two charges of attempted armed robbery. You also pleaded guilty to the related summary charge of commit an indictable offence whilst on bail.
2 The offences are serious, and that is reflected in the maximum penalties prescribed by law of 20 years' imprisonment for attempted armed robbery and 3 months or 30 penalty units for the summary charge.
3 You admitted prior court appearances. You have a limited criminal history but there are relevant prior offences. On 9 October 2019 the Heidelberg Children’s Court ordered you to serve 31 days youth detention for robbery, attempt to commit an indictable offence and commit an indictable offence whilst on bail, and on the 6 December 2019 Melbourne Magistrates Court you were ordered to serve 2 days imprisonment and were placed on a Community Correction Order (CCO) for theft, unlawful assault and commit an indictable offence whilst on bail. The order had a work component only. The current offending was committed on 4 March 2020 and therefore contravenes a condition of the CCO that you not re-offend during the 12-month operational period of the order. The fact that you did that as well as commit the offences in breach of bail conditions reflects poorly on your rehabilitation prospects.
4 Since your arrest, you have been sentenced on 25 March 2020 by the Heidelberg Children’s Court to an aggregate of six months youth detention for a multitude of charges that were the subject of a consolidation hearing that included dishonesty offences as well as armed robbery charges. On that same day at Heidelberg Magistrates’ Court you were sentenced to two months’ detention in youth detention for robbery and commit an indictable offence whilst on bail and contravene a conduct condition of bail. One month of the youth detention order was cumulated upon the youth detention order imposed by the Heidelberg Children’s Court.
5 Those appearances reveal a concerning pattern of serious offending over the past years including, armed robbery, robbery, attempted robbery, intentionally causing injury and other property offences.
6 Therefore, your current offending forms part of a pattern of offending. That is not an aggravating feature and you are not to be punished twice for past offending, but the pattern is a concerning one that cannot be ignored.[1]
[1]Ryan v The Queen (2001) 206 CLR 267 at [67]; Gulak v The Queen [2015] VSCA 300 at [23]
7 You are presently serving the youth detention orders at Malmsbury Youth Justice Centre (YJC) and are due for release on 13 October 2020.
Circumstances of offending
8 I will proceed to sentence you based on the Summary of Prosecution Opening dated 1 September 2020 that was summarised at the hearing.
9 The offending occurred on 4 March 2020 at night and involved you approaching a passenger, Mr Yen, on one bus and demanding money, his credit card and mobile phone when you were armed with a knife and, shortly thereafter, you threatened the bus driver, Mr Hardeep Singh on a different bus demanding money from him whilst armed with a knife.
10 No Victim Impact Statements were filed but common sense dictates that both Mr Yen and Mr Singh, the bus driver, would have been upset by your actions.[2]
[2]Lyddy v The Queen [2019] VSCA 35 at [74]
11 Mr Singh said in his witness statement that he was shocked by your actions and thought that you were going to hurt him.
12 You undertook the two attempted armed robberies whilst armed with a large kitchen knife and both of your selected targets were utilising public transport one as a passenger and the other as a driver. The victims are entitled to feel safe when travelling on a bus. Fortunately, no one was physically harmed by your actions.
13 I accept that the offending occurred in the context of you heavily abusing illicit drugs and being emotionally upset by the death of your uncle who had death had happened on that day as well as other significant traumas that have occurred in your life that would have also contributed to your frame of mind.
14 It is obvious having viewed the CCTV footage of the offending that you were acting under the influence of drugs. Whist providing a context to the offending, it does not excuse your offending. On behalf of the community your actions must be condemned.
15 Being armed with a knife is a dangerous activity in itself and the potential for the risk of harm is real. You should never carry a knife. Too many people’s lives have been destroyed through violence inflicted by knives. You need to reflect of this and ensure you do not arm yourself in the future.
16 Overall, I assess the gravity of your offending in the low range of offending for this type of serious offending.
Participation in Koori Court
17 You are a young Aboriginal man of Yorta Yorta, Gurindji, Kamilaroi and Gumbaingirr descent.
18 An important aspect of your case was that you consented to having the charges heard in the Koori Court Division. This is your first appearance in the Koori Court Division.
19 You participated in a process that involves appearing before Elders and Respected Persons from the Koori community. The process is described as a “sentencing conversation”.
20 The Court of Appeal in Victoria has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.[3]
[3]See The Queen v Steelie Morgan [2010] VSCA 14 at page 11
21 The Koori Court is an Aboriginal justice initiative that is community-driven and is aimed at breaking the cycle of offending and is directed at dealing with the issue of over-representation of Aboriginal people in the criminal justice system. This is an important plank in addressing the issues identified by the Royal Commission into Aboriginal Deaths in Custody 1991 recommendations. Your grandfather, Dr Gary Foley played an instrumental role in highlighting the very real concerns of the Aboriginal community that formed party of those the RCIADIC recommendations.
22 During the sentencing conversation you were very respectful towards the elders Uncle Wally Edwards and Aunty Jacquie Stewart.
23 Both elders condemned your behaviour and challenged you concerning your behaviour. They encouraged you to focus on the future and to address your underlying offending behaviour by addressing your drug and alcohol problem You genuinely participated in the process and that is a factor that mitigates punishment.[4]
[4]Honeysett v The Queen (2018) 56 VR 375
24 You are very fortunate in that you have strong support in the community. This is reflected in the letters of support received from Dr Gary Foley, your paternal grandfather, Ben McVeigh, Dardi Munwurro and Nakia Firebrace.
25 I have had regard to the personal history provided to the Court by Dr Foley. He sets out the historical context that has impacted on Aboriginal people generally and the particular impact of the events that happened following the closure of Northlands Secondary College in 1993 and the consequences of the litigation and setbacks that followed that significantly impacted on your father Bruce’s life.
26 Your mother, Brenda Weston, your paternal grandparents, Dr Foley and Jennifer Porter were present to support you during the sentencing conversation.
27 Whilst at Malmsbury, Nakia Firebrace, Team Leader, Youth Through Care Program, a program that is supported by the Victorian Aboriginal Child Care Agency, has been providing you with emotional and cultural support.
28 Mr Firebrace is a strong and proud Yorta Yorta man who is committed to mentoring and supporting you in Malmsbury. He is committed to supporting you following your eventual release. He spoke highly of the efforts that you have made to address your offending behaviour, to understand and connect with your Aboriginal culture and how you have gained a greater understanding of your Aboriginal heritage as well as a better understanding of your identity and responsibilities as a First Nations person.
29 He said that you have embraced art as a means of expressing yourself culturally and that you have started to learn Yorta Yorta language.
30 A significant body of your artwork was shown at the plea hearing that demonstrates a real expression and understanding of your cultural knowledge.
31 Through your grandfather, Dr Foley, you have an opportunity, on your release, to work with him on an Aboriginal History Archive project being conducted by him at Victoria University part of which deals with the development of an exhibition, stage cabaret and documentary film that concerns the closure of Northlands Secondary College. He has offered you part-time employment that may lead in the future to full-time employment. This would provide you with productive work and would provide you with a meaningful way of connecting to your people’s history and your own personal history.
32 In the longer term your grandfather would like you to pursue your education. He expressed a strong desire to divert you from the criminal justice system. He believes in your potential and intends to play a closer role in your development so that you can become a positive contributing member of society.
33 Mr Firebrace is also involved with the Northlands Project.
34 You are now drug-free and have expressed a willingness to deal with your underlying problems, to be guided by Mr Firebrace in the future and to take up the opportunity offered by your grandfather.
History and background
35 You were 18 at the time of offending and you are now aged 19.
36 You were born in Melbourne and have a younger sister who is aged 15. Your childhood was marred by exposure to trauma and significant family violence. Child Protection were involved when you were aged 1 through to 16 years.
37 Your family moved to Sydney when you were about 3 years of age. You lived with both parents until they separated when you were around 9 years of age. Following the breakdown of your parent’s relationship which was described as acrimonious you lived with your mother but were removed from her care due to family violence involving both of your parents. You lived with your father for briefly but he had long term substance abuse issues and subsequently, your mother resumed your care. She relocated to Melbourne when you were about 10. Your father eventually returned to Melbourne to live.
38 You have limited formal education. You left school in year 10. You did well at school but there were behavioural issues . A teacher recommended the Dardi Munwurro “Bramung Jaarn Journeys Program”. This program is aimed at helping young Aboriginal men to connect to culture and to engage and build resilience to divert them from the criminal justice system.
39 You have never been employed but now have an opportunity to work with your grandfather.
40 You are a “young offender” pursuant to s3 of the Sentencing Act 1991.
41 I have applied the principles of R v Mills.[5] Rehabilitation is an important factor in your sentence. You are at an important stage of your maturation and through your post-offence conduct you have shown that you are open to reform. You are showing positive signs of gaining insight but need to continue to focus on being drug free and alcohol free and you need to address the complex issues that drive your abuse of drugs and alcohol.
[5]R v Mills [1998] 4 VR 235, 241
42 Your rehabilitation is in the community’s interest, in part because effective rehabilitation will protect the community from future offending.[6]
[6]Ibid, 54 [35]
43 I have had regard to the comprehensive written submissions filed by Ms Thaufeeq on your behalf, and Mr Sprague on behalf of the prosecution.
44 I accept the submissions on your behalf in mitigation of penalty.
45 You pleaded guilty at an early opportunity at a committal mention on 23 July 2020. Your plea is of real utility in your plea. It was entered following negotiations at an early stage. By your plea you have spared the State the expense and inconvenience of a trial. Importantly, the two victims have been spared the necessity of having to give evidence and be cross-examined. You have facilitated justice and your sentence will be discounted accordingly.
46 I consider that you are remorseful for your conduct and that is evidenced by your plea and the responses that you gave during the sentencing conversation with the Elders and Respected Persons.
47 You expressed appropriate regret and shame for your actions and victim empathy. You now take full responsibility for your conduct. You are thinking more clearly and understand that what you did was wrong.
48 I have had regard to the report of Ms Cidoni, consultant psychologist, and to the report of Dr Frank Muscara, neuropsychologist.
49 I do not consider that the Verdins’ principles are enlivened by reason of a disorder that can be linked to the offending.
50 I accept Dr Muscara’s assessment that your cognitive capacity falls within the borderline range. He identified a number of factors are likely to have contributed, including being exposed to trauma at an early age, substance abuse and head injuries in the context of drug abuse and exposure to violence.
51 Ms Cidoni opines that you continue to be negatively impacted by your traumatic exposures and notes that your substance use, both illicit drugs and alcohol, may be “to escape uncomfortable feelings and memories”.
52 I have had regard to your impaired judgement by reason of your past history of trauma and have moderated general and specific deterrence accordingly.
53 I have also had regard to the fact that imprisonment in an adult setting would be more burdensome for you than a person who does not suffer from your history of complex trauma.
54 You are a person who has experienced significant traumas and disadvantage throughout your formative years. I accept that the circumstances of your depravation, abuse and other social disadvantage that occurred during your formative years were profound and that has not diminished with the passage of time and repeat offending.
55 I have applied the principles of Bugmy.[7] The High Court recognised that:
“the effects of profound deprivation do not diminish over time and repeated offending and it is right to speak of giving full weight to an offender’s deprived background in every sentencing decision.”[8]
[7]Bugmy v The Queen [2013] HCA 37,[40],[43] –[44]
[8]Ibid, paragraph 42
56 I have reduced your moral culpability and have given full weight to your deprived background in formulating the appropriate sentence.
57 Despite your cognitive difficulties you recognise the link between using drugs and alcohol abuse and criminal conduct. Importantly, you recognise the need for ongoing support and treatment to address your addiction to alcohol and drugs when you return to the community.
58 Overall, I consider that your prospects of rehabilitation are good, having regard to your current level of insight, appropriate expressions of remorse, and acceptance of responsibility for your wrongdoing.
59 Your prospects of rehabilitation are enhanced by your strong family support, as well as the Aboriginal community supports that will continue to be in place on your release.
60 Yours is a case where there is a significant community interest in continuing to promote your rehabilitation. Adult jail would most likely destroy the real achievements that you have made to date in your reformation. It would isolate you, a young Aboriginal man who has suffered from trauma in the past, from your family, your community supports and your culture. During the pandemic these factors are amplified for a young offender who would necessarily have to spend a long time in isolation separated from family without face to face visits. This would cause additional distress to you and your family.
61 Jail for you would be counter-productive and would potentially undo all the good work that has been done to regularise your behaviour. It would carry the risk of exposing you to negative influences and antisocial tendencies. Any such detrimental effects that flow from a young offender by being imprisoned would likely have a flow on to the community.
62 You have demonstrated that you can conduct yourself in a more considered and mature way. At Malmsbury, a controlled environment, you have lived without the negative influence of drugs and other harmful substances influencing your behaviour. Such an outcome is significant given your pre-offence situation.
63 The support and encouragement of Mr Firebrace, your Koori Justice worker, needs to be acknowledged. He has been very influential in achieving this outcome. I thank him on behalf of the community.
64 However, the future will be dictated by how you respond to the further support and opportunities that await you upon your release.
65 Dardi Munwurro have confirmed that you have been accepted for the Ngarra Jarranounith Men’s Family Violence and Behaviour Change Residential Program. This is a 16-week residential program that is abstinence based and is focused on addressing your underlying addictions and offence behaviours. This is available on your release due on 13 October 2020.
66 You have been given this opportunity and your efforts to date have shown that you have a lot of potential, but that you will need to draw on the strengths of your culture and your inner strengths to accept the support offered so as to optimise your future prospects and realise your true potential.
67 I have had regard to the circumstances in which you have been held following the declaration of the COVID-19 pandemic. There have been very real impacts for you following the implementation of restrictions in response to the pandemic. Programs have been impacted and you have been denied personal visits. You have spent long hours isolated in your cell and you have found that experience difficult.
68 It is accepted that the impact of covid-19 is causing additional stress and concern for prisoners and their families.
69 Insofar as disposition is concerned, Ms Thaufeeq sought a CCO on your behalf to provide for your supported release. This will offer you the best chance to address your drug and alcohol issues and allow for treatment in the community.
70 The Crown Prosecutor, Mr Sprague, supported that such a disposition would be available having regard to the circumstances of the offending, your personal history and circumstances, and all matters put in mitigation.
71 In formulating just punishment, I have had regard to the principles set out in the Sentencing Act, and must balance the interests of the protection of the community with the need to impose just punishment, and to provide for your rehabilitation into the future.
72 You have now shown that, in the supported environment of Malmsbury, you can remain drug-free, you express appropriate attitudes, and are motivated to change such that I consider that a CCO is appropriate.
73 As was made clear in the guideline judgment of Boulton,[9] in an appropriate case, a CCO does provide a flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together. A CCO can be fashioned to address your particular circumstances, the causes of offending and minimise the risk of reoffending by promoting your rehabilitation. Although, as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, the Court of Appeal has said a CCO may remain open even in cases of very serious offending.[10]
[9]Boulton v The Queen (2014) 46 VR 308
[10]Ibid, 338 [131]
74 I have had regard to the principles that apply to the sentencing of youthful offenders and ultimately, I conclude that all the relevant objectives such as general and specific deterrence, denunciation, just punishment, protection of the community and your rehabilitation, can be best served by the imposition of a gaol term equivalent to the time you have already served, to be followed by a CCO.
75 Following the sentencing conversation, you have been assessed as being suitable for a Community Correction Order.
76 The assessment outcome report confirms that you are suitable for a CCO with conditions recommended, namely treatment and rehabilitation for your drug and alcohol addictions (including testing) and also other offence behaviour programs all focussed on addressing the behaviours that led to this offending including the Ngarra Jarranounith Men’s Family Violence and Behaviour Change Residential Program facilitated by Dardi Munwurro.
77 I have explained to you the core conditions as well as the other special conditions to be included in the order, and you have indicated that you understand the effect and the nature of the order and you have verbally consented to the order being made in those terms.
78 I have also explained to you should you breach the order by breaching any of the conditions, then you will be dealt with in respect of the contravention and that means you will be brought back before the court and, in respect to the contravention, the maximum penalty is three months’ imprisonment. You would also face further punishment for any fresh offences and you may be liable to be resentenced upon these charges.
79 I understand that you consent to the imposition of the order. A copy of that order has now been signed by me and I direct that it be entered into the records of the court that your verbal consent to the order has been given this day.
80 In relation to the charges, Mr Foley, I make the following orders.
81 In respect to the two attempted armed robbery charges and the summary charge of commit an indictable offence whilst on bail, you are convicted and placed a CCO for 12 months’ duration with supervision, treatment and rehabilitation programs, including testing for drugs and treatment and other programs addressing offending behaviour including the Ngarra Jarranounith Men’s Family Violence and Behaviour Change Residential Program facilitated by Dardi Munwurro.
82 There will be Judicial Monitoring the first occasion will occur on Monday, 14 December 2020 at 10am at the County Court Melbourne.
83 I make the disposal order sought.
84 I note that there are 4 days of pre-sentence detention for future reference if required.
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