Director of Public Prosecutions v Maker
[2019] VCC 1332
•23 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02599
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AKOL MAKER |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2019, 28 June 2019 and 2 August 2019 | |
DATE OF SENTENCE: | 23 August 2019 | |
CASE MAY BE CITED AS: | DPP v Maker | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1332 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: 24 years old offender – one charge of aggravated burglary, two charges of theft, one charge of causing injury intentionally, one charge of possessing drug of dependence and one charge of handling stolen goods – offender suffered global intellectual impairment and severe anxiety – application of principles in Verdins case – total effective sentence 2 years and 6 months’ imprisonment with a non-parole period of 18 months. 6AAA statement: 4 years’ imprisonment with a non-parole period of 3 years.
Legislation Cited: Sentencing Act 1991; Confiscation Act 1997
Cases Cited: R v Verdins (2007) 16 VR 269
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Bate | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr B Johnston | Victoria Legal Aid |
HER HONOUR:
1 Akol Maker, you have pleaded guilty to one charge of aggravated burglary, which carries a maximum penalty of 25 years’ imprisonment; two charges of theft, each of which carries a maximum penalty of 10 years’ imprisonment; one charge of causing injury intentionally, which carries a maximum penalty of 10 years’ imprisonment; one charge of possessing a drug of dependence in a small quantity, which carries a maximum penalty of 1 year’s imprisonment or 30 penalty units; and one charge of handling stolen goods, which carries a maximum penalty of 15 years’ imprisonment. In addition, you have consented to a summary offence of committing an indictable offence whilst on bail being transferred to the County Court from the Magistrates’ Court and have pleaded guilty to that summary offence, which carries a maximum penalty of 3 months’ imprisonment or 30 penalty units.
2 It should be noted that three other summary charges laid against you were withdrawn. These were Charges 6 and 7, each of which was a charge of unlawful assault, and Charge 8, entering a residential property without authority or any lawful excuse.
3 The circumstances of your offending are detailed in the summary of prosecution opening upon plea (Exhibit “A”).
4 Charge 1, aggravated burglary with intent to steal, involved you smashing a window at the home of your victim, Mr Alberti, at around 2.00pm on 8 July 2018. Mr Alberti was upstairs asleep in his bedroom and was woken up by the sound of your entry.
5 Charge 4, intentionally causing injury, involved conduct by you when your victim, Mr Alberti, went downstairs to investigate noises he could hear coming from the kitchen. He came across you grabbing at the computer in the living room and, when he asked you what you were doing, you started to throw things at Mr Alberti. Mr Alberti tried to call “000” and to stop you from leaving. You became more aggressive and grabbed a bottle of wine in one hand and pulled out a knife from your jacket which you held in your other hand. The knife had a red handle and was part of a “multi-tool”, similar to a Swiss army knife, but somewhat larger, being 15 to 20 centimetres in length. You threw the bottle at Mr Alberti, and he then reached and took hold of a kitchen knife which was on the bench. You were using the knife which was part of the multi-tool to make slashing movements, as though wanting to stab Mr Alberti. Mr Alberti yelled at you to stay back. He put the kitchen knife which he had picked up on the dining table, and grabbed a chair and shoved it at you to try and keep you away. He threw the chair at you as you came around and lunged at him. You then stabbed him in the left forearm with the knife which was part of the multi-tool. This knife remained stuck in Mr Alberti’s arm as the two of you kept fighting. Two other occupants of the house who heard the commotion came into the room. You then grabbed the kitchen knife that Mr Alberti had previously put on the dining table. This caused Mr Alberti to step back and, whilst you were still holding the kitchen knife, you left through the front door.
6 Mr Alberti called “000” and followed you down the street. After walking about 300 metres, you stopped, took your jacket off and left it on the street, but placed the kitchen knife in your pants pocket. Police subsequently arrived and arrested you and found that you were still in possession of the kitchen knife.
7 After your arrest, police found that you were also in possession of four USBs which belonged to Mr Alberti. These are the subject of Charge 3. They also found you had a set of keys and various items which had been stolen from the wallet of Mr Alberti’s housemate, Mr Oliveria. These comprised $60 US Dollars, $55 Brazilian Reais, $5 Australian Dollars, and two holy pictures. These are the subject of Charge 2.
8 Police also found you to be in possession of various stolen bank and membership cards, which are the subject of Charge 6, handling stolen goods. In addition, you were also found to be in possession of a small amount of amphetamine which is the subject of Charge 5.
9 At the time of committing these offences, you were on bail pursuant to an undertaking which had been entered into by you on 15 January 2018 in relation to charges of theft. This is an aggravating feature of your offending and is the subject of the summary charge to which you have pleaded guilty.
10 Following your arrest on 8 July 2018, you were interviewed by police. You gave “no comment” responses to police questioning, as is your legal entitlement. You were remanded in custody and have remained there until the present time.
11 Although your pleas of guilty were entered only on 30 May 2019, the prosecution concedes that they were made at the earliest possible opportunity because you had offered to plead guilty to the charges on the indictment prior to the committal which commenced on 5 November 2018, but your offer had been rejected by the prosecution.
12 You are presently aged 25 years, having been born on 30 November 1993. You come before the Court with a significant criminal history. Leaving aside matters in the Children’s Court in Parramatta and the ACT, you have regularly been before adult courts since you turned 18 years of age. You have prior appearances for recklessly causing injury, unlawful assault, robbery, attempted robbery, burglary, theft, possessing a dangerous article in a public place, committing an indictable offence whilst on bail and contravening a condition of bail. It is of concern that your history comprises a host of dishonesty offences, a number of which include robbery or attempted robbery and other assaults.
13 Over the years you have been given dispositions by courts which include without conviction adjournments by way of good behaviour bond, which you have contravened; Community Correction Orders which you have contravened; a suspended sentence which you have contravened and various terms of imprisonment ranging from four to 141 days. Apart from having committed indictable offences while on bail, it is another aggravating feature of your offending that, at the time of committing these offences, you were the subject of an adjourned undertaking to be of good behaviour. This had been entered into by you at the County Court on 2 November 2017, on the condition that you comply with a Justice Plan.
14 In a plea on your behalf by Mr Johnston, the Court was told that you were born in the Sudan but fled from there with family members to a refugee camp in Kenya. You remained in the refugee camp until the age of 10, when you and your mother and siblings were granted asylum in Australia and moved to Sydney. You have never met your father. You attended school to the end of Year 10 in Sydney and, when you were 15 years old, your family moved to Melbourne where you had some relatives. In Melbourne, you had limited employment at a chicken factory and at McDonald’s and as a fruit picker, but have not worked since you were 16 years old. You have a long history of drug and alcohol abuse which began in your early teenage years. In particular, you have heavily abused methylamphetamine and cannabis. Your counsel acknowledged your long history of offending and the fact that the aggravated burglary for which I must sentence you represents an escalation in your offending.
15 Mr Johnston submitted that all six limbs of Verdins[1] should apply in your case as mitigatory factors due to an enduring pattern of global intellectual impairment. This impairment has been the subject of three substantial assessments by Ms Jane Lofthouse, neuropsychologist, embodied in her reports dated 8 July 2015, 28 October 2017 and 13 May 2019. These were tendered as Exhibit “1”, along with a brief addendum report from her dated 27 May 2019.
[1](2007) 16 VR 269
16 On each occasion, Ms Lofthouse has carried out comprehensive neuropsychological testing. The most recent assessments were conducted on 10 May 2019 and embodied in her report dated 13 May 2019. In essence, those assessments confirmed the same neuropsychological picture which had emerged from her earlier assessments. You have a full scale intelligence quotient of 62, which is within the extremely low range. As far as verbal comprehension is concerned, your vocabulary and general knowledge are below average, as is your ability to understand the abstract likeness of two concepts. On testing of your perceptual reasoning, your scores are all below average and your reading age is similar to that of an eight year old. You suffer significant attention fluctuations and struggle to retain information in your mind and perform mental calculations. Ms Lofthouse stated that the extent of your attention deficits put in you in the extremely low range for attention. In addition, you are in the extremely low range for speed of information processing and your verbal and non-verbal memory are below average, indicative of a pattern of significant forgetfulness. Ms Lofthouse reported that you forget the majority of details at immediate recall and this impinges on your ability to remember any information after a 30 minute period. As far as verbal learning is concerned, you have a flattened learning curve and, after four repetitions, you were only able to learn six of 12 words. Testing of your executive function showed that your abstract reasoning skills were below average. You are reliant on literal or concrete thinking as opposed to flexible and abstract reasoning. Also, your planning and visuo-graphic skills are significantly below average.
17 As far as your psychological function is concerned, Ms Lofthouse noted that you had experienced periods of depression since 2013 relating to the death of your uncle and cousin as a result of the war in Africa. On 9 October 2013, you had been admitted to St Paul’s Psychiatric Unit and were thought to be suffering from psychosis with some somatic complaints exacerbated by anxiety. You were placed on Paliperidone, an atypical antipsychotic. Ms Lofthouse noted that since, her assessment back in 2017, you have been diagnosed with schizophrenia and whilst on remand you have been treated with Olanzapine, an atypical antipsychotic medication. Apparently your psychiatric state is presently stable but you will require monitoring, especially on your release from prison.
18 Ms Lofthouse stated that you report a moderate level of depression and identified psychological symptoms consistent with you experiencing a severe level of anxiety with physical responses such as dry mouth, trembling hands, a racing heart, quickened breathing, and feeling scared at times. Ms Lofthouse noted that, at the time of her report, you were being monitored by a psychiatric nurse in custody on a weekly basis and considered that you would benefit from continuation of that support.
19 Ms Lofthouse stated that, in light of your general intellectual functioning being in the extremely low range, there are practical consequences: You are only able to understand simple conversation, which would need to be kept short to help your attention and you are slow to learn new information; Your attention fluctuation for non-verbal material impinges on your capacity to process visual aspects of problem solving, including the interpretation of social cues; Your deficits may result in you experiencing confusion and requiring prompts to maintain your attention; and your slowed mentation makes it difficult for you to follow the normal pace of conversation and process non-verbal material, so that you may become confused and frustrated and be at risk of missing details. Ms Lofthouse stated that you should not be expected to respond within normal time limits and would benefit from being given extra time to understand and develop your answers.
20 Ms Lofthouse considered that your moderate level of executive dysfunction was likely to place you at risk of rigid patterns of thinking, as well as impulsive responses, which impinge upon your ability to plan your action and develop goals. She considered that you do understand that your criminal offending is wrong, although she found it difficult to judge your level of understanding of wrongfulness at the time of offending. She considered your risk of impulsive behaviour would not fully obscure your intent to commit the offences to which you have pleaded guilty, but your significant level of intellectual impairment is consistent with you experiencing difficulty making reasoned, calm and informed decisions and being able to fully control your behaviour. She stated that, although you have a history of psychotic episodes, as no psychiatric reports were available to her, it was difficult to comment on whether you were suffering psychotic symptoms at the time of your criminal offending.
21 In her addendum report dated 27 May 2019, Ms Lofthouse stated that your intellectual impairment and executive dysfunction could be considered as major contributing factors in your criminal behaviour. However, you also believe that your use of alcohol and cannabis were contributing factors. She state that they were likely to have impacted further on your intellectual deficits and ability to fully control your actions. She stated that there was no evidence in your history and test results that you have a diagnosis of intellectual disability as defined in the Disability Act 2006 (Vic). She opined that the most likely cause of your intellectual impairment is acquired brain injury as a result of significant drug and alcohol use against a background of pre‑existing borderline intelligence. Although there were several events in your history relating to head injuries which would have placed you at risk of an enduring traumatic brain injury, there were no medical reports to confirm this. However, Ms Lofthouse was not able to discount the presence of traumatic brain injury as a contributing factor in the cause of your intellectual impairment.
22 Tendered at the plea hearing was a client overview report authored by Susanne Pengelly, case manager from the Disability Justice Unit in West Melbourne Area, dated 1 November 2017 (Exhibit “2”). The author confirmed that you had been issued with a statement that you have an intellectual disability as defined by the Disability Act2006. However, you do have a capacity in relation to daily living skills and are able to independently undertake personal care tasks, such as bathing and grooming, and also the majority of household tasks, such as cleaning and preparing basic meals. You do have a difficulty managing finances and a poor memory, which impacts upon your capacity to recall and attend scheduled appointments. You do have the capacity to access the community independently by using public transport, but have some difficulty navigating your way in unfamiliar locations. She noted communication difficulties and problem solving and reasoning and consequential thinking skills, which I have already touched upon in relation to Ms Lofthouse’s reports. She identified disengaging from education, associating with a negative peer group and misusing alcohol, cannabis, cocaine and ice as features of your history. She noted that you had been the subject of two Justice Plans in the past; one the subject of orders at Sunshine Magistrates’ Court on 15 October 2015 and another from the County Court on 1 November 2017. At the time of Ms Pengelly’s report you were residing with your mother, three brothers and a cousin in Tarneit and she noted that your family remain a positive and strong support for you. She also noted that you had expressed an interest in being able to live independently in your own property and being able to improve your reading and writing skills to assist with getting a job.
23 The two Justice Plans upon which you had been placed were tended as Exhibit “3”. Unfortunately, following the Justice Plan dated 1 November 2017, you failed to engage in any way with the services provided by Disability Justice. This was detailed in an email from Ms Pengelly, your case manager, dated 16 February 2018 to the Associate of the Judge who had placed you on that order (Exhibit “4”). Your counsel stated that you had not engaged with Disability Services on your first Justice Plan dated 15 October 2015, either.
24 At the plea hearing on 30 May 2019, your counsel stated and you instructed him that, since being prescribed Olanzapine whilst in custody, you had been feeling better, albeit that you had put on weight which you did not like. However, you said that you feel better because the voices in your head are gone, albeit that you still feel anxious. You told the court that you tried to use breathing to help you with anxiety, which is something that you had learned from alcohol and drug counselling. You also told the Court that in custody you have been enjoying working in the metal workshop using tools to make hinges and that you are keen to get some more education so that you could get help to be able to work when you get out of prison.
25 It was encouraging to see that your time in custody has given you motivation to pursue your education and to try to get work. The matter was adjourned to see what services could be provided for you, either in custody or upon your release, to try to assist in this regard. It became apparent that Disability Services had advised that any package of services must now be negotiated through the National Disability Insurance Scheme (“NDIS”). Accordingly, the matter was adjourned to 28 June 2019.
26 On the adjourned date, your counsel stated that he had received advice from Mr Ben Cheever, legal counsel for NDIS, that you had been assessed as a program participant. Subsequent to that hearing a letter was sent by my associate to Mr Cheever requesting details of services that could be made available to you. In response to emails of inquiry from my associate dated 28 June 2019 and 25 July 2019 the Court was ultimately provided with an unsigned letter attached to an email from Mr Ben Cheever, Senior Lawyer, Legal Branch of the National Disability Insurance Agency dated 26 July 2019 (Exhibit “5”) This letter stated that you had become a participant in the National Disability Insurance Scheme on 24 June 2019 and that you had been assigned a specialised agency planner who was a member of the Dedicated Complex Support Needs Branch. This planner is developing a plan by discussing and understanding your needs and what reasonable and necessary supports you will require. The letter concluded with the following words, “Due to the complexity of Mr Maker’s circumstances it is difficult to provide a time frame regarding when Mr Maker’s NDIS plan will be approved.” As nothing further was forthcoming from the National Disability Insurance Agency, a further inquiry by way of email was made of Mr Cheever by my associate today. Mr Cheever advised that the inquiry should be referred to the Agency’s Complex Support Needs Branch where your specialist planner, Mr Sean Lam, “may be able to offer further assistance about Mr Maker’s progress”. No such assistance has been forthcoming. This is unfortunate since the matter had been adjourned for a second time to a third day of hearing in the hope that such information might be available.
27 You have now been in custody for a total of 411 days up until yesterday. When the matter was last before me on 2 August 2019 your counsel stated that, although you are frustrated about the slowness of services from NDIS, you are in good physical and mental health. You ensure that you get one or two hours of exercise each day and urine screens have not been positive for illicit drug use and you have not been involved in any incidents in custody.
28 At my request, my Associate had made enquires of the Sentence Management Division to see what prison facilities were available for cognitive and intellectually disabled persons. Under cover of an email dated 7 June 2019 from Jenny Hosking, Acting Assistant Commissioner of Sentence Management Division, documents were provided indicating educational courses available in introductory education for adults and spoken and written English, as well as other vocational courses. In addition, a document headed “Education and Training in Prisons” demonstrates the pathway to a number of education and training options within the prison itself (Exhibit “E”). By the hearing on 2 August 2019, your counsel was able to tell me that you were undertaking English and maths classes on two days each week, which is to your credit.
29 Mr Johnston mentioned that you continue to do well within the Billingham Unit where you have been housed, and there are now two other Sudanese men in that unit with whom you can speak your native language. He also stated that you continue to have regular contact by telephone with your mother and your aunt and that the relationship between your mother is good. You hope to reside with her once you are released from custody.
30 Mr Maker, you should be in no doubt as to the very serious nature of this offending. You broke into a person’s home intending to steal and were reckless about whether anyone was present. An aggravated burglary is a very serious offence as indicated by the maximum penalty of 25 years’ imprisonment. It is a basic human right that people should be able to feel secure in their own home. Your behaviour was grossly antisocial and terrifying. To invade a person’s home and then attack the person with a knife is deeply concerning criminal behaviour. You have committed serious crimes in the past and this is an escalation of offending on your part.
31 Your crimes clearly had a very significant adverse impact upon your victims, particularly Mr Alberti. In his Victim Impact Statement, he describes how he came to Australia thinking that this was a place where violent things would not happen. Now his enjoyment of life has been eroded and he does not feel comfortable staying at home and he does not feel safe. He has suffered feelings of confusion and frustration, anger and fear and sadness. What you did to him caused him great distress to the point where he could not eat properly and lost 5 kilograms in a couple of weeks and became very depressed and required psychological counselling. As he and his wife no longer felt safe in the house that you had invaded, they were compelled to move, which was an extraordinary disruption, and they had to ask friends whether they could sleep on their couch while they found accommodation, as well as incurring the cost of storage and removal expenses. Mr Alberti had to attend hospital for the wound and pain caused by your stabbing his arm. He was unable to perform his physical work and he lost two months of income and, overall, a lot of time and energy trying to get his life back on track.
32 A Victim Impact Statement from Mr Alberti’s housemate, Mr Oliveria, stated that when he came to Australia he thought it would be one of the safest nations in the world. Now, after your criminal behaviour, he finds that he has to double check to see if every door is locked and all the curtains are closed and he has a bad feeling when someone unexpectedly knocks on the door. He has had several bad dreams relating to your violent behaviour and has to battle bad feelings.
33 Ms Da Silva, who is a friend of Mr Oliveria, who was staying at the house at the time, in her Victim Impact Statement, stated she had never experienced such violence. It has left her feeling insecure and frightened and she had nightmares for about a month afterwards. She finds herself obsessed with security and checks every door to see that it is locked and, when she is in her room, she keeps the door locked. If no one else is home, she needs to speak to friends on the phone until she is sure that a housemate has returned to be with her in the house. She feels nervous when she is returning back home late at night and needs to ring someone so that she can be supported as she makes her way home and always texts a friend to tell them that she is home safe. She battles with bad memories and feels vulnerable and tearful and, generally speaking, the traumatising experience which you caused has had an adverse effect on her life.
34 Generally in sentencing for crimes of home invasion and violence like you have committed, there would need to be strong emphasis upon general deterrence, so that a message goes out to other members of the community that if they commit these crimes then they will be appropriate punished. Also, because of your prior criminal history, there would generally be a need for emphasis upon specific deterrence, which means to get a message to you that this offending will not be tolerated. In your case, because of your global and significant intellectual impairment those principles of general deterrence and specific deterrence should be moderated. The prosecution acknowledges that the principles in Verdins’ case apply. I certainly take into account that serving a term of imprisonment is difficult for you due to the deficits which have been made plain in Ms Lofthouse’s reports. These are not only of intellectual impairment, but also psychiatric in that you suffer schizophrenia, moderate depression and severe anxiety. However, there must still be some emphasis upon general and specific deterrence. Unfortunately, you were affected by substances at the time of committing this offence and abuse of alcohol and illicit drugs have been a very common theme in your life. Attempts have been made to help you with rehabilitative Justice Plans in the past but, unfortunately, you did not engage with either of these. I have already commented that it is an aggravating feature of your offending that you were on an adjourned undertaking to be of good behaviour and comply with a Justice Plan at the time of offending. Also, it is a further aggravating factor that you were on bail when you committed these offences. A balance must be struck in acknowledging your difficulties but still protecting the community from your violent, antisocial behaviour.
35 You are still a young man, only 25 years old. It is pleasing to see that you have utilised your time in custody to abstain from illicit substances, to work and to study and try to improve your physical and mental health. You have many challenges with your global intellectual impairment and psychiatric conditions and will need a lot of help to ensure that you stay on track and keep away from illicit substances. It is significant that Ms Lofthouse does not say that you are incapable of learning new material. It is very important that you try to improve your education, especially your reading and writing, and if you do this and engage in other rehabilitative tasks, it is possible that you could end up with a meaningful life in the community where you are working and making a contribution. However, it is very early days and I am guarded about your prospects of rehabilitation.
36 You are entitled to a tangible discount on the sentence which otherwise would have been imposed because you have pleaded guilty to the offences. However, in all the circumstances I consider that the only appropriate sentence is one of imprisonment and it should be one involving a head sentence with a non-parole period. Nevertheless, I consider it appropriate to give a shorter than usual non-parole period in your case because you will need a great deal of help and support and supervision when you return to live in the community. It can only be hoped that by the time you do return to live in the community, there will be services available to assist you funded by your entitlements from the NDIS.
37 Pursuant to s16 of the Sentencing Act, where a person has committed an offence whilst release on bail in relation to another offence, there is a presumption that it should be served cumulatively. In your case, I consider that there should not be total cumulation in the light of the mitigating factors relating to your significant global intellectual impairment and psychiatric conditions described by Ms Lofthouse.
38 On Charge 1, aggravated burglary, you are convicted and sentenced to be imprisoned for a period of 20 months.
39 On Charge 2, theft, you are convicted and sentenced to be imprisoned for a period of 6 months.
40 On Charge 3, theft, you are convicted and sentenced to be imprisoned for a period of 6 months.
41 On Charge 4, intentionally causing injury, you are convicted and sentenced to be imprisoned for a period of 12 months.
42 On Charge 5, possessing a drug of dependence in a small quantity, you are convicted and discharged.
43 On Charge 6, dishonestly handing stolen goods, you are convicted and sentenced to be imprisoned for a period of 6 months.
44 On the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to be imprisoned for a period of 1 month.
45 The head sentence is that of 20 months imposed on Charge 1. I direct that 1 month of the sentence on Charge 2, 1 month of the sentence on Charge 3, 6 months of the sentence on Charge 4, 1 month of the sentence on Charge 6 and 1 month of the sentence on the summary charge be served cumulatively upon the sentence imposed on Charge 1 and upon each other. The total effective sentence is thus 30 months’ imprisonment. I direct that you serve a period of 18 months’ imprisonment before becoming eligible for parole.
46 I declare a period of 411 days pre‑sentence detention to be time reckoned as already served under the sentence imposed this day.
47 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 4 years’ imprisonment with a non-parole period of 3 years.
48 On Charge 1, pursuant to s34(1) of the Confiscation Act 1997, I order that property by way of eight items referred to in the schedule be forfeited to the Minister.
49 Also on Charge 1, pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the two items contained in the schedule, being zip lock bags containing amphetamine and Zonisamide tablets. I further direct that these items be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
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