Director of Public Prosecutions v Manu

[2018] VCC 714

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01849

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN MANU
JOSHUA RICHARDS

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JUDGE:	HIS HONOUR JUDGE RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	23 March 2018
DATE OF SENTENCE:	17 May 2018
CASE MAY BE CITED AS:	DPP v Manu
MEDIUM NEUTRAL CITATION:	[2018] VCC 714

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Criminal damage – Armed robbery – Commit indictable offence whilst on bail.

Legislation Cited:     Sentencing Act 1991; Disability Act 2006; Crimes Act 1958.
Cases Cited:            R v Mills [1998] 4 VR 235; R v Verdins [2007] 16 VR 269.

Sentence:RICHARDS: 7 month’s imprisonment with a Community Corrections order for 2 years with conditions; Forfeiture order; Section 6AAA declaration: 2 years’ imprisonment with a non-parole period of 18 months’ imprisonment.

MANU: Community Corrections order for 2 years with conditions and justice plan; 464ZF order; 6 months Youth Justice Centre.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	Office of Public Prosecutions
For Accused Manu	Ms S. Lacy	James Dowsley and Associates
For Accused Richards	Ms N. Smith	Greg Thomas

Pages 1 - 16

 

HIS HONOUR:

1On 23 March 2018, Dylan Manu and you, Joshua Richards were arraigned and pleaded guilty to respective indictments and the related summary offence of committing an indictable offence whilst on bail.

2In your case, Dylan Manu, you pleaded guilty to the indictable charges, criminal damage, Charge 1, and armed Robbery, Charge 2.

3Joshua Richards, you pleaded guilty to armed robbery, Charge 1. 

4You are co-offenders in respect to the charge of armed robbery.  You each admitted your criminal records.

5The maximum penalty for armed robbery is 25 year' imprisonment.  The maximum penalty for maximum penalty for criminal damage is ten years' imprisonment, while the maximum penalty for the related summary offence is three months' imprisonment or a fine of 30 penalty units.

6Tendered as Exhibit A and read aloud in court was the amended summary of prosecution opening.  In short, at 4.45 am on 12 June 2017, you were together with a third male standing outside a 7-Eleven store on the Nepean Highway, Mornington.

7You, Manu, were 18 years of age at the time while you, Richards, were aged 19 years. 

8At about 4.50 am, an Uber driver, Mr Gutierrez, together with his fare,
Mr Robertson, drove onto the 7-Eleven apron in Mr Gutierrez's Holden Astra and came to a stop.  Mr Robertson entered the 7-Eleven store and purchased a packet of cigarettes.  As he exited the store, intending to re-enter the Holden Astra, he dropped a cigarette that you, Manu, picked up.  Mr Robertson continued on his way and got into the Astra.  You, Manu, gave Messrs Robertson and Gutierrez the two fingered salute. 

9As Mr Gutierrez reversed his car away from the store you, Manu, threw a cigarette lighter at Mr Gutierrez's car.  The lighter hit the ground and bounced into the front passenger door of the Astra, leaving a small dint in the door, Charge 1 for you, Mr Manu.

10Mr Gutierrez stopped his car, got out and approached your group and said, "What the fuck?  This is my car."  Mr Robertson also go out and walked towards Mr Gutierrez.  Your group approached Messrs Robertson and Gutierrez and you, Richards, produced a knife and pointed it at Mr Robertson's chest. 
Mr Robertson backed away with his hands in the air but you, Richards, followed by Manu, pursued him.

11You, Richards, held your knife against Mr Robertson's chest and demanded that he hand over his cigarettes.  Mr Richardson produced the newly purchased packet of cigarettes and you, Manu, took them from him.  Messrs Robertson and Gutierrez then beat a hasty retreat to the Astra sedan and drove away. 
Mr Gutierrez telephoned the police and returned to the 7-Eleven store and awaited their attendance. 

12Richards, you were arrested and interviewed under caution on 14 June 2017.  During the search of your home, you pointed out to the police the knife that you used, which was a Swiss Army style knife.  During your interview, you admitted producing a knife but said it was because the driver and passenger of the Astra got out, "showing attitude", and as they were bigger than you and your friends, you tried to deflate the situation.  You denied making any demand for cigarettes.  You were remanded in custody that day.

13Manu, you surrendered yourself to the police at the Somerville police station on 21 July 2017.  You were interviewed under caution.  You denied any knowledge of the knife but admitted throwing the lighter and told the police that when Richards demanded the cigarettes, that you just took them.  You were bailed and have spent no time in custody. 

14As previously stated, Richards, you were arrested and remanded in custody on 14 July 2017.  On 11 August, you were sentenced to one years' imprisonment with a non-parole period of four months imprisonment and 44 days were declared as pre-sentence detention.  You have not been granted parole and, accordingly, you have spent 14 days by way of pre-sentence detention in respect to the incident offending. 

15Dylan Manu, you entered pleas of guilty at the first committal case mention and, accordingly, your plea must be regarded as being entered at the earliest opportunity and you are entitled to the benefits that flow to you from your plea, being that it is evidence of your remorse and that it has utilitarian value. 

16You, Mr Richards, conducted a contested committal, where both Messrs Gutierrez and Robertson were cross-examination. 

17On 6 February 2018, you pleaded guilty at the initial directions hearing.  You, too, are entitled to the benefit of your plea but those benefits must be assessed in the context in which your plea of guilty took place. 

18Dylan Manu, you are still 18 years of age and have a limited criminal record, being two appearances in the Children's Court, for which you received good behaviour bonds without conviction although your prior offending is for violent and dishonest conduct.  You were on bail at the time of the incident offending and this is an aggravating circumstance of your offending. 

19Joshua Richards, you have a lengthy criminal history that includes non-custodial, Youth Justice Centre orders and sentences of imprisonment for crimes of dishonesty, violence, including assault with a weapon as well as armed robbery.  Your criminal history commences when you were but 12 years of age and continues unabated to the present time.  However, you are still but 20 years of age.

20Dylan Manu, you were diagnosed with an intellectual disability when you were eight years old.  Exhibit 1 on the plea is a statement of disability under the Disability Act 2006 and an assessment of you by Dr Storme, dated
23 November 2016.  Your IQ was assessed at 65 and in the bank of tests undertaken by you, your best score placed you at the fourth percentile, whilst others placed you at the first and third percentile, meaning that between 96 and 99 per cent of your age related peers would perform better than you.

21Tendered as Exhibit 2 were reports from Matthew Staios, consultant psychologist.  You are one of three siblings.  You are of Maori ethnicity.  Your father was a violent drunk who beat your mother.  Your parents separated in 2004 and your father moved from New Zealand to Australia.  You and your siblings joined your father in 2006. 

22At school in Australia, unsurprisingly, you required a teaching aid.  You attained Year 10 level and left school to work as a tyre fitter.  However, you were dismissed form this employment due to your frequent lateness, owing to drug abuse.  However, for the last 12 months, you have worked as a labourer to a concreter.  You commenced to abuse cannabis at 16 years of age and at the time of the incident offending, it is said that you were drinking between one and two slabs of full strength beer daily. 

23Tendered as Exhibit 3 was a bundle of documents, including a report from Pierre Uri, who has attempted to assist you since July last year.  Mr Uri has met with you, your girlfriend, Jackie, and your mother.  However, over time, you have proved to be elusive and the tenor of his report, dated 16 March 2018, is that most of his dealings have been with Jackie and your mother.  The report contains material that evidences that your alcohol abuse adversely affected your relationships. 

24You referred yourself to the Youth Support and Advocacy Service (YSAS) in February 2017 and regularly attended appointments to address your alcohol abuse until October 2017.  In addition, there is a reference from Janna Astle who writes that you are remorseful for your actions and now that you have full employment, you are on "a good track" and you are working to improve your relationships with your family members.

25At the end of your plea, I requested reports for your suitability for a community corrections order combined with a justice plan.  Those reports, dated
23 March 2018 and 9 May 2018, respectively, are favourable.

26You are a young offender with a limited criminal history.  You are intellectually disabled.  You are in full-time employment.  You played a lesser role than your co-offender, in that you were not armed.  You are a vulnerable young person. 

27You are not an appropriate vehicle for the application of the principle of general deterrence.  You require support to become drug and alcohol free.  You require programs to assist you to learn the skills necessary to reduce your risk of re-offending, including, if possible, strategies to resist being led in to antisocial or criminal behaviour.  The principles enunciated by Batt JA in R v Mills [1998] 4 VR 235 at 241 apply to you, as do principles 1, 2 and 3, enunciated in the R v Verdins [2007] 16 VR 269.

28Joshua Richards, you are 20 years of age and were 19 at the time of the incident offending.  You are one of a sibship of four.  You parents abused alcohol and drugs during your childhood.  You went into foster care between the ages of eight and ten, and from foster care you moved to residential care, save for a period when you lived with your uncle, who was a poly drug abuser. 

29When you were 13 years of age, your father died by electrocution while stealing copper cable that was plainly electrified.  You attended many schools over the years and completed Year 10 of VCAL during a period of incarceration in a Youth Justice Centre. 

30Tendered as Exhibit 5 were the reports of Dr Aaron Cunningham, psychologist, dated 5 May 2014 and 22 March 2018.  In May 2014, Dr Cunningham assessed your IQ as 85, meaning that 90 per cent of your age related peers would do better than you.  As at 2014, you were a regular abuser of alcohol. 

31In 2018, you instructed Dr Cunningham that you have a significant history of drug abuse that included chroming between the ages of 14 and 15, smoking cannabis, abuse of methylamphetamine over a period of two years, as well as abusing GHB and ecstasy contemporaneously with your chronic abuse of alcohol.  You attempted suicide in 2011.  You have struggled to cope for most of your life. 

32Dr Cunningham opined that you suffer from substance abuse psychotic disorder and that your mental state has deteriorated since his initial assessment of you.  He further opines that your paranoia has escalated significantly between assessments and that ongoing imprisonment would aggravated the situation. 

33Without attempting to do Dr Cunningham an injustice, he states the obvious:  you present as a risk of institutionalisation and you present as a high risk of relapsing into drug and alcohol abuse once released into the community. 

34You present psychological state results in you being fearful of release back into the community.  Whilst in custody since your arrest for the instant offending, you have returned negative urine tests in September, November and December of last year, as well as in January of this year.  You are therefore to be regarded as drug-free.

35You are prescribed a panoply of drugs, being atomoxetine, for attention deficit and hyperactivity disorder, risperidone for paranoia, and escitalopram for depression. 

36You have undertaken a number of courses since your remand in custody.  Upon release from prison, you hope to work mowing lawns and gardening as a result of you studying horticulture in prison.  Tendered as Exhibit 6 was a letter from you confirming the matters to which I have referred and you add that you are studying English through the Box Hill TAFE to assist you to gain employment in the garden maintenance industry. 

37In respect to the sentence that you are undergoing, you were sentenced on
23 August 2017 to 12 months' imprisonment with a non-parole period of four months' imprisonment for two charges of assault with a weapon, three charges of criminal damage and one charge of theft.  I was informed that you have not been granted parole because of these proceedings.  Your sentence is due to expire on 27 June this year. 

38At the end of your plea, I had you assessed for suitability for a community corrections order in combination with a term of imprisonment.  The report, dated 23 March 2018, finds you unsuitable, in part, because you have been assessed as a high risk of reoffending and further, the author of the report noted that you attempted to mitigate the seriousness of your offending. 

39A perusal of your criminal record shows that you have breached nearly all, if not all, of your non-custodial dispositions imposed on you since you first commenced to offend.  Your prospects for rehabilitation are bleak and the risk of you being institutionalised by further terms of imprisonment is high.  It must also be noted that that the time of the incident offending, not only were you on bail but you were subject to a community corrections order and this too is an aggravating circumstances of your offending. 

40On the return of the plea on 17 May 2018, Ms Lacy, of counsel, who appeared on your behalf, Mr Manu, called Mr Mark Stevenson, team manager for Disability Services in Bayside to explain the relationship between the treatment aspect of the justice plan provided to the court and the condition for psychological or psychiatric treatment under a community corrections order. 

41Despite the level of liaison between disability services and community corrections, it is appropriate that the community corrections have the ability to counsel you and, if necessary, commence breach proceedings should you be non-complaint with treatment.  This is a management tool not available to disability services. 

42Mr Manu, you continue to reside with your parents.  You continue in full-time employment and your relationship with Jackie is still on foot.  I regard your prospects of rehabilitate as good and propose to sentence you to a community corrections order with conviction and conditions together with a justice plan. 

43Mr Richards, Ms Smith, of counsel, who appeared on your behalf tendered, as Exhibit 9, a further outline of submissions that contained extracts from an affidavit of Acting Assistant Commissioner Jennifer Hosking, setting out your conduct and progress in prison since 10 October 2017.  You are described as polite and that you follow instructions well.  You have worked whilst in prison and currently work as a garden billet, or a worker in the garden. 

44You have completed a 24-hour drug and alcohol treatment program.  You have completed a first aid course.  You are presently on the waiting list for further training programs, including a traffic controller course and a further alcohol and drug treatment program.  You are using your time in custody productively, which demonstrates that there is some light at the end of the tunnel of rehabilitation. 

45Upon release from prison you will live with your mother, who presently resides in a single bedroom flat provided by public housing.  On your return to your mother's home, an application will be made for more appropriate accommodation by way of a two bedroom unit.  In the past, you have had some limited employment assisting a mechanic and this type of work is potentially available to you upon your release from prison. 

46Mr Harrison, who appeared on behalf of the Crown submitted correctly, in my view, that principles 5 and 6 of R v Verdins have application to you and that a combination of imprisonment, together with a community corrections order was a sentence within the range of sentences available in your circumstances.  That this must be correct arises out of the application of the principle of totality, bearing in mind the period of time that you have spent in custody since your arrest. 

47In respect of you, whilst armed robbery is a serious offence and is punishable by 25 years' imprisonment, your offending is not a serious example of this kind of crime.  However, that is not to say that it was anything other than a gratuitous act of violence on an innocent victim going about his daily affairs.  Would you both please stand?

48Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to each of you, Mr Richards, I sentence you to an aggregate sentence of seven months' imprisonment, together with a community corrections order for a period of two years with conditions. 

49The conditions are that you must be under the supervision of community corrections officer for a period of two years.  You must undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager.  You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager.  You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility as directed by a regional manager. 

50You must participate in programs and/or courses that address factors relating to re-offending as directed by the regional manager.  You must participate in programs and/or courses that are consistent with achieving the purposes of treatment and rehabilitation that may include employment, educational, cultural and personal development programs as directed by the regional manager. 

51Mr Richards, do you consent to this community corrections order?

52OFFENDER RICHARDS:  Yes, Your Honour.

53HIS HONOUR: I declare that you have spent 14 days by way of pre-sentence detention. Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to two years imprisonment with a non-parole period of 18 months imprisonment. You may be seated.

54Mr Manu, with your consent, I sentence you to an aggregate sentence by way of a community corrections order with conviction for a period of two years with conditions, together with a justice plan for two years.  As you are in full-time employment, I do not propose to impose a condition of unpaid community work. 

55The conditions of the community corrections order are that you must be under the supervision of a community corrections officer for a period of two years.  You must undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager.  You must undergo mental health assessment and treatment that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility as directed by the regional manager. 

56You must participate in programs and/or courses that address factors relating to offending as directed by the regional manager.  In respect to the justice plan, you must participate in the services specified in a justice plan for a period of two years. 

57The conditions of that justice plan are that you must obtain a mental health care plan and referral letter from you medical general practitioner, and that you attend counselling sessions through Psychology 4 Change or another alternative suitable service as identified by disability client services for the duration of the order which is two years.  Do you consent to these orders?

58OFFENDER MANU:  Yes.

59HIS HONOUR: Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to six months Youth Justice Centre. Please be seated.

60Now, shortly, what will take place, gentlemen, is that my associate will bring you the community correction orders that set out their terms and conditions for you to sign.  Before that is done, I have signed the forfeiture order in respect to the knife and I hand down copies of that order in triplicate. 

61In respect of you, Mr Manu, there is an application pursuant to s.464ZF(2) of the Crimes Act for a forensic procedure, that is a scraping of the inside of your mouth or a buccal swab, and I have granted that application because of the seriousness of the circumstances of your offending warrant the order, your prior convictions warrant the making of the order, and the granting of the order is in the public interest. 

62I must inform you, if at the time of the request for the forensic sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. 

63Now, you need to attend at the Frankston police station at 15 Fletcher Road, Frankston, for the purposes of this sample being taken.  The terms of the order are expressed in a rather ham-fisted way.  After a period of four weeks have passed from today, you have a period of 28 days in which to attend the Frankston police station for the taking of that sample.  I hand down three copies of that order.

64MS SMITH:  Your Honour, there is just one matter.

65HIS HONOUR:  Yes.

66MS SMITH:  It is a very minor matter.

67HIS HONOUR:  Yes.

68MS SMITH:  Your Honour indicated that the date that my client was sentenced in relation to his prior matter was 23 August 2017

69HIS HONOUR:  Yes.

70MS SMITH:  It was, in fact, the 11 August.

71HIS HONOUR:  Eleven, I will correct that.

72MS SMITH:  That was a mistake in my original submissions that you have duplicated.

73MR HARRISON:  If I also may, Your Honour, on a very similar technical ‑ ‑ ‑

74HIS HONOUR:  Just you have got a bit of competition.

75MR HARRISON:  Yes, Your Honour.

76HIS HONOUR:  Yes, Mr Harrison.

77MR HARRISON:  Thank you, Your Honour.  In regards to the arraignment dates Mr Manu and Mr Richards ‑ ‑ ‑

78HIS HONOUR:  Yes.

79MR HARRISON:  Mr Manu was arraigned on 8 February 2018 and not
23 March.  Mr Richards was short-form arraigned on 6 February 2018.

80HIS HONOUR:  According to my note, I had them each arraigned in my presence in addition to the short arraignment that took place on those dates.

81MR HARRISON:  I believe that was true, Your Honour.  I was just tending to note that there was the original error.

82HIS HONOUR:  No, that is all right. 

83MR HARRISON:  Thank you, Your Honour.

84MS LACY:  Could I approach my client?

85HIS HONOUR:  Of course you can, Ms Lacy.  If you wish to do the same,
Ms Smith.

86MS SMITH:  Yes, Your Honour.

87MR HARRISON:  Your Honour, just to completeness as well ‑ ‑ ‑

88HIS HONOUR:  Just pardon me for a moment please, Mr Harrison.

89MR HARRISON:  Apologies, Your Honour.

90HIS HONOUR:  Yes, Mr Harrison?

91MR HARRISON:  Apologies, Your Honour.  I was seeking clarity that this sentence is, Your Honour, concurrent with Mr Richards's current sentence. 

92HIS HONOUR:  As a matter of law, it must. 

93MR HARRISON:  Thank you, Your Honour.

94HIS HONOUR:  Unless I order it to be cumulative, which I do not.  I will provide counsel with copies of each of the community correction orders and the final orders of the court ‑ ‑ ‑

95COUNSEL:  As Your Honour pleases.

96HIS HONOUR:  ‑ ‑ ‑ and copies to the prisoners too please?  Mr Manu, you can come out of the dock and sit behind your counsel.  Now, Mr Manu, would you please stand?  I just want to say a couple of things to you, and it is this, presently, you have got findings of guilty in respect to you of affray, robbery and theft, theft of motor car and now, criminal damage, armed robbery and committing an indictable offence whilst on bail, and you are 18 years of age.  I have placed you on a community corrections order and justice plan.  The term of that community corrections order is for two years.  The purpose of that community corrections order and justice plan is to assist you not to reoffend again. 

97If you come back to me having breached this community corrections order and having breached it by committing further offences of the kind that you have committed in the past, there is every prospect that you will lose your liberty.  Can I make myself plainer? 

98OFFENDER MANU:  Yes.

99HIS HONOUR:  I can, can I?  No, I know you are nervous.  I do not think I need to make myself any plainer.  Please be seated.  Mr Richards, would you please stand?  The effect of my order is that you will spend an additional six months or thereabouts in prison, all right?  You are presently using that time to your advantage.  I am not suggesting for one moment that spending more time in prison is a happy thing for you.  I want you, if you can, to use that additional time to continue in the way that you presently are, that is working in the garden, studying horticulture if you can continue to do so, and to continue to study English through the Box Hill TAFE and do any other courses that are available to you in prison, all right?

100OFFENDER RICHARDS:  Yes.

101HIS HONOUR:  Then when you come out, you have got two years on a community corrections order.  Now, you are a very young man and you have spent a long time effectively in prison.  I do not want to see you go back there again once my sentence has passed, all right?

102OFFENDER RICHARDS:  All right. 

103HIS HONOUR:  What I want to see, and what the community wants to see, is you use the community corrections order to help you improve your education, deal with what difficulties you have by way of alcohol and perhaps even drugs, and to find employment and to live happily with your mother; that is what the order is aimed at achieving.  It is not aimed at punishing you so far as I am concerned.  You might perceive it differently or think of it differently but my purpose in sentencing you the way I have is to try to ensure that you do not go back to prison again, that is what I want to happen.  If you can hold that in your mind, that is what this is designed to do and do your level best to achieve that and I will not see you again. 

104OFFENDER RICHARDS:  No, you will not.

105HIS HONOUR:  Well, I hope not.  If you breach the community corrections order and you do so by further offending, then there is a real prospect that you will be going back inside.  I do not want to find myself in the position of having to do that and you are the only one who can keep me out of that position; do you understand?

106OFFENDER RICHARDS:  Yes.

107HIS HONOUR:  All right.  What I want you to do is use what time you have to spend in custody to help yourself and when you get out and live with your mother, use this community corrections order, with its conditions, suck every bit of benefit that you can get out of that community corrections order so it helps you, and if that helps you, I will not see you again and that will make me a happy man.

108OFFENDER RICHARDS:  Thank you, sir.

109HIS HONOUR:  Please sit down.

110OFFENDER RICHARDS:  Thank you.

111HIS HONOUR:  Is there anything further arising?

112COUNSEL:  No, Your Honour.

113HIS HONOUR:  I would like to thank counsel for their assistance in this matter.  Would you remove the prisoner please?

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