Director of Public Prosecutions v Mayor

[2020] VCC 39

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00827

DIRECTOR OF PUBLIC PROSECUTIONS

v

NYENPIU MAYOR

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2019
DATE OF SENTENCE:	24 January 2020
CASE MAY BE CITED AS:	DPP v Mayor
MEDIUM NEUTRAL CITATION:	[2020] VCC 39

REASONS FOR SENTENCE
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Subject:  Armed robbery, Robbery
Catchwords: Youthful offender
Sentence: 149 days imprisonment – time served, 3 years Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Lee
For the Accused	Ms K. Farrell

HIS HONOUR: 

1Nyenpiu Mayor, you have pleaded guilty to one charge of robbery for which the maximum penalty is 15 years' imprisonment, and one charge of armed robbery for which the maximum penalty is 25 years' imprisonment.  Those charges were respectively Charges 1 and 3 on indictment J12233381, the prosecution having told the court the notice of discontinuance would be filed in respect of Charge 2, a charge of common assault.

2Your pleas of guilty were made after a sentencing indication hearing before me, at which I indicated that if you pleaded guilty to Charges 1 and 3, it would be unlikely that I would impose a further immediate term of imprisonment. 
That sentencing disposition was, appropriately, in my view, not opposed by the prosecution, presumably for reasons that will soon become apparent.

3Your offending occurred on consecutive days on 12 and 13 August 2018,
at which time you were a young offender aged 18 years.  You are now aged
19 and will turn 20 years of age in March next.

4After you pleaded guilty, I ordered that you be assessed for suitability for the making of a community corrections order.  That has now been done and you have been assessed as being of medium risk of reoffending, and as being suitable for the making of a community corrections order which I will shortly order with appropriate conditions.

5The circumstances of your offending are contained in a summary of prosecution opening dated 8 January 2020.  The same summary has been read to the court for the purposes of the sentence indication hearing, and it is not necessary that I again set out all of the facts, but do so only in an abbreviated way.

6On Sunday 12 August 2018, between 10.30 pm and 11 pm, you robbed the complainant Pang shortly after he left his student accommodation at Deakin University on the Burwood Highway in Burwood.  Mr Pang was alone and walking along the footpath near a takeaway restaurant.  As he approached the intersection of Elgar Road and Fletcher Parade, he was approached by you.  You were wearing a black-coloured puffer jacket.

7You grabbed at and took the mobile phone of Mr Pang which he was holding.  You took it from his hand and threw it on the ground.  You picked it up and demanded that Mr Pang provide you with the PIN number to activate it. 
You pushed him to the ground.  He provided you with the PIN code because he was in fear for his safety.  You then made further demands of Mr Pang to open his wallet, from which he handed you $20.  You then left the scene.

8On Monday 13 August, the following day, at approximately 7.15 pm,
the complainant in Charge 3, Mr King, was walking from Deakin University towards Elgar Road - that is, in the same vicinity where you had been the night before.

9He was carrying a backpack.  You grabbed at it and pushed him against the fence.  You produced a small kitchen knife which you later told police was a pair of scissors and demanded that he hand over his wallet and mobile phone.    Being in fear, Mr King removed two $50 notes and then handed them to you.  He also handed over his Apple iPhone and other property.  You then left the scene.

10Police were contacted after each of these events, and some good detective work soon after located you, and you were arrested and taken in for interview, where you made full admissions to your offending. 

11Although these are serious crimes, they are in my view examples of each crime that falls towards the lower end for this kind of offending.  Because this kind of crime is prevalent, and because of the fear that this kind of offending can instil in the victims of such crimes - as reflected in the victim impact statements of each victim, which I have received into evidence - when sentencing, the court must have appropriate regard to deterrence both general and specific, denunciation, and the need to protect the public. 

12But the court must also have regard to your rehabilitation.  In your case, because you are so young, and because you have no prior convictions,
and because of your troubled background circumstances which I shall shortly come to, I must impose a sentence that has regard to your prospects of rehabilitation and how best to achieve that outcome.

13Since this offending, to your good fortune, you have attracted a great deal of support from the right people and organisations, and you have engaged with them.  All that is to your credit.  Provided you continue down that path, I assess your prospects of full rehabilitation as being very good, and I very much doubt you will reoffend in this way.

14I have decided that the sentencing principles that must be applied in your case can best be achieved by the making of a community corrections order with appropriate conditions.

15As I have said, after some good policework, you were soon after arrested on
21 August 2018, and you were remanded in custody where you remained until granted bail at a contested committal on 30 April 2019.  You have served
149 days pre-sentence detention for these matters, and I will later make a declaration of time served to that effect.

16Immediately after your arrest, you were cooperative with the police. 
You answered all of their questions and you made full admissions to your crimes.  You have pleaded guilty to the charges, and that is to your credit.  Although you did not plead guilty at the earliest possible opportunity,
I nevertheless treat you as having pleaded guilty at an early time.

17By your pleas of guilty, you have saved the time and cost of a trial, and by your pleas of guilty, you have admitted responsibility for your crimes, and you have facilitated the administration of justice.  Because you have pleaded guilty,
the law provides that you are entitled to a reduction in sentence, and this will be reflected in the sentence that I will shortly pass.

18I accept that you are remorseful for your offending.

19I turn to matters personal to you and to your background, all of which I must take into account.  Your counsel, Ms Farrell, provided a helpful outline of submissions on the plea updated today, dated 21 January 2020, which I shall mark as Exhibit 1.  In dealing with these matters, I have borrowed from that document in summarising your background.  You were born on 10 March 2000.  As I have said, you were 18 years old at the time of this offending.  You have no prior criminal history, and there has been no subsequent offending.

20You were born in Uganda but identify as South Sudanese.  When you were four years of age, you migrated to Australia with your mother to live in Melbourne.  When you were six years old, you were joined by your father.

21Your family moved around a lot, and you attended various Catholic primary schools across the northern and western suburbs of Melbourne.  You attended Catholic Regional College until the end of Year 9, and then went to MacKillop College for Years 9 to 11.  You were unable to complete Year 11 as you did not have stable accommodation.

22You are currently enrolled at Victoria University to complete Year 12.  Depending on your results, you are considering either enrolling in university to study psychology, or becoming a real estate agent.  You work two days a week for the Darebin Community Legal Service as a member of their Women's Leadership Group, and I have received evidence in the form of a letter to that effect.

23Your mother and younger siblings moved to Western Australia in 2018, and you remain in constant and regular contact with your mother.  I was told and accept that your parents enforced a strict code of discipline through physical violence, and you were often beaten for childhood misdemeanours.  In addition, your father sexually and physically was abusive towards you.  The abuse started when you were eight years old and ended at the age of 16 when your parents separated.  You have had no contact with your father since your parents' separation.  You often ran away from home to escape your father's abuse.  Your absconding became so frequent that Child Protection became involved with your family.

24When aged 12 or 13, you wrote a letter to your mother disclosing your father's abuse towards you.  Your mother never spoke to you about the letter, and no action was taken.  You and your mother became increasingly estranged, a significant cause of which was your mother's lack of response to your disclosure of sexual abuse.

25By the age of 17, you were homeless.  You drifted between friends' couches, refuges and backpacker hostels.  At the time of the alleged offending, you were residing in crisis accommodation in the form of a refuge for young people in Burwood.

26In arriving at sentence, I have taken into account your disadvantaged background as a mitigating factor in sentencing, as I must.  You began experimenting with cannabis when you were aged 12 years, and from the age of 15 until your remand in custody, you regularly used cannabis to manage your anxiety.  Your use was severe enough to meet the criteria for a cannabis use disorder of moderate to severe intensity.

27You also began drinking alcohol heavily at the age of 16 or 17.  In the 12 months leading up your arrest, you were drinking to excess most nights.  Your drinking was severe enough to meet the criteria for an alcohol use disorder of moderate to severe intensity.

28Your first significant period of abstinence from marijuana and alcohol was during your time on remand.  You suffered significant withdrawal symptoms. 
I was told in Ms Farrell's submission that you do not have any significant issues with alcohol, and you have significantly reduced your consumption of cannabis.

29You are supported by the Youth Support and Advocacy Service, YSAS, in their youth supported accommodation program.  The program provides accommodation and support for young people with substance use backgrounds who are trying to integrate back into the community.  That program requires you to undergo regular urine screens.

30You were previously engaged with a counsellor through the North-Western Mental Health Substance Use and Mental Illness Treatment Team. 

31I received into evidence a psychological report relating to you from Mr Patrick Newton.  He thought that you were immature for your age, and your identity formation is diffuse and incomplete.  He thought your social reasoning reflects your maturity.  He thought you tend to make decisions impulsively without fully considering the implications.  He thought your problems in your formative years, your cultural dislocation, your education disruption and your affiliation with drug-using and disaffected peers have all combined to delay the development of your personality.

32You have a longstanding history of psychological issues.  You have experienced psychosis in childhood, including auditory hallucinations and ideas of reference.  As the symptoms became more severe, you continued to experience abuse and further increased in severity in the context of your drug and alcohol use.  You suffer from ongoing anxiety and depression, and both cannabis use disorder and alcohol use disorder of moderate to severe intensity.

33Since the time of your offending, you have engaged in counselling and mental health treatment, including prescribed medication through SUMITT - that is, the North-Western Mental Health Substance Use and Mental Illness Treatment Team.

34You are not currently suffering from the symptoms of psychosis.  Mr Newton opines that you would be vulnerable in custody, and that a further custodial sentence may undo the rehabilitative progress that you have already made.

35Since being released from custody, you have, on your own accord and with the help of a number of people, endeavoured to turn your life around.  You are currently enrolled at Victoria University and expect to complete Year 12 this year.  You are employed by the Darebin Community Legal Centre, and working with them as a member of their leadership group.

36You are receiving support from an organisation called Flat Out, a state-wide support service for women leaving prison.  You have enrolled in the Second Chance Program through the Australian African Sports Association, and you are also supported by YSAS in their youth-supported accommodation program.

37Today, I have received into evidence a letter from YSAS verifying the matters that I have set out above, and also from the Australian African Sports Association program entitled 'Bridging the Gaps', and a letter of support setting out your work with the Fitzroy Legal Service, which also controls the Darebin Community Legal Centre.

38In his report dated 2 October 2019, a report and opinion which I accept,
Mr Patrick Newton has opined inter alia as follows:

'Speaking from my area of expertise, I would suggest that Ms Mayor requires ongoing treatment for her drinking and drug problem.  Participation in such treatment would, in my opinion, be necessary if
Ms Mayor is to successfully sustain adaptive life in the community.

Given the severity of Ms Mayor's substance-related problem, it is clear that she will need ongoing treatment for at least the medium term.  Ideally, this would be followed by consistent attendance at self-help programs or similar groups.  Assuming continued behavioural stability, Ms Mayor would then be in a position to benefit from the mental health care she is receiving and to make the most of the vocational and educational opportunities that are currently being offered her.  The more structure, oversight and support that could be put in place to assist her to do so, the better her prospects would be.

In a custodial environment, Ms Mayor would be a vulnerable prisoner. 
The vulnerability arises on account of her youth, her fragile mental health, her diverse cultural background and her vulnerability to negative peer influence.  As noted above, there would be some risk in such an environment, that the tentative positive steps she has taken recently would be subject to reversal, and that her mental health would also deteriorate.

To ameliorate this risk, Ms Mayor would need relatively intense support and assistance during the early stages of any time in custody, as well as ongoing assistance to ensure that she continues to make progress towards positive life goals.'

39Having considered all of these matters, as I said earlier, I am of the opinion that all of the purposes of sentencing in this case can be achieved by the making of a community corrections order without further time being served by you in prison.  In my view, the sentence that I will shortly pass properly addresses all of the appropriate principles of sentencing in this case.

40On Charge 1, you are convicted and sentenced to a term of imprisonment of 149 days.

41On Charge 3, you are convicted and sentenced to a term of imprisonment of 149 days.

42I declare that there has been 149 days pre-sentence detention relating to the sentences passed this day, and I direct that 149 be reckoned as having been already served, be entered into the records of the court, and deducted administratively.

43In addition, on each charge, I make a community corrections order with conviction for a period of three years, commencing this day with conditions - firstly, for supervision, secondly, that you undertake programs for treatment and rehabilitation from drugs, that you undertake programs for treatment and rehabilitation from alcohol, and that you undertake programs for treatment and rehabilitation for mental health.

44I have not imposed a condition for unpaid community work.  I have done this because you have already served approximately five months in prison.  Also,
I want you kept away from other offenders so much as is possible so that you can concentrate on the good things in your life.

45For the purposes of s.6AAA of the Sentencing Act 1991, I declare that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of three years' imprisonment and I would have fixed a minimum term of two years' imprisonment before which you would be eligible for parole.

46I have been asked to sign a disposal order.  That was not opposed, and I will sign it.  Are there any questions arising out of that?

47COUNSEL:  No, Your Honour. 

48HIS HONOUR:  Would you come out of the dock, please, Ms Mayor, and take a seat behind Ms Farrell? 

49MS FARRELL:  May I get the ‑ ‑ ‑ 

50HIS HONOUR:  Yes, would you have your client - make sure she understands it and sign it please, Ms Farrell?

51MS FARRELL:  That's been signed, Your Honour.

52HIS HONOUR:  Thank you.  Ms Mayor, I want to make sure that you understand this order, and please do not misunderstand me because I say this to everyone.

53A lot of people come back before me after I make community corrections orders having breached them.  A number of them have been sent to prison as a result.  Do you understand?  You must not breach the conditions of this order. 
You must comply with all the conditions, but very importantly, you must not commit any further offences.  Do you understand?

54I know it will be hard for you sometimes to comply with all the conditions, and as the order progresses, after it has been going for a year or two, you might think that you have got everything under control, but you have still got to comply with the orders until the three years are over.  Do you understand?

55This is another opportunity for you, and I have made the order so that you have people around you that are there to help you.  Do you understand?  I appreciate that your life has been difficult and it has not been easy, and I appreciate that you are doing your best.  Do you understand?  And I wish you well.  On the rising of the court, you are free to leave.  Do you understand?  Very well.

56Thank you, Ms Farrell.  Thank you, Mr Lee.

57MS FARRELL:  As Your Honour pleases.

58MR LEE:  As the court pleases.

59HIS HONOUR:  Adjourn the court till Tuesday at 12 o'clock.

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