Director of Public Prosecutions v Mkhize
[2014] VCC 1946
•19 November 2014
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THULASIZWE MKHIZE |
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JUDGE: | HER HONOUR JUDGE DOUGLAS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 19 November 2014 | |
CASE MAY BE CITED AS: | DPP v Mkhize | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1946 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Bhai | Office of Public Prosecutions |
| For the Accused | Ms Clark |
HER HONOUR:
1. Thulasizwe Mkhize, you have pleaded guilty to one charge of armed robbery, namely, on that 16 October 2013 at a BP Service Station in Centre Road, Bentleigh. The sum stolen was $260 in cash.
2. The attendant was Navroop Singh. The maximum penalty for this serious offence is 25 years’ imprisonment.
3. A document headed “Summary of Prosecution Opening Upon Plea” dated 16 October 2014 was tendered on behalf of the prosecution and read aloud by Ms Bhai, who appeared to prosecute. That document sets out, very comprehensively, the prosecution summary and I will attach that document to these sentencing remarks.
4. Although Mr Singh was given the opportunity to provide a Victim Impact Statement, he declined to do so. I have viewed the CCTV footage in court and that was tendered by the prosecution. I sentence you on the basis that he was put through a terrifying ordeal during the time you committed this offence. I have come to that conclusion from viewing the CCTV footage and his statement. Although there was no gratuitous violence and he was not injured, you nevertheless directed him where to go by holding onto his arm and pushing or pulling him.
5. Armed robberies on convenience stores are very serious. Those who work at night, as Mr Singh did on this occasion, are particularly vulnerable and no doubt are seen as soft targets. As a sentencing judge, it is incumbent upon me to give weight to general deterrence. General deterrence is deterring other like-minded people from committing armed robberies on vulnerable targets who may see it as an easy way of making a profit. Condign punishment will be imposed on those who take part in such offending. I must also give weight to denunciation of such offending as well as just punishment in the circumstances. .
6. As you committed this offence as a person who not only had a prior conviction for armed robbery, but also were subject to an adjourned undertaking, as well as a community corrections order for the conviction of armed robbery, I must also give weight to special deterrence, that is, deterring you from not only committing criminal offences but, in particular, armed robbery.
7. You have a number of court appearances from 10 February 2005 to 15 June 2014. The offences set out in your criminal history were committed in 2005 and 2008, included driving whilst authorisation suspended.
8. On 27 April 2012, you were convicted of driving whilst disqualified. On appeal, the sentence imposed by the magistrate of four months’ imprisonment was revised to four months’ imprisonment suspended for two years.
9. On 3 July 2012, you pleaded guilty to one charge of armed robbery. You committed that offence on 18 February 2012 in similar circumstances. It was an armed robbery on an attendant at a service station. His Honour Judge Mullaly of this court imposed the sentence of three months’ imprisonment and placed you on a community corrections order, commencing 1 October 2012.
10. On 16 October 2012, you were convicted of driving whilst disqualified. You were sentenced to four months’ imprisonment, two months of which was concurrent with the sentence you were undergoing, and the remaining two months were to be suspended for 12 months.
11. On 15 May 2013, you were convicted at the Dandenong Magistrates’ Court of burglary, theft from a shop, going equipped to steal and failing to answer bail. You were convicted and placed on an adjourned undertaking to end on 27 March 2014.
12. On 16 October 2013, whilst still subject to the adjourned undertaking and subject to the community corrections order, you committed this offence.
13. A month after you committed this offence, on 12 November 2013, His Honour Judge Mullaly ordered that the community corrections order be cancelled and you were re-sentenced to seven months’ imprisonment.
14. His Honour Judge Mullaly said this, at paragraph 4 of his sentencing remarks:
“You have been unable to comply with the community corrections order for the reasons set out in the report and you admit that you have breached the community corrections order. I have described it as comprehensively breaching it and I think that is a fair description. You did some of the requirements but not many and they were not onerous. 120 hours of which you did about 40. All of which were courses and the like. Hardly straining you, you would have thought, with an intelligence of your level. You did no community work itself as it were and were not compliant with supervision and other regimes.”
15. On 10 June 2014, you completed that seven month sentence and have been on remand in relation to this matter since that time.
16. On 28 May 2014, you were charged with this offence. You were in custody at Fulham Prison. Whilst there, you were interviewed by the police and you denied all the allegations.
17. On 26 August 2014, you pleaded guilty at the committal mention, which I regard as an early stage. By doing so, you have saved the court the inconvenience and expense of a trial, and, importantly, Mr Singh did not to attend court to be cross-examined, nor other witnesses involved in the investigation. Further, your early indication of a plea of guilty reflects that you have taken responsibility for your offending, shown insight and have remorse.
18. I accept the submission made on your behalf that had you been charged with this offence prior to the time His Honour Judge Mullaly re-sentenced you, which was 11 November 2013, it is likely there would have been orders for concurrency made in relation to the matter. I take that into account in your favour.
19. Ms Clark appeared on your behalf and set out your personal details. Ms Clark relied on a psychological report of David Ball, dated 17 October 2014, a document he prepared headed “Best Chance Program Information Sheet” and also a psychological report of Wendy Bigaignon, dated 24 June 2012.
20. Ms Clark also tendered a psychological report of Dominic Greco, dated 8 July 2009, a medical report of Dr MacDonald from the time you were admitted to the Alfred Hospital after a serious stabbing where you were injured, to which I will refer shortly. That report was dated 12 February 2012.
21. You are 27 years of age and you were 26 years of age at the time you committed this offence. You were born in South Africa, being of Zulu descent. As your father had been a violent man and a heavy drinker, your parents separated. Your mother came to Australia and, at a later stage, you and your younger sister joined her. Your father and three half-siblings from your father’s early relationship continue to live in South Africa.
22. Initially, you had some difficulty in adapting to life in Australia but eventually you did well. You achieved good results in your VCE. After you finished school, you travelled around Australia working in various jobs and then enrolled in a Bachelor Degree in Health Science at Deakin University. You completed two and a half years of the three year course.
23. You still continue to have a passion for boxing and have been involved in that sport as well as teaching boxing to people, in particular, children. You are also involved in kick-boxing. Prior to the commission of this offence, you had also been working as a personal trainer and fitness instructor at a gym in Noble Park.
24. However, on 19 June 2009, tragedy struck. You were the victim of a gratuitous and brutal attack at the Matthew Flinders Hotel. You were stabbed around 12 times. You were admitted to hospital suffering from life-threatening injuries, including wounds to your bowel and liver. Fortunately, you were a fit young man and after ten days you were discharged from hospital to recuperate. Ms Clark informed the court that you still bear the scars of that attack but fortunately no other physical injury.
25. Unfortunately, you have developed serious post-traumatic stress disorder as a result of the attack. Further, you have been left with a sense of injustice, as the prosecution of the perpetrators of the attack was not continued, presumably as there was insufficient evidence.
26. I accept that you have continued to have nightmares, during which time you have been heard to scream, which your mother has heard as well as other prisoners.
27. Ms Clark informed the court that at the time of this offence, you were having nightmares caused by the post-traumatic stress disorder and that in order to deal with this situation, you were taking methylamphetamines as a way of “self-medicating” to stay awake.
28. Prior to the commission of this offence, you had stopped working and deferred your course, as you were suffering from anxiety and had difficulty being around groups of people. Overall, your anxiety and social problems were exacerbated as you were taking methylamphetamines and socially withdrawing from the community. In addition, you experienced difficulties financially and felt guilty relying on your mother.
29. Consequently, the offence was committed in the context of your use of methylamphetamines, not working, social isolation and the need to fund your drug use as well as daily expenses. It is significant that the use of methylamphetamines was not disclosed to His Honour Judge Mullaly, although you were taking them.
30. I sentence you on the basis that you do suffer from post-traumatic stress disorder. I accept the contents of the psychological reports of Wendy Bigaignon, dated 24 June 2012, and Dominic Greco, dated 8 July 2009.
31. I will refer specifically to the most recent report of psychologist David Ball, dated 17 October 2013. On 14 October 2014, he assessed you at Port Phillip Prison. You informed him that you have used methylamphetamines since you were stabbed in 2009, primarily to self-medicate depression, and to prevent nightmares by not sleeping. You acknowledged the negative impact of using this drug and said this, “Drugs have messed with my judgment and decision-making”, and you expressed the desire to undertake further rehabilitation.
32. You also informed Mr Ball that your earlier armed robbery offending was related primarily to drug use, isolating yourself and not working. You said you were short of money and your rent was due. You gave a similar explanation in relation to this offence in that you had begun isolating yourself, you were not working, and you could not be around others. Further, that you took methylamphetamines to avoid falling asleep and suffering nightmares. You told him that you need money for Ice and living expenses and that your self-medicating anxiety was in relation to your father’s illness”.
33. I refer specifically to a part of Dr Ball's report at p.5 under the heading "Diagnosis".
"Based on Mr Mkhize's clinical interview, psychometric testing and history taking, I am of the view that he satisfies the DSM5 diagnostic criteria for post-traumatic stress disorder. Of course with Mr Mkhize is his continuing and likely untreated post-traumatic stress disorder. I consider his condition to be chronic and severe and that he satisfies the majority of diagnostic criteria for this disorder. Co-morbid with this disorder he suffers paranoid ideation stemming from his experience and he says he has to remain on guard, hyper-vigilant and wary of others. He also suffers some depressing symptoms and a high level of anxiety. Mr Mkhize also suffers the DSM5 diagnostic criteria for severe stimulant use disorder in sustained full remission in a controlled environment. As stated above, he has resorted to using ice to self-medicate significant symptoms of post-traumatic stress disorder. Mr Mkhize's previous drug addiction was connected to his post-traumatic stress disorder. These two conditions were connected to and underpinned his previous and current charges of armed robbery."
34. Mr Ball reported that he estimates that your IQ falls within the upper end of the normal range and that you presented with a history of mostly good judgment that appears to deteriorate when you are dealing with the symptoms of post-traumatic stress disorder by self-medicating with illicit substances. In his opinion, you have some insight as to your current offending and general psychological functioning. He reported as follows:
“He presented with the capacity to learn from previous mistakes and for consequential thinking. He presents as being unimpaired in his ability to plan and execute positive and self-sustaining behaviour. However, this rapidly deteriorates when he is affected by substances.”
35. I accept the submission made by Ms Clark that factors 2 and 3 in R v. Verdins, Buckley and Vo [2007] 16 VR 269 apply. Namely:
"Factor 2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served;
Factor 3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both."
36. I also consider that the factor in relation to moral culpability is relevant.
37. I accept Ms Clark’s submission that there is a causal connection of the post-traumatic stress disorder to the use of methylamphetamine and the commission of this offence. I sentence you on the basis that you did suffer and continue to suffer from post-traumatic stress disorder, that the catalyst for the commission of this offence and, no doubt, the earlier armed robbery is your use of illegal drugs, in particular methylamphetamines, and to deal with the nightmares associated with this condition. Of course, the appropriate course would have been to seek the opinion of a medical practitioner.
38. In those circumstances, I sentence you on the basis your moral culpability is reduced and I have given less weight to general deterrence and specific deterrence.
39. A letter you wrote to the court was tendered and I have read that letter. You are articulate man and I accept that you have shown insight. Taking into account all the material, I have given weight to rehabilitation, notwithstanding you have a prior conviction for armed robbery committed in similar circumstances and you committed this offence while on two court orders.
40. Mr Ball reported that there was no evidence of frank mental illness, such as psychotic ideation, hallucinations or delusions in your speech or demeanour. He reported that in clinical interview, your immediate recall, short-term memory and long-term memory appeared intact, that you were oriented to time, place and person and there was no evidence of cognitive impairment.
41. Your letter to the court was consistent with Mr Ball’s opinion, who attached to his report, a document to which I have referred, “Invitation to the Best Chance Program”, which is a treatment program for you upon your release from prison. It is clear that if you can deal with the post-traumatic stress disorder by following the advice of medical practitioners and not succumbing to the temptation of using methylamphetamine or any other amphetamine-based drug, it is unlikely you will not commit offences again.
42. Your letter to the court reflects that you have insight in that you realised you must deal with your mental health appropriately and no longer resort to the use of illegal drugs. I accept that you have also taken steps to effect your rehabilitation. I take into account the certificates that were tendered on your behalf in relation to the programs you have completed in prison. I will refer to two parts of your letter:
“Since being in custody I’ve had a long time to reflect on my life and the suffering I’ve brought to my family and partner. I have consulted with the prison counsellor who has taken the time to help me identify my triggers and stresses that occur prior to my depression and anxiety, causing me to isolate myself and leading to self-destructive decisions. By me being able to identify these in future, it can aid me to not regress into antisocial behaviour and I can be a functioning member of society, as I was once.”
43. Further you said this:
“There are no excuses for my actions apart from the fact that I now know I need to seek more psychiatric treatment for post-traumatic stress disorder. I believe if I don’t deal with it, any attempts on my behalf to progress in future will be futile.”
44. What you have said is accurate.
45. I accept that the term of imprisonment will be harder on you than other prisoners who have served lengthy terms of imprisonment before.
46. Ms Clark has submitted that prison will weigh more heavily on you than it would a person without your condition. I accept that prison is difficult for people with psychiatric or mental illness. However, in your case, it is the first time since 2009 that you have been drug-free. You are physically fit, working in the gym, giving lessons in boxing to other prisoners. Overall, you have gained a positive attitude in relation to your future without resorting to the use of drugs which influence your mind adversely and, to your credit, you have undergone and completed programs.
47. My task is to impose a just sentence, taking into account the seriousness of each of the offence, the gravity of the offending conduct, the fact that you have been convicted of the same offence in similar circumstances and taking into account your personal circumstances and other mitigating factors, as well as applying the relevant sentencing principles and current sentencing practices.
48. I accept that it is important that any sentence I impose does not crush you and you become institutionalised. I accept that the illness of your father and your concern for him suffering from cancer will mean that a prison sentence will weigh heavily on you as you cannot be with him and, importantly, you cannot be with your mother and sister.
49. I take into account the order for compensation that I have made. Further, I take into account the letters from your mother and your sister, who are very supportive of you.
50. Your chances of rehabilitation must be guarded given you breached earlier orders and your prior conviction for armed robbery. However, I sentence you that your chances of rehabilitation are reasonably good given the material put to the court on your behalf, and that you are an intelligent man who continues to have the support of your family. It is important that you continue to have treatment for your condition, which was untreated at the time, live with your mother who is a registered nurse and follow the directions of doctors and that do not behave in an immature, self-indulgent way as you did earlier by ignoring your mental illness and self-medicating using methylamphetamines, no doubt ignoring what your mother has advised you. You are fortunate to have the ability to complete tertiary qualifications and obtain employment through your interest in boxing and the fact that you are physically fit.
51. I sentence you as follows:
52. Charge 1, armed robbery you are convicted and sentenced to four years’ imprisonment and I order that you serve a minimum term of two years before you become eligible for parole.
53. I take into account the pre-sentence detention of 162.days, to be reckoned as time already served.
54. Pursuant to s6AAA of the Sentencing Act 1991, had you not pleaded guilty, I would have sentenced you to five years’ imprisonment with a minimum of three and a half years before you become eligible for parole.
55. Are there any other matters?
56. MS CLARK: No, Your Honour.
57. MR WEAVERS: No, Your Honour.
58. HER HONOUR: Thank you, Mr Prison Officer, if you take the prisoner.
59. Very well, no other matters?
60. MS CLARK: No, Your Honour.
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Indictment No. E11766606
County Court Ref No. CR-14-01516
IN THE COUNTY COURT
OF VICTORIA
AT MELBOURNE
| DIRECTOR OF PUBLIC PROSECUTIONS v. THULASIZWE MKHIZE |
SUMMARY OF PROSECUTION OPENING UPON PLEA
Date of Document: 16 October 2014
Filed on behalf of: Director of Public Prosecutions
Prepared by: Amina Bhai
Craig Hyland
Solicitor for Public Prosecutions Solicitor’s code: 7539
565 Lonsdale Street Tel: 9603 7666
MELBOURNE VIC 3000 Ref: D Weavers
Background:
The offender, Thulasizwe MKHIZE, was born on 21 April 1987. He is currently 27.
At the time of the offending he was 26 years old. He was on a Community Corrections Order[1] and an adjourned undertaking[2].
[1] Imposed at Melbourne County Court on 3 July 2012.
[2] Imposed at the Dandenong Magistrates Court on 15 May 2013.
Offending:
At about 10:00 pm on Wednesday 16 October 2013, the offender went to the BP Service Station on Centre Rd, Clayton. He was dressed in all black. He had dark sunglasses on, and was wearing a baseball cap with the hood of his jacket pulled up over it. His hands were covered with black woollen gloves.
The offender had a 30 cm knife. He entered the store, holding the knife out in front of him.
The offender approached the attendant, Navroop Singh, who was in one of the aisles of the store. He pushed the attendant down the aisle and along the side of the store towards the counter.
The attendant opened the counter area and the offender forced the attendant into the counter area. The offender repeatedly said ‘give me all the money’.
The attendant opened the till and the offender removed all the notes from the till ($260). He put the money in the bag he was carrying.
The offender grabbed the attendant by the arm. He forced him to the doors of the store. He then let go of the attendant and ran out the door.
The offending was recorded on CCTV footage.
After leaving the service station, the offender ran down James Street to a small park at the end of the street and bordering an industrial premises There he discarded his clothing (including the cap) and bag. The bag contained the knife.
Police located these items with the assistance of a Police dog.
The cap located by Police was later analysed and DNA from it compared to the offender’s. There was ‘extremely strong support’ (100 billion) for the DNA found in the cap being that of the offender.
The offender was interviewed by Police in Fulham Prison on 28 May 2014. He told police:
· He had not been to the service station for about two years.[3]
[3] ROI Q&A 67
· He could not remember what he was doing on that night.[4]
[4] ROI Q&A 107
· The person on the photo from the CCTV ‘could be anybody’.[5]
[5] ROI Q&A 96
Victim Impact Statement:
The victim, Navroop Singh, has not declared a victim impact statement. However, in his statement, he stated ‘I was very scared.’
Plea of Guilty:
The offender was committed to this court at the committal case conference on 26 August 2014. He pleaded guilty and the matter proceeded by way of straight hand up brief.
It is acknowledged that the plea of guilty was entered at the first available opportunity.
Section 6AAA Sentencing Act 1991 applies.
Pre-sentence Detention:
At the time he was charged (28 May 2014) the offender was serving a seven month term of imprisonment.[6] That sentence expired on 10 June 2014. The offender has remained in custody since that date.
[6] Imposed in Melbourne County Court on 11 September 2013.
As at, but not including 23 October 2014, he has served 135 days pre sentence detention.[7]
[7] 11 June 2014 – 23 October 2014
Maximum Penalty:
The maximum penalty for armed robbery is 25 years imprisonment.
Applications:
A compensation order is sought for the $260 stolen.
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