Director of Public Prosecutions v Papko

[2015] VCC 213

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01058

DIRECTOR OF PUBLIC PROSECUTIONS

v

DENNIS PAPKO

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2014
DATE OF SENTENCE:	27 February 2015
CASE MAY BE CITED AS:	DPP v Papko
MEDIUM NEUTRAL CITATION:	[2015] VCC 213

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Attempted armed robbery – Criminal record – Acquired brain injury and impairment of mental functioning – Intellectual disability – Klinefelters syndrome – Reduced moral culpability – Protection of the community

Cases:Boulton v R [2014] VSCA 342

Sentence:Community Corrections Order of 2 years’ duration imposed together with Justice Plan – Judicial Monitoring imposed – Ancillary order Disposal Order – s.6AAA Sentencing Act 1991 declaration – 2 days imprisonment noted as having been served

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hannan	Solicitor for Public Prosecutions
For the Accused	Mr A. Pyne	VLA

HER HONOUR:

1Dennis Papko, you have pleaded guilty to one charge of attempted armed robbery, which has a maximum penalty of 20 years' imprisonment. The maximum penalty shows how seriously our parliament views this offence.

2On 10 February 2014 at about 6.55 pm, after you got off the train at Beaconsfield railway station, you went into the station foyer and checked the Myki machine for loose change.  You then checked for change at the payphone on the platform.

3After this, you stood at the top of the ramp which led to the station. At about 6.59 pm the female victim in this matter got off the train, then went to use the Myki machine. As she was doing this you stood behind her for a while, then moved to the end of the platform where you were able to see people leaving it.  You waited for two people to leave the station and when the victim was left alone you returned to stand behind her.  As she waited for her receipt from the machine, you asked her if she could spare you any change.

4The victim turned to exit the station after she finished at the machine and you followed her down the ramp and produced a fillet-style knife saying, "Give me the money, I can kill you easily." The victim ran away and called the police.  I saw CCTV footage where you were holding the knife in your hand.  When you were interviewed by the police, you said that you recalled being at the station and asking the victim for money, but you denied being in possession of a knife.

5Mr Papko, your conduct is serious and deserves a punishment which is just in all of the circumstances.  One of these circumstances which is relevant to your case is the impairment of mental function that had an impact upon you at the time of the offending and continues to do so.  I will refer to the mitigatory effects of this a little later on.

6Although you have a limited intellectual capacity, you were able to act with a sense of purpose and a crude level of planning once you were unable to obtain money from the machines at the railway station on the day that you committed the offence.  It could not be said however that your offending was premeditated as such.  I was not enlightened as to how it was that you happened to have a knife with you, but I do not speculate about this.

7You have a number of prior convictions, mainly for dishonesty offences and you had the benefit of community based orders before, one of which you have breached.  This offending for which I now sentence you is more serious than any offence you have committed before and, in light of your impairment of mental function, the offending on this occasion and your criminal history, I must be concerned to protect the community.

8In your favour I take into account your plea of guilty and the early stage at which this matter resolved into a plea of guilty.  You are entitled to a significant discount in the sentence you would otherwise receive, as you have saved the witnesses, especially the victim, the time and trouble of giving evidence and you have saved the community the time and expense of running a committal hearing and a trial.

9I accept that you suffer from a sever acquired-brain injury and intellectual disability and that you also suffer from Klinefelter’s syndrome.  Your level of cognitive function across a number of domains ranges from moderate to severely reduced.  You have a mild intellectual disability with an IQ of 70 or below.  Your ability to maintain higher-order attention skills including impulse control and resistance to interference is extremely low compared to other people.  I also accept that such impairment of mental functioning existed at the time of your offending and impacted upon your ability to exercise appropriate and considered judgements and that you acted somewhat impulsively without fully considering the consequences of your actions.

10In all of those circumstances, I allow for a substantial reduction in respect of your moral culpability and I substantially reduce the weight which I would otherwise attach to specific and general deterrence.  However, I do not eliminate the weight which I attach to these factors as there was a certain level of rationality and purpose to what you did when you committed this offence.  Further, because of your significant intellectual, psychological and physiological difficulties, I accept that gaol would weigh more heavily upon you than for someone without these problems and that any period in gaol would have an adverse effect on your mental health and general wellbeing.

11I take into account your background.  You have experienced periods of social isolation, having been bullied at school.  You were a poor student both in the Ukraine and in Australia, encountering particular difficulties here when you first arrived, as you could not speak English.  You have struggled throughout your life because of your gender identity issues, which has resulted in you being physically assaulted from time to time.  You would threaten self-harm or run away because of the bullying you encountered as you were growing up.

12Your father is an alcoholic and would drink up to a bottle of vodka per day.  He refused to accept you identifying as anything other than a male and he would often beat you.

13When you obtained work after leaving school, this was also difficult as you were often bullied and isolated in the workplace.  You also found working a challenge in terms of your competence because of your intellectual difficulties.  Over the years you have also encountered unstable housing and you were living on your own in rather unfortunate circumstances at the time of the offending for which I now sentence you.

14You are now in far better circumstances than you were at the time of this offence. As at the plea date I was told you are living with your brother in a far more comfortable dwelling.  You are paying rent and were doing what you can to obtain work.  I am pleased to hear that you now have a traineeship with the Animal Protection Society on a part-time basis and this may extend to full-time.  You are also engaging in a literacy course, which is a very good idea for you to continue.  You have some family support now in respect of your gender issues and you also have the support of a long standing friend, Mr De Groot, who was in court to support you at the plea hearing and is here again today.  You also have the support of your local church and you have resolved to obtain some psychological counselling on a regular basis.

15I was told at the plea hearing that you had received counselling from a Dr Riaz in the past. You have also shown a preparedness to engage in disability support, which is something you have engaged in previously.  As at the time of the plea you had completed seven of the ten Positive Life Skills sessions offered by the Salvation Army, which is another good step on your part.   Since the plea hearing I have had the benefit of further reports in relation to your progress and they are very positive.

16In all of the circumstances, I am of the view that it would be in your best interests and in the best interests of the community if you were to continue on the path you have commenced taking and, in light of the matters to which I have previously referred, it is my view that a community corrections order with a justice plan attached to it would be the best outcome.  To that end I arranged for full report, which is now to hand, and whilst some concerns are expressed by Community Correctional Services about your criminal history and history of offending while subject to orders, you are assessed as suitable for a community corrections order with a number of conditions.

17Since you were last before the court, the decision of Boultonv R [2014] VSCA 342 has been handed down by the Court of Appeal. In light of that, the Crown is now of the view that a community corrections order with some fairly stern conditions would be appropriate to meet all sentencing considerations in your case. Mr Papko, if you commit any offences in the future however or if you do not obey all the conditions of the community corrections order or the justice plan, it may well be that in the future there is no alternative but to send you to gaol.

18Do you understand that?

19OFFENDER:  Yes, I do.

20HER HONOUR:  So you must stay out of trouble, get all of the help that you can and do as you are told by the people at Community Correctional Services and Department of Human Services or you will be at great risk of committing further offences and of going to gaol.  Do you understand that? 

21All right.  Would you please stand up, Mr Papko.

22On the charge of attempted armed robbery you are convicted.  I make a disposal order in the terms set out in the document handed to me, which is not opposed by you. 

23For the records I note that you have served two days in custody in respect of this matter.  I intend to place you on a community corrections order for a period of two years.  The mandatory terms that apply to all community correction orders are:

24(1) You must not commit another offence for which you could be imprisoned during the time that the order is in force;

25(2) You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;

26(3) You must report to and receive visits from the Secretary of the Department of Justice or his or her delegate;

27(4) You must report to the Dandenong Community Corrections Centre before 4 pm on Tuesday 3 March 2015;

28(5) You must let a community corrections officer know within two clear working days of you changing your address or job;

29(6) You must not leave Victoria without first obtaining permission to do leave from the Secretary to the Department of Justice or his or her delegate;

30(7) You must obey all lawful instructions from and directions of the Secretary to the Department of Justice.

31They are the core conditions that apply to every community corrections order, but there are further conditions which I apply in your case and they are these.

32(1) You must do 100 hours of unpaid community work within the next 12 months.

33(2) You must be under the supervision of a Community Corrections Officer for a period of two years.

34(3) You must undergo mental health assessment and treatment as directed by the Regional Manager.

35(4) You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.

36(5) You must be subject to the justice plan which was prepared by Ms Muna Chigumadzi on 17 February 2015, and which requires you to engage in case management services provided by Disability Client Services for a period of two years.  You are also required to continue to attend appointments at Skills Plus or any other appropriate employment service as is recommended by Disability Client Services.  Also, you must complete your education course at Skills Plus.

37I am also going to impose a condition that you come back and see me on 16 April 2015 at 9.30 am to be reviewed by me.  You may be required to attend for further reviews by me from time to time for the duration of the order.

38Do you consent - that is do you agree - with all of the terms and conditions of the order that I have just set out?

39OFFENDER:  Yes, I do.

40HER HONOUR:  I should tell you that if you do not obey all of the requirements of the community corrections order, which also has that justice plan attached to it, then you will face breach proceedings before me.  You will then be sentenced in relation to the breach and re-sentenced in relation to the charges, in which case you may well be sentenced to a period of imprisonment.  I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because you did not obey any of the other conditions of the order.  Do you understand that, Mr Papko?

41OFFENDER:  Yes, I do.

42HER HONOUR:  Do you still agree to obey the community corrections order and enter into it?

43OFFENDER:  Yes, I do.

44HER HONOUR:  Therefore in relation to the charge of attempted armed robbery you are convicted and sentenced to the community corrections order in the terms and conditions that I have just explained.  You can come out of the dock and I will ask your barrister to help you with signing that document.

45If not for your plea of guilty, the sentence imposed would have been a Community Corrections Order of 3 years duration with appropriate conditions together with 6 months’ imprisonment to be served immediately.

46MR PYNE:  May it please the court.

47HER HONOUR:  Is there anything arising out of that?

48MR PYNE:  Nothing, Your Honour.

49MR HANNAN:  My instructions were that it was one day pre-sentence detention, Your Honour.  I'm just checking that.

50HER HONOUR:  It is not a pre-sentence detention anyway, it is a noting for the records.

51MR HANNAN:  No, it's not.  No.

52HER HONOUR:  I thought it was two, but - - -

53MR HANNAN:  No, I don't think there's an issue then, Your Honour.

54HER HONOUR:  Yes, thank you.  All right.  I have signed that order.  Mr Pyne, if you could please have your client sign the order with your assistance, please.  You have now signed?  The order has now been signed?

55MR PYNE:  Yes, it has.

56HER HONOUR:  All right, thank you.  Is there anything further?

57MR HANNAN:  No, Your Honour.

58HER HONOUR:  All right.  We will now adjourn.

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