Director of Public Prosecutions v Park
[2024] VCC 1249
•16 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00534
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SE JUNE PARK |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2024 | |
DATE OF SENTENCE: | 16 August 2024 | |
CASE MAY BE CITED AS: | DPP v Park | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1249 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentence
Catchwords: Armed Robbery of a convenience store in the early hours of the morning – Armed with a kitchen knife and disguised – Plea of guilty at the earliest opportunity – 22 year old youthful offender with no prior history – Genuine remorse – Good prospects of rehabilitation – Substance use –– Mental health – ADHD – Major Depressive Disorder – Verdins principle five.
Legislation Cited: Crimes Act 1958; Sentencing Act1991
Cases Cited:R v Verdins (2007) 16 VR 269; Boulton v The Queen (2014) 46 VR 308; R v Mills (1998) 4 VR 235; Azzopardi v The Queen [2011] VSCA 372
Sentence: 18 month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Olivia Stevenson | OPP |
| For the Accused | Bec Samuels | VLA |
HIS HONOUR:
1Se June Park, you have pleaded guilty to an indictment containing a single charge of armed robbery, contrary to s 75A of the Crimes Act 1958. This offence carries a maximum penalty of 25 years' imprisonment.
2The circumstances of your offending are set out in a prosecution opening dated 19 July 2024.[1] Your counsel indicated that the opening was an agreed document. I will set out the facts of your offending briefly.
[1] Exhibit A
3At around 1:00am on 15 November 2023, your victim, Mr Lu was working in a convenience store at the CT Mart in Carlton.
4At approximately 1:01am, CCTV footage captured you driving and parking your vehicle, a silver Volkswagen Passat, near the store. You exited the vehicle and were observed wearing a mask, gloves and holding a knife in your right hand.
5You entered CT Mart, brandishing the large kitchen knife. Having approached the sales counter, you placed a black knife sheath on the counter. Still brandishing the knife towards Mr Lu, you opened up a white plastic bag and held it up towards him, while stating ‘all of the money, hurry, hurry’.
6You then lunged forward brandishing the knife close to Mr Lu’s face and neck region. Mr Lu opened the cash register, placing all the notes into the white bag and tipping all the coins from the till directly into the bag. The total amount taken was $1,050.
7You then exited the store and were observed running away. At approximately, 1:03am, you returned to your vehicle, holding the knife and the white plastic bag. You placed the items in the boot before entering the driver’s seat and driving off.
8Police attended CT Mart at approximately 1:27am. A VicRoads check revealed that the silver Volkswagen Passat was registered in your name to a North Melbourne address.
9Police attended the address around 3:08am. The silver Volkswagen Passat was parked at the front of this address. At 1:41pm, police again attended the address and observed you sitting on the second storey balcony of the address. Upon police direction, you attended the front door of the premises and were arrested.
10A large knife, sunglasses, clothing, and total cash sum amounting to $1013.75 was recovered. Also recovered was a white plastic bag.[2]
[2] This bag contained $158.75 in coins. $625 was located in a bedside table and $230 in a wallet. Total amounted to $1013.75.
11You were taken to Melbourne West Police Station. You exercised your right of silence in the formal interview. You were charged and remanded overnight.
12On 16 November 2023, you were granted bail subject to a number of stringent conditions. You have remained on bail since without incident.
Personal circumstances
13You were born in South Korea and completed your primary education there. You immigrated to Australia at the age of 14 with your mother and older brother. Your father remained in South Korea for work. You became an Australian Citizen in 2016.
14Growing up, you were fearful of your mother as she physically abused you. After three years in Australia, your mother returned to South Korea. Upon your mother’s return, you were sent to boarding school. You were expelled in Year 11 for smoking cannabis. You then lived with your brother before he too returned to South Korea two years ago. You then lived with your maternal grandparents before moving out in December 2023. You are currently living in shared accommodation in North Melbourne.
15You completed Year 11 through VCAL. You have held various jobs including as a labourer, kitchen hand, warehouse assistant, window cleaner and removalist since leaving school. You have been more recently working as a signwriter.[3]
[3] Although currently unemployed, I was told that your employer at the signwriting business may re-employ you once this case is finalised.
16You began drinking alcohol at the age of 16. At the age of 18, you were consuming half a bottle of bourbon on a daily basis. However, since the middle of 2020, your alcohol consumption has significantly declined and you now drink rarely.
17You began smoking cannabis at the age of 14. It increased to daily use of 1 gram. Regrettably, your use of cannabis is continuing. It appears from your comments to Ms Cokorilo,[4] that you have no intention to quit your cannabis use. You have used various other illicit substances including MDMA, GHB, cocaine, ecstasy and Oxycodone.
[4] Exhibit 3, Psychological Report of Sandra Cokorilo, dated 23 July 2024
Gravity of the offending
18Armed robbery is an inherently serious offence. That fact is abundantly clear from the maximum term of 25 years’ imprisonment.
19I have viewed a portion of the footage of your offending.[5] Your offending targeted a convenience store in the early hours of the morning where your victim was working alone. You were armed with a large kitchen knife which you were brandishing, including close to your victim’s face. While there is no victim impact statement, it is clear that your victim, a soft target, would have been terrified.
[5] Exhibit B.
20The offending was not something that can be considered to have occurred in the spur of the moment; it involved a degree of planning. You made a real effort to disguise yourself and conceal your identity. I do, however, accept that the offending lacked sophistication. While you parked your car away from the store, your vehicle and its registration number led to your prompt identification.
21I note that you had committed a theft and an assault in a pharmacy only a matter of some nine days before this armed robbery. You were on bail when you committed the armed robbery. An armed robbery involving the use of a large kitchen knife on a soft target at night needs to pay heed to the sentencing purposes of general and specific deterrence, just punishment and denuncation. Your youth also requires an emphasis on your rehabilitation.
Submissions on sentence
22Your counsel, relying upon a number of important mitigating factors, including youth, early plea of guilty, no prior history, mental health issues and good prospects of rehabilitation, submitted that all relevant sentencing purposes could be dealt with by the imposition of a Community Correction Order (‘CCO’).
23Noting that the matters in mitigation were not in dispute, the prosecution highlighted the objective gravity of your offending but conceded that your continued rehabilitation was an important objective when considering the appropriate disposition. Ultimately, it was accepted that a community disposition that did not involve your return to custody was within range.
Matters in mitigation
24I accept that your plea of guilty was entered at an early stage and entitles you to a significant discount in your sentence. Your plea of guilty has saved the community the time and cost of a trial and has spared the victim from having to give evidence. Your plea has facilitated the course of justice and you have taken responsibility for your actions.
25I also accept that your plea of guilty is demonstrative of genuine remorse. I note your observations to Ms Cokorilo:
Mr Park stated that he did not think his actions through and acted impulsively, noting that “it all happened quite quickly”. He reported that he “knew in [his] heart that [he] would not have hurt him [the victim]”, but acknowledged that he would be traumatised if “someone came with a knife like [he] did”. He stated that he feels bad for the victim and would like to apologise but cannot attend the venue due to his bail conditions. He stated that he regrets his offending and understands in retrospect that it “could have ended way worse than it did.”[6]
[6] Exhibit 3, paragraph 46
Mental health
26In line with your revelation of childhood struggles with Attention-Deficit Hyperactivity Disorder (ADHD), Ms Cokorilo’s testing revealed that you continue to struggle with untreated ADHD. Ms Cokorilo states that up to 80 percent of ADHD cases are comorbid with, anxiety, depressive or substance use disorders. She opines that her testing was consistent with a diagnosis of not only ADHD, but also a Major Depressive Disorder (MDD).
27In respect of ADHD, Ms Cokorilo states:
ADHD is characterised by a persistent and impairing pattern of inattention and/or hyperactivity/impulsivity, and is associated with executive dysfunction, disinhibition, emotion dysregulation, impaired decision-making, interpersonal difficulties, and disturbed sleep. Neuroimaging studies have implicated differences in volume and activity in the frontal lobe, which is responsible for attention, behaviour selection, and emotion. Studies of neurotransmitters have also pointed to abnormalities in dopamine and norepinephrine signalling.
Of particular relevance to Mr Park’s case is disinhibition which arises from executive dysfunction in ADHD. Executive dysfunction causes functional impairments in a person’s daily life and limits inhibition and self-control. Those with executive dysfunction might have a harder time than other people regulating their emotions. Reduced capacity to regulate emotions makes it harder to control behaviour. This emotional and behavioural dysregulation, inherent in his untreated ADHD, is considered a key factor in Mr Park’s offending.
He reported that he was angry and upset because his father declined his request for a loan while he was experiencing financial hardship. He stated that he acted impulsively without due consideration of consequences or alternative avenues when he hastily decided to commit the armed robbery. His account is consistent with ADHD crimes which are typified as impetuous, reckless opportunities for which they are easily apprehended.
Mr Park’s emotional lability and poor behavioural control is inferred to have led to him being more easily provoked into acting without thinking. His offending, as most ADHD crimes, has not resulted from lengthy rumination and a hostile attitude but is primarily a product of poor behavioural and emotional control.[7]
[7] Ibid, paragraph 70
28Ms Cokorilo further states:
This increased association between MDD and behavioural dyscontrol has likely made an independent contribution to Mr Park’s already compromised capacity for self-regulation, thereby additionally contributing to his offending.[8]
[8] Ibid, paragraph 79
29In respect of your age and immaturity, Ms Cokorilo states:
Mr Park’s cognitive impulsivity, inherent in his untreated ADHD, would have additionally heightened his age-related biological and neurodevelopmentally normative impulsivity.[9]
[9] Ibid, paragraph 82
30While your counsel did not ultimately press the submission, I make it plain that with the exception of limb 5, the other Verdins[10] principles do not apply. This was a serious offence which involved a degree of considered planning. It involved the selection of a soft target, a convenience store, use of disguises, including a face mask and glasses and a large kitchen knife. While you used your own car, you parked it some distance away from your target. You are a suitable vehicle for both specific and general deterrence.
[10] R v Verdins (2007) 16 VR 269 (Verdins).
31Of course, the issues with your mental health identified by Ms Cokorilo remain of significance in a general sense. You have grown up with untreated ADHD and are grappling with depression.
32As I said, I accept that principle 5 of Verdins has application. Ms Cokorilo states:
It is also noted that his emotional dysregulation and negative affect, inherent in his ADHD and MDD, would likely make imprisonment more onerous for him than an individual without his conditions. Despite engagement with psychological counselling and adherence to antidepressant treatment, his depression symptoms reportedly persist. It seems fair to opine that that tense and volatile prison environment would cause a deterioration in his already compromised mental state.[11]
[11]Exhibit 3, paragraph 87
33You were 22 years old at the time of the offending and are now 23. You have no prior criminal history. At the time of the offending, you were on bail for matters which have since resolved and resulted in a non-conviction adjourned undertaking. You have not been in any further trouble. There is nothing else pending and you have complied with your stringent bail conditions. This has included complying with the Court Integrated Services Program (‘CISP’) over a lengthy period of some 38 weeks.
34Ms Cokorilo considers your risk of general and violent re-offending to be low. You are currently undergoing psychological counselling and have been taking anti-depressant medication daily. You have also undertaken AOD counselling. With the exception of cannabis, you have refrained from all other illicit drug use.
35Although you only spent one night in custody, it has had a harrowing effect upon you. You told Ms Cokorilo about your confronting experience of custody. Ms Cokorilo states:
He noted that since he was remanded overnight in custody he now understands the value of freedom and is confident that he would never offend again.[12]
[12] Exhibit 3, paragraph 47
36While I am unable to express the same level of confidence, I do accept that your prospects of rehabilitation are good. In order to enhance your prospects of rehabilitation, you need to completely refrain from any illicit drug use, and that includes cannabis.
37I have had regard to the principles in the case of Mills[13] and Azzopardi.[14] In circumstances where you have made good progress since being granted bail on 16 November 2023, any sentence should encourage the continuation of that progress. Maintaining and progressing rehabilitation at this stage in your life, is not only in your and your family’s interest, but also in the interests of the community at large. Further, you require ongoing assistance dealing with your long-standing issues with drug dependency and unresolved mental health.
[13]R v Mills (1998) 4 VR 235 (Mills).
[14]Azzopardi v The Queen [2011] VSCA 372 (Azzopardi).
38In my judgement, all sentencing purposes, including general deterrence, specific deterrence, denunciation and rehabilitation, can be met by the imposition of a CCO. I have taken into account the guidance directed particularly at youthful offenders in Boulton v The Queen (2014) 46 VR 308.
Sentencing
39Having carefully considered all the matters raised in this case, and weighed the various sentencing considerations, I sentence you, Mr Park, as follows:
40On Charge 1, armed robbery, you will be convicted and sentenced to a CCO for a period of 18 months commencing today.
41In addition to the mandatory core conditions set out in the order that you must comply with, the CCO will also include the following special conditions:
· First, you will have to perform 160 hours of unpaid community work as directed.
· Second, you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed.
· Third, you must undergo any mental health assessment and treatment as directed.
· Fourth, you must engage in programs that address factors relating to your offending behaviour.
· Fifth, you will be subject to supervision as directed for the duration of the CCO.
42Pursuant to s 48CA(2) of the Sentencing Act1991, I direct that 60 hours of treatment and rehabilitation successfully undertaken is to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
43You must report to the Melbourne Justice Service Centre within two working days from today.
44Mr Park, you need to understand that if you were to breach the CCO in any way, either by committing another offence or by not complying with any of the core conditions or any of the special conditions, then you could be charged with the offence of breaching the order.
45The offence of breaching a CCO itself carries a maximum penalty of three months' imprisonment. So were you to breach the order, you would need to come back to court and face sentencing for that breach offence. In those circumstances, you could also be resentenced for the offence for which you were placed on the original order, namely the armed robbery. You would then face the possibility of being sent to custody.
46There are serious consequences attached to any breach. Do you understand that Mr Park?
47OFFENDER: Yes, Your Honour
48HIS HONOUR: Do you also understand all the conditions of the proposed Community Correction Order?
49HIS HONOUR: I need to now ask you; do you consent to being placed on a CCO in the terms I have outlined and to abide by all of its conditions?
50OFFENDER: Yes, Your Honour
51HIS HONOUR: Thank you. I will now get you to sign the formal order which lists all the mandatory and special conditions applicable.
Other orders
52I grant the forfeiture and disposal orders sought by the prosecution.
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