Director of Public Prosecutions v Patrice

[2021] VCC 1313

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-01377

DIRECTOR OF PUBLIC PROSECUTIONS

v

BAAL PATRICE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 September 2021
CASE MAY BE CITED AS:	DPP v Patrice
MEDIUM NEUTRAL CITATION:	[2021] VCC 1313

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr M. Kozlowski	Unite Legal

HIS HONOUR: 

1Baal Patrice, you have pleaded guilty to one charge of aggravated carjacking, and you have pleaded guilty to three uplifted summary matters.  The crime of aggravated carjacking has a maximum penalty of 25 years.  In a situation such as this, where you are now 20 years of age, and were 18 years of age at the time of the offending, there is a presumption that there will be a minimum term of at least three years.

2Insofar as the uplifted matters are concerned, on each of those, you are convicted and sentenced to be imprisoned for a period of 14 days, each of those to be served concurrently with each other and upon the sentence I will be imposing on the aggravated carjacking.

3You are now 20 years of age.  You were 18 years of age at the time of the offending, and therefore, obviously, were very young.  You must get the utilitarian benefit of that plea of guilty, and, I take that into account.

4Remorse is somewhat more problematical, but I will give you the benefit of the doubt in respect of that.  It may be that you have some difficulty in expressing remorse because of your limited intellectual functioning, but it is a situation, I will point out in a few minutes, that you have been engaging in some pretty serious antisocial behaviour in the preceding months to this occurring.  But, as I say, I will give you the benefit of the doubt.

5In this situation, I do not think I need to go into a great, long explanation of the law.  It is pretty much self-apparent.  And I have read the decision of Farmer.  And the situation is that you attract a mandatory minimum term, unless you prove, on the balance of probabilities, that you have impaired mental functioning that is causally linked to the commission of the offence, and substantially reduces your culpability; or you have impaired mental functioning, resulting in you being subject to substantially materially greater than the ordinary burden or risks of imprisonment.

6Sub-section (2) was not argued.  Sub-section (1) was.  There is medical material before me.  As I indicated during the course of argument, I do not think I need to go any further than what was said then, though I am not formally adopting those as reasons, I am not satisfied that that has been established.

7I have before me a Forensicare report, and there is reference to a report from a neuropsychologist who examined you on your behalf, which shows that you have an IQ somewhere between 68 and 72.  It is a circumstance where, even if I would be wrong in finding that there is no special reason involved in all this, I would not have found that there was a causal link, in any event, for reasons that I will point out in a moment.

8It was further argued that, in this situation, there were substantial and compelling circumstances, under a different sub-section.  And when I look at the matters contained within the legislation as to what I must not have regard to, it seems to me that the very matters that you seek to rely upon, understandably, are the very matters which I am not allowed to take into account.

9I must give less weight to your circumstances than to the nature and gravity of the offence, and regard general deterrence and denunciation as having greater importance than the other purposes set out in s5.  In those circumstances, I am not prepared, on either basis, to find that a special reason, or special reasons, exist.

10It is also a situation where you are still 20, and therefore technically eligible for Youth Justice.  That question does not even arise, because you have now spent 518 days in adult custody on remand for this.  It appears that you spent some time previously in adult custody on remand for another matter, and I have no doubt that in these circumstances, Youth Justice would simply find you unacceptable.  So that path was not even worth exploring.

11A summary of the offending is as follows.  You were 18 years of age.  You, on 6 April 2020, went to Shepparton.  A Mr Ibrahami and a Mr Alexandar were working at Kmart.  They had been contacted by a girl, known as Merkan Kasinsky, and she repeatedly rang them and seems to have invited them down to the Shepparton lake, or they were going there anyway, or something along those lines.

12In any event, when you arrived at the lake - this is in Shepparton, Lake Victoria you stood outside their car, and had a cigarette.  And soon after they got there, they saw Ms Kasinsky approaching them.  She was staggering and unsteady on her feet.  She said that she had taken two MDMA tablets and two Xanax.  She walked onto the platform at the end of the jetty and sat down on it.  The two victims followed her out onto the platform.  She complained about being dizzy.  The two victims asked her whether they could take her to her home.  She was asked if she could get up, and she told them to wait for a couple of minutes.

13They then noticed five males approach from the direction where she had come from.  One of those males was you, Mr Patrice.  She stood up and walked over towards the vehicle of the victims, and all of a sudden, she was not staggering, but was walking in a straight line.  Mr Ibrahami went to leave, and the group that you were in surrounded him whilst he was on the footpath.  He saw, one of the group had a sword in one hand and a pistol in the other.  There was a second male who appeared to have a metal bat.

14The male holding the sword and gun threatened to shoot and to cut him unless he gave him the keys to the car.  Mr Ibrahami told that person to relax, and one of the males began to beat him with a metal bat.  One of the males held him by the collar.  Another was punching him.  The male with the bat was yelling for him to give her the keys to the car.  From this assault, he had a swollen eye and bruising to his face and arms.

15Two of the five left him to confront the other victim.  One of the males approached that other victim, aiming a gun, aimed the gun at his head from about a metre away, and made demands for his telephone and the contents of his pockets.  He said he did not have a telephone and ran away.

16The two males chased, that is, one with a gun and one with a sword.  They caught up with him, struck him in the back of the head with the flat side of the sword, and he was also struck twice with the gun.  He sustained bruising to his head.  The male with the gun then said, 'Do you want to get shot?' and made demands for the car and Mr Alexandar's telephone.  He said that he did not have his phone, and he was patted down.

17In this situation, of course, the Crown do not, or cannot, specifically allege that you had a specific role, other than some findings I will make in a moment, or that you in fact were one of the ones with a weapon.  However, the fact of the matter is that in this particular situation, it is clear to me, for reasons I will outline in a moment, that there was a significant amount of forethought that went into this offending.  You must have been aware of the weaponry.  You must have been aware what was to take place.  And it is a situation where, whilst they do not allege a specific aspect of complicity, it is my view that overall, here, it does not matter much.  You could see what was going on, and you remained there.

18You have given explanations that it all happened so suddenly, and you did not know what was going to go on.  I reject those totally as explanations of what occurred.

19In any event, the couple of you, at least, drove off in their vehicle, which, of course, is then the carjacking.  There was then a police pursuit, all the way to Melbourne.  You, Mr Patrice and two co-offenders were located nearby.  One had a black imitation firearm in his possession, and he was also seen to be throwing a samurai sword away.

20On arrest, you were taken to the police station and interviewed.  You denied having been in Shepparton at all and said that it was going to be your birthday.  Police then made other investigations, and in these particular circumstances, it appears pretty clear that in the 10 hours between midday and the time of the offending, you yourself had had phone contact with 'the bait', if I can put it that way, on no less than 15 occasions.  There has been some explanation put forward that she owed you money, or you were going to go to a party, or something.  I do not accept that.  I think it is all part and parcel of the pre-planning that went into this.

21I do not need to go through the balance of the forensic evidence.  There was a preliminary result that linked your DNA to the gun and the sword, though on full examination you were just simply 'not excluded'.

22Speaking to your psychologist, at least, you seemed to be pretty sure that your fingerprints would have been on the samurai sword, but again, I take that no further.  I cannot sentence you for having those weapons in your hand.  But at the same time, I think, in this overall situation, it really does not matter.

23You have now been on remand for some 518 days.  The circumstances are that you do have a criminal history of relevance.  You have done a short sentence in adult custody previously, though, reading the reports, it seems that they may well have transferred you to Youth Justice at some stage during it.

24This offending, as I have indicated, happened on 6 April 2020.  There were a number of matters put on your behalf, and I think that it is important, in this situation, that I point out the circumstances of your prior offending.  I am not going to go into any detail about which was each, or anything along those lines; just simply the nature of it.

25On 29 July the previous year, you were involved in an assault on a male at the Sunbury railway station, who was struggling to wheel a suitcase, and you walked directly up to him, forcing him off the footpath, and you assaulted him by punching him in the face three or four times, causing injury to his face.  The circumstances of that were such, as I understand it, one of your younger brothers was present.

26On 17 November, a victim was waiting at a bus stop in Sunshine.  You approached him with another one of your younger brothers, and there was a robbery took place.  His phone was demanded, to which he responded, 'No, please, don't take my phone,' and then the four of you basically belted him and took his phone.  This was viewed by an eyewitness.  I accept that the victim in that was extremely distressed and terrified of both you and your co-accused.

27Insofar as the matter that you were on bail for, which gives rise to one of the summary matters of offend on bail, it was put to me that you were on bail for shoplifting.  It was a pretty strong form of shoplifting.  In September of 2019, you, with eight co-offenders, had gone into the CBD, had gone to a Puma store in Melbourne Central Shopping Centre as a group.  You stole over $2,000 worth from them.  You all then attended the liquor store and stole another $783 worth of alcohol.  And shortly after that, you all then attended a Kathmandu store in Fitzroy, and stole clothing valued at around about $1,500.  It might be described as shoplifting, but it is a pretty serious example of it.

28In any event, you were remanded in custody, and you did undergo a sentence, and were released.  Within a couple of months, this offending took place.

29Insofar as premeditation is concerned, as I pointed out, there were weapons, which I have no doubt you knew all about; the way that, after the matter was over, the vehicle was driven away; you have got all the telephone calls to, as I say, Ms Kecic; and I just do not accept your explanations as to how it came about.

30It seems to me that that premeditation excludes any real inability to foresee what was going to occur, as is pointed out, or attempted to be pointed out, in a psychological report passed on your behalf from a Mr Staios.  It seems to me this has clearly been thought out.  You went to Shepparton; it is clear that it was for this purpose, and you carried it out.  That was done some months only after all these other matters for which you had been arrested, bailed, gaoled, and all sorts of things.  I do not see a causal link between that.

31Obviously, as I will point out, your background is very, very unfortunate.  You will be getting the benefit of having such a disadvantaged background.  And indeed, as I have said, I find mandatory sentencing an anathema.  But the fact of the matter is that I sentence on what you have been convicted of.

32I would also point out, there is no charge of attempted armed robbery; that just simply goes as to the overall context of it.

33It just shows that you were on a very downward spiral in terms of unprovoked violence on totally innocent people, and the time in custody obviously had no effect upon you.

34I have read the victim impact statement, which clearly outlines the ongoing difficulties that this has caused for your victim.  And those ongoing difficulties are both psychological and financial.  And I am sure that what he described as having happened to him, and his current state of mind, is true.  He also - and I have enormous sympathy for him with this, having spent so much time working in Koori Court - that he now finds himself almost embarrassed that he now judges people by what appears as their race, and feels very uncomfortable with doing that.  I understand that occurs, and it is all very unfortunate.

35Young fellows such as yourself should realise that when you launch attacks like this on people, you are not only putting yourself at risk, but you make every Sudanese person in Melbourne suspect. It is a dreadful situation, but that is just one of the factors of it.

36The offending is serious, calls for the application of general and specific deterrence, denunciation, and appropriate punishment.  In your situation, the way you were travelling at the time, it also clearly calls for community protection.  Bearing in mind that you have now been on remand for so long, gaol is the only option that is open.

37Two co-accused pleaded guilty at an early time, and both received Youth Justice Centre orders, for various reasons, but their Youth Justice Centre orders were over three years.  Their 6AAAs, if they had pleaded not guilty, were four years and three months.  Parity is of some significance here, but not binding, so all I can really do is take it into account, bearing in mind that you do not have the opportunity for Youth Justice.  But again, I am constricted by the actual legislation.

38I have a Forensicare report obtained upon you, and it is of interest.  When you were interviewed, you had obviously had difficulty expressing; aspects of your behaviour, you said, you had difficulty recalling.  The interviewer formed the view that there was an aspect of minimisation, avoidance, social withdrawal, and limited insight in the disclosures, and goes on from there.

39You described, as your mother did later, how, being born in Cairo, you were of Sudanese background.  You came out to Australia, and at that stage, you had obviously had the experience of gun violence at the time, and you believe that your family were directly impacted by the war.  You understand it, and this seems pretty clear, but that is why the family came from Egypt to Australia.

40Your family immigrated to Melbourne, and your parents had four more children.  And you have said that you tended to be shy and quiet.  You described your mother as 'all right' and 'a good mum'.  You similarly said that your father was 'all right, and looked after us, too,' even though that does not seem to fit in with what your mother had to say.

41You completed school up until Grade 4, and it is clear that you had at least a form of learning disability.  One of the reports that I was given says it is a language difficulty; another said that it is intellectual difficulty.  But, as I say, I have made my ruling on that.  And when you did get to school, you had difficulty concentrating.  You had teaching aides, it would appear.

42And it is around about that time that, you said, you started associating with 'bad crowds', started smoking weed, and did not like school, became involved in a lot of physical fights, and talked about being suspended a couple of times, and your parents were unhappy when you ultimately left school.  You then endeavoured to commence a TAFE course, until you were remanded and unable to continue following that.  You do have poor literacy; I accept that.  And you basically would appear to have done very little work, other than some casual employment.

43When you were interviewed by Forensicare people, you said that you had commenced consuming alcohol at 17.  You said, you usually drink a whole bottle of spirits, that is, vodka, to yourself, and when you were asked if you would become intoxicated, responded, 'No, just violence.'  You admitted, those incidents of violence whilst intoxicated would occur regularly, with just random people that you see or run into.

44You associated with a group of 25 or so young men from everywhere, who just looked after each other.  You agreed with the description of a gang.  The earlier prior history I have described tends to very much support that.

45I accept that you have been an abuser of, certainly, prescription drugs.  You have also used ecstasy, and have, on the face of it, at least binge-drunk with alcohol.

46Very little assistance was obtained when you previously had a CCO.  You have stated that you had never previously seen a mental health professional, which is a bit concerning.  And you basically told them you did not want to engage in any programs in prison.

47It is clear from what your counsel pointed out to me that, in fact, you have already spent three months 'in the slot' in adult prison, after an argument with a prison staff member.  You apparently do not get along with or talk to staff, and you just basically do nothing much in gaol except watch TV, it would seem.  Your visions of your future are very limited.

48I have taken into account the material in relation to your psychological background and your upbringing.  You were clearly a witness to much violence in Egypt; also violence from your father toward your mother; and it would not have done you much good at all, I can assume.  So you therefore get a benefit, in a Bugmy sense, for that type of background, but, as is pointed out in Bugmy itself, there comes a time when community protection has to play a significant part in the sentencing process.

49Forensicare then spoke to various other people, people from Youth Justice and the like, and it is clear that you do have a learning difficulty.  It is clear that you are at the lower end of intellectual capacity.  You do not, in my view, fit the criteria for a formal intellectual disability, but nevertheless I do give you credit for that.  I do not need to go through this again.  I think your description to the Forensicare people about the circumstances of this offending is just simply untrue, and I take that no further.  They describe you as a high risk of reoffending, and I think that is very much the case.

50They have cut your client off, Mr Kozlowski.

51MR KOZLOWSKI:  Yes, I can see that, Your Honour.

52HIS HONOUR:  Yes.  I will continue.  That is the first time they have done that to me, actually.  Just give us two seconds; we are trying to get an extension.  I will keep going, and then let you talk to him.  I think his mother is listening, and I think she is, is she?  No, she ‑ ‑ ‑

53MR KOZLOWSKI:  I do not think so, but my instructor is, and we will, obviously, speak to him.

54HIS HONOUR:  No, I realise that.  I just do not want to have everybody brought back again.  We are trying to get a 15‑minute extension.

55MR KOZLOWSKI:  Thank you, Your Honour.

56HIS HONOUR:  All right.  For the purpose of the transcript, they are unable to extend it, so I will just continue.  We have probably only got five minutes to go, so that is unfortunate.  But I think it would have become pretty clear to him the other day what the end result was.  But I will finish these remarks formally, whilst everybody else is present.  And, obviously, these sentencing remarks will be revised, and can be forwarded to him, if there be a need.  In any event, I will continue.

57Forensicare also had concerns about your peer affiliation, in the context of gangs, and your capacity to, apparently, gravitate toward peers whom you know engage in violence and weapon-carrying, and they query your degree of antisociality.  So I take all those matters into account.

58I then take into account what was put on behalf of you by your counsel.  You do have, as I say, a very unfortunate background.  You do have a supportive mother, who would want you to be at home.  The family home apparently burnt down just recently.  But at the same time, when I hear that submission, I then see that two of your co-accused in matters of gratuitous violence on an innocent person were both two of your brothers.  It gives one little faith in the overall set of circumstances.

59I have also read the report that was put on your behalf by a Mr Mathew Staios, a clinical neuropsychologist, and I take those matters into account.  He puts you at a lower level of intellectual disability, if I may use that expression, than the earlier reports, of, he says, an intellectual development disorder.  He also agreed that the risk of recidivism was in the high range at this point in time.

60He went on to say, and I will deal with this specifically:

'His borderline extremely low level of intellect has, in my opinion, impacted on his ability to exercise consequential thinking, and are most certainly a factor related to his current offending that impact on his moral culpability.  In incidents where he is acutely intoxicated, his intellectual abilities are highly likely to be further limited, which will further compromise overall cognitive skills.  Those issues, in combination with a rigid thinking style, are likely to result in a reduced ability to monitor his actions and respond appropriately, rely upon consequential or alternative thinking skills, and effectively monitor his behaviours without support.'

61It is my view, in this situation, whilst I am, as I say, applying Bugmy to a certain extent, that the level of pre-planning that went into all this, the offending that had been taking place previously, the previous interactions with the police, all indicate to me that this was no spontaneous, 'just happened to be there' type of offending, and I must sentence on that basis.

62Rehabilitation is up to you, Mr Patrice.  The risk of you reoffending, as it stands at the moment, is high, but unfortunately, there is not much that can be done about it.

63I take into account, as best I can, the fact that you have undergone this 518 days largely in a COVID environment.  The inability to receive visits, the difficulty in doing courses, and the fear of contagion within the gaol:  I take those matters into account.  I also take them into account in respect of your plea of guilty, which, as pointed out in the recent decision of Worboyes, is to be given real significance in the sentencing process.

64So, without going off on a tangent, a lot of those factors seem to be negated by this mandatory minimum, but, unfortunately, as I have said, that is what I have to deal with.

65Accordingly, I sentence you as follows:  on the summary matters, 14 days on each, concurrent; on the carjacking, sentence of imprisonment for a period of three and a half years, with a minimum term of three years.  I direct that 518 days be reckoned as having been served under this sentence.  And, to indicate the frustration in this, pursuant to s6AAA, I say that but for your plea of guilty, I would have sentenced you to be imprisoned for a period of five years, with a minimum term of three, as well.

66So that is the way it is.  All right.  Are there any other orders I need to make, gentlemen?

67MR CORDY:  Just whether Your Honour makes an order under s89 in relation to his licence, as a carjacking offence.

68HIS HONOUR:  Is it mandatory?

69MR CORDY:  I believe cancellation will be mandatory, but the penalty will be in Your Honour's discretion.

70HIS HONOUR:  I have got a feeling it might be ‑ ‑ ‑

71MR CORDY:  Might be two years, Your Honour.

72HIS HONOUR:  I think I got a feeling it is a mandatory two years.  Do you know, Mr Kozlowski?

73MR KOZLOWSKI:  I do not know, Your Honour.  I am a bit taken by surprise here.

74HIS HONOUR:  No, I have had to deal with this before.  Yes, I cannot backdate it, either, I do not think.  I have been through this before.

75MR CORDY:  No, I do not think Your Honour can.

76HIS HONOUR:  Look, what I will do, working on the basis that it is a mandatory two years, I will say, at this point in time, that the licence to drive a motor vehicle is cancelled; disqualified for two years.

77If one of your instructors, perhaps, could check that for me, very quickly, and let my associate know.  If it is not two years, and it is discretionary, I will make it one year.

78MR CORDY:  As Your Honour pleases.

79HIS HONOUR:  Do you follow that, Mr Kozlowski?

80MR KOZLOWSKI:  Yes, I do, Your Honour.

81HIS HONOUR:  I just will not sign that - I will need to sign - because he is on remand, I will need to sign the order today.  But if someone can let me know pretty quickly.  I do not want to have to bring it back under 104A and change it; that is all.

82MR CORDY:  Yes.  Yes, I will have my instructor check ‑ ‑ ‑

83HIS HONOUR:  No, I appreciate that, Mr Cordy.  Thank you for that.  Yes, okay.  Nothing else I need to make an order about, gents?

84COUNSEL:  No, Your Honour.

85HIS HONOUR:  Yes, thanks, Mr Cordy.  Thanks, Mr Kozlowski.

86MR KOZLOWSKI:  Thank you, Your Honour.

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