Director of Public Prosecutions v Pokhout

[2020] VCC 1355

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00726

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN POKHOUT

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JUDGE:	HIS HONOUR JUDGE MEREDITH
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2020
DATE OF SENTENCE:	27 August 2020
CASE MAY BE CITED AS:	DPP v Pokhout
MEDIUM NEUTRAL CITATION:	[2020] VCC 1355

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Edwards	Office of Public Prosecutions
For the Accused	Ms C. Blakeney	Greg Thomas

HIS HONOUR:

1Kevin Pokhout, you have pleaded guilty to one charge of attempted armed robbery.  This offence has a maximum penalty of 20 years' imprisonment.  The prosecution tendered a summary of the circumstances of your offending and this was not the subject of dispute. This summary will remain on the court file and having regard to that, for the purposes of these reasons, a less detailed summary follows. 

2On the day in question, namely 25 February 2020, you attended a convenience store in North Melbourne.  Approximately an hour before, you had been at the store with one of your co-offenders, the 14 year old Mr Simonis[1]. Simonis had attempted to steal a bottle of alcohol, however the owner of the shop, Mr Bai, had intervened.  The incident escalated and Simonis picked up a full can of beer and threw it at a customer who was making a phone call, presumably to the police, before he fled with you, Mr Pokhout. 

[1] A pseudonym

3Your offending occurred as I have said, approximately an hour later when you along with Simonis and another youth, Mr Bashirian[2], who was 17 years of age, attended the shop.  You, Mr Pokhout, along with Bashirian, had partially concealed your faces by pulling hoodies over your heads.  Simonis had partially concealed his face by the same method and also putting a neck warmer up over this nose.  Simonis was carrying a long metal pole. 

[2] A pseudonym

4Shortly after entering the shop, two of your number were shouting, 'Money, cigarettes.'  Simonis walked to the counter area where Mr Bai and his assistant were, and Simonis began striking Mr Bai with the pole.  Mr Bai picked up a stick to defend himself, when you Mr Pokhout, walked around to the rear of the shop counter trying to steal some cigarettes.  Mr Bai struck you with his stick.  This saw the packets of cigarettes fall to the ground.  You, Mr Pokhout, and Bashirian, then left the shop.  An altercation however continued between Mr Bai and Simonis, effectively with Mr Bai keeping him at bay until the police arrived.  I should say that Simonis looks a lot older on the CCTV footage, than 14. 

5Also tendered on the plea is CCTV footage of the offending, and this provides a far more compelling and dramatic account of the offending.  The summary which I have just read does not properly record the extent of violence which was employed by Simonis in wielding the stick, as well as other actions that took place during the attempted armed robbery. 

6You were arrested on 1 March 2020, and this was in regard to other offending.  As part of that process, you were interviewed in regard to this matter.  During the interview, you made partial admissions indicating that you had entered the shop in question, that another had made the demand and was armed with a pole, that no property was obtained, as well as the fact that you entered only intending to buy a drink and you said you were shocked when another party made the demands in question. 

7No victim impact statement was received during the hearing.  Notwithstanding this, it is obvious from viewing the CCTV footage that this offending was a violent and frightening experience for Mr Bai and his assistant. 

8So far as your personal circumstances are concerned, you are just 20 years of age and were 19 at the time of your offending.  You have one prior conviction where you received a sentence of 52 days imprisonment and then a community correction order in late November of 2019 at the Melbourne Magistrates' Court.  This was for offences of failing to answer bail and committing an offence whilst on bail as well as robbery, theft from shop and an affray. 

9The period of 52 days imprisonment was effectively the time which you had served in custody on remand referrable to these offences.  This offending has similarities to that before me, in the sense that it involved you in company with others. 

10The offending before me occurred during the currency of the community correction order which you received in late November of 2019.  Provided to me was the breach report in regard to that community correction order and it is apparent that you had quickly disengaged from the Office of Corrections after your release from custody in late November. 

11In the lead-up to receiving this community corrections order, I note that you were released on supervised bail on 10 July 2019 and that you had disengaged from this by mid-August. 

12You received a community corrections order which the offending before me breaches in late November of 2019 and within three weeks your participation in this became lacking.  You were in a situation of social drift and were abusing alcohol and drugs.

13In light of this history, I have some concerns about your preparedness to commit to rehabilitating yourself.  You also have other matters outstanding.  These involve two alleged separate occasions of offending; the first being an alleged carjacking and the other, a robbery-in-company.  You have not made admissions in relation to either of these sets of offending, and as yet, they amount to unproven allegations. 

14In light of this, I will not have regard to them in my sentencing of you for the offence before me.  It is to your credit that you have pleaded guilty to the matter before me.  The defence submitted, and the prosecution agreed, that your plea of guilty was entered at an early time.  It follows that the community has been saved the considerable cost and time of a trial of these matters.  I also accept that your plea of guilty exhibits some remorse on your part.  Your plea of guilty has an added value in light of the fact that due to the COVID-19 pandemic, jury trials are currently suspended indefinitely in this state.  In light of these factors you are entitled to, and will receive an appropriate discount of the sentence I will impose on you. 

15Returning to your background, much of it is summarised in the psychological report of Ms Gina Cidoni which was tendered on the hearing.  You were born in Melbourne and raised in the Cranbourne area.  Your parents are both Cambodian and they came to Australia prior to your birth.  Your parents separated when you were very young and you have had no contact with your father.  Your mother re-partnered and you have three brothers and one sister from this union.  You did not have a good relationship with your stepfather as you perceived you were treated differently to the other children.  You regard yourself as the black-sheep of the family and you report that you were subject to physical abuse by your stepfather and mother which involved you being beaten or disciplined with utensils, including brooms at times, as well as being punched. 

16Initially you left the family home at around the age of 15 because of what you regard as the intolerable situation.  You were in a position of social drift and at a later stage formed a relationship which saw the birth of your daughter.  That child is now approximately one, however the relationship did not last and I was told you have never met your child.  You dropped out of secondary school at Year 9 level and have never had paid employment. 

17You commenced drinking alcohol at around the age of 15 and have reported a history of heavy episodic binge drinking.  You commenced cannabis usage at around the age of 16 and have dabbled in other drugs as well.

18Ms Cidoni's assessment of you indicates that you lack insight, are socially naïve, immature and possess a low self-control.  She describes you as impressionable and rash.  You report feelings of loneliness and pessimism.  Ms Cidoni states that your personality function, “was indicative of Dysthymia, a persistent depression, and he struggles with his family abandonment and feelings of belongingness. Underlying this is maladjustment in response to his traumatic experiences while growing up, that had encouraged the substance abuse.  This fits a diagnosis of Adjustment Disorder”.  She further states,

'In view of the young age and history, the concern in relation to his presentation is that continued imprisonment will result in major depression and his time in custody is more onerous as a result of his symptoms.' 

19Relying upon this, your counsel submitted that limbs 5 and 6 of Verdins case are engaged.  See R v Verdins and Buckley and Vo, [2007] 16 VR 269.

20In Verdins case, the Court of Appeal set out a series of principles which must be considered in formulating an appropriate sentence when an offender presents with impaired mental functioning. 

21In your case, the potentially relevant Verdins principles include considerations as to whether limb 5, the existence of the condition at the date of sentencing, or its foreseeable recurrence may mean that a given sentence will weigh more heavily on an offender than on a person in normal health; and limb 6, when there is a serious risk of imprisonment having a significant adverse effect on an offender's mental health will be factor tending to mitigate punishment. 

22In your case, I am not satisfied that either limbs 5 or 6 apply in your case.  Regarding limb 5, at paragraph 50 of her report, Ms Cidoni states:

'Symptoms including feeling disconnected, irritable, having unpredictable behaviours, disorganisation, no motivation, despondency, low mood and hypervigilance, his ability to think or concentrate, make decisions or cope with stressors is diminished.'

23Other than stating the existence of these factors, Ms Cidoni does not elaborate as to their severity, nor how it is that they would operate to make your period in custody more burdensome.  Nor is there any endeavour to reconcile what Ms Cidoni refers to as your immaturity, with potentially other personality traits which fall short of a mental impairment and thus cannot engage the Verdins principles.  Regarding limb 6, in her report, Ms Cidoni states the following:

'In view of the young age and history, the concern in relation to his presentation is that continued imprisonment will result in major depression and his time in custody is more onerous as a result of his symptoms.' 

24As I understand Ms Cidoni, she puts it no higher than a concern that continued imprisonment will result in a major depression.  In light of this, I am not satisfied of an appropriate evidentiary basis for the operation of limbs 5 and 6 in your case.  For limbs 5 and 6 to be engaged, there must be proper and informed consideration of the nature and operation of a mental impairment and its inter-relationship with adding to the burden of your confinement and also whether there is a serious risk of confinement having a significant adverse effect on your mental health. 

25I do accept that detention is more difficult, in light of the restrictions imposed on you as a result of the COVID-19 pandemic.  Access to courses and visits are restricted and concerns heightened as a result of the illness. 

26So far as the offence of attempted armed robbery is concerned, the seriousness with which is it regarded, is demonstrated by it having the high maximum penalty of 20 years' imprisonment.  Here, whilst your offending may have been unsophisticated, there was a resort to actual violence.  Your offending took place in company and occurred on what is colloquially referred to as, 'a soft target.' 

27Apparently you involved yourself in this after having spent a period of time at the beach drinking alcohol, smoking cannabis and abusing the prescription drug, Xanax.  Your motivation was apparently to obtain more alcohol.  In these circumstances, your disinhibition as a result of the various substances which you had been abusing is not mitigatory.  While you did not arm yourself or use the pole in question, you were nonetheless complicit with the offender who did. 

28Notwithstanding this, however, I am of the view that it is appropriate to distinguish your role from that of Simonis' who was wielding the pole and in that sense, you are less culpable than he is.

29So far as your two co-offenders are concerned, they were both dealt with in the Children's Court, and Simonis received a six month youth supervision order without conviction.  Bashirian received a 12 months youth supervision order without conviction. 

30I will have appropriate regard to the outcome in each of their cases, however I note that your co-offenders were sentenced under a very different sentencing regime to the one which applies for you.  I am sentencing you under the adult regime, and significantly in the Children's Court, general deterrence is not a relevant sentencing objective.  In the adult jurisdiction for offending such as this, general deterrence is a relevant sentencing aim. 

31Your young age is of course a significant factor, and whilst it must be acknowledged that in serious offending, consideration of an offender's youth will have to surrender ground to other sentencing consideration, the fact of the matter is that young people are not fully developed.  They are prone to act without regard to the consequences of their actions, they are more impulsive and for a range of reasons therefore generally regarded as less culpable than adults.

32Generally, they are considered to be more amenable to change for the better.  The flip side of this is that generally they are considered susceptible to a process of corruption occurring in an adult prison.  Emotional maturity and impulse control would usually be expected to develop progressively during adolescence and early adulthood.  A person may not be fully developed until their early to mid-20s. 

33Having regard to your limited prior history, and your still-young age, I did adjourn the further hearing of your matter, to have you assessed for your suitability for detention in a Youth Justice Centre, as opposed to continued detention in the adult system.

34The court cannot impose a youth justice centre order without calling for an assessment and then being satisfied of one of the grounds set out in s.32(1)(a) or (b) of the Sentencing Act.  That is, either the existence of rehabilitative prospects or impressionability, to use the shorthand, as well as the offender being under the age of 21 at the time of sentencing. 

35You are assessed as being suitable for such an order on the basis that you are impressionable.  This is not the end of the story however, as I must be satisfied that it is appropriate in all of the circumstances.  As I read the report, your suitability was not without some hesitation in light of your history of a lack of engagement with youth justice and community corrections.  Amongst other things, the authors of your report state, in respect of the first criteria:

'Mr Pokhout's suitability for having reasonable prospects for rehabilitation may be questionable, given he is now 20 years old and despite being offered, or under the statutory supervision direction and support, his commitment has been limited towards his rehabilitation.  Perhaps this is indicative of his level of maturity in appreciating the seriousness of his predicaments and the impact of his choices, prioritising a lifestyle of recreational wants, spending time with friends and substance use, arguably mirroring mid-teen responses in problem solving.  Similarly Mr Pokhout's problem solving skills and attitude around getting remanded in order to learn and get his life on track are consistent with a level of immaturity compounded by his headstrongness in expelling family support.  The writer assesses that Mr Pokhout has limited insight into what would be required to achieve his rehabilitation and will require intense support to achieve his intended goals.  However, it is acknowledged that Mr Pokhout has a limited criminal history, he has taken responsibility for his offending, identified factors that have contributed to his offending and reports willingness to address these issues and reports pro-social goals.' 

36In respect to the second criteria:

'It is assessed that Mr Pokhout does meet the criteria in respect to impressionability, immaturity and is likely to be subjected to undesirable influences in an adult prison relying on the aforementioned factors together with the concerning comments noted in the body of the report about Mr Pokhout adapting to the adult penal system.  Furthermore, Mr Pokhout appears to have a predilection toward anti-social peers at times who are considerably younger than him, which again suggests a level of immaturity and raise the concern around being vulnerable to be impressionable by other more sophisticated adult prisoners.  The writer notes that these factors are also evident and supported in Ms Cidoni's psychological assessment.'

37Mr Pokhout, you need to understand that if you continue offending, the sentences which you will receive are likely to be higher and you may end up spending a large percentage of your 20s in prison.  Now is the time for you to make some changes and change the path that you are travelling down. 

38I will impose a Youth Justice Centre sentence in the hope that you can benefit from what rehabilitative programs are or may become available in light of your still-young age. 

39On Charge 1, I will sentence you to detention in a Youth Justice Centre for a period of 16 months. 

40I will declare what I understand to be 178 days served by way of pre-sentence detention, subject to anything counsel want to say about the accuracy of that date.  No, it seems everyone is agreed. 

41MS BLAKENEY:  Yes, Your Honour.

42HIS HONOUR:  I am required to state the sentence that I would have imposed, but for your plea of guilty.  Had you not pleaded guilty, I would not have considered sending you to a Youth Justice Centre and whilst it is artificial trying to pluck one matter out in isolation and ascribe a value to it, and far removed from sentencing in practice, but for your plea of guilty I would have sentenced you to two years' gaol and fixed a non-parole period of one year. 

43I want you to understand that you have had a clear and transparent discount in your sentence as a result of your plea of guilty.  Are there any further orders required?

44MS EDWARDS:  No, Your Honour.

45MS BLAKENEY:  No, Your Honour.

46HIS HONOUR:  All right.  I want to thank Youth Justice for the efforts that have gone into preparing the report and the relatively speaking quick turnaround in light of the current situation.  If there is nothing further then, I will close the link, and Mr Pokhout, make the most of it.  Do not come back before the County Court again.  All right. 

47COUNSEL:  Thank Your Honour. 

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