Director of Public Prosecutions v Raux
[2022] VCC 2261
•14 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01257
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMIAN RAUX |
---
JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 December 2022 | |
DATE OF SENTENCE: | 14 December 2022 | |
CASE MAY BE CITED AS: | DPP v Raux | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2261 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence; Plea of guilty; Aggravated carjacking; Theft; Attempted Aggravated Carjacking; Young offender; Intellectual disability; Autism Spectrum Disorder; High Risk of Institutionalisation; Rehabilitation
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] 249 CLR 571
Sentence: 2 Years Imprisonment and a Community Corrections Order for a Period of 2 Years
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr C. Oldham | Bowler & Co. |
HER HONOUR:
1Damian Raux, you have pleaded guilty on indictment M10196736 to two charges of aggravated carjacking, one charge of theft and one charge of attempted aggravated carjacking. You consented to related summary charge 10 being dealt with and pleaded guilty to a charge of aggravated unlawful assault.
Circumstances of offending
2The prosecution opening was tendered on the plea and marked as Exhibit 1. I do not propose to recite that document in full. What follows is a summary of your offending.
3
In the early hours of 10 January 2021, the first victim of your offending,
Mr Ruhallah Nabizada, was driving home in his white Toyota Corolla
(registration INH8RE). He stopped at traffic lights in Hallam, at the intersection of Princes Highway and Wedgewood Road. Whilst he was stopped, you approached his car, opened the driver side door, and held a 30-centimetre long hunting knife against his throat and instructed him 'if you don't get out, I will kill you'. You then dragged him out of his car and punched him to the head several times.
Janet Solofuti, 'your co-offender' had been acting as a lookout, hidden in bushes nearby. She came out from her position and said something like 'let's go to Officer'.
4After Mr Nabizada had been punched, he fell to the ground, he lay with his eyes closed, finding it difficult to see. You and your co-offender stole his wallet, containing eleven personal cards, some of which were bank cards, $540 in cash and a gold iPhone X. You both then left in the victim's vehicle. This conduct is the subject of Charges 1 and 2, that is aggravated carjacking and theft. Your first victim was helped by passers‑by who took him to the Pakenham police station.
5In the following days, you and your co-offender continued to drive the stolen vehicle, and were seen visiting a McDonald's in Officer, travelling through Grisham Drive and departing the vehicle. Forensic testing located fingerprints and palm prints from the vehicle that matched both you and your co‑offender. The Find My iPhone app on the first victim's phone indicated that his mobile phone was in the vicinity of the home you shared with your co‑offender.
6
On 11 January 2021, your co-offender began communicating with your second victim, Mr Faieq, by way of Instagram. She used the fake name 'Yanika' and made plans with the second victim to meet in the coming days. Five days later, on
16 January, your co-offender met with the second victim at his home. Mr Faieq and your co-offender then drove in his silver Toyota Camry (registration 1PK5MS) to a BP service station to purchase a lighter and cigarettes. Once there, Mr Faieq got out of the car and bought these items for your co-offender. When he got back in the car, Ms Solofuti informed Mr Faieq that her cousin was at a nearby bus stop and had just had an argument with his girlfriend. Mr Faieq agreed to pick up the 'cousin' and drove to the bus stop at Tristania Street in Doveton.
7At the bus stop, you entered the car and sat in the rear passenger seat behind your co-offender. She asked Mr Faieq to drive you both to the Dandenong railway station. During the drive, you produced a knife, held it to the neck of your second victim, and demanded that he 'stop the car or I will kill you'. Mr Faieq stopped the car on Kidds Road in Doveton and got out. You also got out of the car still holding the knife and walked towards him. He ran away. Your co-offender got into the driver's seat of the vehicle, and you entered the passenger seat and your co-offender drove away. Mr Faieq attempted to hold on to the driver's side door, as a result he fell to the ground. This conduct gives rise to Charge 3, aggravated carjacking.
8Mr Faieq was helped by a member of the public who contacted Victoria Police. Later that morning, police located the stolen car in Lawson Way, Endeavour Hills. It had been extensively damaged.
9On 13 January 2021, your co-offender received a friend request on Facebook from Mr Hussain Shah, he was the third victim of your offending. Your co-offender and Mr Shah began messaging on Facebook and made plans to meet on 23 January 2021. The meeting between Mr Shah and your co-offender did not occur until 2 am on 24 January 2021.
10Mr Shah drove his car, a black BMW (registration YTA753), and parked in a common driveway between Arlington and Clairwood Avenues in Pakenham, near Ascot Park. Your co-offender met Mr Shah there and they spoke for a short time at the park. Mr Shah then departed but returned shortly after. When he arrived, your co-offender was on the phone and told Mr Shah she was talking to her cousin. Ms Solofuti then entered the car and Mr Shah began driving to a hotel. She asked that he return you to Ascot Park and he did. Once more, after his departure, your co-offender asked that he return again, and he did so.
11Your co-offender entered the car and asked if Mr Shah had any drugs with him. When he told her that he did not, she produced a knife, 10 to 15 centimetres in length, and pointed it at the victim, demanding that he give her his car keys. You confronted Mr Shah when he stepped out of his car. You called Mr Shah a paedophile. Both you and your co-offender pushed Mr Shah. He did not surrender his vehicle. Mr Shah thinks he was stabbed by your co-offender at this point – the prosecution concede that you are not responsible for the stabbing of Mr Shah, and you were not charged with that offending and accordingly you will not be sentenced for it
12Mr Shah began running from both of you calling for help as you pursued him. CCTV depicts your co-offender chasing him with the knife in her hand. You caught up with Mr Shah, and punched him in the head several times, causing him to fall to the ground. You put Mr Shah in a headlock. (related summary charge 10 aggravated unlawful assault). Witnesses who heard this incident called Triple 0, and heard Mr Shah yelling 'Help, they are going to kill me'. Another witness who heard Mr Shah cry for help attempted to deescalate the situation and witnessed your co-offender attempt to stab Mr Shah. Eventually both you and your co-offender stopped and left the area. This conduct gives rise to Charge 4, attempted aggravating carjacking.
13Mr Shah was assisted by witnesses until police and ambulance got to the scene. He was taken to hospital and underwent surgery for the wounds caused by your co-offender.
14Police who had attended the scene found your phone in his car and they were able to identify that it was your phone because it was registered to one of your Youth Justice workers who had given it to you in late 2019.
Arrest and procedural history
15On 29 January 2021, police attended the home you then shared with your co‑offender. You were both arrested, and a search warrant was executed. In the course of that search, the eleven personal cards belonging to Mr Nabizada were located in the spare bedroom.
16You were interviewed and made admissions to the offending in general.
Nature and gravity of offending
17The offences of aggravated carjacking and attempted aggravated carjacking are very serious offences. Not only are they punishable by a maximum of 25 years and 20 years' imprisonment respectively, but Parliament has seen fit to define aggravated carjacking as a Category 1 offence. For Category 1 offences, s5(2G) of the Sentencing Act ('the Act') provides that you must receive a term of imprisonment[1]. Further, pursuant to s10AD of the Sentencing Act[2], the Court must impose a statutory minimum non-parole period of three years for aggravated carjacking, unless a special reason exists pursuant to s10A of the Act[3].
[1]Sentencing Act 1991 (Vic) s5(2G).
[2]Ibid at s10AD.
[3]Ibid at s10A.
18The particular circumstances of your offending are a serious example of offending of this nature. You offended against three victims in total. They were left shaken and frightened. Your offending in relation to the second and third incidents was planned and your co-offender lured your victims via social media chat. Each incident occurred in public and was extremely brazen and as a whole represents a serious episode of criminal conduct. Put simply, your offending was audacious and outrageous, and must be sternly denounced by the court.
Victim impact
19Mr Faieq, who was your second victim, made a victim impact statement that was read to the court. He described that he was a refugee who fled war‑torn Afghanistan and your offending has been the worst thing that has ever happened to him. You have undermined his sense of wellbeing and he no longer feels safe driving at night as an Uber driver. He was very afraid during the offending, particularly when the knife was held to his neck. Mr Faieq's car, which was also his livelihood, was significantly damaged and required him to spend $3,000 to have it fixed.
20Despite the fact that neither your first and third victims have made a victim impact statement, it is clear that your offending would have had a significant impact.
21I take into account the impact that your offending has had upon your victims when sentencing you.
Personal circumstances
22You are now 21 years old. Your parents immigrated from Sri Lanka to Australia, and you were born and raised in the South East suburbs of Melbourne. You have an older and a younger brother, as well as an older and a younger sister. You are close to your brothers and sisters, in particular your brother Timothy and your sister Lianna. At times, you have said that your childhood and family life were positive, without violence, neglect or substance abuse within your home.
23However, this is different to DFFH departmental files that say you repeatedly experienced early and repeated exposure to violence and disrupted living situations.[4] It is also different to what you told Doctor Bonnie Albrecht. You told her that your childhood was very difficult. You said that your father was violent towards your mother, your brothers and sisters and yourself, and described times you would actively come between your parents in order to try and stop your father assaulting your mother. Because of this violence, your mother would often remove you and your brothers and sisters from the family home. This started when you were six years old. You found this very difficult and confusing. You also said that your father would prevent anyone from seeking help. These home difficulties coloured all of your childhood, and created an enduring anger within you, as well as an aggression towards both your parents and the world at large.
[4] Disability Overview Report of Shirley Hou dated, 26 October, 2022 page 2.
24During this time, you attended St Peter’s Primary School in Clayton and later attended Mazenod College in Mulgrave. You did not do well at school, this was probably because of all you had going on at home and the fact that you had an intellectual disability which meant you had trouble learning and autism which caused social problems. You did enjoy sports, and enjoyed some friendships at school. You were largely unhappy, you struggled academically, were bored, distracted by your home life, suffered bullying and had regular fights with your peers. Between 12 and 14 years of age, you experienced frequent thoughts of suicide.
25You left school early. You attempted a TAFE course, but could not cope with this and left after a short time later. You have not worked in the community, but you did have some work in the prison laundry, and I am told again that you have been working as a billet whilst you have been in custody.
26When you were only 15 years old, you were ‘kicked out’ of home, because of an argument with your father. You found this confusing, one because you were made to leave and two, because you thought no one cared that you had been kicked out. You have not had contact with your parents since that time. As a result, you were homeless, and this has pretty much stayed the same up to the time of the offending before the Court. You have spent time in a variety of different houses, and you have also spent time sleeping in parks in the Melbourne and Dandenong areas. You have in the past asked for help with housing and had support from services such as WAYSS which I understand is located in Dandenong.
27I have been told that you are now on NDIS and that you are going to help you with housing and you are prepared to accept that help. This morning, I have heard evidence from Ms Markham who works with Care Squared in relation to that and Ms Markham has provided a detailed report which I assume, Mr Oldham, you will want to tender?
28MR OLDHAM: Yes, Your Honour.
29HER HONOUR: Yes, very well. So that report will be Exhibit DR7.
30In terms of substance use, you began drinking alcohol when you were very young, and you used cannabis daily from around the time you were 16 years old. You have also had problems with ice and more recently cocaine. You were abusing these types of substances at the time you offended.
31Mr Oldham told me that you are currently single and have no dependent children. You were either in a relationship with Ms Solofuti or very good friends.
32In the past, you have been in trouble with police and have appeared in the Children’s Court and Magistrates’ Court several times. You have committed offences including theft, deception, assault, robbery, affray, possess controlled weapon and breach of bail. You have spent some time in custody both in youth detention and adult gaol. You have also been sentenced to probation and good behaviour bonds.
33You have been in adult custody now for nearly two years which is by far the longest time you have spent in prison. To some degree, you are comfortable in prison, however, you have not enjoyed the increased restrictions in prison as a result of COVID-19. Your time in custody has been spent in and out of management units which has resulted in you being locked up for extended periods of time around 23 hours a day and being extremely limited in who you can associate with. You have continued to see Ms Leigh-Smith, psychologist, in custody on numerous occasions.. I have been told that you enjoy those sessions and that you are making some progress.
Mental Health
34In 2016, psychologist Cath Hughes indicated that your level of functioning fell within the borderline intellectual disability range. In 2014, a psychological assessment also conducted by Ms Hughes found that you met the criteria for Autism Spectrum Disorder, you showed deficits in social language, impaired social interaction and restricted interests. You have also had problems with learning, intellectual functioning, impaired planning and organisation skills, limited social knowledge, limited problem solving skills, poor impulse control and a lack of appreciation of the impact of your behaviour on others. In addition, you have been described as vulnerable to social influence. Dr Albrecht also considered that you endorsed indicators of ADHD. Ms Leigh-Smith is your current treating psychologist. She has worked with you for a long time now, since September of 2020. Ms Leigh-Smith wrote two short reports and also gave evidence on your behalf. In her view, you have experienced alienation and marginalisation for most of your life, you have impaired planning and organisational skills which make it difficult for you to create structure and routine. In her view, you have a very rigid and inflexible thinking style and also you struggle to accurately interpret the intentions and behaviours of others, which results in you being vulnerable to their influence. I was told that she has concerns that you are at risk of becoming institutionalised and the longer you stay in custody, the more difficult you will find it to fit back into the community.
Category 1 and 2 offending
35
As I have previously mentioned, the charge of aggravated carjacking is a
Category 1 offence that has a statutory minimum non‑parole period. This means that s5(2G) of the Sentencing Act[5] operates and I must impose a term of imprisonment other than a combination sentence.
[5]Sentencing Act 1991 (Vic) s5(2G).
36
Pursuant to s10AD of the Act[6] I must impose a minimum non-parole period of three years, unless I am satisfied on the balance of probabilities, that a special reason exists pursuant to s10A of the Act[7]. Your counsel relied upon
10A(2)(c)(ii)[8], that is, he contended that you have impaired mental functioning that would result in you being subject to substantially and materially greater than ordinary burden or risks of imprisonment.
[6]Ibid at s10AD.
[7]Ibid at s10A.
[8]Ibid at s10A(2)(c)(ii).
37
Given the circumstances of your case and in particular the evidence from
Dr Bonnie Albrecht, who is a senior forensic psychologist with Forensicare,
Cathie Leigh-Smith, psychologist, Matthew Staios neuropsychologist and Disability Justice Coordinator Shirley Hou. I am satisfied on the balance of probabilities that pursuant to s10A(2)(c)(ii)[9], that a special reasons exists in your case. That is, I find that you have impaired mental functioning, that is, you have an intellectual disability, you meet the criteria for a diagnosis of Autism Spectrum Disorder and have other psychological vulnerabilities to such an extent, that you have been subject to substantially and materially greater than ordinary burden or risks of imprisonment. I consider that your experience of being contained in management units, the high risk of institutionalisation and the further entrenchment of antisocial and pro-criminal values exemplify this risk.
[9]Ibid.
38Having made this finding, I must go on to consider the other sentencing considerations that apply in your case.
Plea of guilty
39I accept your plea of guilty was entered at a very early stage in the proceedings. There is a significant utilitarian benefit in your plea of guilty, in that you have spared victims the need to give evidence and you have spared the court from what would have been a time-consuming trial, as such, you have facilitated the course of justice.
40Further, your counsel submitted that a plea of guilty during the pandemic should attract a more pronounced amelioration of sentence than at another time, due to the enormous backlog in cases before the courts[10]. I agree with these submissions and have given you a significant sentencing discount for your plea of guilty.
Application of Bugmy principles
[10]Worboyes v The Queen [2021] VSCA 169.
41Mr Oldham, on your behalf, submitted that the principles of Bugmy[11] applied in your case and are a significant mitigatory factor that I should take into account. In this regard, he relied upon the psychological report of Dr Bonnie Albrecht. The case of Bugmy stands for the proposition that profound childhood deprivation is directly relevant to sentencing in and of itself. This is so because it is likely that moral culpability will be reduced for someone whose early years have been marked by such disadvantage. The effects of such hardship do not diminish over time, and full weight must be given to those matters in sentencing. Bugmy principles are relevant to the court's assessment of moral culpability for the offence itself and also for the court's consideration of the weight to be given to your prior criminal history.
[11]Bugmy v The Queen [2013] 249 CLR 571
42In your case, I accept that your childhood involved significant deprivation as a result of the following factors: so your early and repeated exposure to violence at the hands of your father; disrupted living situations when your mother would repeatedly remove herself and the children from the family home for safety, only for the violence to resume upon return; and being ‘kicked out’ of home at the age of 15 thereby being left to fend for yourself in circumstances where you have an intellectual disability and autism.
43Ms Albrecht, in her report, makes the following relevant findings:
'Mr Raux experienced early and repeated exposure to violence and disrupted living situations. He struggled to understand and cope with his father’s violence, and often experienced ruminative thinking and distress related to his homelife. Early inattentiveness at school seems likely related to joint contributions of a trauma response, which interferes with one’s thinking patterns and beliefs, physiological arousal and reactivity, and emotional experience; a learning disorder; and potential neurodevelopmental disorders interfering with his attention, behavioural regulation, social interactions and understanding. The school attempted to provide support, but Mr Raux struggled to navigate the additional distress prompted by the efforts. He sought to avoid such thoughts and feelings by avoiding school, and channelling his anger towards others. Unfortunately, this precluded his cognitive and mental health needs being attended to in a consistent manner and fostered early development of violent behavioural templates, building on behavioural models of his father’s violence, and reinforced by the fiscal benefits of robbing strangers, catharsis from anger and social recognition from his older brother and later, antisocial peers.
The current offending occurred in the context of these background factors, in addition to more acute distress related to a friendship breakdown, daily poly-substance use, and a reinforcing, fun, relationship with the co-offender. He held little care for the impact of his actions on the victims and his violence use followed internal templates of its helpfulness to effect desired outcomes (i.e. cars)'.
44I accept the opinion of Dr Albrecht and consider that there is both a foundation and a nexus between your experience of significant childhood deprivation and the current offending. As a result, I find that your moral culpability should be somewhat reduced. I also consider that these same factors would have been in operation at the time of your prior matters and, therefore, put your prior convictions in context. It is still my view that there is a place for general and specific deterrence in your case although it is reduced as a result of my findings pursuant to the Bugmy principles.
Onerous conditions in custody generally and due to COVID
45I have previously mentioned your current situation in custody. Not only do I take into account the onerous conditions you have spent in custody as a result of your placement in the management unit, but I also take into account the onerous conditions in custody as a result of the COVID-19 pandemic. Quarantine, lockdowns, no visits, limited programs and an inability to distance from infection are all factors that are now regular features of the custodial experience. The effects of the pandemic for prisons are serious, ongoing and fluid. This is particularly so in light of community outbreaks of COVID-19.
Youth
46At the time of the offending you were 19 years of old. You are now 21 years of age and, as such, whilst you no longer fit the definition of a young offender within the meaning of s3(1) of the Act,[12] you are still to be dealt with as a youthful offender. In my view, although the offending before the court is very serious, it is not so serious as to entirely displace the principles that generally apply to the sentencing of young offenders. These principles include:
(a) that the youth of an offender should be a primary consideration for a sentencing court where that matter properly arises;[13]
(b) young offenders are immature, and may not fully appreciate the nature, seriousness and consequences of their criminal conduct;
(c) courts recognise the increased potential for young offenders to be rehabilitated, which is in the public interest; and
(d) incarceration can impair, rather than enhance, a young offender's prospects of rehabilitation.[14]
[12]Sentencing Act 1991 (Vic) s3(1).
[13]R v Mills [1998] 4 VR 235.
[14]Azzopardi v The Queen (2011) 35 VR 43, 34.
47Your age and circumstances at the time of your offending reduce your level of moral culpability and reduce the weight that the court must put on general deterrence.
Rehabilitation
48Mr Raux, you are still a very young person and you have supports in the community from your sister and your brother and importantly, from NDIS and the programs that they offer. Further, I consider it appropriate that you have support from Disability Justice by way of aJustice Plan..
49I note you are considered a high risk of re-offending by both Dr Albrecht and the assessing officer from Corrections. For this reason I consider it appropriate that you participate in the programs to address the difficulties that have led you to offend. I take into account that you have established a good therapeutic working relationship with Ms Leigh-Smith and also one of your outreach workers, Luke. This gives me hope that you will be able to make some positive changes in the future.
50In the circumstances, I find that you have positive prospects for rehabilitation, provided you are given and utilise the supports, counselling and supervision you require in the community. So it is up to you.
Sentencing
51I consider the relevant sentencing principles that must be applied in your case are general and specific deterrence, albeit moderated to a degree, denunciation, protection of the community and just punishment. I must also be mindful of the principles of parsimony and proportionality. I am of the view that community protection in your case can best be achieved by your rehabilitation. Mr Raux, I can indicate, but for your age, plea of guilty, and the significant matters in mitigation, I would have imposed a substantially longer period of imprisonment, involving a head sentence and non-parole period.
52
I have taken into account the sentencing guidelines referred to in s5 of the
Sentencing Act[15]where relevant to your case. I have also taken into account, as far as possible, the current sentencing practices for the offences, particularly the charge of aggravated carjacking, to which you have pleaded guilty.
53In fixing the overall and individual sentences, including the orders for cumulation that I will announce shortly, I have had regard to the principle of totality and considered the entirety of the criminality involved in your offending.
Disposition
54So, Mr Raux, I now convict you of each of the charges and I sentence you as follows:
· In relation to Charge 1, of aggravated carjacking, I sentence you to 16 months' imprisonment.
· In relation to Charge 2, of theft, I sentence you to six months' imprisonment.
·
In relation to Charge 3, of aggravated carjacking, I sentence you to
18 months' imprisonment and this is the base sentence.
· In relation to Charge 4, attempted aggravated carjacking, I intend to sentence you to a community corrections order and I will go through the details of this order shortly.
55I order six months of Charge 1 be served cumulatively on the base sentence. So the total effective sentence is therefore, 24 months' imprisonment and I declare that you have served 684 days by way of pre-sentence detention.
56In addition, on Charge 4 and related summary charge 10 of aggravated unlawful assault I intend to impose a community corrections order. You have been assessed as suitable for such an order. So you are placed on a community corrections order for a period of two years from the date of your release from custody.
57The conditions of the community corrections order include:
(a)That you comply with the Justice Plan prepared by Disability Justice.
(b)Judicial monitoring. I want you to come back and see me in about six months’ time, because I am really interested to see how you go on the order and I really hope that you do well. The first judicial monitoring will take place on 5 June 2023 at 9.30am.
[15] Sentencing Act 1991 (Vic).
58In addition to the conditions I have imposed, there are standard conditions on a community corrections order. The first and foremost of these is that you do not commit any other offences which could be punished by imprisonment for the next two years. You must also report to the Pakenham Corrections Office within two working days of your release.
59You are required to advise your supervising Corrections officer of any change of address where you were living and working and this must be done within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and you must obey all the instructions and directions of the community corrections officer. You cannot leave the state of Victoria without prior permission. If you do breach by reoffending, or if you do not comply with the condition, you will be charged with contravention and you will be brought back before me and I might be required to resentence you on these charges. So Mr Raux, do you understand what is required in a community corrections order
60OFFENDER: Yeah I do.
61HIS HONOUR: Yes great, very well. And do you consent to doing a community corrections order?
62OFFENDER: Yes.
63HIS HONOUR: In addition, in relation to Charges 1 and 3, your licence is cancelled and you are disqualified from obtaining a licence for three months.
64In relation to 6AAA, but for your plea of guilty, the sentence I would have imposed is three years in custody and a community corrections order of the same duration.
65HER HONOUR: So good luck with everything. All right.
66OFFENDER: Yep. All right, thank you.
67HER HONOUR: Is there anything else?
68MR OLDHAM: Nothing further, Your Honour.
69HER HONOUR: Very well. Thank you, Ms Watson.
70MS WATSON: As the court pleases.
71HER HONOUR: All right.
- - -
0
3
0