Director of Public Prosecutions v Ring
[2022] VCC 489
•11 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-00643
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABUK RING |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 April 2022 | |
DATE OF SENTENCE: | 11 April 2022 | |
CASE MAY BE CITED AS: | DPP v Ring | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 489 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Armed robbery – make threat to kill – youthful offender – Verdins principles enlivened
Legislation Cited: Sentencing Act 1991; s 5(4C)
Cases Cited: Worboyes v R [2021] VSCA 169; R v Wyley [2009] VSCA 17; Azzopardi v The Queen [2011] VSCA 372; R v Mills (1998) 4 VR 235; The Queen v Verdins, Buckley & Vo (2007) VR 02
Sentence: Convicted and sentenced to a three year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Teo (Plea) Mr B Baarini (Sentence) | Director of the Office of Public Prosecutions |
| For the Accused | Ms N Low | Victoria Legal Aid |
HIS HONOUR:
1 Abuk Ring, on 29 October 2021, at the County Court at Melbourne you pleaded guilty to the following charges on Indictment Number L12266806:
2 Charge 1, Armed robbery of Sajani Surnarm on 23 September 2020. This offence has a maximum penalty of 25 years' imprisonment.
3 Charge 2, Making a threat to kill to the same person, Ms Surnarm, that you would kill Ms Surnarm's family members, and that charge was committed at the same time as the armed robbery on 23 September 2020. That offence has a maximum penalty of 10 years' imprisonment.
4 The summary charges of Charges 3, 4, 6 and 7 were withdrawn by the prosecution.
5 At the time of the offending you were 18 years of age. You have no prior or subsequent criminal history. You have spent three days as pre-sentence detention for these offences.
Circumstances of your offending
6 On 23 September 2020, Ms Surnar was walking along Cowra Avenue in St Albans to the Ginifer train station as part of her morning commute when you grabbed her from behind and held her in a headlock. You said, 'Don't speak a word. I'll stab you. I'll stab you.'
7 You were armed with a Red Bull can which had been cut and shaped into a knife of approximately 20 centimetres in length. I have seen a photograph, and if I can use the term, of certain weapon.
8 You then placed one arm around her neck and the other around her stomach. You have then demanded that Ms Surnar hand over her property, 'Give me your things, your card, your phone, your bag. If you don't give me all these things you're going to die. I know all of your family members. I know where you live. So you better not call the police or I'll kill them all.'
9 Whilst you were speaking to Ms Surnar, you were pointing this makeshift knife towards her stomach. You grabbed Ms Surnar's iPhone, which she was holding in her hand. You made her re-set the phone to clear the passwords and you have then stolen her puffer jacket, which had her purse containing various cards, including her bank card, in the pocket. You also took her handbag containing a face shield, her work permit, a lunchbox, drink bottle, before you ran away from the area. You then told the complainant, 'Don't look back or I'll stab you.' The complainant was too scared to turn around and was unable to move for a period of time. She turned around and saw that you were walking down Cowra Avenue.
10 You were observed by the police near Ginifer Rail Station at 7 am. You were wearing Ms Surnar's puffer jacket. You were searched, found in possession of a handbag, mobile phone and the metal implement which was used in the armed robbery. You were taken to Sunshine Police Station. You were deemed to be unfit to be interviewed. That is relevant in this sentencing process.
11 A chronology of events was helpfully set out in your plea submissions prepared by Ms Low, which was Exhibit 4. On 21 September 2020, two days before your offending, the police were called to your family home and you were admitted to the Sunshine Hospital for treatment and assessment under the Mental Health Act.
12 On 22 September 2020, you discharged yourself from the Sunshine Hospital. You stayed in a local park that night.
13 On the morning of 23 September 2020, you were arrested for these offences. The police deemed you to be unfit to be interviewed due to your mental health state. You were remanded in custody and you had spent two days in Dame Phyllis Frost Centre, which is a prison.
14 On 26 September 2020, you were bailed and from 27 September 2020 you spent six and a half weeks in the Orygen Youth Mental Health Unit in Sunshine. On 12 November 2020, you were discharged from Orygen and on a Community Treatment Order under the Mental Health Act. On 5 July 2021, this Community Treatment Order was revoked.
15 On 14 November 2021, you were admitted to the Alfred Hospital Psychiatric Unit, this is 16 days after your plea of guilty to these charges.
16 On 16 December 2021, you were transferred to Orygen Mental Health Unit where you remained until discharged on 18 February 2022 this year on a Community Treatment Order again. The Community Treatment Order that you are currently on is due to expire on 6 June 2022.
17 On legal advice and after considering the opinions of Associate Professor Andrew Carroll, dated 1 April 2021, and Dr Claire McInerney, dated 12 March 2021, you proceeded with your plea of guilty on 4 April 2022.
Victim Impact Statement
18 In this case your victim, Ms Surnar, has not filed a victim impact statement. No doubt your offending was a very frightening experience for her and would have undermined her sense of personal safety. She was not physically injured.
Personal circumstances
19 At the time of the offending you were 18 years of age and you have just turned 20. You are a South Sudanese Dinka ethnic background. Your family fled Sudan to escape the civil war there. You are the second child of a six member sibship. You were born in Egypt and came to Australia with your family as refugees. You were three years old at that stage. In effect you have grown up here in Australia.
20 Your family are all Australian citizens. Your parents do not speak English. Your mother is busy looking after the family home and your father works as a labourer to finance the family.
21 You currently live with your family in Deer Park and have done so for the whole of your life except for a short period during 2021. You were educated to Year 11, when you left school due to bullying from fellow students. Whilst a student you maintained part time work at Hungry Jack's. The Melbourne lock-down in March 2020 resulted in you losing your part time hospitality work.
22 In the period of March to September 2020 you lived at the family home but your mental health deteriorated. I have previously set out the chronology of your admissions to hospital and I will not repeat those events here.
23 In July of 2021, you enrolled in an electrical technician's course at Victoria University. Your ambition is to work as a qualified electrician. At the same time you were working part time as a quality control officer at Allied Pinnacle, a baked goods factory. Unfortunately your mental health declined again and you were hospitalised in November 2021. Your studies and employment ceased.
24 After treatment and discharge from hospital you have commenced work in a factory, F Mayo, on a casual basis, working some four to five days a week, 6 am till 2 pm. You have resumed living with your family again. As I said before, you are currently on a Community Treatment Order under the Mental Health Act, which expires on 6 June 2022.
25 You have been assessed by Associate Professor Andrew Carroll, Forensic Psychiatrist. He prepared a report dated 1 April 2021, which is Exhibit 1 on the plea. His opinion was that you had developed a mental illness possibly as long ago as two years prior to your offending which had a profound effect on your psychosocial functioning. Specifically Professor Carroll stated at paragraph 98 of his report as follows:
‘At the time of the relevant conduct Ms Ring was acutely mentally ill due to a combination of her manic symptoms such as racing thoughts and excessive energy and her delusional symptoms. It is clear that Ms Ring was totally unable to reason with a moderate degree of sense and composure as to whether the behaviours constituting the offending would be considered to be wrongful by other people. She did, however, know the nature and quality of her actions.’
26 Professor Carroll concluded that you are eligible for a mental impairment defence in respect of these charges.
27 You have also been assessed by Dr Claire McInerney, a Forensic Psychiatrist. Her report is dated 12 March 2021, that was Exhibit 2 on the plea. Dr McInerney's opinion was as follows:
‘Ms Ring has experienced a clear episode of mania with psychosis at the age of 18 years. She has a severe and very likely enduring mental illness that combines features of a psychotic illness and a mood disorder. As she is very young and this was her first episode, her diagnosis remains somewhat uncertain. Time will tell whether she has bipolar affective disorder, schizophrenia or schizoaffective disorder, an illness combining the features of the two former conditions.’
28 Later she states:
‘Overall I am persuaded, on the balance of probabilities that in carrying out the alleged offences, Ms Ring was likely unable, due to the florid manic psychosis, to reason with a moderate degree of sense and composure about whether her actions, as perceived by reasonable people, were wrong. I am of the view, therefore, that on the above charges Ms Ring has on balance a defence of mental impairment as set out in section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, available to her.’
29 You are currently being treated by Orygen Youth Health. A report dated 31 March 2022, which was Exhibit 3 on the plea, authored by Sarah Parazio sets out your diagnosis as bipolar affective disorder, substance use disorder. Your current medication regime is Lithium SR 900 milligrams, PRN Benzatropine 2 milligrams and Olanzapine 300 milligrams intramuscularly fortnightly. You receive treatment from Dr Andrea Pilari, a psychiatrist. You are receiving appropriate medical treatment for your diagnosed mental health conditions.
30 You have elected to plead guilty to the two charges on the indictment rather than conduct a defence of mental impairment. You plan to return to your studies and training to become an electrician.
Sentencing considerations
31 The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and the denunciation of your actions and the protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.
32 I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and re‑integrated into society. In your case that is the most important factor.
33 I am also required to take into account current sentencing practices in fixing your sentence. That requirement is directed particularly, but not exhaustively, to the kind of sentences imposed in comparable cases and the statistics for the sentences at the time. I have considered the statistics and current sentencing practices, mindful that each case must be considered in light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another. Nevertheless current sentencing practices is only one of the matters I have to take into account.
34 I am also mindful of the provisions of the Sentencing Act, in particular section 5(4C), which directs the sentencing court to consider whether a Community Corrections Order can achieve the purpose for which a sentence is imposed.
35 I have reviewed the case of Bolton in considering if a Community Corrections Order would be appropriate in your case and I have had you assessed for a Community Corrections Order. You have been assessed as suitable for a Community Corrections Order but that is not the end of the matter.
36 You have pleaded guilty to these charges. Your plea of guilty was indicated at an early stage. Your plea does have the utilitarian value for allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending and your plea allows for the preservation of court and police resources to deal with other matters. Your plea vindicates the public confidence in the legal process set up to protect the community.
37 Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates remorse on your part.
38 Your plea also removes the need for your victim to give evidence in a trial and being cross-examined about the frightening events which constitute your offending behaviour. This shows that you have developed an understanding or an empathy for your victim.
39 The Court of Appeal in the case of Worboyes v R [2021] VSCA 169, set out a number of considerations that were particular to a plea of guilty in the course of the COVID-19 pandemic, and even more so in the sentencing process.
40 These considerations were reinforced by the Court of Appeal in the case of Rossi v R [2021] VSCA 296, which recited paragraphs 35 to 39 from Worboyes and highlighted the following:
‘We therefore consider, whilst the courts of this state continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances and, concurrently, as attracting an augmented mitigatory effect on sentence simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the court's lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and pulpable amelioration of sentence.’
41 The Court of Appeal then went on further to state as follows:
‘For these reasons we consider that, all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of a greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.’
42 The Worboyes' discount, as it is described, has particular application in your case because you have been on bail for all of the 18 months since offending, except for the initial three days that you served in custody. As I said before, you were 18 years old at the time of your offending. You are now 20 years old.
43 It is a principle of sentencing law that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored, taking into account all other sentencing considerations, to promote the offender's rehabilitation, that is your rehabilitation. This approach serves the interests of the individual offender and the community as a whole.
44 In the case of R v Mills, three propositions of sentencing were set out:
“i. Youth of an offender, particularly a first offender, which is yourself, should be primary consideration for a sentencing court where that matter properly arises.
ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, the individualised treatment focusing on the rehabilitation is to be preferred. In other words, rehabilitation benefits the community as well as you, the offender.
iii. A youthful offender is not to be sent to adult prison if such a disposition can be avoided, especially if the offender is beginning to appreciate the effects of their criminality. The benchmark of what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender and where the offender has not previously been incarcerated a shorter term of imprisonment may be justified. This proposition is particularly applicable in general principles of sentencing set out in section 5(4) of the Sentencing Act.”
45 In more recent times the Court of Appeal has made pronouncements of the consideration of youth in sentencing practices. In the case of Wyley, President Maxwell said as follows:
“Mills constantly reminds sentencing courts and this court on appeal that there is great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry out a law-abiding life in the future. But that consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period or a longer period of imprisonment rather than non-custodial sentences.
Thus understood, the later cases of DPP v Lawrence and R v Nguyen are not to be viewed as excluding the principles of Mills but simply as instances of how those principles are to be applied.”
46 His Honour then continued:
“As counsel properly conceded towards the end of his submissions, there is a role for general deterrence to play in relation to every class of cases. In relation to certain classes of cases, however, general deterrence may be particularly important to play. The present case was of that kind. Violence of this kind, that is, similar to this case, in circumstances of this kind, as is prevalent, that general deterrence seems to have a particular importance. But again, the role of general deterrence will vary with the circumstances of the case.”
47 In short, crimes of violence call for general deterrent considerations. These issues were recently considered in the case of Azzopardi v R [2011] VSCA 372, where Justice of Appeal Redlich as he then was, and with whom Justices of Appeal Coghlan and Macaulay agreed, stated as follows:
“The general proposition which flows from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and the protection of the community become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory considerations of youth be viewed as all but extinguished.”
48 The offences of armed robbery and threat to kill are serious offending. The maximum sentences for each of the charges set by Parliament clearly reinforce that fact. The indicators of the level of seriousness in your offending are:
(a) Your victim was randomly chosen by you as she was on her way to work in daylight hours.
(b) Your weapon was crude. That is, it was an aluminium can fashioned to have a sharp edge.
(c) The offending was over a very short period of time.
(d) You made no effort to disguise yourself.
(e) You were intercepted because you were wearing the victim's clothing at the time the police saw you.
(f) There was a clear lack of planning on your behalf.
(g) I have already referred to what I will describe as your mental state during the course of your offending.
49 I assess your offending at the lower end of these charges. Your mental state at the time of the offending, immediately before the offending and in hospitalisation subsequent to your arrest further reinforce the assessment of low level offending for these charges.
50 In your case, whilst I accept your offending was violent, the consideration of your youth and rehabilitation outweigh general deterrence as a sentencing factor. Further, your mental health condition at the time of the offending enlivened the principles outlined in Verdin's case. Your moral culpability is reduced for this offending due to your mental health. In your case both general and specific deterrence are to be moderated due to your mental health at the relevant time. You are currently under care and supervision for your mental health and any interruption to that treatment by imprisoning you would be counter-productive to your rehabilitation and the gains that you have made to date.
51 I assess your prospects of rehabilitation as good as long as you continue to adhere to the mental health treatment and direction from your medical advisors. You have good family support and a vision to build a better life for yourself as an electrician in the future. I encourage you to take up that course.
52 The appropriate sentence in your case is to enhance and encourage your continuing treatment and rehabilitation through a Community Corrections Order.
53 Would you stand, please.
54 On the two charges of armed robbery and threat to kill, as an aggregate, you are convicted and placed on a Community Corrections Order for a period of three years. The conditions of that Community Corrections Order are:
(a) Supervision.
(b) Drug and alcohol assessment and treatment.
(c) Mental health assessment and treatment, and in that condition you are to follow the directions of the consultant psychiatrist at Orygen at the Sunshine Hospital and judicial monitoring, the first judicial monitoring will be 4 August 2022 at 9.30 am.
55 I declare section 6AAA, but for your plea of guilty I would have sentenced you to a period of imprisonment as an aggregate of three years with two years non‑parole period and I want it noted on the record so it is not lost, and I am not expecting you to breach this CCO, but I want it noted that you have served three days pre-sentence detention.
56 Was there anything else?
57 MR BAARINI: As the court pleases.
58 MS LOW: As the court pleases.
59 HIS HONOUR: I will just have those documents prepared. If your client is prepared to enter into a Community Corrections Order she can sign it and then I will sign it.
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