Director of Public Prosecutions v Stokes

[2023] VCC 2282

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR 23-01302

DIRECTOR OF PUBLIC PROSECUTIONS

v

KADE STOKES

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	7 December 2023
DATE OF SENTENCE:	7 December 2023
CASE MAY BE CITED AS:	DPP v Stokes
MEDIUM NEUTRAL CITATION:	[2023] VCC 2282

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:  Attempted armed robbery – commit an indictable offence whilst on bail

Legislation Cited:  Criminal Procedure Act 2009, s145; s242

Cases Cited:R v Mills (1998) 4 VR 235; Bugmy v The Queen [2013] HCA 37; Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342

Sentence:Without conviction ordered to serve a Community Corrections Order for a period of two-years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Miss S. MacDougall	Office of Public Prosecutions
For the Accused	Mr J. Blackley

HIS HONOUR: 

1Kade Stokes, on 7 December 2023, that is today, at the Latrobe Valley County Court of Victoria, you pleaded guilty to the following charges on Indictment No. P10955503:

Charge 1,  attempted armed robbery of Madeline Ang.  This charge has a maximum penalty of 20 years' imprisonment. 

Charged 2, attempted robbery of Ms Mansouri Boroujeni.  This charge has the same maximum penalty of 20 years' imprisonment.

2You have consented to a related summary charge being transferred to this court pursuant to ss145 and 242 of the Criminal Procedure Act. You have pleaded guilty to the charge of committing an indictable offence whilst on bail. This charge has a maximum penalty of three months' imprisonment. 

3You have no prior criminal convictions.

Circumstances of your offending

4The prosecution tendered a summary of Prosecution Opening dated 12 September 2023.  It was Exhibit “A”.  The prosecutor read the relevant parts of the opening into the record of the court. 

5At the time of the offending, you were 20 years old.  You lived with your grandmother in Wonthaggi. 

6Your victims were; Madeline Ang who was a 30-year-old women, Ms Mahvash Mansouri Boroujeni who was 58-year-old women. All of you were not know to one another.

Charge 1

7On 5 May 2023, at about 1pm, Ms Ang was sitting in a parkland near Docklands Community Hub Reserve. The parkland is bordered by Collins Street, Harbour Esplanade, Bourke Street and Waterview Walk in Docklands. Ms Ang was sitting on a park bench closest to Collins Street and Waterview Walk corner and was on her phone. You approached her.

8Ms Ang described you as a male, mid-20s, average height and Caucasian.  She observed that you were wearing baggy full-length pants, white short-sleeved T-shirt, a baseball cap and that you were carrying a supermarket bag with orange spots on it.  It turned out to be an advertisement for Coles. Ms Ang observed that you were holding a switchblade knife with an orange plastic handle which she described as being a little bit over the short length of the A4 paper long. 

9You held the knife discreetly pointing it towards her.  You then held it in her eye line and said, “Can I have some money?”.  Ms Ang took out her wallet from her pocket and showed you that she had no money.  You then walked off along Collins Street towards Harbour Esplanade before she lost sight of you.  Ms Ang then dialled triple zero and provided a description of you to the police.

Charge 2

10On the same day you have approached Ms Mansouri Boroujeni who was exercising in parkland area around Collins Street and the Harbour Esplanade in Docklands.  Ms Mansouri Boroujeni observed you approach her.  She described you as being a Caucasian male with light eyes and wearing a white T-shirt and cap.  You were holding a knife in your hand and stood approximately one metre from her.  She then described the knife as having a blade approximately 10 centimetres in length and that it had a red or orange coloured handle. 

11You demanded money from Ms Mansouri Boroujeni saying “give me money”.  Ms Mansouri Boroujeni was frightened by your actions and told you she did not work and had no money so that you would not attack her.  You walked away. 

12After the incident, Ms Mansouri Boroujeni began walking to her home when she sighted you again.  She took a photograph of you on her mobile phone.  Ms Mansouri Boroujeni told two men in the vicinity that you had a knife and at the same time she observed the police had arrived and arrested you.

Summary Charge 4

13At the time of the above offending you were on bail for other offences which had been listed for Mention on 11 November 2023. I now know, that those pending charges are also listed today at the Korumburra Magistrates’ Court.

14After the phone call from Ms Ang, the police arrived and were patrolling the Docklands area looking for someone of your description.  Police made their relevant enquiries and searches of the area and found you.  You were padded down and you were found with what was described as a flick knife with an orange handle on it in your rear pants pocket. 

15Whilst the police had you in their custody, Ms Mansouri Boroujeni approached the police and informed them of the second incident.

16You were then transported to Melbourne West police station where you were interviewed in relation to both incidents. 

17In relation to the first incident involving Ms Ang, you denied all allegations and could not recall the incident.  You said the following to the police:

·You don’t think you went up to anyone in Docklands eating a sandwich and pulled out an orange knife.

·You haven’t got much to tell the police.

·You don't even know what this lady's supposed to look like.

·Denied the allegation stating, “I-I never did any of that – anything of that.” 

18In relation to the second incident involving Ms Mansouri Boroujeni, you stated the following:

·You remember seeing a lady at the park doing some ‘yoga bullshit’ and you were sitting there pissed off.

·She told you to “go somewhere else, why can’t you go somewhere else?”.

·You then stated to her “I can go wherever the fuck I want”. She responded, “Oh yeah, what are you gunna – what are you gunna do about it?”

·You then told police that you pulled the knife out and then just walked away.

·You further stated, that you pulled out a knife but did not point it at her but because the both of you were fighting, you said she stated, “what the fuck are you gunna do?” So you just pulled out the knife.

19You were then released on bail the following day.

20You had indicated a plea of guilty to these charges on 24 July 2023, one week prior to the listed committal mention which was for 31 July 2023.

Your personal circumstances

21You are now 21 years old.  At the time of the offending you were 20.  Your father died when you were an infant.  You lived with your mother until you were 13 years of age.  You have an older brother.  Due to the conflict in your family home, you moved to live with your maternal grandparents.  You enjoy a close connection with your grandmother, Mrs Kelly.

22Your education was completed at the Year 11 level.  You have problems with literacy.  You have been diagnosed with ADHD.  You were the subject of bullying at school and had developed social anxiety.

23Since leaving school you have a limited work experience.  You have worked for approximately 18 months in various roles since you left school.  The various roles including bricklaying, plastering and tiling.

24The rest of the time you have been unemployed except for nine-month period when you enrolled in a Certificate II in Visual Arts in 2022 and you lived with your maternal uncle in Melbourne whilst you were doing that course.  Your grandmother describes your ability in arts as your gift. You moved back to our grandparent's place before completing that course.

25You have had four significant relationships in your short life.  You reported when you were a 19-year-old one of your partners nearly died from a heroin overdose.  I note that you are someone who has been a heroin addict. 

26You were diagnosed with a major depressive disorder and ADHD when you were 13 years old.  This coincided with your move to your grandparent's place. In the years of 15 to 17, you received psychological counselling for some time.  Your treatment has principally been dealt with by way of initially Prozac and Ritalin which was prescribed for you.  Your most recent antidepressant as I understand it is Lexapro.  You were also prescribed medication for your hypertension, and you have injectable medication to deal with your heroin addiction which is on a declining dose as time goes on.

27You have used cannabis when you were 13 to 16 years of age.  It didn't do much for you so you gave it away.  You then experimented with LSD, magic mushrooms, cocaine, amphetamines, methamphetamine, GBH and MDMA.  You've done the lot.  You've had a go at everything.  You have reported your older brother suffers from alcoholism and your mother was a user of cannabis and methylamphetamine. At the time of this offending you were on bail for charges arising out of what you've described to Ms Cokorillo as “a scuffle with your brother”.

28You have been assessed by Sandra Cokorillo, forensic psychologist for the purposes of this plea.  Her report dated 30 October 2023 is Exhibit 2.  You have been assessed as a low risk of violent re-offending by Ms Cokorillo.  Ms Cokorillo's opinion is that you do have major depressive disorder and anxiety disorder.  You have been assessed as a low average range on full scale intelligence quotient. 

29You told Ms Cokorillo that on the night before your offending you had been awake all night, having consumed 20 Xanax pills and as I understand it some methamphetamine.  You have little memory of the offending but expressed empathy for your victims to her.

Sentencing considerations

30The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions as well as 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. 

31I 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 reintegrated into society.

32I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences impose in comparable cases.  I have considered the statistics of those sentences and the current sentencing practices mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another.  Of course current sentencing practices is just one of the considerations I must take into account.

33Your counsel submitted that a community corrections order was the appropriate penalty in this case.  I have considered the principles of Boulton's case and I had you assessed for a community corrections order.  You have been assessed as suitable for a community corrections order.  That of course is not the end of the matter.

34You have pleaded guilty to these charges.  A plea of guilty was indicated in circumstances that are very early.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice, there is a certainty of outcome and the resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence set up in the legal process to protect the community.

35Your plea is also an acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion which of course is obvious by way of your plea.  Your plea also recognises you are willing to facilitate the course of justice and I accept that your plea to these charges indicates and demonstrates remorse on your part.  You have expressed that to Ms Cokorillo as well.  Your plea has relieved your victims of the stress and inconvenience of giving evidence at a committal or at a trial.

36Pleas of guilty have also been of further utilitarian value because of pleas given at a time when in this court, that is the Latrobe Valley, the COVID pandemic backlog is still alive and well.  You have not sought to delay the finalisation of these charges by conducting a trial at some indeterminate date in the future.  The Worboyes discount as it has been called applies to your sentencing process.

37You are a youthful offender.  It is the principle of sentencing law that when a young offender such as yourself is to be sentenced, the sentencing disposition should be tailored to take into account all other sentencing considerations to promote your rehabilitation.  This approach serves the interests of the individual offender, that is you, and the community in general.

38In the case of Mills, the three propositions about sentencing youthful offenders such as yourself are set out as follows,

'(i) The youth of an offender, particularly a first-time offender, [that is you], should be a primary consideration of a sentencing court where the matters property arise.

'(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, individualised treatment focusing on rehabilitation is to be preferred.  In short, rehabilitation benefits the community as well as yourself, the offender.

'(iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if the offender is beginning to appreciate the effects of his past criminality.  [And I accept that that is the case for you.]  The benchmark for 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 period of imprisonment may be justified.'

39You have no prior criminal convictions.  You were on bail at the time of these offences for charges arising from what has been described as a scuffle with your brother.  That is yet to be determined.  At the time of these offences, you were under the influence of a cocktail of methylamphetamine and Xanax.  This is not an excuse for your criminal behaviour, but it gives some context of how these offences were committed by you.  You have a combination of a drug abuse problem and a mental health issue.  You have been assessed as a low risk for violent offending.

40It was submitted on your behalf that the deprivation you endured up to the age of 13 years enlivens the principles of what is known as Bugmy's case.  I accept that growing up in a house where your mother and sole parent is drug dependent and abused by others, as I understand the history, has a detrimental effect on your understanding of respect in general and proper behaviour in a general manner.  Your own diagnosed mental health conditions would undoubtedly deteriorate if you were incarcerated.

41Your grandmother, Mrs Kelly, has given evidence that you now are drug free and undergoing medically supervised treatment for your heroin addiction.  You have withdrawn from your previous peers and spend most of your time now in her home.

42Your offending is serious.  The Parliament has set a maximum penalty of 20 years for the charge of attempted armed robbery.  The level of seriousness for your offending though is indicated by the following matters,

(a)Both of your victims were going about their own lives in open public spaces;

(b)In each case you held a knife to them and demanded money;

(c)When each victim refused to comply with your request or demand, you left the scene of the crime without further threats or interaction with them;

(d)You did not attempt to disguise yourself in any way;

(e)The offending lacked planning and was opportunistic in nature;

(f)I accept that the acquisition of the knife was not for these attempted armed robberies but obtained by a frightened and isolated boy from the country without accommodation or support for your own protection;

(g)Each of the offences were of very short duration;

(h)You were easily caught but you denied the offending at the time.

43I assess these two offences as low-level offending for this type of offence.  Your prospects of rehabilitation are good.  You have supportive grandparents who fill the role of parents for you.  If you can manage your drug addiction and reengage with mental health supports, you will eliminate the criminogenic drivers of your offending.  You have no prior convictions, but I note you have charges that are yet to be finalised.

44In short, it is up to you which path you choose to follow, drugs or no drugs.

45The prosecutor very fairly submitted that a community corrections order was within the range of sentence in your case.  I separately considered whether to impose a conviction for these offences taking into account all the factors of your youth, your background, your rehabilitative steps to date and your wider family support and your ongoing rehabilitation is enhanced if you are not burdened with convictions for violence and dishonesty charges arising from offending which occurred within an hour of “badness” on your part.

46The sentencing principles of general and specific deterrence, protection of the community, rehabilitation and just punishment dictate that in your case it is appropriate that you will be given a chance to be punished and rehabilitated through the imposition of a community corrections order.

47Will you stand please?

48On Charges 1 and 2 as an aggregate sentence, you are, without conviction, ordered to serve a community corrections order for a period of two years.

49The conditions of that order are as follows;

(1)You are to be supervised;

(2)You are to be perform 200 hours of unpaid community work;

(3)You are to attend drug treatment and rehabilitation as directed by Corrections;

(4)You are to attend and receive mental health treatment as directed by Corrections;

(5)You are to attend and receive treatment for alcohol dependency as directed by Corrections; and

(6)You are to attend for judicial monitoring on 9 February 2024 at 9.30 am.

50Just in relation to the judicial monitoring, you can do that by way of video link from Wonthaggi to wherever I am sitting on that day.

51And I declare that the hours you spend in either drug rehabilitation, mental health treatment or in alcohol rehabilitation treatment to be accredited as your unpaid hours of work pursuant to s48CA of the Sentencing Act.  I make that last condition to encourage you to partake in drug rehabilitation, mental health treatment and the alcohol rehabilitation and treatment.  They are for your benefit and for the benefit of the community.

52If you consent to this CCO, you can sign it in due course.

53In relation to the summary charge of committing an offence while on bail, without conviction, you are fined $500.

54And, finally, pursuant to s6AAA of the Sentencing Act but for your plea of guilty, I would have sentenced you to two years' imprisonment with a non-parole period of one year.

55Does that cover everything?

56MISS MacDOUGALL:  Not quite.  Your Honour, there is a forfeiture order.

57HIS HONOUR:  Yes.  And, sorry, I will sign the forfeiture order in respect of the ‑ ‑ ‑

58MISS MacDOUGALL:  The pocketknife, Your Honour.

59HIS HONOUR:  ‑ ‑ ‑ pocketknife.  Yes.  Right.  Can someone send that through to me?

60MISS MacDOUGALL:  Yes.

61HIS HONOUR:  Is there anything further?

62MR BLACKLEY:  Nothing from me, Your Honour.

63HIS HONOUR:  You can take a seat.

64MISS MacDOUGALL:  Your Honour, the completed forfeiture order will be sent later this afternoon if that's convenient to the court.

65HIS HONOUR:  That is fine.  Yes, no, that is fine.  Yes.

66MR BLACKLEY:  Your Honour, I have got a physical copy of that forfeiture order if Your Honour wanted it now?

67HIS HONOUR:  Have you?  Very well.

68MISS MacDOUGALL:  I do not think it is finished if you look at it, it needs to be completed.

69There is a draft, Your Honour, that can be forwarded to Your Honour's associate.

70HIS HONOUR:  Thank you.  Yes.

71MISS MacDOUGALL:  I will send it electronically, Your Honour.

72HIS HONOUR:  Thank you.  Yes.  I will sign that one.  Thank you very much, Mr Blackley.

73MISS MacDOUGALL:  Does Your Honour wish me to forward the incomplete order for Your Honour's associate to fill in?  It might be preferrable because it is not - it needs to fill in a few blanks.

74HIS HONOUR:  Yes.  If you could fill in the blanks and send it.  Thank you.

75MISS MacDOUGALL:  Certainly.

76HIS HONOUR:  Yes.

77MISS MacDOUGALL:  Thank you, Your Honour.

78HIS HONOUR:  Mr Blackley, if you can just check that CCO and if satisfied it is what I have ordered, you can take it down to your client and he can sign it.

79MR BLACKLEY:  Thank you, Your Honour.

80If I could just approach Mr Stokes.

81HIS HONOUR:  Certainly.

82Mr Stokes, I have given an extra copy of that order to your lawyers so that you can stick it up on the inside of your wardrobe so that every day you get changed, you have got a reminder of what is in front of you.

83OFFENDER:  Yes, Your Honour.

84HIS HONOUR:  The other thing is you are young, you have had a rough start but only you can fix it.  You have got good support from the Kelly gang over there in Wonthaggi and you should embrace it.  That means it is a two-way street.  You have got to give out to them and they will involve you in their life.  From that, you can build your life.  You understand what I am saying, do you?

85OFFENDER:  Yep.  Yes, Your Honour.

86HIS HONOUR:  So you have got to give a bit.  I understand it is difficult given your anxiety base but that is how you will overcome it, bit by bit, all right?

87OFFENDER:  Yep.

88HIS HONOUR:  You can take this away.  You will be the last person I will sentence here in the Latrobe Valley.  They are pushing me out the door soon.  So good luck.

89OFFENDER:  Thank you, Your Honour.

90HIS HONOUR:  Thank you.

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