Director of Public Prosecutions v Teryaki

[2016] VCC 929

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01099

DIRECTOR OF PUBLIC PROSECUTIONS

v

HEBA TERYAKI

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 July 2016
CASE MAY BE CITED AS:	DPP v Teryaki
MEDIUM NEUTRAL CITATION:	[2016] VCC 929

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr S. Devlin
For the Accused	Ms L. Scholz

HIS HONOUR:

1Heba Teryaki, you are to be sentenced for one charge of attempted armed robbery on Indictment G10836133; but you are also to be dealt with for breach of the community corrections order I imposed upon you on 19 February 2016.  It has not been suggested  other than that I must resentence you on those matters.  They were offences of armed robbery and the summary offence of committing an indictable offence on bail.  My sentencing reasons in February have been produced in this proceeding and are a matter of record.  Further, I shall have some reference to them in my reasons for this sentence.

2The relevant maximum sentences are 20 years' imprisonment for attempted armed robbery,   25 years' imprisonment for armed robbery and  three months' imprisonment for the summary offence. 

3You pleaded guilty before me to the present offence, attempted armed robbery, on 24 June.  When interviewed by police on 20 and 24 March 2016, you did not admit the offending.  However, by 23 June  there was an expedited committal hearing  which went by hand-up brief and at which you pleaded guilty.  The matter came on before me the next day. 

4You receive the benefit of a very early plea of guilty and a high level of cooperation in the proceeding.  You are being sentenced a little over three months after the offence. 

5At your plea hearing on 24 June, Mr Devlin for the Crown tendered a written Crown opening, images of CCTV footage of the offending and police photographs of the piece or pieces of glass you used as a weapon.  He also tendered the victim impact statement of Matthew - is it Matthew Wade?

6MR DEVLIN:  Yes Your Honour.

7HIS HONOUR: Yes, thank you. Mr Devlin provided material related to current sentencing practices for these offences. Ms Scholz, for you, tendered the psychiatric report of Dr Nina Zimmerman, dated 24 November 2015, a nd the neuropsychological report of Jane Lofthouse dated 4 December 2015. These were part of materials before me when I sentenced you in February this year. Those materials also included relevant reports by Disability Client Services of the Department of Health and Human Services. These were provided and tendered again. They are the Client Overview Report dated 7 December 2015 and Justice Plan, dated 29 December 2015, of Renaye Kelleher. These had been requested by me under s.80 of the Sentencing Act.

8The circumstances of your offence of attempted armed robbery, the new offence which is the subject of this plea hearing, are comprehensively described in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be shorter.  It is also informed by matters put, not challenged by the Crown.

9You are aged 21 and suffer intellectual disability and qualify for assistance by Disability Client Services under the Department of Health and Human Services.  Psychiatric testing has revealed a very low score of 56 IQ.  There is also a diagnosis of borderline personality disorder.  When not in custody, you live mainly at Perry House accommodation in Reservoir, under the auspices of Disability Client Services.

10Since leaving school in late 2013, you have consistently offended, very often in the setting of Melbourne's public transport system.  This was the case on
20 March 2016.  At about 1 am, you boarded a Werribee line train at Flinders Street Railway Station.  You were wearing a black hooded jumper.  At Flinders Street and on the train's journey to Southern Cross, you approached another passenger, Matthew Wade apparently aged in his early 20s,  and intimidated him, demanding his mobile phone.  You were standing over him and made several such demands.  You threatened to stab him.  He resisted and tried to move away.  He attempted to do so more than once.  Hitherto unarmed, you picked up a glass bottle lying on the floor of the carriage and smashed it.  You approached Matthew Wade again, blocking his exit.  He pressed the emergency button, but you prevented him from using the emergency speaker.  You held a piece of the broken bottle up towards his face.  He took hold of your wrist.  These events are caught on CCTV security footage.

11When the train arrived at Southern Cross Station, Matthew Wade was able to alight with the assistance and in the company of two other young passengers.  They did not know him.  The group ran along the platform and up the escalator, away from you.  CCTV footage shows you following them.  Protective service officers arrested you.  You were still in possession of a piece of glass.

12The victim impact statement of Matthew Wade describes the fear and  stress he felt continuing into the following weeks.  He has continued to feel vulnerable and helpless.  Matthew Wade's experience has affected his sense of safety, including at night and when travelling.  At times he has avoided public transport.  He recalls an occasion being with a friend at a train station and “freezing up” in mid conversation when thoughts of the night of your offending against him intruded.  His work has been affected. 

13I am not complete.  Your offence has had considerable victim impact and must be taken into account and that must be taken into account in my sentencing.

14The offending for which I impose a community corrections order on 19 February occurred in Box Hill.  You were or had been in the company of younger associates.  It was daylight.  You threatened your victim, a young woman, with a stick and stole her mobile phone.  The agreed position at this plea hearing is that the present offence, although an attempt, is a more serious example of the crime.

15I described your personal history and circumstances in my 19 February sentencing reasons.  I did so in this way. 

"As stated, you are 20 years of age.  You are of Lebanese background, the fourth youngest of a family of six girls.  Although assessed in 1990 as suffering a moderate intellectual disability, it is notable that are not referred to and declared eligible for DHS disability client services support until July 2013."

16Is that right, is it?  I was not quite aware of that circumstance?  If it is there.  Well, you can correct me later, but - yes, I remember now.  I think the family coped with it over time, yes.

17MS SCHOLZ:  Yes, she was in a special school, but the formal involvement was not until later.

18HIS HONOUR:  Yes.  Yes I follow.  Yes, I think that is correct.

19MS SCHOLZ:  Yes.

20HIS HONOUR:  So what I said a bit earlier is not completely accurate.   I will start that sentence again.  Returning to my quotation from my reasons in February.

"Although assessed in 1990 as suffering a moderate intellectual disability, it is notable that you were not referred to and declared eligible for DHS disability client services support until July 2013. Your family, with its difficulties, supported you to attend special schools until Year 12 in 2013. That is, not to say also without difficulty. There were continuing behavioural problems at school. In late 2013, there was a breakdown in the relationship with your family. Your life has, without structure, become increasingly dysfunctional since school. Your first court appearance was in February, 2014, at almost 19. There have been many since. As pointed out by Ms Scholz offences against the Bail Act, such as contravening a condition of bail, and offending on public transport predominate. At the time of this offending, you had been living at Perry House in the North of Melbourne, supported by Disability Client Services. You may return there. Your situation is further compromised by a tentatively diagnosed borderline personality disorder and gender identity issues….. Your family relationships continue to be problematic. However, you are particularly fond of and get along very well with a nephew.”

21On 19 February, I sentenced you on both charges before me to a community corrections order of two years' duration.  Conditions additional to the usual terms were that you comply with the Justice Plan provided, be under supervision and that there also be judicial monitoring.  I stated just prior to that sentence as follows.  

"Armed robbery is a very serious offence, thereby attracting a maximum sentence of 25 years.  The offence, the objectively viewed circumstances of it and your criminal record make relevant such sentencing considerations as deterrence, moral culpability, denunciation and punishment.  However, in this case, there are important mitigating factors.  The most important of those are your personal circumstances and particularly your cognitive impairment and psychological condition.  The Verdins principles have application.  I am persuaded, including by the expert evidence before me, that both your intellectual disability and psychological disorder contribute to significantly damaged judgment and control.  Consideration of your moral culpability, whilst not removed, is considerably  moderated.   You are not a good vehicle for the purpose of deterrence and denunciation.   The need for community protection remains and is important.  I see assistance to and rehabilitation of you to be more important  to that aim than continued detention.  I find that the proper sentence is one of a community corrections order with attached conditions, including compliance with a Justice Plan, directed at rehabilitation.”

22At this plea hearing, on 24 June, I was told what has happened since
19 February and my community corrections order sentence.

23On 23 February, you were before the Melbourne Magistrates' Court for offences of criminal damage occurring on 24 January and 4 February.  This was during the period between the plea hearing on 11 December and my sentence on
19 February.  I was advised of this pending matter prior to my sentence.  The Magistrate,  advised of my sentence,  deferred  sentence to 20 May and released you on bail, conditioned to comply with my community corrections order.

24On 25 February and 10 March, you were dealt with for the offences of breaching a bail condition.  Both were found proven and dismissed.  On 2 March you were charged and bailed for theft from a shop and a resist police.

25On 20 March, you committed the attempted armed robbery now before me.  On 24 March, you were charged and remanded in custody for it.

26On 20 May, the deferral of sentence from 23 February came up and you were sentenced for 42 days.  That sentence expired on 12 June. 

27Accordingly, the community corrections order I imposed on 19 February has failed to help you and to protect the community.  It is important to add that in the course of what has happened since February you have been sexually assaulted at your Perry House accommodation.  I was told that the perpetrator of that has a sexual offence history.  He is, of course, also intellectually disabled.  He no longer resides at the accommodation.  I was told that he has been returned to Corella Place. 

28You use alcohol and drugs, such as Ice and amphetamines.  Hitherto, this has not been at the forefront of your difficulties.  However, it may be accelerating.  I was told that you were intoxicated at the time of this recent offending.

29A great deal of the time since my February sentence has been spent by you in custody, at least the last three or more months.  You have not managed that well. As I have stated and it as put during the plea hearing you have not behaved well.  Given the nature and extent of your disability, that is not very surprising.  Also, I was told, you have self-harmed by cutting and burning yourself.  You have reopened wounds.  You are presently placed in what Ms Scholz termed a “wet cell”.  It was described to me as akin to a padded room and entails 22 hour per day lockdown.  Attempts are being made to assist you, including a recently developed or developing behaviour management plan, and you are visited each week by Disability Client Services and Jesuit Social Services.

30There has been filed a report in respect of your contravention of my February community corrections order by Oliver Reed of Community Correctional Services.  Again without surprise, that concludes that you presently lack the capacity to meet the requirements of such an order.  I quote from the final paragraph. 

"There is doubt over Ms Teryaki's ability to comply with any further order, if imposed, as is her treatment readiness.  However, continuing support from other services would be required.  Community correctional services have fears that should she be released into further community-based dispositions, her propensity to offend would mean that she may be returned to court without having made any gains.  In the light of such, community corrections services recommends that her order be cancelled and that she be re-sentenced on the original offences.  As evidenced above, she is not considered to be suitable to be a suitable candidate for a further community corrections order."

31There is no need or justification for criticism of those who are trying to help you.  However, the criminal justice system is presently failing to assist you, or protect the community from you.  Your situation is very sad and deeply disturbing. 

32The same sentencing considerations I raised when imposing my sentence in February apply again.  That includes those adverse matters arising out of the objectively viewed nature and circumstances of the offending.  Further, that serious offending seems to be escalating.  This offence was committed when you were on bail.

33Relevant considerations also include the moderating factors personal to you I then identified.  In addition, it has become very clear that imprisonment is an unusually harsh situation for you.

34Disability Client Services support of you continues and your accommodation remains available upon release from custody.  However, for how long cannot be said.  I interrupt to say that that was the position before I came into court today.  I am now told it was available for three months.  I note what was put in the plea, that there is strong commitment by Disability Client Services and Perry House to continue support of you.

35This is as sad and presently unsatisfactory sentencing exercise I have confronted.  It is hard not to ask whether the criminal justice and adult corrections system have the tools to deal with a situation such as yours.  Deeply troubled by it, I have decided that the community's protection and best interests, certainly in the long term, are best served by persisting with the supports and controls imposed thus far.  That should resume in the community after a relatively short period of continued custody.  You need to realise that further offending and failure to comply will result in consequences.  It may be that the very difficult period of this recent imprisonment and its continuance for some time has and will emphasise that.  One hopes that increased maturity over time will enable you to see that services such as Disability Client Services and Jesuit Social Services are trying to make your life better, that your better compliance and cooperation will follow.

36Stand up.  I am going to sentence you now.

37On the indictment before me for attempted armed robbery, I sentence you to four months' imprisonment. On the breach proceedings I find the breach of my community corrections order imposed on 19 February proven. I do not impose any direct penalty for that. I cancel the order. As to the two offences the subject of that order, on the indictable charge of armed robbery you are sentenced to two months' imprisonment. I direct that one month of that sentence be served cumulatively upon my sentence of four months for the attempted armed robbery. That is a total effective sentence of five months. I declare, under s.18, pre-sentence detention referrable to both periods of remand of a total of 83 days. On the summary offence, committing an indictable offence on bail, under s.72 of the Sentencing Act you are convicted and I adjourn that matter for 12 months upon your undertaking to be of good behaviour during that time. It is a further condition that you comply with the Justice plan filed at this court and compliance with which was a condition of the community corrections order imposed on 19 February.

38Had you not pleaded guilty I would have imposed a sentence of 18 months' imprisonment with a minimum term of nine months.

39I will return to the other matters that I need to deal with.  I think I made reference to the fact that this recent offending was committed whilst on bail, in fact two bails, and I have taken that into account as an adverse matter.  Also s.16(3C) applies as to prima facie cumulation;  but I have decided to only partially cumulate, bearing in mind the principle of totality.  That principle is also applied to my overall sentence,  or to my sentence particularly for the more recent matter, bearing in mind the period of time that she has spent in custody.

40All right, take a seat now, please.  We are going to prepare the documents.  The Justice plan ran for two years from 19 February and it is the same Justice plan.  I think it just should run for the balance.

41MS SCHOLZ:  Yes, the balance of time, yes.

42HIS HONOUR:  Yes, all right, and similarly, 12 months, although it is a relatively short period, I do not see any point in her present situation by imposing long periods.

43MS SCHOLZ:  Yes.

44HIS HONOUR:  One does not feel any high optimism, I regret to say, but for the reasons I stated, I do not think there is anything but what I have proposed the system can do and I wish the very best of luck and fortune to those people who are trying to help her.  All right, what else do I need to say?

45MR DEVLIN:  No, Your Honour.

46HIS HONOUR:  I think a forensic sample was ordered last time.

47MR DEVLIN:  Yes, sir, there is no application.  The only other ancillary order is a disposal order, which I have got a draft order.

48HIS HONOUR:  Yes, I will sign that.

49MR DEVLIN:  And that only covers the glass.

50HIS HONOUR:  Yes, thank you.  All right, I have signed that order.  All right, that means that you have got to go back into custody.  I make it to be another two and a half months.  It is a very short sentence for these offences.  I do not know what you think of your situation.  I do not really know what you think of me or of the system but people are trying to do the best they can to make your life better but it must reach the end of the road some time, in which case you are going to have to be sentenced to a considerable period of time in gaol, and it does not look to me as if gaol suits you.

51So there it is.  All right, we will - - -

52MR DEVLIN:  There is just the signing of the bond, Your Honour.

53HIS HONOUR:  Yes, that is right.  That is being prepared now.

54ASSOCIATE:  I need a Justice plan date for (indistinct).

55HIS HONOUR:  Two years from - - -

56ASSOCIATE:  No, I cannot.  If it is longer than the 12 months and it will not do it.  I cannot (indistinct).

57HIS HONOUR:  Well, it can be - the condition can be that she comply with that Justice plan for the period of 12 months.

58ASSOCIATE:  Yes.

59HIS HONOUR:  I do not think there is - there is not much point in making it longer than that, is there?  You will know - I mean it is a - well, yes. I would think that if Ms Teryaki meets the terms of this bond for the next 12 months and complies with it, it will be a major achievement for her and for others.  Yes, so let us hope that you can do that.  All right.  She needs to sign first.  This is the bond.  You need to sign it.  Did you hear what I said?  Twelve months to be of good behaviour.  If you are that is the end of it.  If you are not you come back before me and I have to look at this again, all right, and as I said, I am running out of ideas.  The system is running out of options, all right.  So if you agree to that and understand that I will get you to sign it, or she will bring it down.  My associate will bring it down to you now.

60

All right,  I have signed it.  All right, you will get a copy of this.  Thank you,

Mr Devlin.  Thank you, Ms Sholz.

61MR DEVLIN:  Thank you, Your Honour.

62HIS HONOUR:  Thank you for your assistance too.  So we will now - do you want to talk to her?

63MS SCHOLZ:  Yes, I am going to  - - -

64HIS HONOUR:  You can talk to her briefly now before - I will wait here while that happens.  All right, Ms Teryaki can be taken into custody now.

65MS SCHOLZ:  Thank you, Your Honour.

66HIS HONOUR:  Good, thank you.

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