Director of Public Prosecutions v Teryaki
[2016] VCC 145
•19 February 2016
| Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 15-01562
| 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: | 19 February 2016 |
| CASE MAY BE CITED AS: | DPP v Teryaki |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 145 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Manning | |
| For the Offender | Ms N Newbound |
HIS HONOUR:
1Heba Teryaki, you are to be sentenced for one charge of armed robbery and also for the summary offence of committing an indictable offence on bail.
2The maximum sentences are respectively 25 years' and three months' imprisonment.
3You pleaded guilty before me on 11 December 2015. When interviewed by police on 17 June 2015 you made some admissions but denied the offending. You exercised your right to silence to some questions. You pleaded guilty at a committal mention in the Magistrates' Court on 8 September.
4You receive the benefit of your early plea of guilty and that level of cooperation in the proceedings.
5At your plea hearing which ran on 11 December and today, Mr Manning, for the Crown, tendered a written prosecution opening and the victim impact statement of Xiaomeng Zhang. Ms Schulz, for you, tendered the psychiatric report of Dr Nina Zimmerman, dated 24 November 2015, the neuropsychological report of Jane Lofthouse, dated 4 December 2015, and the client overview report of Renaye Kelleher of Disability Client Services, dated 7 December 2015.
6On 11 December I requested reports under the Sentencing Act as to suitability for a community corrections order, a justice plan and eligibility for Disability Client Services support and suitability for a Youth Justice report. I have received those reports.
7The tendered prosecution opening states the circumstances of your offending. It is Exhibit A. My summary may be short.
8On 17 June 2015 you were in Box Hill with 16 year old Jimmy Andriopoulos and 14 year old Ebony Shegog. You are and were 20 years but suffer an intellectual disability, perhaps in the so called moderate range. It appears that you commonly associate with much younger people. Your IQ has been tested in the mid-50s.
9At about 10.15 am you committed an armed robbery on Xiaomeng Zhang in Elgar Road, Box Hill South. You threatened her with a stick or branch of a tree, demanded and took her mobile phone. Distressed, your victim continued walking to a friend's home.
10The victim impact statement of Xiao Meng Zhang states effects on sleep, social life and study. She suffers fear, anxiety and a loss of her sense of safety. The victim impact of your offence must be taken into account in my sentence of you.
11The summary offence reflects that you were on bail when you committed the armed robbery.
12As 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 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.
13Your 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 Schulz, offences against the Bail Act, such as contravening a condition of bail, and offending on public transport predominate.
14At 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.
15Your situation is further compromised by tentatively diagnosed borderline personality disorder and gender identity issues. You wish to be called “James”. Your family relationships continue to be problematic; however you are particularly fond of and get along very well with a nephew.
16On 11 December I adjourned the matter for the reports I have identified. My broad intention was to consider the appropriateness of a community corrections order supported by a Disability Client Services justice plan. I was told that there was a pending matter in the Magistrates' Court on 7 December. This morning I have been updated on what has happened since. I refer to that discussion which involved counsel, your Disability Client Services worker, Renaye Kelleher, and Steven Riordan of the Department of Human Services. I have left some out, I think, Christina Johnson of Perry House, is that right? I am sorry.
17MS JOHNSON: From Disability Justice, Your Honour.
18HIS HONOUR: I see. I have been thinking you are Renaye Kelleher.
19MS JOHNSON: I went along with it, Your Honour.
20HIS HONOUR: Did you?
21MS JOHNSON: Yes, sir.
22HIS HONOUR: Well that was very kind of you. So is Renee Kelleher?
23MS JOHNSON: I ‑ ‑ ‑
24MS NEWBOUND: This is Christina - hang on - this is Christina, yes, who has taken from Renaye Kelleher.
25HIS HONOUR: All right. Look, I have left ‑ ‑ ‑
26MS NEWBOUND: Christina Johnson.
27HIS HONOUR: I have left people out but the transcript reflects the attempt to discuss matters. I will return to the reasons. Mr Riordan has provided a report as to your suitability for Youth Justice Centre detention. It is fair to say that he discourages further detention. I agree with him.
28Armed 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.
29However, 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.
30I find that the proper sentence is one of a community corrections order with attached conditions, including compliance with a justice plan directed at rehabilitation. You are found suitable for such an order, you know, so I sentence you as follows - stand up, please.
31On both the indictable charge of armed robbery and the summary charge of committing such an offence on bail, you are convicted and I impose a community corrections order of two years. That should run from today on the expectation, I think, that she is going to be released on Tuesday.
32MS NEWBOUND: Yes, Your Honour.
33HIS HONOUR: The usual terms apply and the additional terms are that you be under supervision of community corrections, that you be under my supervision by judicial monitoring and we will talk about that later, three months from today, yes, as long as it is a week day, and that you comply with, that is obey a justice plan which is set out by Disability Client Services. That is all, I think, we agreed, did we not? There is nothing else? All right. Now, that will be printed out. I know - what? The community corrections - is it Preston, Thornbury or Reservoir that Perry House is?
34UNIDENTIFIED SPEAKER: Reservoir.
35HIS HONOUR: All right. So it will be the Reservoir - is there one at Reservoir, community corrections? It will be community corrections office at Reservoir. Now, will that be printed out, do you think?
36UNIDENTIFIED SPEAKER: I hope so.
37HIS HONOUR: Yes.
38MS NEWBOUND: As Your Honour pleases.
39HIS HONOUR: Just returning, Mr Riordan, to it, I asked of you about these very low levels, I mean, I am well and truly accustomed to mild intellectual disability in the Youth Justice system and the criminal system but I have never come across it as low. But it is there, is it? You told me it was.
40MR RIORDIN: Unfortunately I've come across it about - seldomly, about three or four times, Your Honour.
41HIS HONOUR: Yes.
42MR RIORDIN: And as I said ‑ ‑ ‑
43HIS HONOUR: Well I have come across it three or four times in a year. One person tested as 48. Must have been very close to not being fit to stand trial.
44MR RIORDIN. Yes, indeed.
45HIS HONOUR: Now, I think she can come out of custody for a moment and just stand next to her barrister so I can explain to her ‑ ‑ ‑
46UNIDENTIFIED SPEAKER: Sure.
47HIS HONOUR: ‑ ‑ ‑ if you would let her out.
48UNIDENTIFIED SPEAKER: Yes, Your Honour.
49HIS HONOUR: Just sit down for the moment. The order is printed out that she has got to attend at the Reservoir office within two working days of the start of the order and that the start of the order is today. She will not be able to do that. What is the - you can take a seat. Sit down.
50MS NEWBOUND: She can take a seat next to me?
51HIS HONOUR: Yes, yes.
52MS NEWBOUND: Yes, come.
53HIS HONOUR: What is the best way of amending it?
54MS NEWBOUND: Could it be to attend within ‑ ‑ ‑
55HIS HONOUR: Within eight days.
56MS NEWBOUND: ‑ ‑ ‑ two days unless she is in custody on other matters? I cannot imagine ‑ ‑ ‑
57HIS HONOUR: Well you need to put a date on it, do you not?
58MR MANNING: Your Honour, my understanding is the legislative requirement is two days so instead it may be best to commence the order from a time next week ideally.
59HIS HONOUR: Well I do not see way around that.
60MR MANNING: It cannot commence before Tuesday anyway. Your Honour has the power to commence it within a ‑ ‑ ‑
61HIS HONOUR: Yes, that is right.
62MR MANNING: ‑ ‑ ‑ time - within three months.
63HIS HONOUR: If you are giving a prison sentence as well.
64MR MANNING: Yes.
65HIS HONOUR: Is there any practical problem with that? I mean, I would bear in mind that on the since she was last before me she gets released, she walks out of a courthouse or out of her custody situation, she gets into more trouble so I just want to ensure that she walks out in the company of somebody who is going to take her to Perry House. How do we ensure that?
66MS NEWBOUND: I anticipate - well, I will be having discussions with the workers today and I'm quite confident they'll be telling me that they'll be there on Tuesday to make sure she's escorted from the court.
67HIS HONOUR: Well I'll - it'll change, it'll commence on 23 February. Can we - can I change it by hand or do you have to change it?
68ASSOCIATE: No, I'll do it.
69HIS HONOUR: All right, well whilst that's happening, just stand up. Reservoir, within two clear working days after the - you're changing 19 February to 23 February and 18 February to 22 February. Have you ever been on one of these before?
70OFFENDER: No.
71HIS HONOUR: All right. This is what it means and you'll get this and you can talk to your workers about it, but I've got to say it to you, I don't expect you to take it all in, most people can't. So you - these are the usual orders, the standard conditions, that you don't commit another offence for which you could be imprisoned during the two years, all right?
72OFFENDER: Yep.
73HIS HONOUR: That you don't turn up to any appointment affected by drugs or alcohol or in possession of illegal drugs, but that's not a big problem for you, I read, is that right? Drugs or alcohol.
74OFFENDER: No.
75HIS HONOUR: You've got to receive visits from Community Corrections. You've got to go to the Reservoir office, the address will be here, within two days of next Tuesday. So you'll be reminded of that by Ms Schulz next Tuesday. You've got to let them know within two days of changing your address or job and you can't leave Victoria without their permission.
76OFFENDER: Yep.
77HIS HONOUR: And you've got to obey what they tell you to do. The additional or the extra conditions are these. That you be under their supervision - they'll tell you what that means - and that you come back and see me at this court on 19 May if you're told you've got to. I'll get a report and if you're going all right, you're staying at Perry House and you're doing the things they say to do and you're staying out of trouble, you won't have to come and see me. But if you're not doing those things, you'll have to come and see me. So if you're told you've got to come into court on 19 May, you know you're in a bit of trouble. All right?
78OFFENDER: Yep.
79HIS HONOUR: You follow that?
80OFFENDER: Yep.
81HIS HONOUR: The best thing is to stay out of trouble, yes?
82OFFENDER: Yep.
83HIS HONOUR: And the other thing is that you - it says this, that you take part in services provided in a justice plan. That simply means that you do everything that Disability Client Services tell you to do. The main person will be Renee Kelleher. Sorry. This person. Do you know her?
84OFFENDER: Yeah.
85HIS HONOUR: All right. So you do what she tells you. But if you don't - can I just say this to you, I sit on a board called the Youth Parole Board, do you know what that means? You know Parkville, Malmsbury?
86OFFENDER: Yep.
87HIS HONOUR: Youth Detention Centres. And they get out on parole, which means they can get out early as long as they behave themselves and you know what the biggest problem with them not behaving themselves and having to be brought back is that they don't keep contact with their workers, including when something goes wrong. If you keep contact with your worker you'll - I reckon you'll be all right, but if you don't I think there'll be trouble.
88OFFENDER: Yep.
89HIS HONOUR: So that's what you've got to do. Particularly if you think you don't know what you need to do or if you think something's gone wrong. That's the time you've got to do it. The ones that do it get through. The ones that don't do it usually get pulled back. But can you do that?
90OFFENDER: Yep.
91HIS HONOUR: All right. Do you understand what I've said to you?
92OFFENDER: Yep.
93HIS HONOUR: And do you agree to it?
94OFFENDER: Yes.
95HIS HONOUR: All right, well I'll get you to sign the paper and then we'll release you. I'm sorry, we won't, then I'll sign it and then you'll then - we think the most likely thing is when you go back to court next Tuesday - I'll wait. You sign it and then I'll talk to you. We think the most likely thing is when you go back to court next Tuesday you'll be released and that's when you'll start my order and there'll be somebody there to take you to Perry House.
96OFFENDER: Yeah.
97HIS HONOUR: The silliest thing you could do is not - next Tuesday is not go back to Perry House. Follow that?
98OFFENDER: Yep.
99HIS HONOUR: So what do you reckon the most important things I've said to you are today? Keep contact with your worker.
100OFFENDER: Yep.
101HIS HONOUR: And next Tuesday, straight to Perry House or where your worker tells you to go.
102OFFENDER: Yep.
103HIS HONOUR: So what are you going to do next Tuesday?
104OFFENDER: Keep contact with my worker.
105HIS HONOUR: And where are you going to go?
106OFFENDER: To Perry House.
107HIS HONOUR: All right. Well I'll sign it now and then you'll have to go to back to Dame Phyllis Frost until next Tuesday. There's nothing I can do about that.
108OFFENDER: Yep.
109HIS HONOUR: All right, well I might see you in May, I hope not, all right, because if you've got to come in and see me it means something's gone wrong, doesn't it?
110OFFENDER: Yep.
111HIS HONOUR: All right, well good luck.
112OFFENDER: Thank you.
113MR MANNING: Your Honour, there had been two ancillary orders sought as well.
114HIS HONOUR: We'll wait for her to go back - yes, all right, we'll see what they are. What are they?
115MR MANNING: There's a disposal order sought in relation ‑ ‑ ‑
116HIS HONOUR: No, not out the back yet, there's just a couple more things we need to - disposal order ‑ ‑ ‑
117MR MANNING: Yes, the end of the opening.
118HIS HONOUR: What's that? Is that the stick or the branch?
119MR MANNING: Stick. Stick, yes.
120HIS HONOUR: It's the stick, is it?
121MR MANNING: That's right, and there was an application for a 464ZF order for a DNA sample.
122HIS HONOUR: What do you want to say about that? I think it's hard to resist.
123MS NEWBOUND: It's consented to, Your Honour. We've got instructions.
124HIS HONOUR: You wouldn't make it except for the fact that ‑ ‑ ‑
125MS NEWBOUND: It's quite serious offending.
126HIS HONOUR: ‑ ‑ ‑ she's so consistently got into strife over the last ‑ ‑ ‑
127MR MANNING: We can hand those up now, Your Honour.
128HIS HONOUR: Yes, I'll sign them.
129MR MANNING: The other I speak to, it's not mandatory, up to Your Honour, but there's a 6AAA declaration and there's the ‑ ‑ ‑
130HIS HONOUR: It's not mandatory for a community corrections order.
131MR MANNING: No, it's not, it's a matter for Your Honour and there's the PSD ‑ ‑ ‑
132HIS HONOUR: I don't know what else I would've done with her.
133MR MANNING: No. Well I'm not pressing that and then the pre-sentence detention's seven days, again a matter for Your Honour.
134HIS HONOUR: No, I don't have - I don't think I can declare it.
135MR MANNING: You can't declare it, but whether it's taken into account in a broad sense.
136HIS HONOUR: Well yes, yes, it's pretty clear from what you've said to me that ‑ ‑ ‑
137MR MANNING: Yes.
138HIS HONOUR: ‑ ‑ ‑ it's part of the consideration.
139MR MANNING: Thank you, Your Honour.
140HIS HONOUR: Probably pretty well down the list.
141MR MANNING: Yes, Your Honour.
142HIS HONOUR: At some stage after you get out and your workers will tell you when, you've got to go to the Reservoir police station and give a sample of your saliva. Have you heard of that? All you do is put a cotton swab inside your mouth and hand it back. If you do that, that's fine. All right?
143OFFENDER: Yep.
144HIS HONOUR: So arrangements can be made for that.
145MS NEWBOUND: As Your Honour pleases.
146HIS HONOUR: I've signed those orders.
147MR MANNING: Thank you, Your Honour.
148HIS HONOUR: All right. Well you can be taken back to Dame Phyllis now and you'll be brought back to the Magistrates' Court next Tuesday.
149OFFENDER: Yep.
150HIS HONOUR: All right, good luck. All right, well thank you for your attendance today, it's been very helpful, thank you.
151MS NEWBOUND: Thank you.
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