Director of Public Prosecutions v Van Mourik

[2018] VCC 901

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02373

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEX VAN MOURIK

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 April 2018
DATE OF SENTENCE:	19 June 2018
CASE MAY BE CITED AS:	DPP v Van Mourik
MEDIUM NEUTRAL CITATION:	[2018] VCC 901

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:  Common law assault, Damage property
Cases Cited:  Attempted armed robbery
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N Burnett	Office of Public Prosecutions
For the Accused	Ms D Lamovie	VLA Ringwood

HER HONOUR: 

1Alex Van Mourik, you have pleaded guilty to the following offences.  Common law assault, damaging property, and attempted armed robbery.  The maximum penalty for these offences are five years, ten years, and 20 years' imprisonment respectively.

2On Sunday 7 May 2017, at about half-past three in the afternoon, Mr Guoxing Cai and his family were at Hungry Jack's in Ringwood.  You arrived there with a group of friends and sat near them.  You verbally abused them with racist remarks and threw food at them.  You approached them at their table.  They decided to leave after you had approached them and you told them not to come back.  You followed the Cai family to the car park and asked them if they had any money.  You were behind them and said you had a knife in your satchel.  You reached into your bag and pulled out a red bandanna.  That is the conduct constituting Charge 1, common law assault.  Mr Cai's 15-year old son used his mobile phone to take footage of you and the family then all got into their car to drive away.  As they were driving you hit the car and caused a dent in it.  That is the conduct re Charge 2, damaging property.  They drove  a distance before calling the police.

3At about half-past four, or an hour later, Mr Neeraj Verma was sitting on the platform at Ringwood Railway Station.  You arrived there with a group of friends.  You approached him and began verbally abusing him, demanding his wallet and phone.  When Mr Verma refused, you began hitting him to the right side of his jaw with your elbow and said that you would punch him in the face if he did not give you his wallet.  Mr Verma continued to refuse to hand over his belongings.  You then produced an imitation firearm, which was your cigarette lighter, and placed it against Mr Verma's ear.  He then agreed to give you his belongings but said to you that you had to go outside with him, hoping that he would be able to get some assistance.  Fortunately, the station master had heard you and Mr Verma and saw you produce an object that looked like a small handgun.  That is the conduct constituting Charge 3, attempted armed robbery.  The station master also saw Mr Verma walk away, with your group following, and you saying that you were only joking.  The station master called 000 and assisted Mr Verma. 

4Another witness and Mr Verma made statements to police following an article that appeared in the local Maroondah newspaper seeking witnesses to the incident. 

5You were arrested and conveyed to Knox Police Station.  Later that evening when you were deemed fit you were interviewed in the presence of an independent third person.  In respect of the Hungry Jack's incident you said you had abused people but that you did not try to rob anyone.  You maintained that you had only touched the back panel of their car.  In respect of the incident at the railway station you said that you were mucking around with your cigarette lighter and imitation gun but that you did not point it at his neck.  You indicated you had drunk a significant amount of alcohol and that you had limited recollection of the events.

6I was informed that victim impact statements were requested by each of those involved but they were not provided.  It is clear that your offending in respect of both incidents, occurring as they did in a public place, would have been frightening and your victims would have been justifiably scared.  People are entitled to feel safe in these kinds of environments.  No doubt your actions were of such concern to the family in Hungry Jack's that they decided to leave.  It was fortunate your victim at the railway station was able to obtain assistance.

7You are currently aged 21.  You were 20 when the offences were committed and you are a young offender.  Your parents and a friend were in court to support you.  Your mother was involved in a serious car accident a few years ago and sustained some neurological and physical injuries, and since then your father has been her carer.  You currently live with your parents and two sisters at home, you in a bungalow at the back of the house.  You do, however, remain under your parents' supervision.  You have had periods of homelessness, though it would appear that you are now stable in your supportive home environment.

8You attended school until you were aged about 17.  Much of your senior education was at a special school and you commenced Certificates I and II in mechanics.  When you were 18 you worked for a short time as a roof and pool tiler.  You then worked along with your father in the building industry.  However, since he ceased work you have not been able to obtain any further employment.

9You are currently on a disability pension, having sub-average general intellectual functioning and deficits in adaptive behaviour.  I received various medical reports regarding your health relating back to your childhood, (see Exhibit 1).  I was also provided with a report from neuropsychologist Dr Loretta Evans dated 9 February 2018, Exhibit 2.  I take all the information contained in those reports into account.

10You were diagnosed since childhood with Tourette's Syndrome, ADHD and anxiety.  These conditions have varied in their severity throughout your life.  Your neuropsychological profile is characterised by significantly impaired verbal abilities and poor literary skills, though you reveal strength in other areas.  You were considered to be impulsive and to experience difficulties with self-regulating or adapting to changed environments.

11Dr Evans found your ability to appreciate socially appropriate behaviour or societal expectations being at the second percentile, indicating 98 per cent of age-matched peers would have a better understanding of the most appropriate behaviour to display under a variety of situations.  You have no criminal history.  This offending was out of character for you and took place in the context of use of both drugs, cannabis and methamphetamine, and alcohol.  Though that does not excuse your behaviour, it does provide some explanation for it.

12Prior to the offending you regularly drank alcohol.  Your level of consumption had increased after you were involved in a car accident in which a friend was killed and others were seriously injured a few years ago.  I was informed that since being charged for these matters you have ceased drug use and reduced your consumption of alcohol. You have abided by restricted bail conditions.

13About one month after the police interview your mother sought a referral for you to the Disability Services.  An assessment did not commence until nine months later.  At the time this matter was previously before me that assessment was only at its preliminary stages, though you have now been allocated a disability worker, Ms Amanda Mizzi.  I adjourned the matter to enable a Justice Plan to be devised if that was deemed appropriate.

14You have pleaded guilty to these matters at the first opportunity.  I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  No witnesses have been cross-examined and the victims have been spared the ordeal of reliving this traumatic incident or attending court for committal hearing and trial.  The community has been spared the cost of a trial. 

15I accept your plea is also indicative of remorse.  In a letter to the court from your mother, Exhibit 3, she indicates that you have shown regret for your actions but also that you recognise it was wrong and that you have appropriate victim empathy.  As noted by Dr Evans, you consistently expressed your remorsefulness about your actions and acknowledged the ramifications of your behaviour.

16I take into account your youth.  As previously noted, you are a young offender and have no prior history.  This is an important sentencing consideration in your favour.  It is well established that the youth of an offender may, in appropriate circumstances, outweigh principles of general deterrence.  It is in the interests of the community for a young offender to be rehabilitated and that you be given the opportunity for reform.

17I accept, and the prosecution did not dispute, the principles of general deterrence and specific deterrence should be moderated given your neuropsychological functioning and intellectual disability.

18There are features that augur well for your rehabilitation.  You have strong family support, you have complied with stringent bail conditions, you have indicated to your disability support worker a willingness to work with Disability Client Services and to cooperate with any services that will assist you to address your  offending behaviour, including relating to drug and alcohol issues.  I note that Ms Mizzi in her report sets out how it is anticipated that you will be supported, or the services to be provided, to reduce the likelihood of your reoffending.

19There were some aggravating features of this offending.  As noted, it occurred in public places where individuals and family groups are entitled to feel safe;  your use of an imitation firearm against Mr Verma, who would have felt very intimidated as you positioned it towards his head and neck.  The prosecution submitted that given your youth and disability a community corrections order with an attached Justice Plan, if appropriate, was within the range of sentencing options available to me.  That was the course that your counsel also urged me to adopt.

20I received a statement of intellectual disability under the Disability Act 2006 dated 18 September 2017. I also received a client overview report and Justice Plan dated 5 June 2018 prepared by Ms Mizzi. I take that material into account, including the level of your disability, your developmental history and your previous contact with the department. The Justice Plan was prepared at my request and outlines the available services aimed at reducing the likelihood of you reoffending. The department will monitor your participation in the services recommended.

21Today, I had you assessed as to your suitability for a community correction order and Corrections have deemed you suitable.  I must take into account all matters in mitigation and balance those against factors such as denunciation and deterrence.  The interests of the community need to be served by both the imposition of punishment, but also ensuring your rehabilitation and reintegration into society.

22If you could please stand up, Mr Van Mourik.  In respect of all of the offending, that is in respect of Charges 1, 2 and 3, you are convicted and you will be placed on a community correction order for a period of two years.  The conditions on the community correction order will be those that are incorporated or recommended in the Correction report, that is relating to treatment and rehabilitation for drugs and alcohol, supervision, and a Justice Plan.  That is, that the terms of the Justice Plan are mandated as part of your corrections order.

23You should understand, Mr van Mourik, that if you breach this order or commit any other serious offences the matter may be brought back before me on a breach and I would be required to resentence you for these matters.  In those circumstances, the options that I have available to me will be much more limited.  Thank you, you can sit down.

24Are there any other ancillary orders?

25MS BURNETT:  There are, Your Honour, the disposal order; there is also a forensic sample order and a compensation order.

26HER HONOUR:  They have already been signed and returned.  Thank you.

27MS BURNETT:  Thank you, Your Honour.

28HER HONOUR:  There is nothing else then, is there?  Thank you.

29MS BURNETT:  Your Honour, just one query.  Is the matter with conviction or without conviction?

30HER HONOUR:  No, with conviction.

31MS BURNETT:  Thank you, Your Honour.

32HER HONOUR:  Thank you.  Ms Lamovie, could you just take that down to your client and explain it to him, please.

33MS LAMOVIE:  Yes, Your Honour.

34HER HONOUR:  Thank you.

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