Director of Public Prosecutions v Yak
[2020] VCC 1049
•17 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 20-00573
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RYAL YAK |
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JUDGE: | HER HONOUR JUDGE LEIGHFIELD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July 2020 | |
DATE OF SENTENCE: | 17 July 2020 | |
CASE MAY BE CITED AS: | DPP v Yak | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1049 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – category 2 offence – possess controlled weapon without excuse – early plea of guilty – Verdins principles – impaired mental functioning – application of s 5(2H)(c)(ii) Sentencing Act 1991 (Vic) – good prospects of rehabilitation – combination sentence – community correction order
Legislation Cited: Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic) – Control of Weapons Act 1990 (Vic)
Cases Cited: R v Verdins [2007] VSCA 102
Sentence: Charge 1- convicted and sentenced to six months imprisonment. On release from custody placed on a community correction order, with conviction, for a period of two years. Charge 2 - $750 fine. s6AAA declaration – 10 months imprisonment with a community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Ms E. Clark | Victoria Legal Aid |
HER HONOUR:
Introduction
1
Ryal Yak, you have pleaded guilty to an indictment containing a single charge of armed robbery contrary to s 75A of the Crimes Act 1958 (Vic). The maximum penalty for armed robbery is 25 years' imprisonment. Further, as a result of the offence being committed in company with another person, it is a category 2 offence under the Sentencing Act 1991 (Vic). This means that I must impose a custodial sentence for the offence unless at least one of the circumstances set out in paragraphs (a) to (e) of s 5(2H) of the
Sentencing Actexist. I will return to the application of these provisions, as pertinent to this case, in due course.
2 You also consented to this court hearing, and pleaded guilty to, a related summary offence of possessing a controlled weapon without excuse contrary to s 6(1) of the Control of Weapons Act 1990 (Vic) which carries a maximum penalty of 12 months imprisonment or 120 penalty units.
3 These two offences arise from an incident which occurred on the evening of 22 January 2020. At the time you were 22 years of age.
Circumstances of the Offending
4 The full circumstances of the offending are set out in the summary of prosecution opening dated 15 June 2020 which was tendered as Exhibit A on the plea.
5 However, in brief compass, shortly before 7.30 pm on 22 January 2020, yourself, an unknown female and another male (Mr Deng) attended at the KFC outlet at Wyndham Vale. Mr Deng remained at the KFC outlet, whilst you and the female walked into a nearby BP Service Station.
6
The victim in this matter, Mr Jain, was working as an attendant in the store. He was behind the counter when you and the female entered the store at
7.30 pm. Both yourself and the female were carrying a green shopping bag each. The two of you approached the counter, and the female asked Mr Jain for two packets of cigarettes.
7 You handed Mr Jain the shopping bag that you were carrying and both you and the female selected various items – a carton of Big M, three sandwiches, a packet of chips and a packet of beef jerky – and placed them on the counter. Mr Jain then scanned the items and, as he was placing them into the green shopping bag, the female reached into the shopping bag that she was carrying and produced a knife which she pointed at Mr Jain. She told Mr Jain to give the two of you the items that you had selected for free. There were other customers in the service station waiting to be served at the time, including a woman who also worked as a console operator at that BP service station. She heard what took place and told Mr Jain to co-operate and to give the two of you the items.
8 After the female had produced the knife, you pulled your jumper over your head in an attempt to conceal your identity. You then grabbed the green shopping bag containing the items from Mr Jain, and you and the female ran from the store. The total value of the items stolen was $165.00.
9 It is agreed between the parties that the armed robbery is made out against you on the following basis: you were not aware that the female was in possession of the knife until she produced it whilst standing at the counter. However, you became complicit in the offending after that time, as you remained at the counter after the knife was produced, attempted to conceal your identity, and then took the bag containing the items from the counter and ran from the store.
10 An eyewitness called the police who arrived a short time later and saw you, Mr Deng and the female walking together nearby. When the police called out to your group to stop and drop what you were holding, you all ran back along the road and through a floodway next to the service station before separating. You were then chased by two police members. Whilst you were being chased, you tripped and dropped the knife, which you now had in your possession, and the shopping bag. You then got up and ran away again – but you were ultimately apprehended at 7.51 pm and arrested. Mr Deng was also intercepted and arrested by police members on that evening – but was released without being charged. The female was not apprehended at the time and has only recently (in June 2020) been identified and charged by investigators.
Interview and remand
11
You participated in a record of interview at the Werribee Police Station on
20 January 2020. You admitted that you had been at the service station. However you denied that you had been in possession of the knife or stolen goods. You told investigators that you had only met the female on two previous occasions and that you did not know her name. You only knew her as ‘R’. You denied that you had stolen any of the items taken from the store and claimed that there were other people present who were responsible. You also told investigators that you had been drinking for most of the day and were only able to remember parts of the incident.
12 You were remanded into custody after your arrest on 20 January 2020. As a result you have now served 177 days of pre-sentence detention.
Victim Impact
13
Tendered on the plea as Exhibit B was a victim impact statement from
Mr Jain. He has been working at the BP service station since his arrival in Australia in late 2018 as he could not find a job in his skilled field of finance. He was working at night at both the BP part-time and as a taxi driver part-time to support himself and his wife in Australia and his family overseas. However this incident has made him scared to not only work at his workplace, and work at night, but also to leave his wife home alone at night. It has caused him to be anxious, worried and stressed when he is working as he feels unsafe, and feels that he must always be vigilant and prepared for any threat that might come through the door. I have had regard to the content of this victim impact statement. There is no doubt that Mr Jain was, and remains, traumatised by this incident.
Prior criminal history
14 As revealed by the criminal record filed with this court, you have a limited prior criminal history consisting of a set of driving matters in 2016 for which you received a without conviction adjourned undertaking; some dishonesty offences including larceny for which you were sentenced to a two year good behaviour bond in NSW in March 2017; and an unlawful assault for which you were fined $1,000, without conviction, on 5 September 2019. You have also accepted, through your counsel, that there was a further driving matter for which you were fined an aggregate $750 on 13 March 2019 and were disqualified from driving for a period of two years from that day.
15 The matters from March 2017 and September 2019, albeit of a minor nature compared with the current incident, are relevant prior matters and I have taken them into account when considering the sentencing purposes of specific deterrence, community protection and rehabilitation.
Guilty Plea/ Remorse
16 This case resolved at the earliest opportunity, with pleas of guilty being entered by you at the first committal mention on 17 April 2020 – the hand-up brief having only been served on 4 March 2020.
17 Your plea of guilty is of significant utilitarian benefit and it facilitates the course of justice. Further, I am satisfied that despite your initial denials of your involvement in the offending when interviewed, that you do have remorse for your conduct both indicated through your early plea of guilty and the comments made by you to the assessing neuropsychologist, Ms McLaren, as to the impact of your offending. In the circumstances you are entitled to a substantial discount on sentence for your plea of guilty.
Personal Circumstances
18 You are now 23 years of age. You moved to Australia from Sudan when you were five or six years of age. You have two older sisters, two younger sisters and a younger brother, and prior to your remand you were living with your mother and your siblings. Your father, who had been living separately from the rest of the family for a number of years, travelled back to Sudan in late 2019 and has not returned due to COVID-19. As the eldest male child in your family, and with your father not residing in the family home, you took on responsibility for supporting your family as best as you were able from a relatively early age.
19 The references provided to the court by your mother and sister (who I note also both attended at court via WebEx in support of you) speak very highly of your role in the family. Your mother writes that after your father left, you stepped in and played the role of father in the household. You assisted in taking care of your younger siblings, providing them with a large amount of love and care as well as practical assistance such as taking them to school and events they needed to attend. You have also assisted and supported your mother since she has become ill, accompanying her to medical appointments and assisting her around the home. Your sister similarly writes that you have always been there for her and her children whenever she has needed you; and in particular during November last year when she was going through an extremely difficult time in her life. The consistent theme throughout these references is that you are a much loved and much appreciated family member whose current absence is being keenly felt within your family.
20 You completed your schooling in 2015, having moved from Swan Hill to Hoppers Crossing when you were halfway through Year 11. You went on to undertake several TAFE courses including Certificates I, II and III in Sport and Recreation, and Certificates I and II in Building Construction. Since 2016 you have also worked on and off with a cousin who has a construction business; and have also undertaken some days of labouring work through Matchworks – a job agency network. I am told that you hope, in the future, to be able to undertake either a building apprenticeship, or alternatively to become a personal trainer. It certainly seems that you have the capacity to pursue either or both of those goals.
21 In line with your interests in sport and recreation, you have also been playing football at a senior level with the Power House Amateur Football Club in the VAFA since 2016. I received a powerful reference from Mr Nic Pavlouqq, the President of that Club, who spoke very highly of your commitment to both the game of football and the Club. Despite being one of the youngest players on their list, your on-field ability has seen you awarded the 2016 Coaches Award, and being placed in the top 10 in the Senior Best and Fairest in 2016, 2018 and 2019. Further, in 2018, you were elected to a Junior Committee position with the club. Mr Pavlouqq speaks of you as being a quiet, almost shy individual who has never been reported despite being subjected to on-field and off-field racial taunts and attacks by opponents and spectators weekly. He has made it clear that the Club values you highly and are committed to supporting you through this challenging time in your life. It is obvious that sport plays an important role in your life, and that you have made positive contributions to the community through your involvement in football.
Impact of COVID-19
22 During the period that you have been in custody, you have been impacted by the COVID-19 pandemic in a number of ways. The situation has caused additional stress for both you and your family in respect of concern for your health should the virus spread in prison, and concern for the health of your family in the community particularly against the backdrop of your father’s absence and your mother’s ill-health. This has been exacerbated by the suspension of face-to-face visits, albeit you have been able to maintain phone and video contact with your family.
23
Further, whilst you were able to engage in a number of programs when you were first remanded, in more recent months you have had reduced access to programs, education, exercise and employment. You are currently working in the timberyard at Metropolitan Remand Centre, but you are also subject to a regime of lockdowns - currently in the order of half a day per day. Given the current state of the pandemic and Stage 3 restrictions having been
re-imposed in metropolitan Melbourne for a period of at least six weeks, it is unlikely that conditions are going to change in the near future.
24 I take this added burden of imprisonment into account.
Drug and Alcohol Issues
25 Despite your positive involvement with family, education and work, and sport, you have over time had some issues with the use of alcohol and cannabis, especially in times of stress or when not focused on football. Indeed your offending on this occasion occurred during the football off-season, on a day when you had not been working, and after you had spent some hours consuming alcohol.
26 You reported to Ms McLaren that you commenced drinking alcohol when you were 15 years of age, initially just at parties. However, your alcohol consumption steadily increased to the point where, at the age of 18, you were drinking a significant amount on a Saturday night during football season, and a significant amount on a daily basis during the off-season.
27 You have also engaged in some occasional cannabis use since you were 15 or 16 years of age, but had not used any at the time of this offence.
28
You have never undertaken any treatment for drug and alcohol issues.
Ms McLaren has recommended that given your history of alcohol abuse, and your cannabis use, that you engage in drug and alcohol intervention, both to be educated about the impact of substance use, but also to gain assistance in developing strategies to avoid ongoing substance abuse. I note that this is particularly important during those periods when you are not playing football or are experiencing additional stressors in your life, and is relevant to your prospects of rehabilitation and the type of sentence which should be imposed in this case.
Cognitive functioning and application of Verdins principles
29
I have referred now, on a number of occasions, to the neuropsychological assessment and report from Ms Anna McLaren. That report is dated
26 May 2020 and was tendered on the plea as Exhibit 2.
30
On 10 June 2017 you were admitted to the Royal Melbourne Hospital neurosurgery ward with a subarachnoid haemorrhage after an incident where your cousin pushed you during an argument and you fell down some stairs. You remained under hospital care in various forms until discharge from
Austin Health on 29 June 2017. In that time you suffered two to three seizures, and a neuropsychological assessment conducted whilst in hospital revealed significant impairments in your ability to organise and integrate complex visual information and with your executive skills including reasoning, set-shifting and self-monitoring. On discharge it was recommended that you receive assistance and supervision with unfamiliar meal preparation, tasks involving complex written information, and complex money handling, that you delay the commencement of your carpentry apprenticeship and that you be referred to support services. It was anticipated that there would be some improvement in your cognitive function over time.
31 As part of her assessment of you, Ms McLaren undertook a range of testing. Your premorbid level of intellectual functioning was estimated to be within the borderline to low average range. Your performances during the assessment ranged from extremely low to high average levels. Ms McLaren assessed you as having a full-scale IQ of 74, placing you in the borderline range for intellectual functioning. Upon testing of your executive functions, Ms McLaren found that your planning and organisation is poor, you have a tendency to rush into things at the expense of accuracy (impulsivity) and that you have difficulty shifting attention between competing demands.
32 According to Ms McLaren, your daily functioning is impacted in the following ways as a result of your cognitive impairments:
· you have difficulty reading more complex or unfamiliar words;
· you have limited vocabulary which may contribute to problems explaining yourself and getting your message across; and which may lead you to misinterpret or misunderstand things which you are told or which you read;
· you are concrete in your thinking meaning you trouble ‘reading between the lines’;
· you have trouble taking in lengthy information, particularly if it is not repeated to you;
· you have trouble multi-tasking;
· you have difficulty planning and organising information; and
· you may have a tendency to rush into or through tasks, actions and/or behaviour before first considering the consequences, or with inhibiting automated verbal responses which may result in errors which you will consequently need to correct, or carrying out behaviours/actions which you later regret.
These difficulties in your functioning are likely to be further compromised at times when you are using substances.
33 Ms McLaren, at p.18 of her report, stated the following in respect of the relationship between your cognitive functioning and the current offending:
Mr Yak’s performances on current neuropsychological assessment indicated he has a tendency to rush into things before considering the consequences or risks of his actions or behaviour. His impaired executive abilities mean that he may have difficulty weighing up information sufficiently well to make appropriate judgments, or to appropriately plan ahead and consider the outcome or next step in his actions. His limited verbal intellectual abilities (in particular his verbal reasoning), will also mean he is vulnerable to not appropriately reading situations, and may be gullible and open to coercion or manipulation. These factors are likely to have contributed to Mr Yak being involved in the offending. Further, it is understood that he was alcohol intoxicated at the time of the offending, which will have likely further compromised his cognitive abilities, and exacerbated the aforementioned impairments.
34 Ms McLaren also expressed the opinion that the combination of your tendency to rush into things, difficulty with inhibiting automated verbal responses, inattention to detail and your higher level attentional difficulties may impact on your ability to make calm, reasoned and considered decisions, and control your emotions. Therefore, although you were able to show capacity for judgment and reasoning during interview, appropriate reasoning and judgment are effortful for you and may not be achieved until after an action or behaviour has occurred, or before it has been pointed out to you.
35 Ms McLaren also stated the following, at p.19, in respect to the burden or risks of imprisonment on you:
Mr Yak’s borderline to low average level of intellectual functioning and cognitive impairment may impact on his ability to comprehend information presented to him (particularly in a verbal format), and to fully communicate his needs. These weaknesses will also likely affect his ability to appropriately judge and understand risk in social situations, which may make him vulnerable, gullible, and open to manipulation. His low intellect and tendency to rush into things before considering the consequences may place him at risk of trying to get his message across through more physical means… His borderline verbal intellectual abilities may also make him vulnerable to learning through more practical demonstrations and modelling from those around him, meaning time in custody may place him at risk of suggestibility and learning maladaptive behaviours, which is a particular concern given it is his first time in prison.
36 It was submitted by your counsel, and conceded by counsel for the prosecution, that a number of the principles in Verdins are enlivened in this case. It was common ground that whilst your intoxication on the evening in question had some impact on the deficits in your level of functioning and therefore reduced the weight which could be placed on the impact of your impaired functioning, that the impact of your traumatic brain injury was still such that it did contribute to your decision to disguise your identity and remain by your co-accused’s side, rather than leave the situation.
37 I am satisfied, given the opinions expressed in Ms McLaren’s report, that the impairment of your cognitive function is relevant to sentencing in the following ways:
(i) your moral culpability is moderately reduced thereby affecting what is considered to be just punishment and lessening the need for denunciation;
(ii) it has a bearing upon the kind of sentence that is imposed and the conditions under which it should be served;
(iii) the weight to be given to general deterrence is to be moderated both in terms of the effect of the impairment at the time of the offending and at the time of sentence; and
(iv) a term of imprisonment would weigh more heavily on you than it would a person in normal health.
38 I note that the weight which I have given to each of these factors is not as significant as it would have been had you not also been impacted by alcohol at the time of the offending.
Category 2 Offence – Applicable Sentencing Principles
39 As relevant, s 3 of the Sentencing Act 1991 provides that an armed robbery is a category 2 offence if the person who commits the offence is 18 years of age or more at the time of the commission of the offence, and the offence was committed by the offender in company with one or more other persons. Accordingly, as noted at the outset, you have committed a category 2 offence.
40 This enlivens s 5(2H) of the Sentencing Act 1991 which provides that in sentencing an offender for a category 2 offence, the court must make an order under division 2 of part 3, other than a term of imprisonment in combination with a community correction order, unless –
(a) the offender has assisted or has given an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence; or
(c) the offender proves on the balance of probabilities that –
(i) subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability; or
(ii) the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
(d) the court proposes to make a Court Secure Treatment Order or a residential treatment order in respect of the offender; or
(e) there are substantial and compelling circumstances that are exceptional and rare and that justify not making an order under
Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
41
Your counsel, Ms Clark, submitted on your behalf that there are substantial and compelling circumstances that are exceptional and rare under
subsection (2H)(e) in this case that justify the imposition of a sentence of imprisonment in combination with a community correction order, rather than a straight term of imprisonment. Ms Zammit, on behalf of the Director of Public Prosecutions, submitted that the prosecution does not agree that
subsection 5(2H)(e) has been met. However the prosecution does accept that it would be open for the court to find that s 5(2H)(c)(ii) applies – that is that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment – and that a combination sentence of imprisonment and a community correction order would therefore be open to the court and, in this case, within range.
42 I note that during discussion on the plea, whilst Ms Clark maintained her submission that the circumstances under s 5(2H)(e) could be made out in this case by a combination of circumstances, she confirmed that it would be open to the court to be satisfied that s 5(2H)(c)(ii) applied, which would eventuate in the same result.
43 Given the neuropsychological materials before the court and the conclusions of Ms McLaren in respect of the risks and burdens of imprisonment on you, which I have accepted and outlined above, I am satisfied that that you do have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. In particular I am satisfied that by reason of your impaired cognitive functioning you will be substantially more vulnerable and open to manipulation, you will be less able to fully communicate your needs and to appropriately judge and assess risk, and your suggestibility and vulnerability to learning through modelling will place you at significant risk of learning maladaptive behaviours. Accordingly, I am satisfied that s 5(2H)(c)(ii) has been met and I am therefore not constrained by s 5(2H) as to the kind of sentence I can impose in this case. In the circumstances, I am of the view that it is not necessary for me to consider whether the circumstances under s 5(2H)(e) have also been made out.
Gravity of the Offending and Moral Culpability
44 Turning now to the gravity of the offending. Your counsel conceded on your behalf that the offending was serious. However it was also submitted on your behalf that your role in the offending was short in duration and arose spontaneously, without pre-planning. Further it was submitted on your behalf that your actions were consistent with your impaired cognitive functioning.
45 Prosecuting counsel similarly submitted that the armed robbery was serious and could be considered a mid-range armed robbery given that it occurred in a service station (which is a soft target), involved the production of a bladed weapon and occurred in the presence of three members of the public as well as the console operator (all of whom indicated in their police statements that they were scared and/or shaken up by the incident). However, prosecuting counsel also submitted that the circumstances of this offence, when taken together with your personal circumstances, distinguish this armed robbery from the majority of armed robberies heard in this court. It was conceded and agreed by the prosecution that there was no pre-planning or knowledge on your part as to the co-accused’s idea, thought or intention to commit the armed robbery. Your liability arose as the result of failing to remove yourself from the situation once the knife was produced, and instead participating in the offence by attempting to disguise yourself, taking the bag containing the items from the counter, and running from the store. Ms Zammit also conceded in both her written and oral submissions that your moral culpability for the offence is moderately reduced as a result of the impact of your traumatic brain injury.
46 Ultimately, whilst I am satisfied that the armed robbery was a serious offence with significant ongoing consequences for the victim in this matter, you fall to be sentenced for your role in that offence which, in my view, falls at the lower end of seriousness for this kind of offending. You had no knowledge that the offence was going to occur until the co-accused produced the knife, you did not produce a weapon, you did not make threats to anyone present, and your impaired cognitive abilities contributed to your decision to attempt to disguise your identity and run out with the bag rather than leave the situation.
47 So far as your possession of the knife after the event is concerned, it is not clear how you ultimately came to be in possession of the knife. Ms Zammit submitted that it was concerning that you were holding the knife in your hand as you were running away from the police. However, I am not satisfied that this is an aggravating feature of this offence. Whilst you may have been holding the knife whilst you were running away, it was not your knife, you were not the person who had originally produced it, you did not have it for an extended period of time, you did not at any stage use the knife in any way towards the police members, and you did not attempt to retrieve it when you dropped it. In the circumstances, I do not consider the possession of the knife to be a serious example of this kind of offence, and it would significantly overstate the gravity of the offending on this charge if I was to sentence as between the two charges on an aggregated basis.
Prospects of Rehabilitation and Community Protection
48 Both Ms Clark and Ms Zammit submitted that you have good prospects of rehabilitation given the following factors:
· your limited prior history;
· your limited role in this offending and the spontaneous way in which it arose;
· you have some insight into your offending, have expressed remorse and a desire not to re-offend;
· your involvement in pro-social activities such as football and employment; and
·
the ongoing support of your family, football community and the
Junubi Wyndham CSG program.
49 I agree that your prospects of rehabilitation are good, especially if you engage in ongoing treatment and education in respect of your alcohol and drug issues.
50 I am also of the view that community protection would be best achieved in your case by removing you from the prison environment where you are at significant risk of learning maladaptive behaviours, and instead placing you back in the community with treatment and supervision supports in place.
Other Sentencing Purposes
51 As discussed above, whilst denunciation and deterrence (both general and specific) and just punishment are all sentencing purposes which would ordinarily be of significant weight when sentencing for an offence of armed robbery, the impact of your cognitive functioning is such that I have moderated the weight which would otherwise be placed on these purposes.
Other Sentencing Principles
52 Finally I have also taken into account the principles of totality and parsimony in this case as well as current sentencing practice.
Sentencing submissions
53 As previously noted, Ms Clark urged the court to impose a term of imprisonment combined with a community correction order given your limited role in the offending, your limited prior history, your plea of guilty, your good prospects of rehabilitation, the impact of your cognitive functioning and the supports which you have in the community.
54 Ms Zammit, on behalf of the prosecution also submitted that if the court was satisfied that s 5(2H)(c)(ii) applied, that a combination of imprisonment and a community correction order would be open given the mitigating circumstances in this case taken together with the need to treat your alcohol and cannabis issues.
55 I have had you assessed for a community correction order and you have been found suitable to complete such an order should I deem it appropriate for a combined sentence to be imposed.
Sentence
56 Having carefully considered the various sentencing considerations raised by this case, I am of the view that all sentencing purposes in this case can be achieved through the imposition of a combination sentence on the armed robbery charge and a financial penalty on the possession of controlled weapon charge. Mr Yak, if you could stand now please. So, Mr Yak, you will be sentenced on each charge as follows:
57
On Charge 1, the armed robbery, you will be convicted and sentenced to
six months imprisonment. In addition to the imprisonment component of the sentence, on your release from custody you will be placed on a community correction order, with conviction, for a period of two years. In addition to the mandatory conditions of the order you will be subject to the following special conditions:
(i) you will be under the supervision of a Community Corrections officer for the entire period of the order;
(ii) you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed;
(iii) you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed;
(iv) you must participate in programs and/or courses that address factors relating to the offending as directed; and (v) you must participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation, that may include employment, educational, cultural and personal development programs as directed.
58 On the related summary charge of possessing a controlled weapon without excuse, you are convicted and fined the sum of $750. That fine will be referred to Fines Victoria for collection and management.
Pre-sentence Detention
59 The period of 177 days of pre-sentence detention, not including today’s date, is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the records of the court.
S 6AAA Declaration
60 Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty to the charge for which you received a term of imprisonment today and had been convicted of it, you would have been sentenced to a term of imprisonment of 10 months plus a community correction order.
Ancillary Orders
61 Pursuant to s 78(1) of the Confiscation Act 1997 (Vic), I make a disposal order in respect of the knife seized during the investigation.
Other Matters
62 Counsel are there any other matters that either of you wish to raise at this stage in respect of either the sentence or reasons for sentence before I address Mr Yak in more simple terms about the orders I have made?
63 MS CLARK: No, Your Honour.
64 MS ZAMMIT: No, Your Honour.
65 HER HONOUR: All right. So, Mr Yak, you can have a seat while I explain this to you a little bit better, all right? So what I have done is I have given you six months' imprisonment. You have already done 177 days. Six months imprisonment normally works out to 180 days, but I am told by Ms Clark in correspondence that was sent to the court that you may also have the benefit of some emergency management days. So you may be credited some extra days. If that is the case than it may well be that you get released today. But, if not, the most extra gaol you are going to have to do is a few more days. Do you understand that? All right.
66 The next thing is, depending on what day you get released, you then are on a community corrections order for two years. So if you get released today what you are going to have to do is that you are going to have to report by telephone to the Werribee Community Corrections Service by 4 pm on Monday if you are released today. If you are released on the weekend than it will be 4 pm on Tuesday. If you are released on Monday than it is by 4 pm on Wednesday. All right? So you have got to report within the two working days of being released.
67 So if you do happen to be released today you need to make a phone call to Corrections by 4 pm on Monday; do you understand that?
68 OFFENDER: Yes, Your Honour.
69 HER HONOUR: All right. Now as I say that order is going to go for two years. You have to do assessment and treatment for drugs and alcohol. So if you are asked to go to any appointments, if you are asked to do any drug urine testing, for example, you need to do that. All right?
70 You also need to do any courses that you are asked to do, either to address offending or to help in your rehabilitation. So if Corrections ask you to go and do courses you need to do those. Do you understand that?
71 OFFENDER: Yes, Your Honour.
72 HER HONOUR: All right. And the other thing is that you will be under supervision of a Corrections officer. So you will have a case manager who is working with you over those two years who you will need to have appointments with. Now at the moment because of COVID-19 it is likely that you will do those by phone and by video rather than in person. But once COVID's gone than you will probably have to go to Corrections to do those appointments, does that make sense?
73 OFFENDER: Yes, Your Honour.
74 HER HONOUR: All right. Now what I need to explain to you is that it is really important that you do not break this order in any way. It is important that you do not commit any offences that are punishable by imprisonment over the next two years.
75 Now just to show you how easy it is to do that; if you for example drove whilst disqualified, so you do not have your licence at the moment, you are disqualified from driving. If you drove before you get your licence back that is actually a charge that would break this community corrections order because you can get gaol for driving whilst disqualified. All right? So it is really important you do not do anything that breaks the law that could result in you getting a term of imprisonment during this two year period. All right?
76 It is also really important that you do everything that you are asked to do by Corrections because if you do not Corrections can bring you back to court and seek to have you resentenced in relation to the armed robbery. So it is really important that you do everything that you are asked to do; do you understand how that works?
77 OFFENDER: Yes, Your Honour.
78 HER HONOUR: All right. So do you understand everything you are required to do on that community corrections order?
79 OFFENDER: Yes.
80 HER HONOUR: All right. And you understand that if you break it, either by committing another offence or by not doing what you are asked to do, you will find yourself back at court?
81 OFFENDER: Yes.
82 HER HONOUR: And so do you agree to do that order given all of that?
83 OFFENDER: Yes, Your Honour, I agree.
84 HER HONOUR: All right, thank you very much.
85 Mr Yak, I just want to wish you all the best. I hope that we do not see you back in this court ever again, all right? All right.
86 All right, is there anything further, counsel?
87 MS CLARK: No, Your Honour.
88 HER HONOUR: Ms Zammit?
89 MS ZAMMIT: No, Your Honour.
90 HER HONOUR: All right. Can I thank you both for, as I said on the last occasion, the really helpful written submissions that you both provided to the court and also your oral submissions. They were very, very helpful.
91 MS CLARK: As Your Honour pleases.
92 HER HONOUR: All right.
93 MS ZAMMIT: Thank you, Your Honour.
94 HER HONOUR: Ms Clark, would you like an opportunity to speak to Mr Yak once I have left the Bench?
95 MS CLARK: Your Honour, I have a formal call booked with him at 12.30 today, so I will be able to speak to him then but thank you.
96 HER HONOUR: All right, thank you. All right, thank you very much.
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