Director of Public Prosecutions v Zorkau

[2022] VCC 2106

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00835

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN ZORKAU

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2022 and 29 November 2022
DATE OF SENTENCE:	1 December 2022
CASE MAY BE CITED AS:	DPP v Zorkau
MEDIUM NEUTRAL CITATION:	[2022] VCC 2106

REASONS FOR SENTENCE
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Subject:Criminal Law

Catchwords:              Armed robbery; theft; parity;

Legislation Cited:      Crimes Act 1958 ss 74, 75A; Drugs, Poisons and Controlled Substances Act 1981 s 73; Sentencing Act 1991 ss 5(2H), 6AAA.

Cases Cited:Bugmy v The Queen [2013] HCA 27; DPP v Fulton [2021] VCC 2085.

Sentence:                  Imprisonment for a term of 3 years 2 months, non-parole of 20 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Pathmaraj	Office of Public Prosecutions
For the Accused	Ms N. Giorgianni	Giorgianni & Liang Lawyers

HER HONOUR:

Plea

1Dylan Zorkau, you have pleaded guilty to one charge of armed robbery, one charge of theft and two charges of possessing a drug of dependence – the latter on a single date – in relation to buprenorphine and alprazolam respectively.

2You also agreed to have uplifted and pleaded guilty to one charge of driving while unlicensed.

3The maximum penalty for the charge of armed robbery is 25 years' imprisonment and the maximum penalty for the charge of theft is 10 years' imprisonment.

4The drug possession charges each carry a maximum penalty of one year imprisonment or 30 penalty units. The maximum penalty applicable for driving while unlicensed is six months' imprisonment or 60 penalty units.

Factual background

5You offended in the company of two other people: Mr Kennedy, who was 20 years old at the time, and a third person whose identity remains unknown. I will refer to him hereafter as your 'co-offender'. Mr Kennedy was sentenced by His Honour Judge Gamble on 4 March 2022, and I will return to that sentence when I consider the parity issue in this case.

6On 1 June 2021 Mr Harmanjeet Singh was making a delivery as an Uber Eats driver. He pulled up outside the delivery address on the Princess Highway in Corio, and parked his car across the driveway of the address next door to where he was to deliver the order. It was dark. Mr Singh got out of his car and made his delivery. As he returned to his car, he lit his way with the torch on his phone.

7When he got to his car, he saw you walking down the driveway across which he had parked his car. You approached the front passenger side of his car and said 'why are you taking pictures?', apparently a question related to Mr Singh's use of his phone torch.

8At this point, Mr Kennedy and your co-accused drove in a car down the driveway towards Mr Singh's still parked car, coming close to striking it. Your co-offender got out of the car driven by Mr Kennedy and approached Mr Singh's car door. As he did this, Mr Kennedy revved the car he sat in; at this point you spoke to Mr Kennedy and said: 'just wait don't smash into his car.'

9Your co-offender then opened Mr Singh's car door, took the key from the ignition and said 'give me all your money'. Mr Singh told you he did not have any money. Your co-offender then yelled at him repeatedly 'you wanna get stabbed?'. He then said 'give me the knife, give me the knife'. Mr Singh said 'please don't do that please, I don't have any money to give to you.'

10Your co-offender then asked you for a knife, and you passed him one. It was black, a flick or fold out knife. Your co-offender then held this knife against Mr Singh's stomach and yelled 'do you wanna get stabbed'. Mr Singh, rather bravely it must be said, replied 'please brother, don't do that.'

11

Your co-offender persisted. He took the knife from you and held it against Mr Singh's throat and repeated his demands for money. Mr Singh felt frightened; he thought he was about to be stabbed. He took out his wallet containing identification, a driver's licence, $200 in cash and opened it to give your

co-offender his money. Your co-offender snatched Mr Singh's wallet from his hand and walked back to Mr Kennedy's car and got in. These events give rise to Charge 1, armed robbery.

12Mr Singh then got out of his car and pleaded with you: 'please, you have my wallet, please just give me back my keys I just want to get home.’

13

You then said to Mr Kennedy or your co-offender: 'okay man, just give him his keys back, you got the money.' You then gave Mr Singh's keys back to him. Your

co-offender then got angry and said 'don’t fucking give him the keys'. Mr Singh became very frightened and walked away saying 'okay okay, you have my keys and my wallet and money just go leave me alone.'

14Your co-offender then said 'okay man take your wallet here.' Mr Singh said 'no just take it and leave me alone.' Your co-offender insisted, and as Mr Singh reached for his wallet your co-offender grabbed him by the arm and said 'give me your phone.' Mr Singh replied 'I can't give you my phone.' Your co-offender then punched Mr Singh to the collarbone. He took Mr Singh's phone and got back into the car with Mr Kennedy and the two then drove away.

15You then got into Mr Singh's car and drove away in it. You were not licensed to drive at the time. These events give rise to Charge 2 and to the related summary offence.

16Mr Singh watched both cars drive off then went into the delivery address and had assistance to report the incident to police.

17When police arrived, they found a 'Gerber' folding knife outside.

18The charge of armed robbery is put against you on the basis that you were party to an agreement to rob Mr Singh and that at that time you were aware that your co-offender was in possession of the knife that you had, shortly before, handed to him. It is not put that you were party to an agreement to rob Mr Singh of his car-keys or his phone. I make it clear that you are about to be sentenced on Charge 1 for your acts up to the completion of the armed robbery once the wallet was stolen.

19The charge of theft is put on the basis that you, knowing that Mr Singh's keys had been taken from him, drove away in his car against his wishes and without his permission.

Arrest and interview

20At 8:00am on 3 June 2021 you were arrested at an address in Corio. Police searched you and found a snaplock bag containing two buprenorphine strips (Charge 3 possession of a drug of dependence) and a snaplock bag containing alprazolam tablets in it (Charge 4 possession of a drug of dependence.)

21During the police interview you in part exercised your right to silence, made some denials, made some partial admissions, such as admitting to being in the area at the time and admitting to knowing Mr Kennedy. After Mr Singh had identified you from a photo board, the interview resumed. You made further admissions at this point including stating that it was wrong for the victim to have a knife put to his throat and stomach and acknowledging that Mr Singh would have been scared and that what had happened would have had a bad effect on him.

22You were remanded into custody and have remained there ever since.

Prior criminal History

23Your criminal history commences in the Children's Court in Geelong in 2013. Your first appearances in adult court commence in 2019, and your history shows between 2019 and 2021 a range of minor drug, dishonesty and driving offending, along with breaches of court orders. Your prior offending, initially at least, is of a relatively low level, and does not involve offending against people until the notable offence of carjacking, recorded in 2021.

24For that charge you were sentenced to a period of nine months' imprisonment. After that sentence, you were sentenced twice more in the Magistrates' Court in March and April 2021; and one of these sentences included a community corrections order, which you were on at the time of your commission of this offence. I note that this sequence of sentences caused you to be released from imprisonment just 10 days before your commission of the offending now before me and you were on a community corrections order.

Nature and gravity

25You committed the armed robbery in the company of two others in the darkness of a suburban street against a person who was earning his living as a food delivery driver. This was Mr Singh's workplace. There was a menacing aspect to what you did. Mr Singh was outnumbered. I have read the remarks of His Honour Judge Gamble in his assessment for the purpose of Mr Kennedy's sentence. [1] His Honour used the words 'terrifying', 'intimidating' and, of Mr Singh 'vulnerable', and I adopt these descriptors, and add 'cowardly', by reference to the fact that you did this in the company of two others.

[1]See also Sentencing remarks of Judge Gamble at [28] and [29]

26

I accept that your culpability in the scheme of things is lower than that of your

co-offender, who seems to be the orchestrator of each chapter of what happened. I will return to a comparison between you and Mr Kennedy later in these reasons.

27

On the plea, the prosecution submitted that your agreement to rob Mr Singh was born before you approached him at his car (though it was not suggested that the Uber delivery was part of the scheme). Counsel for the Director submitted your role was to 'stall' the driver, as I understand it, until your co-accused assisted you. Your barrister submitted that the state you were in (high on ice, paranoid) explains your questioning of Mr Singh's use of his phone, and that the agreement (or assistance) commenced at this point, when you handed the knife to your

co-offender. Your barrister submitted that if there was an agreement to do the armed robbery, why, he asked rhetorically, would you have not handed over the knife from the beginning?

28

Ultimately, and bearing in mind the onus and standard of proof, I find that the agreement (or assistance) arose at the time when you passed the knife to your

co-offender and persisted until the wallet was obtained. I note that, unlike your

co-offender, you did not attempt to disguise your face.

29This was menacing and truly unpleasant conduct by each of you, and no doubt frightening for Mr Singh. I acknowledge that there were some faint attempts by you to mitigate Mr Singh's experience: you urged Mr Kennedy not to smash his car; you argued for the return of Mr Singh's keys so that he could at least drive away – you did not follow through that impulse though, and ended up taking the car yourself, leaving Mr Singh, someone trying to earn his living, stranded in a suburban street, at night, with no phone, no wallet, no keys and no car.

30I accept that your theft of the car, while very inconsiderate, was spontaneous, and you abandoned it shortly thereafter, receiving no advantage other than your flight. There is no evidence you received any enrichment from the armed robbery.

31I have already noted that you were on a community corrections order at the time, which is a matter I must also take into account.

32I conclude that your offending on the charge of armed robbery sits somewhere on the scale approaching the midpoint of gravity for offences of its type.

33The drug possession charges I find at the very lowest level in that category.

Personal circumstances

34You were 25 at the time of your offending and are now 26. Born in Geelong, you have six siblings. Your parents, inexplicably, abandoned you and each of your siblings. You have not seen or spoken to them since. When this occurred, you were two years old.

35You were put into foster care, and later raised by an aunt and uncle with two of your brothers. Your other siblings were spread over other housing arrangements and you had some contact with them as you all grew up.

36When you were 13 or 14 your aunt and uncle's marriage failed. The household abandoned attempts at rules; your uncle used alcohol heavily. You left and mostly lived a homeless existence, couch surfing periodically.

37At some stage during your childhood, you came to the realisation that your parents were not coming back for you or for your siblings. There was no attempt to explain or excuse what your parents had done. You were simply told that they gave up and did not want you.

38You formed one serious relationship as you grew older, and a gap in your prior history between 2015 and 2019 suggests that this was a stabilising relationship for you. You mostly avoided drug use. However, a relapse into drug use ruined the relationship; and the end of the relationship compounded the drug use. Your first period of adult imprisonment flowed.

39You attended school in Geelong, passing Year 10, but not returning.

40You first used drugs at 14 (cannabis initially) and began experimenting with methamphetamine from 15 years old; you describe there being methamphetamine 'all around' you at this time, and you began daily use. Your partner, who you had met when you turned 18, supported you getting clean and staying abstinent for some years.

41You did have full-time work for around two years from 2016, processing chicken mostly destined for Kentucky Fried Chicken. Your employment was terminated around the same time as the loss of your relationship and for the same reason.

42Your drug use escalated after the end of the relationship, and has included an admission to hospital in Geelong for treatment.

43After your release from custody in the days before this offending, your treatment on the community corrections order had not yet commenced. You had immediately started using drugs again and were using on the night of your commission of this offence.

44Worryingly, you appear to find custody in some ways suitable as it provides you with stable accommodation and food. You are on the methadone program; however, it has side effects for you which undermine your self-confidence.

Matters in mitigation

Plea of guilty

45Your plea of guilty entitles you to a significant discount on your sentence. While you did exercise your right to cross-examine Mr Singh at a committal, I note that this did result in a clarification of the prosecution case: you never disputed your presence at the scene and the cross examination assisted the resolution of this matter.

46Your plea carries with it significant utilitarian value; the community was spared the costs, both human and financial, of conducting a trial. At any time this would be a matter of great significance on your sentence. But at the moment, authority makes it clear that your plea earns you a substantial additional discount, as it has a special value in the endeavour to reduce the backlog of trials caused by the pandemic.

Bugmy disadvantage

47When you were two years old you were abandoned by both your parents. You grew up without their support and without any understanding of why they left other than what flows from the statement that they simply did not want you.

48I accept that this incomprehensible abandonment, and the subsequent dissolution of your adopted household, has had a profound effect on your ability to live a stable existence. Your parents' departure, I accept, will resonate through your life in so many enduring ways. By 14 you were resorting to drug use and preferred homelessness over the type of home that your aunt and uncle's house had become.

49Your formative years have meant your childhood and adulthood are attended by profound disadvantage. Your offending, against this background of disadvantage, occurred 10 days after your return to the community from custody, high on ice, and to some degree subject to the demands of your co-offender. I find your moral culpability is reduced consistently with the principles to be applied in the case of Bugmy v R. In taking this into account, I am also obliged to consider the role for community protection and will return to this principle later in this sentence.

Prospects of rehabilitation

50Turning now to my assessment of your prospects of rehabilitation. I find these are not particularly bright. However, you have had a lengthy period while in a relationship of work, and stability, and abstinence from substance abuse. So, you do have the lived experience of living lawfully and prosperously. I also note that even while committing this very serious offence, some perception of Mr Singh's humanity shone through, if briefly and dimly, during what you did, and caused you to speak up twice for his perspective.

51You do have a place to stay once you are released, you do still have relationships with your siblings that matter to you. I am encouraged by your description of being ashamed about what you did.

52To rehabilitate, you will need to confront squarely your vulnerability to substance use while in the community. Your prospects of rehabilitation depend almost entirely on your confrontation of your drug use.

Remorse

53I find that your plea of guilty, notwithstanding that you did conduct a committal and cross-examined the victim, does contain within it an aspect of remorse. You acknowledged, amongst other statements in your police interview, that this event would have been difficult for Mr Singh.

Conditions in custody

54You have spent over 500 days in custody prior to the completion of your case and each of these days has been spent in extraordinary conditions made necessary by the response to the COVID-19 pandemic. I take this into account in mitigation of your sentence. You have endured sporadic lockdowns, and less time out of your cell. At your present location, dinner is served at 3:00pm, and at 4:30pm you are locked in your cell until the following day.

Victim Impact

55I must consider the impact of this offending on your victim. Mr Singh did not file a victim impact statement, but his police statement speaks of his fear that he would be stabbed. Mr Singh was working as an Uber Eats delivery driver. I infer, safely I think, that these events would have had an impact on how he felt about his employment and about going back to work, work necessarily done, in the main, alone and at night.

Parity: Mr Connor Kennedy

56Mr Kennedy, who was sentenced in relation to the armed robbery charge and a series of related charges, received a total effective sentence of three years and four months. Three years on the armed robbery charge was the base sentence. He also pleaded guilty to a charge of theft of a car, though of a different car and in different circumstances.

57A comparison between you and Mr Kennedy is not straightforward. Mr Kennedy did not conduct a committal. You cross examined the victim, but this facilitated the resolution of the case. Mr Kennedy's plea was earlier; yours, formally at least, a little later.

58Mr Kennedy had a more serious and more relevant criminal history, including two prior convictions for armed robbery and one for robbery. Your most serious prior conviction is for carjacking, and does not otherwise disclose offences against the person. You and Mr Kennedy have a common drug use history. Mr Kennedy suffered from a mental health problem, but not one which engaged the principles in Verdins.

59You were 25 at the time of the commission of the offence, Mr Kennedy 20 years old. Mr Kennedy was on youth parole and bail at the time of his offending; you were on a community corrections order.

60In terms of your respective roles, Mr Kennedy drove your co-offender down the driveway and intimidated the victim by revving the car and driving close to Mr Singh's car, and drove away with your co-offender. You approached Mr Singh, gave the knife to your co-offender, and drove off in the victim's car. You did at least gesture at getting Mr Singh his keys back. Mr Kennedy carried out no such act. Both counsel submitted that in relation to role there was little between you in terms of culpability.

61Your background engages the Bugmy principles; Mr Kennedy had lost an aunt and his mother at a very young age. Mr Kennedy could call on ongoing support from family on his release from custody. You have some, though perhaps lesser support.

62In the end, both counsel submitted there was little, if any difference, between your roles and mitigating features when everything is balanced out and I adopt that approach: I do not find, on the armed robbery charge, there to be any significant disparity between you and Mr Kennedy for the purposes of sentence on that charge.

Mandatory sentencing structures

63Armed robbery, being a Category 2 offence engages s 5(2H) of the Sentencing Act 1991, and I must impose a sentence of imprisonment; no exceptions were pressed on your plea. No combination sentence is available here. You will receive a head sentence with a non-parole period.

Sentencing landscape

64I have had regard to the sentencing landscape, particularly for the charge of armed robbery. No particular comparable cases were referred to other than the obvious case of Mr Kennedy's sentence. I read the cases given to His Honour Judge Gamble on his sentencing and I sentence you with some understanding of the current sentencing practices for these charges, though my job is to impose individual justice.

Sentencing principles

65In the context of your prior convictions and your very recent release from custody this sentence must act to deter you specifically from offending again. The sentences that you get will keep going up until you stop. I must bear in mind the protection of the community from you in imposing this sentence. That said, you are still relatively youthful, and the community has a long-term stake in your rehabilitation, and I will fix a non-parole period with this in mind.

66There is a significant role for general deterrence here: it should be well-known that very substantial punishment flows from offending of this nature.

67You must be justly punished for what you did. Through this sentence, and on behalf of the community, the sentence denounces what you did: it is unacceptable to frighten someone in Mr Singh's position, or indeed anyone else, in the way you did.

Consideration

68There is no sentence open to me but one in the form of a head sentence with a non-parole period. I have had regard to Mr Kennedy's sentence on the armed robbery. I will impose a sentence that properly recognises the gravity of what you did, and balance this against the matters I have found in mitigation. Your head sentence will be slightly lower than Mr Kennedy's by reference to the differences in your charges, but I fix the same non-parole period as that Mr Kennedy received, this causing your non-parole period to be slightly higher, proportionally, than the 50% set by Judge Gamble, mostly by reference to your slightly greater age at the time of this sentence.

69Mr Zorkau, I am now going to give you the sentence, so this is the end bit.

Disposition

70On Charge 1, armed robbery, you are convicted and sentenced to 3 years' imprisonment.

71On Charge 2, theft, you are convicted and sentenced to 6 months' imprisonment

72On Charges 3 and 4, being the drugs possession charges, you are convicted and I impose an aggregate fine over the two charges – that just makes it simpler – I impose an aggregate fine, those two charges dealt with together, of $100.

73On the related summary charge of driving while unlicenced, you are convicted and sentenced to 7 days' imprisonment.

74I make the following orders for cumulation: 2 months of the sentence on Charge 2 will be served cumulatively upon the sentence on Charge 1, resulting in a total effective sentence of 3 years 2 months.

75In respect of that sentence, I fix a non-parole period of 20 months. So that is your non-parole, 20 months, 3 years and 2 months on the top.

Section 6AAA

76Pursuant to s6AAA of the Sentencing Act, I indicate that but for your pleas of guilty I would have imposed a sentence of imprisonment of 5 years with a non-parole period of 3 years.

Section 18 declaration

77I note the period of 546 days pre-sentence detention, and I declare that time as having already been served in respect of this sentence and I order that this declaration be entered into the records of the Court.

Ancillary

78There is a disposal order sought by the prosecution, unopposed, and I grant the application and make the order in the terms sought.

79Because, Mr Zorkau, I am convicting you on Charge 2, a theft of a motor vehicle, I must cancel a license held by you and disqualify you from obtaining another one; and I fix the time for that as 3 months.

80On convicting you for the related summary offence of driving unlicensed I may suspend or cancel or disqualify you from holding a licence or applying for one, but I make no further order in relation to your eligibility to drive.

81Have I missed anything, Mr Pathmaraj?

82MR PATHMARAJ:  Not from my perspective, no, Your Honour.

83HER HONOUR:  Thank you.

84MS GIORGIANNI:  Mine either.

85HER HONOUR:  Would you like a moment with your client after I leave Court?

86MS GIORGIANNI:  Perhaps Your Honour, just briefly.

87HER HONOUR:  Yes. Well, we will stay for that. Thank you for your assistance.

88MR PATHMARAJ:  Thank you, Your Honour.

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