DPP v Olaa
[2017] VCC 290
•22 March 2017
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00865
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
JEAMY OLAA Defendant
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JUDGE: His Honour Judge Murphy
WHERE HELD: Melbourne
DATE OF HEARING: 13 October 2016, 17 March 2017
DATE OF SENTENCE: 22 March 2017
CASE MAY BE CITED AS: DPP v Olaa
MEDIUM NEUTRAL CITATION: [2017] VCC 290
REASONS FOR SENTENCE
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Catchwords: Criminal Law – Sentence – Armed robbery (1), intentionally causing injury (3), unlawful assault (2) – unprovoked attack on public transport – subsequent spontaneous armed robbery – offender suffering from an acute psychotic episode – guilty plea – applicability of Verdins principles – offender migrated to Australia at a young age – significant prior criminal history – offender previously considered 2.5 years older than his true age – reduced moral culpability – total effective sentence of 2 years and 9 months imprisonment – R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 applied, Seddon v The Queen [2011] VSCA 375 considered
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act1991 (Vic)
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APPEARANCES: Counsel Solicitors
For the Crown Ms J Fallar (plea) Office of Public Prosecutions
Ms S Jankovic (sentence)
For the Defendant Ms H Bate (plea) Fitzroy Community Legal
Ms N Wolan (sentence) Centre
HIS HONOUR:
Jeamy Olaa, you have pleaded guilty to three charges of intentionally causing injury[1] contrary to section 18 of the Crimes Act 1958 (Vic) (the Act),[2] one charge of armed robbery contrary to section 75A of the Act,[3] and two summary charges of unlawful assault contrary to section 23 of the Summary Offences Act 1966 (Vic).[4]
[1] The victims were Mr Harris, Mr Cox and Mr Nteris.
[2] The maximum penalty is 10 years imprisonment.
[3] The maximum penalty is 25 years imprisonment.
[4] The maximum penalty is 3 months imprisonment or 15 penalty units.
Circumstances of the offending
The circumstances of the offending were set out in the Crown opening which was read in Court and which I incorporate by reference.[5] In brief outline, the offences occurred in broad daylight on 13 February 2016 during the Chinese New Year Festival on High Street, Preston.
[5] Exhibit A on the plea.
The first two victims who were the subject of your conduct resulting in the first two charges of causing injury intentionally were travelling on a bus and about to exit the bus as it approached the Preston Town Hall. As Mr Harris sought to leave, you ran from the rear of the bus and kicked Mr Harris in the back of his leg causing him to fall forward onto his uncle, Mr Cox. There was no conversation prior to the assault, and this occurred in the presence of elderly patrons. You then kicked Mr Harris again causing him to fall forward and stagger into the door-well of the bus, you then tried to punch Mr Harris in the head, at which point he put up his hands in defence. At this point, Mr Cox attempted to intervene by swinging on a pole with his legs towards you. You used your right arm to fend Mr Cox off and punched Mr Harris again with your left arm.
Mr Cox managed to kick you in the stomach, however, you punched Mr Harris again with your right fist above his right eye, notwithstanding Mr Cox trying to kick your legs. You then punched Mr Harris on the side of his head a further seven times at which point Mr Cox forced his way between you and Mr Harris. You proceeded to hold Mr Cox and punch him three times to the head and forced him into a side rail. You then held Mr Cox in a headlock, threw him onto a bus seat and punched him again in the face four times. The bus driver called 000 while this was occurring.
A bystander attempted to calm you down at which point Mr Afifi walked onto the bus and sought to restrain you. You pushed him away and tried to punch him at which point he put up his arms to prevent you from hitting him in the face. This constitutes summary charge 6, unlawful assault.
You then punched Mr Cox in the head and spat on his face and punched him a further six times. You were then grabbed by Mr Harris and three others who attempted to push you off the bus. You struggled free and punched Mr Cox a further eleven times to the head. Mr Cox and Mr Harris ran off the bus and sought refuge in a two-dollar shop. The assaults on Mr Harris and Mr Cox constitute the first two charges of intentionally causing injury, which as all captured on CCTV footage.
Mr Harris suffered a laceration above his right eye, and Mr Cox bruising to his head.
Charge 3 of intentionally causing injury occurred on High Street. You were shouting at people on the footpath to go away and asking them what they were looking at. Mr Fontana, who was the Mayor of the Council at the time, recalls hearing you screaming profanities and pacing back and forth along the pathway. Mr Nteris, who was aged 79 at the time, was exiting the Tattslotto agency and about to board the bus when he noticed the brawl on the bus and sought to avoid the confrontation. As he did so, you appeared in front of him and the two of you stared at each other for a moment, before you yelled “What are you looking at?” at which point you punched him in the face, knocking him to the ground causing a laceration and bruising above his eye, together with sore ribs. While he was assisted to by onlookers, Mr Fontana walked in front of you and sought to calm you down. You punched Mr Fontana to the side of the head. This constitutes summary charge 10, unlawful assault.
You continued to yell out to people and then took your shirt off, took your baseball cap off, threw them onto the ground and continued to shout at people to go away. You then grabbed a large metal display sign that was on the pathway and were swinging it and yelling at people as you entered the nearby pharmacy. Inside the pharmacy was Mr Tran, the Manager and his assistant.
10.You threw the metal sign over the counter causing a significant amount of stock to fall on the floor, you then ripped the monitor and cords from the cash register before sweeping the objects onto the floor. You then grabbed two pairs of scissors and began stabbing them into a partition and demanding that you be given money and drugs. Mr Tran, the Manager, struggled to open the cash register while the other employee moved to the back of the counter while you paced back and forth brandishing the scissors. At one stage, you were holding the scissors in the direction of Mr Tran. When he finally opened the register, he placed approximately $1000 in notes inside a plastic bag and left it on the counter for you while you continued to pace back and forth inside the store. You closed the door to the pharmacy while holding the scissors, and asked for a Band-Aid as one of your hands was bleeding. Ms Tran, the pharmacy assistant, gave you a Band-Aid and you took the Band-Aid and placed it in the bag of money.
11.A witness came into the pharmacy and noticed what was occurring – he forced the door open while you tried to hold it shut. You then fled towards the rear of the store and were chased until both you and the witness fell over near the rear door and the witness hit his head causing a laceration. Other witnesses entered and managed to hold you to the ground until police arrived. These events constitute the charge of armed robbery, charge 4. You were then arrested and taken to the Northern Hospital where you were found to be unfit to be interviewed. You have been remanded in custody since.
Seriousness of the offending
12.These offences were committed over a short period of time, but nevertheless, were serious. First, all offending was in public where bystanders were either on the bus or participating as observers in the local festival. Second, the offending was unprovoked in relation to each of the complainants who were attempting to protect themselves or others.
13.The offence of armed robbery must have been very frightening for the complainant and his assistant. You were swinging a large sign, acting violently and brandishing a dangerous object. All of your offending was accompanied by yelling at bystanders. There was a bizarre aspect to your offending, in that you, after the incidents on the bus, took off your T-shirt and were walking down the street before entering the chemist bare-chested.
14.While the physical injuries to each of the complainants were relatively mild, the psychological impact must have been significant. A victim impact statement has been filed by Mr Nteris.[6]
[6] Exhibit 2 on the plea.
15.He indicates that he was going about his business when he was assaulted by you by being punched in the eyes. He had to be taken by ambulance to hospital. He cannot forget that day and has trouble sleeping and becomes worried, and this is added to the problems in his life. His eyes are still sore and sometimes his left ear is affected.
16.The contents of his statement indicates that your offending has had a significant impact on him.
17.Although the other victims did not file victim impact statements, four other people were assaulted by you and this must have been a frightening experience for them. Similarly, the Manager of the pharmacy and his assistant must have also been significantly affected by your brazen hold-up of their store.
Explanation of the offending
18.There were bizarre aspects to your offending, and I am satisfied, relying on the reports of Dr Pandurangi, Consultant Psychiatrist, that you were, at the time of the offending, experiencing acute psychosis.[7]
[7] Reports of Di Prashant Pandurangi, Consultant Psychiatrist, dated 10 October 2016 & 16 March 2017 (Exhibits 2 & 4 on the plea respectively).
19.The psychiatric reports were the subject of discussion in the course of the plea. Dr Pandurangi had access to the police statements prior to the provision of his reports. In the report dated 10 October 2016, Dr Pandurangi opined that you were experiencing an acute psychotic episode irrespective of the cause of your psychotic symptoms. You were unable to remember the details of the incidents, but indicated to him that you were intoxicated at the time of the alleged incidents through the use of cannabis and alcohol.
20.Dr Pandurangi noted that, in the past, you had used drugs and alcohol to mask or mediate your long-standing depressive symptoms. In the report dated 16 March 2017, after having access to the prison records, Dr Pandurangi opined that:
“The most likely diagnosis is that of a schizophrenic illness with prominent depressive symptoms or a schizoaffective disorder (presence of both psychotic and effective symptoms).”
21.Dr Pandurangi was of the opinion that the use of illicit drugs and alcohol would have contributed to or precipitated the illness rather than being causally related to it.
22.Your counsel relied on this opinion to urge a reduction in your moral culpability for the offending relying on the principles of Verdins,[8] although there was no suggestion that you did not understand the wrongfulness of your actions.
[8] R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 (Verdins).
Prior convictions
23.You have admitted a significant criminal record. The criminal record commences in April 2008 where you were placed on a six-month community based order in the Dandenong Magistrates’ Court on one charge of robbery. On the same day in the Dandenong Children’s Court, on charges of theft, dealing with property being suspected of being proceeds of crime and various public transport offences, you were placed on a 6-month good behaviour bond without conviction.
24.On 17 February 2009, again in the Dandenong Magistrates’ Court, you were sentenced to 254 days imprisonment on charges of assaulting police, escaping custody, theft, failing to answer bail, common assault and dishonestly undertake in the retention of stolen goods. You were also found to have breached the community based order placed upon you in April 2008, and were sentenced to 1 month imprisonment wholly suspended. The net result of this offending was 224 days imprisonment with 30 days (for the breach) wholly suspended for a 12-month period.
25.You then came before the Melbourne Magistrates’ Court on 21 September 2009 on charges of common assault, tampering with a motor vehicle and failing a breath test. This offending breached the suspended sentence imposed on 17 February 2009. The 30 days imprisonment was wholly restored and you were ordered to pay a $600.00 aggregate fine.
26.Two months after your release, on 16 December 2009, you were before this Court on one charge of attempted aggravated burglary, for which you were sentenced by Judge Pullen to 18 months’ imprisonment with a 9-month non-parole period.[9] You had spent 157 days awaiting sentence.
[9] R v Olaa (Unreported, County Court of Victoria, Judge Pullen, 16 December 2009).
27.On 12 October 2011, on charges of robbery and unlawful assault in the Heidelberg Children’s Court, you entered into a 12-month good behaviour bond on the condition that you continue to engage with Youth Services.
28.Your next Court appearance was in the Heidelberg Magistrates’ Court on 1 August 2013 where you were sentenced to a total effective sentence of 180 days imprisonment on charges of dealing with property suspected of being the proceeds of crime, theft, obtaining property by deception, obstructing police and burglary. You spent 140 days in custody awaiting sentence on this occasion.
29.You were again sentenced by the Heidelberg Magistrates’ Court on 30 January 2014 to a 12 month community corrections order for charges of intentionally causing injury, drunk and disorderly, resisting police, assaulting police and acting prejudicially to the good order/management of gaol. There were various conditions attached to this order.
30.On 17 September 2014, you were found to have breached the community corrections order imposed on 30 January 2014 on committing other offences (unlawful assault, resisting police and contravening a condition of bail). Upon your release from custody, which was 134 days at the day of sentence, the community corrections order was varied and continued.
31.Your most recent Court appearance prior to this offending was on 17 August 2015 in the Melbourne Magistrates’ Court where you were sentenced to a $1500.00 fine, with conviction, on charges of theft, recklessly causing injury and acting prejudicially to the good order/management of gaol.
32.It follows from your prior convictions that you have spent considerable time in custody over the previous nine years, including six occasions where you were remanded in adult custody before you turned 21. This offending here occurred when you were aged 22 and a half. You have been in the Melbourne Assessment Prison and Port Phillip Prison since your arrest over 13 months ago.
33.Your criminal record indicates that you have considerable prior convictions for violence offences and dishonestly offences, together with assaulting and resisting police.
34.The fact that you continue to reoffend is very troubling. Your personal circumstances are, however, centrally relevant to an explanation for your offending.
Personal circumstances
35.Your personal circumstances were set out on the plea and also recorded in the reports of Dr Pandurangi, an earlier report of Dr Simmons,[10] and in the sentencing remarks of Her Honour Judge Pullen when she dealt with you over seven years ago. I incorporate these details by reference.
[10] Report of Dr Warren Simmons, Consultant Psychiatrist, dated 8 April 2011.
36.You are a native of Sudan, and lived in that country until you were aged about nine years. You have had no contact with your father, although very recently you have been in contact with your mother who still lives in Sudan. It is well-known that your native country has been the subject of civil strife for many years. You were brought up by your uncle, who had three wives and some 14 children. You are, however, not particularly close to him.
37.You attended school in Sudan, but were not a particularly good student. You then travelled to Egypt when you were aged 9 or 10, however, were unable to attend school there because you were a refugee. You came to Australia with your uncle and one of his wives when you were aged approximately 12 years old. You then attended a secondary school to learn English at Year 7 where you were the subject of bullying. You left school at about age 15 and were in some form of apprenticeship for a short period of time, before you commenced the saga of being in and out of remand after criminal offending.
38.The most significant matter relating to your personal circumstances that emerged on the plea is that you are in fact two and a half years younger than the age the Courts and authorities have been dealing with you to date.
39.Your counsel tendered a translated birth certificate from Sudan which supports this basis.[11] The Crown does not dispute this.
[11] Exhibit 5 on the plea.
40.This matter raises difficult issues. As submitted by your counsel, you have been remanded in adult institutions when, had the authorities had access to the true position regarding your age, then you may, and probably, would have been dealt with differently. It is counter-factual as to how you would have turned out.
41.Judge Pullen, when sentencing you on 16 December 2009, sentenced you to an adult prison as you were found unsuitable for a youth justice centre.
42.On any view, regardless of what has happened in the past, you are now an adult, and were an adult at the time you committed these offences.
43.Notwithstanding this, you are entitled to be dealt with as somewhat of a young offender. You are now aged 23 and a half.
44.Further, give that you have been treated as older than you actually were at the time of the various prior Court dispositions, as a matter of justice, it is appropriate to give, to the greatest extent possible, weight to the considerations of rehabilitation, and to give you, in effect, what might be the last opportunity to turn the corner and accept the path of becoming a lawful member of your adopted community.
45.On one view, given the true picture of your chronological age as it is now known, you are at a fork in the road in your life.
46.Added to this is the opinion of Dr Pandurangi that you have had an underlying depressive condition that was not properly treated, but is not under treatment.
47.This is a further factor that provides a basis, probably for the first time, for the Court to deal with you on a fully-informed basis.
48.This allows the interests of the community in your rehabilitation to be given appropriate weight, notwithstanding that there will be risks of relapse and recidivism.
49.It is worth giving you an opportunity, notwithstanding the seriousness of the present offending and your criminal record.
Sentencing considerations
50.In a helpful submission, the learned Crown prosecutor accepted that the factors enunciated in Verdins were engaged. Your counsel submitted that, as you were suffering from a psychotic disorder which has now been identified and medicated, there was a reduction in your moral culpability and considerations of general deterrence were to be less prominent.
51.Your counsel also submitted in a comprehensive submission that, as you are now being medicated, considerations of specific deterrence are less salient. It was submitted that the community would now be protected because you are on appropriate medication, and thus, there is a lesser need to impose a longer sentence in order to teach you a lesson. Further, the fact that, on the reports from both psychiatrists, your past use of drugs and alcohol would have contributed to or precipitated to your illness, rather than being causally related to it is also a matter that must be taken into account.
52.Dr Pandurangi also states that, due to your psychiatric illness, you will find a term of imprisonment more burdensome than other individuals. Dr Pandurangi opines that you will find it stressful and that you will be vulnerable, and there is a risk of further deterioration in your mental state. These are all factors that must be taken into account under the principles of Verdins and I will seek to do so.
53.Your prospects of rehabilitation must be regarded as guarded, given that they are dependent on you maintaining your medication and attempting to enter the work force, which itself will only occur after you obtain some occupational qualifications.
54.You have sought to productively use your time in remand, and tendered before me were a number of certificates that you have obtained.[12]
[12] Exhibit 6 on the plea.
55.In sentencing you, I have also taken into account the fact that you have been in remand for some 13 months and this is more burdensome than being a sentenced prisoner.
Purposes of sentencing
56.The basic purposes for which a Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
57.In Seddon v The Queen [2011] VSCA 375, the Court of Appeal confirmed that there is always a place for the exercise of mercy where a judge’s sympathies are excited by the circumstances of the case.
58.Here, on any view, you have had a difficult upbringing and you have been brought to Australia on a humanitarian basis. You have had in effect no family members to support you. A judge of this court has previously referred to the fact that you have had a disadvantaged and violent background and previous difficulties in dealing with authority. Over six years ago you were assessed as suffering from depression. Through no fault of your own, as outlined in your defence counsel’s submission, you have been the subject of six remands in adult custody before you turned 21. Again, through no fault of your own, you have been dealt within the criminal justice system on the basis that you were two and a half years older than your birth record reveals.
59.It appears now that you are being properly medicated for your underlying psychotic condition. You have taken all possible opportunities to engage in courses whilst you have been on remand. Your psychiatric condition and intellectual limitations are such that you will find imprisonment more burdensome.
60.All these matters call for the significant exercise of clemency in this matter notwithstanding the seriousness of your offending. I regard it is appropriate to apply this, particularly in relation to the non-parole period, as it would be in the clear community interest for you to have a significant period under supervision, including community mental health professionals, to facilitate your transition back into the community now that your underlying mental condition is now properly identified and being treated.
61.I have also taken into account that continued incarceration of you will result in a real risk of institutionalisation.
62.Your counsel submitted that the present period on remand, 403 days, would be sufficient as a non-parole period in any sentence. The learned Crown prosecutor disputed this. I regard it as appropriate to provide a longer than usual period where you will be eligible for parole.
Sentence
63.The sentence of the Court is as follows:
a)On charge one of intentionally causing injury to Mr Harris, you are sentenced to 9 months’ imprisonment.
b)On charge two of intentionally causing injury to Mr Cox, you are sentenced to 9 months’ imprisonment.
c)On charge three of intentionally causing injury to Mr Nteris, you are sentenced to 9 months’ imprisonment.
d)On charge four of armed robbery of Mr Tran, you are sentenced to 2 years’ imprisonment. This is the base sentence.
e)On summary charge six of unlawful assault on Mr Afifi, you are sentenced to 1 month imprisonment.
f)On summary charge ten of unlawful assault on Mr Fontana, you are sentenced to 1 month imprisonment.
64.I direct that three months of the sentence imposed on charges one, two and three be served cumulatively upon each other and upon the base sentence.
65.I direct that the sentences imposed on summary charges six and ten be served concurrently upon each other and upon the base sentence.
66.This makes a total effective sentence of 2 years and 9 months’ imprisonment.
67.I direct that you serve a period of 17 months’ before becoming eligible for parole.
68.I declare 403 days by way of pre-sentence detention.
69.Pursuant to section 6AAA of the Sentencing Act 1991 (Vic), I declare that, had you not pleaded guilty, for which I have taken into account in this sentence, I would have sentenced you to a total effective sentence of 4 years’ imprisonment with a non-parole period of 2 and a half years.
70.I have made the Disposal Order sought relating to the scissors.
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