DPP v Tadase

[2023] VCC 411

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-02635

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEZAHAGN TADASE

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	19 August, 2022, 14 December 2022 & 9 March 2023
DATE OF SENTENCE:	16 March 2023
CASE MAY BE CITED AS:	DPP v Tadase
MEDIUM NEUTRAL CITATION:	[2023] VCC 441

REASONS FOR SENTENCE
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Subject:Criminal law - sentence   

Catchwords:              Plea of guilty – two charges of armed robbery – category 2 offence – seriousness of offending marked by offender and co-offender targeting two young school-aged people – presence of knife revealed to victims – offence of armed robbery when committed in company with another offender is a category 2 offence requiring the imposition of a custodial order unless an exception in s5(2H) applies – confirmed diagnosis of schizophrenia meets the criteria for an impairment of mental functioning under s5(2H)(c)(ii) - community correction order available to meet relevant sentencing considerations – future rehabilitation dependent upon mental health treatment and abstinence from illicit drugs – parity with co-offender of little application given mitigating factors and absence of priors 

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:Verdins (2007) 16 VR 269

Sentence:                  Community Correction Order made for 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Maguire (19 August 2022) Ms D. Hogan (14 December 2022, 9 & 16 March 2023)	Office of Public Prosecutions Victoria
For the Accused	Ms I. Siriwardana	Victoria Legal Aid

HER HONOUR:

1

Mr Tadase, on 19 August 2022 you pleaded guilty to two charges of armed robbery contrary to s 75A of the Crimes Act 1958, the maximum penalty for which is

25 years’ imprisonment.

2You were born in May 2003 and were 18 years old at the time of the offending on 6 September 2021. You had no prior criminal history.

Circumstances of offending

3The circumstances of your offending are detailed in the Summary of Prosecution Opening dated 30 March 2022. This is the agreed basis on which you are to be sentenced.

4On 6 September 2021, the victims in this matter – both aged 15 – boarded a public bus in Kealba to travel towards Watergardens. At 1.24 pm, you and co-offender, Mr Mohammed Khan got on the bus. Mr Khan sat next to the second victim while you walked to the rear of the bus.

5The first victim felt awkward and said ‘oh, hi’ to Mr Khan. Mr Khan then moved and sat down next to the first victim. Mr Khan put on a face mask and covered his head with a hood, before telling the first victim, ‘don’t snitch. Give me your AirPods and just don’t say anything.’

6While this happened, you returned to the front of the bus and sat down next to the second victim. You demanded that he give you his AirPods. The second victim pleaded with you not to, saying ‘please, please don’t take them.’ You then unzipped your bag, revealing the presence of a pocketknife by lifting it up slightly. The blade of the pocket knife was folded down. Both victims saw the knife which they later described as a silver multi-coloured folding knife, three or four inches long.

7Mr Khan spoke to the victims saying, ‘you’re lucky, what’s better? Us taking your AirPods or your phone?’ The victims responded, ‘yeah, that’s true’ and Mr Khan told them again not to ‘snitch’ and ‘don’t say anything to anyone’.

8The first victim handed his AirPods over to Mr Khan and  the second victim handed his AirPods over to you. Both victims then got off the bus at the next available stop near Keilor Downs Plaza. At 1.29 pm, the second victim called his mother.

9The entire incident was captured on CCTV footage.

10You and Mr Khan got off the bus four minutes later at Keilor Plains Railway Station and boarded a train to Sunshine.

11The victims made statements to police at 4 pm that day.

12You were arrested by police on 15 September 2021 when you were observed by the police to be drunk in Paisley Street, Footscray. You were with Mr Khan at the time. You were arrested for using offensive language and taken to hospital by police. You were then released.

13You were arrested again in relation to these matters on 29 September 2021. During your interview with police, you admitted to being with Mr Khan when you took the AirPods from some ‘kids’ on the bus, stating ‘we just threatened them, and that’s it.’ You told the police you had showed them the knife that was in your bag. You also agreed the victims would have been scared when they saw the knife and told police you felt ‘bad’ about the offending.

14You co-operated with the police by identifying yourself when showed CCTV stills of the incident.

15You were remanded on 29 September 2021 and remained in custody for two days before being granted bail on 1 October 2021.

Gravity of offence and victim impact

16The offence of armed robbery is a serious one, reflected in the maximum penalty of 25 years' imprisonment. That said, it is also an offence that can occur in a wide range of circumstances.

17

Here, the seriousness of your offending is marked by the fact you and the

co-accused targeted two young people, both school aged, who were entitled to travel safely on public transport. You were in company and the offending was brazen, occurring in broad daylight. Even though you did no more than reveal the presence of the knife in your bag in order to steal the AirPods, this must have been a terrifying ordeal for the two victims, particularly given their age.

18The impact of your offending on the victims is reflected by the victim impact statement made by the first victim. He speaks of feeling scared, confused and annoyed by his feelings of helplessness that overwhelmed him during the incident. As a consequence of his experiences that day, he says he suffered panic attacks and difficulty sleeping. He now struggles to go outside on his own and has difficulty regulating his emotions and focusing at school. In a separate statement, the victim’s mother describes him as a fun-loving boy before the incident, confident to go anywhere independently. She says this incident has left him ‘riddled with anxiety’, having lost his ‘zest for life’. I have taken the impact of your offending into account, as one of the factors relevant to your sentence.

19The offence of armed robbery, when committed in company with another offender, is a category 2 offence under the Sentencing Act 1991. Pursuant to s 5(2H) of that Act the court must impose a custodial sentence for a category 2 offence, unless one of the circumstances set out in s 5(2H) (a)-(e) operates. In your case, there are a number of powerful mitigating factors that would otherwise warrant a non-custodial sentence. It is accepted by the prosecution that a community correction order (‘CCO’) would meet all relevant sentencing considerations in your case, subject to the court being satisfied one of the ‘exceptions’ contained in s 5(2H) applies.

20In addition to assessing the objective gravity of your offending, I must also consider your moral responsibility for your conduct. In your case, this is informed by your personal circumstances and mental health issues, to which I now turn.

Personal circumstances

21You are now 19 years old.

22Your offending occurred in September 2021. After two days in custody, you were bailed subject to a condition that you comply with all directions of Youth Justice.

23Less than three months later, Youth Justice became so concerned about your deteriorating mental health, including reports of auditory hallucinations, paranoia and difficulty sleeping, that they referred you to Headspace, a mental health service for youth. However, you declined this assistance.

24Subsequent to this, you were subject to two involuntary admissions to hospital for mental health treatment on 2 April 2022 and 28 April 2022. On that occasion you were observed running in front of vehicles, threatening yourself and others.

25Following a further admission to the Royal Melbourne Hospital on 4 July 2022 you were discharged on 27 July 2022 having been diagnosed with schizophrenia and were placed on a 26-week community treatment order. You have been treated with paliperidone, a long-acting injectable anti-psychotic medication, since that time. With the support of Youth Justice under the terms of your bail, you have remained compliant with mental health treatment since that time.

26You were born in May 2003 in Ethiopia. As an infant, you were raised by your maternal grandparents in Moyale, near the Kenyan border. You report that your early years being raised in this remote village were happy ones. During this period you had no physical meeting with your mother and only spoke with her over video or by phone. You have limited recollection of your biological father.

27At the age of nine, you travelled from Ethiopia to Sydney to meet your mother, who had then re-partnered. You then met your younger brother for the first time. You now have two further brothers and a sister. Your mother’s partner is a father figure to you.

28Both your mother and step-father work full-time to support the family. Your mother works day and night shift as a cleaner and your step-father works as an Uber driver, with flexible hours to assist in looking after the children. Whilst living with your family, you attended a Christian Orthodox church every Sunday where the parishioners are mainly of Ethiopian heritage.

29Your early years living in NSW, near Wollongong were not easy. You report that your early schooling was difficult as it took you two years to learn English. Despite being bullied in primary school, you persisted with your education, completing Years 7-10 at Werribee Secondary School and The Grange, where you completed Year 12 VCAL in 2021. It was around this time, that you first began to use marijuana, increasing to daily use. From the age of 18, you were also inhaling “nangs”, or nitrous oxide, using up to 100 bulbs a day.

30After completing school, you found work in a warehouse in September 2021 and remained employed there until your first hospital admission in April 2022. It is notable that due to concerns regarding your behaviour, including aggressive behaviour towards your mother, you were unable to continue living with your parents and were homeless at the time of the offending.

31You were assessed by Ms Carla Lechner, a clinical psychologist, for the purposes of the plea on 2 June 2022. In her report dated 20 July 2022, Ms Lechner reports that on the day of this offending, you were smoking “a lot of cannabis” with peers, but was unable to conclude whether you were displaying psychotic symptoms at the time of the offending.

32Ms Lechner concludes that your declining mental health occurred in the context of heavy cannabis use in the latter part of 2021 into 2022. She also assessed you as having “no or limited insight regarding the decline in your mental health”, which she considers is likely to have been triggered by your heavy cannabis use. Despite this, Ms Lechner acknowledges you are compliant with your anti-psychotic medication in managing your mental health.

Matters in mitigation

33On your behalf, Ms Siriwardana provided detailed written submissions in which she highlighted a number of matters relevant in mitigation of your sentence.

34First and foremost, you pleaded guilty to the charges. You did so at an early opportunity. In pleading guilty, you acknowledge responsibility for your conduct and you saved the court and the community the time and cost associated with a trial. Given the age of the victims, it is also significant that you saved either of them from having to relive this experience by giving evidence in court. Moreover, at a time when delays in the criminal justice system continue to be impacted by the COVID-19 pandemic, your plea has even greater utility than would usually be the case.

35Further, I accept that you have repeatedly expressed remorse for your conduct. You agreed with police that the victims would have been scared when they saw the knife and said you felt “bad” about the offending. You told Ms Lechner that you regretted your actions immediately.

36You are entitled to, and will receive, a significant sentencing discount in light of your early plea.

37The mental health of an offender may operate in mitigation of sentence in certain circumstances. These principles were enunciated in the case of Verdins[1]. Where there is a causal connection between an offender’s mental health and the offending, a mental health impairment may operate to reduce the offender’s moral culpability for the offending. In order to explore this issue, your plea was adjourned for a psychiatric assessment to be obtained through Forensicare.

[1](2007) 16 VR 269 (“Verdins”)

38

You were assessed by psychiatric registrar, Dr Gregory Lysenko (under supervision of Dr Ria Zergiotis) on 7 November 2022. In his report dated

5 December 2022, Dr Lysenko outlined your personal background and psychiatric history as revealed by hospital records. However, Dr Lysenko had difficulty reaching a conclusion regarding any connection between your diagnosed schizophrenia and the offending, largely because you declined to discuss the offending with him, beyond saying your mood was “pretty good” at the time. You also denied using drugs around the time of this offending, despite other evidence that confirms this was the case.

39In the event, Dr Lysenko was unable to conclude that your deteriorating mental health was causally connected to your offending. On the evidence before me, there is no basis for me to find your moral culpability is significantly reduced or that Verdins principles apply to moderate the need for the sentence to operate as a deterrent to others. Nonetheless, as context to your offending, I accept the opinion expressed by Dr Lysenko that, “it seems likely that [you] were experiencing a functional decline during the period of [your] offending behaviour, consistent with a prodromal state associated with the onset of a psychotic disorder”. This “likely functional decline” is relevant in reducing your moral culpability for this offending to some extent.

40Dr Lysenko assessed you as demonstrating poor insight into your mental health condition, and any connection with substance abuse consistent with the findings of Ms Lechner.

41I have no doubt that, as a young man, receiving a confirmed diagnosis of schizophrenia is a difficult matter for you to accept and adjust to. Despite this, it is to your credit that you have remained compliant with your anti-psychotic medication since being subject to the community treatment order. I consider your future rehabilitation will very much depend on two separate but interrelated factors: your compliance with treatment into the future and ongoing abstinence from illicit drugs.

42You were 18 years old at the time of this offending. Your youth is highly relevant to your sentence. Particularly for a first time offender, the law regards the rehabilitation of young offenders as a paramount sentencing consideration. Youth also moderates the weight that attaches to other sentencing considerations such as general deterrence and denunciation. A sentence of imprisonment in an adult custodial setting is a sentence of last resort.

43These well-established principles are subject to any legislative prescription to the contrary. Here, the Sentencing Act 1991 requires a sentence of imprisonment to be imposed for the offence of armed robbery where it is committed in company, unless one of the exceptions in s 5(2H) apply. One such exception is prescribed by s 5 (2H)(c)(ii) of the Act, which provides the mandated custodial term need not apply if the offender establishes, on the balance of probabilities, that they have impaired mental functioning that would result in them being subject to substantially or materially greater than the ordinary burden or risks of imprisonment.

44There is no doubt that your diagnosed schizophrenia meets the criteria for an impairment of mental functioning. Dr Lysenko, confirmed that diagnosis. Significantly, in noting a history of suicidality in response to acute mental health deterioration, Dr Lysenko expresses the opinion that your diagnosis of schizophrenia would result in you being subject to a substantially and materially greater burden or risk if you were imprisoned, relative to others. He expands on this conclusion by stating that your mental health needs are best addressed by your ongoing engagement with your current specialist mental health service, Orygen, in the community. Dr Lysenko states that early psychosis intervention services are specialist services, such as those offered by Orygen, and that intervention early in the course of a psychotic illness has been identified as a critical phase of intervention. He states, and I accept, that such specialist interventions are not available in a custodial setting.  

45Your current community treatment order is overseen by Orygen Youth Health which has managed your treatment under the order since 27 July 2022. The current order expires on 11 July 2023.

46The defence submits, and the prosecution accepts, that the opinion of Dr Lysenko establishes, on the balance of probabilities, that the exception under s 5(2H)(c)(ii) is met. Particularly having regard to the specialist, youth-focused psychiatric care you have received in the community whilst on bail, and the identified risk of harm when your mental health deteriorates, I accept that by reason of your impaired mental health, you meet the high hurdle of establishing that you would be subject to substantially or materially greater than the ordinary burden or risks of imprisonment in the absence of such specialist intervention.

47This means that a sentence, other than a sentence of imprisonment, is able to be imposed for these charges.

48Given this finding, I have not turned to consider the alternate submission made on your behalf under s 5(2H)(e) of the Act.

49When you returned before me in December 2022, the report provided by Youth Justice revealed that you had declined to engage with drug counselling, despite Dr Lysenko’s assessment that you present with a severe cannabis use disorder, a severe inhalant disorder and a mild sedative use disorder. You had, however, otherwise engaged positively with Youth Justice. I deferred sentence for a period of three months for you to engage in drug counselling particularly to address your ongoing cannabis and inhalant abuse.

50At the further plea hearing in March 2023, Youth Justice confirmed that, despite your initial reluctance to engage in drug counselling, your engagement with outreach treatment support from the Youth Support and Advocacy Service had been positive, having completed five sessions of counselling and having reduced your use of cannabis and inhalants.

51Whilst subject to Youth Justice supervision over the past 18 months, you have attended 53 supervision appointments, despite considerable instability in your life, due to periods of hospitalisation and living in more than 14 different addresses, including crisis accommodation, rooming houses and youth refuges. You have been assisted to secure stable housing and are now living in a share house, paying rental. Your mother assisted you with the bond. To your credit, and of your own initiative, you have secured full-time casual employment in a warehouse. Your parents have demonstrated their ongoing support for you by their attendance at each plea hearing and today.

52

Despite very real challenges, you have demonstrated the ability to work with intensive supports in the community to advance your rehabilitation. This has not been without setbacks, including subsequent offending, which, whilst less serious, involved a charge of theft of a jacket for which you were placed on a good behaviour bond for 12 months and the retention of stolen goods, being AirPods in January 2023. It is of concern that this offending also occurred when you were in the company of Mr Khan. Youth Justice report that this offending occurred at a time when your housing was unstable, and states that since securing stable accommodation, they have noted a marked improvement in your motivation to engage in supports. A reference provided by Mr Andinet Shiferaw dated

26 July 2022, who is a course counsellor in a training organisation and has known you and your family since 2016, speaks of you as a respectful member of your community.

53On balance, I assess you have good prospects of rehabilitation provided you continue to accept intensive supports for your mental health, directed at assisting you to better understand your diagnosis and the risks to your mental health associated with any ongoing cannabis use. You have demonstrated an ability to accept such support, despite a reluctance to accept your diagnosis, over the past 18 months. Orygen Youth Services has confirmed that you will continue to receive case management for another two years.

54

Finally, it was submitted that I should have regard to the sentence imposed on

Mr Khan, being a sentence of 233 days of imprisonment, with that term reckoned as served, followed by a 12-month CCO for his role in this offending. However, it is notable that Mr Khan had a relevant prior criminal history, and that this offending breached two previous court orders. Additionally, the mitigating factors that operate in relation to your sentence means that the sentencing principle of parity has little application here.

55I accept the joint position of the prosecution and defence that a community correction order is able to meet all relevant sentencing principles in this case. Such an order is able to meet the punitive aspects of your sentence and to operate as a deterrent to others, whilst promoting and supporting your ongoing rehabilitation as a young man. There is also a need for the sentence I impose to deter you from further offending, although this is a less significant consideration given you have no prior criminal history and in light of my positive assessment of your prospects of rehabilitation.

56I accept the submission made on your behalf that your continued rehabilitation should be a strong focus of the community correction order. However, I consider that some unpaid community work should also be imposed, but that any hours undertaking treatment or counselling be available to off-set the hours to be worked. This is intended to operate as an incentive for you to prioritise the rehabilitation component of your order.

57You have been assessed and found suitable for a community correction order and have consented to it being made.

58Balancing the matters to which I have referred, on Charges 1 and 2 – armed robbery, you are convicted and sentenced to an 18-month community correction order. Such an order is available on both charges arising from the same facts and circumstances. The length of the order is intended to support your future rehabilitation and the community protection that will naturally follow.

59In addition to the standard conditions that apply to all community correction orders, you are ordered to complete 80 hours of unpaid community work and will be subject to treatment and rehabilitation conditions in relation to drug use and mental health. You will also be subject to supervision. I intend, at least initially, to judicially monitor your compliance with the order. You are to return before me for judicial monitoring in three months’ time, on Thursday 22 June 2023 at 9.30 am.

60Pursuant to s 48CA of the Sentencing Act 1991, all hours of treatment and counselling undertaken by you can be credited against any uncompleted hours of unpaid community work ordered under the terms of your CCO.

61Finally, pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty to these offences, I would have sentenced you to a period of 8 months’ imprisonment followed by a community correction order of 2 years.

62MR ROSE:  If the court pleases.

63HER HONOUR:  Thank you.  Mr Rose, can you please confirm that Mr Tadase consents to the order being made?

64MR ROSE:  Yes, Your Honour, he does consent.

65HER HONOUR:  Thank you.  A copy of the community correction order will be sent through to you for signing by Mr Tadase.  Can I just confirm that the date I have set for judicial monitoring is suitable?

66MR ROSE:  Yes, Your Honour, I'll just take those instructions.

67HER HONOUR:  Thank you.

68MR ROSE:  Thank you, Your Honour.  My instructions are that's a suitable date.

69HER HONOUR:  All right.  The judicial monitoring can occur through a remote hearing.  And, Ms Hogan, the prosecution will be excused from attending judicial monitoring unless they're otherwise advised.

70MS HOGAN:  Thank you, Your Honour.

71HER HONOUR:  Thank you.  If there are no other questions or clarification sought in relation to the orders - - -

72MR ROSE:  Nothing from defence, Your Honour.

73HER HONOUR:  All right.  Thank you.  We'll adjourn the court.  Thank you.

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