DPP v Reath [2023] VCC 1295 (14 April 2023)

Last Updated: 1 August 2023

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-01961

DIRECTOR OF PUBLIC PROSECUTIONS
v
RUON REATH

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2023
DATE OF SENTENCE:	14 April 2023
CASE MAY BE CITED AS:	DPP v Reath
MEDIUM NEUTRAL CITATION:	[2023] VCC 1295

REASONS FOR SENTENCE
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Subject: Attempted armed robbery; possess a controlled weapon without excuse and state a false name
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
Department of Public Prosecutions	Ms A. Vasiliou	OPP
Accused	Mr M. Cramer	VLA

HER HONOUR:

1. Ruon Reath, you have pleaded guilty to attempted armed robbery. The maximum penalty for that offence is 20 years. You have also agreed to have dealt with by me and pleaded guilty to the following related summary offences: possess a controlled weapon without excuse, where the maximum penalty is 1 year or 120 penalty units; and stating a false name when requested by policy with a maximum penalty or fine or 5 penalty units.
2. The circumstances of your offending are set out in the summary of prosecution opening for plea dated 17 February 2023 (Exhibit A as amended) and can be summarised as follows.
3. On Saturday, 30 April 2022 at approximately 4.08 am, you approached Samuel Gurgess, who was on his phone in Flinders Street. You asked him if you could make a call then tried to grab his phone from him. He refused, then swore and abused you. You then threatened him asking if he wanted to die.
4. He walked towards a shop where he could see people on the footpath. You followed him and continued to ask for his phone and told him to look down. He looked down and saw you were in possession of a silver bladed knife. He then pushed you and ran off. (Charge 1 – Attempted Armed Robbery).
5. He called Triple 0 and provided a description of you and your clothing. Police patrolling the area located you in that vicinity and you were arrested. You had in your possession a knife and told police a false name. The clothing that was described matched that you were wearing. (Related summary charge 7 – Possess controlled weapon without lawful excuse) (Related summary charge 8 – State false name when requested).
6. When interviewed, you told police that you were at the station trying to go home. You denied involvement in the offending. Relevant CCTV footage depicted you confronting Mr Gurgess then both following and chasing him in the relevant city precinct.
7. The victim in this matter did not wish to make a victim impact statement, though clearly he would have been frightened by your actions in the early hours of the morning in the city.

Personal History

8. As to your personal history, I received a Psychological Assessment Report from Ms Alison Mynard dated 5 March 2023 (Exhibit 1). This comprehensively details your personal background and circumstances.
9. I also received supervised bail progress reports dated 22 July, 2 September and 3 October 2022;(Exhibit 2); a letter from Erin Timms, Ballarat Community Health, dated 17 March 2023.(Exhibit 3); a letter from Andrew Gault, youth and family worker Ballarat Central Uniting Church dated 20 March 2023 (Exhibit 4); a letter from you dated 15 March 2023 (Exhibit 5); a letter from your mother, Nyalip Pal and a character reference from Margaret Littlehales (Exhibit 6); and a bundle of documents relating to Advanced Diploma of Building Design from Federation University (Exhibit 7).
10. You are currently 20 years and a student. You live in Delacombe at your family home with your mother and three siblings. You were born in an Ethiopian refugee camp and moved to Egypt with your family when you were a baby. Ultimately your family relocated to Australia as refugees in 2006 when you were aged three. You and your family settled in Ballarat and you attained Australian citizenship in 2013.
11. You were raised by your mother who currently works two jobs to support you and your siblings. Your father had issues with alcohol and was violent towards your mother often in your presence. Police became involved on a number of occasions and your parents ultimately separated with family violence orders in place.
12. A few months before this offending you were living with your father though this was not successful. You resorted to alcohol as a means to deal with rejection issues and the triggering of childhood trauma. Although your father lives close by you do not at this time have contact with him.
13. You are a good basketball player. During your teenage years you played in a local team and won the U18 Grade A championship and being awarded the Most Valuable Player.
14. You completed year 12 VCAL certificates at Ballarat Christian College with certificates in building and construction as well as horticulture. When studying, you worked part time at Woolworths until mid-2021. You then had other casual work packaging, but ultimately worked cleaning with your mother. You were unemployed between October 2021- May 2022.
15. You commenced a mechanical apprenticeship in August 2022 though there was a breakdown in your relationship with your employer and you ceased the apprenticeship in November 2022. You have indicated that you did not enjoy the work and also that you were frequently late given you were required to take your siblings to school or mother to work, you having obtained your driver's license in July 2022.
16. You recently commenced an Advanced Diploma of Building Design (Architectural) at Federation University, having enrolled in that course in the beginning of this year. You are studying full-time, and the course is designed to take two to three years to complete. You are in receipt of Youth Allowance payments and are actively looking for part-time work. I was informed that the course requires three hours online on Tuesday and Friday and that Monday, Wednesday and Thursday you attend between 9 am to 4 pm.
17. You have never had any issues with drugs. Since you turned 18 years you have engaged in varying levels of alcohol use. At the time of this offending you were drinking socially on weekends. You reported to Ms Alison Mynard that you used alcohol as a mechanism to numb emotions associated with your past, reduce feelings of anger, and to feel more confident in yourself. You were intoxicated at the time of offending but have since displayed insight into understanding the relationship between your problematic alcohol use and the offending.
18. You were granted bail with the condition that you comply with all lawful directions of Youth Justice. As part of the program, you were referred to AOD counselling through Ballarat Community Health. You engaged well and complied with conditions as detailed in the bail reports (Exhibit 2).
19. Ms Maynard opined that you would benefit from drug and alcohol counselling to understand your reasons for alcohol use and for more adaptive ways of managing your emotional state.
20. As to your mental health, Ms Maynard diagnosed you as suffering from complex PTSD, persistent depressive disorder, and alcohol abuse disorder. She opined that you exhibited numerous symptoms of complex PTSD arising from your exposure to family violence when you were a child. These symptoms included re-experiencing the trauma, avoidance of trauma reminders, hypervigilance, emotional dysregulation, and interpersonal difficulties.
21. I accept that, given this diagnosis, limbs 5 and 6 of Verdins apply: that a sentence of imprisonment is likely to weight more heavily on you than someone in normal health and that there is a serious risk that your condition or mental health in the prison environment will deteriorate.
22. In addition, your environment growing up has impacted you, and according to Ms Maynard:

'Such a background may explain your resort to alcohol and violence when frustrated such that your moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from you.'

23. I accept your childhood experience warrants a reduction in general and specific deterrence; however I am also mindful also of the need for community protection.

Plea of Guilty and Remorse

24. I take into account your plea of guilty. You indicated the plea at the committals mention stage of proceedings or an early stage. No witnesses were required and Mr Gurgess was not required to relive this traumatic incident.
25. There is the utilitarian benefit to your plea which is enhanced given the court back log in the administration of justice in this state with COVID. Your plea carries with it an acceptance of responsibility for your actions.
26. Your plea is also indicative of remorse, despite your demeanour in the ROI. This is consistent with your comments to Ms Maynard that:

'You reflected that the victim may have been badly affected by your actions and he may not feel safe in the city anymore. you regret your behaviour'.

27. And is equally consistent with your sentiments expressed in your letter, and material provided by others, including Youth Justice.

Youthful Offender

28. You are currently 20 years-old and were 19 when you offended – you have no prior matters and are a first-time offender. Your youth and rehabilitation are considered to be primary sentencing considerations in accordance with authority. However, youth is of less weight with serious offending of this type, often involving young men, a 'street assault' and the possession of a knife.

Rehabilitation

29. I accept that your prospects for rehabilitation are excellent and it is unlikely that you will re-offend given the following:

(a) Your lack of priors and previous good character;

(b) Your plea of guilty and level of remorse;

(c) Your strong family and community support;

(d) That you previously complied with strict bail conditions over a significant period of time;

(e) You have successfully participated in alcohol counselling and treatment whilst on bail;

(f) Your engagement with a building course and desire to work in that field, coupled with your work history;

(g) Your salutary experience of days on remand in the police cells when you were arrested.

Gravity of Offending

30. There were features of your offending, which as the prosecution conceded, placed it at the lower end of seriousness. Your account that your initial request to use the phone was a genuine request that developed into an unlawful demand after Mr Gurgess' refusal is consistent with the evidence and the prosecution summary. Your offending was unsophisticated and not planned. The knife was shown to Mr Gurgess at the end of the incident. He then pushed you and ran away: the incident itself was short-lived.
31. However, there is clearly a need for general deterrence and community protection with this kind of offending involving intoxicated young men engaging in random behaviour threatening vulnerable individuals on the street in the early hours of the morning.

Sentencing Submissions

Disposition

32. The prosecution submitted that the only appropriate sentence was a term of imprisonment. Given your age, it was conceded that a term of youth detention may be appropriate. Reference was also made to the fact that a CCO cannot be made in combination with a Youth Justice order.
33. I was informed this morning that the prosecution, presumably having seen the relevant material, submitted that a community correction order was in range. Your counsel submitted that I should impose a CCO with conditions addressing your mental health and alcohol use. Additionally your counsel submitted that I should impose a non-conviction, a position which was disputed by the prosecution. I had you assessed both as to your suitability for youth detention and for a CCO.
34. In sentencing you for this matter, the court must impose a sentence for the purposes of general and specific deterrence, though specific deterrence less so in your case. Other sentencing principles of denunciation, just punishment and community protection are also important.
35. As indicated in these reasons, less weight is to be attributed to general and specific deterrence, though community protection remains important. These factors must be balanced by matters personal to you, particularly your background, your youth, your plea and rehabilitation prospects.
36. Both Youth Justice and Corrections assessed you as suitable for either kind of order – I propose to order a CCO in respect of all your offending.
37. HER HONOUR: I am just mindful though; with those summary offences can I do that, or is it necessary for me to impose fines?
38. MS VASILOU: It was just the one that I highlighted in the opening ‑ ‑ ‑
39. HER HONOUR: I think the state name.
40. MS VASILOU: Can only be dealt with by way of a fine.
41. HER HONOUR: Fine, yes, all right.
42. So in respect of the indictable matter, the attempted armed robbery, you will be placed on a community correction order for a period of two years. That will also be in respect of the first summary offence which is the possession of the weapon; and then in respect of stating a false name you will be discharged in respect of that.
43. Your counsel submitted that I should not record a conviction – that this would accord with the principles of proportionality and parsimony and give prominence to your rehabilitation in the sentencing exercise.
44. s.8 In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including: (a), the nature of the offence; and (b), the character and past history of the offender; and (c), the impact of the recording of a conviction on the offender's economic or social well‑being and/or employment prospects.
45. Clearly the issue in your case is the seriousness of your offending against Mr Gurgess, however, given what I regard as excellent or strong rehabilitation prospects, the commitment you have already shown to turning things around in your life and the support that you have with your family and other members of the community, particularly given your studies and ultimate work prospects, possibly in the building industry, I have considered the long-term detrimental economic and social effect on you that recording a conviction may place that potential at risk, I do not propose to impose a conviction.
46. In respect of the CCO it will be for a period of two years, you will be required to do 75 hours work. There will be conditions as recommended regarding alcohol, mental health, and supervision. If you had not pleaded guilty to this matter pursuant to s6AAA of the Sentencing Act I would have imposed detention in a youth justice facility.
47. Is there a forfeiture order in respect of the knife?
48. MS VASILOU: I believe it was made on the last occasion.
49. HER HONOUR: Okay, all right, I think I have already made that forfeiture order. All right, is there anything else?
50. MR CRAMER: No, as the court pleases.
51. HER HONOUR: Thank you. Thanks, I will just stand down.
52. MS VASILOU: As Your Honour pleases.
53. HER HONOUR: You can do the order, sure.
54. ASSOCIATE: Treatment to be considered or?
55. HER HONOUR: Yes, please.
56. ASSOCIATE: Just printing it out now, Your Honour.
57. HER HONOUR: Thanks. Mr Reath, you need to understand that if you sign this order that you will comply with the relevant conditions, and that if you breach those conditions or you commit another offence you will come back before me for sentencing again if corrections decide to breach the other. Do you understand that?
58. OFFENDER: Yes, Your Honour.
59. HER HONOUR: Thank you.
60. ASSOCIATE: This is for the transcript. Is this your signature?
61. OFFENDER: Yes.
62. ASSOCIATE: That has been completed, Your Honour.
63. HER HONOUR: Thank you. Thanks, I will just stand down.

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