Director of Public Prosecutions v Alexander
[2013] VCC 1366
•14 June 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01104
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT ALEXANDER |
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JUDGE: | HIS HONOUR JUDGE DEAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2013; 5 June 2013 | |
DATE OF SENTENCE: | 14 June 2013 | |
CASE MAY BE CITED AS: | DPP v Alexander | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1366 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | MR S. BALLEK | OPP |
| For the Accused | MR S. GINSBOURG | VALS |
HIS HONOUR:
1 Robert Alexander, you have pleaded guilty to the following offences: two charges of aggravated burglary contrary to s77(1) of the Crimes Act 1958, the maximum penalty for that offence is 25 years’ imprisonment; two charges of theft contrary to s74 of the Crimes Act, the maximum penalty for that offence is 10 years’ imprisonment; one charge of obtaining property by deception contrary to s81(1) of the Crimes Act, the maximum penalty for that offence is 10 years’ imprisonment; one charge of reckless conduct endangering a person contrary to s23 of the Crimes Act, the maximum penalty for that offence is five years’ imprisonment; one charge of resisting a member of the police force contrary to s31(1)(b) of the Crimes Act, the maximum penalty for that offence is five years’ imprisonment. You have also pleaded guilty to the related summary offence of driving whilst unlicensed contrary to s18(1)(a) of the Road Safety Act 1986, the maximum penalty for that offence is three months’ imprisonment or a fine of 25 penalty units.
2 You pleaded guilty following a contested committal hearing, and so your plea may not be described as an early plea. However, it has considerable utilitarian value and has spared witnesses and the community the burden of what would have been a complex trial or series of trials. I also accept that you are now remorseful for your offending, and I have taken this fact, together with your plea of guilty, into account in your favour in mitigation of sentence.
3 A prosecution summary was read to the court and tendered in evidence. Your offending may be summarised as follows –
4 Between approximately 10pm on 9 January 2012 and 6am on 10 January 2012, you entered premises in Elwood occupied by Wayne and Sarah Campbell and their two young children. At the time of entering the premises all of the occupants were asleep. After affecting entry, you stole cash, credit cards, a wallet and handbag containing car keys, and you then drove away in Sarah Campbell’s Toyota RAV4 station wagon which was parked outside the property.
5 After leaving the premises, you drove to the Casey Shopping Complex in Narre Warren and used a stolen credit card belonging to Wayne Campbell to purchase cigarettes and fruit. This conduct constitutes one of the charges of aggravated burglary, one of the charges of theft, and the charge of obtaining property by deception.
6 At approximately 6am on 14 January 2012 you entered a house in Walker Street, Clifton Hill occupied by Paul Klauser and Isobel Teutscher-Klauser and their two young children. Mr Klauser woke up and saw you in the premises holding a white object which you pointed at him. He yelled at you and you left the premises, driving away in the stolen RAV 4. From the premises, you stole Ms Teutscher-Klauser’s mobile telephone.
7 Your offending was then reported to the police, who used GPS software to track Ms Klauser’s mobile telephone and, at approximately 6.34 that morning, you were observed in Doncaster Road, North Balwyn. A police car approached you and you then got into the RAV4 and drove away.
8 A high speed police pursuit then ensued wherein you travelled east along Doncaster Road in Balwyn North at an extremely high speed. You drove through three red lights at an estimated speed of 140 kilometres per hour, narrowly missing a group of cyclists and, as the police pursued you, you drove the vehicle at speeds of up to 170 kilometres per hour in a 60 kilometres per hour zone. The police terminated their pursuit of you for safety reasons. It is plain that your driving at this time was extremely dangerous and placed members of the public at risk. You did not hold a driver's licence at that time.
9 At approximately 7am you were observed by Leading Senior Constable Daniel Sonderhoff in North Warrandyte, and he attempted to apprehend you. He drove his vehicle into the front offside of the RAV4 in an effort to prevent you driving away. He was not able to do so, but you drove your vehicle into a dead end street. After completing a U-turn, you attempted to leave the street, and Senior Constable Sonderhoff drove his vehicle into your vehicle head on. He alighted from his vehicle and drew his firearm and you then ran from your vehicle. Senior Constable Sonderhoff told you to stop, but you did not do so, and you ran into a property at 50 Osborne Road in North Warrandyte. Senior Constable Sonderhoff approached you and thereafter a struggle ensued between the two of you. Senior Constable Sonderhoff deployed capsicum spray to subdue you, but this did not take effect. You produced a small silver pistol and held it to your head. Senior Constable Sonderhoff repeatedly told you to drop the gun. You did not do so, and a further struggle ensued between the two of you. You grabbed Senior Constable Sonderhoff’s lanyard which was around his neck and, as he feared that you were going to strangle him, he attempted to discharge his firearm. His firearm jammed and you then ran off again.
10 With the assistance of the occupier of the premises in Osborne Road, Senior Constable Sonderhoff was able to effect your arrest. Other police arrived on the scene and you were then taken into custody. The firearm that you produced was found to be an imitation firearm in the shape of a Smith & Wesson pistol.
11 You were interviewed by investigating police at the Fitzroy Police Station and, during the course of a taped record of interview in which you answered “no comment” to most of the questions put to you, you told the police that you wanted to kill yourself.
12 At the time of your offending you were on parole for one charge of rape and one charge of indecent assault in respect of a sentence imposed upon you in this Court on 3 August 2010 of 38 months’ imprisonment with a non-parole period of 22 months.
13 It is clear from the summary of your offending that your conduct over a period of two days was of the utmost seriousness. As I observed during the course of the plea in mitigation., your offending in respect of the charges of reckless conduct endangering a person and resisting a member of the police force are extremely serious examples of those offences. It is also clear that the two offences of aggravated burglary are serious examples of those offences.
14 It must be noted that the arrest of you by Leading Senior Constable Sonderhoff involved considerable bravery by him. He was alone immediately prior to your arrest, and I have no doubt that he exposed himself to the risk of serious injury whilst attempting to arrest you. He carried out his duties as a police officer, as I have said, with great bravery, in an effort to protect the public from you, and for this he deserves commendation.
15 During the course of the struggle between the two of you he suffered lacerations to his face and hand, and a large amount of your blood was deposited on him. I have not received in evidence a Victim Impact Statement from Senior Constable Sonderhoff but it is clear that arresting you, in the circumstances, would have had a significant impact upon him.
16 I now turn to your personal circumstances.
17 You were born on 23 March 1977 and are now aged 36 years.
18 You have admitted an extensive criminal history dating back to 1995. Most of your offending occurred in Western Australia and you have been imprisoned on numerous occasions in that State, principally for offences of burglary and theft.
19 As I have already observed, at the time of your offending in this instance, you were on parole in relation to offences of rape and indecent assault. These offences occurred on 23 March 2009 in relation to your then partner.
20 On 14 January 2012, after the offending occurred, your parole was cancelled by the Adult Parole Board and you were then undergoing that sentence until 2 October 2012. On 4 October 2012, and thereafter on 21 December 2012, you appeared before the Melbourne Magistrates’ Court in relation to charges of aggravated burglary and theft, which occurred in Frankston and Toorak. You were sentenced at that time to a total effective term of imprisonment of nine months, which sentence will be completed by you on 3 July 2013. With the exception of a period between 2 May 2011, when you were released on parole in respect of the charge of rape and indecent assault, and 14 January 2012, during which time you were on parole for the offence of rape and indecent assault, you have been in custody in Victoria since March 2009. As I have already observed, you have served lengthy terms of imprisonment in Western Australia.
21 Any sentence that I impose upon you will commence this day, that is, 14 June 2013, and the sentence will be served concurrently with the balance of the sentence imposed upon you at the Melbourne Magistrates’ Court on 21 December 2012.
22 In arriving at an appropriate proportionate penalty in your case, I have taken the principle of totality into account by reference to the period of imprisonment you have served since March 2009 that I have already referred to, and further in relation to personal circumstances relevant to you.
23 You were born in Carnarvon in Western Australia and are of indigenous heritage. You grew up on a remote cattle station where indigenous people were separated from white people. At the age of seven you were placed in a Christian Mission and were the subject of extreme physical and sexual abuse. Your father died when you were nine years of age and you were introduced to alcohol at the age of 10. Your education and developmental history was seriously disrupted and you had failed to complete Year 8 at school. You developed a polysubstance abuse disorder characterised by heavy cannabis and methylamphetamine abuse. Your work history has been poor, having regard to your substance abuse difficulties.
24 In your mid-twenties you were diagnosed with schizophrenia and since that time you have been admitted to psychiatric hospitals on a number of different occasions. Your mental health issues are no doubt closely related to your personal history of deprivation and abuse, together with your polysubstance disorder.
25 I accept that your tragic and deprived background is a direct result of indigenous disadvantage, and I have taken this factor into account in your favour in mitigation of sentence.
26 Your tragic personal circumstances, and frequent periods of imprisonment, led to you losing contact with your mother. She died in September 2011 whilst you were on parole in Victoria. I also accept that her death had a deeply traumatic effect upon you.
27 I have received in evidence two psychiatric reports from Dr Lester Walton, a consulting and forensic psychiatrist. Dr Walton concluded that you were properly diagnosed as suffering from schizophrenia, and your illness has been aggravated by drug abuse. Dr Walton states that persons suffering from chronic schizophrenia, as you do, commonly have impaired judgment, and this is obviously a contributing factor to your criminal offending.
28 Dr Walton observes that in relation to the offences before this Court, you had discontinued your antipsychotic medication and that, in all probability, you had lapsed into a period of psychosis characterised by paranoia and a sense of desperation. In my opinion, there is realistic connection between your mental illness and the offending before the court.
29 I have also received in evidence two medical reports of Dr Danny Sullivan, a consulting and forensic psychiatrist. Dr Sullivan concluded:
“At the time of the alleged offences the effects of substance abuse and possibly some inchoate, persecutory ideation associated with paranoid schizophrenia has affected Mr Alexander’s capacity to think clearly or make calm and rational choices. His judgment was impaired. He was disinhibited.”
30 In my opinion, the principles enunciated by the Court of Appeal in R v Verdins (2007) 16 VR 269 are engaged in your case. Your moral culpability for your offending conduct must be examined in the context of your mental illness and it is reduced for that reason.
31 Furthermore, in my opinion, general deterrence and specific deterrence must be moderated in your case. I further accept that even though your psychiatric illness has stabilised in prison as a result of antipsychotic medication, prison weighs more heavily on you than on an offender in normal mental health. Whilst your condition has stabilised as a result of your medication, Dr Walton states that you continue to suffer from residual deluded ideas and that you require ongoing psychiatric treatment.
32 Any assessment of your prospects for rehabilitation must be guarded. Your counsel informed me that you wish to return to Western Australia upon your release from prison with a view to residing in Karratha with a paternal aunt.
33 I accept that it is appropriate for me to fix a minimum term in your case that will provide for ongoing supervision on parole and, further, to attempt to ensure that you do not become institutionalised to the point where your prospects for rehabilitation are compromised.
34 Yours has been a difficult case in light of the complex competing sentencing considerations that are hereby at play. I do not accept that the sentencing range placed before the court by the prosecution of a head sentence of between five years and seven years’ imprisonment with a minimum term of between three years and five years’ imprisonment properly reflects the powerful factors in mitigation that I must consider in your case.
35 In the result, the sentence of the court is as follows.
36 On Charge 1, the charge of aggravated burglary, you are convicted and sentenced to be imprisoned for 18 months.
37 On Charge 2, the charge of theft, you are convicted and sentenced to be imprisoned for six months.
38 On Charge 3, the charge of obtaining property by deception, you are convicted and sentenced to be imprisoned for two months.
39 On Charge 4, the charge of aggravated burglary, you are convicted and sentenced to be imprisoned for two years and six months. That charge concerns the burglary on the premises occupied by Paul Klauser and Isobel Teutscher-Klauser.
40 On Charge 5, the charge of theft, you are convicted and sentenced to be imprisoned for three months.
41 On Charge 6, the charge of reckless conduct endangering persons, you are convicted and sentenced to be imprisoned for 18 months.
42 On Charge 7, the charge of resisting a member of the police force, you are convicted and sentenced to be imprisoned for 15 months.
43 In relation to the charge of driving whilst unlicensed, you are convicted and sentenced to be imprisoned for 14 days.
44 Charge 4 is the base sentence. I order that six months on Charge 1, one month on Charge 2, one month on Charge 3, one month on Charge 5, six months on Charge 6 and six months on Charge 7, be served cumulatively on each other and cumulatively on the sentence imposed on Charge 4.
45 This makes for a total effective term of imprisonment of four years and three months.
46 I direct that you serve one year and nine months before becoming eligible for release upon parole.
47 But for your plea of guilty, I would have sentenced you to a total effective term of imprisonment of six years and I would have imposed a non-parole period of three years.
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