Director of Public Prosecutions v Argyropoulos
[2018] VCC 1772
•23 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00316
CR-17-01244
and CR-18-00592
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BILL ARGYROPOULOS |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August, 13 and 17 September 2018 | |
DATE OF SENTENCE: | 23 October 2018 | |
CASE MAY BE CITED AS: | DPP v ARGYROPOULOS | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1772 | |
REASONS FOR SENTENCE
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Subject: Sentencing
Catchwords: Plea of guilty; attempted theft; assault; robbery in street; false imprisonment; threats and assaults to enforce drug debt; drug affected; complex mental health history; totality issues.
Legislation:Sentencing Act (Vic) 1991 s. 16(3C)
Cases cited:R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269; R v Boxtel [2005] VSCA 175; Akoka v R [2017] VSCA 214.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms H. Bate | OPP |
| For the Accused | Mr S. Tovey | Melasecca, Kelly & Zayler |
HER HONOUR:
1 Bill Argyropoulos, you are before me for sentencing on a combination of matters. They and your history are complicated so I will take some time to explain.
2 First, on an indictment dealing with some events in August 2016 you have pleaded guilty to one charge of attempted theft, two charges of common assault, one charge of robbery and two charges of negligently dealing with the proceeds of crime. You have also pleaded guilty to a summary charge transferred to this court connected with those matters, being a charge of possessing prohibited weapons without an exemption or approval.
3 On a second indictment dealing with a set of events that occurred in September 2017, you have pleaded guilty to one charge of false imprisonment, one of making a threat to inflict serious injury, two charges of common assault and one charge of possessing a drug of dependence, namely methylamphetamine. You have also pleaded guilty to three summary charges related to that offending[1].
[1] Clarified by counsel – dialogue omitted in revision.
4 Mr Argyropoulos, you are also charged with contravening a Community Corrections Order by both non-compliance and by two episodes of further offending. That CCO was imposed on 20 March 2017, so it was imposed after the offences in August 2016, but before those on the second indictment of September 2017.
5 You have also admitted a prior criminal history to which I shall refer later.
6 The first set of charges arise out of events on 6 and 7 August 2016. At that stage you were living at your parents' home in Royal Avenue, Springvale. After 7 pm on 6 August when it was dark, you approached a woman, Ms Trinh, who had driven her vehicle into a driveway in Royal Avenue where she intended to visit friends. When she got out of her vehicle in the dark and turned to close its door, she saw you standing next to her - much taller and bigger than her. You screamed at her to give you her mobile phone. She was nervous and scared and replied that she did not have a mobile phone. You continued to demand that she give you her mobile phone and grabbed her by the shoulders and shook her. You then yelled at her to turn on the light in her vehicle and pushed her in the chest in order to get her inside her vehicle to turn on the light. You then got inside and turned on the light, and she managed to duck away from you and run to the front of the house calling out for help. You rummaged through her vehicle and her handbag which was on the front passenger seat, but did not find a mobile phone. You then walked away while your victim Ms Trinh sought assistance from her friends inside the house, and the police were called. She received minor swelling and red marks to the left side of her face. She did not seek medical assistance. These events give rise to Charge 1 of attempted theft, and Charge 2 of common assault.
7 Not long afterwards, you approached a man, Mr Ngu, who was walking along Royal Avenue to return to his car which was parked there. You yelled at him to give you his phone. He was fearful and said, "All right" and handed over his iPhone to you. He then went to walk away but you yelled at him to stay there, and he replied that he had given you his phone already. You were very aggressive, and larger and taller than him, and he was scared. You then hit him forcefully to the right side of his face with your fist. He began bleeding from his face and asked you to let him go. At that point you were distracted by a car driving towards the two of you and you ran over to that car and started banging on the passenger side of the window with your fist. This enabled Mr Ngu to run from the scene. He returned about 20 minutes later, got into his car and drove to Springvale Police Station where he reported the matter to police. Mr Ngu suffered bleeding and a laceration to the right side of his face near his right eye, but did not seek medical assistance. These events give rise to Charge 3 of robbery and Charge 4 of common assault.
8 Police attended the scene of the first incident about 45 minutes later. You were inside your home by that time, and although police made several requests for you to come outside, you refused. More police attended along with the Critical Incident Response Team, and a siege situation occurred over the following hours. After about four hours police abandoned their attempts to arrest you, and left the scene due to concern for the safety of your family members inside with you. Next afternoon they returned, and you denied them entry to the house and another siege situation occurred. That lasted for some hours with the street cordoned off and members of the Critical Incident Response Team attempting to negotiate with you. Eventually some hours later you surrendered and were arrested.
9 A search located in your bedroom a stolen wallet containing two Commonwealth cards in the name of another person, and a stolen wallet containing a drivers licence in the name of yet another person. These are the basis respectively of Charges 6 and 7, each being a charge of negligently dealing with the proceeds of crime.
10 The search also located a large collection of assorted knives, swords and daggers, and they give rise to the summary charge related to these matters, being possession of prohibited weapon. The search also located Mr Ngu's iPhone.
11 On interview you denied the offences in relation to Ms Trinh and Mr Ngu and were not questioned about the items found at your home.
12
At the time of this offending you were on bail for other matters, subsequently dealt with by
His Honour Judge Mullaly. Because you were on bail, s.16(3C) of the Sentencing Act makes any sentences I impose on these matters cumulative, except to the extent that I order otherwise. The August 2016 offences do not constitute a breach of any Community Corrections Order.
13
The second set of offences occurred on 8 and 9 September 2017, when you were assisting an acquaintance, Mr Galousis, to extract money from a man named Winston Yan whom you did not know before that night. At about
3.30 am on 8 September, Galousis required Yan to accompany him from a hotel in Springvale in Galousis' car. Galousis parked it in a street where you were waiting. Yan opened the car door as he had been told to greet you, but you punched him to the face several times. You and Galousis then started yelling at Yan, saying that he owed money as a result of a bad drug deal. Yan was afraid as he knew he could not pay the money. You then got into the back of the vehicle and Galousis drove it around Springvale for some time and then to his address in Pakenham. The false imprisonment of Mr Yan started when
Mr Galousis forced him into the car but you joined it afterwards. It lasted until about 2 pm on that day. That is the basis of Charge 1 on that indictment.
14 While in the vehicle Galousis and you threatened to stab Mr Yan and to cut his throat if he did not get the money that he owed. That is the basis of Charge 2 of making a threat to inflict serious injury.
15 You also hit Yan to the back of the head with your fist approximately four times. Those actions are the basis of Charge 3 of common assault.
16 At about 4.25 am Galousis gave Yan his mobile phone back and told him to call his sister to try to get the money sent from overseas. Yan rang his sister and spoke to her and told you that his sister would send him money in the morning. You stopped hitting him after this. Galousis continued driving and Yan was told to cover his head with a black jumper and then the car arrived at a destination where you all got out, Yan still with his head covered, and he was walked into a garage. Inside he could uncover his head but he did not know where he was at that stage and felt he could not leave.
17 At about 5.30 am he called a friend and told him he needed gold, meaning money, and attempted to say something was wrong by saying he could not leave where he was. You, Galousis and Yan then smoked ice together and went to sleep. At about 8 am Yan heard people in the adjoining house and realised they were Galousis' wife and children. After they left the house you three men moved into the lounge room. Yan convinced you and Galousis that he could get the money, but he had to go back to Springvale. Prior to leaving the house to go there, you and Galousis made another threat to harm him if he played up. Now that is said to be the basis of Charge 4 of common assault. I am not sure that that is a correct charge, but I note there were earlier punches by you as you stood outside the car and Yan opened the door, and if this does not amount to common assault, I am satisfied the earlier punches that had not been part of Charge 3 are that.
18 Back in the vehicle you again sat in the back behind the front passenger seat where Yan sat, and Galousis drove. On the way to Springvale the vehicle stopped at a milk bar and a fish and chip shop. Also en route Yan received a call from an associate wanting to buy ice. Galousis agreed to Yan's request to drive him to Woolworths in Springvale so the $50 drug deal could be done. Yan got out of the car and completed the drug transaction, but realising that you and Galousis had not followed him, he took the opportunity to run away. This brought the false imprisonment of him to an end. Yan went straight to the Springvale Police Station where he arrived at about 2 pm and reported the matter to police. He also sent a text to Galousis telling him that he was reporting the matter to police.
19 The following day police were on their way to Galousis' address when they saw him driving his vehicle and arrested him. On examination of his vehicle they found your fingerprints. At Galousis' address they found various weapons and Yan's wallet. Galousis was interviewed and denied the offending against Yan but admitted to possession of drugs that were also found in his vehicle.
20 After further investigations you were identified as the second offender and on 19 September 2017 - that is some ten or eleven days after the offending - you were arrested and searched and police located a knife, scales and two Apple iPhones.
21 At Dandenong Police Station you declined to be interviewed and then complained of breathing difficulties. Police called an ambulance and you were conveyed to hospital, later you were taken back to Dandenong Police Station, but you were unable to be interviewed due to your demeanour. You were charged and remanded in custody. The same evening police executed a search warrant at your address where they found drugs, drug paraphernalia and cash. The drugs are the basis of Charge 5 of possession of methylamphetamine. The knife found on you at the time of your arrest is the basis of summary Charge 6 of possessing a prohibited weapon.
22 You were on bail at the time of all of this offending, that bail being for the August 2016 offences, and that is the basis of summary Charge 7 of committing an indictable offence whilst on bail. There is also a summary charge of contravening a bail condition which I am told today is for failing to report on a particular occasion.
23 MS BATE: Would Your Honour like me to clarify Your Honour, if Your Honour looks to the opening and I refer you to CR-18-00592.
24 HER HONOUR: Just wait on. That opening, yes which paragraph?
25 MS BATE: Paragraph 29 of that opening Your Honour.
26 HER HONOUR: I do not have a paragraph 29, I have a paragraph 28. And then a chronology. It's on the next page is it?
27 MS BATE: Yes that's correct.
28 HER HONOUR: I beg your pardon.
29 MS BATE: It was a condition of his bail that the accused report to the officer in charge of the Springvale Police Station each Monday, Wednesday and Friday. Failed to report on Friday, 8 September 2017.
30 HER HONOUR: That's because he was busy in the course of unlawfully imprisoning Mr Yan.
31 MS BATE: Presumably so Your Honour.
32 HER HONOUR: Because that starts about three in the morning. Yes. All right I see why I missed that.
33
Summary Charge 8 of contravening a condition of bail is in respect of you failing to report to Springvale Police on the day that you were unlawfully detaining
Mr Yan.
34 Each of the offences committed in September 2017 was also in breach of the Community Correction Order that had been imposed on you by His Honour Judge Mullaly in March 2017. In addition to contravening that Community Correction Order by such offending, you had also ceased to comply with a number of your obligations under that order. Further offending much more recently, that is in August of this year, was also during the operational period of the CCO and is another aspect of you breaching it.
35 I must assess the seriousness of all of this offending taking into account the objective seriousness of each offence, and your role and blame for it.
36 Turning first to the offending against Ms Trinh and Mr Ngu, I take into account that the maximum penalty for attempted theft and common assault is five years' imprisonment on each charge, and for the robbery of Mr Ngu, 15 years' imprisonment. Those maximum penalties, in particular for robbery, reflect the comparative seriousness with which they are regarded by parliament on behalf of the community. Although neither Ms Trinh nor Mr Ngu received any serious injury as a result of the respective assaults, and while each incident was relatively brief, the experience of being confronted after dark near their cars by a stranger demanding a mobile phone and then assaulting them, would have been very frightening. Each of them was just going about their normal activities. You were physically bigger than each of them and each felt intimidated and scared by you. Although there is no victim impact statement from either of them, I accept that each of them was very frightened and shaken by the experience.
37 You have told Mr Crewdson that you were trying to obtain a phone because you wanted to make a call to your telephone company by which you had been frustrated earlier in the day. By your refusing to come out to police hours later, it would appear that you were in a disturbed mental state at the time. What is clear is that you were wholly focused on your own wants rather than thinking about the people you were confronting and robbing or trying to steal from. Your motive does not excuse your total disregard for the impact of your actions on each of these victims, but your mental state does call for some moderation of your culpability. It puts in context that this was not planned offending. It nevertheless calls for sentences on these charges that convey deterrence to others and to an extent to you, and also must include the sentencing purpose of protection of the community.
38 The finding of stolen credit cards and identity cards when police searched your home reflects a willingness to possess items that you were negligent as to whether they were proceeds of crime. The maximum penalty for each of those charges is also five years' imprisonment, although I assess these instances as at a very low level of culpability for possible offences of that nature.
39
The summary charge of possession of a prohibited weapon has a maximum penalty of a fine or two years' imprisonment. The list of the items in this category, being various knives, daggers and swords found in your home, is considerable. I am told that they were kept by you because you were a collector of such items, and not used by you in relation to any offending. Indeed
Mr Crewdson offered the view that from his understanding you would not want to risk any of these weapons by using them for any offending purpose.
40 Now that may be the case, but I regard such a collection of weapons as particularly worrying in that it reflects an obsessive interest in such items by you, and given your unstable mental health and personality to which I shall refer later, I regard the very fact of you possessing and continuing to collect such items at the time, as of concern. I also note that this was after you had been charged in relation to what Judge Mullaly when sentencing you subsequently described as "a vast array of knives". Although you had not yet been dealt with by His Honour as at August 2016, you had continued to acquire such knives despite being charged by police in relation to those found at your home some 17 months earlier.
41 In relation to the offending against Mr Yan, I take into account that the maximum penalties of 10 years' imprisonment for the offence of false imprisonment, and 5 years for each charge of common assault, and for making a threat to inflict serious injury, show that these are capable of being serious offences. The total period of false imprisonment in this case lasted for approximately ten and a half hours overall, and a little less from when you joined it. I take into account that some hours of that were spent by you all sleeping after smoking ice together, and they were also paused to enable Mr Yan to carry out a $50 drug sale and in fact to escape after that.
42
This was far from sophisticated offending - far from a sophisticated or well planned instance of unlawful imprisonment. I view it as not nearly as intimidating as some other instances of this offence, although
Mr Yan was made to cover his head on approaching and leaving the house, which turned out to be the house of Mr Galousis.
43 Nevertheless, it was totally unacceptable conduct with dangerous potential. As to your own role, I accept that you did not instigate the situation or control it, but your participation was apparently to lend your physical presence and muscle to try to force Mr Yan to pay over a substantial amount of money demanded for a drug deal gone wrong. It is not clear to me what you stood to gain if that money had been paid, but your willingness to participate and indeed to physically assault Mr Yan to pursue the overall plan, put this at a more serious level than that of a person who is simply present to make up numbers to put pressure on someone to pay money.
44 Your participation in the incident with Mr Yan is not explained other than that you had reverted to abusing drugs. It brought undone the sustained period of adherence to rehabilitation both leading up to and following the imposition of a CCO. It requires a sentence that conveys denunciation and both general and specific deterrence. That is, to send a message to others and also to you, that such conduct will attract serious punishment. The sentencing purpose of protection of the community is also relevant in my view on these charges.
45 That all of these offences occurred while you were on bail is an aggravating factor and requires cumulative sentences except to the extent ordered otherwise. However as there is also a charge of offending whilst on bail, I have borne in mind that there should not be double punishment in this respect.
46 As I have said, these offences were committed while you were on a CCO and that is also an aggravating factor. I have borne in mind that I must avoid double punishment as I shall be dealing with you for the contravention of your CCO.
47 The CCO was imposed on 20 March 2017 for offending two years earlier. His Honour Judge Mullaly saw you as at a point in your rehabilitation that should not be interrupted by return to prison. You had spent six months, 182 days, in prison on some of the charges. You were compliant with medication for your mental health and were abstaining from drug use. The CCO was imposed for possession of drugs, and summary charges of committing offences whilst on bail and possession of a cartridge. It was to last for 18 months, and had conditions of unpaid work together with rehabilitation and therapeutic conditions, and the time spent at those would count towards the work.
48 It seems that for some months you engaged well on that CCO, attending 11 supervision sessions and only missing one; engaging well when attending those; attending your drug counsellor and psychologist and psychiatrist; and completing more than 60 hours of unpaid work which with another 23 hours of treatment time credited, meant that more than half of the work condition was completed within less than the first six months of the 18 months. However, the September 2017 offending occurred some six months into the CCO, and I am told was while you were in the throes of a resumption of drug abuse. You spent the following six months of that CCO on remand for those offences. You then spent time in a rehabilitation clinic on bail, but barely a month after leaving there, in August of this year, also within the period of the CCO, you committed some further offending for which you were sentenced to 45 days' imprisonment, and the CCO has now expired.
49 Given what has occurred since the imposition of this CCO, including two sets of further offending, both incidents involving violence, and your spending some six months on remand, and the more recent time in prison, as well as four months in residential rehabilitation while on bail, I do not consider that an extension of the CCO would be appropriate. I will be taking into account that you did engage well with that CCO for some months, and completed more than half of the work component, before apparently reverting to drug abuse and engaging in violent, if unsophisticated, offending.
50 I take into account that you have pleaded guilty to all of these charges and are entitled to some leniency in the sentences for that reason. In relation to the August 2016 offending, you indicated a plea of guilty at the committal hearing in June 2017, and no witnesses were required to be called. There was subsequently delay in the listing of the plea for those offences awaiting the other charges so that all could be heard together. For the utilitarian value of saving the need for disputed hearings, and sparing the victims having to relive their experiences by giving evidence, you are entitled to some leniency. By your plea you have accepted responsibility for all of this offending. I find it difficult to determine whether you feel any genuine remorse for this offending, although there are some references in the psychological reports to you talking about the consequences and the feelings that would have been felt by the victims. So to that extent I am prepared to infer there is some genuine remorse.
51 In relation to the incident with Mr Yan, you were arrested for these offences on 19 September 2017, and as I have said exhibited health problems at that time, both physically and mentally. You were remanded in custody and were refused bail a month later in the Magistrates' Court, and then the following month a bail application in the Supreme Court was refused. You were eventually committed for trial on these matters in March this year, after a straight hand-up brief - that means you did not require the attendance of witnesses. You were released on bail at that stage. The matter resolved the following month and you pleaded guilty.
52 The time you spent on remand for these charges will count as pre-sentence detention towards the sentences I impose on these charges. As with the other matter, no witnesses were required to be called at the committal, you pleaded guilty before a trial date so again you are entitled to the utilitarian value or to some leniency for the utilitarian value of the time and cost of disputed hearings, and sparing witnesses having to give evidence. You have also accepted responsibility for your offending. I again query whether you are capable of feeling remorse in the true sense for this offence. I accept that you very much regret putting yourself back in the prison system as a result.
53
When you were granted bail on this second set of offences in March of this year, it was on condition that you enter residential rehabilitation. And that was in conjunction with the drug counsellor who had previously treated you,
Ms Abadee. You were bailed to the Wellbeing Planet where you stayed until 11 July this year. During that time, however, it seems that your mental health declined somewhat. There was also an urgent transfer to hospital for apparent heart symptoms. As best I can determine there is no precise diagnosis and they may have been ascribed to anxiety. There was also a referral to hospital for a recurrence of acute lower back pain but that seemed to subsequently resolve.
54 Unfortunately only weeks after leaving the Wellbeing Planet you were involved in an incident with your daughter which resulted in charges against you, for which you have since served a term of imprisonment of 45 days imposed in the Magistrates' Court. You have remained on remand since that expired. That further period of 28 days will also count as pre-sentence detention.
55 I turn now to your personal circumstances. You are now aged 50. I am told that up to the age of 40 you had lived a normally responsible and stable life, although you had told your treating psychiatrist Dr Riebl originally, that you were subjected to harsh discipline by your father. You had gone into your family's plumbing business on leaving school, then set up your own business of similar nature. You were in a long term marriage relationship and were an active father to your two children.
56 I am told that about 2007 your mental health deteriorated markedly, leading to delusional and paranoid beliefs including about your wife. Ultimately you were hospitalised involuntarily and diagnosed with schizophrenia. You were then placed on a Community Treatment Order for 12 months. Over the following years you were stable at times but not altogether compliant with antipsychotic medication, and in 2013 your mental health deteriorated to a state where your marriage finally ended. That resulted in you living back with your parents by the time of the August 2016 offending.
57 Over the intervening years you had varied in compliance with medication for your psychiatric condition. You had also taken to using illicit drugs particularly methylamphetamine. Even if that was to self-medicate, the effect in fact exacerbated your mental health problems, and led to you at times not adhering to the taking of prescribed medication. You also engaged in various types of offending, including not only possession of illegal drugs, but dishonesty, possession of weapons and violence. Ultimately in 2013 an Intervention Order was taken out, and some offending noticeably was in breach of that order.
58 I shall not set out the details of your criminal history over that period, or even the much earlier period of initially some charges to do with drugs in your early 20s. Your criminal history does you no credit, although I note there was a five year interval between 2008 and 2013 when you did not come before courts, and that is consistent with what I am told was at times compliance with medication and some stability.
59 Your past offending has involved sentences of various types including CCOs and imprisonment. What is of concern is that the offending that I am dealing with, in particular that against Mr Yan, constitutes an escalation in apparent seriousness of offending.
60 You have a complex mental health history over the last ten or eleven years. I shall not repeat all of its detail, but it has clearly been exacerbated at times by you taking illegal drugs, even if you thought they were medicating you for your psychological symptoms.
61 Mr Michael Crewdson, clinical and forensic psychologist, has been treating you for the last four or five years in conjunction with a psychiatrist Dr Riebl from February 2016, and a drug and alcohol clinician currently Ms Abadee of the drug and alcohol rehabilitation clinic called the WellBeing Planet. In addition your general practitioner Dr Vu had prescribed medication although not taken an active role in coordinating your mental health treatment.
62 Dr Riebl in a report in March 2016 soon after his first consultation with you, and while you were awaiting a bail application, noted that there had been a previous diagnosis of paranoid schizophrenia of which he had no details. He made a provisional diagnosis of a somewhat atypical bipolar affective disorder with prominent but fluctuating hypomanic states, reactive to an underlying state of quite profound depressive mood. He also provisionally diagnosed lifelong ADHD. He considered that you were deteriorating in the prison setting, and at that stage recommended an admission to a suitable psychiatric inpatient unit as more appropriate for a positive clinical and rehabilitative outcome.
63 In October 2016 being two months after the offending in your street, that is on the first indictment here, Dr Riebl reported that you had suffered a relapse into stimulant abuse in July 2016, and that the effects of methylamphetamine combined with non-compliance of prescribed medications caused a recurrence of mania as part of your bipolar affective disorder, which interfered with your judgment and your ability to attend to your obligations on bail conditions. He also noted his view that over the years you appear to have developed or at least deepened a somewhat egocentric self-aggrandising idea of being chosen to protect the weak from bullying and exploitation.
64 At that stage he and Mr Crewdson were of the view that there was further need to stabilise your mental state before making an application for bail, notwithstanding your pleading for them to support your bail application. At that stage a psychiatrist and addiction specialist at MRC had discussed your case with Dr Riebl and expressed the view that as your acute agitation had been largely drug fuelled on that occasion, more time might be needed for effective stabilisation. You did at that stage show a considerably more reflective attitude and more insight into the effects your actions might have on victims of your offending. Depot medications, particularly of the antipsychotic drug, were recommended to continue whilst in prison and on your release with supervised urine drug screens to assure abstinence from stimulant drugs, especially methylamphetamines, and a more comprehensive program of drug rehabilitation than previously.
65 I understand that Dr Riebl was not available during the hearings for these matters and there has been no more up to date report from him. However as he has treated you in conjunction with Mr Crewdson, and Mr Crewdson has provided a lot further and more recent information, I take his reports to cover what Dr Riebl might have been able to say.
66
Mr Crewdson provided reports and gave oral evidence during the plea hearing, and has provided a further letter or report very recently. He says that there are difficulties in diagnosis of your mental health conditions because of interaction between several aspects. In his opinion, you suffer anxiety and depression which interact with an underlying combination of organic issues including cyclical variation in mood which is of a bipolar nature. You also suffer what he describes as Adult Attention Deficit Disorder, other significant personality issues that include the self-focus and self-aggrandisement aspect mentioned by
Dr Riebl, as well as issues of polysubstance abuse, but especially methylamphetamine. He describes your condition as complex, and there is not one specific factor but an interaction of many. He was aware that Dr Lester Walton, another consultant psychiatrist, also thought there was bipolar disorder present. It is unclear to me whether the diagnosis from 2007 of schizophrenia has been adopted or confirmed by your current treaters.
67 Mr Crewdson discussed that there has been a lack of coordination between your treating team, and particularly in relation to supervision of medication. He said he believed more attention should be given to that. I note it is not his role as a psychologist to prescribe nor supervise medication, but when he gave evidence in September he said that when in prison in 2016 you were stabilised on medication administered by depot method, and he considered that on your release you were considerably healthier than you had been for some time. A quote from an earlier report was repeated in his most recent letter. That is consistent with the impression conveyed to Judge Mullaly, but unfortunately the situation deteriorated when you reverted to abusing drugs prior to the offending in September 2017. Mr Crewdon’s reference in his recent letter is to March 2018 but he had also said similar about an earlier period of stabilisation during imprisonment.
68 You were remanded in prison for six months after the September 2017 offending, and when released on bail in March 2018 it was to the WellBeing clinic as a condition of bail. You successfully completed three months there, initially struggling with the intense treatment of residential rehabilitation. You were readmitted for another six weeks. I am not sure whether that is part of the three months or not, and think it probably was given the dates.
69 Ms Abadee reports that when you went back for that further six weeks, it was with a much more positive outlook and much more motivation for treatment. She reports that while in the program there were two positive drug screens for methylamphetamines, but for each of them you raised that likelihood with her before she had the results, and said you had lapsed soon after completing the program that I take to be the residential program. She felt it was positive that you had revealed these matters and nevertheless attended for counselling rather than not attend, as she thought would have been your previous attitude.
70 Ms Abadee's latest report was written while you were back in prison but she believed that you were committed to resuming your rehabilitation through that clinic when back in the community. I take it that you have established some trusting rapport with her, and have some confidence in returning there for further treatment for drug addiction.
71 Mr Crewdson was able to give some evidence about your mental state shortly after the August 2017 offending - that is the attempts to gain mobile phones from people in your street. He apparently spoke to you by telephone during the following day while there was the second so-called siege in progress, during which he was trying to persuade you to allow police to enter your home - in fact your parents' home. Eventually you did. Mr Crewdson described you as calm but with distracted thought processes. I accept that although not strictly contemporaneous and probably exacerbated or precipitated the previous day by illicit drug use, you were likely on that previous day when you confronted Ms Trin and Mr Ngu, to be experiencing distorted thought processes and impaired reasoning at least in part due to your underlying psychological and psychiatric conditions of combined anxiety, depression and bipolar traits.
72 In a recent report that your solicitor forwarded to me last Friday, Mr Crewdson advised of two matters of clinical concern to him. He also indicated that there you had anxiety about the delay in the sentence, but he was probably not aware that I tried to have it listed last Monday but could not. He advised that you had suffered a further angina attack and been admitted to St Vincent's Hospital. He understood your medication had been altered but you had not been told the specifics.
73 The further point of concern was that you had not been given any further depot injections of the antipsychotic and mood stabilising drug Abilify, since you had been at Ravenhall. He said since you had been at Melbourne Assessment Prison; I take it that was the last time you received the treatment and since you have been at Ravenhall you have not been given it. When he saw you you were three weeks overdue for it. You told him you had made numerous requests for it, but were told that the medical authorities at Ravenhall had no knowledge of the prescription.
74 He noted the previous efforts to have you put on the depot injections of Abilify, as they had brought about significant improvement in your condition, and indeed he previously said it was the best presentation that he had seen in you when you were released on bail in March of this year after approximately six months in custody. He felt it a vindication for you having been kept there to have that medication regime stabilised. He noted that you had previously struggled against the concept of taking antipsychotic drugs, and noted the context of your mother's schizoaffective disorder as part of the reason for that.
75 He assessed you just under two weeks ago as greatly distressed when he saw you, with evidence of considerable anxiety, pressure of speech and repetitive expression of concern about your circumstances. The latter I take to be something beyond what might be a normal expression of that by many prisoners. You were angry and distressed that the prison authorities were not acknowledging your need for the medication or giving adequate answers. I do not have the power to direct prison authorities to give you medication. However, I express my concern if there has not been adequate communication of what has been prescribed. I have Mr Crewdson's evidence to the effect that it has caused you distress, and implicitly that in his view it has destabilised your mental health medication regime. I can only take it into account as a factor requiring some further mitigation of your sentence, to take into account that at least over the last few weeks you have spent your time in more difficult psychological condition and circumstances whilst in prison.
76 Finally, you have also been suffering some physical health issues. Ms Abadee confirmed that during your time at the WellBeing Planet earlier this year, you were taken twice to hospital. You had a situation of an emergency where a preliminary diagnosis of blocked arteries to your heart was made. An Alfred Health discharge summary for 2 June records an attendance for an acute episode of back pain in the context of longstanding low back pain with multiple flare ups. Analgesia, and physiotherapy if it settled, were recommended. Another attendance at that hospital on 8 June reflects sudden onset of chest pain while you were in rehabilitation. There was to be an early outpatient cardiology follow up and your GP was contacted.
77 As I have said you were remanded in custody in August, and when this matter was last on for hearing I was told of you being taken to St Vincent's for what was a heart related episode. I was under the impression it was diagnosed to be anxiety related. A record of an even more recent episode has been tendered today, that is through a discharge summary from St Vincent's from the Cardiology Unit where you were admitted on 29 September and discharged three days later to Ravenhall. It notes an angiogram of 13 August 2018 at Monash. It also notes that you had been discharged in September with a prescription for a drug called Nicorandil, which I take to be connected with your cardiac condition, but that that medication was not found in your medication packet. And you have told Mr Crewdson that you have not been in fact supplied with that medication whilst in prison. The report from St Vincent's recommended continued use of that drug (Nicorandil) and other antianginals, and a follow up review for later this week was made, but I gather that would be by some version of tele link.
78
Your counsel points out that the list of your discharge medications does not include Abilify which is the drug
Mr Crewdson says had been administered by depot injection with good effect, and seems to have gone missing from your medication regime over the last month.
79 I am satisfied that you have been suffering some heart problems over the course of this year, and although I do not have direct medical opinion as to this effect, I am prepared to infer that the anxiety of being in prison may well have contributed to exacerbating some symptoms, and that being unsure of the severity or diagnosis of that condition has caused you some further anxiety whilst you have been in custody. Although not so severe as to warrant my not imposing any further term of imprisonment, I take into account that some moderation of your sentence is warranted if imprisonment is making your experience of imprisonment more difficult and possibly exacerbating symptoms[2]. That is in relation to that physical condition, and I have also taken into account as I have already said, that the complexity of your mental health conditions has been making your time in custody more onerous, and particularly if you have not more recently been receiving previously recommended medication to keep you stable in that regard. This too calls for some moderation of the length of imprisonment I impose[3].
[2]R v Boxtel [2005] VSCA 175.
[3] Verdins limbs 5 & 6
80 I have taken into account the period you spent in residential rehabilitation which was said to be a total of three months, or three months and six weeks. Although that is not strictly pre-sentence detention, it was of a nature that imposed restrictions on your movements and activities, and should be considered as such as a form of penalty.[4] Although not by strict arithmetic equivalents, I have reduced the sentences on false imprisonment to an extent, on making a threat to seriously injure to an extent, and I have also directed total concurrency for some other offences to allow for that further restricted time.
[4]Akoka v R [2017] VSCA 214.
81 I have also considered that the principle of totality calls for some moderation of your sentence. In particular this applies in the internal structure of the sentence where offences were committed at about the same time, or arising out of the same overall events. I have also taken that principle into account in relation to the total time you have spent in custody over the last three years, and that includes the 45 days of the most recent offending and sentence.
82 In dealing with the breaches of the CCO, I take into account that the further offending, at least that in September 2017, is being dealt with under other charges so there should be some concurrency so as not to double punish. I have applied that concurrency in dealing with the breaching offences rather than the breach of the CCO itself.
83 Taking all of these circumstances and issues into account, I have decided that on each set of offending no sentence other than a term of imprisonment would be appropriate. As I have said, I have allowed for some concurrency. I have also allowed for the deduction of all days of pre-sentence detention which will be reckoned served and deduced administratively. I also am going to fix a non-parole period. It is of course for the Parole Board to decide whether you are to be released when you reach the minimum term, but I have explained my reasons which will no doubt be taken into account.
84 Would you stand up now please.
85 Bill Argyropoulos, on all charges before me you are convicted and sentenced as follows.
86 On Indictment G12159601 which is the August 2016 charges:
87 On Charges 1 and 2 of attempted theft and assault of Ms Trinh, an aggregate sentence of four months' imprisonment.
88 On Charges 3 and 4 of robbery and assault of Mr Ngu, an aggregate sentence of five months' imprisonment.
89 Charge 5 is dismissed.
90 On Charges 6 and 7 of negligently dealing with the proceeds of crime, an aggregate sentence of one month imprisonment.
91 On the summary charge of possessing prohibited weapons, five months' imprisonment.
92 As I have already said, because all these charges were committed whilst on bail, they would fall to be served cumulatively except to the extent I direct concurrency. I direct that two months of the sentence on Charges 1 and 2 be served concurrently with the sentence on Charges 3 and 4. And that the sentence on Charges 6 and 7 be served wholly concurrently with all of those other sentences.
93 That makes a total effective sentence on the indictment charges of seven months' imprisonment.
94 I direct that three months of the sentence on the summary charge be served concurrently with the sentences on the indictment, making a total effective sentence on the August 2016 offending, and that falls into CR-17-01244, the total effective sentence on all of those offences is nine months' imprisonment.
95 I declare 89 days of pre-sentence detention for those offences as reckoned served and direct that that be entered in court records.
96 I will come back later to the question of whether I make separate or total s.6AAA statements of what the sentence would have been.
97 Also on that matter I make the disposal order that was sought and was not opposed.
98 In CR-18-005920 for the September 2017 offences:
99 On the indictment there on Charge 1 of false imprisonment I impose six months' imprisonment.
100 On Charge 2 of making a threat to inflict serious injury, three months' imprisonment.
101 On Charge 3, assault, two months' imprisonment.
102 On Charge 4, assault, two months' imprisonment.
103 On Charge 5, possessing methylamphetamine, one month imprisonment.
104 On the summary charge of committing an indictable offence whilst on bail, two months' imprisonment.
105 On the summary charge of possessing a dagger, 14 days' imprisonment.
106 And on the summary charge of contravening a condition of bail, 14 days' imprisonment.
107 I direct that all but one month on each of Charges 2, 3 and 4 be served concurrently with the sentence on Charge 1. I direct that the whole of the sentence on Charge 5 be served concurrently with the sentence on Charge 1. I further direct that one month of the sentence on the summary charge of committing an indictable offence whilst on bail be served concurrently with the charges on the indictment, and that the whole of the sentences on the two other summary charges be served concurrently with all other sentences on the indictment.
108 That should produce a total effective sentence of ten months' imprisonment. In other words I have cumulated one month each of Charges 2, 3 and 4, and one month of the summary charge of committing an indictable offence whilst on bail, so total effective sentence of ten months' imprisonment.
109 I declare 182 days of pre-sentence detention reckoned served towards this sentence and direct that that be entered in court records.
110 Now finally on the contravention of the CCO that was imposed by Judge Mullaly. I find the charge of contravention proven and impose a sentence of one month imprisonment for that offence. I direct no concurrency so that that sentence be served wholly cumulatively on other sentences imposed today. I am not sure that I have to direct that, but I intend that to be wholly cumulative on the other sentences imposed today. I declare 28 days of pre-sentence detention reckoned served in respect of that sentence.[5]
[5] This was changed. In the final orders the 28 days PSD was added to the PSD on CR-18-00592.
111 Now the CCO has expired. I have already said that I find that the breach of it or contravention of it was proven, but in all the circumstances including that there was very considerable compliance for at least about five months, I have decided that I will not resentence for the charges that were committed in 2015 for which it was imposed. So on that aspect the breach is proven but there is no further order made.
112 That leaves the issue of concurrency or cumulation between the sentences on the two separate indictments together with their summary charges. I have already said what I am doing for the penalty for breaching the CCO.
113 I intend that five months of the sentence on the first indictment be served cumulatively on the sentence on the second indictment. To that end I direct that four months of that sentence be served concurrently with the sentence in CR-18-00592. I have already said but I repeat, I direct that the one month sentence for breach of the CCO be served cumulatively on all other sentences imposed this day.
114 The total overall sentence is therefore 16 months' imprisonment. I set a non-parole period of 10 months. On my calculation the total of the pre-sentence detention means that that is very close to reached, barring a few days, but of course it is ultimately a decision for the Parole Board at what stage they consider you for parole.
115 Now the s.6AAA situation is very complicated. Is it sufficient to give the overall amount or do you want it broken down as between the three CRs, the three files?
116 MS BATE: If I could just clarify one matter Your Honour.
117 HER HONOUR: Yes.
118
MS BATE: Your Honour, just in relation to the 28 days by way of pre-sentence detention Your Honour declared attributable to the contravention.
Mr Argyropoulos was never remanded in relation to the contravention itself. The position - - -
119 HER HONOUR: I think he was on my order last time. The other thing I can do rather than waste more time on it is add that to the second indictment and so the total there declared reckoned served can be – it comes out then as 201 days. I think Mr Argyropoulos pleaded guilty when we started this hearing in August, so on one sense that is when he is convicted of it, and when I look at an order I signed on that, I had remanded him. And it is this last 28 days. If it could be a problem, I will add that to the period on the second indictment or the second CR, the 2018 CR number, and that will bring that – I will correct that from 182 - that becomes 210 days.
120 MS BATE: Yes Your Honour.
121 HER HONOUR: I think.
122
MS BATE: And Your Honour, if I could just make the point that whilst
Your Honour stood down briefly before, I was instructed to ask that Your Honour attributed both indictments to one another in your sentencing remarks so they can be read globally by Corrections just to ensure they're linked.
123 HER HONOUR: We will put a note at the bottom that they are total effective sentences in conjunction with the others.
124 MS BATE: Yes.
125 HER HONOUR: But apparently CLMS, I recommended it be in respect of the CR number but CLMS has corrected it to the indictment number.
126 MS BATE: Yes.
127 HER HONOUR: Now that unfortunately does not take into account the summary charges.
128 MS BATE: Yes.
129 HER HONOUR: And it also – but I truly am beyond knowing how to – sorry when I say I am beyond knowing, I think it just has to be entered this way tonight.
130 MS BATE: Yes.
131 HER HONOUR: If that is not satisfactory then we will get back the central records issue. I was not in a position to get hold of them before, it was more how it could be done today.
132 MS BATE: Yes. As long as Your Honour's intentions appear through - - -
133
HER HONOUR: My overall intention is a total sentence of 16 months, a
non–parole period of 10 months and 210 days if we put it that way plus 89 days is reckoned served.
134 MS BATE: As Your Honour pleases.
135 HER HONOUR: All right now what do I do about a 6AAA or multiple 6AAAs. I have to – it is not an error if I do not state it but I know s.6AAA tells me to state it. Are you satisfied with a global one? I did have it for each because I did think it through at the time. What I had not dealt with was two separate non-parole periods because one would have had to replace the other.
136 What I am prepared to do is say on the first indictment, but for the pleas of guilty but if all other circumstances had been the same, I would have imposed a total sentence of 15 months' imprisonment. I had noted it would have been with nine months non-parole. But then on the second indictment it would have been 18 months' imprisonment and – the trouble is I have to go into cumulation and everything, to work out what the new non-parole period would have been and it becomes even more artificial than it is already. So it is 15 months total on the first indictment and 18 months total on the second and it would have been six weeks on the breach of CCO. And those totals are really not per indictment but include the respective summary offences. Yes.
137 MS BATE: That is understood, Your Honour, and should be sufficient. If I can just ask that Your Honour confirm the ancillary orders sought in relation to the second indictment are made.
138 HER HONOUR: Yes, yes certainly. The disposal orders were either consented to or not opposed.
139 MS BATE: Yes there was disposal and forfeiture in relation to the drugs also.
140 HER HONOUR: Yes.
141 MS BATE: Thank you Your Honour.
142 HER HONOUR: I am assuming Mr Ngu's phone doesn't get destroyed.
143 MS BATE: No, Mr Ngu's phone will not make up part of the - - -
144 HER HONOUR: That was on the list wasn't it or was it off the list.
145 MS BATE: We'll ensure that's returned to Mr Ngu even if it is included on the order Your Honour, it shouldn’t be, we'll ensure to it.
146 HER HONOUR: All right. Is there anything else I've overlooked?
147 MR TOVEY: No Your Honour.
148 HER HONOUR: All right. I apologise to everyone for the timing of the day but I truly do not know why we got off to the problem start, and had it not been confirmed to my staff while I was hearing the next matter that Mr Argyropoulos would be here by 2.30, I wouldn't have brought the matter back on today. But I hope the timing doesn't leave him in too difficult a position tonight.
149 MR TOVEY: No Your Honour.
150 HER HONOUR: Do you want to approach him now to talk to him while these orders are prepared - - -
151 MR TOVEY: If I might Your Honour.
152 HER HONOUR: - - - so I can sign off as quickly as possible to get him returned to prison as quickly as possible.
153 MR TOVEY: Thank you Your Honour.
154 HER HONOUR: You can take a seat Mr Argyropoulos while we just get the – or I can have you removed from the court and the orders will follow as quickly as possible. I don't know what the timing is on transport at this hour.
155 PRISON OFFICER: Your Honour, it's possible that there is a bus downstairs waiting.
156 HER HONOUR: Good.
157 PRISONER: Happy to (indistinct).
158 HER HONOUR: I'll stay up here and sign off on the orders so that that can take its course.
159 MR TOVEY: As Your Honour pleases.
160 PRISONER: Thank you Your Honour.
161 HER HONOUR: All right, it's up to you Mr Argyropoulos. First of all it's up to the Parole Board - I'm not sure on their timing nowadays and what might be decided, but once you are out of prison it is up to you. You know all the pitfalls.
162 PRISONER: Yes Your Worship.
163 HER HONOUR: You know all the mistakes you made in the past and it's really up to you. You've got some support people around you.
164 PRISONER: I'm getting my life back together again Your Honour.
165 HER HONOUR: But you know you've got to stay off the methylamphetamine and you've got to take the prescribed medication for your mental health condition.
166 PRISONER: Yes Your Worship. Thank you.
167 HER HONOUR: All right. There's something wrong in one of the orders and it's not showing which one.
168 MR TOVEY: That's helpful.
169 HER HONOUR: We are ruled by a computer system that has charge.
170 MR TOVEY: Your Honour can potentially feel some gratitude that it's not the system that I understand they have in the Magistrates' Court which is still a dos based system.
171 HER HONOUR: Yes I had heard that.
172 MR TOVEY: And having seen it, having had the exasperated magistrate turn the screen around to me the other day to show me, it's unsurprising that it causes the amount of difficulty that it does to all involved.
173 HER HONOUR: Is there a problem holding the transport?
174 SECURITY OFFICER: I'm just letting them know.
175 HER HONOUR: Thank you for doing that.
176 I'm sorry to keep everyone back here this long and I was a bit afraid that we'd get to this point because if the orders had floored me for hours I knew the machine wasn't going to cope very well either. I think I know what the problem is, it can't find the real total effective sentence because it's buried in - when it sees a non-parole period with less than a six month gap from the particular two CR numbers it doesn't know that the extra month resides in CR-16 which is where it was from breaching Judge Mullaly's orders. And there's a very long list of charges that Judge Mullaly was dealing with. I should have left him to deal with this. If it assists I don't mind if Mr Argyropoulos is taken downstairs now, it's just that you need the orders I know to remove him from the building. Does it help?
177 SECURITY OFFICER: We might bring him downstairs just to update everyone.
178 HER HONOUR: All right.
179 SECURITY OFFICER: And then we'll wait, that way - - -
180 HER HONOUR: We're trying.
181 SECURITY OFFICER: Yeah.
182 HER HONOUR: I don't however want Mr Argyropoulos to end up over the road tonight basically. I do want to try to ensure that he goes back to Ravenhall if that's where he is at the moment. But not Melbourne Reception Centre.
183 SECURITY OFFICER: Yeah he should be taken back to where he came from.
184 HER HONOUR: And they'll hold a bus until he is ready?
185 SECURITY OFFICER: I believe Your Honour that is the situation.
186 HER HONOUR: All right I'll stay here, we've got one of three orders signed. Yes Mr Argyropoulos I'll have you taken – have you finished, you've spoken with your client?
187 MR TOVEY: We have Your Honour yes.
188 HER HONOUR: I'll have you taken from the courtroom. As I say it's really up to you.
189
PRISONER: Yes Your Honour, I appreciate – I appreciate it thank you
Your Honour.
190 HER HONOUR: All right, thank you. Take Mr Argyropoulos back into custody please.
191 Sorry Ms Bate and Mr Tovey, on the second indictment or attached to the second indictment in CR-18-00592, there were three or there were four summary charges left?
192 MS BATE: Three.
193 HER HONOUR: Three. So that's the possess the prohibited weapon.
194 MS BATE: The dagger, yes.
195 HER HONOUR: The commit indictable offence whilst on bail and contravene of bail condition.
196 MS BATE: Contravene conduct condition yes.
197 HER HONOUR: All right. Somehow summary Charge 11 dealing with property suspected of being proceeds of crime is still sitting in the system.
198 MS BATE: It should have been withdrawn, Your Honour, yes.
199 HER HONOUR: Yes. So can we have 11 withdrawn thank you. Located the glitch maybe, I hope. There's a constant struggle with the number of summary charges being (recording malfunction 6:00:03-6:00:09). Some of this has been withdrawn. And at least I've noted that Charge 5 was to be dismissed on the first indictment. That I'd noted. I'm sorry I'm not trying to laugh about it, it was rather like a jigsaw puzzle this one.
200 MR TOVEY: Without doubt Your Honour.
201 HER HONOUR: All right thank you everybody, I'm sorry about the hour of day or evening, it looks like the orders are completed and if we get a call to say they're wrong I won't be that surprised but we've done our best. I’m just anxious that they go downstairs, they get sent down to the custodial people as soon as possible. We'll adjourn please until 10.30 tomorrow.
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