Director of Public Prosecutions v Asmar
[2020] VCC 1433
•15 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00739
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARBEL ASMAR |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 September 2020 | |
DATE OF SENTENCE: | 15 September 2020 | |
CASE MAY BE CITED AS: | DPP v Asmar | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1433 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge armed robbery – youthful offender- mitigatory effect of impaired mental functioning –psychiatric illness and reduction of moral culpability – offender subject to a Community Treatment Order for involuntary treatment – treatment would likely cease if incarcerated.
Legislation Cited: s75A Crimes Act 1958 ; Mental Health Act 2014; Sentencing Act1991.
Cases Cited: R v Verdins (2007) 16 VR 269.
Sentence: Convicted and sentenced to four days imprisonment and to a Community Corrections Order for 24 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobabic | Office of Public Prosecutions |
| For the Accused | Ms. J. Hession | Victoria Legal Aid |
HER HONOUR:
1 On 31 January 2020, at about 10.30 am, a young man walked into a service station in Fawkner. He told the service attendant that “your tobacco chipped my neck so I need $20”. He held out a kitchen knife with a blade of about 14 centimetres and again talked about the tobacco ‘chipping his neck’. The service station attendant told him that she did not understand what he meant. She tried to joke with him. The young man became agitated, lifted the knife above his head and told the attendant that he was going to steal something. He wandered away from the counter. The attendant took $20 out of the till and gave it to him in the hope that he would leave and that anyone coming into the store might not be hurt.
2 Charbel Asmar, you have pleaded guilty to one charge of armed robbery contrary to s.75A of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment.
Circumstances of the offending
3 The circumstances of your offending are set out in the Summary of Prosecution Opening, dated 7 September 2020. That document is Exhibit A on the plea and forms part of these reasons. I will summarise the facts giving rise to your offending here.
4 On 31 January 2020, at approximately 10.30 am, you entered the Caltex Service Station at 1243 Sydney Road in Fawkner. Ms Zreiby, who was working alone in the store at the time, had been outside the console area at the fridge when you walked in. She went behind the counter to serve you.
5 You said to Ms Zreiby, “Your tobacco chipped my neck and I need $20”. You then pulled out a kitchen knife with a 14 centimetre blade from the pocket of your shorts and pointed it at Ms Zreiby.
6 Again you told Ms Zreiby, “Your tobacco chipped my neck and I need $20”. When Ms Zreiby said she did not know what you meant, you lifted your T-shirt and showed her a pouch of tobacco tucked into your shorts. Ms Zreiby asked you, as a joke, if you had a receipt for the tobacco. You then said, “I’m going to steal something then”.
7 You became agitated. You were standing a foot away from the counter when you lifted the knife above your head with the blade pointing upwards. You stared at Ms Zreiby without saying anything.
8 You then walked away from the counter and held the knife by your side as you looked at snacks on the shelves. Ms Zreiby asked you twice if you were hungry. You told her you had already eaten. She felt threatened when you were holding the knife and thought you would only leave if she gave you $20. She was concerned that you might hurt someone who might enter the store. She told you that the Police would eventually catch you. You said that you did not care and left.
9 CCTV footage shows the incident unfolding over about two and a half minutes. The CCTV is Exhibit B on the plea. In it we see you approach the counter and take out a knife from your shorts as you speak with Ms Zreiby, and then leave once you are handed the $20 note.
Arrest and interview
10 A few minutes afterwards the Police arrested you about 600 metres from the service station. You began to run at first but then stopped, raised your hands and slowly walked back towards them. You told Police that you had thrown the knife into a car dealership but it could not be found.
11 You were taken to the Fawkner Police Station for an interview. You did not respond when the Police tried to engage with you.
12 You told the Police that you had purchased cigarettes from the service station that were ‘laced’ and ‘clicked your neck’. You told Police that you had smoked cocaine a few hours before the incident, that you had been living in Campbellfield, but had left two days ago, and that you had been ‘living on the road’ ever since. I will return to whether any of these statements were based in fact later in these reasons.
13 A forensic medical officer assessed you as unfit for interview. Dr Rose told Police that you needed a psychiatric assessment and that if you were released you should be taken to a hospital.
14 Three days later, on 3 February, you were granted bail.
15 On 5 June 2020, at a second committal case conference, you entered a plea of guilty to the charge of armed robbery. Your case was transferred to the County Court for a plea hearing.
Nature and gravity of offending
16 Armed robbery carries a maximum penalty of 25 years imprisonment. It carries that penalty because it is regarded as a very serious thing to do to another person. However, I am obliged to locate where your offending sits on the scale of seriousness in relation to armed robberies.
17 It appears that you went to the service station to seek some redress for them having sold you tobacco that was contaminated and which gave you problems with your neck. You carried a knife. What you did made the sales assistant, who was only young too, feel very frightened, though I pause to note that she managed the situation very calmly and attempted to deal with you and your behaviour through good humour and conversation. Although you moved the knife during the exchange, you did not speak of using it nor make any movement towards doing so. Once you were offered $20, which was your original demand, you left. In all those circumstances I find that your armed robbery is categorised in the low range for this type offending; a categorisation with which the prosecutor agreed.
Victim impact
18 Ms Zreiby has provided a victim impact statement. She was 20 years old at the time. Although she dealt with this situation very capably, afterwards she tried to seem more resilient than she really felt. She still feels anxious sometimes at work. She should not have been put in this position by you and I take the impact on her into account.
Personal circumstances
19 You are 20 years old. You were 19 at the time of the offending. You live with your mother, father and sister. Your parents come from Lebanon and speak little English. You and your elder sister, Jessica, who works in the food industry at Melbourne Airport, were both born in Australia.
20 You have had generally good relationships with your parents growing up. You left school halfway through Year 9 because you were 'bored'. You are currently on Youth Allowance and have not worked. You spend your time at home listening to music and, until recently, playing video games.
Previous good character
21 You have no prior convictions and you come before the court as a person of good character. In her reference, which is Exhibit 2 on the plea, your sister describes you as having previously been a quiet and gentle person who is always caring and honest. She speaks about you with a great deal of affection.
Psychiatric evidence
22 Thelma Lynch, a Forensicare social worker, wrote a report for your Magistrates' Court bail application. That report is dated 3 February 2020 and is Exhibit 4 on the plea. Ms Lynch confirms that you were made subject to a Community Treatment Order from 11 July 2019 to 8 January 2020. This means that during that period you satisfied the relevant criteria under the Mental Health Act 2014[1]. According to Ms Lynch, you did not have any treatment after the expiration of that order on 8 January 2020; your offending occurred approximately three weeks later.
[1] See Mental Health Act 2014 s.55.
23
Ms Lynch also confirms that you have previously had four admissions to hospital for psychiatric treatment, with the most recent having been from
5 - 11 July 2019. The latter of these two admissions have been at the Orygen Youth Health Service.
24
A letter dated 3 July 2020, authored by Mr Lachlan Miller and
Dr Oscar Stevenson, was tendered on the plea, and it is Exhibit 5.
Dr Stevenson is a psychiatric registrar at the Orygen Youth Health Service and Lachlan Miller, your case manager. Their letter noted that you have a diagnosis of schizophrenia and have been engaged with that service since June 2019.
25 You are now regularly reviewed by the doctors there and given a regular injection of Aripiprazole. The opinion of the authors is that you were mentally unwell at the time of your offending.
Report of Dr Nina Zimmerman
26 On your plea your counsel tendered a report by Dr Zimmerman. She is a psychiatrist. In her report Dr Zimmerman explained that you are diagnosed with a mental illness, schizophrenia.
27 Dr Zimmerman explained that you are now on a treatment order in the community. That means that you are being treated for a mental illness even though you do not agree. On the plea I was given a copy of your current Community Treatment Order made by the Mental Health Tribunal on 6 July 2020. That is Exhibit 3. That order will last until 28 February 2021.
28 Dr Zimmerman explained that you have an injection once per month to help you with your symptoms. She said you had ‘limited insight’ into your mental illness.
29 When Dr Zimmerman asked you about the armed robbery you told her that you had been hearing clicking and popping noises in the back of your neck when you smoke cigarettes and breathe in. You told her, “I’ve tested every smoke, they all do it, even if they are not laced. That’s why I did it”. You told her that you brought the packet of tobacco that you had previously purchased from the shop with you on the day of the offending and demanded a refund because of the clicking noises in your neck that it had caused.
30 You told Dr Zimmerman that you hear popping sounds from your neck along the length of your back, from your foot, and that while the noises from your back and neck are soft, you feel that your foot makes louder noises.
31 In Dr Zimmerman’s opinion you think these things because you have a mental illness. At paragraph 54 of her report Dr Zimmerman concluded with this opinion:
“Mr Asmar has experienced frank symptoms of psychosis in the form of somatic delusions and auditory hallucinations over the past two years centring around harm being done to his neck, back, brain and limbs as a result of smoking cigarettes. Mr Asmar also feels that antipsychotics and possibly an MRI have aggravated this problem. Mr Asmar struggles to make sense of his experiences wondering whether his tobacco has been interfered with or whether it is just “a bad batch”. Given the presence of paranoid and somatic delusions and hallucinations for over six months and in association with impoverished social functioning, it is my opinion that he meets the criteria for schizophrenia. He currently has active symptoms of psychosis and his illness is complicated by impaired insight and past impaired compliance and by cannabis misuse.”
32 Before dealing further with the psychiatric evidence, I will deal with the question of whether your voluntary use of illicit substances blunts the legal significance of your mental illness. The prosecutor submitted that the application of the Verdins principles was complicated due to your use of drugs some hours prior to the offending. While it is clear that you have had a history of cannabis use, and that that has interacted badly with your mental illness, I do not find evidence sufficient to establish to the requisite standard that you had used drugs immediately prior to this offence.
33
You told the Police when you were arrested that a problem with the tobacco caused your neck to click, that you had been ‘living on the road’ for some days and that you had smoked cocaine shortly before the offending. It seems that some, if not all of these statements, may have been the result of your delusions that you held at the time. Your mother, for example, gave evidence on the plea that you had simply gone out for a walk that morning. She became worried about you when you were late home. There was no evidence anywhere else in your history that you had used cocaine. Your belief about tobacco affecting your neck has been described as a somatic delusion by
Dr Zimmerman. Given this, I am not prepared to find that the drug use on the day of your offending reduces the mitigatory effect of your impaired mental functioning.
Legal significance of the psychiatric evidence
34 I find that the psychiatric evidence in this case engages each of the limbs in Verdins.[2]
[2]R v Verdins (2007) 16 VR 269.
35 At the time of the offending you held the belief that contaminated tobacco was causing you to experience a range of physical problems. You went to the service station apparently in order to seek a refund for what you believed was contaminated tobacco. I find that your purpose in going to the service station, and what followed, was the direct result of symptoms of your mental illness. The consequence of this relationship between your illness and your actions is the significant reduction of your moral culpability for the offending. This connection reduces the weight I give to imposing punishment in your case and reduces the role for denunciation.
36 Second, your diagnosis of a psychiatric illness, and the treatment and legal responses to it, will significantly influence the type of sentence that I will impose in your case. I will come back to this later in my sentence.
37 Next, I regard the severity of your impairment, both now and at the time of the offending, as being high. This reduces the weight I will give to the role for general deterrence - that means deterring other people from doing something similar - and reduces the weight given to specific deterrence - that is, trying to stop you from doing something like this again.
38 Further, I note the following opinion in the report of Dr Zimmerman. She writes:
“[I] note that the impact of a custodial sentence would be greater than for someone without schizophrenia. As a young person with no previous history of offending let alone incarceration, prison would represent a significant stress and place him at risk of further deterioration in his psychosis. He is currently linked in with an area mental health service and having to re-engage with prison mental health services will present an additional challenge for a young man who struggles to accept his diagnosis or need for treatment. With no ability to enforce treatment in prisons coupled with his desire to cease medication, Mr Asmar is likely to stop his medication and require transfer to Thomas Embling Hospital. I note that beds in this facility are in short supply and it is likely that he would be on a waiting list for a prolonged period of time before a bed became available. The likelihood of a further deterioration in Mr Asmar’s mental state in prison is significant.” (Original emphasis retained).
39 Part of Dr Zimmerman’s opinion arises out of the fact that s.67 of the Mental Health Act prohibits non-consensual medical treatment in custody. This means the treatment that you are currently getting is likely to cease if you were to be incarcerated. On the basis of this opinion I find that the hardship that you would experience in prison, given that you are likely to stop taking your prescribed medication and deteriorate in your condition, and be waiting for a prolonged period for a bed in Thomas Embling hospital, as severe. I find that your lack of insight about your need for treatment is an aspect of your illness.
40 Given that there is a serious risk that imprisonment will have a significant adverse effect on your mental health, I conclude I am justified in imposing a less severe sentence where there is such a serious risk that imprisonment could have a significant adverse effect on you. According to Dr Zimmerman your status under the Mental Health Act 2014 provides the best opportunity for your effective treatment and the reduction of the risk of any future offending. I agree. I also find that the reduction in risk of your reoffending would also have the consequence of the protection of the community in the longer term.
Prospects of rehabilitation
41 Your mother, Janet, gave evidence on the plea. Your mother had called the Police on the day of your offending because she was worried when you had not come home from a walk. She gave evidence that she and your father take you once a month for your injection of medicine. She knows that you speak regularly to Lachlan Miller from the Orygen Youth Health Service. She described you as being slightly improving and slightly better than you were.
42 Your counsel submitted that you have good protective factors. Most particularly, you are engaged with mental health treatment and you are surrounded by a loving family. I regard your prospects of rehabilitation as good as long as your engagement with your doctors continues one way or the other.
43 I was advised during the plea hearing that you have one outstanding matter in relation to the possession of a knife. You were granted a diversion in relation to that case but failed to fulfil those conditions. I understand that this matter arose during the previous period of illness. At this point it is not a prior conviction for me to take into account, however your failure to complete that diversion informs the nature of the Community Corrections Order that I will impose today.
44 You were 19 years old at the time of the offending and you are 20 now. Your youth further moderates the sentence that I impose in favour of your rehabilitation.
Stage of your plea
45 By pleading guilty you have saved the community the various costs of a trial. It is very significant that your plea has saved the victim from having to come to court and give evidence and relive a very unpleasant event. Further, at a time when the public health emergency has prevented criminal trials from being heard, I consider that your plea is particularly valuable. Your plea is especially valuable also when you may have potentially foregone the opportunity for acquittal on the grounds of mental impairment and possibly other bases. I accept that by pleading guilty you are to some degree saying that you are sorry for what you did.
Time in custody
46 You spent four days in custody before being granted bail. Although this is not a long time, you were quite unwell and you have never been in custody before. I take into account that those days would have been very difficult.
Impact of public health measures
47 I have considered the current public health crisis and its impact upon people in custody in your circumstances, were you to be committed to imprisonment.
Other sentencing considerations
48 I have already dealt with the way your mental illness reduces your moral culpability (and therefore the need to punish you) and makes you less appropriate as a vehicle for general deterrence, specific deterrence and denunciation. However, it should be said, on behalf of the community and through this sentence, that someone doing their ordinary job should not be frightened and made anxious by someone like you.
49 I am obliged to reflect on current sentencing practices for similar offences and I have done so. There are a number of distinctive features of your case, evident in what I have already said, that makes the case quite different from many others.
Assessment for Community Corrections Order
50 On the day of the plea I asked that you be assessed as suitable to undertake a Community Corrections Order. Because of the health restrictions currently in force all such assessments now take place over the telephone. This may not have been ideal in your case. It was in this way that Ms Zdravkovic spoke to you on the day. Ms Zdravkovic considered that your responses in that conversation were limited to one word answers despite her frequent prompting. She was concerned about the way you answered her questions and therefore found you unsuitable to undertake a Community Corrections Order, however – and I am assisted today by further submissions from your counsel - I am still of the view that this is the appropriate disposition in your case and I am going to make such an order. I know that the future Corrections officers assigned to your case will give close attention to the medical and psychiatric material about you before they engage with you on the order.
51 Mr Asmar, this is usually the point where I get the accused person to stand up and listen to the sentence, but you can remain seated because we are here on screens and that would not be helpful.
Disposition
52 Charbel Asmar, on Charge 1, armed robbery, you will be convicted and sentenced to a term of imprisonment for four days and to a Community Corrections Order for 24 months.
53 I declare that pursuant to s.18 of the Sentencing Act you have already served four days in custody.
54 Mr Asmar, it is important that you listen carefully now, because I am going to explain to you the Community Corrections Order, and your barrister will help you understand after I have done so.
55 You will be subject to the ‘standard conditions’ of a Community Corrections Order. That means you must not get in trouble for any other offence during the term of the order, and that is really important. If you do get in trouble for another offence you have to come back before me and explain all about it. There might not be too many options if you were to get in trouble in another way. There might not be too many options other than to send you to gaol, so you have to be really careful not to get in any other trouble.
56 You must report within two days of today and this will be done by telephone, given the circumstances.
57 You are required to advise your supervisor at Corrections of any change of address where you are living or working, and you must do so within two days of that change. It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all the instructions of the Community Corrections workers, all right? So you have to do what they ask you to do and you are not able to leave the State of Victoria without their permission.
58 There are some special conditions that I am placing you on as part of this order as well.
Special conditions
59 You will be required to complete programs to address your drug use. You need assistance with stopping your cannabis use.
60 You must comply with your Community Treatment Order, so the order that you are already on. That means you have to have those injections; you must keep complying with that.
61 You must also comply with the lawful directions of your doctors and caseworkers at the Orygen Youth Health Service. So if they prescribe something for you, you have to listen to them.
62 I also require you to participate in judicial monitoring. That means you have to come back to court, and by video is fine, in two months to report to me how you are going on the order. So you and I are going to meet again in two months' time and I will hear from the Community Corrections people how you are going on the order. So it is important that you help them make a good report about you at that time.
63 Pursuant to s.6AAA of the Sentencing Act I am obliged to say the sentence I would have imposed if you pleaded not guilty and been found guilty after a trial. This is a particularly artificial exercise in this case, but doing the best that I can, I say that I would have imposed a sentence of nine months' imprisonment if you had been found guilty.
64
I understand that there are no ancillary orders sought. Is that correct,
Ms Malobabic? All right. So what I'm going to do now - - -
65 MS MALOBABIC: No, there's isn't, Your Honour.
66 HER HONOUR: Yes. What I'm going to do now is stand down. Ms Hession, have you understood the terms of the orders that I propose to make once Mr Asmar advises through you of his consent to those conditions? That’s a yes?
67 MS HESSION: Yes, certainly.
68 HER HONOUR: Yes, that's clear enough. All right.
69 MS HESSION: That shouldn't take long, Your Honour, I hope. Yes.
70 HER HONOUR: So what I propose to do – because of a technical issue, when people are placed into the lobby, we then can't hear them when they come back. So what I ask the parties to do is to leave the meeting and I ask you to re-join it just before 10.40am. So hopefully that will be enough time for Ms Hession to complete her conference with her client and then if I could get the parties to sign back in just before 10.40am that will hopefully allow us to re-gather in the same way we are now. So, Ms Hession, you stay on the meeting.
71 MS HESSION: Yes.
72 HER HONOUR: And, Mr Asmar, stay on the meeting, and you can do it through that way or by phone. Whatever you prefer.
73 MS HESSION: Thank you.
74 HER HONOUR: All right. Is there anything before I briefly stand down?
75 MS HESSION: Not from me, Your Honour.
76 HER HONOUR: All right. So we'll do that and we'll re-gather just before 10.40am.
(Short adjournment.)
77 HER HONOUR: All right, I think we have everybody back? Ms Hession, have you had the opportunity to explain the conditions that I have ordered would happen on a CCO if he were to agree to it?
78 MS HESSION: I have, Your Honour, and thank you for that time. He certainly agrees with Your Honour's conditions.
79 HER HONOUR: All right then. So I can then record – and this makes any paperwork unnecessary – I can then record that, having had the order explained to him, Mr Asmar has consented to the order.
80 MS HESSION: Yes. As the court pleases.
81
HER HONOUR: Is there anything you wish to raise about that,
Ms Malobabic?
82 MS MALOBABIC: No, Your Honour.
83 HER HONOUR: All right. Then in that case what I propose to do is to re-list this matter for a judicial monitoring on 9 November 2020 at 2 pm. Mr Asmar, you have to come back to court and just have a short hearing with me on 9 November at 2pm. Ms Hession, could you make sure that your instructors give Mr Asmar the assistance, whether or not he’s funded for representation at that time.
84 MS HESSION: Of course I can.
85 HER HONOUR: It would be wonderful if he was, but if he's not then I would be grateful if your instructors could assist Mr Asmar in that regard.
86 MS HESSION: Of course I will. Thank you, Your Honour.
87 HER HONOUR: All right. Unless there's anything else then I'll adjourn the court.
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