Director of Public Prosecutions v Baker

[2020] VCC 1300

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00671

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHAN BAKER

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JUDGE:	HIS HONOUR JUDGE MEREDITH
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2020
DATE OF SENTENCE:	20 August 2020
CASE MAY BE CITED AS:	DPP v Baker
MEDIUM NEUTRAL CITATION:	[2020] VCC 1300

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Petric	OPP
For the Accused	Ms S. Joosten	Victorian Aboriginal Legal Service

HIS HONOUR:

1Nathan Baker, you have pleaded guilty before me to a string of offences committed by you on three nights, and a further incident during the day between 9 November 2019 and 1 January 2020.  At this time, you were 19 years of age.

2You have pleaded guilty to three charges of armed robbery, Charges 3, 4, and 5, each of which has a maximum penalty of 25 years' imprisonment, two charges of attempted armed robbery Charges 1 and 7, each of which has a maximum penalty of 20 years' imprisonment, one charge of affray, Charge 2 having a maximum penalty of five years' imprisonment, and one charge of damaging property, Charge 6, having a maximum penalty of 10 years' imprisonment.

3In addition, you have pleaded guilty to the following related summary offences.  Charge 5, assaulting Jack Oxley.  Charge 11, assaulting Sam Agis with a weapon.  Charge 12, failing to appear on bail on 7 September 2019. 
Charge 13, committing an indictable offence, namely attempted armed robbery on 9 November 2019 whilst you were on bail.

4The respective maximum penalties for these summaries offences are unlawful assault, three months' imprisonment, unlawful assault with a weapon, two years' imprisonment, failing to appear on bail, two years' imprisonment, and   committing an indictable offence on bail, three months' imprisonment.

5The prosecution summary of the circumstances of your offending, as well as a photograph depicting the pink scraper referred to in the summary have been tendered and form Exhibit A on these proceedings.  In light of this, a shorter summary of your offending acceptable for the purposes of these reasons follows.

6Charge 1 and summary offence 5 of attempted armed robbery and assault concern the same victim, Jack Oxley, who in the company of friends was in the vicinity of a supermarket in High Street Melton, at around 10.50 pm on Saturday 9 November 2019.  Mr Oxley was 16 years of age and unknown to you.

7You approached him and struck him to the right ear with an open fist.  You said, 'Oi, give me your phones' and Mr Oxley and a friend who was with him responded saying they did not have any.  You made a further demand to
Mr Oxley and then removed a spanner from your right pocket.  You held this above your head and threatened Mr Oxley saying, 'Do you want to fight me one on one?'  By this stage, an Uber had arrived and Mr Oxley and some of his friends got into that vehicle.

8You blocked the rear driver's side door of the Uber with the wheel of a pushbike you were riding and continued to make demands for Mr Oxley's mobile phone.  Mr Oxley was unable to close his door, and you punched Mr Oxley to the mouth with a closed fist, causing his lip to bleed.  You then attempted to stand in front of the vehicle and when it manoeuvred around you, you hit the rear driver's side window where Mr Oxley was sitting.

9You remained in the vicinity and a short time later, an affray started in a carpark near the supermarket.  There were approximately 15 unknown persons who were fighting, and you approached the group, riding your pushbike and began swinging what appeared to be a black metal rod or baton at a number of those fighting.  This constitutes Charge 2 of affray.

10Charges 3, 4, and 5 of armed robbery each occurred on 14 December 2019.  Your three victims are a 16 year old male, Jed Fox, and two 15 year old males, Coby Churchill and Daniel Hopewell.  At around midnight on Saturday
14 December, Fox, Churchill, and Hopewell were walking on the footpath in Maddingley.  You approached them and asked Fox if he and his friends had any alcohol to drink.  You were told they did not and you reacted aggressively, producing a fold-out knife.

11You identified yourself, saying, 'My name's Baker' and demanded Hopewell remove and hand over his wireless headphones.  He did so, and you seeing that they were broken, returned them.  You then demanded that each of your three victims empty their pockets.  Fox handed you an iPhone, as did Churchill.  You removed headphones from Fox's head and instructed your victims to follow you around the corner, where you demanded that Fox and Churchill provide their passcodes to their mobile phones.  They complied.

12You threatened your victims, 'If the cops rock up, I'll slit your throat'.  Your victims were then allowed to disperse.  Later on that night, Fox came across you at a residence when he was in the company of two other friends.  They asked for the mobile phones to be returned, and you gave up the iPhone belonging to Churchill, and the headphones belonging to Fox, telling them all to leave.

13Charge 6 of criminal damage occurred on 31 December 2019.  At around
11 pm, your victim, Josephina Prisinkula and her family members were gathering at a small park in Melton.  You attended the park riding a pushbike and approached them.  You were observed to be slurring your words and acting aggressively.  At one stage, you had armed yourself with a folding knife, however, Prisinkula was able to grab this out of your hand.

14You then armed yourself with a line scraper.  This is a small plastic tool capable of fitting into the palm of your hand, having a sharp blade moulded into the plastic.  This is used to trim paint and the like.  You were waving the scraper around and you then removed the seat from your bicycle.  However, Prisinkula was able to remove this from your hand.  Ultimately, you rode off on your bicycle, and when you passed her vehicle, you struck it leaving a dent in her driver's side door.

15Charge 7 and summary offence 11, attempted armed robbery and unlawful assault with a weapon, both occurred on 1 January 2020.  Your victim was a
17 year old male, Samuel Agis.  At around 12.30 am on 1 January 2020, Samuel Agis and another were present in a park in Melton.  You attended the park on your bike.  You removed the bike seat and you then approached Agis.  You said, 'Samuel Agis, phone and password, or I'll slash ya, cunt'.

16You started swinging the bike seat toward him and ultimately grabbed and held Agis by the arms.  You were then tackled to the ground by Mr Agis' female friend, allowing them both to break free and walk away from you.  You continued to follow and armed yourself with the pink line scraper and held the bike seat in your other hand, threatening Mr Agis.  You were saying, 'Ya dead cunt, ya dead'.

17You are described as attempting to slash Agis with the blade a number of times, and you also hit Agis with the bike seat to his head.  Members of the public saw what you were doing and intervened.  However, you did not desist.  Mr Agis tackled you to the ground and punched you a number of times.  You then got back onto your feet and threw a can of alcohol at him which struck him on the head.  Eventually, Agis and his friend escaped.

18Summary offence 12 of failing to appear on bail, concerns you failing to attend at the Magistrates' Court on 5 December 2019, and Charge 13 of committing an indicatable offence whilst on bail concerns Charge 1.

19You were arrested on 2 January and interviewed.  This saw you deny involvement in all of the incidents and you have been remanded in custody since the date of your arrest.  As at the date of your first listing of your matter, namely, 21 July, you had 201 days of pre-sentence detention available to be declared.  You now, as I understand it, have 231 days.

20No victim impact material has been received on these proceedings.  Defence counsel submitted and the prosecutor accepted that you pleaded guilty to these matters at the first available opportunity.  Your guilty pleas have facilitated the course of justice and they have saved the community the cost and time of a trial regarding your matters.  This is especially so, when trials have been suspended due to the COVID-19 pandemic.  In addition, your guilty plea is evidence of some remorse on your part.

21So far as the offences of armed robbery and attempted armed robbery are concerned, their respective maximum penalties of 25 and 20 years' imprisonment serve to underline the inherent seriousness of these offences.  In your case, however, as examples of these offences, they fall toward the lower end of the range.  Your offending was opportunistic, unsophisticated, and evolving.  You did not offend in company, and there were no attempts to disguise yourself or otherwise avoid your identification.

22Each incident was nasty, unpleasant, and thuggish, however, relatively brief.  You offended whilst under the influence of alcohol and/or prescription medication.

23Turning to your personal circumstances, you are a young Aboriginal man currently just 20 years of age, having been 19 at the time of your offending.  You were born in Epping and have lived around the Sunbury, Melton, and Kurunjang areas.  Your parents separated when you were about two.  You have two older siblings, and an older brother, who tragically passed away, following a motorcycle accident.

24Your mother currently resides in Melton.  She has unfortunately attracted  schizophrenia, as well as exhibiting other mental health difficulties.  These, in combination with her substance abuse problems, including alcoholism, have marred her life.  Your father currently lives in Epping and whilst he has worked as a stonemason, he is currently unemployed.  He unfortunately, also has experienced mental health and substance abuse issues.

25It is apparent that you have a background of disadvantage at a number of levels.  Whilst as a child, you predominantly have lived with your mother, you would also live for short periods with your father and other relatives.  Your childhood saw you exposed to instability, substance abuse, poverty, and the mental health issues of your parents.  The Department of Health and Human Services had an involvement with your family from a fairly early age, and it is unsurprising that in this background you have a fragmented and short-lived history of formal education.

26You disengaged from school after Year 7 and aside from attending a community school when you were approximately 14, you have had no further formal education.  You are yet to hold stable employment; however, you have on occasions assisted your father and brother with labouring work.

27You have a prior criminal history, which has seen you dealt with in the
Children's Court, for offences including attempted armed robbery, assault, robbery, and others.  You have not received a term of imprisonment before, nor have you previously been detained in a Youth Justice Centre.

28You commenced smoking cannabis from a young age, approximately 9 or 10, having been given this by associates of your older brother.  You commenced drinking at around 11 or 12, and your consumption significantly increased when you were about 15 years of age.  You would drink daily.

29You reported experiencing blackouts and memory loss.  You have experimented with a number of other drugs; however, alcohol and prescription pills feature in the offending before me.

30Regarding the offences before me, you report having a fractured memory only of your offending, and I note that various witnesses give a description of your behaviour consistent with someone who was substance-affected.

31Two psychological reports were tendered on the hearing, one of Ms Gina Cidoni, relating to testing of you undertaken on 8 October 2019.  I note this testing took place prior in time to the commission of the offences before me.  The other report of Anna McLaren, neuropsychologist relates to an assessment of you undertaken on 22 June 2020.  Neither reports that you have an intellectual disability.

32Having regard to the content of these reports, your counsel submitted that the principles applicable in Verdins' case had application.  In Verdins' the Court of Appeal set out a non-exhaustive series of principles which must be considered in formulating an appropriate sentence, when an offender presents with impaired mental functioning, whether temporary or permanent.  Impaired mental functioning is not restricted to mental illness.

33In Verdins' case, the court indicated that impaired mental functioning can be relevant to sentencing by firstly, reducing moral culpability as distinct from an offender's legal responsibility.  Secondly, by having a bearing on the kind of sentence that may be imposed.  Thirdly and fourthly, by moderating or eliminating general and/or specific deterrence as a sentencing consideration.  Fifthly, by leading to a conclusion that a given sentence will weigh more heavily on an offender.  And sixthly, by leading to a conclusion that a risk of imprisonment will have a significant adverse effect on the offender's mental health.

34Your counsel sought to rely on limbs 1, 2, 3, and 5, and she submitted that at the time of your offending, you were labouring under a mental abnormality, namely that identified in the report of Ms Cidoni of 8 October 2019, being
post-traumatic stress disorder, substance use disorder, and borderline intellectual functioning with a full scale IQ of 74.

35I further note Ms Cidoni appears to endorse a diagnosis of attention-deficit hyperactivity disorder, recounted presumably by you to her.  Your counsel relied upon Ms Cidoni's opinion that you were,

'Immature and highly impressionable and that you were vulnerable in areas of problem solving and decision-making with limited ability to learn and to reason, plan, understand, judge, and discriminate, or to exercise appropriate judgment'.

36Ms Cidoni opined at p.7 of her report that,

'He understands that his behaviour is wrong, but as a result of his conditions, it is felt he was unable to exercise appropriate judgment and to think clearly at the time of the offending'.

37Ms Cidoni does not in my view adequately state which of your conditions or how it is that it or they have operated to render your ability to make appropriate judgments compromised.  What exactly Ms Cidoni means when she says,
'It is felt' is unclear.  Aside from these matters, given the time at which Ms Cidoni performed her assessment of you, which pre-dates the offending before me, Ms Cidoni's reference to a link which goes no higher than Ms Cidoni saying that, 'It is felt' cannot in any event relate to the offending which is before me, because you had not committed it by that stage.

38Your counsel also relied upon the opinion of Ms McLaren, neuropsychologist.  This was based on her assessment of you of 22 June 2020.  Her assessment occurred after you had been drug-free, following on from your remand into custody.  Ms McLaren was of the view that you had a full-scale IQ of 82, a score higher than that of Ms Cidoni.  Ms McLaren references the diagnosis of ADHD and PTSD in the earlier report of Ms Cidoni and at p.16 of Ms McLaren's report, she identifies the following.

39That you would struggle with understanding complex English language or vocabulary.  You may become overwhelmed when presented with lengthy, verbal information.  You will be vulnerable to mixing up or confusing similar, but different or multiple pieces of information presented to you in close succession.  You will struggle to maintain concentration for lengthy periods and will become distracted, particularly in noisy or busy environments.  Your distractibility and difficulty sustaining focus may result in you struggling to see lengthy tasks through to completion or to sit through longer meetings or intervention sessions.  You will have difficulty organising your time, activities, and planning ahead, and will be vulnerable to getting overwhelmed when there are multiple steps or tasks to be completed. 

40You will struggle to weigh up and calculate information in your head and will need the information to be written down or presented in a diagrammatic or pictorial format.  That you will have a tendency to rush into things before thinking of the consequences resulting either in you making mistakes or carrying out behaviours or actions before you realise they may be wrong or incorrect, and that you may require more time to complete, or process complex information or tasks, particularly in order to avoid making errors.

41I fail to see how these matters are adequately related to the offending upon which I must sentence you, or to enliven the Verdins principles.  Ms McLaren states at p.18 of her report, that your impulsivity, poor self-monitoring, poor planning and organisation, limited abstract reasoning and impaired logical thinking, are considered to have contributed to your offending behaviour.

42That these difficulties mean that you will likely struggle to consider the consequences of your actions, to judge the wrongfulness of your behaviour, and to control your impulses in the moment, and even after the fact, and that you may need assistance to fully reflect on your behaviour, to recognise the impact of your actions upon others and to learn from your past actions, to change your behaviour in the future.

43Ms McLaren does not, however, explain sufficiently, whether these characteristics arise from your ADHD, PTSD, or your immaturity.  Nor does she in any meaningful way discuss the attribution of your gross intoxication towards your offending.  Ms McLaren specifically notes that your difficulties in these areas will be further compromised when you are under the influences of substances.

44Superior courts have emphasised the need for a rigorous examination of the evidentiary foundation and the application of the Verdins principles.  So far as Verdins limbs 1, 2, and 3 and notwithstanding that your counsel did not rely on it, for the sake of completeness, I will include limb 4.  I am of the view that they are not engaged in your circumstances, on the basis of the material before me.

45Here, one of the reports relied upon in support of this submission was completed before you had even committed the offences that I must deal with.  It goes no higher than the author stating, 'That it is felt that your conditions contributed to offending', different to that, which I must deal with.  You recount that you were so affected by alcohol and/or prescription medication at the time of your offending, that you are unable to remember your offending.  Witnesses describe you as exhibiting behaviours consistent with someone who was substance-affected.

46In these circumstances, I cannot be satisfied that it was as a result of any mental abnormality or disorder of reasoning or impaired logical thinking, as opposed to disinhibition, consequent upon substance-abuse that was in operation in your case.  It is impossible in any meaningful sense to tease out the role of disinhibition, due to the voluntary ingestion by you of drugs and alcohol, as opposed to any mental abnormality that may have been in operation here.

47Your immaturity and other personal traits falling short of a mental impairment may also have contributed to your offending, as distinct from the mental impairment postulated here.  I note that Ms Cidoni, at p.6 of her report opines that you are, 'Immature and highly impressionable'.  I further note that when you were assessed by Ms McLaren, your overall IQ was substantially higher than that which Ms Cidoni's testing revealed.  Ms McLaren attributes this to the fact that you had been sober and drug-free for the period leading up to her testing.

48Having said all of that, I will in a general sense have regard to the matters relied upon by your counsel in support of this submission, notwithstanding that I am not satisfied that any of the limbs of Verdins operate in your case.

49So far as limb 5 of Verdins is concerned, that requires separate consideration.  As I understand it, in light of your responses to a questionnaire, Ms Cidoni reports that you have indicated chronic post-traumatic symptoms of arousal avoidance and re-experiencing symptoms.  That you suffer intrusive recollections, some nightmares, and unhappy memories.  You experience defence avoidance and alertness, jumpiness, sleep disturbances, irritability, and detachment.  You experience a sense of mistreatment, feelings of annoyance, a bad temper, and intrusive, unwanted angry thoughts.

50Ms McLaren at p.6 of her report indicates that you self-reported to her that you would rate your mood at that time as a 7 out of 10, and that this was consistent with how you felt most days, although your mood varies.  That you stated that you were, 'Not angry, not sad, not happy, in the middle'.

51At p.14 of her report, Ms McLaren states that,

'Your presentation, self-reports, and performances on a measure of current mental state did not indicate any significant levels of stress or anxiety, although did suggest mild symptoms of depression'.

52Ms McLaren at p.19 of her report, states that,

'Limited verbal intellectual skills mean he may struggle to comprehend what is asked of what is said to him and he may also have trouble verbally expressing his needs, which may result in him being vulnerable, gullible, and exposed to manipulation'.

53In light of all of the above, I would allow some sensible moderation of the sentence I impose, as a result of the operation of limb 5 of Verdins.  And also consider detention in a Youth Justice Centre, preferable for these and a range of other reasons in your case.

54As I earlier said in these reasons, before digressing to the Verdins issue at some length, you have a background of disadvantage at a number of levels. 
I accept that this disadvantage may go some way in explaining the attraction of alcohol and prescription medication in light of your background and circumstances.  Your experience of growing up in the environment which you did has left its mark on you.  Your personal history of deprivation, lack of stability, and lack of adequate of role modelling, are all factors of your makeup, relevant to determining the appropriate sentence.

55Your history of dysfunction and disadvantage is relevant to an evaluation of your moral culpability.  As recognised by the High Court in Bugmy's case, those experiences, none of which were of your making, all played a significant role in shaping your personality and responses.  As a consequence, your subjective culpability for the offending in which you engaged, cannot be equated with that of a person who committed the same offending but had had the advantage of a normal, stable, and regular home environment, during their childhood years.

56Allied to this is the fact that you are only 20 years of age.  Whilst you do have a prior history, in the scheme of things, it is not substantial.  You do have a number of outstanding matters which are yet to be deal with, however, they have little impact on my sentencing of you.

57You fall within the definition of a young offender and your youth, as well as your background of disadvantage are significant in a number of ways.  The law accepts that young people are not fully developed.  They are prone to act without regard to the consequences of their actions.  They are more impulsive, and for a range of reasons, therefore, are regarded generally as less culpable.  This is particularly so in a case where a young person's background has exposed them to alcohol and drug abuse as well as violence.

58Young persons are generally considered more amenable to change for the better and may be suspectable to a process of corruption occurring within a prison.  Sight should not be lost of the fact that the best protection to be achieved for the community is if you are actually rehabilitated and led away from offending.  Rehabilitation is given a high premium when dealing with young offenders.  It is to be expected that emotional immaturity and impulse control will develop progressively during adulthood.  Here, given your age, and the content of the psychological material, you still have some way to go.

59I further accept that in light of the COVID-19 pandemic, your period on remand and your further period of confinement, will be more onerous than would have been the case before the breakout of the pandemic.  I accept that visits have been curtailed, and access to courses and other activities limited.  I accept that having been in custody at this time and into the future, may lead to an increased anxiety regarding the fact that you may catch this illness, or that others from whom you are separated, may also become unwell.

60To better assist in the sentencing process, I had you assessed to determine your suitability for detention in a Youth Justice Centre. A court cannot impose a Youth Justice Centre order without calling for an assessment and then being satisfied of one of the grounds set out in s.32(1)(a) or (b) of the Sentencing Act.  That is, either the existence of rehabilitative prospects, or impressionability.  As well, an offender must be under 21 years of age at the time of sentencing.

61You have been found suitable for this disposition, on the basis that your rehabilitative prospects are said to be promising.  Having regard to the whole of the material, I accept these findings.

62In my view, your rehabilitative prospects are promising, provided you commit to ceasing your abuse of alcohol and drugs.  In determining whether or not to make a Youth Justice Centre order, however, I must have regard to the whole of the matters before me.  I must have regard to the nature of your offending, as well as your age, character, past history, and the proper application of sentencing principles. 

63In your case, the prosecution concede that detention in a Youth Justice Centre as opposed to an adult prison is an appropriate disposition.  Independently of this concession, I have reached the same conclusion.  I am of the view, that the appropriate balance between fostering your rehabilitation and punishing and denouncing your conduct, are best struck by detaining you in a Youth Justice Centre for what will be a total of 22 months. 

64The orders for your detention in a Youth Justice Centre then are as follows.

65Firstly, regarding the offences on indictment, Charge 1 of attempted armed robbery, six months;

66Charge 2 of affray, one month;

67Charge 3 of armed robbery, 12 months;

68Charge 4 of armed robbery, 12 months;

69Charge 5 of armed robbery, 12 months;

70Charge 6 of damaging property, a fine of $250;

71Charge 7 of attempted armed robbery, six months;

72Regarding the related summary offences, Charge 5 of assault, one months' detention in a Youth Justice Centre;

73Charge 11, assault with a weapon, three months;

74Charge 12, failing to appear in answer of your bail, three days;

75Charge 13 of committing an indictable offence on bail, one months' detention.

76I will direct that the sentence I have imposed on the indictment, Charge 3 of armed robbery of 12 months is to be the base sentence, and I will cumulate on it two months of the sentence I have imposed on Charge 1, three months of the sentence I have imposed on Charge 4, three months of the sentence I have imposed on Charge 5, and two months of the sentence I have imposed on Charge 2.

77This will make a total effective sentence of 22 months' detention in a
Youth Justice Centre.  I am not required to fix a parole period.

78I understand the pre-sentence detention of 231 days ought be declared, but I would ask counsel to confirm that.

79Finally, I am required to state the sentence that I would have imposed Mr Baker, but for your pleas of guilty.  This is a highly artificial exercise because it involves plucking one matter out in isolation and seeking to ascribe a value solely to it.  This is far-removed from sentencing in practice.

80Nonetheless, doing the best I can, but for your pleas of guilty, I would have sentenced you to two years and nine months' detention in a Youth Justice Centre, so I want you to understand that you have had a clear and transparent discount for your pleas of guilty in these matters.

81Now, counsel, can you confirm that figure of 231 days.

82MS JOOSTEN:  Yes, Your Honour.  That is what I had calculated.

83HIS HONOUR:  All right, thank you.  You agree, do you, Mr Petric.

84MR PETRIC:  Yes, I agree with that, Your Honour.

85HIS HONOUR:  Thank you.  Are there any further orders required?

86MR PETRIC:  Just orders for forfeiture, Your Honour.

87HIS HONOUR:  All right.  I will make those in chambers.  I understand that
Mr Baker will be transferred as expeditiously as possible from the adult system into Youth Justice, hopefully this afternoon, once central records have received the orders.  But Youth Justice are obviously aware of his present position and they will be notified that I have imposed a Youth Justice Centre sentence.  There is nothing further?

88MS JOOSTEN:  Not at this stage.

89HIS HONOUR:  All right, I will close the links.  I want to thank you both for your assistance in the matter.

90MS JOOSTEN:  As Your Honour pleases.

91MR PETRIC:  As Your Honour pleases.

92HIS HONOUR:  All right, thank you.

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