Director of Public Prosecutions v Ball
[2024] VCC 860
•11 June 2024
F
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01115
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EVAN BALL |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 September 2023 | |
DATE OF SENTENCE: | 11 June 2024 | |
CASE MAY BE CITED AS: | DPP v Ball | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 860 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence following jury trial – guilty verdicts on two charges of armed robbery – Guilty plea to intentionally causing injury.
Catchwords: Sentencing – Armed robbery – Intentionally causing injury – Two victims – Violent attacks – Hit from behind – In company – Knife – theft of wallets and phone – Facial fracture – humiliation – Unfit for interview – Schizoaffective disorder or schizophrenia – Bipolar affective disorder – Drug induced psychosis – Verdins – Reduced moral culpability – General and specific deterrence.
Cases Cited:Verdins v R (2007) 16 VR 269; Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen [2013] 249 CLR 571.
Sentence:Total effective sentence is 5 years and 9 months with a minimum non-parole period of 3 years and 6 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | S. Lenthall | Office of Public Prosecutions |
For Accused | R. Backwell | Greg Thomas Barrister & Solicitor |
HIS HONOUR:
1Evan Ball, you were found guilty by a jury of 12 on two charges of armed robbery, both occurring on 2 July 2021.
2At the commencement of your trial, you also pleaded guilty to a charge of intentionally causing injury relating to the victim of the second armed robbery.
Summary of offending
3Your offending is described in the prosecution opening dated 11 April 2023.
4In summary, on the evening of 2 July 2021, you and your co-offender Cody Miller were staying at temporary accommodation in North Melbourne, you having been released from custody some few weeks beforehand.
5Just before 10pm, you both walked up behind your first victim Joseph Dinh in Therry Street, Melbourne, near Queen Victoria Markets.
6One of you hit him, causing him to fall to the ground, and demanded his wallet and phone. One of you told him to stay down. When Mr Dinh tried to get up and run away, you hit him with your skateboard.
7Mr Dinh’s phone was lying on the ground nearby and he said, ‘there it is, take it’, which one of you did. Mr Dinh then escaped.
8Not satisfied with what you had already done, you both chased him. Other people nearby saw you chasing him and told you to stop, inspiring you to start yelling at them. They called police.
9You and Miller then ran off and got on a tram heading towards Coburg.
10A little after 11:30pm, you both got off that tram on Sydney Road, near Moreland Road, as did your second victim, Antonino Muratore. You both followed him, one on either side of the road, as he walked up Sydney Road. You and Miller were yelling to each other as you went, seemingly communicating about what you were about to do.
11Mr Muratore walked into Moreland Road, then down an alley and then along Blair Street. He was conscious of you following him and was trying to avoid you.
12You both then attacked him from behind. Together, you hit him, grabbed at his jacket, punched him about 10-15 times to the head. He cowered on the ground trying to protect his head with his arms. In doing so, he dropped his tote bag.
13One of you went through his belongings and his pockets, while the other kept hitting him. Together, you took his wallet, his phone and demanded his PIN.
14In an act of wanton humiliation, one of you then took off his shoes, discarded them and pulled his pants down to his knees. One of you held his phone to his face and demanded the PIN again, threatening to stab him, while actually dragging a knife across his torso.
15Mr Muratore was able to unlock his phone and one of you said, ‘Don’t worry we'll call an ambulance.’ He offered you money, but you both just left him there, taking his wallet, phone and earphone case.
16He gathered his belongings and walked home, bleeding. A nearby resident who saw what was going on called 000.
17Neither of the victims have provided a victim impact statement. I do not accept that this makes your offending any less serious. Nor do I find that the likely effects of them were anything but serious and ones that will stay with them for a long time.
18Mr Muratore suffered injuries in the nature of fractured facial bones.
Procedural history
19You were arrested a few hours later in the city where you were recognised on Safe City cameras. You initially ran from police when they approached you.
20Police questioned you but soon discovered you were unfit for interview.
21You then remained in custody on remand until bailed 88 days later.
22You were committed for trial on 23 June 2022, after a contested committal, during which your counsel cross-examined both victims.
23Your trial commenced on 30 May 2023 and the jury returned verdicts on day 4, 2 June 2023, when I remanded you pending sentence.
24Since then, there have been numerous delays, in total just on a year, in finalising your matter due in part to your mental health, your transfer to Thomas Embling Hospital for treatment, and your seeming unwillingness to co-operate with psychiatric assessment.
Personal circumstances
25
Your counsel, Mr Backwell, relied on reports about you by consultant psychiatrist, Dr Adam Deacon, dated 19 February 2022 (Exhibit 1) and
21 July 2023 (Exhibit 2). Further, a discharge summary from Thomas Embling Hospital dated 31 October 2023 (Exhibit 3).
26You grew up in New South Wales until you were 17 when you moved to Melbourne. You are now 40. This offending happened when you were 37.
27You struggled at school, leaving in year 9. You were medicated for ADHD from an early age and, when compliant, received treatment until recently.
28Your mother has reported normal early age developmental milestones, but from an early age you suffered with mood swings and tantrums. You struggled to engage with others and by your mid-teen years you were misusing substances including cannabis and getting into trouble with anti-social peers.
29You have received the disability support pension since turning 18 and your money is managed currently by State Trustees. You have applied for NDIS support which has been refused.
30Over the years, you have at times been homeless and have been exited from supported accommodation due to conflict with others and causing damage.
31
Since 2003 you have been diagnosed with what is called a schizoaffective disorder (Exhibit 3) or schizophrenia (Exhibit 2), and at times bipolar affective disorder. A common thread has also been recurrent drug induced psychosis. This has resulted in many relapses and as many as 39 or
40 inpatient admissions.
32Over that same period, you have amassed a significant and relevant criminal history. In 2003 when you were 19, you were placed on a community-based order for theft and assault, which you breached. You were imprisoned for five months the next year for robbery and related offences.
33Since then you have been sentenced for offending almost each year. You have been imprisoned on more than 15 occasions for similar. You have been sentenced for robbery or assaults or making serious threats to others about 20 times.
34I will not punish you for your past, but I must take your history into account when assessing your risk of further offending and how the community can be best protected from such violence. This, I note, is your first sentence from this court.
35Clearly, you have not always been able to manage your illness on your own without support and compulsory treatment. You have rejected the need for treatment for psychotic illness, including after your remand following the trial.
36Attempts over the years to assess the possibility of an underlying developmental disorder have been limited or thwarted by your unwillingness to engage. A 2009 CT scan of your brain, however, suggests that there may be a basis for such an impairment. It is unclear.
37At the time of this offending, Dr Deacon reports that you were receiving injectable depot anti-psychotic medication. However, he suggests your ability to think calmly and rationally would have been impaired and your judgment significantly compromised (Exhibit 1). I note that forensic medical officer Dr Velasco found you unfit to be interviewed.
38You were on bail when you saw Dr Deacon in December 2021. You admitted that you used methamphetamine the evening before because it enhanced your skateboarding. You effectively made admissions to him about the offending, although Dr Deacon stated that you were likely psychotic at the time he spoke with you.
39Dr Deacon saw you again about three weeks after verdict in custody. He reported that you were not compliant with medication and were again actively psychotic. He stated that you were likely to find prison more onerous than a person with stable mental health and I agree. I also note that your condition since then has declined such as to warrant your transfer to Thomas Embling Hospital for compulsory treatment. Dr Deacon ultimately found you to be insightless and lacking in judgment (Exhibit 2).
40Notes from those who treated you at Thomas Embling Hospital in 2023 (Exhibit 3) report that when you were well, you could be polite and personable and engage in therapeutic relationships with treatment providers. However, this is not the end of it.
41Given the poor state you were in when you saw Dr Deacon, the court requested a further assessment from Forensicare. Consultant Psychiatrist Dr David Trainor provided a report dated 11 April 2024 (Exhibit A).
42Dr Trainor stated that you declined to engage in assessments with him in November, December and January this year. Otherwise, he was only able to provide an assessment based on treatment records from the prison (via Justice Health) and Thomas Embling Hospital.
43
He stated for the little time that you attended the assessments with him before departing, you were polite but not interested in engaging. He did not observe any thought disorder. When you met him again in January 2024, you denied having a major mental illness, just as you had done to
Dr Deacon.
44
I accept that you have poor insight into your mental health condition.
Dr Trainor suggests that you were likely unwell at the time of the offending due to non-compliance with the treatment, and drug use.
45As to your personality, he states that it is likely that it predisposes you to anti-social behaviour and that he did not see any evidence that your offending on this occasion was directly motivated by your psychotic symptoms.
Sentencing issues
46The maximum penalty for armed robbery is 25 years' imprisonment on each charge. For intentionally causing injury, it is 10 years.
47Armed robbery is also a category 2 offence under the Sentencing Act, requiring a gaol sentence unless limited exceptions apply. It was not submitted that any do.
48
An unprovoked armed attack on a stranger in a public place at night is undeniably serious. In your case, you attacked the victims while you were in company with Miller. You had a weapon. They were each alone when you set upon them. Mr Dinh was in a side street away from others, but fortunately he could run to the relative safety of a crowd of people on a nearby corner. You did not just let him go, you chased him, including through a busy intersection until he was physically protected by others.
Mr Muratore, on the other hand, was in a quiet suburban street late at night when there was no-one to come to his aid. Your attack on him was planned, violent, resulted in injuries including a fracture, and involved humiliation.
49At the time of the attacks, you had been released on bail.
50Your role in the offences was equal, in my view, to that of Miller.
51I accept the opinions expressed in the psychiatric material and the submission of your counsel and the principles in the case of Verdins[1] apply as discussed. Namely, it reduces your moral culpability, moderates the weight to be given to general and specific deterrence, and that prison will be harder for you than for a person without your conditions. Limited weight can be applied to principle 6 about prison likely to cause a significant deterioration in your health. I note the agreement on this point by the prosecutor.
[1] Verdins v R (2007) 16 VR 269.
52I accept that your capacity to think through what you were doing was likely impaired by your mental illness, but also by your drug use. I am unable to untangle the two. However, I find that your culpability for what happened is moderately reduced and I have moderated the weight given to general and specific deterrence accordingly.
53It is accepted that these circumstances are a recurrent combination across the years of your criminal history – drug use, relapse into your illness and violent offending. In these circumstances, community protection from your conduct must also attract moderate weight in sentencing.
54I accept that principles 5 and 6 as expressed in Verdins apply, namely, your time in custody will be more onerous than for somebody without your condition. I have given some very limited weight to principle 6, and note that any decline in your health due to being in custody has been met with intensive and speedy treatment, including at Thomas Embling Hospital.
55Consistent with your plea of not guilty on the armed robbery charges, I cannot sentence you on those offences as having exhibited any remorse or taken responsibility for that offending.
56I note, however, that you pleaded guilty at the commencement of the trial to causing injury to Mr Muratore and your sentence is reduced accordingly.
57I have also aimed to ensure that your total sentence remains proportionate to the totality of your conduct.
58Your co-offender Cody Miller was sentenced by a different judge on a guilty plea to 3 years and 6 months on each of the armed robberies and 18 months on the intentionally causing injury charge. His moral culpability was found to have been reduced by the considerations in Bugmy.[2] I find that you should be sentenced on par with Mr Miller in relation to Charge 3 where you both pleaded guilty.
[2] Bugmy v The Queen [2013] 249 CLR 571.
59You spent almost three months in custody during the height of COVID-19 pandemic, which rendered your time in custody more burdensome. This included lockdowns, restricted movements, reduced access to programs, and limited access to treatment. I will moderate your sentence accordingly.[3]
[3] Brown (aka Davis) v The Queen [2020] VSCA 60, [48].
60Your prospects for rehabilitation are informed by your lengthy criminal history, the regular instability in your mental health and drug use and the lack of responsibility that you took for these armed robberies, among other things. I find your prospects to be poor to guarded.
61When you are released, you will require intensive supervision and support for a lengthy time to avoid a relapse into drug use and further offending.
62Both your counsel and the prosecutor submitted that only a term of imprisonment attracting a parole period was appropriate in this case and I agree.
63The prosecutor provided a number of comparative cases in aid of her submission that a parole-type sentence was appropriate. Given your counsel’s concession on this issue and the view that I have come to, I have not had more than general regard to those decisions.
64I sentence you as follows:
(a) On Charge 1, armed robbery – 4 years 6 months;
(b) On Charge 2, armed robbery – 4 years 6 months;
(c) On Charge 3, intentionally causing injury – 18 months.
65One year of the sentence on Charge 2 and three months of the sentence on Charge 3 are to be served cumulatively upon each other and upon the sentence on Charge 1.
66The total effective sentence is 5 years and 9 months.
67I fix a non-parole period of 3 years and 6 months.
68I declare that you have served 463 days on remand and direct that this be reckoned as a period already served under this sentence.
69Had you not pleaded guilty to Charge 3, I would have imposed two years on that offence, making a total sentence of 6 years with a non-parole period of 3 years and 9 months.
Ancillary orders
70I grant the application for disposal of the knife, which was unopposed.
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