Director of Public Prosecutions v Barkers
[2013] VCC 1436
•18 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02098
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JULIUS BARKERS |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 18 September 2013 | |
CASE MAY BE CITED AS: | DPP v Barkers | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1436 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Foot | Office of Public Prosecutions |
| For the Accused | Ms F Todd. |
HIS HONOUR:
1 Julius Barker, you have pleaded guilty to one charge of armed robbery and two charges of attempted armed robbery. Those crimes carry a maximum penalty of 25 years and 20 years respectively. You are now 29 years of age. I accept that you pleaded guilty at the earliest reasonable opportunity. For fairly obvious reasons as I will point out, efforts were made to ascertain whether you should have availed yourself of a mental impairment defence.
2 You get the benefit of that plea of guilty. I accept that you have displayed appropriate remorse, particularly bearing in mind the diagnosis that I will refer to shortly. People with a schizophrenic diagnosis often have a great difficulty in emotional expression. Dr Walton says that you are able to express remorse and that gives me some confidence that you will eventually gain full insight into your illness.
3 You also of course get the utilitarian benefit of that plea of guilty of not having put the victims in this matter through the ordeal of a trial, even a mental impairment trial where they would, probably, have had give evidence to describe your bizarre conduct.
4 You do have a number of prior findings of guilt and convictions, which include a couple for robbery and you have been gaoled before. Those prior convictions are obviously of concern in a matter such as this and date back to your early 20's. You have only just recently been diagnosed as schizophrenic and that is somewhat unusual. I have a deep seated suspicion that your schizophrenia has been in existence for quite some time but simply remained undiagnosed. In any event I will be referring to the reports of Dr Walton during the course of these sentencing remarks.
5 Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample of DNA purposes. That order having being made I must advice you that should you refuse to provide such a sample police may use reasonable force to take it from you. I make I clear that is a saliva scraping that is to be taken. There are no needles involved or anything like that.
6 The circumstances of the offending were that on 4 August you committed an armed robbery and two attempted robberies for which there will be total concurrency. I think it is important to outline what occurred in the time leading up to that.
7 For a couple of months prior to 4 August 2012 your father has reported that you were behaving oddly. You were not yourself and you, on the face of it at least, were suffering delusions. On 2 August 2012, that is two days or a day and a half before this offending, you were placed in a mental institution as an involuntary patient. You had been found walking in the street and making all sorts of threats against other people and clearly in a very unhealthy state of mind. You were an involuntary patient and were, in my view, psychotic at that period of time.
8 When taken to the Northern Hospital and put into the Psychiatric Unit you were telling them that your wife had taken your twin sons, that she was a prostitute, that the children had been sent overseas to an unknown country, that you had a gold chain stolen, that your passport had been stolen. None of those things were true. Within a short time it became clear to the people at the hospital that you were, and in Dr Walton's opinion, quite severely ill. You were able to abscond, which in the overall circumstances of this matter is most unfortunate.
9 For the next day or so there is very little evidence as to what you were doing. Your father describes you as having being tearful and very depressed, if I have read that correctly. You have vague memories of attending at various places and you have vague memories of the offending that ultimately took place. You were in a circumstance where your counsel described and your medical records indicate that you were delusional about having a wife and children and that you did not even really know who you were.
10 That is the context in which this offending takes place which is a very disturbing and very unhappy circumstances for anybody to find themselves. But in any event in that frame of mind, if it can be called that, you were seen at about eight o'clock in the morning in Smith Street, Collingwood, with a knife. The matter was reported to police who attended at that particular spot a short time later.
11 A few minutes later one Debra Law was walking down Perry Street in Collingwood, walking towards Smith Street. You walked towards her. You asked her, her name. She ignored you and went to walk past you. As she was about to pass you pulled out a knife and held it near your right hip. It was a relatively lengthy knife and I have no doubt it was a very frightening experience for the lady concerned. You said "Give me your handbag, I don't want any trouble you bitch" and held the knife towards her middle. She threw her handbag on the ground behind her, she felt shocked and scared. She thought that you would stab her if she did not give you the bag. You then picked up the bag and kept walking along Perry Street towards Dight Street in Collingwood.
12 There is no victim impact statement from Ms Law but I have no trouble inferring the fear and psychological disturbance that this must have caused her. The handbag was a small red bag with a red leather strap and it had in it her purse, personal cards, keys and mobile phone. Fortunately she was able to receive it all back later in the afternoon, or later that day at least, after your arrest. There are description of witnesses that you were behaving bizarrely in relation to the bag, that at one stage you tried to put it through to the window of a car to somebody and on another occasion, hung it on a fence. What your motivation, if that is what it can be called, for this armed robbery was, is I think to a certain extent, anybody's guess.
13 Ms Law continued along Smith Street and told others about what had occurred. You continued walking down Perry Street and you approached a car and I have indicated what you tried to do then. Witnesses by this time were following you. In front of an address in Perry Street you approached a Mr Crozier and Mr McLaughlin, who were walking in the opposite direction. You pointed the knife at them effectively and said "Give me your wallets". They both ran and you just continued walking down Perry Street. That is obviously the attempted armed robbery which there would be total concurrency.
14 Triple-0 calls were made as you were walking down Perry Street and you were stopped on the footpath and arrested. Very significantly you were taken to the Fitzroy police station where a Dr McGee of the Victorian Forensic Medicine Institute found you unfit to be interviewed. Clearly that unfitness related to your mental condition. I think the odds are pretty high that around that period of time you were florid. In any event you remained in custody. There are no victim impact statements from the two victims of the attempted armed robberies.
15 This sort of offending can only be regarded in an objective sense as serious and, albeit without weaponry, you have done similar things in the past. In the normal course of events it would call for the application of general and specific deterrence as well as denunciation and appropriate punishment. Your situation is a very, very unfortunate one.
16 The medical material before me and the history provided brings very much into play the principles involved in Verdins in virtually all the headings. Even taking that into account because of your prior history in large part I think that a custodial sentence is the only available option. If you had no prior convictions I may well have considered a community corrections order which would have provided psychiatric treatment. In these circumstances all I can really do is allow a significant opportunity for parole and trust, if that parole is granted, that the authorities will provide you with the appropriate support and the appropriate psychiatric and medical treatment.
17 As I have said I think gaol is the only option and you have already done 410 days. A significant amount of material was provided which included the original admission sheets from the Northern Hospital when you were an involuntary patient. There is a LEAP warning report about your condition. When you were seen on 2 August 2012 it was described you simply as a irrational male walking down the street ranting and raving and not making any sense. There is nothing to suggest that that conduct improved particularly greatly in the next 48 hours to when the offending occurred.
18 Your background can be outlined briefly. You are one of five children. Your mother died about ten years ago. You have two brothers, one is an aluminium worker and one is older. He goes to school and has an intellectual disability. You have a sister who works in a factory and another sister who works in a fish and chip shop. Your siblings have young children. Your father works in the construction industry and has been able to get you a series of casual jobs as a labourer on job sites.
19 You left Collingwood College having completed the end of Year 12. You have had various jobs over the years and have run into difficulty with them sometimes because of alcohol abuse. It would seem on the material before me that you have had problems with alcohol. You, at one stage, denied drugs. Be that as it may. What I do make clear is though that in this particular situation I can see no link between the use of alcohol and the offending. If there was there is simply no evidence of it.
20 When you were detained at the Northern Hospital on 2 August it was the first time that you had been detained of admitted in any form for treatment of a mental illness. Your father had described you talking in the previous days to imaginary people and I have been through the material and the information, fanciful information, that you gave the people at the hospital. When the police had detained you on 2 August you were talking to people who were not there.
21 It is hard to ascertain what the purpose of the offending was. The handbag was still intact, the objects were still in it and you behaved somewhat bizarrely with it. Demanding the wallets of the men would tend to suggest that you were after money but that may or may not be the case. It would appear that you have little insight into what caused you to behave that morning as you did. It cannot be said that your mental illness, which I accept is in existence, was a direct link to cause that offending. It is more that your mental illness is, or provides, the surrounding circumstances in which such bizarre offending occurred.
22 The reports of Dr Walton, and there are two of them, simply indicate that you are, in his view as in the view of others, schizophrenic and in remission. You were in August still being on remand, taken to the Thomas Embling Hospital. As Dr Walton pertinently remarks people need to be "quite severely mentally ill for that to occur". You were there for some months. I have read the portion of the Thomas Embling notes that have been given to me and I accept that you were having extreme mental difficulties during that period of months whilst you were there.
23 You were placed in seclusion and the consequences of that have been explained to me. You were put into seclusion on a number of occasions according to Dr Walton. That involved 15 minute checks. You have no contact with other people and were quite terrified of the other people within the Thomas Embling Hospital. I note that when Dr Walton spoke to you about the potential of a mental impairment defence you said you'd rather be in a gaol than Thomas Embling. That is a fairly sad indictment on your mental state as it was at that time.
24 It is clear that whilst you have been in prison you have had difficulties with other prisoners and what is described in the material you tend to be threatening towards others. It would seem that where you have a delusional and paranoid personality related to your schizophrenia that those altercations are probably quite often brought about by your fear that others impose a significant threat to you. To exist with those fears and those threats is, once described to me by Dr Walton, as living in a mental Vietnam and I fully am understanding of how hard it is to be detained in those circumstances.
25 Accordingly insofar as Verdins is concerned I find that you would do a custodial sentence albeit either in gaol or in Thomas Embling far harder than the normal, if there be such a concept, prisoner would. There is nothing to suggest on the material that being detained would exacerbate your mental illness and indeed it would appear that you are currently under medication which has you in remission so I do not that regard that head as been made out.
26 Insofar as moral culpability is concerned I think it has to be significantly reduced in a situation such as this. It cannot be said that the offending occurred because of the mental illness but at the same time it cannot be really said that it did not. Dr Walton does not know but certainly it has occurred in mental circumstances which would make it virtually impossible for you to be fully aware of even partially aware of consequence of what was going on and while you were doing it. The moral culpability in those circumstances I think has to be significantly affected.
27 General deterrence in a situation such as an armed robbery often play a very significant part. What role general deterrence would have to somebody in the state of mind that you were in on 4 August 2012 is anybody's guess. I would think none. I just do not think that general deterrence here, for somebody in your situation, is of any real significance at all.
28 Specific deterrence, and Dr Walton takes this view, are something that you an understand and comprehend. I am concerned that you have been gaoled before for robbery and that does not seem to appear to have had an effect on you, albeit you being in a very desperate state when this offending occurred. We are in a phase now of social justice where if you offend whilst on parole it seems that you are going to go back in. This is the equivalent of a suspended sentence in a way and I think that this is a situation where the concern about being returned to prison should act as a specific deterrent for you.
29 Obviously even allowing for the matters that I have spoken about there must be a significant sentence. They were the matters contained in Dr Walton's original report and when he said you were afflicted, was the expression used, by a quite paranoid schizophrenia. He then made a further report in May 2013 and I tender them belatedly if I have not already. These reports were really made to see whether you were fit to stand trial, which I have no doubt you are or whether there should be a mental impairment defence run.
30 He is unable, really, to opine as to what effect, if any, that your schizophrenia had on the offending other than to put it into context for which I have already referred. He opines that you may well have been deluded at the time of it and said that the symptoms that you were displaying at the time of the offending were hallmark symptoms of schizophrenia. The level of it, as I say, it is almost impossible to determine in retrospect. There is also, of course, when making those judgments depending on your self reporting and recollection which can sometimes be deluded in itself so it is a hazardous occupation.
31 In the end, as I have indicated, I have no difficulty finding that you were in a severely disturbed state at the time of the offending, that a member of the community would have a concern that you be treated appropriately and bearing in mind the restrictions upon me because of the seriousness of the offending that is what I propose to do.
32 You have good and strong family support. You receive visits in gaol. You pleaded at the earliest reasonable opportunity. Unfortunately because of your condition you are in a medical unit and you are unable to undertake work or the level of programs that others might be. On the brighter side, if I can use such a ridiculous expression, you are being medicated properly and that does seem to be having an effect and you seem to be gaining a degree of insight into the effect of that medication.
33 Dr Walton is conservative in assessing the risk and having heard him give evidence many times his risk assessment tends to be based upon whether you have done it before and you have. However when one looks at this as objectively as one can the prospects of your rehabilitation would appear to revolve around proper medical treatment and the risk of you re-offending remains, in one sense, to be seen.
34 I think that the from the community's point of view and your own point of view the only way to really assess those risks is to give you an opportunity of having that risk assessment put in the hands of the Parole Board. They will be able to monitor you if they have not already and I would be amazed if they have not, and they will be able to make the determinations as to what your prospects are. They will be able to put into effect circumstances where your treatment continues and ensure that you have stable accommodation.
35 I have taken into account all the material that was handed up to me and as I have said there is some misgiving that a custodial sentence is the only way that this can be resolved.
36 Accordingly on the charge of armed robbery you are sentenced to be imprisoned for a period of two years. On attempted armed robbery, 15 months, that is on Charges 2 and 3. I direct that six months of the sent imposed upon Charge 2 be served cumulatively upon the sentence imposed on Charge 1 which gives an effective head sentence of two and a half years.
37 I direct that you serve a minimum term of 13 months before becoming eligible for parole and to make it clear to you: that is simply an eligibility. It is up to the Parole Board whether you are released or not.
38 I do that because I think in your situation it is one where a length parole would be of great benefit to both yourself and the community and I take into account eh significant disabilities you were operating under at the time of the offending. I think it only fair. I direct that 410 days be reckoned as having been served under this sentence.
39 Insofar as s.6AAA is concerned, as so often the case, it is a bit meaningless here. Even if you had pleaded not guilty you still would have been getting the Verdins benefit so it makes the sentence that I am about to announce as to what you would have got without a plea of guilty understates it significantly. That is all I will say. In any event pursuant to s.6AAA but for your plea of guilty you would have been sentenced to be imprisoned for a period of three and a half years with a minimum term of two and a half. So you understand that your plea of guilty has saved you a significant period of time in custody if the Parole Board see fit.
40 All right. Are there any other orders I need to make, ladies?
41 MS FOOT: No, Your Honour.
42 HIS HONOUR: No? All right thanks for that.
43 MS TODD: As Your Honour pleases.
44 HIS HONOUR: All right, good luck to you, Mr Barker.
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