Director of Public Prosecutions v Borthwick

[2016] VCC 384

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01986

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL BORTHWICK

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 February 2016
DATE OF SENTENCE:	2 March 2016
CASE MAY BE CITED AS:	DPP v Borthwick
MEDIUM NEUTRAL CITATION:	[2016] VCC 384

REASONS FOR SENTENCE
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Subject:         CRIMINAL LAW
Catchwords: Pleaded guilty to a charge of attempted armed robbery and an offence of committing an indictable offence whilst on bail – attempted to rob woman of car – physical contact aggravating feature – was released on bail for separate offence 2 days before this offending – offence at lower end of scale – pleaded guilty at earliest opportunity – exhibited true remorse – has troubled past and previous offending – lowered mood impaired mental functioning, and reduced moral culpability to a small extent - has participated in the CISP program and made excellent progress.
Sentence: Community Corrections Order for 30 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V.Jones	OPP
For the Offender	Mr G. Chisholm	VLA

HER HONOUR:

1Daniel Borthwick, you have pleaded guilty to a charge of attempted armed robbery, which has a maximum sentence of 20 years' imprisonment.  You also agreed to this court dealing with the offence of committing an indictable offence while on bail and pleaded guilty.  That offence has a maximum penalty of three months' imprisonment or 30 penalty units.

2I sentence you on the basis of the agreed summary read out in court[1], the photographs tendered during the hearing[2] and a certified extract of bail entered into by you[3]. 

[1] Exhibit A – Summary of Prosecution Opening.

[2] Exhibit B – Three pages of photographs.

[3] Exhibit C – Certified extract of bail.

3In brief, on 29 August 2015 you were charged with a number of offences.  You were remanded in custody and on the next day were released on bail with conditions following a Sunday hearing at the Melbourne Magistrates' Court. 

4On 2 September you attempted to rob a woman of her car, threatening her with your hard-case card holder, saying it contained a bomb.  She fought you off as you attempted to grab her car keys from her hand.  This conduct comprises the charge of attempted armed robbery, and as you were on bail, also comprises the charge of committing an indictable offence while on bail.

5Attempted armed robbery is a very serious offence, as can be seen by the
20 year maximum prison sentence that Parliament has imposed.  Although the other offence only has a three month maximum prison sentence, Parliament has also considered offending while on bail to be serious enough to require any sentence of imprisonment imposed for such an offence to be served on top of any other prison sentence.

6Your offending is made worse by the fact that there was physical contact between you and your victim resulting in minor injury to both of you and torn clothing for the woman. 

7I do note that you told police that you were only interested in obtaining the car keys to access her car and drive it to a location where you could kill yourself by driving it over a cliff and were fending off her attempts to stop you, rather than attacking her.  This is confirmed for the moment in time captured on a still image from the CCTV footage. 

8I accept that you were only trying to grab her keys, but it is still an aggravating feature that by your actions, the victim was physically impacted.

9Another factor that makes your offending more serious is that you had been released on bail only two days earlier.  However, the circumstances that were outlined by your counsel make this aggravating feature less significant for the reasons I will come to later.

10There was no planning involved.  I accept that since you had been released on bail you had been sleeping in an unlocked car that you thought was abandoned, which was one car space away from where the woman happened to park her car that day.

11It is true that you told police that you had been thinking of how to kill yourself, and decided to get hold of a car with keys to drive off a cliff down the Great Ocean Road, but I find that when the crime happened it was spontaneous in the sense that your victim just happened to turn up and park her car there.

12You had no disguise and no weapon, but using your imagination and using your card holder as a "bomb", you turned it into an offensive weapon with which to threaten her.

13Overall, I assess your attempted armed robbery as being at the lower end of the scale of such offences. 

14No victim impact statement was received from your victim, but I have no hesitation in finding that she suffered considerably as a result of your actions.  She was not to know that you were not holding some sort of explosive device and she bravely struck out at you in an attempt to avoid the offence being completed.  She confirmed in her statement to police your version, that you only asked her for her car keys, but she clearly believed that you were after her handbag.  Not only would she have been scared, as you acknowledge in your police interview, but she was physically impacted as I mentioned earlier.  I take into account this impact on her in deciding the appropriate sentence. 

15Balanced against all of this, there are some factors I must take into account in your favour.  The first of these is the fact that you have pleaded guilty.  You are entitled to have that taken into account in your favour, and I do so.  Because of your plea, the community has been spared the time and cost of a trial, and your victim has been spared the ordeal of giving evidence in your trial.  I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

16I also take into account in your favour that you stated your intention to plead guilty at the earliest opportunity.  You were quickly apprehended, and you expressed immediately to police at the scene that you had done a stupid thing.  You maintain in your recorded interview with police that when initially apprehended nearby by the woman's employer, you were taken back to her by her employer and you apologised to her.  She does not mention this in her statement to police, and there is no statement by her employer.  However, throughout your police interview, you clearly expressed appropriate concern for what you had done to this woman, and also did so later when speaking to professionals who have provided the court with various reports.

17On all of the material, I accept that your plea of guilty indicates true remorse for your actions. 

18Next I take into account your personal circumstances which were outlined by your counsel and details of which are also found in the report of forensic psychologist Ms Lechner[4].  You are now aged 41 years.  You grew up with both your parents and a younger brother with whom you now have no contact.  In your teenage years you realised that you were homosexual and were bullied at school as a result.  You kept your sexual orientation secret from your parents until in your 20s, and it is still something you cannot openly talk about with them.

[4] Exhibit 2 – Report of Ms Carla Lechner dated 21/02/2016.

19You left school in year 12 as you obtained employment with BP as a record clerk.  Since then you have worked regularly in this area in both private and public enterprise, changing jobs only when your contracts expired. 

20Despite your sexuality, you married a woman, to whom you were introduced by your mother.  When your wife fell pregnant, you realised that you could not live a lie and told her of your orientation.  She was devastated, but agreed to continue contact between you because of the son you had together.  Your parents were not happy. 

21Your former wife moved to Queensland with your son in 2004 and you followed, to maintain your relationship with him.  You were employed in a number of jobs in that State, and had a number of relationships, including a long-term one which ended in about 2011.

22When your last contract of work expired in March 2015, you were unable to find work in the economic climate then prevailing in Queensland, and as your son was older and could travel to spend time with you, you decided to return to Melbourne.  Unfortunately you did not find work here, and you were living back with your parents.  They were sometimes absent and you were effectively minding the house. 

23Between 2005 and 2010 you had been using ecstasy while attending nightclubs, but this use had apparently not affected your work or your behaviour.  In 2013 you were introduced to methylamphetamine, “ice”, and in 2014 you were fined without conviction for committing drug offences on two occasions.  Before then, you only had a shoplifting charge from 2001 which was adjourned without conviction.

24There are pending matters in Queensland, New South Wales and Victoria.  In the first two States, it seems from the criminal record, hearings have been held in your absence.  In Queensland, there appears to be an outstanding direction or requirement that you must comply with, which may or may not have other charges attached.  In New South Wales, a warrant has been issued as the magistrate is required to do if considering a penalty beyond a fine, for dishonesty offences, apparently related to keeping a hire car beyond the hire period; and in Victoria you are to appear on 6 March at a Sunday hearing in the Magistrates' Court to be dealt with for the offences for which you were released on bail two days before this offending, and potentially some additional charges. 

25Your criminal history is relevant, although some matters are not finalised.  The drug charges confirm your increasing use, particularly of the drug ice, and the dishonesty matters are of a similar type of offending to that for which you are to be sentenced today, including in relation to theft of cars, although different in the level of seriousness. 

26On 30 August, you entered a plea of guilty and you attended the Magistrates' Court for an assessment for a community correction order on 1 September, with the matter adjourned to 6 September for sentencing.  You did not attend the assessment, and as you have not yet been sentenced, I am careful to treat the offences committed in late August as background to your offending on 2 September and not as prior convictions.

27The charges for which you were bailed on 30 August 2015 arose out of your parents discovering your use of drugs and ordering you to leave their home.  You stole your mother's car, and after unsuccessful attempts to negotiate its return, on 29 August you were charged with theft and unlicensed driving. 

28On release on bail, you were homeless, you were using drugs, had no employment, no family support, no prospects, and had not eaten for a few days.  You seem to have been unable to access any community or charitable help or support.  You made your way to Footscray, where you found an unlocked car in which to sleep which you thought had been abandoned.  You decided then to steal a car which had keys, unlike the one in which you were sleeping, and commit suicide by driving yourself off a cliff. 

29It was put by your counsel that you were at a low ebb and were not thinking clearly.  Your counsel relied on the report of Ms Lechner to submit that you had an acute mental health episode on your release on bail with no supports, reaching the sorry conclusion that suicide was the only answer.

30He submitted that this mental ill-health affected your judgment when you made the decision to steal a car by using force, and this is further demonstrated by the manner in which you attempted to commit the crime, which I accept was bizarre.

31He submitted that this impact on your mental functioning leads to your moral culpability for the offending being lower than if your mental functioning was not impaired and moderates the extent to which the sentence I impose must reflect the need for general and specific deterrence.

32In her report[5], Ms Lechner ventured the opinion that at the time of this offence, you were suffering an adjustment disorder with depression, reactive to a number of environmental stressors.  She of course did not assess you at the time.  You were assessed by other professionals closer to the time of the offence. 

[5] Exhibit 2 – report of Carla Lechner dated 21/02/2016 at p. 6.

33You spent 42 days in custody following the attempted armed robbery before being released on bail under the Court Integrated Services Program (CISP).  Under that program, you were linked in with supports including emergency accommodation, drug and alcohol counselling and a doctor who prepared a mental health plan, prescribed antidepressants for you, and referred you to a psychologist, Ms McCallum. 

34You first saw Ms McCallum on 28 October 2015 having been released on bail on 13 October.  In her report[6], she stated that you were referred to counselling due to experiencing poor mental health including symptoms consistent with a depressive disorder.  At your first appointment, she considered you were at risk of significant deterioration and began seeing you weekly, focusing on supportive counselling while your basic necessities were met, and on strategies to help you manage your emotions.

[6] Exhibit 3 – Report of Claire McCallum dated 25/02/2016.

35After four sessions, she reported that you had made excellent progress, and so treatment shifted to exploring the underlying causes of your lowered mood.

36When she last saw you on 24 February, the day before she wrote her report, and five days before your plea hearing, she was of the opinion that you presented with minimal symptoms suggestive of an ongoing depressive disorder, and appeared to be in stable mental health. 

37I have given careful thought to whether your mental functioning was impaired at the time of the offending.  The prosecutor conceded that it was possible that it was.  Although there is no direct evidence of your mental state on the day, your counsel submitted that it can be seen by the very actions that you took in the context of the previous few days, and also submitted that your immediate realisation after the event that you had done a stupid thing, should not prevent a conclusion that your mental functioning was impaired at the time of the offending.

38I have decided that you did descend rapidly into a very low mood as a result of your circumstances, including spending a night in custody for the first time.  You did not attend the court for the assessment on 1 September, because, I find, you were by then already contemplating suicide, and this led directly to you exercising the poor judgment to attempt an armed robbery to obtain a car.

39As a result of this finding, I will sentence you on the basis that your lowered mood impaired your mental functioning such that your moral culpability is reduced, but only to a small extent, and the usual requirement that the sentence I impose must deter you and others from committing such offences is also moderated to a small extent.

40I find that these circumstances make the aggravating feature of committing the attempted armed robbery while on bail less significant, and the offence of committing an offence while on bail is likewise less serious than would otherwise be the case.

41I take into account that during your 42 days in custody, you were subject to the conditions that applied after the earlier prison riots, meaning that you were only able to leave your cell for one hour of exercise and one hour of other activity each day.  Despite this, you managed to complete two short courses, which is to your credit, and shows a commitment to rehabilitation even before your release on the CISP program.

42I received a number of other reports from the CISP case manager[7], from the Salvation Army[8], with whom you have obtained accommodation, and from your drug counsellor[9].  These show that you successfully completed the CISP program over four months; that you are linked in with continuing supports in the community, including medical and mental health practitioners, and counsellors; that you are in housing, which while described as transitional, is a stable place for you to stay for up to two years; and that you have goals to obtain permanent housing, abstain from drug use, and re-establish your relationship with your son.  You have not yet discussed with him what has taken place in your life since August last year.

[7] Exhibit 4 – CISP reports.

[8] Exhibit 5 – Salvation Army letters.

[9] Exhibit 6 – Letter from drug counsellor dated 20/02/2016.

43The reports described your progress as excellent, and the CISP case manager refers to your motivation, commitment, determination and resilience[10].  This is in stark contrast to where you were on 2 September.

[10] Exhibit 4 – CISP reports, Final Progress Report p.4.

44There is another matter relevant to your prospects of rehabilitation.  Over the last three months, you have been in a new relationship with a man who attended court to support you.  He is a mental health nurse, and is not interested in having a partner who abuses drugs.  Apparently you had a relapse and used ice in October last year when you were at the beginning of the CISP program.  Importantly, you were able to discuss this with your partner, who made it clear that he will not tolerate a further relapse, and has given you one last opportunity to demonstrate your commitment to your rehabilitation.  His support is vital to your continued rehabilitation, as are the community supports that now surround you.

45However, your future is in your own hands, and you are still at risk of reoffending, perhaps not at the serious level of an armed robbery, but I am satisfied that you understand this responsibility to reform yourself, and as a result of the steps you have taken, I find that your prospects of rehabilitation are reasonably good. 

46Your counsel submitted that it was open to me to find an alternative to a sentence of imprisonment, and that I should release you on a Community Correction Order.  The prosecutor agreed that this was within the range of appropriate sentences.  You were assessed as suitable for such an order.  Yes, stand up please, Mr Borthwick.

47I have decided that in all the circumstances, I do have an alternative to a sentence of imprisonment, and if you agree, I propose to convict you and release you on a Community Correction Order for 30 months on both charges.  That order will have the conditions that are attached to every order, which are that you must report to and receive visits from Corrections Victoria, must notify Corrections Victoria of any change of address or employment, must not leave Victoria without permission of Corrections Victoria, and must comply with any direction given by Corrections Victoria to ensure compliance with the order.

48I will also order that you comply with other conditions during that 30 months.  You must perform 200 hours of unpaid community work, you must be under supervision, you must attend for assessment and if required, undertake treatment for drug use, and you must attend for assessment, and if required, undertake treatment to maintain good mental health.

49Mr Borthwick, do you agree to being released on a Community Correction Order with those conditions attached?

50OFFENDER:  Yes, Your Honour.

51HER HONOUR:  If you are ill, or there are other exceptional circumstances, this order may be suspended for a period of time.  If your circumstances change, you may apply to the court for a variation or cancellation of the order.  In either case, you must notify the Community Corrections office to which you will be reporting, and I recommend you also get legal advice.  If you do not complete a condition of this order, you will be brought back before me to be resentenced on the original charges and also be dealt with for a breach of the condition.  What will happen then will depend on a number of circumstances, but you should be aware that my options are limited, and one of those limited options is gaol.  Do you understand what will happen if you do not complete this order?

52OFFENDER:  Yes, Your Honour.

53HER HONOUR:  Your counsel submitted that your mental health was relevant to whether a sentence of imprisonment should be imposed and whether it would weigh more heavily on you.  In light of the proposed Community Correction Order, I have not made any finding about this.  In the event that it is necessary to revisit this sentence, I note that you have served 42 days in pre-sentence detention for these offences. 

54The sentence of the court is:

55On both charges you are convicted and released on a Community Correction Order for 30 months on the conditions I have outlined. 

56Application has been made for an intimate forensic sample to be taken from you and you have consented to this.  I am satisfied that it is in the interesst of justice, having regard to the seriousness of the offending, that in all the circumstances I order that an intimate forensic sample, namely saliva, be taken from you.  The sample may be taken by a doctor or nurse, or other authorised person.  A saliva sample is taken by wiping a swab inside your mouth.  Although you have consented, if you change your mind I must inform you that the law is that the sample that will then be taken will be a blood sample, and the police may use reasonable force to enable that procedure to take place. 

57Finally, I advise you that if you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed is a term of imprisonment of 15 months, with a minimum of nine months.  Thank you,
Mr Borthwick can be released from the dock, and you can take a seat behind Mr Chisholm.  You need to sign a document to confirm that you agree to being released on the Community Correction Order and the conditions, and we will just prepare that now.  I will also have the forensic sample order provided to the prosecution.  Yes, we will have the Community Correction Order with the conditions provided to Mr Borthwick. 

58The wording on the order is in terms of the legislation, so it is a little more complex than what I have just explained, but Mr Chisholm will take you through it and make sure you understand.  Yes, so if you agree, please sign where indicated. 

59I have also signed the order now, Mr Borthwick, so that order will be in force from now for the next 30 months and we will have a copy provided to you before you leave court today.  If all goes well, we will not see each other again, if not, then we will see each other again and you will be at the back of the court.  Yes, are there any other orders required? 

60MS JONES:  No, Your Honour.

61MR CHISHOLM:  No, Your Honour.

62HER HONOUR:  All right, thank you.  I will adjourn, then, until 9 o'clock tomorrow.

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