Director of Public Prosecutions v Botan
[2012] VCC 2190
•21 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02372
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED BOTAN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2012 | |
DATE OF SENTENCE | 21 May 2012 | |
CASE MAY BE CITED AS: | DPP v Botan | |
MEDIUM NEUTRAL CITATION: | [20192] VCC 2190 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Armed robbery – Established diagnosis schizophrenia – History of mental illness - History of poly-substance abuse
Legislation:Sentencing Act 1991; Mental Health Act 1986
Cases:Verdins, Vo, Buckley v R 2007 16 VR 269
Sentence:Total Effective Sentence of 5 years’ imprisonment with a non-parole period of 3 years and 4 months’ imprisonment – 239 days pre-sentence detention declared as being served – s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Mr T. Thyssen | Victoria Legal Aid |
HER HONOUR:
1 Mohammed Botan, you have pleaded guilty to two charges of armed robbery. Armed robbery is an offence which carries a maximum penalty of 25 years imprisonment. Therefore, as you can see, Parliament regards armed robbery as a most serious offence.
2 Ms Zammit for the Crown opened your offending as follows. You were born on 5 February 1980. At the time of the commission of the offences you were 31 years old. On 24 September, 2011, the first victim in this matter, Toyet Nyo, was working at the Tatts Lotto agency, which he co-owns at 308 Thomas Street, Dandenong. At about 4.45 pm, while the victim was working alone, you entered the store. At this time there were no customers in the store. You walked up to the counter and stood there. The victim asked you what you wanted, but you did not say anything. You followed the victim behind the counter and pulled a serrated knife, approximately 30 centimetres long, from your pants. You held the knife towards the victim and said, “Give me all the money.” The victim said, “Yeah, okay. Okay.” This gives rise to charge 1.
3 The victim opened the main drawer of the cash register and you took the money out of the till. The victim then opened the second drawer of the register and pressed the duress alarm, which made a loud noise. You continued to take money from the first drawer and then calmly walked out of the shop. The offending was captured on CCTV footage, which was provided to police.
4 On the following day, being 25 September 2011, the second victim, Vin Lee, was working at the A1 store located at 298 Lonsdale Street, Dandenong. At about 1.30 pm the victim and his mother, Nyet Win, were working in the shop when you entered the store. You walked down an aisle of the store and selected a kitchen knife with a red wooden handle. You then walked up to the side of the counter, raised the knife towards the victim, and yelled at the victim to open the cash register. The victim put both of his hands in the air and you repeated the demand. This gives rise to charge 2.
5 The victim opened the till and you took the money out of the drawer. As you were doing this, you asked the victim, “Where are the fifties?” The victim lifted up the inside of the drawer and showed you two $50 notes. While this was occurring, the victim’s mother was screaming. After taking the cash, you left the store. Win chased you after you left the store and yelled for help. A number of people heard Win’s cries for help and started chasing you. You were apprehended by a number of unknown people who waited with you until the police arrived.
6 Police attended the corner of Scott and Thomas Street in Dandenong to find a number of members of the public surrounding you. One of the people there was Pyu Nyong Nyo, who was working in a shop neighbouring the A1 store. Nyo provided police with a knife that was found on the counter of the A1 store. You were arrested and searched. Police found $277.60 in cash in pockets in your clothes. You were then taken to Dandenong Police Station.
7 Before taking part in a taped record of interview, Detective Senior Constable Ashleigh Penury had a conversation with you in which you admitted to robbing the A1 store and the Tatts Lotto store. At 2.25 pm the record of interview was commenced, but was suspended soon thereafter. A search warrant was obtained and executed at your residential address. At your home, police found clothing which matched the clothing worn by you in the armed robbery of the Tatts Lotto shop on 24 September 2011. At 8.05 pm the record of interview was recommenced. An independent third person was present in the interview.
8 During the course of the record of interview, you said the following. In relation to the 24 September 2011, you said, “I was sitting at home and I was – I was broke and I just went down, went inside the shop and pulled a knife and took some money, then I get away. I walked to the Coles. I bought some drink, and then I caught a taxi and then I went home. And this morning, when I woke up, I woke up with the money, couple of hundred left. I went to the bar. I was drinking and gambling and then the money finished. Then I went to do another armed robbery, and then I did it in the other shop. Yeah – yeah, that’s what happened.”
9 You were scaring the victim of the first armed robbery with the knife, you said. You also told police that after the first armed robbery you went to Coles and bought a carton of VB and asked people at Coles to call you a taxi, then you went home and started drinking. You said that the first victim was yelling and screaming, but that, to quote you, “I didn’t even care about who screamed as long as she opened the thing. All I was – care about the money.” After the first armed robbery you said you threw the knife away somewhere in Dandenong near Coles.
10 In relation to the second armed robbery, you said, “I woke up today at – in the morning, and then I went back. I went to petrol station. I bought a packet of cigarette and then I walked back to home. I walked back to the street and I woke up around 9.30, and then I catch the bus, 808-48, I think, and then I went to the pub. I had a coffee and some tea and then I started drinking and gambling, and then the money finished, and then I went to rob the other shop, yeah.” You said you intended to rob the Tatts Lotto store so that you could get some money.
11 In relation to the second armed robbery, you said, “I went to the shops – the way, I grab a knife, and then I went to the guy who was standing in the shop and I ask him to give me the money and he gave me the money, yeah. And the lady, she starts screaming and yelling and everybody come around me and they – me over. They call – yeah.” You did not take any coins from the A1 store and you said the coins found in your pockets were from the pokies, and you said you left the knife at the A1 store.
12 When asked how you felt about the two incidents, you said, “Bad.” When asked why you felt bad, you said, “Because I might go to jail for it.” You also said, “It’s not right thing to do. It’s – it’s scary stuff to do, yeah.” And you also said that you committed the two offences because you needed money.
13 No victim impact statements have been provided in this matter. I was told that each of the victims was invited to provide such a document but declined to do so. You have two prior convictions for armed robbery. The first of these was on 23 June 2003, where you were sentenced to two years imprisonment with a non-parole period of 10 months, and the second was on 21 November 2006, where you were sentenced to an aggregate sentence of 54 months with a non-parole period of 36 months, to be served by way of a hospital security order. Further, on 23 January 2008 you were convicted and sentenced to an aggregate term of four months imprisonment in respect of one charge of robbery, theft, and attempted robbery.
14 Objectively, your offending on the occasions for which I now sentence you is most serious. You chose to offend against vulnerable targets who were doing no more than working in small businesses to make a living. In relation to the first armed robbery, which you committed on 24 September 2011, I viewed DVD footage of this which showed that you held the knife above your shoulder, aiming it towards the victim. Although victim impact statements have not been provided, it is not too hard to imagine that each of the victims would have been terrified by what you did. Certainly, the mother of the second victim was terrified, evidenced by her screams, which you ignored. Further, your record of interview seems to indicate that you acted in a purposeful and deliberative way when you committed each of the armed robberies, rather than committing these on the spur of the moment.
15 When I originally heard the plea I was told of your background and history, which is a most unfortunate one. Some of the matters which you told your counsel were not consistent with what you told Dr Cidoni, consultant psychiatrist, who prepared a report in this matter, but this may well be due to some difficulties which you have experienced because of your mental illness.
16 You were raised in Somalia and came to Australia with your family when you were 16 years old. Most sadly, your mother left you and your siblings when you were only six years of age. You told Mr Thyssen that you are one of 11 children, although you told Dr Cidoni that you were one of 18 children. Mr Thyssen explained that this may be because your father has since repartnered and you may have some step or half siblings as a result of this.
17 When you arrived in Australia you went to a language centre in Footscray, but you did not complete courses because you moved around a lot. I was told that your English is quite good. In the report provided by Dr Cidoni, you mentioned being an interpreter with the United Nations. You have worked in Australia in the printing industry. When you were sentenced by her Honour Judge Nicholson, where you were ordered to serve a sentence of imprisonment by way of hospital security order, you were then released to a community residential unit. This was supported accommodation where your medication and your wellbeing could be monitored. However, due to lack of resources, as is sadly too often the case in relation to matters concerning mental health, you were compelled to leave that accommodation and live in a boarding house.
18 You reported to Dr Cidoni that you had been exposed to war, seen many people killed, and that you were not educated. Your family was very poor and you struggled to have food or money. You have not worked for many years. You denied excessive alcohol use to Dr Cidoni, saying that you had several beers each fortnight. However, I note from your record of interview that you appear to have consumed a good deal of alcohol from the spoils of the first armed robbery, which may have been impacting upon you at the time of the second armed robbery.
19 To your credit, you made full and frank admissions to police and have pleaded guilty at the earliest opportunity. Therefore, you have saved the witnesses, especially the victims, the trauma and time of giving evidence, and you have saved the community the time and expense of running contested proceedings. This entitles you to a substantial discount in the sentence that you would otherwise receive. You have also expressed some remorse in relation to your offending, although some of this appears to be regret as to the consequences for you rather than concern for the victims. On the hearing of a further plea, you asked Mr Thyssen to tell me that you are sorry for what you have done and that your time in custody as at that time was sufficient. I note these sentiments and take them into account insofar as I can.
20 I was told by your counsel that for many years you have been on community treatment orders and have spent various periods at the Dandenong Psychiatric Hospital. You told your counsel that at the time that you committed the two armed robberies, you were on a custody and treatment order from the Dandenong Hospital, and had felt yourself becoming unwell before committing these offences. You reported to your counsel that you spoke to two social workers about your deteriorating condition, asking to return to hospital, but, for whatever reason, this did not occur. You certainly did the right thing in seeking to be readmitted to hospital, and in the future you should attend an appropriate psychiatric hospital if you are feeling that your mental health is deteriorating. In the past, the community treatment orders have been mostly on an involuntary basis.
21 You have been prescribed various medications, and I was told that at the time you committed the armed robberies you were taking prescribed medication, which is of concern. In this regard, I do note that Dr Cidoni expresses some misgivings about your compliance with taking medication. If you have been prescribed medication, it is very important that you take it, even if you are feeling well, because a failure to do so will lead to you becoming unwell, with a great risk that you will continue to commit offences. Mr Thyssen said that when he saw you at the Metropolitan Remand Centre on 6 February this year, you had told him that you preferred to stay in your cell and that you had broken your television, as you were having difficulties with other prisoners.
22 You reported that you were transferred from the Metropolitan Remand Centre to Port Phillip Prison. When Dr Cidoni saw you on 17 February you were at St Vincent’s Hospital wing at Port Phillip Prison. More recently, you have been returned to the Melbourne Assessment Prison, assigned to the acute treatment wing. You have been concerned that you have been moved around a good deal, and you have also expressed concern at the attitude you perceive from other prisoners. At the time of the original plea you were taking Olanzapine tablets on a nightly basis and said that you were not sleeping well. You have told your counsel that other prisoners look strangely at you and they make you feel paranoid.
23 You described your time at Thomas Embling Hospital as being far more beneficial for you, as you were able to obtain sleeping tablets to assist you to sleep at night, which is not the case at either MAP or MRC. Also, whilst at Thomas Embling, you did some further courses in English and in respect of drug and alcohol. You reported to your counsel that you also did a TAFE course while you were there. You keep in touch with your family via the telephone, although you are limited in this regard by resources allocated to this. Your step-mother and your father live in Noble Park, as do your brothers and sisters, and you have telephone contact with them.
24 At the original plea I had some difficulty in accepting that your offending involved impulsivity, given that you took a knife with you on the first occasion and given that you explain in your record of interview that the reason you offended on each occasion was that you had run out of money and attended the premises with the express purpose of committing an armed robbery. Mr Thyssen submitted that your apparently frank record of interview may have had something to do with your mental state at that time, which was never subjected to examination by an appropriate forensic medical officer. The record of interview was conducted on the basis that you were fit for interview, although an independent third person was present at the interview.
25 However, as the explanations which you gave in the record of interview have a certain straightforward logic to them, and because it appeared to me that there was a measure of pre-planning, at least, in relation to the first armed robbery, on an objective basis, I was concerned to see which symptoms, if any, contributed to your offending. It would appear that you lacked appropriate judgment and were disinhibited, which is evident from the fact that you took no step to disguise yourself on either occasion, and on the second occasion you were indifferent to the screams of the victim’s mother.
26 Dr Anthony Cidoni, consultant psychiatrist, provided a report which indicates you have suffered from schizophrenia for many years, which is characterised by persecutory delusions in relation to being followed and auditory hallucinations, which are mainly of a derogatory nature towards you, and you also experienced hearing voices warning you that you are in danger. However, at the time that you committed these offences there was no evidence that you were suffering from these symptoms in such a way that they contributed to your offending.
27 Dr Cidoni found that you may have been suffering symptoms of increased impulsivity and impaired judgment and disinhibition, which contributed to your offending. He further said that imprisonment for you would be more difficult than someone not suffering from your condition. He indicated that your mental state would likely deteriorate, in terms of psychotic symptoms and depression. Dr Cidoni indicated that there was a risk of offending which could be reduced by assertive community mental health follow-up, and it was important for you to remain on a depot anti-psychotic, due to concerns about your compliance.
28 Mr Thyssen submitted that you ought be assessed for another hospital security order pursuant to section 93A of the Sentencing Act 1991. I ordered that such an assessment take place and that a report be provided, and also require that any such report indicate what, if any, symptoms of your mental illness contributed to your offending. That report is now to hand, prepared by Dr Claire McInerney.
29 Dr McInerney conducted the interview with you on 23 March 2012, which is the basis for her report. She has also assessed you on about five occasions between 24 October 2011 and 24 April 2012. She observed that you are being constantly monitored whilst in jail, with a view to transferring you to Thomas Embling Psychiatric Hospital if the need arises. She gave a detailed account of your psychiatric history which is well documented, and said that you have a history of polysubstance abuse and that you described a history of heavy alcohol and cannabis abuse prior to your incarceration.
30 Since your incarceration, you have spent some periods in the acute assessment unit at MAP and you have spent some time in protection and management units. Dr McInerney makes the following conclusions. I refer to paragraph 10 of her report:
Mr Botan has an established diagnosis of schizophrenia for which he is currently prescribed oral antipsychotic medication at an adequate dose. His presentation in custody to date has been characterised by high levels of agitation. Mr Botan frequently complains to mental health professionals of thoughts that others do magic on him. These reports have not always been consistent, raising concerns about their validity. Assuming, however, that Mr Botan does continue to hold an abnormal belief of this nature to a delusional intensity, he is under appropriate treatment for this in custody. While severe agitation such as that which Mr Botan intermittently presents can be a feature of a severe, enduring mental illness such as schizophrenia, it is not always the case. Mr Botan’s presentation in custody may be best explained by high levels of stress in a person with limited coping skills, rather than as manifestations of an active psychotic illness.”
31 Dr McInerney said that she found no evidence that you require psychiatric admission at this time, and she said:
A hospital security order essentially for a prisoner to spend his or her entire sentence in Thomas Embling Hospital might be appropriate where a person has a severe and disabling mental illness with very high mental health input requirements.
but, on balance, she did not think that you fitted this clinical picture. She said that it’s possible that at some stage during incarceration you would require admission to Thomas Embling, and such admission can be facilitated using s.16 sub-s.(3)(b) of the Mental Health Act 1986. Consequently, she did not recommend use of s.93A of the Sentencing Act 1991.
32 Further, she said that:
In considering Verdins principles, I find nothing to suggest that specific symptoms of Mr Botan’s mental illness contributed to the offending behaviour.
However, she did say that she considered it likely that, for complex reasons, including but not confined to your mental illness, imprisonment would weigh more heavily on you than on other prisoners without mental illness.
33 Having made the necessary inquiry, I do not accept that a hospital security order is warranted in your case. But in view of the apparent disregard for the detection of your crimes and the brazen way in which you carried these out, and in view of Dr Cidoni’s opinion in this regard, I am satisfied that at the relevant time your judgment was somewhat impaired and you were disinhibited due to your mental illness, so as to marginally reduce your moral culpability and reduce, to a limited extent, the significant weight that I would otherwise attach to the principles of specific and general deterrence. Also, your time in jail will be more burdensome than for someone not suffering from your condition.
34 On the other hand, I must be concerned for the protection of the community in any sentence which I impose. I am afraid that your prospects of rehabilitation are not too promising, in light of your criminal history and the difficulties that you face with your mental illness. It is very important that in the future you take the medication that you are prescribed, Mr Botan, and are open to the professional help, guidance and supervision that you are offered.
35 I must also impose a punishment that is just in all the circumstances, including the circumstance which pertains to the fact that I have found that Verdins principles have some application in your case, and I must also impose a sentence which serves to denounce your conduct in all the circumstances.
36 The Crown submitted that in your case an appropriate sentencing range was between five and a half and six and a half years’ imprisonment, with a non-parole period of between four and five years’ imprisonment. I was referred to various materials, including authority, which was said to reflect current sentencing practice. The range was given on the basis that your mental illness did not contribute to your offending. Mr Thyssen said that the range was appropriate, but that in light of Verdins principles, which he submitted did apply, the lower end of that range was more befitting in your case.
37 In my view, given the weight that I must apply to relevant sentencing considerations, and given that it is in everyone’s interests for you to be properly managed in the long term with a hope that your condition is not exacerbated whilst in jail, I believe that the sentencing range is slightly too high, as submitted by the Crown.
38 Would you please stand up, Mr Botan. I make the disposal order which is sought by the Crown and not opposed by you. In relation to charge 1, you are convicted and sentenced to four years’ imprisonment. In relation to charge 2, you are convicted and sentenced to four years’ imprisonment. I direct that 12 months’ imprisonment from charge 2 be served cumulatively on charge 1, so that the total effective sentence is five years’ imprisonment, and I order that you are to serve three years four months’ imprisonment before becoming eligible for parole. If not for your pleas of guilty, I would have sentenced you to six and a half years’ imprisonment with a non-parole period of four and a half years’ imprisonment. I declare that you have already served 239 days of this sentence. Take a seat for a moment, please, Mr Botan.
39 Are there any other matters, counsel?
40 MS ZAMMIT: No, there’s not.
41 HIS HONOUR: All right. Thank you. You may remove the prisoner.
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