Director of Public Prosecutions v Brennan

[2016] VCC 1499

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

AT GEELONG
CRIMINAL JURISDICTION

Case No. CR 16-00933

DIRECTOR OF PUBLIC PROSECUTIONS

v

TAMMY LOUISE BRENNAN

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong
DATE OF HEARING:	7 October 2016
DATE OF SENTENCE:	7 October 2016
CASE MAY BE CITED AS:	DPP v Brennan
MEDIUM NEUTRAL CITATION:	[2016] VCC 1499

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K.J. Doyle	OPP
For the Accused	Ms M.E. Casey	Criminal Lawyers Geelong

HER HONOUR: 

1Tammy Brennan, in 2011 you were diagnosed as suffering from a schizoaffective disorder.  Since then you have had numerous inpatient admissions to the Swanston Centre Psychiatric Unit at Geelong Hospital.  You have been compliant with your medication and by February of this year you were on a four weekly depot injection of Olanzapine, an anti-psychotic medication.  That was successful in generally managing your condition and your symptoms, but not completely successful. 

2You had become during the month of February increasingly distressed by your circumstances.   You were then 42, unmarried, had a turbulent relationship with your mother after what had been a very difficult lifelong relationship and had experienced bouts of homelessness or unstable housing.  You were in a period of unstable housing by February of this year.  You had, in fact, been asked to leave your mother's home so were, in effect, homeless by February.

3You were becoming more and more distressed not only by your homelessness but by the residual symptoms of your schizoaffective disorder which were not able to be controlled by your medication and you formed the view that the safest place for you to be was in gaol.  That was not a place you had ever been before.  You have no previous convictions and no history of appearances before courts but on 8 February you went to Myer, took some perfume tester bottles, told the sales assistant that you were stealing them and waited for the police.  You hoped that they would put you into gaol.  They did not.  They released you on bail from the police station.

4Within a week you were back at Myer and you took a further set of perfume testers.  Again you told staff what you had done and this time waited out the front until security and the police arrived.  Again, you said that you wanted to go to prison and that you felt that that was the safest and best place for you to be. 

5You were again taken back to the police station, questioned and charged.  This time the police made contact with Barwon Health Mental Health Services, appreciating that you were obviously suffering as a result of your mental health and not able to make sensible decisions about yourself.

6You did not engage appropriately at that stage with the services that Barwon Health was offering you or they were not able to provide you with the assistance that you then needed.  Within ten days you had committed the offence that brings you at the age of 42 for the first time before a court, and an offence so serious that it brings you to this court and not the Magistrates' Court. 

7You armed yourself with a small sharp knife, went to a 7-Eleven, pointed it at the two people who were behind the counter and demanded money.  The older of the two people told you to leave.   There was a verbal exchange and ultimately partly, it would appear as a result of the attendants telling you to go, the anger and distress manifested by one of them at your behaviour, and the arrival of another customer, you left.  You did not go far and the police found you and arrested you not long after that near the 7-Eleven.  By then you did not have the knife on you anymore but you told the police where you dumped had it at Jokers on Ryrie, not far from where you had committed this offence.  They went and found the knife exactly where you said you had put it. 

8They took you back to the police station and they were aware that you were acutely unwell mentally.  You told them that you had tried to hold up the 7-Eleven and demand money, that you did it so that you could go to gaol because you felt that was a safe place for you to be.  You told them where the knife was and helped them find it.  They were sufficiently concerned about your state to arrange for an independent third person to be present with you and to make sure you understood your rights before they continued with the interview.

9Again, because of your circumstances the police were of the view that gaol was not the right place for you and they did not seek to remand you in custody and you were again released on bail. 

10You were released on bail though charged with attempted armed robbery which is a very serious offence which carries a maximum term of imprisonment of 20 years.  Normally a person pleading guilty to such a charge would be looking at a term of imprisonment because it is clearly a terrifying offence for the victims.  They do not know whether the person who comes in armed with a knife is going to stab them or not.  They do not know whether they are off their faces on alcohol or drugs, whether they are suffering from a mental illness or whether they are stone cold sober, perfectly in control of their faculties and determined to do them harm.  So, there is a range of possibilities for the victims of these offences and those possibilities are matters that they cannot always work out and are things over which they have no control. 

11Fortunately for you your two victims appear to have been quite resilient and in their victim impact statements one of them says that he has not suffered any emotional, psychological or other harm from the incident.  The other is very angry about what happened and was particularly angry, it would appear, from what I was told about the absence of security, sufficient to protect the attendants at the 7-Eleven.  He was obviously angry and concerned about how people who just go to work in the morning can have a knife held at them when they are going about their business, working behind a counter in a convenience store that is there for everybody to come and get things for their daily needs. 

12So, it is clear that normally an offence such as this has to have a strong element of punishment in it. It has got to have a sentence that is going to deter other people from thinking they can do this and it has got to have an element of punishment in it that is going to be sufficient to deter the person who committed the offence from thinking about doing it again.  The penalty generally has to reflect a sense of how seriously we as a community regard the behaviour of those who go into unprotected shops like 7-Elevens and point knives at the attendants and demand money from them. 

13But, yours is a most unusual case.  You were clearly acutely and psychiatrically unwell at the time.  Because of your level of un-wellness your thinking was not clear and you had twice before in what was a disturbed way of thinking committed minor offences in the hope that you would be taken to a gaol, a place you thought was safe.  You escalated your behaviour when that had not been successful.

14Looking back now I am sure you too appreciate that it was not rational behaviour.  The material from the psychiatrist Dr Zimmerman who assessed you indicates you are aware of that. 

15Having not been sent to gaol as you wanted, you remained in the community for another month or two until you became even more unwell than you had been at the time of the commission of this offence of attempted armed robbery.  So unwell that ultimately you needed further and more serious treatment.  You started to hear voices and started to mistrust the people around you.

16By April you were so unwell that again police came to get you.  They took you this time to the Swanston Centre and you were then able to be treated in a way that helped to manage your symptoms better.  Also, more significantly you were assisted with obtaining secure and supported accommodation where once the anxiety of being homeless or being in inappropriate accommodation was removed, you were much more amenable to accepting the treatment that was offered to you and also of starting to become better because your circumstances had been stabilised.

17It is clear that your schizoaffective disorder has these characteristics: fluctuating mood, paranoid persecutory or grandiose delusions, auditory hallucinations, impulsivity, impaired judgment and poor insight.  At times it has exposed you to impulsive suicide or other self-harm attempts or aggressive behaviours when you are distressed or when your social and personal needs have not been met.

18Clearly, your history shows you have difficulty coping when living alone.  This is not the first time that you have manifested your emotional distress through inappropriate behaviour in order to try and get yourself access to institutional care.

19Since April, as a result of your becoming more unwell, you have, indeed been receiving a much higher level of support and care and you have made significant progress.  You are now a resident in a community rehabilitation facility.  That is a 12 bed residential recovery program available generally for up to 12 months and you have been there for about three or four.  Your time there is able to be extended if need be, but more importantly, you remain under the care of Barwon Health. 

20You have case workers assigned to you, a case manager, through the Geelong West Mental Health Service and a psychiatric nurse.  They are able to assist you to live in this supported accommodation, to monitor your progress and to help get you back into more acute care if you need it.  As I understand it, they will also be able to assist you to move into other accommodation when you are well enough to leave the community rehabilitation facility and when other accommodation is available to you.

21There is a very clear, overwhelmingly clear, causal connection between your offending and your mental illness.  I am satisfied that now you are properly cared for, and treated, you do not pose a significant risk of harm to yourself or to others.  You do not pose a significant risk when treated as you currently are of committing a like offence or, indeed other offences, in the future. 

22In those circumstances it is wrong to impose on you a punishment that would apply to a person who was not mentally unwell.  It is wrong to make an example of you to people who are in full possession of their faculties, not unwell as you were, and it is right to impose a sentence that will ensure that your recovery continues, that the treatment and care and supports around you continue and that you are assisted so as to get better and not offend again.  Therefore, prison clearly is not an appropriate sentence for you; a community correction order is. 

23There are a whole lot of conditions that can attach to community correction orders.  Some of them are compulsory, they apply to all orders but there is a range of other optional conditions.  Many of them are focused on assisting people in their rehabilitation.  Some of them have a punishment element to them.  I am not imposing any conditions that have a punishment element.  I think the fact that you were charged, the fact that you had to come before this court and the fact that I am going to impose a conviction against you is sufficient punishment and sufficient to mark the community's denunciation of behaviour of this sort in your circumstances.

24So, the only additional conditions I am imposing are ones that are designed to assist and encourage you in your continued wellbeing and in your rehabilitation.  They are conditions of supervision, so that you will be under supervision of community corrections, and of undergoing mental health assessment and treatment as directed.

25It is clear from the report from Corrections that they will work with Barwon Health and the people who are currently assisting you rather than imposing yet another supervision regime on you.  So, in a sense, what this does is impose a level of court ordered supervision and care that will give some court authority to what has already been provided to you through Barwon Health and by reason of the duty of care that society owes to everybody who struggles with their mental health.  You have been fortunate enough to be able to access this help through Barwon Health and under the NDIS. 

26So, I do not think there will be a duplication.  As I understand it Corrections will work with those who are already assisting you with your mental health and much of the reporting may well be done through them rather than with you directly.  But there are conditions that you must comply with and you will have to work with your case manager and your psychiatric nurse to assist you to be able to engage with Corrections and to comply with the conditions under this order. 

27They will also assist you to liaise with Corrections to make sure that the supervision appointments that you have and that the reports they get about your mental health care show that you are being properly looked after and so they do not need to interfere any more.  But, if things go wrong, there is that extra layer of someone there to look out for you and therefore to look out for everyone in the community before you get yourself into the sort of state that led you to commit the offence that brought you before me.  Do you understand all of that?

28OFFENDER:  Yes.

29HER HONOUR:  If you now stand please Ms Brennan, I will formally pass sentence on you.

30Tammy Brennan, on the charge of attempted armed robbery to which you have pleaded guilty you are convicted.  You are to be placed on a community correction order for a period of two years commencing today and ending on 6 October 2018. 

31The mandatory terms that apply to all community correction orders are these:  you must not commit another offence for which you could be imprisoned during the time that the order is in force - that includes shoplifting.  So really think of it as not commit any offence at all. 

32You must comply with any obligation or requirement prescribed by Regulation 17 of the sentencing regulations.  That means you must not be impaired by illicit drugs or alcohol when you attend Corrections for any visits or supervision and you must submit to drug or alcohol testing if directed to do so.  Of course, you must still take your prescribed medication as directed.  This order does not interfere with that. 

33You must report to and receive visits from the Secretary or delegate and you must report to the Geelong Community Correctional Service at Level 5, 30A Little Malop Street, Geelong within two clear working days of the commencement of this order.  So that means by Tuesday of next week. 

34In fact, it is probably not a bad idea, if you feel up to it, if you go straight there after you are released from court, do your first report and then that will be out of the way. 

35You must let a community correction officer know within two clear working days if you change your address or job.  I know you haven't got a job at the moment but if you get one, you have to let them know and if you move out of the CRF you have got to let them know within two days and let them know where you have gone and again, your case workers will assist you with that. 

36You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate. 

37Then there are these two special conditions; first that you must be under the supervision of a community corrections officer for a period of two years and second that you must undergo any mental health assessment and treatment and that may include psychological, neuro-psychological or psychiatric treatment or treatment in a hospital or residential facility as directed by the regional manager.  So you may well just get a direction to continue to stay at the CRF and to continue to be under the supervision of your case managers.

38Now, do you understand the effect and conditions of the order?

39OFFENDER:  Yes.

40HER HONOUR:  Do you consent to it being made?

41OFFENDER:  Yes.

42HER HONOUR:  Good, then I'll ask Ms Casey to bring it down to you and when she and you have checked through it for you to sign it to acknowledge that you agree to be bound by it.

43Whilst that is happening, I have been asked to make an order for the provision of a forensic sample and I have decided it is not appropriate in the circumstances to do so and I will not make that order.  I have, however, been asked to make a disposal order and I will make that. 

44All right, I have counter-signed that community correction order and it is now therefore made and binding on you.  That means that I will not see you again unless they bring you back for breach and I very much hope they do not bring you back for breach or unless you come to apply for a variation because it is seen that the supervision condition is no longer necessary or appropriate.

45OFFENDER:  Thank you.  Thank you.

46HER HONOUR:  Continue to work as you obviously have been to make yourself better and to work with and accept the assistance that is being provided to you by your case managers and I hope that that means that you will continue to get better and to feel safe and happy living where you are and then in your transition to more stable, independent accommodation in the community.

47OFFENDER:  Thank you, I'm also wanting to do an Italian course, learn Italian and French another course doing French and I also want to do some work as well.

48HER HONOUR:  Well, that would be fantastic.  If you get well enough to be able to do that, that will be a really good thing.

49OFFENDER:  Yeah, cool.

50HER HONOUR:  Practice your Italian and your French, it will be a good thing to keep your mind occupied. Ciao.

51OFFENDER:  Ciao.  Au revoir.  Merci beaucoup.

52HER HONOUR:  Felicity, how do we say adjourn in French?  Nous sommes finis.  Adjourn.

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