Director of Public Prosecutions v Bromley
[2020] VCC 857
•18 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Suitable for Publication |
Case No. CR-19-02266
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHAS BROMLEY |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 May 2020 | |
DATE OF SENTENCE: | 18 June 2020 | |
CASE MAY BE CITED AS: | DPP v Bromley | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 857 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: car-jacking, category two offence - fail to render assistance following a motor vehicle accident – dangerous driving – use of methyl amphetamine - psychosis at time of offending - diagnosis of schizophrenia – whether exception to s.5(2H) of Sentencing Act 1991 applies – exception found – previous antecedents.
Legislation Cited: s.79 Crimes Act 1958; ss 61(1)(b) and 65 Road Safety Act 1986; s.5(2H) Sentencing Act 1991;
Cases Cited: R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; R v Renzella [1997] 2 VR 88; DPP v Jakovac [2020] VCC 153; DPP v Kilpatrick [2020] VCC 379; Boulton and Ors v R [2014] VSCA 342; Leishman v R [2019] VSCA 270; Teryaki v R [2019] VSCA 120
Sentence: 293 days imprisonment and two year CCO with conditions on car-jacking offence. Two year CCO with conditions for summary charges six and seven. Six month cancellation of driver’s licence on summary charge seven.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Roper | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr A Patton | Balmer & Associates |
HIS HONOUR:
1 Chas Bromley, you have pleaded guilty to a charge of car-jacking contrary to s79 Crimes Act 1958. You also consented to my hearing two related summary offences to which you have also pleaded guilty. Summary charge 6 is a charge of failing to render assistance following a motor vehicle accident contrary to s61(1)(b) Road Safety Act 1986. Summary charge 7 is a charge of dangerous driving contrary to s65 of the same Act.
2 The maximum penalty for the offence of car-jacking is one of 15 years’ imprisonment. The maximum penalty for failing to render assistance is 14 days’ imprisonment and the maximum penalty for dangerous driving is 2 years’ imprisonment. The latter offence also has a mandatory minimum licence cancellation and disqualification period of 6 months.
3 Further, as car-jacking is a Category 2 offence under the Sentencing Act 1991, s5(2H) of that Act applies requiring me to make a custodial order unless an exception applies.
4 You have admitted your criminal record. I shall deal with that record in a little more detail in the course of my sentencing remarks.
Circumstances of offences
5 Your offending behaviour is set out in the summary of prosecution opening which was tendered on the plea and marked Exhibit A. It is an agreed summary.
6 On the 4 January 2019, you got off a train at Westgarth train station and walked to Evans Crescent, Northcote. At approximately 11.50am, the victim of the car-jacking, Diana Artis, was walking to her car which was parked in the same street. She was holding her car keys. You approached her and said, “Excuse me I'm gonna need your car keys”. She refused to give you the keys and ran back to the house where she had been working caring for an elderly patient. You followed her and kicked the security door shut, thus preventing her from entering the house. You made a further demand for the keys which was refused. You then grabbed hold of the victim, threw her to the ground and ripped the keys from her hand. During the struggle she screamed out for help. As a result of your conduct, Ms Artis received multiple scratches and bruises to her arms and legs.
7 Using the keys you then got into her car and drove towards Westgarth Street. Ms Artis ran after you attempting to open the driver’s side door which you had locked. The conduct I have just described forms the basis of charge 1, car-jacking.
8 Shortly after the car‑jacking, you drove through a red light at the intersection of Victoria and Darebin Roads, Thornbury colliding with another car causing significant damage to both cars. This conduct constituted the basis for the summary charge of dangerous driving. Despite the collision you failed to stop and render assistance. Instead, you continued driving north along Victoria Road. That conduct constituted the basis of the summary charge of failing to render assistance.
9 On 6 January 2019, at approximately 4.00am, the victim’s stolen car was found abandoned with its engine running. It was in the middle lane of Edgars Road, Thomastown. A small amount of blood was located on the front driver’s side window. That blood was scientifically tested and was matched to you.
10 You were remanded on unrelated matters on 9 January 2019 and on the 7 February, you were interviewed by police and charged in relation to the matters now before me. You remained mute throughout that interview. You remained in custody until 3 December 2019 at which time you were granted bail.
Background and personal circumstances
11 At the time of the offending you were aged twenty-four. You are now 26 years of age.
12 You are the second youngest of four children. Your parents separated when you were still an infant child. You lived with your mother but remained in contact with your father with whom you would stay on alternate weekends.
13 You grew up in Reservoir and attended Macleod College where you completed year 9. You completed year 10 at Northland Secondary College. You then enrolled in the Victorian Certificate of Applied Learning stream at Lynall Hall Community School in Coburg, where you completed years 11 and 12.
14 You were not academically inclined and there were several behavioural and discipline issues throughout your schooling which resulted in you being suspended. You were frequently absent from school. Despite that, you managed to complete your Year 12 and then commenced an electrical apprenticeship through NECA Education. You completed only your first year. Your employment was terminated during your second year due to your poor attendance. I am told by your counsel, Mr Patton, that this was because of your increased drug use. Thereafter, you have had a number of labouring jobs but nothing of any note. You are hopeful of obtaining employment and completing your electrician’s apprenticeship.
15 Your main interest growing up was in sport, particularly basketball and Australian Rules Football. You were described as a talented junior footballer playing for Kingsbury and Preston football clubs. You then played two years of TAC football with the Northern Knights before joining the Carlton and then the Collingwood football clubs, playing in their reserve teams.
16 Sadly, you have a history of illicit drug use which not only affected your ability to continue with your apprenticeship but also your sporting opportunities. Mr Patton informed me that you first commenced to use cannabis at the age of 13. The frequency with which you used cannabis increased as you got older. You were also introduced to cocaine and other drugs, and by the age of 17 you were using methyl amphetamine. Methyl amphetamine and cannabis were the main drugs used by you. At the time you committed these offences you were using both drugs.
Criminal history
17 Your history of offending commenced in June 2017 when at the Benalla Magistrates’ Court you were convicted of a number of offences including contravening a Family Violence Intervention Order, making a threat to kill, unlawful assault, reckless conduct endangering serious injury, and resisting an emergency worker on duty. You were then placed on a 12 month Community Correction Order.
18 On 5 April 2018, you appeared before the Heidelberg Magistrates’ Court on a charge of contravening the Correction Order. On that occasion the charge was found proven and the Order was varied, extending it by three months. You were also then found guilty of a number of other offences including persistently contravening a Family Violence Order, committing an indictable offence whilst on bail, intentionally damaging property, unlawful assault, and possessing and using cannabis. You received an aggregate penalty of 30 days’ imprisonment.
19 On 9 November 2018 you again appeared before the Heidelberg Magistrates’ Court on a number of charges including recklessly causing injury, contravening a Family Violence Intervention Order, criminal damage, persistent contravention of a Family Violence Order, committing an indictable offence whilst on bail, assaulting an emergency worker on duty and resisting an emergency worker on duty. In relation to those charges, you received an aggregate term of imprisonment of 86 days, which was the time you had already served in custody. You were also charged with contravening the Community Correction Order which was found proven.
20 On 28 February 2020 you were placed on a 12 month CCO for offences of contravening a family violence order and intentionally causing injury. This is not a prior conviction but is nevertheless relevant given the submission of your counsel that you be placed on a CCO for the matters before me.
21 Mr Patton submitted that the theme to your earlier offending was that it was mostly directed against family members precipitated by flashes of anger which were then accompanied by violent outbursts. It was further submitted that your outbursts also occurred when in custody, and were directed mostly at the prison officers. I have had regard to the summaries of your earlier offending that were tendered by your counsel. They make for very depressing reading but are largely consistent with what was put as to the nature of your previous offending.
Psychiatric reports
22 Your history of offending, as well as the matters to which you have pleaded guilty before me, must now be looked at in the context of your recent diagnosis of schizophrenia.
23 I have been provided with a number of medical reports which confirm the diagnosis.
24 A Forensicare psychiatric report prepared by Dr Grant Lester on 29 April 2019 for one of your earlier court appearances was tendered. Dr Lester assessed you in custody at Ravenhall Prison. Because of difficulty in interviewing you, Dr Lester stated he was unable to provide any meaningful opinion as to whether you were suffering from a mental illness, or its role in your offending, or your ability to cope with incarceration. However, he went on to say that your presentation and responses had a quality that he had seen in those suffering from schizophrenia and whose behaviour is driven by auditory hallucinations and persecutory delusions. Dr Lester stated he had “no other evidence to support this impression”.
25 Also tendered were three reports from consultant psychiatrist Dr Lester Walton.
26 In his first report, dated 11 June 2019, Dr Walton concluded that although he had limited knowledge to make a definitive opinion, it was then very much his impression that you were not suffering from a simple amphetamine-induced psychosis but were then in the grips of schizophrenia. He also considered that you were a substance-dependent person although, at the time he saw you, you had detoxified from methyl amphetamine.
27 In his second report, dated 4 October 2019, following receipt and a review of your clinical file, Dr Walton confirmed that the appropriate diagnosis is one of schizophrenia, likely at times to have been aggravated by substance abuse. He stated you may well have been actively psychotic around the time of the car‑jacking but could not say that you had a viable defence of mental impairment. In relation to the car‑jacking, he stated that your “schizophrenic illness and drug-taking may well be relevant in terms of enhancing social irresponsibility”. He regarded your mental illness as centrally relevant, over and above drug-taking.
28 In his most recent report, dated 13 May 2020, prepared after your release on bail, Dr Walton noted that you appeared to be well with no evidence of any psychotic disturbance. He also stated that you impressed as remaining insightful into the nature of your diagnosis and the necessity for ongoing treatment, as well as the hazardous nature of amphetamine abuse. He stated that you have a well-established diagnosis of chronic schizophrenia, at times aggravated by drug abuse. Dr Walton noted that your psychosis was in “substantial remission”.
29 Dr Walton stated that he was hampered in his ability to assess your mental state precisely at the time of offending because of your lack of memory of that offending. You told Dr Walton that leading up to the offending you had been using “a few points” of methyl amphetamine each day and that had rendered you paranoid as well as causing you to experience auditory hallucinations and anger. Dr Walton considered it highly likely that that state of mind continued into the period of offending.
30 He believed that it is highly probable that you were in a psychotic state at the time of the offending. Dr Walton stated at page 6 of his report the following:
“ I am aware that persons suffering from drug induced psychotic episodes are now precluded from Verdins considerations however the situation with Mr Bromley was that he had a well established serious mental disorder which may have been aggravated by drug abuse but the psychotic episode was not caused primarily by the drug taking … It is probably obvious from what I have stated above that I do regard Mr Bromley as suffering from “impaired mental functioning” on the basis that he has a well-established diagnosis of a major mental disorder. Although I cannot assert it with vigorous authority … I believe it is probable that there is a causal link between this man’s impaired mental functioning and the offending but I believe commenting specifically about reduction in moral culpability remains with the sentencer rather than an expert except to state that not only was it highly likely that Mr Bromley was experiencing perceptual distortion but also disruption of appropriate emotional expression at the time of the offending although much less so now.”
31 What was less clear to Dr Walton was how such a psychotic state was linked directly to the nature of your offending. However, he did state that your paranoia would likely have disinhibited aggressive urges and promoted fear and the need to escape. At a minimum, according to Dr Walton, you would have been distracted by the ongoing “hallucinosis”, and that most persons who are acutely psychotic experience serious erosion of the capacity consistently to exercise proper social judgement. Dr Walton believed that on the balance of probabilities there is a realistic connection between your mental impairment and the offending.
32 Thus, in Dr Walton’s opinion, you have a well-established serious mental disorder and that it is highly probable that you were experiencing a psychotic episode at the time of the offending that was not primarily caused by the drug taking. He believed it is probable that there is a causal link between your impaired mental functioning and the offending.
33 A large bundle of medical notes were tendered and marked Exhibit 6. I have read those notes and have had regard to those which are relevant to your mental health issues and treatment. The notes record your difficulties with illicit drug use, particularly cannabis and ice, and efforts at treatment at Moreland Hall and Odyssey House in 2016. A note made by your doctor on 21 March 2016 referred to several life stressors including a family member being diagnosed with cancer, breaking up with your girlfriend, losing your job as an apprentice electrician and having been de-listed by the Collingwood Football Club due to drug use. When seen by the doctor on that occasion you were homeless.
34 Your diagnosis of schizophrenia was not made until after you were remanded in custody in 2019. Mr Patton informed me that in approximately February 2019 you were transferred to the Aire psychiatric unit at Ravenhall prison where you remained for approximately six weeks before being transferred to the Thomas Embling Hospital as an involuntary patient. You remained at Thomas Embling for six months before being discharged back to the Aire Unit on 10 October 2019. You remained there for a short period only before being returned to mainstream at Ravenhall. By this time you were on anti-psychotic medication that worked to stabilise your mental health difficulties.
35 Based on the expert medical evidence, I accept that at the time you committed the offences you were in a psychotic state caused by your underlying schizophrenia, which itself was likely to have been aggravated by your use of methylamphetamine.
Victim Impact
36 Your conduct is not without impact on those against whom you offended. Ms Artis provided a victim impact statement to the court. She continues to suffer emotional trauma such as hypervigilance, panic attacks, difficulty in concentrating and fears that she will again be attacked even when she is simply walking down the street. I have had full regard to the matters in her statement. As your counsel properly conceded, your offending has had a profound impact upon the victim of the car-jacking.
Current Circumstances
37 Mr Patton informed me that you are now mostly housebound, living with your father. You have done so since your release on bail.
38 You have been on stringent bail conditions including a curfew from 10 pm to 10 am each day, a prohibition on your entering the suburb of Reservoir, and a requirement that you live with your father. You have complied with all of the bail conditions.
39 As I earlier mentioned, in February 2020 you were placed on a community correction order for 12 months. Conditions of that order require that you attend for supervision, assessment and treatment including testing for drug use, and assessment and treatment for mental health issues as directed.
40 Under the order you have been referred to the Northern Area Mental Health Service and the Noogal clinic. You are under a drug treatment regime administered by your general practitioner, including being prescribed anti-psychotic medication. You were also referred for psychological counselling, your first appointment was on 4 May. You also had a drug urine analysis on 4 May which was clear for illicit drugs. You are also awaiting counselling treatment in relation to your addiction to illicit drugs. Mr Patton informed me that you have in fact been abstinent from illicit drug use since you were remanded in custody in early January 2019.
41 Since your plea hearing I have received a report dated 19 May 2020 concerning your progress on the CCO. The author of the report, Ms Khoo, concluded that your engagement across all conditions of the order has been satisfactory. You have attended all appointments as directed and have complied with all directions of your case manager. Importantly, she reported that you have demonstrated a positive commitment and have made progress despite the short period of time you have been on that order.
42 Your relationship with your parents and siblings has improved and they are now supportive of you. Your parents were not aware that you suffered from schizophrenia until it was diagnosed last year. Since that time they have done all that they can to support you. You have returned to live with your father and your mother visits you almost daily. She also takes you to all of your medical appointments and appointments arranged under the correction’s order. Your mother was present during the plea hearing. Your father was to be present but because of restrictions on the number of persons allowed in the courtroom as a result of the Covid-19 pandemic, he was not able to be present. He too takes a strong interest in your mental health treatment.
Submissions
43 Mr Patton relied on a number of matters in mitigation of penalty.
44 He relied on your pleas of guilty to the offences which were first indicated at the committal case conference. It was submitted that I should treat your pleas as having been entered at the earliest reasonable opportunity. Further, Mr Patton submitted that your pleas reflect your remorse and acceptance of responsibility for the offending despite you having no recollection of the events.
45 Mr Patton next submitted that your prospects of rehabilitation are very good. He particularly relied on your compliance with treatment since being released on bail and your rehabilitation to date, as well as the existence of protective supports, familial and professional, that will support and promote your continued rehabilitation.
46 He submitted that your engagement with the Northern Area Mental Health Service and the Office of Corrections since your release has been “exemplary” and that you are showing a positive attitude towards your continued engagement with those organisations.
47 Mr Patton submitted that given your young age, rehabilitation should take a prominent role in the sentencing discretion. As earlier mentioned, you are now 26 years of age and were 24 years at the time the offences were committed.
48 With respect to your criminal history, Mr Patton submitted that although they are offences of a similar kind, that offending occurred in the context of disputes with your immediate family. In his written outline of submissions, Mr Patton stated that your criminal history should be given little weight given what he said was the likelihood that you were then suffering the effects of schizophrenia and unaware of its presence. He emphasised that you have not re-offended nor engaged in violent behaviour since being placed on antipsychotic medication. He further submitted that this will be the first time you will be sentenced since you commenced treatment for your schizophrenia. Mr Patton submitted that previous therapeutic orders focused on your drug abuse ignorant of your underlying psychiatric diagnosis.
49 Relying on Dr Walton’s final report, Mr Patton submitted that you were suffering a psychosis at the time of the offending and that the psychotic episode was not caused primarily by your consumption of drugs. It was put that despite your use of methyl amphetamine, the causal connection between your impaired mental functioning and offending operated to reduce your moral culpability. Mr Patton submitted that you were not aware that your use of methyl amphetamine could trigger a schizophrenic psychosis.
50 Mr Patton also submitted that by reason of your diagnosis, and on the basis of Dr Walton’s opinion, Verdins’[1] limbs one, three and five are enlivened. That is, your moral culpability is reduced; general deterrence should be moderated, and that the existence of the mental condition at the date of sentencing, or its foreseeable recurrence, could mean that a given sentence would weigh more heavily on you than it would on a person in normal health.
[1] R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
51 In relation to the car-jacking Mr Patton submitted that although you have no memory of your offending, from the objective facts your offending falls at the lower end of the spectrum of seriousness. He submitted that your conduct was not pre-meditated; you did not take the car whilst the victim was driving the car; and there was no use of a disguise or a weapon. He did accept, however, that the actual use of force as opposed to the threatened use of force aggravated your offending. I should note here that if a weapon was used it is likely that you would have been charged with the more serious offence of aggravated car-jacking, so I do not consider the absence of the use of a weapon to be a mitigating feature.
52 As earlier stated, the offence of carjacking is a category 2 offence under section 3(1) Sentencing Act 1991. Therefore, pursuant to section 5(2H) of the Act I must make a custodial order unless one of the exceptions applies. Further, an order under section 44 of imprisonment and a community correction order is not permitted unless an exception applies.
53 Mr Patton submitted that the exceptions set out in section 5(2H)(c)(i) and 5(2H)(e) of the Act applied. He relied on the following matters in support of his submission:
(i) your diagnosis of schizophrenia;
(ii) the role schizophrenia played in the offending and the consequent reduction in your moral culpability;
(iii) your positive response to treatment and abstinence from illicit drugs since your release;
(iv) the presence of professional and familial supports in the community; and
(v) the reduced weight of general deterrence in the sentence in light of your impaired mental functioning.
54 In the alternative, Mr Patton submitted that if an exception is not made out it is open to me to impose a period of imprisonment on the car-jacking charge and a community correction order on the charges of dangerous driving and failure to render assistance.
55 Mr Patton submitted that I should find that an exception has been proven and that you be sentenced to a community correction order. Alternatively, should I not find that an exception has been proven, that I sentence you on the car-jacking charge to a term of imprisonment of 293 days and a community correction order on the two summary charges. He submitted, in effect, that the community will be best protected with your rehabilitation which can now be addressed in the knowledge of your diagnosis of schizophrenia. In a supplementary outline of plea submissions, filed 16 June 2020, Mr Patton submitted that any further imprisonment would interrupt your good progress and set back that rehabilitation. He noted that whilst you have served 293 days on remand referable to the charges before me, an additional 30 days in custody in relation to other matters was also time served which, he submitted, I should take into account as “Renzella time”.[2]
[2] R v Renzella [1997] 2 VR 88
56 Mr Roper, who appeared on behalf of the Director of Public Prosecutions, submitted that on the basis of section 5(2H) I am bound to impose a term of imprisonment on the charge of car-jacking unless one of the exceptions relied upon by Mr Patton is made out. That, of course, is correct. Mr Roper submitted that the opinion proffered by Dr Walton was problematic because his opinions were hampered by your lack of memory.
57 Mr Roper referred to Dr Walton’s report of 13 May 2020 at page two where you reported a memory that leading up to the offending you had been abusing methamphetamine “a few points” daily by way of smoking and that had rendered you paranoid as well as experiencing auditory hallucinations and anger. Mr Roper submitted that you contributed to your own paranoia by reason of your drug use.
58 He submitted that the exception needs to be established by cogent and compelling evidence rather than speculative grounds. Mr Roper did not challenge the diagnosis of schizophrenia stating that it appeared to be well-established on the material before the court. However, he submitted there is difficulty in untangling your underlying mental illness from your substance abuse.
59 With regard to the exception under sub-section 2H(c)(i) Mr Roper submitted that the evidence is insufficient to make out that exception.
60 In oral argument I raised whether the exception under sub-section (2H)(c)(ii) might apply. Mr Roper submitted that that sub-section had not been relied on by Mr Patton and that whether it was made out would depend on what Dr Walton had to say in his reports on the issue of whether your impaired mental functioning would result in you being subject to “substantially and materially greater than the ordinary burden or risks of imprisonment”. On a closer review of Dr Walton’s reports it would seem that this particular exception cannot be established. Indeed, Dr Walton, in his final report, said that given your psychosis is in substantial remission you will not experience imprisonment as additionally onerous because of that condition.
61 With regard to the exception under sub-section (2H)(e) Mr Roper submitted that a combination of mental illness and drug abuse are neither exceptional or rare. That is, there are no substantial and compelling circumstances justifying not making an order as would otherwise be required.
62 As to penalty, Mr Roper referred me to decisions of this court in DPP v Jakovac[3] and DPP v Kilpatrick[4], albeit he accepted that there are features in those two cases that may be distinguished from the case before me. Mr Roper submitted that car-jacking is a serious offence which ordinarily warranted a term of imprisonment. However, he conceded that if I was satisfied that an exception to section 5(2H) was made out then a community correction order was open.
[3][2020] VCC 153
[4][2020] VCC 379
63 At the conclusion of the plea hearing, without having decided upon penalty or whether an exception was made out, I nevertheless had you assessed for a community correction order in the event I considered it to be an appropriate disposition. An assessment outcome report dated 29 May 2020 has been provided to the court finding you suitable to be placed on a community correction order should I consider that appropriate.
Conclusion
64 I turn now to the relevant sentencing considerations and first, to whether an exception to section 5(2H) has been established on the balance of probabilities.
65 In my opinion, at the time of the commission of the offence of car-jacking you had impaired mental functioning that was causally linked to the commission of the offence and which operated to reduce substantially your culpability. I come to this conclusion based on the expert psychiatric opinion that:
i. you had a well-established serious mental disorder, namely schizophrenia;
ii. it is highly probable that you were in a psychotic state at the time of offending that was the result of your schizophrenia, and not caused solely by your drug taking, although your drug taking may well have aggravated that psychotic state;
iii. it is probable that there is a causal link between your impaired mental functioning and the offending; and
iv. it is highly likely that you were experiencing perceptual distortion and disruption of appropriate emotional expression at the time of the offending.
66 Accordingly, I find that the exception under s. 5(2H)(c)(i) is proven on the balance of probabilities.
67 I do not accept the prosecution submission that your lack of memory as to the offending rendered Dr Walton’s opinions uncertain or speculative. Dr Walton was clear in his opinions.
68 Having reached that conclusion, it is not necessary for me to decide the issue of whether I could nevertheless have imposed a gaol sentence on the car-jacking charge and a community correction order on one or both of the summary charges.
69 The purposes for which a court may impose a sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing I must also have regard to the factors set out in s. 5(2) of the Sentencing Act 1991.
70 You have pleaded guilty to each of the offences and I find that your pleas of guilty were entered at a relatively early stage. Your pleas have spared the victim and other witnesses the need to give evidence and have spared the court and the community the time and expense of a trial. Further, your pleas of guilty are an acceptance of your responsibility for your wrongdoing and I accept also that they are an indicator of your remorse. You are entitled to a real measure of leniency by reason of your pleas of guilty.
71 In sentencing you I am required to impose a sentence that will not only serve to deter you from further offending but also deter others who are minded to engage in similar offending behaviour. However, because of your psychiatric illness, consistent with legal authority, the need for general and specific deterrence must be sensibly moderated.
72 The sentence to be imposed must also manifest the Court’s denunciation of the conduct in which you engaged. It was clearly outrageous behaviour although, again, it must be remembered that you were psychotic as a result of your schizophrenia at the time you offended.
73 Your psychiatric illness remained undiagnosed until recent times. Whilst in custody on remand you spent a significant period of time in the psychiatric unit at Ravenhall prison and some six months at Thomas Embling hospital. You were treated with antipsychotic medication which you continue to take. Dr Walton commented that you remain insightful into the nature of your diagnosis and the necessity for ongoing treatment as well as the hazardous nature of amphetamine abuse. You have detoxified from methyl amphetamine use and I accept that you have not used any illicit drug since you were incarcerated on the 9th January 2019.
74 Your counsel submitted that your prospects for rehabilitation are very good. I accept that you have shown very good progress since you were placed on bail.
75 You have also responded well to the Community Correction Order imposed earlier this year. You have complied with all that has been required of you and have demonstrated a positive commitment to the order.
76 You are still relatively young and not entrenched in a criminal lifestyle. You enjoy the support of your family, and importantly, now that you have been formally diagnosed with a mental illness, you are being appropriately treated. Significantly, your conduct since release does demonstrate that you have developed insight into that diagnosis and the need for ongoing treatment.
77 Provided you continue to receive appropriate counselling, and continue to comply with the medication regime, I consider that you have good prospects for rehabilitation.
78 As earlier stated, you have been on bail with conditions of residence, a geographical restriction and a daily 12 hour curfew since December 2019. You have complied with all conditions of bail. The residential, geographical and curfew conditions have operated as a curtailment of your liberty since that time and I take that fact into account in the sentence to be imposed.
79 I have read and had regard to the sentencing precedents referred to by Mr Roper. I have also considered the Court of Appeal decisions of Leishman v R[5] and Teryaki v R[6]. I did not find any of the cases of much assistance given the distinguishing features of those cases to the case before me.
[5]Leishman v R [2019] VSCA 270
[6]Teryaki v R [2019] VSCA 120
80 Your offending was clearly serious. The offence of car-jacking carries a maximum penalty of 15 years’ imprisonment. An innocent person was subjected to a terrifying ordeal in which she suffered physical injury as well as significant psychological trauma. Her impact statement which was read to the court spoke eloquently of the emotional turmoil caused by your conduct. Further, you drove dangerously causing a collision in which both vehicles were significantly damaged and you failed to stop to render assistance. You driving caused danger to other road users.
81 Although by your own admission you had been consuming methyl amphetamine, as earlier stated, I accept that at the time you committed these offences you were in a psychotic state resulting primarily from your schizophrenia. Accordingly, I find that your level of culpability for the offending was substantially reduced by reason of your mental illness.
82 Further, your offending was not pre-meditated. The car-jacking occurred on the spur of the moment and was of relatively short duration. Your conduct was clearly unsophisticated.
83 In sentencing you I am very mindful of your progress since your diagnosis and the institution of an appropriate medication regime. I consider that the protection of the community may best lie in promoting your continued rehabilitation.
84 In Boulton v R[7] the Court of Appeal stated that a community correction order “offers the sentencing court the best opportunity to promote simultaneously, the best interests of the community and the best interests of the offender ...’[8] The Court further stated “it follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment … The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.”[9]
[7]Boulton and Ors v R [2014] VSCA 342
[8] Ibid at [115]
[9] Ibid at [131]
85 I consider that in all the circumstances of your case, it is appropriate to sentence you for the car-jacking charge to both a term of imprisonment and a community correction order. Despite your mental illness, the seriousness of the offence as well as your history of offending, require the imposition of a term of imprisonment and a Community Correction Order. Your pre-sentence detention is 293 days meaning you have already served close to 10 months imprisonment. That period, coupled with a Community Correction Order is, in my opinion, sufficient to meet each of the sentencing objectives.
86 The sentence I propose on charge one is a term of imprisonment of 293 days and a 24 month Community Correction Order. On charges two and three I propose a 24 month Community Correction Order. Each order will have conditions with which you will need to comply. Please listen carefully to the proposed conditions. They are as follows:
You must not commit another offence for which you could be imprisoned during the time that the order is in force;
You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011; this means you must not use, be under the influence of, or possess drugs or alcohol when attending a community correction centre.
You must report to, and receive visits from, the Secretary (or his or her delegate);
You must report to the Community Corrections Centre within two clear working days of the order starting;
You must let a community corrections officer know within two clear working days of you changing your address or job;
You must not leave Victoria without first getting permission to do so from the Secretary (or delegate);
You must obey all lawful instructions from and directions of the Secretary (or delegate).
The conditions that apply in addition to the mandatory terms listed are:-
Supervision
You must be under the supervision of a Community Corrections Officer for a period of 2 Year(s).
Treatment and Rehabilitation
You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager.
You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
Judicial Monitoring
You must re-appear at court for a review of your compliance with the order as directed by the Court.
You must attend for review on 10th September 2020 at 09:30 AM at Melbourne County Court.
87 Mr Bromley, I am only able to make the proposed Community Correction Orders if you consent to those orders in the terms I just set out. Before I seek your consent you should understand that if you breach the orders and are brought before the court you may be punished for contravening the orders and I may deal with you in respect of the original offences to which you pleaded guilty.
Sentence
88 On charge one, car-jacking, you are convicted and sentenced to a term of imprisonment of 293 days and a Community Correction Order for a period of 24 months commencing today on the conditions that I just read out to you.
89 On summary charges six and seven you are convicted and sentenced to a Community Correction Order for a period of 24 months commencing today on the same conditions as those on charge one and which I read out to you. The Order imposed on charges six and seven are to be served concurrently with the Order imposed on charge one.
90 Pursuant to section 18 Sentencing Act 1991 I reckon that the period of imprisonment already served under the sentence is 293 days.
91 Pursuant to section 6 AAA Sentencing Act 1991 but for your plea of guilty the sentence I would have imposed on charge one is one of 14 months imprisonment and a 2 ½ year Community Correction Order on the same terms.
92 Pursuant to section 65 Road Safety Act 1986 I am also required to cancel any licenses held by you and disqualify you for a minimum period of six months. I do not see any reason, in all of the circumstances of the case, including your hope to obtain employment, to go beyond the mandatory minimum period of disqualification. Accordingly, all licenses held by you are cancelled and you are disqualified from driving for a period of six months from today.
93 A disposal order is sought in relation to certain clothing that was seized from you. The order was not opposed by your counsel and accordingly I will make the disposal order sought.
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