Director of Public Prosecutions v Brown

[2017] VCC 1627

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02009

DIRECTOR OF PUBLIC PROSECUTIONS

v

AMMI BROWN

---

JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June, 11 August and 23 August 2017 respectively
DATE OF SENTENCE:	8 November 2017
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2017] VCC 1627

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Armed robbery – Attempted theft – Summary charges including Unlawful assault, Possess controlled weapon without exemption and Commit indictable offence whilst on bail  – Long history of mental illness – Confirmed diagnosis of paranoid schizophrenia -  Defence of mental impairment not supported by professional opinion – Long history of drug and alcohol abuse

Sentence:Convicted and sentenced to Total Effective Sentence of 2 years and 4 months’ imprisonment with a Non-parole period of 14 months’ imprisonment – Pre-Sentence Detention of 426 days declared - s. 6 AAA declaration – Ancillary order - Disposal order

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	Solicitor for Public Prosecution
For the Accused	Mr R. de Kretser	James Dowsley & Associates

Pages 1 - 10

 

 

HER HONOUR: 

1Ammi Brown, you have pleaded guilty to one charge of armed robbery, which has a maximum penalty of 25 years’ imprisonment and one charge of attempted theft, which has a maximum penalty of five years’ imprisonment.

2You have also pleaded guilty to the summary offence of committing an indictable offence whilst on bail, which has a maximum penalty of three months’ imprisonment.

3I must take into account the maximum penalties when sentencing you.

4I was told by the Mr Roper, who appeared for the prosecution, that on Monday 22 August last year, at about 8.25 am, you held a meat cleaver to the stomach of a 44 year old woman at an ATM in Richmond as she was withdrawing money from the machine.  You said to her, "Give me the money", several times while pressing the meat cleaver to her stomach.  You then reached over and took her debit card from the machine, leaving the money behind.  This is the basis for Charge 1, armed robbery.

5The victim took her cash and called 000.

6Your offending was captured on the bank’s closed circuit camera.

7You got on a tram and changed from the cargo pants you were wearing into tights.

8You were waving the debit card around and asked if someone could take you to a Commonwealth ATM.  You then got off the tram a little further along in Victoria Street and went into the foyer of a Commonwealth Bank in Smith Street, Collingwood.  At 8.43 am, you tried to withdraw $400, but this was declined. This is the basis for Charge 2, attempted theft.

9It appears that you then left the meat cleaver on a shelf at a nearby shop.

10You were arrested as you left the store.

11You were assessed by a doctor, who said that you were unfit to be interviewed by the police.

12At the time that you committed the offences for which I now sentence you, you were on bail for offences of recklessly causing injury, theft, two charges of assaulting police and three charges of committing an indictable offence while on bail.

13The armed robbery which you committed against the victim in this matter was nasty.  You actually held a weapon to the victim’s stomach, which must have caused her a great deal of fear.  She was alone and in a vulnerable position.  Although I am very concerned that you had a weapon with you when you committed this offence, in view of your particular circumstances, I am not satisfied beyond reasonable doubt that you had pre-planned the offence. However, afterwards, you changed your clothes, which your counsel accepted was an attempt to avoid being identified.

14Having said all of this, your behaviour on the day had a good degree of illogicality about it-  Rather than take the cash from the victim, you took her card, which you could not use.  You made no attempt to conceal your offending, which was committed in broad daylight.  Your conduct on the tram and in the store was also somewhat unusual and self-defeating, as you drew attention to yourself, which led to police arresting you quite quickly.

15I understand that you were affected by drugs at the time, but that you were also affected by some serious long-term mental health issues which, in combination, impacted upon your judgement and ability to make calm and rational decisions. This was especially so, as you were not taking your prescribed medication at the time.

16The reports which were tendered on your behalf show that you have been diagnosed with paranoid schizophrenia, post-traumatic stress disorder, alcohol dependence, opiate dependence and methamphetamine dependence, as well as mild acquired brain injury.  The report that I received from forensic psychiatrist, Dr Ria Zergiotis, dated 8 August this year, stated that you have
a "well established history of chronic paranoid schizophrenia, anti-social personality disorder and a long history of poly-substance abuse.  She also said that you have past diagnoses of post-traumatic stress disorder and borderline personality disorder.” She said: "Her complex mental health history has been marked by non-compliance with treatment, poor insight, homelessness and forensic issues."  Later in the report, Dr Zergiotis said, "The cognitive difficulties that she has developed are likely to have been multifactorial with her traumatic experiences, chronic substance use and progressive psychosis, all impacting on her cognition since her childhood."

17In view of the opinions of Dr Zimmerman and Dr Fitzpatrick as to the impact of your impairment of mental function upon you at the time that you committed the offences for which I now sentence you and also because of your deprived background, I have fairly substantially reduced your moral culpability.  In view of your mental health issues, I have fairly substantially reduced the weight that would otherwise attach to specific and general deterrence- without such reductions, the weight which would attach to each of these principles would be strong.

18However, I am very concerned for the protection of the community, so I must give strong weight to this principle.  

19You have been in custody since 22 August last year.

20A defence of mental impairment was explored, but this was not supported by professional opinion.

21In the circumstances, I accept that you have pleaded guilty at the first reasonable opportunity, which entitles you to a significant discount in the sentence that you would otherwise receive.  This is because you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of running contested proceedings.

22You have a relevant and fairly lengthy criminal history, dating back to July 2007, although you do not have a prior conviction for armed robbery as such.  You have prior convictions for aggravated burglary, on the basis of a person being present and on the basis of having a weapon with you, as well as prior matters for various types of assault and the use of a weapon.  I note that you received an order in 2007 requiring you to be detained and treated at St Vincent’s hospital as an involuntary patient.  Since then, you have committed further offences and received various sentences, including a community based order, which you breached and sentences of imprisonment.  Your prior convictions, together with your mental health and substance abuse issues, as well as your offending on the occasion before me, do not give me a great deal of confidence for your prospects of rehabilitation, which I find are rather poor.

23The best way to maximise your chances of rehabilitation is to be properly treated and supervised in a mental health facility, in my view.  This was what your counsel asked for on your behalf.  Mr de Kretser gave an excellent plea on your behalf and you should be grateful for all of the very hard work he has done to represent you on the various occasions that he has.  He said at the original plea hearing, that the best that you have done in the past was following your time at St Vincent's in 2007.  Following this time, you did not commit an offence for about two and a half years, which is the greatest gap in offending in your record.

24You have been drug-free since being in custody on this occasion for over 12 months now.  I have also factored in that your time in custody has been harder than for other prisoners because of your mental health difficulties and the harshness of the conditions in gaol in your case.  These include your placement in the Marmak unit, cessation of support from the Aboriginal liaison officer for a time, albeit that this was due to your behaviour.  You also witnessed the aftermath of a suicide of a prisoner in a neighbouring cell-  This was especially difficult for you, in view of your own history of self-harm issues.

25I take into account your background, which is an extremely sad and deprived one.

26You have two sisters and one brother who each have different mothers.  You share the same father.  You have had little to do with your siblings over the years.  When you were two years old, you were removed from your mother’s care, as she had been charged with the death of a violent partner.  You were looked after by your paternal grandmother for various periods and were also placed in various foster homes, where you reported having been subjected to physical and verbal abuse.  You missed a great deal of school, as this was not encouraged, and you found school very hard because of this, and because of learning difficulties.

27When you were eight years old, you first became involved with mental health services.

28From 13 to 14 years of age, you attended Worawa Aboriginal College in Healesville.

29From ages 14 to 16, you reported being sexually abused by various drunken men at parties that you attended and you were repeatedly raped by a male who was 25 years older than you.  This person also introduced you to heroin. Unfortunately, but understandably, you dropped out of school.

30Soon after the sexual abuse began, you became heavily dependent on drugs, including heroin and alcohol.  You were homeless for various periods of time and you engaged in prostitution in order to sustain yourself.

31You had been working with SECASA and had spoken to the SOCIT unit in 2016 about making a complaint in respect of one of your alleged sexual abuse perpetrators, but you were remanded in custody and have not been able to pursue this matter.  I was told by Mr de Kretser that you were in a stressed state at the time you committed the offences for which I now sentence you because of the prospect of pursuing this matter weighing on your mind.

32You first appeared in the Children’s Court in January 2003 for theft, assault in company and other offences.  In 2005, you met your current partner, Michael Berryman.  I was told that he has his own issues, but that as at the plea hearing, he was doing well, as he was on the methadone program and had obtained
a full-time job as a bricklayer.  He had been visiting you while you have been in custody.  He behaved very poorly in court at one of the hearings before me, which is no reflection on you, but it may well be that he is not a good influence on you, Ms Brown.

33In 2005, you were admitted to Inner West psychiatric unit and you have apparently been an inpatient at a psychiatric facility on numerous occasions since that time.

34In 2010, your father died of a heart attack

35In that same year, you were sentenced to 390 days' imprisonment, with
a non-parole period of five months.  You breached parole a number of times and your parole was revoked.

36In 2012, you gave birth to your son, Tyrone.  However, he was removed from your care soon after he was born.  I was told he has been visiting you in gaol in recent times and there are proceedings on foot for your maternal grandparents to take care of him.  You are working on reconnecting with your son who, I was told, is in the care of the Victorian Aboriginal Child Care Agency.

37In 2015, your mother died of a heroin overdose.  Sadly, you were in gaol at this time and were unable to properly mourn her loss.

38As I have previously said, I have taken into account your background in sentencing you.

39I accept that imprisonment has been and will be more difficult for you than for other prisoners who do not suffer from your mental health problems and that further imprisonment is likely to impact upon your mental health in a negative fashion.  I have taken this into account.

40At the plea hearing, I made the necessary orders to obtain a report, with a view to placing you on a court secure treatment order.  I received that report, which did not recommend you as being suitable for that order.  Dr Zergiotis said,

"She has spent most of her adult life in prison and has a history of                   episodes of violence, both in the community and in the prison and   hospital settings.  Ms Brown has also been diagnosed with a mild   intellectual disability and given her complex mental health history                    and substance abuse history, has been assessed as requiring a high        level of support in the community to reduce recidivism."

41The report also stated that you are receiving some one-on-one psychiatric care in prison from Forensicare and that your chronic paranoid schizophrenia is at
a good level of remission.  Dr Zergiotis said that you are coping in the main compound of Dame Phyllis Frost.  She said that you will need continued assertive management of your schizophrenia and that you will most likely continue to require involuntary psychiatric treatment, both in the community and the inpatient setting.  She said that you are at relatively high risk of future violence in the long term, but that there is some moderation of this high risk when your psychiatric and substance use issues improve during periods of stability.  She said that treating you involved a balance between optimising your well-being, with the risk you pose at times to co-patients and staff at the treating facilities.  Dr Zergiotis expressed some concern about placing you at Thomas Embling for an extended period there and referred to the fact that if you became acutely unwell in prison, you could be transferred to Thomas Embling, or if in the community, you could be made an involuntary patient, if needs be.

42I understand from you, that you have been on the methadone program while on remand and that you have undertaken a number of courses, which is to your credit.  You have been able to see one of the aunties whilst in custody and the Aboriginal liaison officer.

43My dilemma is that if you become unwell while in the community, you may well turn to violence once more, especially if you are abusing drugs again.  However, as your counsel pointed out, I am not able to warehouse you.  I must impose an appropriate sentence in all of the relevant circumstances, giving proper weight to relevant sentencing principles.

44Dr Zergiotis said that your main clinical factor at present is to address your significant drug abuse issues and your long-standing ambivalence to abstinence or harm minimisation strategies.  She recommended that you be admitted to a drug rehabilitation facility as part of a graduated discharge plan to the community.  I am unsure as to the mechanism that Dr Zergiotis had in mind to achieve this.  She also said that any community based disposition ought be accompanied with a support plan from Disability Support Services.

45I have heard further submissions from your counsel and the prosecution. I allowed a further adjournment to enable you to be assessed by Odyssey House, without giving any indication as to what I might do, even if you were deemed acceptable.  Unfortunately, you were not deemed acceptable by Odyssey House and the officer there recommended an intensive mental health rehabilitation program.

46At your counsel's request, I further adjourned the matter to explore the possibility of you receiving a residential treatment order, in view of your intellectual disability.  Unfortunately you were found to be unsuitable because of the current environment in the residential facility being inappropriate for you, as all of the other residents are male who have committed offences of a nature which might well place you at risk of being harmed

47I must say that your case, like many others, raises issues of inadequate resources being available for those suffering from mental illness and intellectual disabilities in the context of criminal offending, which so often goes hand in hand with drug abuse.  Much more must be done, in my view, to assist and properly monitor people in your position and in doing so, to protect the community in the longer term.  Simply locking people up might afford some protection for a time, might satisfy outcries from the ill-informed or those seeking power or sensational news stories, but may well exacerbate symptoms in the long term, which is not in anyone’s interests.

48However, until there are more resources and a more sophisticated and enlightened approach to these issues, I must impose an appropriate sentence with what is available to me.  In my view, it is appropriate to impose a term of imprisonment, with a non-parole period, in order to adequately address all relevant sentencing principles, in circumstances where both a court secure treatment order and a residential treatment order  are not recommended and also in circumstances where I cannot do justice to all relevant sentencing principles by virtue of a period of imprisonment, in combination with
a community corrections order.  In all of the circumstances of your case, I regard imprisonment as the only realistic option, but I make it clear that I have given reduced weight to specific and general deterrence, punishment and denunciation because of your mental health issues and I have also made allowances in the ways that I have pointed out in these sentencing remarks in respect of your background and the quality of your time in prison being a harsh environment for you, in particular.  

49Would you please stand up, Ms Brown.

50You are convicted of each of the offences, including the summary offence.

51I make a disposal order in respect of the weapon that you used, which is not opposed.

52You are sentenced to the following periods of imprisonment:

53Charge 1, two years, three months;

54Charge 2, six months;

55The summary charge, two months.

56I direct that one month from the sentence for the summary offence be served cumulatively with the sentence on Charge 1, but that otherwise all sentences are to be served concurrently with each other.

57This produces a total effective sentence of two years, four months and I direct that you serve 14 months before becoming eligible for parole.

58I declare that you have already served 426 days by way of pre-sentence detention, which will be deducted from this sentence, as you have already served that period.

59If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three and a half years’ imprisonment, with a non-parole period of two and a half years.

60If you just take a seat for a moment please, Ms Brown. 

61Is there anything arising from those sentencing remarks?

62COUNSEL:  No, Your Honour.

63MR ROPER:  There is a draft order for Your Honour's signature. 

64HER HONOUR:  Sorry, the disposal - - -

65MR ROPER:  Disposal order, Your Honour.

66HER HONOUR:  I have already signed copies of those.

67MR ROPER:  Thank you, Your Honour.

68HER HONOUR:  Yes.  Mr de Krester?

69MR DE KRETSER:  No, Your Honour, I think I've - everything's been covered in relation to that, thank you.

70HER HONOUR:  All right, yes.  Thank you. 

71If there is nothing further, I will have Ms Brown removed, unless you want to have a brief word with her whilst I remain on the Bench.

72MR DE KRETSER:  Yes, Your Honour, if I can.  I am just doing the maths, Your Honour.  So the non-parole period would be about now, wouldn't it, if it's 365 plus two months, give or take a day or two, Your Honour?  I will just explain that to her very briefly, if I may?  Thank you, Your Honour, for that time.

73HER HONOUR:  No, that is all right.  All right, yes, thank you, Ms Brown can be removed.

74MR DE KRETSER:  Thank you, Your Honour.

75OFFENDER:  Thank you, Your Honour. 

76HER HONOUR:  We will now adjourn.

- - -