Director of Public Prosecutions v Cadby
[2023] VCC 240
•21 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
Case No. CR-21-01877
Indictment No. M104497697.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN CADBY |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 25 November 2022 and 2 February 2023 | |
DATE OF SENTENCE: | 21 February 2023 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Cadby | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 240 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of robbery – one uplifted summary charge matter – committing an indictable offence, namely robbery, whilst on bail – pleas of guilty
Legislation Cited: Crimes Act 1958, s75; Criminal Procedure Act 2009, s145; Bail Act 1977, s30B; Sentencing Act 1991 (Vic), s44(1)
Cases Cited:Phillips v R [2012] VSCA 140; Worboyes v R [2021] VSCA 169; R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269; Bugmy v R (2013) 249 CLR 571
Sentence: Total effective sentence of thirteen months imprisonment;77 days of pre-sentence to be administratively deducted; 18 month Community Correction Order; various fines; 6AAA declaration- eighteen months imprisonment with a non-parole period of twelve months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M. Zammit | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr C. Edwards | Emily Metcalf & Co |
HIS HONOUR:
1Steven Cadby, on 25 November 2022, you pleaded guilty to the following charge on Indictment No. M1044497697.1:
Charge 1 – that you, at Reservoir in Victoria on 28 February 2021, robbed Ronald Davidson of an Apple iPhone, $50 cash and three watches.
The offence of robbery is contrary to s75 of Crimes Act 1958 and carries a maximum penalty of 15 years' imprisonment.
2The plea hearing was then adjourned to 2 February 2023, as those acting for you had only very recently received a psychological report and those acting for the Director of Public Prosecutions wished to peruse such report and evaluate it.
3Two summary charges – Charges 4 and 6 – were transferred to this court from the Magistrates' Court pursuant to s145 of the Criminal Procedure Act 2009. Charge 4 was subsequently withdrawn.
4On 2 February 2023, you agreed to have Charge 6 heard before this court and pleaded guilty to that uplifted charge.
5Charge 6 alleges that you, at Reservoir in Victoria on Sunday, 28 February 2021, did commit an indictable offence, namely robbery, whilst on bail. Such offence is contrary to s30B of the Bail Act 1977 and carries a maximum penalty of three months' imprisonment.
The circumstances of the offending
6Counsel for the prosecution tendered the following material:
(a)A document headed, “Prosecution Opening for Plea”, dated 9 May 2022 (Exhibit 1);
(b)The Victim Impact Statement of Ronald Davidson (Exhibit 2). It is to be noted that Mr Davidson did not want his statement read in Court;
(c)Criminal record of the accused (Exhibit 3);
(d)Community Correction Order Breach Report, dated 18 July 2022 (Exhibit 4);
(e)A document headed, 'Prosecution Submissions on Sentence,' dated 1 February 2023 (Exhibit 5).
7In particular, I initially refer to Exhibit 1 and note the following important matters:
· You are presently 29 years old, having been born in July 1993. At the time of the subject offending you were twenty-seven years old.
· The complainant in this matter is Ronald Davidson ('the complainant'), and he was living in a house situated in Summerhill Road, Reservoir.
· The complainant was known by the nickname “Rusty” and was 54 years old at the time of the offending. You had known the complainant for some 10 to 15 years, and had attended his address on prior occasions.
· Sean Keenan, was the complainant’s next door neighbour, and knew him well enough to recognise him by sight.
· At around 6.00pm on 28 February 2021, you used a taxi to attend three addresses in the Reservoir area, before directing the taxi to attend Summerhill Road in Reservoir. After the taxi was parked outside, you got out of the taxi and walked to the complainant's house. The complainant was standing on his doorstep with the door open.
· You told the complainant that he had an item that belonged to Mr Keenan. The complainant then told you to wait a minute and went inside to get a drink. You asked him if you could have a “bong”, to which the complainant said “yes”, after which you walked into the complainant's loungeroom.
· After the complainant returned with a drink you went back to the loungeroom, drinking a Crown lager beer.
· The complainant then saw you standing in his loungeroom when you said, “I want everything”, to which the complainant replied, “I’ve got nothin’ mate. I’m broke”, to which you said, “I'm sorry”.
· At that time, you began fighting with the complainant in the loungeroom, with the complainant trying to get away from you, but you were between him and the front door. You hit the complainant in the face.
· The complainant eventually managed to get to his front door and went outside, yelling to Mr Keenan, “[c]all the coppers”.
· At that time you were still in the complainant's house.
· You walked out of the complainant’s house about five minutes later, carrying the complainant's black satchel bag and his mobile phone, together with the black carry bag that you had with you when you arrived.
· The complainant told you that he wanted his phone and bag back and tried to stop you at the front gate. Again, you both started fighting, with the complainant trying to get his items from you. The complainant managed to get his black bag off you, but not his phone. (Charge 1 – robbery).
· The complainant fell over and you ran away down the street and into the taxi that had been waiting for you.
· On checking his belongings, the complainant noted that his wallet containing cash (said to be $50) and three watches, were missing from his property.
· The complainant was conveyed by ambulance to the Austin Hospital for treatment of his injuries and, as a result of the assault by you, the complainant sustained a fracture to his left cheek bone, requiring surgery on 15 March 2021, and pain in his right hand.
· On 9 March 2021, police attended your premises and when you saw the police you ran towards a neighbouring fence line and jumped a fence into the rear yard of another property. You were eventually located.
· A search of your address was then conducted, and during the search, police located a number of items, including a black-coloured bag and the complainant's mobile phone.
· You were transported to the Mill Park Police Station, before being taken to the Northern Hospital for some pre-existing injuries causing you pain. After being discharged from hospital the next day, you participated in a record of interview with police and, among other things, stated:
ꟷ After having a few beers, you went to see Rusty, who was a family friend and an alcoholic, who had already had a couple of beers before you had arrived.
ꟷ Not long after you arrived, Rusty started ranting and getting in your face, speaking into your face, after which you told Rusty to, 'piss off' and 'stand back.' Rusty continued talking and you then stood and told Rusty again to “piss off” and pushed back.
ꟷ Rusty then punched you, so you punched him back, after which you went to get your “stuff”, when the complainant pushed you, before running out screaming “[g], gun, gun”.
ꟷ You than walked outside with your 'stuff' and your beer and said, '[f]uck ya' or similar, and that was it.
ꟷ Then you walked to the complainant's house (Q61 and Q65).
ꟷ The complainant hit you first and was making up bullshit (Q 71-72).
ꟷ When it was put to you that you stole an iPhone, $50 and three watches from the complainant’s house, you said, '[i]t's all a lie.' (Q87).
ꟷ You denied jumping into a taxi after the event (Q90-93).
ꟷ That the complainant was a liar (Q95) and an old drunk (Q98).
ꟷ Admitted that it was you in the taxi when shown the still images from inside the taxi (Q142).
ꟷ You took a bag with you, as you were planning to get a bag of cannabis from the complainant (Q179-186).
ꟷ Denied stealing anything from the complainant and stated that he is a family friend and you have known him for years (Q237).
ꟷ When told that one of the mobile phones found in your bags belonged to the complainant, you said you never intended to steal anything (Q244) and that the “phone’s obviously fallen out of his pocket or whatever into my bag. Like, I didn’t know anything – I didn’t intentionally steal anything from him. He’s a mate, I went to have a beer with him, that’s all there is to it”. (Q253).
8You were remanded in custody after your arrest on this matter (and other matters) on 9 March 2021, after which the following occurred:
(a)You were then granted bail on 26 July 2021; having served 139 days in detention at that time;
(b)On 6 December 2021, you were again remanded in custody for other matters;
(c)On 4 January 2022, at the Heidelberg Magistrates’ Court, you were sentenced on various summary matters to an aggregate sentence of 168 days’ imprisonment (declared as pre-sentence detention), together with an eighteen-month Community Correction Order;
(d)On 5 January 2022, an application was made to revoke bail on this matter;
(e)On 17 January 2022, bail was again granted to you and it was during your time on bail that you committed the robbery.
9The Court was informed on 2 February 2023, that the parties agreed that you had served fifty-eight days' pre-sentence detention, up to, but not including, 2 February 2023.
10A committal hearing was undertaken on 31 August 2021, after which you were committed on all charges as they then stood. On 10 February 2022 at a directions hearing, the matter was resolved and listed for a plea in the County Court.
Victim Impact Statement
11The complainant declared a Victim Impact Statement on 23 May 2022 (Exhibit 2) and, as already recorded, did not want that statement read aloud in Court.
12In that statement, the complainant described how he no longer feels safe outside his property and has even ceased taking his dog for a walk, as it is near where you live. Furthermore, he sometimes gets called names by your friends who live in the area. After the subject offending, the complainant describes he went on a three-to-four-month drinking binge, with his health definitely worsening. He has difficulty sleeping and cannot play cricket anymore, or perform gardening which, hitherto, he performed to deal with “stress”.
13In particular, the complainant described how he suffered a “broken jaw and hand and other bones in [his] face are broken”. He underwent facial surgery at the Austin Hospital, which involved placing a screw into his jaw, and later attended outpatient appointments for two or three months following such surgery. He still feels pain in that area and it is particularly sore when he eats.
14Furthermore, his right hand was injured, causing him not to be able to write like he used to, and it is painful to use or straighten his hand. He also states that, your stealing of his phone resulted in him not being informed about the death of an uncle, with the consequence that he did not attend a funeral.
Your criminal record
15Counsel for the prosecution tendered your criminal record, dated 1 February 2023 (Exhibit 3). Such record commences on 4 January 2022 and extends through to 21 December 2022.
16In particular, I note the following:
(a)On 4 January 2022, at the Heidelberg Magistrates' Court, you were found guilty of various offences involving the theft of a motor vehicle, possession of various drugs, dealing with property suspected of being the proceeds of crime and handling stolen goods, and possessing weapons without exemption or approval, and possession of a controlled weapon without excuse.
You were found guilty of each of these offences and sentenced to an aggregate 168 days' imprisonment, which was your pre-sentence detention. You were also sentenced to a Community Correction Order for eighteen months and, beyond the core conditions, you were required to perform unpaid community work for 100 hours, be supervised and receive treatment and rehabilitation for drug abuse, and/or dependency as directed, and also be assessed in relation to mental health and to pursue treatment as directed.
(b)On 10 February 2022, at the Frankston Magistrates' Court, you were convicted of theft and committing an indictable offence while on bail, and sentenced to an aggregate fourteen days, with one day in custody being reckoned as a period of imprisonment already served under that sentence;
(c)On 12 April 2022, at the Shepparton Magistrates' Court, you were convicted of theft, committing an indictable offence while on bail, possessing cannabis, further thefts of a motor vehicle, and a further charge of committing an indictable offence while on bail. Furthermore, you were charged with breaching the Community Correction Order made on 4 January 2022. You were also convicted of burglary on that day. Ultimately, you were sentenced to a further Community Correction Order which commenced on 14 April 2022, and beyond the core conditions, you were required to perform 100 hours of unpaid community work, be under supervision and undergo assessment and treatment for drug dependency;
(d)On 12 December 2022, at the Heidelberg Magistrates’ Court, you were convicted on failing to stop a vehicle on police direction, unlicensed driving, several charges of receiving or disposing of stolen goods and obtaining property by deception, attempting to commit an indictable offence while on bail, tampering with a motor vehicle, criminal damage, driving while disqualified, theft of a motor vehicle, careless driving, and possession of a drug of dependence (not named).
On that day, it was also proven that you contravened the Community Correction Order made on 4 January 2022. Such charge was proven, resulting in the Community Correction Order being varied to extend to 11 October 2023, and for you to perform 100 hours unpaid community work, and be under the supervision of Corrections.
Your personal circumstances and background
17Your counsel tendered the following material:
(a)A document headed 'Outline of Defence Submissions,' dated 22 November 2022, together with an Addendum to that document, dated 31 January 2023, which was admitted and marked as exhibit “A”;
(b)A report from the clinical psychologist, Gina Cidoni, dated 22 November 2022.
18Partly based on some of the documents which were tendered on your behalf, and partly based on various submissions made to me by your counsel, I note the following:
· You were born in Southport and raised in Reservoir. Your biological father died before you were born and your mother re-partnered with your stepfather when you were aged about two.
· You identify as Aboriginal with Yorta Yorta heritage – however, you do not have many links with your culture or your community.
· You reported to the psychologist, Ms Cidoni, that your mother suffered from drug and alcohol problems, and was living on her own when you were born. After your birth, your mother moved in with your maternal grandparents when you were about one.
· Your counsel submitted, no doubt on your instructions, that you were exposed to heroin in utero, which led to you being placed on methadone as a child.
· You told Ms Cidoni that you were close to your mother despite her limitations. Your mother was living at Heidelberg when she died from cirrhosis of the liver when you were aged seventeen.
· You had a strong relationship with your stepfather and reported that he was like a “dad”. He also died of drug and alcohol problems when you were aged eighteen.
· You have two maternal younger brothers and also an older maternal half-brother, aged thirty-nine, from your mother's previous relationship. You also have a maternal half-sister, currently living with your grandmother, and you reported that you are close to her and in contact with her daily.
· You lived with your grandparents from the age of three to 18, and note they also had severe drug and alcohol issues. Your grandfather died about two years ago.
· You attended the Preston North East Primary School, where you completed Prep to Grade 6, and then completed Years 7 and 8 at Reservoir High School, but was moved to an alternative school, the Pavilion, for two years, where you passed Year 10.
· You reported having learning problems from your adolescence and your education levels were basic, although you asserted to Ms Cidoni that you can read and write to a satisfactory level.
· You commenced a cabinetmaker's apprenticeship but went on to be a bricklayer's labourer. When you were aged twenty-one, you were doing some plumbing work with a roofing company and, indeed, completed your plumbing apprenticeship over five years. You continued to work as a plumber until drug use interfered. You hope to return to plumbing work upon your release. In this respect, your counsel informed the Court that a former employer, Mr William Nolan, would employ you as a roof plumber, as he considered you to be a very good worker.
· You met your former wife, Keely, at age 16 and, together, you bought a house in Bundoora when you were aged 23. You married Keely when you were 24, and that relationship has produced two daughters who are now aged five and three. Your family lived in the Bundoora house until you were twenty-six years old, when you separated from Keely because of your drug problems. You were legally divorced when you were twenty-seven.
· You were homeless after your separation from Keely, with Keely keeping the Bundoora family home and maintaining custody of your children. Keely does not let you see the children due to your drug use and offending behaviour.
· After your separation, you commenced sleeping in stolen cars and “couch surfing”, but also stayed with your grandmother when you were not drug affected, which was “rarely”.
· At the time of the assessment with Ms Cidoni, you advised that you have a new partner of 12 months, who is aged 25. Your new partner lives in Hastings and you used to stay with her on and off when homeless. Your new partner has five children from a previous relationship, some of whom live with other family members. During that relationship, you informed Ms Cidoni that you were using too many drugs, but consider that your new partner is still supportive of you. Furthermore, the new partner is currently undergoing chemotherapy for breast cancer, which has stressed you, as you have already lost so many important people in your life.
· In relation to your medical and mental health history, it is noted:
ꟷ You reported you sustained a brain injury from meningitis when you were two months old and this also resulted in deafness of your right ear, which caused you to be hospitalised frequently through your childhood.
ꟷ Two years ago you fractured your back and pelvis in a motorcycle incident, when you crashed a stolen motorcycle into a tree. You were admitted to the Northern Hospital but, after 10 days, self-discharged to evade police. You did spend a period of time in a wheelchair.
ꟷ You were diagnosed with Attention Deficit Hyperactive Disorder ('ADHD') when aged nine and were prescribed medication, but do not recall taking if for long.
ꟷ You reported behavioural issues at school and was later diagnosed with Bipolar Disorder at age 22, and you also believe there was a diagnosis of Post-Traumatic Stress Disorder ('PTSD').
ꟷ You were described Olanzapine (an antipsychotic) that you take regularly, and have reported that it has a positive effect.
ꟷ You have overdosed on heroin twice, and was revived by paramedics on both occasions, and admitted it was a suicide attempt.
ꟷ You have had one psychiatric admission at the Austin Hospital at age 24 and were admitted for two days, after which you attended a counsellor on and off for three years.
ꟷ You reported traumatic childhood experiences ꟷ you witnessed your stepfather stab someone and saw your mother overdose on drugs many times.
ꟷ You have ongoing nightmares of your mother being stabbed.
ꟷ You were sexually molested by an aunt when aged 12, but declined to talk about that to Ms Cidoni.
ꟷ You denied any periods of heavy alcohol consumption.
· In relation to drug use, you informed Ms Cidoni that:
ꟷ From age 10 your mother gave you cannabis and by the age of 14 you were “addicted” to it.
ꟷ You commenced using methamphetamines at aged 16 and was addicted for two years, but stopped using that drug at age 18. You informed Ms Cidoni that your then wife Keely was very supportive of your abstinence and helped you to stop, however you did continue to use cannabis and cocaine. You estimated that you were using about 1 gram of cocaine daily.
ꟷ When you and Keely separated, your use escalated and you commenced using heroin occasionally. This continued to your arrest and incarceration. Also, you were then using GHB heavily, and would use between 20 to 40 milligrams and 'blow out' often.
ꟷ You admitted that you were using substances as a coping mechanism.
ꟷ You did attempt rehabilitation and a detoxification program in Heidelberg for two weeks when you were twenty-two and attempted, again, when you were twenty-three at Odyssey House for about five weeks.
ꟷ Currently, you are on the Methadone Program in jail and have been for two years. You commenced drug and alcohol counselling in 2021 through CISP.
The evidence of the psychologist
19Ms Cidoni interviewed and assessed you on 22 November 2022 via a video conference over two hours. In addition to the information supplied by you, she was also provided various documents by your solicitor.
20She obtained, from you, a personal and family history, education and employment history, medical history and mental health, and details of any alcohol and substance use. Furthermore, she performed a variety of tests and came to various conclusions.
21In particular, Ms Cidoni was of the opinion that you have no obvious intellectual or memory impairment, but the clinical evaluation indicated that you had the following clinical diagnoses:
(a)ADHD;
(b)PTSD;
(c)Substance Use Disorder (in enforced remission).
22I refer to the report of Ms Cidoni and, in particular, at paragraphs 89 to 99, wherein she stated:
“89.ADHD began in early childhood with report of treatment with dexamphetamine through to age 21.
90.PTSD emerged from very negative and traumatic childhood experiences and parental exposures and in view of [your] high symptom presentation, the condition had not resolved and likely intensified over time.
91.ADHD and PTSD share symptoms like difficulty concentrating, poor memory, emotional dysregulation, interrupted sleep, impulsivity and or restlessness, problems connecting with others, and substance abuse.
92. In [your] case, [your] trauma exposure included nightmares, frightening flashbacks, intrusive thoughts, avoidance, emotional dysregulation, and hypervigilance. From childhood, [you] learned to respond to stressful encounters in maladaptive ways and it likely created issues like habitual muscle tension, distress, irrational thinking, low self-worth and defensive behaviour patterns. Anger and dysregulation occur where [your] nervous system has learned to respond to stress intensely and when events trigger certain memories and feelings of powerlessness and fear, it is as though they were reoccurring.
93.When ADHD and PTSD co-exist, the research indicates that neurological functioning becomes chronically altered and dysregulated.
94. [Your] decision-making at the time of the offending would be impaired by [your] cognitive/executive limitations as described. These factors present a causal link and would have reduced [your] ability to control and understand the wrongfulness of [your] actions, to think clearly or make calm reasoned decisions, or to employ good judgements.
95.[You] would need to maintain drug abstinence where a residential program might be [your] best option with supported entry to community living and continued sobriety coaching.
96.In terms of other treatment, [you require] strategies to learn how to regulate [your] nervous system, while also processing [your] trauma. Psychostimulant medication is recommended to improve focus and regulate the nervous system and antidepressants can reduce emotional extremes, to provide optimal conditions to begin addressing [your] trauma. Somatic therapy and Eye Movement Desensitization and reprocessing (EMDR) are recommended therapies.
97. [Your] symptoms can fluctuate in intensity and frequency, however, are particularly prone to exacerbation under situations of extreme stress or in comorbidity with other mental health issues and/or substance use.
98.If [you] were imprisoned, [your] access to specific treatments becomes very limited. With [your] low impulse control, PTSD triggers and ADHD in such a setting, can lead to outbursts of intense anger, violence, sanctions, and behavioural and mental deterioration. Psychostimulant medication is not allowed in Victorian prisons, and this is a barrier as these symptoms inhibit psychotherapy.
99.These factors can also contribute to an emotional overload, which could further perpetuate maladjusted behaviours and continuation of severe detrimental effects on his social/emotional health.”
(sic)(My emphasis)
Chronology
23Counsel for the prosecution prepared a chronology setting out the events running from 25 January 2021 to 2 February 2023, the date of the plea hearing. I direct that that document be entered into evidence and marked as Exhibit 6. It is common ground that at the time of the subject offending you had no prior convictions for any offending, and indeed you only became involved with the police after the subject offending, notwithstanding that there was earlier offending as set out in the chronology. Furthermore, as the chronology also makes plain, there has been subsequent offending following the subject offending on 28 February 2021.
Matters put by your counsel in mitigation of any sentence
24Initially, your counsel described the circumstances leading up to the subject offending. In this respect, it was highlighted by your counsel that although you have been a functioning drug addict, you were able to maintain a pro‑social life, having bought a house in Bundoora when you were aged 23, marrying Keely aged 24, and then having two children from that relationship. Over that time you were working as a roof plumber.
25When that relationship deteriorated and broke down from about 2020 your drug use escalated and your mental health deteriorated, and then your offending commenced.
26As noted, you had no prior criminal convictions when the subject offending occurred, and the core of such offending has been your drug habit, which commenced as a child.
27Again, your counsel highlighted the circumstances of your upbringing where you were exposed to drugs at a very young age, and also when you observed random acts of violence – for example, witnessing your stepfather stab someone else, and your mother overdose on drugs many times.
28Your counsel also submitted that the subject offence of robbery is serious, although it was noted the value of the robbery is very low, there has been no repeat offending towards the complainant, and the offending 'appears' to be opportunistic in nature.
29In particular, your counsel submitted the following:
(a)Your plea of guilty:
Although your plea of guilty was made after a committal hearing, it was considered that such a plea had been entered at a “relatively early opportunity”, as the contested committal and ongoing negotiations saw you only being charged with the offence of robbery on the indictment. Other matters had been severed from the original charges and dealt with and finalised summarily.
In any event, your counsel submitted that your plea of guilty had utilitarian benefit – that is to say, saved the time and cost of a trial, and in particular avoided the complainant having to yet again give evidence about what happened during the course of the robbery.
Furthermore, your counsel submitted that your plea of guilty was indicative of remorse (reference was made to Phillips v R [2012] VSCA 140) and a willingness to facilitate the course of justice.
Furthermore, such a plea was entered into when the ordinary operation of the court had been affected by the COVID‑19 pandemic, and such a plea should attract an “actual and palpable amelioration of sentence”. Reference was made to Worboyes v The Queen [2021] VSCA 169 [35].
(b)It was further submitted that the principles enunciated in both R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269 (“Verdins”) and Bugmy v R (2013) 249 CLR 571 have application when considering the opinions expressed by the psychologist Ms Cidoni, based on your history of mental health issues, exposure to drugs at an early age, and what you experienced in your youth generally.
In particular, it was submitted that all six principles enunciated in Verdins were enlivened based on your background and the various opinions given by Ms Cidoni. The Verdins principles are as follows:
“[32]Impaired mental functioning, whether temporary or permanent ('the condition'), is relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.'
In particular, it was submitted, given the opinions of Ms Cidoni based on your childhood background, there should be a moderation of your moral culpability, which in turn affects the punishment that is just in all the circumstances, and where denunciation is less likely to be a relevant sentencing objective.
Furthermore, that condition may have a bearing on the kind of sentence that is imposed, and in particular whether general deterrence should be moderated or eliminated as a sentencing consideration. The existence of the condition at the time of sentencing may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health, and that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
Your counsel also referred to what are generally referred to as the Bugmy principles: that is to say, the impacts of deprivation in early life do not recede over time, and can have a profound effect throughout an offender's life. Reference was made to Marrah v The Queen [2014] VSCA 119 at [16]; and in particular to DPP v Drake [2019] VSCA 293 (per Maxwell P, Priest, Kaye, T Forrest and Emerton JJA) at [32]:
'[T]he profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood years.'
Again it was submitted that the Bugmy principles apply to you, in that there is a role for some moderation of moral culpability, and serve to offer some explanation for your offending, especially in regard to impulse control.
(c)It was also submitted by your counsel that the sanction of imprisonment has been additionally burdensome upon you due to the onerous conditions in custodial settings that have been present on account of the COVID‑19 pandemic. Although those conditions may not be as onerous as those in the past, I do consider your experience of custody has been subject to increased lockdowns, quarantine periods, and restrictions on prisoner access both to family able to visit you and also to various programs. I consider that some allowance should be made for such situation, bearing in mind that these conditions presumably will continue for some time into the future.
(d)It was submitted that your prospects for rehabilitation hinge on staying off drugs and to a lesser extent alcohol. It was submitted that you have formed a genuine commitment in confronting and trying to overcome your drug habit. In part, it was pointed out that one of your major motivations is that your former wife is supportive of you having contact with your two children on the basis that you stay “clean” of drug-taking. In the past there has been very limited contact with your children, and no contact when in custody. Furthermore, on release you will reside with your partner Tarryn, and in the past you have been a significant support to her.
(e)Your counsel also submitted that the Court of course is required to take into account sentencing principles of parsimony – that is to say, that requires the selection of the least-severe sentencing option open to a sentencer which achieves the purposes of punishment in any particular case and so achieves the ultimate aim of protecting society. Reference was made to R v Milne (1982) 4 Cr App R (S) 397, and proportionality – that is, any sentence imposed should not exceed a penalty that is appropriate for the objective gravity of the offending and the role you played in the offending. Reference was made to Veen v The Queen (No 1) (1979) 143 CLR 458 and Veen v The Queen (No 2) (1988) 164 CLR 465.
(f)Your counsel also referred to the principle of totality, given that you have been sentenced in various Magistrates' Court matters and it would have been preferable that all matters could have been brought to a head in one sentence.
30Your counsel ultimately submitted that the offence of robbery is inherently serious, but stressed that the value of the robbery was low, and the crime was opportunistic in nature.
31Of course there was no issue that you were on bail at the time of the subject offending.
32It was ultimately submitted by your counsel that:
'... when the instinctive synthesis is applied to Mr. [Cadby] returning him to the community with targeted support for drug addiction, given a tragic upbringing, a capacity for hard work and with the current matters finalising as a plea are factors which lend themselves towards the imposition of a combination sentence for man in his late 20s, who had until the last two years no contact with the criminal justice system, and reaching a point where the best years his life await him – the opportunity to address his issues in the community with the supervision of the Court providing an opportunity whose time may have now come.'
33Counsel submitted that an appropriate disposition would be the imposition of a combined sentence consisting of a period of imprisonment followed by an appropriate Community Correction Order.
Response of the prosecution
34I refer to Exhibit 5, being a document headed “Prosecution submissions on sentence”, and note that the prosecution accepts the following mitigatory factors apply in this matter:
(a)Plea of guilty, albeit not at the earliest opportunity, and after the victim was required to give evidence at a committal;
(b)Disadvantaged childhood (although not to the Bugmy extent);
(c)No prior convictions or appearances at time of the offending; and
(d)Reasonable prospects of rehabilitation, provided that you can abstain from alcohol and drug use.
35In general terms, the following submissions were made by counsel for the prosecution in relation to sentence:
(a)Contrary to the submission made by your counsel that the robbery was opportunistic, counsel for the prosecution submitted that the robbery was “planned”, with you having taken a taxi to the address and asked that taxi to wait for you;
(b)The breach of trust, in that the complainant was friendly with you, so much so that the complainant invited you into his home; and
(c)You inflicted violence upon the complainant (not just the threat of force) in order to effect the robbery. The complainant sustained injuries as a result of that violence used during the course of the robbery;
(d)You were on bail at the time of the robbery offence, having been bailed from the Mill Park Police Station on 28 January 2021 (approximately one month prior to this offending) on charges including handling stolen goods, criminal damage, and driving offences.
36Furthermore, counsel for the prosecution submitted that you committed other offences on the same day that you were bailed from Mill Park police station right up until, and then after, your offending (the offending period was 28 January 2021 to 5 March 2021). Counsel for the prosecution accepted that you had no prior convictions or appearances as at the time of the offence on 28 February 2021, but as already noted were on bail for dishonesty offences at the time of the offence.
37Furthermore, you had had previous contact with police prior to the subject offence which resulted in a diversion being granted at the Melbourne Magistrates' Court on 11 August 2020 for criminal damage charges.
38It was submitted by counsel for the prosecution that your subsequent offending is relevant to your prospects of rehabilitation, and it was noted that you have not availed yourself of the numerous opportunities given to you by the Court in respect of obtaining assistance and treatment through a Community Correction Order. In this respect, counsel highlight that you were sentenced to time served along with an 18-month Community Correction Order on 4 January 2022, which you were able to commence on or about 17 January 2022 after bail was again granted in this matter.
39Unfortunately, there was non-compliance and further offending which resulted in the CCO being varied and recommencing on 12 April 2022. Again you failed to comply with the conditions of the order, failing to attend appointments and failing to complete any community work.
40As counsel for the prosecution notes, there was also further offending that occurred on 15 and 16 March 2022 (informant Stewart), 8 June 2022 (informant Pongo), and 29 June to 6 July 2022 (informant Johnson). Counsel for the prosecution accepts that there was no subsequent offending for any violent offences, and also accepts that the offending involving the complainant was to fund your drug habit. It was submitted on behalf of the prosecution that your rehabilitation prospects depend almost entirely on your ability to cease using drugs.
41Counsel for the prosecution also submitted that only one of the so-called Verdins principles applies to this case, and that is in respect of prison being more onerous for you than any other person without PTSD. Although acknowledging that the psychologist Ms Gina Cidoni opines that your decision-making at the time of the offending would have been impaired by your cognitive/executive limitations, and that these factors would have reduced your ability to control and understand the wrongfulness of your actions, to think clearly, or make calm, reasoned decisions and employ good judgment, it was submitted that such opinions should be rejected, and that the subject offending occurred during an offending spree which began on 28 January 2021 and only ceased upon you being arrested by police on 9 March 2021. All such offending, so it was submitted, was towards obtaining cash to purchase drugs.
42It was further submitted that, given your previous ability to hold down a job, a relationship, and live offence-free (that is, to think clearly; make calm, reasoned opinions; and employ good judgment), it is the need for drugs which caused the offending.
43It was submitted that the sentencing principles of general and specific deterrence, denunciation, and protection of the community, 'loom large in this matter.' In particular, it was submitted that the complainant was violently robbed in his own house – a place where he could expect to feel the safest, and that you took advantage of your friendship with the complainant, and went there to steal from him. You used violence in order to steal from your friend, causing your friend not-insignificant injuries.
44Ultimately, it was submitted that the appropriate sentence is one of immediate imprisonment and the imposition of a non-parole period.
Conclusion
45The Court directed that you be assessed as to your suitability for a Community Correction Order, and such assessment was undertaken on 8 February 2023. I refer to the Community Correction Order Assessment Outcome Report and note that Community Correctional Services assess you as being “high risk of reoffending” according to the Level of Service/Risk assessment tool.
46The author of the report noted that you have had prior involvement with Community Correctional Services, having attempted three Community Correction Orders since 2022 and contravened all dispositions. You were assessed via audio-visual link on 8 February 2023 and you were found to engage politely with your assessor.
47You confirmed that upon release from custody you will reside in Reservoir with your partner and her four children, and that you had no 'transitional concerns' and there was no risk of becoming homeless.
48When discussing the charges before the Court, you attributed the offending to a marriage breakdown and needing to fund your substance addiction. You reported you were using methylamphetamine (ICE), gamma hydroxybutyrate (GHB), and cannabis almost daily to regulate your emotions. You noted you were also additionally using heroin twice weekly, and ceased your mental health medication during this time.
49When discussing your most recent engagement with Community Correctional Services you accepted that your compliance and engagement was poor, but you attributed your poor compliance and engagement to drug abuse and being homeless. You also advised the assessor that following reconnecting with your former wife in custody, you had been informed that if you provided clean urine screens you could potentially visit your two children from that marriage. In particular you reported that has provided you a new incentive to engage in treatment, and you are currently undergoing methadone.
50Furthermore, you reported that you have resumed taking mental health medication, which has had a positive impact on you, and you expressed the view that your time in custody has offered the opportunity to reflect on the trajectory of your life should you not engage in treatment and be motivated to turn your life around in order to become a better father.
51According to the assessor, you understand that if the Court does impose a Community Correction Order this could be your 'final opportunity of such a disposition.'
52In light of the information that you gave to the assessor, it was recommended that you be found suitable for a Community Correction Order. The assessor recommended that there be judicial monitoring, supervision, treatment and rehabilitation for drug use, and for you to enter programs related to previous offending.
53The offence of robbery is a serious offence, made clear by the maximum penalty of 15 years' imprisonment. Of course, there are a variety of circumstances where such an offence occurs, which impacts on the sentence required.
54Contrary to your counsel's submission, I do not consider the offence to be opportunistic, but rather involving some degree of planning, given that you had the taxi waiting outside the premises, which would suggest your visit was to be short and for an express purpose. Of course, the offending was aggravated by you exploiting your previous friendship with the complainant, which permitted your entry into his property, and also by the ultimate assault on the complainant during the course of the robbery.
55Consistent with the views of both the prosecution and indeed your own counsel, I accept that probably you were affected by drugs at the time of the offending, and almost certainly were seeking money to continue funding your drug habit at that time.
56Furthermore, you did not help yourself in your record of interview, where you denied any offending and essentially blamed the complainant for anything which occurred when you attended on that day.
57The subject offending was not long after you had been bailed for other offending, and that was only one bout of offending over a series of days where different offences occurred – again to fund your drug habit.
58The complainant was a far older man than you, and when one reads the Victim Impact Statement he has clearly suffered some physical injury as a result of your actions and is now fearful of walking outside his house at any particular time just in case he comes across you again.
59I do accept you had an extremely difficult childhood, being exposed to drugs and a certain degree of violence over your young childhood and into your teenage years. In particular, you were exposed to drug use at a very young age, and seemingly were a functioning drug addict over the years leading up to the subject offending. Curiously, at the time of the subject offending you had no prior convictions for any offending, and seemingly have lived what your counsel described as a pro-social existence, being married, buying your own house, having two children from that relationship, and working as a roof plumber.
60It seems, and I accept, that your deterioration commenced after your marriage broke down because of your increasing drug use, which consequently caused you to leave the matrimonial home and live in a variety of places but sometimes with your grandmother. It was during this time that your drug use escalated, which has had the result that your former wife has prevented you having visitation to your children because of your uncontrolled drug habit. It has been submitted on your behalf that your former wife would allow visitation rights if she is satisfied that you have overcome your drug habit, and that would involve urine testing.
61Furthermore, you have been given ample opportunities by the Court to overcome your drug habit, which really has been the cause of your offending since the early 2020s to date. There has been some effort on your part to seek some assistance with your drug habit, but to no avail.
62On the evidence before me, I consider your prospects of rehabilitation to be guarded. You have been a long-term drug-taker, and have to date been unable to adequately deal with your drug habit, notwithstanding opportunities being given in previous Community Correction Orders.
63I do accept that mitigating factors involving your plea of guilty, albeit not at the earliest opportunity, but one has to take account that the committal hearing led to discussions which caused only the one charge of robbery to be on the indictment. Your counsel submits that the plea of guilty gives rise to remorse. On the authority of Phillips (op cit) it is for the Court to determine whether that be the case, and indeed I consider that your plea of guilty may give some indication of remorse, but otherwise there has been no indication that you have felt any remorse. I do accept, given that your plea of guilty was given during the pandemic, you are entitled to the further utilitarian discount enunciated in Worboyes (op cit).
64I also accept, based on the report from Ms Cidoni, that your early childhood and later years growing up exposed you to great deprivation in terms of being exposed and introduced to drug habits at a very young age, observing random acts of violence, and people overdosing, all of which has played a role in your thinking and response to various situations as explained by Ms Cidoni. In this sense, I am of the view that the six principles set out in Verdins are applicable on the basis that your moral culpability is reduced because of that matter, which in turn affects concepts of general deterrence, specific deterrence, and just punishment.
65Furthermore, I consider that principles 5 and 6 of the Verdins principles are enlivened, in that any period of imprisonment that you serve will be harder for you than for other prisoners, given your post-traumatic stress disorder and other mental conditions.
66Furthermore, I consider there is a risk that prison life could cause a deterioration in these conditions, given the lack of attention that you would have had in relation to treatment outside prison.
67Furthermore, I accept that there is a general hardship in prison during COVID-19 pandemic days, in that fewer programs are available, visitation rights are more limited, and there are – perhaps lessening these days – various lockdowns because of the pandemic.
68I also consider that totality plays a role, given that you have been subject to various Magistrates' Court hearings in relation to summary matters, some of which flow from the day in question, which, if all heard together, may well have given rise to a different total sentence than the addition of all the matters which have been heard by a Magistrates' Court.
69After considering all the matters in this plea hearing, I do accept that you have some genuine motivation to overcome your drug habit, driven by an understandable hope that you can be reunited with your children from your previous marriage (which of course requires you to be “clean” of your drug habit), your personal desire to overcome your drug habit, realising that this will only get worse and worse as time goes on, and indeed your desire to resume your relationship with your partner and become a good de facto father both to those children and hopefully to your children. You have also stated that you are well aware that your children are very close to the age where you were exposed to drugs in the family situation and introduced to drugs at a slightly later date, and you do not wish your children to have to experience anything like that.
70In all the circumstances, I am going to order a combined sentence which will consist of a period of imprisonment followed by a Community Correction Order which will involve supervision, judicial monitoring, programs reducing reoffending, and treatment and rehabilitation for drug and mental health matters.
71In relation to the summary matter, I am also going to sentence you to a short period of imprisonment, given that you have been guilty of offending on bail prior to this sentence.
72Please be upstanding.
(a)In relation to Charge 1 on the indictment, you are convicted and sentenced to twelve months' imprisonment.
(b)In relation to uplifted Charge 4, you are convicted and sentenced to one month's imprisonment; such sentence to cumulate with the sentence in relation to Charge 1 on the indictment.
(c)The total effective sentence will be 13 months.
(d)I declare that you have served, up to but not including this day, 77 days in pre-sentence detention, and that such period should be administratively deducted from the sentence ordered against you.
(e)I further order in relation to Charge 1 that on release from prison you are sentenced to a community correction order for 18 months. On release from prison you must report within three days to the Reservoir CCS, ground floor, 909 High Street, Reservoir. Beyond the core conditions, I order that further conditions apply:
(i)Pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary to the Department of Justice and Community Safety;
(ii)Pursuant to s48D(3)(a), you are to undergo any mental health assessment and treatment (including testing) for drug abuse or dependency;
(iii)Pursuant to s48D(3)(e), you are to undergo assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;
(iv)Pursuant to s48D(3)(f), you are to attend any program that addresses factors related to your offending behaviour, but in particular to reduce reoffending;
(v)Pursuant to s48K, you are to undergo judicial monitoring, with the first date for judicial monitoring to be 4 June 2024 at 9.30 am.
(f)I declare that save for your plea of guilty in relation to Charge 1 on the indictment I would have ordered a period of imprisonment of 18 months with a non-parole period of 12 months.
9
0