Director of Public Prosecutions v Cassar
[2018] VCC 1027
•6 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00377
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL CASSAR |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2018 | |
DATE OF SENTENCE: | 6 July 2018 | |
CASE MAY BE CITED AS: | DPP v Cassar | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1027 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S. Wallace | Office of Public Prosecutions |
| For the accused | Ms A. Roodenburg | Victoria Legal Aid |
HER HONOUR:
1 Paul Cassar, you have pleaded guilty to one charge of armed robbery. The maximum penalty applicable to that offence is 25 years’ imprisonment.
2 You have also agreed to a summary charge being uplifted to this court and dealt with by me pursuant to s.145 Criminal Procedure Act 2009, and have pleaded guilty to Charge 2, possessing a controlled weapon without excuse. The maximum penalty applicable to that offence is 12 months' imprisonment or 120 penalty units.
3 These crimes arise out of events which took place on 11 November 2017. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
4 I turn to a summary of your offending. You are currently 34 years of age, and at the time of the offending were also 34. You have a significant history of mental health treatment and an acquired brain injury. Not surprisingly relied heavily upon by your counsel, Ms Roodenburg, during your plea hearing.
5 At approximately 4.00 pm on 11 November 2017 the victim of your offending, Alexander Dimitrijevic, began shift work in the drive-through bottle shop of the Sugar Gum Hotel in Hillside. You were known to staff at the premises, and had previously been banned from attending that hotel.
6 At approximately 4.45 pm the victim was serving a customer at the cashier. You approached the side of the cashier and picked up a bottle of Jägermeister.
7 Your victim asked you to step back as you were in an area where patrons were not permitted, and in doing so he pointed to a large sticker on the floor which read ‘Staff only beyond this point’.
8 You became agitated, began to swear and began mumbling to yourself. Eventually you returned the bottle of Jägermeister and stepped back in front of the cashier.
9 While the victim was speaking to another customer, you picked up a bottle of Brown Brothers Prosecco and returned behind the cashier. Aware of your close presence the victim turned towards you. With the bottle held in your right hand, you said ‘I’m going to bottle you, give me $10’ (Charge 1, armed robbery).
10 The victim opened the till and gave you one $10 note. You returned the bottle of Prosecco to the shelf.
11 With the money in your hand, you left the drive-through area and entered the main part of the hotel. Inside the hotel the venue manager, Claude Monaco, had been made aware of the incident outside and attended the drive-through area to speak to the victim.
12 Monaco removed your scooter and hid it around a corner, believing you would come looking for it.
13 Within a few minutes you returned to the drive-through area and asked Monaco where your scooter was. In reply, he asked you about the $10. You then handed Monaco some coins. Monaco told you police had already taken your scooter, and as a result you left the scene.
14 Police arrived a short time later and viewed CCTV footage of the incident. Police were advised that staff at the hotel were aware of your identity, and your name was provided to police.
15 At approximately 6.40 pm police were about to leave the scene when you returned, wearing the same clothes as observed in the CCTV. You were riding a bicycle with a large metal pole protruding from the handlebars, and a backpack on top of the handlebars with a chainsaw bar protruding.
16 Police approached you and asked you to put the backpack onto the ground. You were arrested.
17 A search revealed a pocket knife and multi-tool in your pants pocket, and a plunger and separate needles (summary charge possess controlled weapon relates to the pocket knife). The chainsaw in the backpack was a petrol motor Echo brand chainsaw.
18 You were taken to Sunshine Police Station.
19 Forensic Medical Officer, Dr Vicki Kim, examined you and concluded you were not fit for interview. You were charged without interview.
20 Turning to your plea of guilty, the offences occurred on 11 November 2017. The matter was listed for a filing hearing on 16 November, then a bail application on 12 December 2017. At a committal mention on 21 February 2018, without any cross-examination of the victim or any other witnesses, the matter resolved into a plea of guilty and a plea date was confirmed.
21 The prosecution accepts your plea of guilty was at the earliest opportunity, as do I.
22 As you have pleaded guilty to these charges, you are entitled to have that fact taken into account in your favour, and I do so. The community has by your pleas of guilty been spared the time and cost of a trial and witnesses have been spared the need to give evidence upon your trial. Also, I take into account in your favour that you intimated early your intention to plead guilty to these charges. Such is also relevant in mitigation of your sentence.
23 You were quickly apprehended, and whilst it is unclear whether you admitted what you had done, there is certainly CCTV footage, and your re-attendance at the premises wearing exactly the same clothes where you were known by the staff. I accept that in essence this was acknowledging your offending.
24 I am prepared to accept in the circumstances your plea of guilty indicates some remorse for your offending, although I am concerned about the extent of it.
25 As at the date of this hearing, and prior to your bail application you had spent 32 days in custody for this offending.
26 You have admitted an extensive criminal history commencing in 2003 when you appeared at Sunshine Magistrates’ Court on charges of recklessly causing injury, careless driving, fraudulently alter and use identification, and driving offences. Without conviction, the matter was adjourned for 12 months on condition you attend Orygen Youth Health for treatment in relation to your mental illness (schizophreniform psychosis).
27 On 17 November 2003 you appeared at Broadmeadows Magistrates’ Court on charges of using and possessing amphetamine, assault/resist police, and dishonesty offences, for which you were convicted and placed on a community-based order for a period of 12 months with conditions regarding assessment and treatment.
28 You next appeared at Sunshine Magistrates’ Court on 16 December 2005 on charges of possessing cannabis, possessing a controlled weapon without excuse, and driving and dishonesty offences. With conviction you were fined an aggregate $3,000.
29 You next appeared, I note some years later, at Melbourne Magistrates’ Court on 16 September 2014 on charges of reckless conduct endangering serious injury, exceeding the speed limit, behaving in an offensive manner, committing an indictable offence on bail, possess on court premises an offensive weapon, and possess methylamphetamine, for which you were placed on a community correction order for a period of 12 months. Your licence was cancelled and disqualified for a period of 12 months.
30 You next appeared at Melbourne Magistrates’ Court on 23 October 2015 on charges of retention of stolen goods, driving whilst disqualified, and possessing a dangerous article in a public place. You were placed on a community correction order for a period of 8 months. You were also dealt with for breaching the correction order previously imposed on 16 September 2014, the original order being confirmed.
31 You next appeared at Sunshine Magistrates’ Court on 9 September 2016 on charges of intentionally causing injury, without lawful excuse enter scheduled public place, careless driving, failing to stop vehicle after a collision, and contravening the community correction order imposed on 23 October 2015.
32 Regarding the contravention of that community correction order, the original order was confirmed on some charges and you were convicted and sentenced to a community correction order for 8 months. Regarding the offences of intentionally causing injury, you were convicted and placed on a community correction order for 12 months.
33 You next appeared at the Sunshine Magistrates’ Court on 2 June 2017 on a charge of reckless conduct endangering serious injury, unlawful assault, and motor vehicle offences, for which you were convicted and placed on a community correction order for a period of 12 months from 21 June 2017. The offending before me committed on 11 November 2017 breaches that community correction order. You are of course not being sentenced by me for the breach. It is however a court order that you breached.
34 Counsel who appeared on your behalf at your plea hearing, Ms Roodenburg, prepared a written outline of submissions and also relied upon a number of documents tendered during the course of that hearing. As previously stated, Ms Roodenburg relied very heavily upon your mental health.
35 Turning to your background and history, you were born in 1984 and are now 34 years of age and single. You described a loving and positive childhood. You live at home with your mother, your father having passed away in 2010.
36 You were diagnosed with schizophrenia at age 17 and have been on a disability support pension for fifteen years as a result.
37 You have contact with all your siblings, who live nearby. Your sister, Tania, and your mother assist you to attend psychiatric and other medical appointments. They had also attended all previous court dates to support you and were at court also to support you before me.
38 In your spare time you enjoy doing up your car, spending time with your siblings and their families and at the Men’s Shed.
39 You completed Year 10 at school and then began a mechanical engineering apprenticeship as a fitter and turner, completing two and a half years of that four-year apprenticeship.
40 Between 2010 and 2013 you worked as a storeman at Prixcar, installing radios and doing car detailing.
41 In 2015 you obtained part-time work at Beacon Lighting.
42 You most recently have worked as needed in your sister’s business, Dynamic Home Maintenance, doing home maintenance tasks.
43 Your early work history was interrupted by frequent admissions to acute psychiatric inpatient units during your late adolescence and early adulthood, sometimes under the Mental Health Act as an involuntary patient.
44 Regarding this offending, you instructed that you entered the bottle shop and asked to withdraw $5 from your account as you needed money to buy petrol for your motorised scooter. You were told there was a $10 minimum, however you had less than $10 in your account. You became frustrated and picked up a bottle from the shelf and demanded $10 from the shop assistant.
45 Ms Roodenburg submitted that whilst this was a serious offence, yours was spontaneous with no premeditation or planning and I accept that is so. Further, you made no efforts to conceal your offending, you were known to staff and did not attempt to conceal your identity. Also correct. You then returned some of the money after purchasing a soft drink in that hotel.
46 When you returned to the scene and were arrested, you were riding your niece’s bicycle with a backpack hanging off a pole that was permanently attached to the handlebars. You said your intention was to transfer the petrol from the chainsaw into your scooter so you could travel on your scooter to visit a friend.
47 Ms Roodenburg submitted this armed robbery fell at the lower end of the scale of seriousness.
48 Ms Roodenburg submitted that by your pleas of guilty you had demonstrated remorse and accepted responsibility for this offending. As I have previously stated, I accept that is so.
49 You instructed that at the time of this offending you were not thinking clearly about what you were doing and were frustrated that you could not withdraw an amount of less than $10. You accepted your response was entirely improper, and in fact serious criminal offending. You regretted your actions. You understood your demand would have placed the victim in fear and were sorry you had frightened him.
50 Ms Roodenburg as I said referred to your extensive mental health history, commencing with a diagnosis of schizophrenia when you were 17. She described that as a lifelong chronic illness.
51 In her written submissions, Ms Roodenburg summarised some of your history.
52 Your first inpatient admission was at 17 years of age to Orygen Youth Health Inpatient Unit where you commenced on antipsychotic medication, Clozapine. You spent two months in that clinic as an inpatient.
53 When you were 19, your care was transferred to the Mid West Area Mental Health Service and, in the last 14 years, you had seven admissions to the inpatient psychiatric unit. Those admissions were from a matter of days to several weeks, the most recent in December 2015 for two weeks.
54 Your case manager at Harvester (known as Corky) left mid-year 2017 after having been your case manager for a number of years. You were due to meet your new case manager, Samantha Miles, after she commenced work in October 2017, however at the time of your remand you had not met her.
55 When you were unwell, your treating doctors advised you had ‘decreased insight into your conditions and actions and generally impaired judgement with regard to your behaviour’. When stable in your mental state, it was possible you retained a more subtle degree of impairment to your decision-making, as could be the case in patients with chronic schizophrenia.
56 Just prior to remand for this offending, you were on a community treatment order due to expire on 31 December 2017. Upon your eventual release on bail, you engaged voluntarily in that treatment and remained a voluntary patient as at the time of your sentence. The Harvester Clinic is part of Mid West Area Mental Health Service. I was told you did have a good relationship with your new case manager, Ms Miles.
57 Prior to this offending, you were on a daily evening dose of Clozapine as well as depot injections every four weeks. Both those antipsychotic drugs were used in the treatment of schizophrenia.
58 Your last depot injection prior to your offending was on 17 October 2017, and you were due for the next one on 14 November 2017, three days after this offending.
59 You instructed you had not taken your oral medication, Clozapine, for at least 24 hours prior to your offending, and had also been drinking the day before and used ice. This latter history is relevant when assessing the extent of any applicability of the principles in R v Verdins & Ors[1]. You were feeling depressed as you had spent all your money the evening before at the pokies. Not surprisingly, as was submitted by your counsel and I am sure you are aware, alcohol and drugs impact on the effectiveness of your psychiatric medication.
[1] (2007) 16 VR 269
60 On the day of this offending, your sister Tania reported you appeared confused, irrational, on edge and not your normal character. She suspected you had missed your medication.
61 Ms Roodenburg also referred in her written submissions to the evidence within the depositions in which the victim described you as ‘mumbling to yourself’ and agitated at the time of the robbery. Also the hotel manager described you as ‘Paul went on to a massive ramble which I couldn’t understand’.
62 Further, Dr Kim, who completed an assessment of you over the phone and assessed you as unfit for interview, determined that you required ‘urgent transfer to the emergency department for immediate psychiatric assessment’. You were, however, remanded in the cells and not transferred to the emergency department. There was, therefore, no further mental health assessment and nor did you receive your antipsychotic medication until your transfer to Melbourne Assessment Prison on 14 November 2017.
63 Your usual medication involved three-weekly depot injections and Olanzapine. Clozapine had been ceased when you were in custody, and once there was a break in the use of that medication of three days, it could not be recommenced without close monitoring.
64 You were, at the time of your plea hearing, a voluntary patient at the Harvester Clinic, complying with your now medication regime.
65 Reference was made by Ms Roodenburg to various reports before me which I have read. You instructed you had been involved in a motorbike accident which had caused you some serious injuries in the past. You had also been previously assaulted and suffered concussion as a result. You had not been formally assessed to determine the existence of an acquired brain injury or otherwise.
66 In a report from Mid West Area Mental Health Service dated June 2016, it was observed that ‘it was likely a prison sentence would have a detrimental effect on his (your) mental health’, and would likely ‘exacerbate his (your) symptoms’, given the stress associated with incarceration and separation from your support networks, and being in the prison environment itself. That report also spoke of difficulty enforcing appropriate treatment for you in a custodial setting and, if not adequately medicated, you would be at an increased risk of relapse.
67 Ms Roodenburg addressed the report of Dr Fiona Best, Forensic Psychiatrist, dated 28 March 2018. That whilst you were not currently psychotic, there was evidence of a debilitating negative syndrome of schizophrenia. Those negative symptoms were not amenable to treatment with antipsychotic medication and were chronic and disabling. Given your long history of schizophrenia and impaired mental functioning, a sentence would weigh more heavily upon you than an individual without those difficulties. I am conscious of her assessment in that regard.
68 Ms Roodenburg submitted that all of the limbs in Verdins applied, and restated the salient principles in her written submissions (ie: paragraph (o)(i)-(vi)). She submitted there was a sufficient connection between your mental impairment and offending, as described by the witnesses and victim. Relevant, however, also to my assessment was your non-compliance with your prescribed medication 24 hours before this offending and your use of alcohol and ice, to which I have previously referred.
69 Addressing your substance use and addiction in her written submissions, Ms Roodenburg submitted you commenced using cannabis at 16 years of age, using regularly until 2016. You were a daily heroin user at 18 years of age. Until being remanded, you were using methamphetamines occasionally. You also described having a pokie machine habit, usually in combination with alcohol and/or substance use. You reported consuming alcohol from the age of 10, and abuse of it from the age of 18.
70 An ACSO report indicated you self-medicated your mental health symptoms.
71 You had self-referred to the Stepping Up program (an AOD Service) and completed that on 13 December 2017. You were referred by CISP to IPC Health for further AOD counselling in January 2018 and completed a number of sessions with Ms Shen. Ms Roodenburg urged you had shown insight into the correlation between your substance use and poor behaviour in the community. You had remained absent from drugs, alcohol and gambling since being remanded in 2017.
72 Regarding rehabilitation, you had, Ms Roodenburg urged, since release on CISP bail demonstrated a willingness to engage in treatment and to aid your rehabilitation. In the past, you had been unwilling to address substance abuse issues. That attitude, she urged, had now changed.
73 I was told that following your release on bail on 13 December 2017, you were on strict bail conditions and that you complied with them. On 21 February 2018, the CISP condition was removed and daily reporting was reduced to reporting three times per week. You continued to comply with the other bail conditions.
74 You had also attended your general practitioner for a mental health care plan and, through that, were referred for anger management counselling with Ms Willis of Mindfulness & Holistic Counselling in Altona. That involved weekly and fortnightly sessions completed in early June 2018.
75 Regarding your risk of re-offending, Ms Roodenburg submitted your mother and your sister, Tania, were strong protective factors. Further, the Men’s Shed had provided you with a positive way to fill your days and separate you from peers who were a negative influence. Ms Roodenburg sensibly conceded your rehabilitation would be difficult with any mental impairment, although she submitted you had reasonable prospects as evidenced by the efforts you had made since your release in December 2017.
76 Regarding specific and general deterrence, Ms Roodenburg submitted specific deterrence has a lesser role to play, given your mental impairment. Further, you had found your first period in custody a real deterrent and had made efforts to rehabilitate following release. In my opinion, some moderation is relevant regarding specific deterrence, however again note your non-compliance with medication, alcohol and ice use around this offending and your breached community correction order.
77 Ms Roodenburg submitted that whilst armed robbery would usually require general deterrence as a primary factor in sentencing, given your particular mental health issues, it should be substantially moderated.
78 Regarding disposition, it was submitted by Ms Roodenburg that a combination sentence of imprisonment together with a community correction order would be appropriate in all the circumstances. To date, you have spent 32 days in pre-sentence detention, from 11 November 2017 until 12 December 2017. She submitted those days with a community correction order would be appropriate.
79 I turn briefly to the documents tendered at your plea hearing but I had already read them prior to the plea hearing and am aware of the contents of them all. There was a CISP report dated 11 December 2017. During assessment on that same day, you appeared keen to re-engage with mental health services and to continue your medication regime within the community. Mid West Area Mental Health Service confirmed on that day they were willing to facilitate your re‑attendance.
80 There was a Progress Report tendered dated 9 January 2018. Initially, you were assessed in relation to your alcohol and other drug use. You reported abstinence since your reception into custody, and that you were currently completing urinalysis screens which you reported showed negative results for substances. Regarding problem gambling, you identified a direct link between your substance use and gambling. At the time of that report, you attended two case management sessions, one with the author, Zoe Cameron, before being transferred to the Sunshine Magistrates’ Court CISP and meeting with your case manager, Emma Clay. You appeared motivated to complete treatment, evidenced by arranging a drug and alcohol assessment prior to your first appointment. It was suggested at that time your court matters be adjourned for a month to allow you to continue with treatment.
81 As a consequence a second Progress Report dated 20 February 2018 was prepared. You had self-referred to Stepping Up in Melton for alcohol and drug assessment and treatment. You had completed the required four sessions with Ms Shen of IPC Health, St Albans. In her Progress Report, she stated you had reflected upon your past behaviours and had been making efforts to change your lifestyle post release.
82 Your then case manager, Ms Miles, confirmed you continued to attend monthly appointments with the service (community treatment order). She reported you appeared to be engaging with all recommended services and were stable in your current mental health.
83 Ms Miles reported that service had never been concerned about your cognitive ability or of any potential brain injury, and as such a neuropsychological assessment had not been sought.
84 At the time of Ms Miles’ report, you had attended all seven scheduled case management appointments.
85 There was correspondence from ACSO. You presented for assessment on 8 February 2018. Details were provided of your mental health history and your background, which I shall not repeat. At the time of the report you had a positive attitude to counselling.
86 You described increasing depression leading up to and during your period of imprisonment. You had been making efforts to change your lifestyle post-release and described a factor in your recovery having been a change in your mental health regime or medication.
87 There was a medical report dated 1 March 2018 from Dr Dawn Costello, Medical One, Taylors Lakes with attached mental health care plan dated 1 March 2018.
88 There was a psychiatric report from Fiona Best, Consultant Forensic Psychiatrist, dated 28 March 2018. She had previously treated you at Orygen Youth Health in 2003, and had also assessed you in 2006 at Forensicare.
89 You described a 14 year history of using ice, although you reported you had stopped when remanded in November 2017.
90 Turning to her opinion, she confirmed your diagnosis of schizophrenia and that treatment has dominated much of your adult life. You took anti-psychotic medication daily, as well as long-acting injectable anti-psychotic medication. You had a long history of illicit drug use and alcohol misuse.
91 At assessment with Ms Best, you showed evidence of debilitating negative syndromes of schizophrenia. Whilst the florid aspect symptoms were absent, there was evidence of ongoing illness in your presentation. The negative symptoms of schizophrenia, she said, were not as amenable to treatment with anti-psychotics. Ms Best expressed some concern about the cessation of your use of Clozapine upon you being remanded in custody.
92 You met the criteria for cannabis use disorder, amphetamine use disorder, and also gambling disorder. You had a diagnosis of schizophrenia, a permanent condition requiring regular treatment to prevent psychotic relapse. She recommended you continue with your current psychiatric treatment plan whether you were in custody or when you were living in the community, and that plan, she urged, should include regular anti-psychotic medication. You were currently taking a monthly injectable depot anti-psychotic and daily oral anti-psychotic medication.
93 In her opinion, you would benefit from a structured program of care addressing your criminogenic factors, substance misuse and social dislocation. Your impaired mental functioning as a consequence of your schizophrenia meant a sentence might weigh more heavily on you than an individual without those difficulties, and had the potential to have an adverse effect on your mental health.
94 There was also material before me from NorthWestern Mental Health dated 22 June 2016. Again, the background to your mental health history and your primary diagnosis of schizophrenia, and additional diagnosis of substance use disorder (cannabis and amphetamines) was set out in that report and also your medication.
95 At the time of your offending being dealt with in that report, ie: on 3 February 2016, you had relatively recently been discharged from Sunshine Hospital’s Inpatient Unit on 21 December 2015 in the setting of a relapse of psychotic symptoms and agitation, against a background of poor medication compliance and amphetamine use.
96 There was a report from Samantha Miles dated 7 December 2017 which explained that as a result of you being incarcerated (the recent 32 days served by you), the community treatment order that was to expire on 13 December 2017 had been revoked. Your treating team did not have the opportunity to engage with you prior to your mental health date to discuss your thoughts and recovery plan. You were also not able to engage with your treating team when the order was revoked. At that time, you were discharged from case management, however, there had been some contact with Melbourne Assessment Prison to offer you support.
97 There was also correspondence from Jodie Walker, Men’s Shed Program Officer, dated 28 May 2018, who confirmed you had been attending the Taylors Lakes Men’s Shed on a weekly basis since February 2018. There had been no issues with your attendance. You had shown interest in the program and seemed to get on with the other men who attended.
98 There was correspondence from Ms Josephine Willis, Mindfulness & Holistic Counselling, dated 7 June 2018, who confirmed you completed an anger management course.
99 There was a reference from your sister, Tania Cassar. She described you as an honest and genuine brother, caring and loving, and always there to help in times of need. You had willingly accepted family support to help you with your mental health issues. She described you as always working in co-operating with your specialists and doctors, and attending frequent appointments to maintain a stable life. She believed your 32 days in custody had been a wake-up call for you to make significant changes in your life. Following release on bail, you had complied with all your bail conditions and of your own volition had become involved in the Men’s Shed. You had also attended counselling for anger management and had undertaken voluntary urine screening.
100 She said since you had been in custody, you had shown great remorse for your offending. You were truly sorry for what had taken place in this offending. Since being released on bail, she said, you had been making every effort to rehabilitate yourself. She said you will always retain hers and the family’s full support to ensure you remain on track with your medication.
101 There was a report from Mid West Area Mental Health Service dated 18 June 2016. At that time you suffered chronic relapsing major psychosis, complicated with illicit substance use, anti-social personality construct and some cognitive deficits. They observed that your risk of relapse tended to increase when you were off your medication or increased your illicit substance use, particularly amphetamines. This concerns me in light of your use of alcohol and ice around the time of your offending before me.
102 Also before me were 23 urine analysis results negative for illicit substances.
103 As I discussed with your counsel during the course of the plea hearing, your offending behaviour is very serious indeed. The courts have repeatedly referred to the seriousness of the offence of armed robbery, often involving soft targets, as the victim was in this case. That is, people just going about their daily lives being faced with offending such as yours.
104 I must place your offending on a scale of gravity. The prosecution has conceded, and I accept, your offending behaviour falls at the lower end of the spectrum of the offence of armed robbery.
105 Your counsel, Ms Roodenburg, relied heavily upon your mental state and urged the application of Verdins principles when sentencing you. I have considered her submissions and accept that, on the basis of that material, Verdins has some application although my conclusion is somewhat guarded and reduced given you not taking your medication in the 24 hours before your offending and also your use of alcohol and ice. You are aware of the ‘link’ between drug use and your offending and of the decreased effectiveness of your prescribed medication by the use of alcohol and drugs. Application of Verdins whilst not extinguished, is reduced.
106 I accept principles 5 and 6 in Verdins have application based on the material before me and have taken that into account also when sentencing.
107 Regarding your rehabilitation prospects, they are at best guarded, however will hopefully improve if you abstain from use of illicit substances and maintain your anti-psychotic medication regime. Unfortunately, in the past, you have not been abstinent from illicit drug use and have not taken prescribed anti-psychotic medication. It is likely from the material before me you will need to take such prescribed medication and undergo appropriate treatment for the foreseeable future, and by that I mean many, many years.
108 Ms Roodenburg submitted the 32 days you had spent in custody had been a wake-up call, and that since your release on bail, you had made significant efforts towards rehabilitating yourself and undergoing appropriate courses and treatment. I accept that is so on the material that is before me. I hope you have found your time on remand a salutary lesson and a deterrent to future offending.
109 Ms Roodenburg referred to the difficulty finding cases comparable to yours. As I stated, it is very difficult comparing cases factually as facts vary enormously case to case, as do all matters in mitigation of sentence and personal to an offender. Ultimately, I must determine the appropriate sentence in your case, taking into account all sentencing considerations, including not only your offending but also all matters personal to you.
110 The prosecution’s submission on sentence was that time served together with the imposition of a community correction order was within the appropriate range of dispositions for your offending. Those instructions, I gather, had been obtained from the Senior Crown Prosecutor, who had been provided with the material also provided to me. That concession, I assume, took into account your prior criminal history which included relevant previous breaches of community correction orders.
111 I arranged to have you assessed for a community correction order and received a report from Paul Sguerzi. You are considered suitable for such an order if I determine such to be appropriate.
112 I discussed with your counsel, acknowledging as I do your early plea of guilty and all matters in mitigation of your sentence, and being mindful of your mental health, some applicability of Verdins and your vulnerability in custody. I considered a longer period of imprisonment together with a community correction order and discussed that at the time. In considering whether to impose a community correction order at all, I have considered a number of cases referrable to such a disposition (Boulton & Ors v R[2] and Hutchinson v The Queen[3] to name just a couple).
[2](2014) 46 VR 308
[3] [2015] VSCA 115
113 Whilst I note the assessor did consider treatment be mandated for gambling, he was silent as to treatment and rehabilitation for alcohol and drug use. In my opinion, such treatment is necessary.
114 As well as matters personal to you including your prospects of rehabilitation as I find them to be, I must also take into account the need for general deterrence when sentencing you. As I have said, general deterrence is very important in cases such as this, ie: armed robbery, in particular involving soft targets. I am mindful, however, of some moderation of general deterrence, given your mental health issues.
115 There is also the need for specific deterrence when sentencing you, given your relatively lengthy and concerning criminal history, mindful as I am, however, of your mental health at the time of the commission of no doubt most of those offences, if not all. Some moderation applies.
116 I must also consider the need to protect the community from you. That continues to concern me. I will be less concerned if you are not using illicit substances and maintaining your anti-psychotic medication regime and associated treatment.
117 I am required by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.
118 I have determined that the appropriate disposition in your case on the two charges before me, that is, the offence of armed robbery on the indictment and the summary offence of possessing a controlled weapon (pocket knife), is as follows, a sentence of 32 days’ imprisonment together with a community correction order for a period of 3 years.
119 Before I make that order, I must ascertain or find out whether you consent to the community correction order being made and the contents of it, and I stress bearing in mind your previous correction orders that you have breached so I am asking you if you are going to consent to this order.
120 OFFENDER: If I'm going to consent - - -
121 HER HONOUR: Hold on, just wait a minute.
122 OFFENDER: Sorry.
123 HER HONOUR: Therefore, I refer to the conditions of the order.
124 The following core conditions apply to all community correction orders and apply to you:
·You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment. That is, over the next 3 years.
·You must report to and receive visits from the Secretary to the Department of Justice during the period of the order, i.e. over the next 3 years.
·You must report to the Community Corrections Centre at Sunshine within 2 clear days of this sentence being imposed.
·You must notify the Secretary to the Department of Justice or a Corrections worker if you like of any change of address or employment within 2 clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
·You must comply with any direction given by the Secretary that is necessary for the Secretary or a Corrections worker to give to ensure you comply with the order.
125 In addition to those core conditions, there are a number of other conditions that apply just to you:
· You have to perform 200 hours of unpaid community work over that 3-year period (s.48C).
· You are going to be under the supervision of a community corrections officer for a period of 3 years.
·You are required to be supervised, monitored and managed as directed by the Secretary, or the Corrections worker (s.48E).
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s.48D(3)(a)).
· You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Corrections worker.
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s.48D(3)(e)).
· You must undergo programs or courses aimed at addressing factors relating to your offending as directed by the Regional Manager, and that might also include relevant to gambling but I will leave that to them to determine (s.48D(3)(f)).
· You must attend for review of your progress and compliance - in other words, you have to come back before me in relation to this order to find out if you have complied or not by Monday, 4 February 2019 at 9.30 am, which is around about six months give or take (s.48K).
126 Now listen carefully. I can only impose a community correction order if you agree to such an order being imposed. I shall indicate for the benefit of counsel, I will be declaring the 32 days under 18(4). So now, do you consent to the order being made? Have you spoken to your barrister about it?
127 OFFENDER: I have.
128 HER HONOUR: Yes, well, you were going to say something?
129 OFFENDER: I consent.
130 HER HONOUR: You consent to the order?
131 OFFENDER: That means I agree - consent, yes. Sorry.
132 HER HONOUR: So nice loud voice because we record this and if you breach it, I just play this bit back. It's a very short hearing then, you see. So nice loud voice. You understand the conditions of the order?
133 OFFENDER: I understand the conditions of the order.
134 HER HONOUR: There will be core conditions that apply to everyone including you.
135 OFFENDER: Yes.
136 HER HONOUR: You understand that there are those additional conditions that apply to you?
137 OFFENDER: I do.
138 HER HONOUR: As part of the order. And do you understand what might happen if you breach that order?
139 OFFENDER: I do.
140 HER HONOUR: Well, I better remind you so that there's no 'Well, you didn't really tell me'. I have got to advise you of the things you need to know about this order. I have already gone through all the conditions. I will have to tell you as follows: I need to tell you if you contravene or breach that order by committing further offences, you can be charged with breaching the order as well as those offences by someone else and a sentence of imprisonment is one of the options that can be imposed for the breach. So there is this actual charge of breach the order and I can send you to gaol for that.
141 You can also be re-sentenced for the offences that are before me, i.e. the armed robbery and the possession or the summary Charge 2, and one of the options available to me is to impose a term of imprisonment on you. Now whilst I do not say I will do that, the options are very, very limited as to what else I can do. I will not be sympathetic to giving you a further community corrections order. You had a lot of chances. You had a lot of breaches. I regard the sentence I am imposing today as extremely - I quote, extremely lenient.
142 So you have got to be extra careful for the next three years. I also have to tell you that if you fail to comply with any direction of the community corrections worker, they tell you to do something and you do not do it as part of this order then there can be a substantial fine that is imposed. So are you aware then of the potential of what might happen if you breach the order by any of those things? Yes?
143 OFFENDER: I'm aware.
144 HER HONOUR: Yes, so knowing all of that, do you consent to the order being made?
145 OFFENDER: I do consent.
146 HER HONOUR: Right, now before you sit down, now Ms Goding, just so that there's no chance at any later stage that he can say I didn't understand, have you discussed with him this likely order?
147 MS GODING: We have discussed the order, Your Honour, and the obligations that it imposes on him. If I could approach just to go through those terms - - -
148 HER HONOUR: I think I'd like you to clarify that so that we could be in no doubt if we come back.
149 MS GODING: Yes, Your Honour, if I could do that now.
150 HER HONOUR: Right, off you go.
151 MS GODING: Thank you for that time, Your Honour. I've gone through those conditions.
152 HER HONOUR: Are we going to have any misunderstanding when we come back? If we come back? No, just have a seat. Are we going to have any misunderstanding if he comes back about what that means?
153 MS GODING: No, Your Honour, Mr Cassar understands the terms and the consequences should he breach the order.
154 HER HONOUR: And the likely term of imprisonment?
155 MS GODING: Yes, Your Honour, that's been explained.
156 HER HONOUR: Which would be more than 32 days if I went down that path.
157 MS GODING: Yes, Your Honour, that's been explained.
158 HER HONOUR: Yes, all right, all right. All right, you can do no more, neither can I. All right, well, now stand, I formally sentence you as follows.
159 On Charge 1 on the indictment and summary offence Charge 2, you are convicted and sentenced to 32 days’ imprisonment with a community correction order for a period of 3 years.
160 I declare the 32 days you have spent in custody is by way of pre-sentence detention pursuant to s18(4) Sentencing Act 1991, therefore what that means in simple English is that the community correction order commences today which is 6 July 2018. I just need those numbers confirmed.
161 The prosecution made application for a forensic sample, ie: for a sample of your blood or saliva pursuant to s464ZF Crimes Act 1958. Ms Roodenburg on your behalf did not oppose the application, and I make the order in the terms sought based on the seriousness of your offending and your prior criminal convictions. It will be for a saliva sample, and I must advise you that the authorities may use reasonable force in order to obtain that sample.
162 The prosecution also made application for a disposal order which was also not opposed, and I make the order in the terms sought.
163 Now can we confirm the 32 days is right? We're not going to have some issue with another two to go or something like that?
164 MS WALLACE: Yes, that's fine, Your Honour.
165 HER HONOUR: That covers it all off?
166 MS WALLACE: That's right.
167 HER HONOUR: So there's no - all right, it's a definite today CCO?
168 MS WALLACE: Yes, that's agreed.
169 HER HONOUR: All right, he has to attend when 10 July, so he knows that.
170 MS WALLACE: By 4 pm on Tuesday at Sunshine.
171 HER HONOUR: I know, I want to know so that he understands it. 4 pm Sunshine Corrections by 10 July. So you have to attend at Corrections office, there will be an address given to you by 4 pm on 10 July at the latest. If you are late for that, you potentially breach the order, you would come back to court, you are back before me, what can I say?
172 HER HONOUR: Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these two charges and been found guilty of them, I would not have put you on a community correction order. I would have sentenced you to a term of imprisonment of 6 years with a non-parole period of 4 years. So if you had pleaded guilty, that sentence would have applied. It does not apply now. You can see therefore there is a very big difference between what you have received and what you could have been given or would have been given after trial for a plea of not guilty. All right?
173 Be very careful, do not come back before me again except in February for that judicial monitoring and by that stage you need to come back to court with a good report.
174 OFFENDER: Yes, Your Honour.
175 HER HONOUR: Anything further?
176 MS GODING: If I could just approach, thank you.
177 HER HONOUR: Yes, you can go back and help him, thanks.
178 (Community corrections order signed and acknowledged.)
179 Yes, all right. Is there anything further?
180 MS WALLACE: Thank you, Your Honour.
181 MS GODING: Court pleases.
182 HER HONOUR: Thanks for your help.
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