Director of Public Prosecutions v Chain

[2019] VCC 948

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01995

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRISTIAN CHAIN

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February and 8 April 2019
DATE OF SENTENCE:	21 June 2019
CASE MAY BE CITED AS:	DPP v Chain
MEDIUM NEUTRAL CITATION:	[2019] VCC 948

REASONS FOR SENTENCE

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Subject:  Armed robbery – immediate custodial sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Khan	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms A. Liang (Plea) Ms N. Giorgianni (Sentence)	Giorgianni & Liang Lawyers

HER HONOUR: 

1Kristian Mark Chain, you have pleaded guilty before me to one charge of armed robbery. 

2The offence was committed on 5 July 2018 and involved you robbing Greta Carlson at the BWS liquor store which is at the Thrift Park Plaza Shopping Centre, Mentone of a bottle of wine and at the time of the robbery, you had an offensive weapon, namely a knife. 

3Armed robbery is a serious charge and that is reflected in the maximum penalty prescribed by law and that is 25 years' imprisonment.

4In addition, you have admitted your prior criminal history.  There are extensive convictions recorded in Victoria and New South Wales.  Your New South Wales records spans a period from 20 January 1992 to 21 September 2009 and there are relevantly convictions for violence including assault with intention to rob in 1992, common assaults in 2001, 2002 and 2004 and specifically, armed robbery in 2004.  On that charge, you received a six-year term of imprisonment with a non-parole period of three years.  In addition, there were convictions noted for dishonesty type offences, driving offences and breach of court orders. 

5You have five previous court appearances in Victoria spanning the period from 13 December 2013 to 18 December 2017 for predominantly dishonesty type offending, contravening conduct condition of bail, committing indictable offences whilst on bail, offending involving aggravated burglary and assaults and contravention of community corrections order.  You have some outstanding matters that are yet to be dealt with that relate to further dishonesty offending.

6In the past, you have been dealt with by a variety of dispositions involving both custodial and non-custodial orders.  This offending was committed during the current term of a Community Correction Order imposed at Moorabbin Magistrates' Court on 18 December 2017 and that is an aggravating feature. 

7You are now 46 and have dual diagnosis of mild acquired brain injury with cognitive impairments which can be attributed to your major mental illness described as schizoaffective disorder and a history of substance misuse.

8I will now proceed to sentence you on the basis of the agreed summary of the prosecution opening that was read at the plea hearing and was marked as an exhibit.

9On 5 July 2018, you entered the BWS liquor store at approximately 8.55 pm.  There was one customer present.  You walked around and picked up a bottle of Taylor Made branded red wine from a shelf and approached the front counter with the wine.  The store attendant Greta Carlson served you.  You picked up a paper bag from the counter and said to her, 'Put the money in the bag' to which she replied, 'Sorry.'  You then unzipped your jacket and displayed a knife in a sheath that was attached to your belt and you removed the knife from its sheath and said to her, 'Put the money in the bag or I'll stab you.' 

10She then asked you, 'Did you want everything or just the notes?' and then removed mixed denominations of money from two registers within the store and placed them in the paper bag along with the bottle of wine.  You then said to her, 'Sorry, I'll never do this again.  I'm desperate.'  You took the paper bag and left the store.  She then pressed the duress alarm button and closed the store. 

11The total amount stolen was $1974 and the wine was separately valued at $28. 

12Your actions were captured on CCTV footage.  

13You then called your wife at about 9.14 pm.  Your wife is Christine.  You told her that you were a criminal mastermind and that you had robbed the Liquorland at the Thrift Park Shopping Centre, that you were untouchable by police and you had a green light to commit any crimes that you wanted to and that you had taken a knife and got two tills from the Liquorland girl. 

14Your wife asked you whether you had scared the girl and you replied that you had apologised to her.  Five minutes later, you rang your wife again and told her that you dropped your bicycle off at Justin's in Albenca Street and you were on your way to the Royal Oak to win the jackpot.  She then contacted police and told them what you had said. Later, you were located by the police walking along Nepean Highway, Cheltenham, approaching the Royal Oak Hotel.

15You were arrested and after questioning, when asked whether you had just done a stick up, you replied, 'Yeah, the Bottle-O.'  You were searched by police and found to be in possession of approximately $1710.  You were noted to be intoxicated and placed in the cells until you were fit to be interviewed.  Ultimately, no interview was recorded and you were remanded in custody. 

16Your matter eventually resolved at the first committal case conference on 1 October 2018. 

17Mr Chain, your offending has had great consequences for the shop attendant Greta Carlson.  She notes that she is very apprehensive and anxious about going to work.  She is hypervigilant and is concerned that something like this might happen again.  She feels very suspicious and distrustful of customers and no longer enjoys going to work.  She continues to work at the store but no longer does night shifts, and that has had an impact upon her financial circumstances.

18You were intoxicated at the time of the offending and hearing voices.  You acted impulsively. 

19Your counsel, Ms Liang, submitted that your condition had deteriorated, attributable to difficulties that you have been experiencing coping with the loss of  your children.  However, they had been removed from your care some years earlier in 2015. As well, you were non-compliant with taking your anti-psychotic medications and you were not appropriately engaged with mental health treatment. 

20Whilst explaining your behaviour on this occasion, that does not excuse the offending. 

21You knew what you had done was wrong and that is obvious from both your apology to the store attendant and also what you told your wife immediately afterwards. 

22I accept Ms Liang's submission that the offending falls at the low to middle range of seriousness for this offence of armed robbery.  It was not sophisticated and it was opportunistic offending that was of a relatively short duration.  You made no attempt to disguise your identity.  No physical harm was caused to the shop attendant and you immediately apologised to her. 

23Nonetheless, there is a need for the court to denounce your behaviour and to emphasise both general and specific deterrence albeit to sensibly moderate to take into account your mental health condition.  Protection of the community is also a relevant sentencing factor. 

24I have had regard to your history and background.  You were born in New South Wales. You are the eldest of three children.  There are two younger sisters, one of whom lives in Melbourne and one in Sydney.  You do not have any relationship with them.

25Your parents separated when you were age four.  Your father lives overseas and you have had no contact with him since the separation.  Your elderly mother currently lives in Tasmania and you no longer have contact with her.  Your childhood was characterised by disruption with the family moving frequently.  Your mother was an alcoholic and was not able to properly care for both you and your siblings.

26You left home when you were 15.  You lived in various accommodation including boarding homes, with friends and independently.  You left New South Wales and relocated to Victoria in 2011 and have remained here since. 

27As far as your schooling is concerned, you attended 13 different primary schools and left school in Year 9.  You worked as a bricklayer intermittently for 20 years approximately and prior to your arrest, you were working at KJM Dark Bricklaying.  That work is available to you upon your eventual release.

28You have four adult children from a previous relationship.  You separated from their mother in 2003.  You then had some limited contact with the children but there has been no contact for the past four years.

29You met your wife Christine in 2011 and married in the same year.  She suffers from bipolar disorder, schizophrenia and has an acquired brain injury.  You have been her carer in the past.  She currently is living in the home at Parkdale where it is intended that you will return upon your eventual release.  You have two children together, aged three and four respectively.  Both of the children are in protective care. 

30Prior to your remand, you and Christine had weekly supervised visits of the children.  You expressed a strong wish to regain custody of your children upon your eventual release and I understand that proceedings are continuing in the Children's Court with a view to reunification.

31You have a mild acquired brain injury.  You were struck by a car at age nine and 11 and suffered further traumatic head injury when you were a child when your father dropped a trowel on your head.  There is a long term history of cannabis abuse that started when you were about 15 and also you had a long term history of using methylamphetamines but that has recently ceased.  There is also a history of alcohol abuse. 

32Whilst being in gaol, a random urine sample was taken and that is reported as being negative for any drugs.  That report is dated 6 November 2018.  You have also undertaken some education courses and a 12-hour substance use program as well as a Healthy Lifestyle program.

33Dr Aaron Cunningham, consultant forensic psychologist, has written reports dated 15 October 2018 and 26 April 2019.  He states that you had several of drug-induced psychosis in the community in the past and that you suffer ongoing paranoid delusions and auditory hallucinations.  The results of his mental status assessment were consistent with the presence of a psychotic illness and he recommends both psychiatric and psychological treatment for the future. 

34He noted you were motivated to connect with any supports that would work towards unification with your children. He strongly recommends mental health treatment in the community. 

35The neuropsychologist who saw you, Dr Matt Treeby, also recommends ongoing medical management of your schizoaffective disorder.  He said that treatment will be crucially important in terms of ensuring that your cognitive function and functioning across life domains more broadly remains optimised.  Otherwise, you are at risk of experiencing additional cognitive impairment going forward due to your schizoaffective disorder. 

36He also noted your many problems with substance abuse and drug and alcohol treatment is strongly recommended and recommends that any counselling that is provided would need to be appropriately modified to account for your cognitive limitations including your difficulties in particular with verbal comprehension.  He noted that you would find a custodial term more onerous than somebody in good health due to your mental illness in the form of schizoaffective disorder and he said your mental illness also renders you vulnerable and imprisonment and may have an additional adverse impact upon your mental health. 

37He recommends that your mental health be closely monitored by Forensicare during the time you are in gaol. I commend those reports to the authorities so that action can be taken whilst you are in custody to maximise your treatment and to also ensure that you have appropriate treatment regimes in place at the time of your eventual release.

38Ms Liang submitted on the basis of the material she relied upon that limbs 3, 4, 5 and 6 of the Verdins principles.  The prosecutor, Ms Khan, conceded Verdins principles apply with respect to limbs 3 and 4 but did not agree that they applied in respect to limbs 5 and 6. 

39I accept the expressed opinion of Dr Treeby in relation to limbs 5 and 6 and I have taken that into account. 

40General deterrence and specific deterrence will be moderated to take into account your mental health condition and also I have had regard to the fact that your condition may become worse in custody and that you would have greater difficulties coping in custody than a person of normal health. 

41I have taken into account all the mitigating features that were highlighted by Ms Liang including your plea of guilty at the earliest opportunity.  The plea does have real utility.  In particular, you spared the victim the further trauma of having to come to court to give evidence and facilitated justice.  Your sentence will be discounted accordingly. 

42I am satisfied that you are genuinely remorseful for your offending and that is reflected in the full admissions made at the time of your arrest and also your subsequent entry of the early plea of guilty at the earliest opportunity. 

43Dr Treeby noted when he interviewed you that you expressed appropriate remorse.  You told him that you felt sorry and ashamed; in particular, sorry that you had scared the lady. 

44I have had regard to your good progress in gaol.  Whilst in a controlled environment, you have been able to settle notwithstanding you still have some psychotic symptoms.  You have been working and undertaking programs to address your behaviour that led to the offending, namely the 12-hour substance use program and the Healthy Lifestyle program.  There is no evidence that you are currently taking any drugs.  You have completed a Certificate II in cleaning and laundry and have been going to AA meetings and you are expressing a willingness to undergo further treatment.  I understand you have been working both in the kitchen and the laundry area. 

45You do have some positive things available for you upon your release.  There is work available for you as a casual bricklayer with your former employer.  You do have the ability to go back and live at the house with your wife Christine in Parkdale.  There are appropriate mental health services available in the community, but it will be important that you be given appropriate support and encouragement to be compliant with medication in the community and also to take up the advice of any mental health practitioners. 

46I assess your rehabilitation prospects as being fair but it is dependent on your mental health condition being stable and properly managed and you being abstinent from both drugs and alcohol.

47I have already referred to the recommendations of both Dr Treeby and Dr Cunningham in terms of future supports that should be available and I noted that also Dr Cunningham recommended that you get support through the National Disability Insurance Scheme whilst you are in prison.  Steps can be taken by the authorities to ensure that that is applied for and I would recommend that the authorities give consideration to that, having regard to the documented conditions for which you have received treatment in the past.

48Finally, I have already raised with your counsel the issues in relation to the imposition of a community corrections order in combination with gaol and I have formed the conclusion that such is not appropriate.  The Department of Justice and Community Safety extended pre-sentence assessment outcome reports note that you do have high risk of reoffending and that you are currently not suitable for a Community Correction Order.  I have had regard to that recommendation which is reflective of not just the interview that was conducted but also your history of engagement with the Department of Justice in the past when you have been on Community Correction Orders, and also the fact that this offending constituted a breach of an earlier order.

49Overall, I consider that the only disposition that is available to the court is a term of imprisonment to be immediately served with a non-parole period.  I will be fixing a non-parole period shorter than it would otherwise have been to enable supported release back into the community given the very real efforts that you have been making, Mr Chain, whilst in custody towards your rehabilitation and also your expressed interest in treatment via outreach mental health case management.

50The offending involved in this case unfortunately is very prevalent in our community.  That means that general deterrence is of great significance as well as specific deterrence although it will be modified to reflect your particular condition.  It is important that people who work in stores that are visited by people out of hours have a right to feel safe and secure at their workplace and they need to be protected from violent threats of this nature. 

51Could you please stand now, Mr Chain?  I will announce the formal sentence.  In formulating the appropriate sentence, I have had regard to the need to impose just punishment.

52In relation to the one charge of armed robbery you will be convicted and sentenced to three years' imprisonment.  I fix a non-parole period of 15 months' imprisonment. 

53I make the following declaration pursuant to s.6AAA of the Sentencing Act. But for the plea of guilty, I would have imposed a term of imprisonment of five years, to serve three years.  I make a declaration of pre-sentence detention of 351 days. 

54And there is disposal order being sought?

55MS KHAN:  There is, Your Honour.

56HER HONOUR:  I make the disposal order sought.  And is that the only other ancillary order?

57MS KHAN:  Yes, Your Honour.

58HER HONOUR:  All right.  And do you have the disposal order for me to sign, Ms Khan?  We have got - all right.

59MS KHAN:  Thank you. 

60HER HONOUR:  I will sign that.  And that concludes the matter. Thank you both for your attention. 

61MS KHAN:  Thank you, Your Honour. 

62MS GIORGIANNI:  As Your Honour pleases.

63HER HONOUR:  And I will ensure, Ms Giorgianni, that all the material, the doctors' material will be provided to the Adult Parole Board.

64MS GIORGIANNI:  As Your Honour pleases.

65HER HONOUR:  And a copy of my revised sentencing remarks.  Just so that every effort is made to try and address your client's needs whilst he is in custody.  Apparently, at a recent meeting with the Director of Correctional Services, it was communicated that wherever a person is in custody with acquired brain injury and/or other medical conditions that would justify an NDIS plan, they are now taking active steps to obtain that while people are in prison so that then when they are released they have an established treatment plan.

66MS GIORGIANNI:  Fantastic.

67HER HONOUR:  Yes.  So hopefully that will happen in this case.

68MS GIORGIANNI:  Yes.  Thank you, Your Honour. 

69HER HONOUR:  All right.  Thank you.  All right, we can adjourn.

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