Director of Public Prosecutions v Charenko
[2015] VCC 337
•27 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-02210
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NICHOLAS CHARENKO |
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JUDGE: | Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2015 | |
DATE OF SENTENCE: | ||
CASE MAY BE CITED AS: | DPP v Charenko | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 337 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Exell | OPP |
| For the Accused | Mr M. Philips | Victoria Legal Aid |
HIS HONOUR:
1 Mr Charenko, you can remain seated there for the time being. I will tell you when to stand. Do you understand that?
2 OFFENDER: Yes.
3 HIS HONOUR: Thank you.
4 Nicholas Charenko, you have pleaded guilty to one charge of armed robbery. The maximum penalty for this offence is 25 years imprisonment.
5 I have heard a summary of the offending. It is not my intention to repeat the whole summary. It is exhibit A in this hearing.
6 Briefly, on 21 July 2014 at about 10 am you entered a milk bar at 36 Hampshire Road, Sunshine. You approached the counter, produced a knife and pointed it at the victim. You demanded money. When the victim opened the till you reached over the counter and took approximately $400. You left the store, got into your car and drove away. I accept that the offending was not well planned. You wore no disguise and you left the milk bar in your car.
7 Notwithstanding the fact that this is an armed robbery at the lower end of seriousness, the victim has – not surprisingly – suffered considerably as a result of your offending. He has suffered a severe psychological reaction. He has not been able to open his shop since the incident and, as a result, he has also suffered significant financial hardship.
8 You were apprehended at about 10.35 on 23 September 2014 in the car park at Crown Casino. You were living in your car at the time. You had been doing so for some months. You were arrested and the police found the clothing you wore at the time of the offending and the knife you had used. You were interviewed and admitted the offence.
9 You told Dr Owen, a consultant psychiatrist who assessed you 9 February 2015, that at the time of the offence you were short of money because you had been spending most of your pension payments on ‘synthetic cannabis’.
10 You were remanded in custody.
11 On 13 November you were bailed into the CISP program. On 2 December your bail was revoked as you had nowhere to live and you had been unable to comply with the demands of the bail program. You have been in custody ever since that date.
12 You indicated an intention to plead guilty at the first committal mention on 4 December 2014. I accept that you pleaded guilty at the earliest opportunity. I accept that you are remorseful. Your plea of guilty has saved the victim from the trauma of giving evidence and saved the community the cost and expense associated with a criminal trial. You will be given credit for all of these matters.
13 You are a 34-year-old man with no prior criminal convictions.
14 You grew up in a stable family. You have two brothers and a sister. You left school at the end of year 11 to commence an apprenticeship. You then worked for 13 years as a butcher. You were married in 2008 and you have two young children. You separated in January 2014 and your former wife now lives in Cairns with the children.
15 Your life changed dramatically in 2011 when you were admitted to the Sunshine Hospital and diagnosed with schizophrenia. Since then there have been a number of admissions to psychiatric units or Psychosocial Assessment and Rehabilitation Centres. You have also been, during this time, on a community treatment order. You have been on your current medication – zuclopenthixol deconate - since November 2013. On the day after the commission of the armed robbery you were admitted to the Frankston Hospital Psychiatric Unit.
16 In his report to the court, Dr Owen expresses the opinion that you were experiencing ongoing referential experiences around the time of the offence and hence “acute schizophrenia acted” to impair your ability to make calm and rational choices and to think clearly. He goes on to say that, in addition, the executive impairments common in schizophrenia may have reduced your ability to exercise appropriate judgement. The fact that you were admitted to a psychiatric facility the day after this offence is telling. You were diagnosed, at that time, with a relapse of schizophrenia and a situational crisis. The discharge summary reports that at the time of your admission you gave a one-week history of auditory hallucinations commanding you to commit the offence due to financial strain and suicidal ideation.
17 Mr Charenko, normally the commission of an armed robbery would attract a significant sentence of imprisonment. That is because general deterrence and denunciation are generally the paramount sentencing considerations. However, the sentence in your case must be moderated because your mental functioning at the time of the offence was affected in the ways identified by Dr Owen.
18 I am satisfied that a number of the Verdins’ principles apply in this case. First, your mental illness reduced the moral culpability of your offending conduct. Secondly, your illness is an important matter for me to consider in determining the kind of sentence to be imposed and how that sentence is to be served. On this point, Dr Owen expresses the opinion that a “lengthy term of imprisonment would delay the psychosocial rehabilitation that is also required for a comprehensive program of care for schizophrenia, as this cannot be provided in a prison setting”. Thirdly, I must moderate the weight to be given to the principle of deterrence. Finally, I must also recognise that any sentence of imprisonment will be much more onerous for you than it would be for someone not suffering from your mental illness.
19 In his report, Dr Owen notes that your symptoms appear to be well controlled with antipsychotic medication. However, he also says that it is likely that there is a connection between your relapses into psychosis and your cannabis and ‘synthetic cannabis’ use.
20 You were apparently a modest user of cannabis between the ages of 16 and 21. You told Dr Owen that you did not use again until you were 30 years old. You then started smoking heavily. Dr Owen points out that the history of your hospital admissions correlate with the onset of your heavy drug use at the age of 30.
21 In 2014 you commenced smoking ‘synthetic cannabis’, which you purchased legally from tobacconist stores. Surprisingly, or surprisingly to me at least, the law in this State, while making cannabis use illegal, permits the use of synthetic forms of the same drug. I understand New South Wales has outlawed synthetic cannabis. If this is correct, such an approach would seem to accord with sound public policy.
22 You have found it difficult to accept the probable connection between your cannabis use and your mental health.
23 Mr Charenko, you have to understand that you cannot use cannabis or ‘synthetic cannabis’. Using drugs other than those prescribed by your doctor will compromise your mental health and increase the risk, it seems, of you getting into more trouble.
24 You have now spent 144 days in custody. It is your first time in custody and your mental health has stabilised. Your sister is willing to provide you with a place to live. Dr Owen says that with your illness, “the best outcomes result from a combination of pharmacological treatment and psychosocial treatment which addresses exacerbating factors such as drug use problems, relationship stresses, unemployment or inactivity and withdrawal from others. Such treatment is best delivered by a case managed psychiatric team such as can be provided by public mental health services”.
25 I am satisfied that this is a case where it is now appropriate to release you on a Community Corrections Order (CCO) with conditions designed to facilitate the treatment regime suggested by Dr Owen. I will provide Community Corrections with a copy of his report to assist in their administration of the order.
26 Mr Charenko, will you please stand.
27 On the charge of Armed Robbery you are convicted and sentenced to 144 days imprisonment. I declare that you have served 144 days by way of pre sentence detention. In addition, you will be placed on a Community Corrections Order for a period of 18 months from today’s date. The order will have the following special conditions. You are to be under supervision for the period of the order. You are to undertake assessment and treatment (including testing) for drug abuse and dependency as directed and you are to undergo mental health assessment and treatment as directed. You must attend the Werribee Office of Community Corrections before 4 pm tomorrow.
28 If you had pleaded not guilty and been found guilty after trial, I would have imposed a longer term of imprisonment before releasing you on a CCO, or a Community Corrections Order.
29 I make the disposal order sought by the prosecution.
30 I order you to pay $400 compensation to the victim.
31 I order that you undergo a forensic procedure for the taking of a scraping from your mouth. For the purpose of undergoing that procedure, you must report to the Officer in Charge of the Werribee Police Station during the four-week period commencing 28 days after today’s date. If you fail to cooperate in the taking of the sample, the police may use reasonable force to obtain it. I make the order for the following reasons – the seriousness of the offending, the order is in the public interest and the order is consented to.
32 You can take a seat there for a moment, Mr Charenko. Are there any other matters?
33 MS MILLER: No, Your Honour.
34 HIS HONOUR: No. So, Mr Charenko, if you could just stand again. Do you understand what has happened?
35 OFFENDER: Yes, I do, Your Honour.
36 HIS HONOUR: So you have been sentenced to 144 days and I have declared that time as served. So you have served the gaol time now.
37 OFFENDER: Yes, I do, Your Honour.
38 HIS HONOUR: You are eligible for release on a Community Corrections Order providing there are no other warrants outstanding, and I don’t think there are. I have got no reason to believe that you will not be released this morning from the facility in this court. But you will have to go with the officer back downstairs just to be processed before your release. Your mother and sister who are both here will no doubt wait for you and you will be able to go with them, and your sister has very kindly offered you accommodation and will offer you her support, and your mother obviously supports you.
39 So what you need to do now is focus on staying out of trouble, not abusing cannabis or ‘synthetic cannabis’, and working with your doctors to maintain your health. Do you understand all of that?
40 OFFENDER: Yes, I do, Your Honour.
41 HIS HONOUR: Yes, thank you. All right. Well, you just have to go back downstairs – or, Mr Philips, is there anything you wanted to - - -
42 MR PHILIPS: Is there a requirement that he sign the order, Your Honour? I believe there is.
43 HIS HONOUR: Yes, he will have to sign the orders. Yes, of course he will. Thank you. I will have to sign them as well, which I will do right now.
44 MR PHILIPS: Your Honour, may I assist Your Honour’s associate.
45 HIS HONOUR: Yes, of course.
46 MR PHILIPS: Your Honour, that has been signed by Mr Charenko.
47 HIS HONOUR: Thank you. Well, you will explain to his mother and sister where they can wait.
48 MR PHILIPS: Indeed.
49 HIS HONOUR: Yes, thank you. Well, Mr Charenko can be removed.
(Short adjournment)
50 HIS HONOUR: Mr Philips, for the benefit of the transcript, I will just explain that the order that I made required Mr Charenko to attend the Werribee Community Corrections service. The order he signed, unfortunately, said Sunshine.
51 MR PHILIPS: It did.
52 HIS HONOUR: So I will formally amend and correct that order to show that the office is the Werribee Community Corrections office. The reason we had to bring Mr Charenko back up here was to just get him to sign that corrected order, and I will arrange through my associate to advise Ms Miller and the OPP that the order has been corrected in this way.
53 MR PHILIPS: Your Honour, perhaps I can give an undertaking to do that as well.
54 HIS HONOUR: Thank you. Thank you, Mr Philips. All right. Well, I will now just sign the orders afresh and I will ask you to assist Mr Charenko.
55 MR PHILIPS: Thank you, Your Honour.
56 HIS HONOUR: Now, Mr Charenko, we just had the wrong office on the original order, so I’m just getting you to re-sign the order showing that you are going to Werribee. Yes, thank you.
57 MR PHILIPS: Thank you, Your Honour. Yes, that has been signed again, Your Honour.
58 HIS HONOUR: Yes, thank you, Mr Philips.
59 MR PHILIPS: Thank you, Your Honour.
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