Director of Public Prosecutions v Conroy

[2020] VCC 1205

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION Revised
Not Restricted
Suitable for Publication

CR-20-00789

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAYNE CONROY

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JUDGE:	HER HONOUR JUDGE FOX
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2020, 30 July 2020
DATE OF SENTENCE:	6 August 2020
CASE MAY BE CITED AS:	DPP v Conroy
MEDIUM NEUTRAL CITATION:	[2020] VCC 1205

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Sargent	Office of Public Prosecutions
For the Accused	Mr G. Thomas	Greg Thomas

HER HONOUR:

1Kayne Conroy, you have pleaded guilty to one charge of armed robbery.  You have also pleaded to a summary charge of fail to answer bail.

2The maximum penalty for armed robbery is 25 years' imprisonment.  The maximum penalty for failing to answer bail is two years' imprisonment.  Because you committed the armed robbery in company - that is, together with another person, or persons - the armed robbery is what the law calls a Category 2 offence, and I will come to that later in my reasons.

3You have also admitted a 17 page criminal record.

4A summary of prosecution opening was read on the plea and marked Exhibit A.  I will briefly summarise your offending.

5On 8 January 2020 you failed to answer bail at the Melbourne Magistrates' Court in relation to other matters.

6On 6 February 2020 at approximately 8.45 pm, you together with your co-offender, Mr Martin, got out of Mr Martin's car which was parked in Coburg North.  You were both observed with your hoods up over your heads walking quickly towards the Caltex store.  The victim in this matter was working alone in the Caltex petrol station.  You and Mr Martin walked up to the counter and asked for cigarettes.  The victim scanned the cigarettes and told you their price.

7You were holding a screwdriver in your right hand, out of view of the victim.  At this point Mr Martin seems to look at you, and you then displayed the screwdriver and pointed it at the victim, holding it over the counter and past the wires separating the shop floor from the staff area behind the counter.  You said, 'Give us the money and don't touch anything'.  The victim replied, 'Okay, I'll give you the money'.  He went to touch the screen to open the register and you told him not to touch anything. He said he needed to touch the screen to get the money.  When the victim opened the till you leaned over through the wires to take the till.  You were unable to get it out of the register so the victim gave you the till.

8You took the till and told the victim to get more cigarettes.  Mr Martin then took the cigarettes and you told the victim to open the front door.  You and Mr Martin then both ran out of the store, toward Mr Martin's car.  A witness observed you both running from the store; 'springing and one of them was laughing'.

9You stole approximately $270 cash and the packets of cigarettes were worth about $60 each.  The entire incident was captured on CCTV and played at the plea hearing.

10On 26 March 2020 you were observed by police walking in Reservoir.  You were arrested and conveyed to the Heidelberg police station.  You were assessed by telephone and deemed not fit to be interviewed.  Mr Martin was arrested on 13 February 2020.  In his record of interview he made a number of admissions and I am told he will be pleading guilty to the armed robbery charge on 11 September this year and he is 34 years old.

11Your matter resolved to a plea of guilty at committal mention and you have pleaded guilty at the earliest possible stage.  This entitles you to a significant sentencing discount.  In particular, the victim has been spared the ordeal of having to give evidence and be cross-examined, and you have spared the community the time and expense of running a trial.  Your plea of guilty also shows you accept responsibility for your offending.

12Your plea of guilty perhaps indicates some remorse, and you told Dr Owens that you felt sorry for the victim and no one deserves to get robbed.

13A victim impact statement was tendered in this matter.  The victim says at the time of the armed robbery he was shocked and just did what he was asked.  He stayed home the next day, and when he went back to the store he started to feel scared.  He does not feel safe and keeps the doors shut when it starts to get dark.  He has a young family and feels the incident had an adverse effect on his life and has made him scared to work at night.

14Armed robbery is a serious criminal offence.  This armed robbery was committed on a soft target.  The victim was alone in the store with no security beyond CCTV.  Your offending was committed in company – that is, with another person.  There was a degree of pre-meditation and pre-planning in that you had armed yourself with a screwdriver and pulled your hood over your head.  At the time of your offending you were subject to a Community Correction Order and there was an outstanding warrant for your arrest, given you had failed to appear on bail.

15I accept the offending was of relatively short duration.  The weapon you chose, a screwdriver, is not the most serious of weapons, and certainly less serious than a gun or large knife.  There was no actual physical violence or contact with the victim.

16Given the armed robbery is a Category 2 offence I must impose a custodial sentence unless one of the criteria under s.5(2H) applies.  A custodial sentence includes a period in a Youth Justice Centre.  Your counsel did not submit any of the criteria in s.5(2H) apply in your case.  The real focus of his plea was that you should be detained in a Youth Justice Centre and not sentenced to adult custody.

17I obtained a pre-sentence report from Youth Justice compiled by Mr Gene Bell.  A psychological report of Gina Cidoni was tendered on the plea, together with a psychiatric report by Dr Nicholas Owens, and your background is set out collectively, although not always consistently, in these reports.

18I turn now to your personal history.  You were born on 9 August 1999 and you are a few days away from turning 21.

19You were born in Bacchus Marsh and your parents separated when you were about four months old.  You regard your mother's next partner, your stepfather David, to have been your father throughout childhood.  You have one half-sister from your mother's previous partner and three half-sisters from your mother's relationship with David.  You also have two stepsisters from David's previous partner aged in their late 20s.

20You describe your stepfather as a good man but witnessed arguments between him and your mother, and also violence by him towards your mother when you were a child.  They were both heavy drinkers and used cannabis and ice.  When you were 14 years old your mother and David separated.  You moved to Melton to stay with your maternal grandmother, but after about six months she kicked you out.  After this your sisters went to live with David and you went into residential care.  Your mother went to live with a new boyfriend. You told Dr Owens that you 'sort of asked for resi care'.

21You were placed in residential care from age 14 to 18 and estimate you were placed in about five different units.  You were never abused in care and deny being abused when you were living with your mother and David.  At age 17 you lived briefly with your mother in Preston.  Apparently she has not been in trouble with the law and is now clean from substance abuse and lives in Sunshine with her partner.

22Your biological father visited you while you were living with your mother.  Up until the age of 14 you spent time with your father every second weekend.  When you were 18 you moved in with your father in Thornbury.  Apparently you argued often and this almost became physical.  You admit that you saw illegal things going on when you lived with your father but you now get on well.  Indeed your father was remanded for drug matters including commercial trafficking and you were sharing a cell at one point since you have been on remand.

23You attended one primary school in Sunshine, and then Sunshine College until the end of first term Year 7, when you were expelled for smoking cannabis.  You then attended a different school which you described as a school for troubled teens for a couple of months, and then returned to mainstream school.  You next attended Oasis Special School then St Joseph's Flexible Learning Centre, and ultimately left school partway through Year 9.  You were not a good student and did not learn much.  You attended Parkville College when in Youth Justice however you have not completed Year 9.

24You were briefly prescribed medication for ADHD but believe that made little difference.  You were also suspended from school at times for fighting.  Apparently you made friends well and you still have friends dating back to primary school.

25You have never been employed and never worked in any capacity.  You told
Dr Owens you would like to get a job, however you have not completed any training, courses or other qualifications.

26You told Ms Cidoni that after you are released you intend to live with your mother in Sunshine.  You told Ms Cidoni that you believe she will help you abstain from drugs and are enthusiastic about spending time with her. However, you told Mr Bell you intend to live with your girlfriend.  I do not say this critically but it does not seem you know where you will live, or be able to live, when released.

27You have been imprisoned during COVID-19 and I accept this has made and will make prison more difficult for you, whether in Youth Justice or prison.  Personal visits have been suspended indefinitely, prisoners have been increasingly locked down and courses and treatment options have been significantly reduced or ceased altogether.  There is also the general anxiety that comes with being in prison at this time and the fear of what will happen if COVID-19 spreads among the prison population.

Mental health

28According to Dr Owens you have a probable diagnosis of schizophrenia.  Material suggests you have been suffering from well-established psychotic symptoms typical of schizophrenia since at least mid-2018, which have required inpatient treatment and which appear to respond at least partly to antipsychotic treatment.

29Justice Health material from August 2019, just after you were remanded on a previous occasion, indicates evidence of florid psychosis.  You were placed on an inpatient assessment order at point of release from prison on 6 September 2019, as you were regarded as requiring acute psychiatric inpatient treatment.  It seems you were then admitted as a compulsory patient to Werribee Mercy Psychiatric Unit on 10 September 2019 for a period of time, and then remanded again back into custody.  At this point it seems your mental health was relatively stable.  You were released on bail at the end of October 2019.

30Other material from 2018 shows your first mental health hospital admission was in November 2018, when you presented with a three-month history of psychosis including bizarre and grandiose delusions.  It seems you responded well to an antipsychotic and were referred to the Northern Area Youth Early Psychosis Program, where you were followed up with until you moved out of the area.

31As a result of these matters you were remanded into custody on 26 March this year.  On 1 April you were assessed by a consultant psychiatrist as there were concerns about your mental health.  The psychiatrist did not observe clear signs of psychosis but nonetheless commenced you on Olanzapine and maintained close reviews of you.  At a review on 28 April you described auditory hallucinations and bizarre and grandiose delusions but did not appear distressed and were asking to recommence antipsychotic injections.  As a result depot injections were commenced and at a further review in June you reported no further symptoms of mental illness.

32You have a long history of drug use and were exposed to drug use as a child.  You drank alcohol heavily between ages 13 and 16.  You started smoking cannabis around the age of 12 and ice around the age of 13.  You have been injecting ice since you were 18.  You have also used heroin, MDMA and GHB, and at the time of this offending you were using cannabis and ice.

33According to Dr Owens you meet the criteria for stimulant use disorder and cannabis use disorder and there is likely to be a strong connection between relapses of your psychotic symptoms and your drug use.  Dr Owens is of the view that it would be reasonable to assume that between October 2019 and your imprisonment in March 2020 you were in a chronically psychotic state.  He was unable to identify any direct or specific connection between symptoms of psychosis and this offending, however considered it probable that your judgment was impaired partly as a result of the effect of drug use and partly as a result of chronic psychosis, which was untreated at the time.  Dr Owens is unable to determine the extent to which each of your untreated schizophrenia and drug use disorder impacted on your decision-making at the time of the offending.

34Your counsel conceded there is no direct causal connection between your mental health and your offending on this occasion.  Your counsel did not put that mental health or drug use caused this offending, rather that you were hungry, homeless and made a decision to commit this offence.  Your counsel submitted that Verdins limb 2 is enlivened, as your diagnosis and complex mental health picture mean you would be better treated and supervised in Youth Justice.  He also argued that general deterrence should be moderated as at the time of sentencing given your diagnosis of schizophrenia.

35I accept that limb 3 has relevance here and your diagnosis is one reason to moderate general deterrence.  I will deal with limb 2 when I come to the evidence of Mr Bell.

Bugmy principles

36Your counsel described your upbringing as dysfunctional and marked by violence, dislocation and drug use by your parents.  He argued the principles in Bugmy apply in your case.  Both your parents used drugs and you commenced using ice at a very young age, in circumstances where drug use was the norm and you had no proper support or role models.

37Your counsel argued it is not reasonable here to find that your drug use is an aggravating factor because your past history of use put you on notice that if you use drugs it will cause your psychosis to get worse, in circumstances where you are a very young man and you have only just received a formal diagnosis of schizophrenia.  I agree with this submission.  Whilst your drug use does not mitigate your offending, nor do I find in the circumstances that it aggravates your offending.

38I accept that your disadvantaged background does impact your moral culpability and moderates the importance of general deterrence.  Your offending and subjective culpability cannot be realistically equated with a 20 year old who committed the same offence but had the advantages of a stable home life and positive role models.  General deterrence, whilst relevant, should be somewhat moderated in your case, given your disadvantaged background and your youth.

39Your counsel relied principally on your youth as the most important factor when sentencing you.  He argued this represents the last opportunity for both you and the community to expose you to a regime that may see you rehabilitated.

40Pursuant to s.32 I may make a Youth Justice Centre order if I have received a pre-sentence report and believe that there are reasonable prospects for the rehabilitation of the young offender, or I believe that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in adult prison.

41Ms Cidoni described you as 'still immature' but becoming hardened as a result of your lifestyle, contacts and incarcerations.  She said you are immature and impressionable, and a vulnerable person in view of this in that you could be harmed in prison or exposed to inmates who may encourage further negative patterns of behaviour.

42Dr Owens in his addendum report stated he thinks you present as immature, and thinks 'it is likely that his relatively young age, impaired reality-testing secondary to his psychotic illness and proneness to grandiosity when unwell make him more vulnerable to undesirable influences in adult prison.'

43The report of Mr Gene Bell from Youth Justice found you unsuitable for a Youth Justice Centre order.  As a result, and at the request of your counsel, Mr Bell attended and was cross-examined by Mr Thomas.  I come now to his report and evidence.

44I note Mr Bell was not cross-examined about the table at p.2 of his report but I note that it includes matters where you were re-sentenced on a breach, and in that way some charges are repeated.

45You have a very relevant, lengthy and serious criminal history for a young person.  You have eight prior convictions for armed robbery, all dealt with in the Children's Court.  You have three prior convictions for robbery and two for attempted robbery, also dealt with in the Children's Court.  You have prior convictions for violent offending, dishonesty, drug possession and breaching court orders.  You have had eight Youth Justice Centre orders with substantial concurrency, resulting in four separate periods in Youth Justice and four periods of youth parole.  You have breached parole on every occasion.  You have received two Community Correction Orders and both are currently listed for breach due to further offending and failing to comply.

46On the last occasion of parole you refused to engage in planning or supports upon release, including psychiatric treatment.  You also failed to engage in psychiatric treatment last time you were in Youth Justice and refused to attend the service, telling the unit manager to 'fuck off'.  It seems you have engaged better with psychiatric supports in adult custody than the last time you were in the Youth Justice Centre.

47You were interviewed twice by Mr Bell.  The first interview was terminated prematurely due to your argumentative and demanding responses and increasing frustration.  The second interview was terminated as you did not present as interested and were not engaging.  You did disclose auditory hallucinations with external homicidal commands in the first interview, but have not followed that up with your psychiatric team and refused to discuss it further with Mr Bell.  Mr Bell found you do not present as being particularly immature or impressionable in the context of Youth Justice.  You do present as a risk to other younger and far more impressionable males currently in the Youth Justice system.  He found you presented as somewhat manipulative and argumentative and do not appear motivated to actively address issues such as offending behaviour or extensive substance use.

48In cross-examination Mr Bell described your past behaviour in Youth Justice as problematic.  He said there were short periods of positive engagement but predominantly your behaviours were negative.  Last time you were on youth parole you were non-compliant, unwilling to engage and outright refused to engage.  Mr Bell did not agree that your psychiatric issues would not be adequately monitored in adult custody.  He said Youth Justice would follow up your mental health issues and encourage you to, and adult prison would do the same.  He said there are limits in prison, in Youth Justice and in the community, especially if a person will not engage.

49Returning to Verdins limb 2:  In my view, based on the evidence of Mr Bell and your attitude to treatment last time you were in Youth Justice, the argument that your mental health will be better treated and supervised in a Youth Justice Centre is not made out.

50Mr Bell said you are not unsuitable because of your age or criminal priors, rather he said in the interviews your behaviour was exceptionally poor and you were argumentative and demanding.  He said your drug use is a problem, but your attitude and conduct issues are as much of a problem.  He agreed your psychiatric illness has escalated and is becoming more of an issue.

51He said you have been engaged in one incident in adult custody, being a play-fight with another prisoner which he described as an exceptionally minor incident and not serious at all.  You have not been placed in a Youth Unit and that indicates to Mr Bell that you have been behaving.  It could be that you are behaving out of fear.

52On the evidence I do not believe you have reasonable prospects of rehabilitation.  I hope very much that I am wrong, but the evidence of Mr Bell plus your history of breaching parole and refusing to engage with supports leads me to this view.  Your counsel did not really press for a different conclusion.

53Your counsel argued you are particularly impressionable, immature and likely to be subject to undesirable influences in adult custody.  He said you have been in adult jail for close to four months and it has had its effect - you have settled, you are co-operating, and engaging with mental health services. However, that is not at all how you presented in interview with Mr Bell.  It may be that you do behave and engage better in adult prison than with Youth Justice.

54I accept that you are an immature young man, however I do not believe on the evidence that you are particularly impressionable, immature or likely to be subject to undesirable influences in adult custody.  Further, having regard to the nature of the offence and your age, character and criminal history, I have determined that a Youth Justice Centre order is not appropriate in your case.  Specific deterrence and community protection are relevant sentencing principles here and repeated Youth Justice Centre orders have proved no deterrent in your case.

55In all the circumstances the sentence of the court is as follows:

56On Charge 1 you are convicted and sentenced to two years six months' imprisonment.

57On the summary charge you are convicted and discharged.

58This makes a total effective sentence of two years six months' imprisonment and I fix a non-parole period of 16 months’ imprisonment.

59I declare that you have served 133 days, not including today, by way of pre-sentence detention, and I reckon that period as time already served under this sentence.

60I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty the sentence I would have imposed is four years' imprisonment with a non-parole period of two years six months’ imprisonment.

61HER HONOUR: Is there anything else? Thank you. 

62HER HONOUR: We will adjourn now.

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