Director of Public Prosecutions v Cooper (aka Carl Wilson)
[2020] VCC 913
•25 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02345
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN COOPER (also known as CARL WILSON) |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 June 2020 | |
DATE OF SENTENCE: | 25 June 2020 | |
CASE MAY BE CITED AS: | DPP v Cooper (aka Carl Wilson) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 913 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: 1 charge of attempted armed robbery and 1 summary charge of committing an indictable offence whilst on bail – 48 year old offender with significant criminal history and diagnosed conditions of schizophrenia, Anti-social Personality Disorder and Substance Abuse Disorder
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: Total Effective Sentence of 2 years and 11 months with non-parole period of 2 years. s6AAA declaration: 4 years’ imprisonment with a non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms H Baxter | Solicitor for Public Prosecutions |
| For the Accused | Mr B Lindner | R. Greensill Lawyers |
HER HONOUR:
1 Steven Cooper, also known as Carl Wilson, you have pleaded guilty to one charge of attempted armed robbery, which carries a maximum penalty of 20 years’ imprisonment. You have also consented to a summary charge of committing an indictable offence whilst on bail being transferred to this Court and have pleaded guilty to that charge, which carries a maximum penalty of 3 months’ imprisonment.
2 Your offending conduct is detailed in the Summary of Prosecution Opening Upon Plea (Exhibit “A”). You and your victim were each residents of multi-storeyed public housing units located in Elgin Street, Carlton. On 17 May 2019 at approximately 12.30pm, your victim was in the foyer of the block of units waiting for a lift. He heard you yell out his name and turned around to see you enter the foyer with a bike. He noted that you seemed drug-affected. In fact, in his statement to police, he stated, “He sounded off his head”. He went on to say, “He was foaming at the mouth, he had slurred words, his eyes were bulged open. He was off his head. He looked like he was up for at least a week.”[1] You then pulled a knife from the waist area of your pants. It was wrapped in a tea towel. You removed it from the tea towel and pushed your victim into the foyer wall and held the knife, which was about 25 centimetres long and bladed on both sides, to his throat. You stated, “Give me drugs, give me money and don’t say you don’t have any.” The victim told you that he did not have any, and you yelled, “Shut up or I will slash you.”
[1]Pages 1 and 2 of the victim’s statement made to police on 21 May 2019, Depositions page 14-15.
3 You were interrupted by other persons coming into the foyer area. You wrapped up and concealed the knife and began to act normally. When the lift arrived, other people and the victim and yourself got into the lift. You exited at level one, where your unit was located, and your victim exited at level 10, where his unit was located. The incident was captured on CCTV. Later that evening at approximately 7.30pm, you banged loudly on the door of the victim’s apartment yelling his name and using threatening words and were told to go away. Your victim called police, who arrived some time later. Your victim stated that he decided not to report the incident because he “didn’t want to cause trouble” and “living in that building sometimes it can make things worse.”[2] Some days later, on 21 May 2019, your victim was asleep in his unit when he was awoken by you banging on the door. Following this, the victim called police again and made a report about the incident with the knife.
[2]Paragraphs 28 and 29 of the victim’s statement
4 On 23 May 2019, you were arrested by police who, upon executing a search warrant of your unit, found a knife and, also, clothing identical to that which was worn by you as depicted in the CCTV footage on 17 May 2019.
5 When interviewed you made some admissions. You identified yourself in CCTV still photographs taken from the footage of the incident on 17 May 2019 and admitted that the clothes seized by police were those worn by you at the time and that the knife found by police in your unit was the one which you had used in the incident. You claimed that your victim was a drug dealer but “he went all cold on us. Like he was – went all funny” and when you saw him in the foyer, you said to him, “What’s going on”” and then “I'm sick of yous talking shit” and pointed the knife at him.[3] You stated that you pointed the knife in his face, telling him to, “Stop shit talking about me”, but denied that you tried to rob him or had threatened to slash his throat.[4] You also denied that you were drug or alcohol-affected.[5] When police later asked you to elaborate upon him “talking shit about you”, you stated, “I - just, yeah, I said, ‘I'm sick of cunts talking shit,’ as in if we’re gunna rob him…” Police then asked whether he had been talking about you behind your back and it had offended you, and you answered, “Probably, I don’t know.” Police then asked whether that had got back to you and you said, “When I - that's not the issue. The issue was that I was supposed to have tried to rob him. That's not the issue. I had said to him, ‘I'm sick of cunts talking shit.’"[6] Subsequent to that, you told police that no-one had said anything to you prior to the Friday incident (ie. the offence to which you have pleaded guilty),[7] although later in the record of interview you stated that, before the Friday incident, you got told that your victim was worried that you were going to “run through” and “went cold right from the Wednesday to the Thursday. He stopped letting us in his house and I didn’t know why it was a problem, and then on the Saturday I was told what the problem must have been but I’ve seen him anyway where he said he had no problem with us and we were welcome to come up.”[8] Later in the record of interview, you reiterated that someone came to see you the next day after the incident, Saturday. You acknowledged that your victim would be worried from the Friday incident. Nevertheless, you stated that he had been “cold” beforehand. You went on to state “He was worried about obviously us doing that but he never said it, and that was the first time I’d confronted him… in the foyer…”[9]
[3]Questions and Answers 54 – 56 in the record of interview
[4]Questions and Answers 73 – 81, 284-5, 301, 304, 309, 311
[5]Questions and Answers 105 - 107
[6]Questions and Answers 242 – 244
[7]Question and Answer 248
[8]Question and Answer 257
[9]Questions and Answers 259 to 268
6 At the time of offending you were on bail, having been placed on bail two weeks earlier on 3 May 2019 for shop theft. This is the factual basis for the summary offence of committing an indictable offence on bail to which you have pleaded guilty.
7 You are presently aged 49 years, having been born on 30 September 1970. You come before the Court with an extensive criminal history dating back to the age of 18 years of age in South Australia. Over the ensuing three decades you have appeared regularly before Courts for offences which are very concerning. They comprise multiple violent offences: a host of assault charges, including intentionally causing serious injury and recklessly causing serious injury, rape and indecent assault. They also include a host of dishonesty offences, including aggravated burglary, many theft charges and obtaining property by deception. In addition, you have prior offending on charges of threatening to inflict serious injury and a variety of charges involving use or possession of controlled weapons and, also, assault with a weapon.
8 When you were 27 years old, you received your first term of immediate imprisonment of 5 months and 22 days for the offence of assault occasioning actual bodily harm. Over the years, you have breached many court orders including Community-based or Community Correction orders, Intensive Correction Orders and suspended sentences of imprisonment. On 24 February 1998, following a trial, you were convicted in the Melbourne County Court of two charges of rape and other injury and indecent assault charges, as well as false imprisonment. On an appeal to the Supreme Court, although there was some reconfiguration of the sentence, the total effective sentence of 9 years with a non-parole period of 5 years remained unchanged. Following that sentence, there have been further breaches by you of non-immediate custodial sentences and Community Correction Orders and you have served a number of sentences of imprisonment of varying lengths. The most recent sentence of imprisonment was imposed at the Melbourne County Court on 13 April 2017 for a variety of dishonesty and violent offences. It was a total effective sentence of 18 months with a non-parole period of 9 months. You told the Court that you served the entirety of that 18 month sentence.
9 In a plea on your behalf, Mr Lindner told the Court that your natural father was West Indian and your natural mother was English, however, you were adopted in infancy in England and your adoptive parents brought you to Australia with your stepsister, Audra Cooper, who is some four years older than you. She was also adopted, but has different biological parents from you. You grew up in Adelaide. According to a reference from your sister, Ms Cooper, (Exhibit “8”) and also oral evidence given by her, your adoptive mother suffered from depression and anorexia and your adoptive father was aloof and, at times, was cruel to you. She stated that she moved out of home when she was 15 years old because she found living with your mutual adoptive parents difficult and, a few years later, when you were approximately 14 years old, you came to live with her. It seems that your attendance at school from early adolescence was irregular and you ultimately ceased any formal schooling by the age of fourteen.
10 Your sister stated that, with the assistance of her partner, you obtained work with him in a business which involved skinning kangaroos, but you tended to move out from her home and then come back and this was around the time that you started to become involved with the juvenile justice system. You later moved to Victoria, but your sister has continued to keep in touch with you, both by telephone and by visiting you in Melbourne three or four times per year. She told the Court that you have struggled with homelessness and mental health issues for a long time. In 2005, you obtained your unit at the public housing where the offending occurred and have maintained your tenancy there for approximately 15 years, notwithstanding periods of incarceration and inpatient treatment in hospitals and mental health facilities.
11 A report from Waratah Clinic, Adult Community Health Service, North Western Mental Health, by Dr Arthur Kokkinias, psychiatrist, dated 14 April 2020 was tendered as Exhibit “3”. The report noted that you had received psychiatric treatment through that clinic from 24 May 2010 on a Community Treatment Order, after having been discharged from Thomas Embling Hospital. You have been seen there periodically since that time, when you were not in custody or an inpatient at a psychiatric unit. The report states that you have been diagnosed with schizophrenia, in addition to an Antisocial Personality Disorder and Substance Abuse Disorder.
12 The report reveals a history that you were first treated for psychiatric issues in 1991 when you were admitted to Royal Park Hospital with alcoholic hallucinations. In 1994 you were first diagnosed with schizophrenia and commenced on the medication Stelazine. You had been treated at Larundel in 1995, Royal Park Hospital, again, in 1996, and Hillcrest Hospital in 1998. In addition, you had been seen at Clarendon Clinic (St Vincent’s Hospital community mental health clinic) as well as having been treated by Forensicare services at the Melbourne Assessment Prison, Thomas Embling Hospital and, more recently, at Ravenhall Prison.
13 From 1996 to 1999, you were receiving outpatient treatment through Forensicare and St Vincent’s Hospital and were administered the long-acting injection of anti-psychotic medication, Flupenthixol. As previously mentioned, you later came to be treated at Waratah Clinic in May 2010 under a Community Treatment Order after being discharged from Thomas Embling Hospital. However the report notes that, whilst in the community and being treated at that clinic, your treatment has been complicated by your ongoing polysubstance use, ambivalence towards rehabilitation and very limited engagement with staff at the clinic. There was a theme in the report that you were non-adherent to prescribed medication and failed to attend scheduled appointments.
14 The report stated that, from 28 February to 7 March 2014, you were an involuntary patient under the Mental Health Act at Royal Melbourne Hospital psychiatric inpatient unit, John Cade Unit. This was said to be in the context of a deterioration in your mental health, including paranoia, making threats to shoot your ex-partner and threatening staff, whom you accused of monitoring you with their phones. You were discharged to the care of Waratah, but it was noted that, despite being on a Community Treatment Order, again your attendance and adherence to treatment was poor up to May 2017, when you were discharged from the clinic after being remanded in custody.
15 Following your release from custody on 20 September 2018, you attended your first appointment at Waratah Clinic post-release on 26 September 2018 but, thereafter, your engagement was minimal and you failed to attend a number of appointments. At your request, both your Methadone prescription and the administration of the long-acting injection, Flupenthixol, were transferred to Dr Sloman at the Victorian Aboriginal Health Service. There appears to have been brief improved compliance with your treatment, but on 22 April 2019, you contacted your clinician at the Waratah Clinic complaining of side effects from your long-acting injection medication and, thereafter, you ceased attending the Victorian Aboriginal Health Service and also failed to attend an appointment on 29 April 2019 with the author of the report, Dr Kokkinias, in order to review your medication. The offending for which I must sentence you occurred almost three weeks later.
16 During the plea hearing, Mr Lindner placed much emphasis upon your diagnosed condition of chronic paranoid schizophrenia as a factor which should mitigate the weight to be placed on general deterrence. He relied upon a report from Dr Lester Walton, forensic psychiatrist, dated 4 May 2020 (Exhibit “1”), in which Dr Walton opined that, although you did not have a defence of mental impairment, your mental illness was a significant contributing factor to the offending for which I must sentence you.
17 I must say that, although Dr Walton is a very experienced forensic psychiatrist, who is well known in these courts, his relatively brief report left me puzzled about a number of matters which I raised with Mr Lindner. These included the fact that Dr Walton had not mentioned your diagnosis of Antisocial Personality Disorder. Nor had he explained what he meant by his remark that “attempted armed robbery is an unusual offence to be the direct product of psychotic disturbance.”[10] Also, given that the CCTV footage showed you hiding the knife and deftly putting it away as soon as another person appeared in the foyer area, I queried whether, contrary to Dr Walton’s opinion, this did show a capacity to exercise consistent social judgment and that you were giving appropriate thought to the consequences of your actions. Accordingly, at Mr Lindner’s request, I adjourned the matter so that a supplementary report from Dr Walton could be obtained. A further report from him dated 11 June 2020 was tendered as Exhibit “10”.
[10]Exhibit “1”, p. 3
18 The history which Dr Walton recorded from you in his first report was that, “While (you could) see how others may have seen (your) conduct as an attempt to extract drugs from the alledegly (sic) drug dealer victim, (you) stated that (you were) actually in the position to purchase drugs if that had been the aim. Rather (you) stated ‘(you) thought he was talking about (you), including promulgating the notion that (you were) a paedophile. (You) stated that (you) were angry and that prompted the display of the knife.” He also noted that you had not been taking your prescribed psychotropic medication for “around two months prior to the offending”. I here note that Exhibit “3” would suggest that maybe it was something in the order of three weeks before your offending that you had ceased such medication. This is because you apparently complained of side effects from your long-acting injection (which was apparently administered fortnightly) to your key clinician at Waratah Clinic on 22 April 2019.[11]
[11]Exhibit 3 page 2
19 Based on an acceptance of your history to him, Dr Walton concluded in his first report that “It is apparent that he was entertaining paranoid deluded thoughts about the victim as well as his being distracted by auditory hallucinations such that I believe his capacity to exercise consistent social judgment was seriously compromised. It is highly likely that he did not give appropriate thought to the consequences of his actions. In that sense I believe his major mental disorder has made a significant contribution to the offending.”[12]
[12]Pages 3 to 4 of Exhibit “1”
20 In his supplementary report (Exhibit “10”), Dr Walton described as “a hazardous procedure” the making of an additional diagnosis of a personality disorder in the face of chronic psychotic illness complicated by drug abuse. Further, he stated that the label of an Antisocial Personality Disorder “usually amounts to no more than shorthand for the fact that (a person has) an established criminal history which, clearly applies to Mr Cooper”. Whilst Dr Walton is entitled to his view, the fact is that an Antisocial Personality Disorder remains a diagnosis as defined by DSM-5 according to specific criteria. Whilst I do not doubt that a number of people who have an established criminal history, may also have Antisocial Personality Disorders, that is not necessarily the case. I place weight upon the fact that this diagnosis was a working diagnosis at Waratah Clinic where you were treated on multiple occasions over a period of some 10 years prior to this offending, whereas Dr Walton has seen you once on 1 May 2020 via a video conference of unspecified duration. In any event, your disorder of paranoid schizophrenia is complicated by substance abuse. Certainly, I cannot conclude that your antisocial personality traits were the sole reason for your offending albeit that I cannot exclude them as a contributing factor. Indeed, Dr Walton in his second report conceded that you may have antisocial tendencies independent of your mental illness. He stated that the conditions are not mutually exclusive. He went on to state that, if your offending was solely due to antisocial behaviour, he would have anticipated a higher level of violence and flight afterwards. He did not give any basis for such view. In any event, as I have said I do not find that your antisocial personality was the sole contributing factor to your offending.
21 The history given by you to Dr Walton that you were angry and displayed the knife because you believed that your victim was talking about you, in particular that you were a paedophile, was never mentioned in your lengthy record of interview to police conducted on 23 May 2019, albeit that you stated something about your victim having spoken about his concern that you were going to rob him. However, your account is less than clear as to whether this happened before or after your offending on 17 May 2019.
22 The first mention of any suggestion that your victim had been talking about you being a paedophile was to Dr Walton on 1 May 2020, a year later. Dr Walton’s scant history suggested that this was immediately before you produced the knife. Accordingly, he concluded that, at that time, you were entertaining paranoid deluded thoughts about the victim and were distracted by auditory hallucinations.
23 The day after Dr Walton assessed you, you were seen by Mr Healey, clinical psychologist, that is on 2 May 2020. In his report of the same date, he states that you gave a history in relation to the offending that you “recalled the victim making insulting remarks to (you) labelling, (you) as a paedophile. It was then (you) said (you) took out (your) knife and threatened to take everything off the victim.”[13] This history is quite different from what you had told Dr Walton the previous day. Dr Walton had recorded, “While he can see how others may have seen his conduct as an attempt to extract drugs from the alledgely (sic) drug dealer, Mr Cooper stated that he was actually in the position to purchase drugs if that had been the aim.” I have already referred to your repeated denials made in your record of interview that you were attempting to rob your victim. Hence, the history you gave to Dr Walton is also consistent with those denials in your record of interview, but inconsistent with your history to Mr Healey and inconsistent with your plea of guilty to the charge of armed robbery.
[13]Exhibit “1” page 2
24 No issue had ever been taken by your counsel with the prosecution opening. As I have already stated, this detailed you as having pushed your victim against the wall and held the knife to his throat stating, “Give me drugs, give me money and don’t say you don’t have any” and, when he said that he did not have any, you yelled “Shut up or I will slash you”.
25 The fact is that you have a lengthy history of substance abuse and, as your counsel was at pains to point out, the victim described you in his statement to police as being drug-affected. You claim in your record of interview that your victim had supplied you with drugs in the past. I accept on the material available to the Court that this is likely to have been so. In his statement to police, your victim stated that, on the day of the attempted armed robbery, you called out his name. He was able to give police a very detailed description of you, including what you usually wear. He also stated that he knew that you have tattoos on your legs, but could not be sure “if that [was] from seeing them in the past”. He knew you by your other name, Carl. Indeed, he told police that, subsequent to the attempted armed robbery on 17 May 2019, on 21 May 2019, he had two missed calls from “Carl’s number”, which he was able to provide to police.[14]
[14]Paragraph 30 of the victim’s statement to police made on 21 May 2019, Depositions page 16
26 In your record of interview, you told police the name of your victim and where he lived on Level 10. You described him as a drug dealer whom you had “scored off” and whom you would contact by either ringing him or knocking on his door. You showed police that you had his mobile number saved in your phone under his first name, Pete, and “Number 10” (which appears to be a reference to a speed dial function on your phone).[15]
[15]Question and Answer 51, 53, 65–67, 88-96 of the record of interview
27 You and your victim were clearly known to each other. A witness statement to police from Dawn Kie, who was present in your victim’s unit on 21 May 2019, states that you came to your victim’s door demanding that he sell you drugs and stating that you had the money to pay for them.[16] In my view, these factors are consistent with him having supplied you with drugs in the past and makes it all the more believable that on 17 May 2019 you were trying to obtain drugs or money to obtain drugs. Taking into account all the circumstances known to the Court, I am satisfied beyond reasonable doubt that the immediate reason for your offending was that you were trying to obtain drugs or money for drugs from your victim.
[16]Page 1 of statement made at 11.41pm on 21 May 2019, Depositions page 20-21
28 I regard you as being an unreliable historian, particularly in relation to the issue of you believing at the time of your offending that your victim was talking about you being a paedophile. In this regard, I note that Mr Healey in his report stated that you complained about memory problems and, upon administering the relevant sub-test, he found that your working memory index was reduced, with you having attained a score of 65. Indeed, on 1 May 2020, you had told Dr Walton that, although you had experienced auditory hallucinations and paranoid delusions in the past, you were pleased to report that those symptoms have subsided with the reinstatement of your antipsychotic medication whilst in custody and Dr Walton observed nothing to contradict that proposition.[17] On the following day, 2 May 2020, you apparently told Mr Healey that you had some persistence of persecutory ideas although they had eased in intensity.[18] Also, you had told Dr Walton that you were “a relative latecomer to illicit drug use, that not occurring until (your) early 30s.” You told him that, prior to being taken into custody most recently, you injected one cap of heroin twice per week and, separately, injected one point of methamphetamine twice per week. This history of drug use which Dr Walton described as “low level heroin and methamphetamine abuse”[19] is at odds with what you told Mr Healey the following day. The history recorded by Mr Healey was as follows: “He commenced to smoke cannabis and drink alcohol in his early teens and by the age of 17 took heroin intravenously but ceased after a short period until he was aged 32 then he ingested that substance on a daily basis, a number of points at a time except when he was in custody up to the remand in the May of 2019. He was prescribed Methadone some five years ago but hasn’t always been compliant with that medication. He commenced to take the potent stimulant ice intravenously in 2010 and believed that he may have used more of that substance last year …”[20]
[17]Exhibit “1” page 3
[18]Exhibit “2” page 8 and page 10
[19]Exhibit “1” page 3
[20]Exhibit “2” page 2
29 There are other differences relating to your background in the histories given to Dr Walton and Mr Healey. Also, there are some discrepancies between those histories and the evidence given to the Court by your sister, Ms Cooper. For example you told Mr Healey that you believed that at age 11 you were cast out of foster care and lived on the streets. However, your sister stated that you came to live with her when you were about 14 years of age, which she believed had occurred after an argument with your adoptive father.
30 In his second report, Dr Walton stated that the reason that he had indicated in his first report that he considered armed robbery to be an unusual offence as a direct product of psychotic disturbance was “simply because that reflects my accumulated experience of psychotic individuals who engage in offending”. He went on to refer to the display of the weapon being “unusually brief, the victim [seeming] not to have been very disturbed by the incident … and [you making] no attempt to absent yourself, despite apparently being aware that the particular location was covered by CCTV”.[21] I do not agree with Dr Walton’s comment that “the victim seems not to have been very disturbed by the incident” simply because the two of you remained in each other’s company outside the lifts. On the segment of footage viewed by me, the victim moved away from you towards the lift doors shortly after the incident and you disappeared from the frame and returned with your bike. However, the knife was still visible on the footage although you are not. The victim turned his head in the direction in which you had moved with what I would describe as a wary look upon his face. When you appear back in the CCTV frame with your bike, the knife is still visible in your hand. It is not until 12.30.49 on the CCTV footage that you are seen to discreetly put the knife away in a bag on your hip and this action occurs after another person appeared near the lifts. That time is almost one minute after you first flashed the knife in the victim’s face at 12.30pm. In any event, Dr Walton refers to his observation of the footage as not “significantly elevating the proposition that there was a psychiatric contribution to the behaviour but it is not inconsistent with the proposition.”[22]
[21]Exhibit “10”, page 3
[22]Exhibit “10” page 3
31 For the foregoing reasons, I do not accept that you have demonstrated on the balance of probabilities that, at the time of committing the attempted armed robbery, you were in a psychotic state attributable to your condition of schizophrenia. I do not accept that you were distracted by auditory hallucinations such that your schizophrenia made a significant contribution to your offending, as opined by Dr Walton. As I have stated, I am satisfied beyond reasonable doubt that the immediate cause of your offending was your quest for illicit drugs from your victim, who had supplied you with drugs in the past.
32 If I am wrong in my conclusion that you were not in a psychotic state, I am satisfied that any symptoms suffered by you at the time were a consequence of you voluntarily having ceased to comply with your anti-psychotic medication, which symptoms were aggravated by your illicit drug use. Those two causative factors are acknowledged by Dr Walton in his first report.[23] Mr Healey also noted that, with the cessation of your involvement with the Victorian Aboriginal Health Service for your long-acting injection and general management, “there emerged problems which have been manifest in the more recent offending.”[24] Your cessation of your anti-psychotic medication occurred in the context of you having a history of requiring inpatient psychiatric care in the past because you had developed psychosis due to not complying with such medication.
[23]Exhibit “1”, page 3
[24]Exhibit “2”, page 4
33 In order for principles 1 to 4 in R v Verdins[25] to be enlivened, an offender must be able to demonstrate that he has impaired mental functioning and that there is a connection between that and his moral culpability or the need for general and specific deterrence. If the mental impairment is said to have been present at the time of offending, it must be realistically connected with the offending or have caused or contributed to it or be causally linked to it.[26] An offender must establish that his mental functioning was impaired involuntarily, that is, that he was so adversely affected by a mental condition beyond his control that his ability to reason or make decisions was adversely affected and, hence, he should be regarded as having less moral culpability than a person who has not been so affected. It is also well-established that where, as in your case, an offender voluntarily fails to take prescribed medication which results in symptoms which the offender knew would otherwise be controlled by such medication, then any impaired mental functioning will not be held to be involuntary. An offender cannot rely upon the relapse of a mental condition caused by non‑compliance with anti‑psychotic medication and ingestion of illicit drugs.[27]
[25](2007) 16 VR 269
[26]DPP v O’Neill [2015] VSCA 325, paragraph 74, page 25
[27]Williams v The Queen [2018] VSCA 171, paragraphs 40-41 and DPP (Cth) v Boyles [2016] VSCA 267, paragraphs 40-43, pages 11-12
34 You had been diagnosed with schizophrenia in 1994, two and a half decades before this offending. On many occasions in the past, by failing to engage in treatment for it, you had ended up suffering a relapse of your condition by way of psychotic symptoms necessitating psychiatric inpatient treatment. Thus, I am satisfied that you were well acquainted with the risks and consequences of not taking your prescribed medication. I am also satisfied that you were well acquainted with the additional risks and consequences of using illicit drugs. The report from Waratah Clinic noted that, as long ago as 2010 to 2011, your treatment “was complicated by (your) ongoing polysubstance abuse, ambivalence towards rehabilitation and very limited engagement with staff at the clinic.”[28] Nevertheless, you showed an irresponsible attitude towards your own mental health and disregarded the risks and consequences of relapsing into psychosis by voluntarily ceasing your psychiatric treatment and continuing to abuse illicit drugs. Dr Walton made it clear in his first report that your condition is responsive to treatment and, indeed, once you were taken into custody and anti‑psychotic treatment was reinstituted, your symptoms became well controlled. In these circumstances, principles 1 to 4 of Verdins have no application.
[28]Exhibit “3”, page 1.
35 Although I do not agree with Dr Walton’s view that your major mental disorder has made a significant contribution to your offending, there is no doubt that you have a long history of serious mental health issues. As part of your personal circumstances, I do take into account that schizophrenia, particularly with paranoia, is a debilitating condition.
36 There appears not to have been a smooth transition of your care from the Waratah Clinic to the Victorian Aboriginal Health Service. This was attested to in the evidence of your sister. Also, as already mentioned, it is plain that you had been without your antipsychotic medication for a period of some weeks prior to the offending on 17 May 2019 and right up until you were taken into custody on 23 May 2019. I accept that there is likely to have been a deterioration in your mental health status over that period. In her evidence, your sister stated that, in the lead‑up to your arrest in May 2019, you were calling her regularly, saying things like someone was after you, and you sounded desperate and scared.
37 I have already referred to your answers in your record of interview about your belief that your victim thought that you and maybe others were going to rob him and the confusion as to whether this was before or after the commission of the offence on 17 May 2019. Your record of interview was made six days after that date, during which time you had continued to be non-compliant with your antipsychotic medication, as well as apparently using illicit drugs. I accept that you exhibit some degree of confusion in your account to police which may be consistent with some psychosis, albeit that, as I have stated, I am not satisfied on the balance of probabilities that your paranoid schizophrenia was a significant contribution to your offending other than in an indirect way through being aggravated by your illicit substance use and failure to comply with your medication for schizophrenia.
38 Mr Cooper/Wilson, you should be left in no doubt as to the seriousness of this offending. The fact that it carries a maximum penalty of 20 years’ imprisonment is some indication of such seriousness. Our community is sick of offenders who go around with weapons, robbing or attempting to rob people. Everyone in the community is entitled to be protected from such behaviour, even if your victim had in the past provided illicit drugs to you. All people are entitled to equal protection under the law. Although I accept that your offending was unsophisticated, it was brazen because it happened in the middle of the day, in a public foyer area, in a building where many people lived and were likely to be going to and fro. The latter factor is evident in the brief amount of CCTV footage that I viewed in which some four or five people enter or exit from the foyer area. It was a nasty attack during which the footage showed that you held the knife very close to your victim’s face, only a couple of centimetres from the end of his nose.
39 This offence was committed by you in the foyer of the building where your victim lived. He was entitled to feel safe in the environment of his own home, just as all other members of the community have that entitlement. His Victim Impact Statement made on 8 June 2020 (Exhibit “B”) speaks of the ongoing adverse psychological impact upon him. He describes being hypervigilant, anxious, having difficulty trusting others and having disturbed sleep, all of which are continuing over one year later, such that he is waiting to see a psychiatrist to obtain some assistance. The incident may have been relatively short-lived, but the difficulty with such antisocial, violent, threatening behaviour is that it often leaves a debilitating adverse psychological legacy well after the event.
40 In sentencing for this offending, the predominant sentencing principles must be denunciation of your conduct and general deterrence so that others will know that if they are minded to try to extract property from others with menace, using a weapon, then they will be appropriately punished. Having said that, it is still appropriate for me to take your complex mental health situation involving paranoid schizophrenia, and an Antisocial Personality Disorder into account as part of the circumstances relevant to the sentencing synthesis.
41 Unhappily, your very lengthy criminal history for violent and antisocial offending means that there needs to be emphasis upon specific deterrence, that is, to try to bring home to you that this sort of behaviour will not be tolerated. Whilst I take into account that you have had a background of disadvantage by reason of being adopted as an infant and having an unhappy home life with your adoptive father and depressed adoptive mother, as well as the debilitating effect of having developed paranoid schizophrenia, the fact is that you have been your own worst enemy by failing to comply with your psychiatric treatment, time and time again over many years, and also continuing to abuse illicit substances. While it is to your credit that you have been compliant with medication since you were remanded in custody in May 2019 and have remained free of illicit drugs, some evidence of which was produced by way of urinalysis results (Exhibit “6”), I am very far from optimistic about your chances of rehabilitation. The fact is that you have been held in almost constant inpatient care whilst you have been in custody in order to ensure your compliance with appropriate medication. These arrangements have also been protective in terms of preventing access to illicit drugs whilst in custody. You have had other significant periods of time in custody, most notably the five year non-parole portion of your total sentence of nine years imposed in 1998 and, more recently you served an 18 month sentence imposed on 13 April 2017 without apparently being given parole. You were last released from prison in late September 2018 only some 7 ½ months before this offending and it is an aggravating feature of the offending that you had been placed on bail for another dishonesty offence only about a week beforehand.
42 Your sister stated, presently whilst in custody, that you are looking and sounding healthier than she has seen you in a long time. She stated that you are committed to staying away from drugs and turning your life around. It is to your credit that you have undertaken a number of courses whilst in custody, the certificates for which were tendered as Exhibit “7”. These have included programs relating to substance use, mental health recovery and also kitchen operations. Your sister gave evidence that you have spoken to her about what you have been learning in these courses, although she conceded that you had done “loads” of courses on drug education and the like during previous sentences of imprisonment. You are fortunate to have such a caring sister. She told the Court that she has acted as an advocate for you in the past in relation to your mental health issues and ensuring that you have accommodation. The latter has included trying to support your request to have your public housing unit moved away from the address where the victim lives.
43 Tendered as Exhibit “5” was a letter from Wombat Housing Support Services from Violet Bokody, dated 21 May 2020. She is your tenancy case manager and indicated that she has arranged for your unit to be secured so that it will be available to you upon release. Tendered as Exhibit “4” was a letter from the Department of Health and Human Services dated 28 May 2020 indicating that your priority access application for a transfer of accommodation has been approved, although your sister’s letter (Exhibit “8”) stated that your ongoing tenancy status will be “jeopardised” as you have been absent from your unit for more than 12 months. It is to your credit that you apparently initiated the application to transfer your accommodation away from where the victim lives and where other adverse influences have apparently been present.
44 I accept that having a mental health disorder, as you do, does generally make a term of imprisonment more onerous, although it is also noteworthy that it has resulted in an improvement in your health generally and, in particular, the elimination of your psychotic symptoms. Still, it is appropriate to acknowledge the application of principle 5 of Verdins in your case. As far as principle 6 of Verdins is concerned, there is no evidence that imprisonment has had or is likely to have an adverse effect upon your mental health. Indeed, the evidence is to the contrary.
45 I take into account that there has been an additional burden of restriction by way of lock down and reduced programs available during the COVID‑19 pandemic. You told the Court that, whilst you have been housed at St Paul’s psychiatric unit where there are 42 cells, half the population are released in the morning and you are permitted out of your cell, with the remaining half of the population, from 1.15 to 5.00pm. In addition, I am aware that all contact visits have been suspended during the pandemic, although you have been receiving telephone and Skype visits from your sister and from three of your children who are the subject of legal guardianship or formal adoption orders.
46 Mr John Mercieca provided a reference dated 19 May 2020 (Exhibit “9”). He stated that your son, aged 10, and your daughter, aged nine, have been under the legal guardianship of himself and his wife for the past 10 years and that your stepdaughter, aged 12, has been formally adopted by them. He stated that he and his wife have facilitated access with you and you enjoy seeing your children and they enjoy seeing you. He stated that he has noticed more positive behaviour from you “over the years” and your children do not like seeing you incarcerated. He stated that he believes you have “come a long way since (your) days of offending.”
47 Mr Cooper/Wilson, you will turn 50 years old on 30 September 2020. Unhappily you exhibited behavioural problems and a tendency to abuse alcohol, and later, drugs, from your teen years. These matters brought you into contact with the criminal justice system in 1989 and that contact has remained a very constant feature of your life for three decades. As I have previously stated, after leaving school at 14 years of age, you appear to have worked for a time in an occupation skinning kangaroos with your sister’s partner, but there is very little other work history of note. Mr Lindner’s submissions indicate that you have nine children (including one stepchild) to three different mothers. There is no evidence that you have ever been a present, nurturing father who provided a secure home or material support for them. However, your sister and Mr Mercieca state that, in the past few years, you have established a relationship with the four youngest children, aged six, 10, 12 and 13, albeit that they have either been adopted or placed under the long term legal guardianship of others. Since 1991 you have had ongoing mental health issues to which I have already referred. You have a demonstrated inability to take responsibility for your own health and have compounded your problems by serious long term substance abuse. You appear to be a very self-focussed person, who has led an unproductive, wasted life despite multiple rehabilitative dispositions from courts and enduring support from your admirable sister. The fact that you have a relationship with any of your children seems to be due to the largess of others who have gone out of their way to meet you in public parks so that you could see them and even taken them to prison to visit you prior to such visits being suspended during the pandemic. It is woeful that young children should be getting to know their father in such circumstances.
48 You may well be in the best state of mental and physical health that your sister has seen you in in a long time, but that has only been achieved by reason of intensive supervision in psychiatric units whilst in custody. You have shown yourself, time and time again, to be an antisocial, dishonest and violent menace to society. Whilst it would be wrong of this Court to pronounce that you have no prospects of rehabilitation, I agree with Dr Walton that your “prognosis is far from favourable” and that “the likelihood of (you) experiencing further psychotic breakdowns is quite high and, related to that or otherwise, the risk of reoffending is far from trivial.”[29]
[29]Exhibit “1”, page 4
49 In your favour, I take into account that you pleaded guilty at a relatively early stage, on the date of the committal hearing, and that such plea has utilitarian value, although I do not think that you are truly remorseful for your offending. Nowhere is there any reference to you being sorry for the offending other than by reason of the impact that it has had upon your own life. Dr Walton notes that you made some expression of remorse albeit short of comprehensive empathy for the victim.[30] I have already indicated that the rehabilitative gains in custody are in your favour, as is the ongoing support of your sister and people like Mr Mercieca, although I do note that such support was present prior to the offending for which I must sentence you.In the context of decades of antisocial, dishonest and violent behaviour, one year of such gains is a start, but really is a baby step. I fear that those gains will not be sustained once you are released into the community.
[30]Exhibit “1”, paragraph 3 page 4
50 Mr Lindner has submitted that, in all the circumstances, you should be given a disposition by way of a sentence of imprisonment of less than a year together with a Community Correction Order. I am mindful of the principles in Boulton & Ors v The Queen[31] and of the sentencing principle of parsimony. However, I do not regard the disposition sought on your behalf as one which would appropriately reflect the gravity of your offending, coming as it does on top of a very significant criminal history and a record of repeated non-compliance with a variety of community-based dispositions. Of course, it is no part of my role to punish you for past behaviour, but it does reflect adversely upon your prospects of rehabilitation. General deterrence, specific deterrence, denunciation of your conduct, and the protection of the community must be given appropriate weight in sentencing you, even though I have made some reduction in the emphasis given to general and specific deterrence because of the complexity of your mental health condition as a whole. In all the circumstances, I consider that the only appropriate disposition is a term of imprisonment by way of a head sentence with a non-parole period. As you would be well aware, whether or not you are granted parole is a matter solely for the Adult Parole Board
[31][2014] VSCA 342
51 On one charge of attempted armed robbery, you are convicted and sentenced to be imprisoned for a period of 2 years and 10 months.
52 On the summary charge of committing an indictable offence whilst on bail, you are convicted and sentenced to be imprisoned for a period of 1 month which I direct to be served cumulatively upon the sentence imposed for attempted armed robbery.
53 The total effective sentence is thus 2 years and 11 months’ imprisonment. I direct that you serve a period of 2 years before becoming eligible for parole. I declare a period of 392 days pre‑sentence detention to be time reckoned as already served under the sentence imposed this day.
54 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 4 years with a non-parole period of 3 years.
55 Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of one black-handled knife and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
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