Director of Public Prosecutions v Cormack

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

Revised
Not Restricted
Suitable for Publication

Case No. CR-18-00192
CR-18-01316

DIRECTOR OF PUBLIC PROSECUTIONS

DYLAN CORMACK

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2018
DATE OF SENTENCE:	20 December 2018
CASE MAY BE CITED AS:	DPP v Cormack
MEDIUM NEUTRAL CITATION:	[2018] VCC 2257

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE

Catchwords: Armed Robbery – Recklessly causing injury – Limited criminal history – Some relevant prior criminal history – History of drug
use – History of mental health issues – Family support – Steps towards rehabilitation whilst in custody – Remorse – Early plea of guilty – Term of imprisonment – Non-parole period.

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APPEARANCES:

Counsel

Solicitors

For the Director of Public Prosecutions

Ms S Lenthall

OPP

For the Defendant

Ms E Clark at plea

Ms S Condon at sentence

Stary Norton Halphen

HIS HONOUR

Dylan Cormack, on 11 December 2018 you pleaded guilty to one charge of armed robbery, the subject of Indictment No. H11809958, and a charge of armed robbery and a charge of recklessly causing injury, the subject of Indictment No. J10182869. The maximum penalty for armed robbery is
25 years’ imprisonment. The maximum penalty for recklessly causing injury is five years’ imprisonment.
The circumstances of your offending, as accepted by you through your counsel, were outlined in the Prosecution Opening which was Exhibit A on your plea. Additionally, you admitted the contents of your criminal record as it was at the time of your offending.

Summary of Offending – Indictment H11809958

In summary, at the time of this offending, you were residing at a boarding house on Aumann Street, Heathmont. The 7-Eleven store located on Campbell Street, Heathmont is approximately 500 metres from the boarding house where you were residing.
On 12 October 2016, at approximately 12:18 am, you approached the 7-Eleven Store on Campbell Street. You knocked on the door and the victim,
Mr Haozhan (Jason) Xie, unlocked the door allowing you to enter the store.
At this time you were wearing a bucket hat with writing on it which obscured the upper part of your face. You also tried to conceal the lower part of your face by pulling up a black fabric item from your neck. However, you pulled this item too high which meant that the lower part of your face was exposed.
Once inside the store you pulled out a red handled knife that was approximately 30 cm long from the front of your pants and began to yell at and threaten the victim.
The victim ran into the rear room where you continued to yell at him and demand cigarettes. Shortly afterwards, he came out from the room and went to the cabinet containing cigarettes. He removed a tray of cigarettes and placed it on the counter. You took between 6 and 8 packets of cigarettes and left the store. Mr Xie pressed the duress alarm and the police attended shortly afterwards.
Later that day the franchisees of the store, Mr Wang Zhe and his wife
Ms Yong Li, saw you walk past the store and recognised you from the CCTV footage. On 13 October 2016, they contacted police and you were ultimately identified as the offender on the CCTV footage.
On 14 October 2018 police executed a search warrant and arrested you. In the rear yard of the residence, around 10 metres from your room, police located an area of burnt grass. In that area was a partially burnt piece of blue material with writing that matched that of the bucket hat worn during the armed robbery.
You were later interviewed at Ringwood Police Station and generally answered “no comment” to the allegations.

Summary of Offending – Indictment J10182869

At the time of this offending, you were residing at 2/34 Plumer Street, Croydon.
On 12 January 2018, at approximately 7:43 am, you walked past the Croydon Lotto Store located on Main Street, Croydon. You then turned around, covered your face other than your eyes with black coloured clothing, and entered the store.
Once inside the store, you approached the counter whilst producing a knife from your pants. You then went behind the counter and said to the victim Mr Amandeep, who was working behind the counter, “Give me the cash or I’ll kill you”.
Mr Amandeep backed away from you and you jumped on him. There was a struggle during which Mr Amandeep sustained a stab wound to his right hand in the webbing between his index finger and thumb. He also sustained other superficial defensive wounds.
You then opened the cash register and took between $700 and $800 in cash. Mr Amandeep chased you from the store with a pole but abandoned his pursuit shortly thereafter.
Mr Amandeep was taken to the Maroondah Hospital for assessment. The stab wounds to his hands and arms were superficial but required sutures. The other defensive injuries only required cleaning. He was discharged on 13 January 2018.
On 18 January 2018, at approximately 7:48 am, police executed a search warrant at your residence after identifying you on the CCTV. When police attended you told them, “It’s not like last time, you won’t find the clothes”. During a search of your residence, police located a beanie and shoe box of New Balance shoes consistent with those worn by the offender in the CCTV footage.
You were arrested at this time and remanded into custody. You have been in custody since this date.

Personal Circumstances

You are now 34 years of age. You have had several long-term relationships and you are currently partnered. You have no children. You are the eldest of three children to your parents, both of whom were present in court during your plea hearing, as was your sister. You enjoy the ongoing support of your family.
I am told that your sister works at Centrelink and your brother works for Seek.com. Your current partner works in aged care. Neither of your siblings have experienced the mental health issues which have plagued you since childhood.
You were the de facto stepfather to the eight year old son of your former partner. You remain a stepfather figure in the child’s life and indeed your parents take care of that child every second weekend.
Your early years were unremarkable and you did reasonably well at school. From around the age of 14, however, you were the subject of bullying and began to engage in drug and alcohol use.
Having left school at the age of 15, you trained as a forklift driver and maintained employment in that field until the age of 23 when you were diagnosed with a schizoaffective disorder. You have had 45 admissions to mental health facilities between 1997 and 2018. You have been in receipt of a disability support pension and have not worked since 2007. I am told that you regularly busk by playing guitar in your local community.
You did well at school until your life was hit with the trauma of sexual abuse. You were the subject of sexual abuse at age 12, first at the hands of an older cousin, then at the hands of a teacher. At age 14 you were also a victim of sexual abuse at the hands of an older student at the school. These events led to substance abuse and a suicide attempt, which in turn led to an admission to a psychiatric facility.
Tendered as Exhibit 2 on your plea was the psychiatric report of
Dr Prashant Pandurangi. Dr Pandurangi reports that your early childhood was essentially uneventful however your late childhood and teens were marred by bullying and behavioural problems at school, sexual abuse by a family member, contact with mental health services and illicit drug use. The social ostracism at school and the sexual abuse during your formative years left you distressed and resentful towards others. You coped by self-harming or using drugs and alcohol. You left school early, you were fortunate to find a skill which you were interested in, and gained stable employment for many years.
Dr Pandurangi opines that you exhibit intense emotions, have a poor sense of self, you experience difficulties in interpersonal relationships, you have fears of abandonment, poor coping skills and you display impulsive behaviours.
He reports that you initially came in contact with adolescent mental health services in your early teens in the context of behavioural difficulties and
self-harm. Dr Pandurangi opines that you appear to have eventually developed a paranoid psychotic illness in your late teens and early 20s. You have an established diagnosis of paranoid schizophrenia. Your illness is characterised by persecutory delusions, hallucinations, disorganised thoughts and behaviours.
Dr Pandurangi reports that your illness is complicated by the use of illicit drugs and non-adherence to prescribed medications - which eventually leads to a relapse of your illness. He notes that you have had several hospitalisations to psychiatric units over the years, which indicates the fragile nature of your illness.
Dr Pandurangi reports that in his opinion, given the nature of your illness, you would require treatment with psychotropic medications for the foreseeable future. You would need assertive follow-up by a mental health service whilst in the community given your history of sporadic compliance with treatment. You would also benefit from psychological treatment which is focused on distress tolerance or coping with stress, maintaining relationships and managing your emotions.

Drug use

You have administered heroin, amphetamine and methamphetamine intravenously at various times throughout your life. You have been diagnosed with Hepatitis C.
I was provided with a neuropsychological report by Dr Charles Malpas which was tendered as Exhibit 3 on the plea. Dr Malpas notes that you reported four head injuries over your lifetime including one which resulted in you being in a coma for a length of time. However, the thrust of Dr Malpas’ report is that your cognitive functioning is within the generally accepted range. There is a pattern of findings that is consistent with your diagnosis of schizoaffective disorder, however.

Circumstances of offending

You told Dr Pandurangi that in the lead up to your 2018 offence your mental state was deteriorating. You were frequently arguing with your partner and your parents. In the days leading up to the offence, you were coming down from ice and you were drinking a lot. You told Dr Pandurangi that you were stressing out and that this was making you mentally unwell. You said that your depot antipsychotic medication was reduced a few weeks prior to the incident at your own request. You reported that you were hearing voices and that you were feeling anxious and irritable. You said that you woke at 7 am and for some reason, you decided to go and check your bank account. You decided to take a knife with you as you were worried about a local drug dealer who was standing over you. As you walked towards the bank you heard voices inside your head which told you to rob the store. You said that the voices told you that if you did not rob the bank you would die that day.
Amongst other things you said to Dr Pandurangi that you injured your victim during a struggle when you tripped and fell and the knife went into his arm. You said, "I wasn’t thinking… it was so stupid …I grabbed the money and ran but the victim chased me… it was good on him …he stuck up for himself…it was a respectable thing to do". You said you later had another drink and passed out.
Your Counsel, Ms Clark, relied upon very helpful written submissions and supplemented them by oral submission. In relation to the circumstances of the offending, she conceded the seriousness of the offences and acknowledged that they would have had a significant impact upon your victims.
Ms Clark submitted that the wider context of the offending involves your background of trauma and mental health difficulties coupled with the use of illicit drugs and alcohol. I accept this.
In relation to the 2016 matter, it was submitted that you took the money in order to purchase drugs and alcohol. In relation to the 2018 matter, you have maintained that you did hear an auditory command prior to the commission of the offence but it was accepted, of course, that you do not have a mental impairment defence available to you.
It was submitted that your offences did not have the features of thoughtful planning or sophistication, particularly with respect to the 2016 offending, which was committed at a place where you shopped regularly.
Ms Clark disavowed reliance upon Verdins principles in so far as mitigation of moral culpability or general deterrence goes. The hardship you would experience in custody as compared with an individual who does not suffer from mental illness as you do is relied upon and I accept it as a matter which mitigates the sentence I would otherwise impose to some degree.
I also accept what was said on your behalf as to the circumstances of the offending.
It was submitted that you have accepted responsibility for your conduct and are remorseful for it. I have read the letters tendered on your behalf from your parents, from Mr Terry Hayes and from your partner Giulia Conebear. I have also read the letter that you provided to the court. I accept that you are remorseful for your offending and for its impact on your victims, particularly Mr Amandeep.
Despite the difficulties faced by you in your life, and in particular your mental health issues, your offending must be viewed as very serious. Armed robbery of attendants at commercial premises is a very serious matter. It terrifies the victims and exposes them to injury. In the case of your 2018 offending, you did, in fact, injure your victim. It could have been worse.
The victim impact statement of Mr Amandeep expresses the significant impact upon him. It is also expressive of the impact on the community as a result of the sorts of crimes you have engaged in. I take these matters into account. The victim impact statement asks the legitimate question, "Why, when I am a hardworking, law abiding individual, must my life be changed forever due to the self-centred actions of someone who wanted an easy life?”. That is to paraphrase the sentiments of your victim.
Your victims do not know, of course, of the struggles, challenges and trauma in your life, or of your infirmities. It is harder for you, to get through life without mental disturbance, stress and a resort to drugs. Nevertheless, you must find better ways of managing your stress, anxiety and mental health. It is clear that drug use has been the instigator for your offending and exposure to the criminal justice system. Whilst the community has tolerance and understanding for those who face greater difficulties regarding mental health, or even addiction; that tolerance and understanding rightly evaporates when offenders such as yourself repeatedly turn to drug use to anaesthetise their inner turmoil and harm other members of the community in the process.
Your criminal record is of concern from this perspective. You received a suspended sentence of imprisonment for recklessly causing serious injury and assault with a weapon in 2003. You received a suspended sentence for burglary and theft in 2008. In June 2017, you received a community corrections order for recklessly causing injury. This matter is a prior conviction for the second indictment only, and of course, that community corrections order was still in operation when you committed the offences in January of this year.
You counsel, Ms Clark, submitted that your history is limited. I accept this in its context. But the incidents of violence and the context of drugs and mental illness is of concern. As I stated on the plea, you must find a way to manage stress, anxiety and psychological trauma without resort to drug use. That path will simply lead you to further offending of the type I am now dealing with and longer sentences of imprisonment.
It is also of concern that you committed the offences in January this year, whilst you were subject to the court process, not only for the community corrections order but subject to the court process for the 2016 matter. Although, I am told you were not on bail for that matter. I take these factors into account.
I am satisfied that you have made significant steps whilst on remand in relation to rehabilitation from drug use. I note you were in the Moroka Unit for three months. I accept that you have insight into your drug use and its role in your offending. I accept that you have insight into your mental health issues and the need to abide by prescribed medication. I accept that you have resolve currently to remain drug free once you are released on parole. I accept you have significant support available to you when that occurs.
I must be guarded about your prospects of rehabilitation given your history and the history of the matters before the court, but I accept that you have realistic prospects. I have taken into account your pleas of guilty.
I was assisted by the helpful submissions of Ms Lenthall for the prosecution. In particular, I rely upon the prosecution concession of mitigation, to some extent, due to hardship in custody. I also accept Ms Lenthall’s submissions regarding totality and the need for cumulation to give effect to the principle of totality.
Ms Lenthall also noted your relevant priors for violence and the fact that the 2003 matter involved a stabbing. Helpful submissions as to the range were also made.
The protection of the community is something I have had particular regard to. I have also had regard to the need to impose sentences which satisfy the requirements for general deterrence, denunciation and just punishment. In your case, I have also paid careful consideration to specific deterrence, as well as your prospects of rehabilitation.
I sentence you as follows. Stand up, please, Mr Cormack.
On Charge 1, on Indictment H11809958, I sentence you to two and a half years imprisonment. This is the base sentence.
On Charge 1, on Indictment J10182869, I sentence you to three years imprisonment.
On Charge 2, on Indictment J10182869, I sentence you to two years imprisonment.
I order that two years of the sentence imposed on Charge 1, on Indictment J10182869, be served cumulatively on the sentence imposed on Charge 1 on Indictment No. H11809958.
I order that nine months of the sentence imposed on Charge 2 of Indictment No. J10182869 be served cumulatively on all other sentences.
That makes a total effective sentence of five years and three months imprisonment. I set a non-parole period of three years.
I declare that you have already served 336 days as pre-sentence detention in relation to this matter.
Pursuant to s.6AAA of the Sentencing Act 1991 I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of six years with a non-parole period of four years and six months.
I make the disposal order that was sought.
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HIS HONOUR: Are there any other matters?

MS CONDON: No, Your Honour.

HIS HONOUR: Mr Cormack can now be removed. 10.30 tomorrow.

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[2018] VCC 2257

20 December 2018