Director of Public Prosecutions v Cottren
[2020] VCC 1151
•30 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-00406
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARTHUR COTTREN |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2020, 24 July 2020 | |
DATE OF SENTENCE: | 30 July 2020 | |
CASE MAY BE CITED AS: | DPP v Cottren | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1151 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 12 months imprisonment; 18 month CCO; drug treatment;
mental health treatment; supervision; judicial monitoring
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Warren | Office of Public Prosecutions |
| For the Accused | Mr M. Brugman | Michael Brugman Criminal Lawyers |
HIS HONOUR:
1.Arthur Cottren, you have pleaded guilty to one charge of armed robbery. The maximum penalty for this offence is 25 years' imprisonment. You have also pleaded guilty to one charge of committing an indictable offence whilst on bail. The maximum penalty for this offence is three months' imprisonment.
2.You have admitted an extensive history of prior criminal offending. It will be necessary to say more about this later in these sentencing remarks.
3.I have been provided with a considerable amount of evidence about your long standing mental health issues. Specifically, your condition has been diagnosed as meeting the criteria for paranoid schizophrenia. It is necessary to say more about this later in these sentencing remarks.
4.The prosecution tendered a summary of prosecution opening on plea as Exhibit A. A brief summary of your offending is as follows.
5.On Monday, 5 August 2019 at approximately 3.40 am, you entered the Westside Petroleum Service Station in Albert Street, Sebastopol. You zipped up your jacket to partially obscure your face.
6.You leapt over the counter where the 19 year old console operator was standing on the staff only side of the counter.
7.Your actions were captured on CCTV footage. The footage was played in court. You held a large knife with a pointed blade in your left hand. As the console operator attempted to run away, you chased after him. He returned to the counter and removed a cash drawer. You yelled to him, or perhaps reassured him, that you were not going to hurt him but he was to give you the money. You asked for assistance in opening the second drawer. The victim returned to the counter and opened the second drawer. You grabbed the cash from the register, asked where the cigarettes were stored and grabbed packets of cigarettes.
8.One of the packets of cigarettes fell from your grip as you fled the service station. You were identified by fingerprints left on the service station counter and on the dropped packet of cigarettes.
9.The total amount of cash you stole was approximately $1,000.
10.You were on bail for a charge of obtaining property by deception at the time you committed this armed robbery. That is Charge 2. You were also on a CCO at the time of this offending, however, you have not yet been dealt with for the contravention of that order.
11.As I have already stated, you have a long history of mental illness, having been diagnosed as suffering paranoid schizophrenia from about 17 years of age. A dominant and recurrent aspect of your illness is your perception that you are constantly watched and pursued by 'gang stalkers', as you call them. When your psychosis elevates and you perceive you are being stalked or watched you tend to move to another town, place or state.
12.As at August 2019 you were living with your sister-in-law in Sebastopol. You had not received your prescribed depot injection of antipsychotic medication for a number of weeks.
13.Further, it appears that before and at the time of your offending, your psychosis was elevated. You state you wanted to get money to move out of your sister‑in‑law’s house, to move to Melbourne and then interstate. You took your sister-in-law’s bankcard to withdraw money at an ATM and then later found that you had either not done so or that you had lost the money. It seems that you made a spontaneous plan to rob the service station. To do so, you took in and held a knife that you had carried in your car for protection.
14.After the offending, you returned to your sister-in-law’s home and told her what you had done. She was appalled and ordered you to leave the house. You buried the knife and another in the backyard. The knives were found by police and one was identified as the weapon used in the armed robbery.
15.After leaving the house you went to a health clinic in Myrniong but it was closed. You then went to the Barwon Health Hospital. The admissions nurse suspected you were drug affected, seeking drugs or seeking accommodation. You then left the hospital.
16.Later that morning you went to the MedicAid Clinic where you were seen by Dr Darren Loo. Dr Loo noted that you were 'acutely unwell' but you refused to allow Dr Loo to inject you with antipsychotic medication. Dr Loo noted various descriptions such as paranoia, very difficult to deal with, restless, and jittery in his notes. Past notes referred to you as a drug seeker but also as suffering from schizophrenia.
17.You returned to the Barwon Health Hospital where you were later arrested on 6 August 2019. The arresting officer considered that you were unfit to be interviewed.
18.I was provided with the following documents.
·Psychiatric Report of Dr Nina Zimmerman dated 20 February 2020 (Exhibit 2)
·Barwon Health Records dated August 2019 (Exhibit 3)
·Patient Summary from Dr Atya Zahid of the Maroondah Health Care Medical Centre (Exhibit 4)
·Eastern Health Discharge Summary 2018 (Exhibit 5)
·
Notes of Dr Loo from Medicaid Family Medical and Accident Centre dated
6 August 2019 (Exhibit 6)
·Remand History (Exhibit 7)
·Letter from Vicki Davis, The Geelong Clinic, dated 7 February 2019
·Medibank Transfer Certificate dated 13 October 2019
·NDIS Plan dated 7 August 2019
·Report from The Geelong Clinic, containing file notes from July and August 2019
·Urine Screens from March and June 2020
19.You were remanded in custody on 6 August 2019. There was some delay in entering a plea of guilty to the charges only because your lawyer, Mr Brugman, very responsibly sought an opinion on your fitness to stand trial or, that is, to enter a plea to the charges. Once your fitness was determined a plea of guilty was entered. I accept that the plea was entered at the earliest time. I also accept your instructions to Mr Brugman and to Dr Zimmerman that you always intended to plead guilty.
20.You have now spent 359 days excluding today on remand by way of presentence detention.
21.I turn now to your personal circumstances. You are 38 years of age and you were born on 29 January 1982. You grew up in Shepparton as the older of two boys. Your childhood was difficult. Your father had a stroke when you were five years of age and it changed his personality. You remember being bashed by him occasionally after that. Nevertheless you retain loving memories of him and always refer to him in your interview with Dr Zimmerman as a 'good dad'. Your father died when you were a child in primary school. Your mother suffered from mental illness. DHHS removed your brother from the family home as your mother was deemed fit only to care for one child. You believe that she took out an IVO against you when you were 16 to get you out of home so that she could have your brother back and returned to her care. You became homeless after that time.
22.You disengaged from education at an early age. You were bullied at school because your father died and because of your family’s poverty. You repeated Year 9 and left school in Year 10. You were basically a loner at school. You started using cannabis by the time you left school.
23.The onset of your psychiatric illness became manifest from age 17. At that time you also started to use drugs. From an early age you had a number of interactions with the police leading to time spent in police cells and in adult prisons.
24.At some time in your early adulthood you formed a relationship with a woman who was diagnosed with bipolar disorder. You told Dr Zimmerman that this woman used to bash you when you became unwell. You have two sons to this woman. They live in Queensland. You apparently have some intermittent internet contact with them.
25.For much of 2018 you were living with your brother in Ringwood East. After that you commenced living with his ex-partner, your sister-in-law, in Sebastopol. That is where you were living at the time the offending occurred.
26.You have been on remand since your arrest at the Hopkins Correctional Centre.
27.You have a very long history of prior criminal offending. Your offending ranges over dishonesty matters, driving matters, drug matters, ‘antisocial’ matters and a number of convictions for assault, aggravated assault and reckless conduct. You have numerous convictions for contravening bail and contravening CCO orders. You have served a number of sentences of imprisonment and have undertaken community orders. Your convictions range across Victoria, Queensland and the Northern Territory.
28.These charges, however, represent the most serious you have faced to date.
29.A deal of medical evidence was tendered as I have already outlined on your behalf. Much of your medical history is summarised in the report of Dr Zimmerman. Dr Zimmerman refers to a report of Dr Andrew Carroll, (now Professor Carroll), from May 2013 which outlines your developmental history and especially the fact that you have moved across the country from Victoria to Tasmania and New South Wales because of perceived police persecution. At the earlier time you told Dr Caroll that you had two children but no contact with them.
30.The psychiatric report of Dr Muirhead in May 2013, referred to by Dr Zimmerman, indicates that you required food vouchers at times to help you survive. After that Dr Zimmerman provides a comprehensive report of the history provided by you of your perceived persecution over the years and leading up to this offending. Your diagnosis of schizoaffective disorder since your late teens is well established. Eastern Health clinical notes from 2018 obtained by Dr Zimmerman diagnosed paranoid schizophrenia, substance misuse and cluster B personality traits. You have a history of 10 admissions to Area Mental Health Unit and four past admissions to Thomas Embling to that point.
31.Your mental illness has been complicated by your longstanding history of substance abuse. You began injecting amphetamines at age 16 and then methylamphetamines at aged 20. You told Dr Zimmerman that you only used methylamphetamines 'now and then' as the drug does not agree with you. You have been a longstanding cannabis user, consuming one to two grams of cannabis a day. You had been trying to book into a drug rehabilitation clinic for a detox program at the time of your arrest.
32.As I have said, notes supplied to me and also to Dr Zimmerman report you to attend medical clinics as a 'drug seeker'.
33.As far back as 2013 Dr Carroll concluded that you would struggle to make calm reasoned decisions, exercise appropriate judgement or control your emotions. Dr Carroll concluded your lack of remorse at that time did not result from callous disregard but rather a long history of persecutory delusional system and complex relationships with the police.
34.After assessing all of the medical evidence and depositions in this matter, Dr Zimmerman concluded that you suffer from paranoid schizophrenia currently in remission on antipsychotic treatment. Dr Zimmerman concluded that you meet the criteria for paranoid schizophrenia with the biological predisposition, onset at the typical age of late teens, symptoms including well systemised paranoid delusions and auditory hallucinations that respond to antipsychotic treatment.
35.Dr Zimmerman concluded that you were acutely psychotic on the day of the offending but given your accounts of the events of the day of the offending and the consistency of those accounts with information on the brief, Dr Zimmerman concludes that you were aware of the nature and quality of the conduct constituting the offending.
36.Nevertheless, in accordance with the principles set out in the case of Verdins, I proceed on the basis that your moral culpability for your offending is reduced and consequently the dominant sentencing principles of general and specific deterrence must be moderated. This is because the law recognises that persons whose offending is causally connected to a mental illness such as you suffer are inappropriate vehicles for the expression of general and specific deterrence.
37.Mr Brugman submits that your time in prison has been made more onerous by your mental illness. Unfortunately, the report of Dr Zimmerman does not express any opinion on this matter as it was primarily obtained for the purpose of assessing your fitness to plead. It seems apparent that you have received comprehensive medical treatment since you have been in custody and you are compliant with and respond to your medication. Dr Zimmerman concludes that this has done much to reduce or eliminate your psychotic episodes. Nevertheless, I do consider it is likely that your time in custody has not been easy, especially upon your initial reception into prison when you were so acutely unwell.
38.The first plea hearing before me was somewhat cut short when I ordered a presentence report to seek information in relation to mental health plans, services and accommodation assistance for you upon your release. I was provided with a further psychiatric report from Forensicare consultant psychiatrist Dr Neal Wareing. This report confirmed your psychiatric history, your substance abuse history and circumstances of your offending. At [47] of his report, Dr Wareing stated that you indicated you wish to return to Ballarat and expected to again live with your sister-in-law on release. You intend to reengage with the Area Mental Health Service workers and wish to see a drug and alcohol counsellor regarding your cannabis use.
39.Dr Wareing concluded that whilst in custody you would have access to prison mental health services and drug counselling services. Upon release he recommends long term case management by an area mental health service, consideration of the appropriateness of a community treatment order and individual or group drug counselling and drug testing.
40.By a letter dated 7 August 2019 your NDIS plan was approved. Dr Wareing raises the possibility that the NDIS may fund some of these services for you.
41.In my view, your prospects of rehabilitation presently remain guarded. I note that before you were arrested you endeavoured to obtain mental health treatment. In the months leading up to your arrest you had participated in a drug rehabilitation program, you interacted with the NDIS and you took out private health insurance. I consider all of these to be significant indications of insight and intention on your behalf.
42.It seems that your best prospects of a successful reintegration back into the community will come when you have the support you require across drug rehabilitation services, mental health services, the NDIS and community services.
43.You have now re-secured accommodation with your sister-in-law in Ballarat. Moreover, since you have been in custody you have communicated with your NDIS planners and with your private health insurance provider to ensure that those contacts have not been lost.
44.Mr Brugman submitted that the following matters should mitigate your sentence:
(1) that the plea of guilty has utilitarian benefit;
(2) that your mental illness should enliven the principles of Verdins such as to moderate general and specific deterrence, and that your time in custody is more onerous when compared to the rest of the general prison population which does not suffer from acute mental illness; and
(3) you have a good prosocial network, largely of your own making, and an intention to continue treatment for your illness and substance abuse issues.
45.In all the circumstances, Mr Brugman submitted that I should impose a combination sentence of imprisonment with a community corrections order.
46.After considering carefully Mr Brugman's submissions and after reading Dr Wareing’s Forensicare report, Ms Warren on behalf of the Crown agreed and submitted that a combination sentence of imprisonment with a community corrections order was open in this case. Ms Warren provided principles to me as to how the length of imprisonment may be structured.
47.On the return plea hearing date, I ordered an assessment of your suitability to undertake a further community corrections order. You were assessed as suitable to undertake a further community corrections order. The assessing officer, using the tools provided, assessed your risk of reoffending as medium.
48.The CCO suitability assessment reports that you attributed your historical breaches of court orders to deteriorating mental health whilst unmedicated. You spoke during the assessment of the importance of managing your mental health and remaining abstinent from illicit substance abuse in the community, and you link both of those requirements to your ability to comply with the order.
49.Your previous case manager on the CCO for the breach which is still outstanding expressed the same and noted that your compliance is wholly dependent on compliance with antipsychotic medication and maintaining sobriety. The case manager noted that you were compliant with CCO conditions until the time your substance abuse escalated and your mental health suffered.
50.Now the orders or conditions that were suggested by me for assessment were your suitability for drug rehabilitation and treatment, mental health assessment and treatment, to undergo supervision by the Community Corrections officer for the duration of the order and also a judicial monitoring condition. That would mean once every couple of months but only on one or two occasions you would come back before me. It would be by way of video link probably from the Ballarat Office of Corrections where I could speak to you and your case manager and assess your progress on the order.
51.Now you were assessed as suitable for the order and for those conditions. The assessing officer noted that your access to a dedicated worker via the NDIS was a large factor in the finding of your suitability to undertake another community corrections order and Corrections consider the availability of a dedicated worker as an additional layer of support. It has the potential to see you through maintaining stable mental health in the community.
52.I expressed the desire to Corrections that you be subjected to a Community Treatment Order. Now of course, Corrections cannot order that themselves but by imposing a condition of having you assessed and treated for a mental health component on the CCO that enables Corrections to liaise with your Area Mental Health Service provider in Ballarat and upon assessment you may be provided with a community treatment order.
53.So just if I can get you back. If I can get you back on screen for me. Mr Cottren, can I just ask you to say something?
54.ACCUSED: Hello, Your Honour.
55.HIS HONOUR: Thank you. All right. So I just want to address you directly. So you have heard the conditions that I am proposing for a CCO and that is number one, drug assessment and treatment. Number two, mental health assessment and treatment. Number three, supervision by the Office of Corrections and number four, just an occasional update by way of judicial monitoring with me.
56.Mr Cottren, I cannot make an order for a CCO without your consent. Do you consent to me making an order in those terms?
57.ACCUSED: Yes, Your Honour.
58.HIS HONOUR: Thank you. Now Mr Cottren, in addition to those conditions there is a number of other general conditions that apply to every community corrections order. Although I know that you are already familiar with them I must remind you of what those conditions are before you consent to the order, all right?
59.ACCUSED: Yes.
60.HIS HONOUR: Now they are that you must not commit, whether inside or outside Victoria during the period of the order, an offence punishable by imprisonment. So even an offence you would not necessarily go to prison for, if you commit an offence punishable by imprisonment that will breach the terms of the order. So you follow that?
61.ACCUSED: Yes, Your Honour.
62.HIS HONOUR: Then you must comply with the obligations and requirements prescribed by the regulations to the Sentencing Act. So that means you have got to comply with the terms and conditions of the order. Do you agree with that?
63.ACCUSED: I agree, Your Honour.
64.HIS HONOUR: Yes. You must report to and receive visits from the Office of Corrections during the period of the order?
65.ACCUSED: Yes, I agree, Your Honour.
66.HIS HONOUR: Thank you. You must report to the Community Corrections Centre specified in the order. Now that is going to be done by telephone in your case, within two clear working days after the order comes into force and the order will come into force when you finish your term of imprisonment which I will announce at the end of the order, all right?
67.ACCUSED: Yes, Your Honour.
68.HIS HONOUR: So within two clear days of getting out. Once you return to Ballarat you will need to ring the Ballarat Office of Corrections. Now you must not leave Victoria except with the permission generally or specifically of the Office of Corrections. That is important, Mr Cottren, because if you start hearing voices again or thinking that you are being stalked, I know that your tendency is to want to move places but it is important that you do not do so and you must notify the Office of Corrections and, if you are on a CTO, either your GP or your mental health service provider, so that you must get help, all right?
69.ACCUSED: Yes, Your Honour.
70.HIS HONOUR: All right. The next thing is you must comply with any direction given by the Office of Corrections that they give to make sure that you comply with the order, all right? So you have got to comply with all lawful directions that they give you and they can give you those directions either orally or in writing. Do you understand the general conditions of the order that I propose?
71.ACCUSED: Yes, Your Honour, I do.
72.HIS HONOUR: Do you understand the specific conditions that I intend to impose?
73.ACCUSED: Yes, Your Honour, I do.
74.HIS HONOUR: And the final thing I want to tell you is that after your release from prison I intend to order that you be subjected to the community corrections order for a period of 18 months. Do you understand that and do you consent to that period?
75.ACCUSED: Yes, Your Honour.
76.HIS HONOUR: All right then. Mr Cottren, I then propose that you be convicted and sentenced to an aggregate term of imprisonment of 12 months in combination with a community corrections order in the period of 18 months to commence upon your release from prison.
77.Under the Community Corrections Order I order that you undergo assessment and treatment for drug issues, undergo assessment and treatment for mental health issues, that you be subject to supervision and that in the period of three months' time you appear back before me for judicial monitoring on Friday 30 October at 9:45am.
78.I reckon the period of 359 days excluding today reckoned as already served.
79.The 6AAA declaration is made more difficult by the fact that you have been so acutely unwell and I have moderated the sentence I would ordinarily impose but the sentence that I would have imposed but for the plea of guilty is a sentence of 3 ½ years with 2 ½ years to serve.
80.Mr Cottren, just to make it clear, if you breach the order by noncompliance or committing further offences you will face resentence on the matter of the armed robbery, and you may also face a charge of contravention of the order, which is a separate charge which also carries a term of imprisonment.
81.So I should have advised you of that at the beginning but you are content to still continue with the order?
82.ACCUSED: Yes, Your Honour.
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