Director of Public Prosecutions v Davey
[2021] VCC 1632
•22 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR 21-01581
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LACHLAN DAVEY |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2021 | |
DATE OF SENTENCE: | 22 October 2021 | |
CASE MAY BE CITED AS: | DPP v Davey | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1632 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Plea of guilty – one charge of theft – one charge of armed robbery –possession of a drug of dependence (cannabis L.) – related summary offence of committing an indictable offence whilst on bail -circumstances of COVID-19 pandemic- 24 years old- complex neuropsychological profile- acquired brain injury- substance use.
Legislation Cited: Crimes Act 1958; Bail Act 1977; Drugs, Poisons and Controlled Substances Act 1981; Sentencing Act 1991
Cases Cited:R v Verdins[2007] VSCA 102; (2007) 16 VR 269; R v Mills [1998] 4 VR 235; Worboyes v R [2021] VSCA 169; Renzella v R [1997] 2 VR 88
Sentence: Total Effective Sentence 8 months imprisonment with 18 month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Teo | Office of Public Prosecutions |
| For the Accused | Mr A. McCowan | Emma Turnbull Lawyers |
HER HONOUR:
Introduction
1Lachlan Davey you have pleaded guilty to one charge of theft, one charge of armed robbery and one charge of possession of a drug of dependence.
2The maximum penalty for the charge of theft is 10 years' imprisonment. The maximum penalty for armed robbery is 25 years imprisonment. The maximum penalty for possessing a drug of dependence, with respect to a small quantity of cannabis, is five penalty units.
3In addition, you have also pleaded guilty to a summary charge of committing an indictable offence whilst on bail, namely the offences of armed robbery and theft which are the subject of these proceedings (summary charge 5). The maximum penalty for this offending is 30 penalty units or three months' imprisonment.
Circumstances of the offending
4The circumstances of the offending are set out in a comprehensive summary of prosecution opening that was marked as Exhibit 1 on your plea. On 1 March 2021, you attended at the Woolworths supermarket at Broadmeadows Central where you selected a 'Mint' brand 12.5 cm utility knife and left the store without paying for the knife (Charge 1: theft). You then briefly left the shopping centre, smoked a cigarette before returning inside, whereupon you removed the knife from the packaging, before entering a Chemist Warehouse whilst holding the knife. This was captured on CCTV. You then left the shopping centre and security contacted Triple 0. Police attended and seized the knife packaging.
5You travelled on a city bound train to Glenroy Railway Station where you exited the train and walked towards the Amcal Pharmacy. You entered the pharmacy holding the knife in your right hand. You walked behind the counter and the pharmacist, Mr Dos Santos, told you that you were not allowed to be there. You pointed the knife at him and stated, 'Don’t do anything. Don’t call the police.' The pharmacist ran away and asked somebody to contact Triple 0.
6You then spent approximately five minutes looking through medications on the shelf before selecting two boxes of apo-escitalopram, a bottle of olanzapine apotex and a bottle of olanzapine RBX. You then opened several packets and began ingesting a number of pills (Charge 2: armed robbery). You left the knife on the shelf and exited the store.
7You were arrested nearby in Chapman Avenue with a blister pack of medication and a white pill in your front left pocket. You also had in your pocket a small amount of cannabis (Charge 3: Possession of drug of dependence). This charge relates only to the cannabis. Two other boxes of apo-escitalopram and blister packs were found discarded nearby.
8You were transported to the Northern Hospital as you had consumed a number of unknown pills and were later assessed by a forensic medical officer.
9At the time of this offending you were on bail, having been granted bail less than two weeks earlier, on 20 February 2021, and that is the summary charge which you have consented to being transferred to this court and pleaded guilty.
Arrest and interview
10You participated in a record of interview on 2 March 2021, during which you admitted you had gone into the chemist with a knife and taken some pills. You said you remembered stealing the knife from Woolworths and walking around the shopping centre with the knife out of its packaging. You stated that you went to the Amcal Pharmacy on the train still carrying the knife. You stated that you did not recall what medication you had taken or what type of medication you were looking for.
11The victim Mr Dos Santos has declined to prepare a victim impact statement. However, having regard to the statement he made which forms part of the depositions in this matter, it is clear this would have been a frightening experience.
Prior criminal history
12You have admitted a prior criminal record.
13Your criminal history spans over 10 years and these include prior matters for dishonesty related offences, intentionally causing injury, contravene family violence intervention orders, make threat to kill and criminal damage.
14In November 2018 you were convicted of contravening the conduct condition of bail, committing indictable offence whilst on bail, persistent contravention of a family violence intervention order and making threat to kill. On all of those charges you were convicted and placed on a community corrections order for a period of 12 months. You appear to have breached that community corrections order and in August 2019 that order was cancelled. This was the only occasion upon which you have been placed on a community corrections order.
15Since 2018, you have also received a number of sentences involving periods of imprisonment, the most recent of which was in February of this year, for theft and intentionally damaging property, for which you were sentenced to 10 days' imprisonment. It would seem that a number of your prior criminal matters relate to breaches of family violence intervention orders. Your counsel submits that these relate largely to family violence orders put in place with respect to your mother, Deborah Davey, whom I understand remains supportive of you.
16Significantly, you have a number of adult prior convictions involving violence-related offending including intentionally causing injury, unlawful assault, and aggravated assault on a female. You have received terms of imprisonment for a number of these offences, including a sentence of 107 days in December 2019. In December 2020 you were convicted at the Melbourne Magistrates’ Court of a charge of intentionally causing injury, criminal damage, committing indictable offence whilst on bail and possess cannabis. You received an aggregate sentence of 14 days' imprisonment. In January 2021, you were convicted at the Magistrates' Court at Melbourne for a charge of unlawful assault, intentionally damaging property and committing indictable offence whilst on bail for which you received 14 days of imprisonment. With respect to each of the prior matters involving violence-related charges, your counsel was not able to tell the court the circumstances of those offences, or the victim in each instance. The court does not have any further information regarding the circumstances of those offences. I am told that there are some outstanding matters including outstanding charges of assault police, for which you were on bail at the time you committed these offences, assault and dishonesty related matters, which are all listed in the Magistrates’ Court within the next few months.
17Your counsel has submitted that it is significant that throughout your prior criminal history you have only been placed on a community corrections order on one occasion. Your non-compliance with the community corrections order is troubling. However, I accept that you may not have been able to receive the level of support that you required in order to be able to successfully complete the order, having regard to your individual needs and circumstances. Your counsel has submitted that there are a number of potential supports that can now be put in place to assist you in the future were you to be placed on a further community corrections order as part of the sentence imposed with respect to this offending.
Procedural history
18On the day of your arrest, you were remanded in custody and have remained in custody since this date, being 1 March 2021. You entered a plea of guilty at an early stage in the Magistrates' Court on 27 July 2021 at a committal mention. Your plea of guilty to these charges is therefore an early plea and I accept that it is a plea entered at the earliest opportunity. Your plea hearing was heard in this court on 13 September 2021 on which date you were arraigned.
Personal circumstances
19Your counsel has prepared detailed written sentencing submissions on your behalf (Exhibit A), and these submissions were supplemented in the course of the hearing.
20A number of expert reports were tendered on your plea. These include a report from Dr Linda Borg, a clinical neuropsychologist, dated 30 March 2018 (Exhibit D); Dr Adam Deacon, consultant psychiatrist, dated 8 June 2021 (Exhibit C) and a report of Carla Lechner, clinical psychologist, dated 23 August 2021 (Exhibit B)
21You are now 24 years of age, as you were at the time of this offending. You were born and raised in Taylors Lakes and are the youngest of four children. You attended Keilor Primary School and then a variety of high schools, including alternative programs, completing year 9.
22During your years at primary school, you were diagnosed with epilepsy. You regularly experienced seizures in the years that followed, which frequently occurred whilst you were at school, and this resulted in you being the target of extensive bullying by other students. You experienced seizures until you underwent neurosurgery at the age of 13 years. Following your surgery, your seizures improved but you suffered a range of other cognitive deficits that were aggravated by increasingly problematic drug use. During your school years, it was noted that your behaviour was described as extremely challenging at times and you were frequently suspended from school because of oppositional and aggressive behaviour towards other students. You were ostracised and were said to be struggling academically. At the age of 14, you also experienced a traumatic event as referred to in Exhibit A at paragraph 11.
23Your parents separated when you were 15 years old. You were privy to some violent episodes between them as a consequence of their drinking. Your father is unemployed and alcohol dependent. Your mother lives in Essendon and works at a gym and appliance store.
24It seems that there is a significant correlation between your substance abuse and the offending. You began drinking alcohol at the age of 14. You also began using cannabis from the age of 14, eventually developing a daily habit. You started using methamphetamine at the age of 18; you both smoked and injected this drug. Your substance abuse would appear to have had an impact upon your psychiatric state. Clinical psychologist Carla Lechner is of the view that your significant use of illicit drugs has complicated your psychiatric diagnosis. She notes that you are currently diagnosed with schizophrenia; though drug-induced psychotic symptoms appear to endure even when you are not using drugs.
25You have a limited employment history having worked in both horticulture and painting. At the time of this offending, you were unemployed. It seems that you have only become eligible for disability support pension in the last two years.
26You have experienced significant issues with respect to homelessness. You were homeless in the eight months prior to your arrest for this offending. In 2020 you were placed in hotel accommodation during the course of the COVID-19 pandemic, but you were removed from the hotel as a result of you damaging property. You were then homeless again in the Melbourne CBD. You had no stable friends and only occasional contact with your mother. You have told psychiatrist Dr Adam Deacon that you consciously intended to commit an offence, anticipating that you would be arrested and detained in custody; that in part you wanted to be detained so as to offset your homeless state. Carla Lechner believes that you are at risk of institutionalisation if you view prison as a preferable option to living in the community.
27Your counsel initially submitted that the principles in Bugmy v R[1] are engaged because of your disadvantaged childhood which impacted on your development as a child and continues to impact you as an adult by virtue of your diminished cognitive functions, poor mental health and offending. However, during the course of the plea hearing your counsel disavowed reliance on Bugmy principles.
[1] [2013] HCA 37; (2013) 249 CLR 571
28I should say that whilst I accept that the events of your childhood with respect to the bullying and ostracization you experienced when you were of school age did have a significant effect upon you, I am not satisfied that this falls within the type of profound deprivation, social disadvantage or dysfunction as to which Bugmy prescribes. These matters are nonetheless relevant and I take them into account.
Psychological material
29I have had regard to the various expert reports submitted on your behalf. According to Dr Borg, who saw you in early 2018, you present with a complex neuropsychological profile and have a complex developmental history. This is characterised by early behavioural difficulties and the onset of chronic seizures in childhood which required neurosurgical intervention and lobectomy in early adolescence.
30Specifically, in 2009 at the age of 13 you underwent brain surgery to control your seizures and epilepsy, and although this was effective in managing your seizures, you suffered an acquired brain injury that undermined a number of areas of cognitive functioning. After the surgery you continued to present with aggressive and impulsive behaviours which appear to have escalated. Exacerbating factors included the onset of polysubstance abuse at this age, as well as potential trauma and exposure to the matters that are referred to in paragraph 11 of Exhibit A. Indeed, the reports indicate you have had multiple contacts with the Royal Children’s Hospital mental health services for the management of agitation, behavioural outbursts, suicidal ideation and ADHD between 2007 and 2011. Further, that in March 2012 you had been admitted to the Child and Adolescent Health Unit due to an acute psychotic episode. There were also a number of Orygen Youth mental inpatient admissions between 2012 and 2015, and multiple admissions to the Northern Hospital in Broadmeadows Psychiatric Inpatient units in 2016.
31Numerous psychiatric diagnoses have been made over the years including borderline intellectual functioning, autism spectrum disorder, attention deficit hyperactivity disorder, schizophrenia, drug-induced psychosis, major depression and antisocial personality disorder. Dr Borg notes that a pattern of progressing intimidating and threatening behaviour has been demonstrated over time and escalates in the context of acute substance use.
32Formal assessment revealed intellectual and reading capabilities consistent with low average estimates of premorbid functioning. Your IQ was measured at 74, which illustrates significant deficit but falls outside of you having an intellectual disability. In terms of executive functioning, you were found to exhibit highly rigid thinking. Dr Borg did not consider that you had an intellectual disability; rather that you presented with a specific pattern of deficits that primarily affect attention and executive functions and, in turn, memory and learning. An earlier diagnosis of autism spectrum disorder has been ruled out by Dr Borg.
33Whilst you also exhibit psychiatric instability and features consistent with underlying personality traits, these are said to be likely primarily organic in nature and subsequently exacerbated by your mental illness and substance use. Accordingly, Dr Borg concluded that you presented with cognitive deficits that reflect the combined impact of a severe acquired brain injury compounded by mental illness and acute substance use. According to Dr Borg, your brain injury has resulted in difficulty with complex decision-making, impulse control, experience of emotion and cognitive flexibility. You have damage to the parts of your brain resulting in impairment to 'flexible decision-making, emotional regulation and inhibitory control.'
34Dr Borg considers that you are very limited in your capacity to engage in consequential and reflective thinking, particularly when substance affected or highly emotionally aroused. She considers that you are likely to engage in impulsive action with little appreciation of, or consideration for, the potential outcomes. You are also said to be quite disconnected from your emotional world, and tend to channel internal distress through angry and aggressive behaviour; a pattern of behaviour that has been evident from childhood or early adolescence.
35
According to Dr Deacon, you appear to have limited insight into your formal psychiatric history. Having said that and despite you indicating that you did not think you had an enduring psychotic illness such as schizophrenia, you had mostly reliably been taking antipsychotic medication both in the community and in custody. You are currently prescribed Quetiapine. Since you have been in custody you have had regular reviews with a mental health nurse. Dr Deacon too noted your complex psychiatric history, noting that this required community mental health management since 2008 when you were aged 10. Dr Deacon notes that you have been very difficult to manage and support whilst in the community, and this is in a large part connected to your drug use. Dr Deacon is of the view that your mental health has been compromised by your drug use and it appears that you have been very difficult to follow up in the community.
Dr Deacon is of the view that you were not psychotic at the time of the offence. According to him, you said you had not used methamphetamine for over a month prior to the offence. It is unclear whether this is the case, and your counsel submitted that you had used methamphetamine approximately three to four days before the offending.
36
Carla Lechner saw you on 5 August this year. Her report sets out your significant history and makes reference to the earlier report by Ms Borg.
Ms Lechner found that it was difficult to categorise your presentation into one diagnosis, but rather in her view, it was necessary to understand that you have complex needs to manage in the community of both a constitutional and personality basis, aggravated by drug use. You have suffered drug-induced psychosis and have been diagnosed with schizophrenia due to enduring psychotic symptoms. You have also been diagnosed with stimulant use disorder in early remission in a controlled environment.
37When you spoke with Ms Lechner you acknowledged your role in the offences and told her you were in the city, homeless for a while; you were really cold. You said that you knew you would go to gaol but that you were not going to hurt anyone - you wanted a warm meal and a roof over your head, saying, 'In prison, it's good'. Ms Lechner noted that you had limited expressions of regret on account of your lack of insight and general lack of empathy due to your head injury.
Principles of Verdins
38Your counsel has submitted that the principles as established in Verdinsv R[2] have application here. Specifically, it is submitted that considerations of Verdins are enlivened with respect to a reduction in your moral culpability (limb 1); and to a reduction of weight to be given to deterrence (limbs 3 and 4). No reliance is placed on limbs 5 or 6 of Verdins as there seems to be some degree of acceptance that your mental state appears to improve with a level of abstinence as a result of your incarceration
[2] (2007) 16 VR 269 (“Verdins”)
39In contrast, the prosecution submits that the evidence is not sufficiently cogent to establish that at the time of the offending you were in an impaired mental state such that it adversely affected your capacity to exercise proper judgment and control your behaviour; nor that there is a realistic causal nexus between your mental state and the offending. The prosecution submits that your homelessness was the motivating factor behind your decision to commit the offending. This does appear to be the case, having regard to what you told police and Dr Deacon and Ms Lechner.
40
Significantly, according to Dr Deacon there is no clear nexus between your complex mental illness and cognitive problems and the offence. However,
Dr Deacon is of the view that indirectly there is an association, as your state of being homeless partly relates to a complex range of problems stemming from your mental illness, drug dependency and cognitive deficits. I accept that his evidence with respect to this, though as to whether Verdins is enlivened in this regard, by way of direct connection, I am not satisfied of this to the requisite standard. Indeed, it is difficult to disentangle the desire for you to be arrested so as to have some form of accommodation from your mental health, though clearly, both are connected.
41The report of Carla Lechner makes no reference specifically to the connection between your offending and your mental health issues or your acquired brain injury. However, as outlined, Ms Lechner notes that you have an extremely complex clinical picture. Accordingly, I am of the view that the evidence required to establish a clear nexus between your mental health issues and the offending, is insufficient. The evidence does not establish that these issues (as distinct from your desire to be arrested) seriously impeded your decision making to the degree necessary to satisfy me that Verdins is made out with respect to reducing your moral culpability. However, your mental health informs your lifestyle, so the aggregate factors of your mental health and acquired brain injury do provide the context for this offending. To that extent, although not directly causally related, they operate indirectly to the extent that your moral culpability is somewhat reduced. In effect, I accept that the role your mental health played overall is relevant and I take that into account.
42Your mental health is particularly significant when it comes to determining your prospects of rehabilitation, of which I will say more in a moment.
43Dr Deacon considers that your risk of returning to homelessness, drug use and possibly offending behaviour is relatively high if your personal circumstances remain the same. He recommends a considered strategy involving NDIS workers and mental health team.
44In terms of treatment, Ms Lechner considers that you would likely benefit from having a consistent case manager who is able to coordinate services and to facilitate your engagement with them. In her view, you require a comprehensive management plan that is developed prior to your exit from prison. This would include supported and appropriate housing, appropriate psychiatric management that monitors the efficacy of your psychotropic medication, alcohol and drug counselling and psychological support that is behaviourally based with an emphasis on skills development. You require a central case manager who is able to coordinate suitable housing and facilitate your engagement with a range of support services. According to Ms Lechner, in the absence of a high level of support and supervision, your risk of relapse to drug use and therefore offending is high.
Supports in place
45To that end it seems that when you are to be released into the community it is important that you are appropriately and consistently assisted. It appears that a number of supports have now been put in place which are funded by the National Disability Insurance Scheme. You have been receiving NDIS support since January 2021 and have been linked in with Including You Disability Support Services. A letter prepared by Alana Pipicelli from Including You, dated 8 September was tendered (Exhibit E). Ms Pipicelli was present on the video link during the plea hearing. Additionally, letters from Amanda Kelly from the Australian Community Support Organisation (ACSO) dated 10 September 2021, and Ms Ery Roslin of Frontyard Youth Services (an undated report) were tendered on your plea (Exhibit E & F).
46Including You are collaborating with the care team to ensure that you receive the best possible assistance from allied health professionals to prepare for your exit from prison. Frontyard and ACSO are currently involved to assist with housing and post release options. According to Ms Pipicelli, without a structured plan you will struggle with homelessness and substance abuse. However, with the assistance of relevant professionals and support workers it is hoped that you would be able to maintain a healthy lifestyle. When the plea was first listed before me, the question of whether and where you may be able to secure accommodation was still outstanding. In the period between the plea and further plea it appears that with the assistance of ACSO accommodation has been secured for you with either Grace Manor Meadowbrook Facility or Sydenham Grace. A further letter by Ms Pipicelli dated 21 October 2021 was also tendered (Exhibit J) confirming that if released from custody, you would be able to move into Grace Manor immediately. Grace Manor provides a supported living facility providing options for independent and supported accommodation. It also provides for GP and Allied Health visits to facilities to support its residents.
47The letter from Ms Pipicelli indicates that the following has been arranged for you: specialist support coordination, support coordinated occupational therapy, direct support workers, state trustees and an alcohol and drug counsellor. Whilst you have been custody you have received weekly phone calls from direct support workers and once you are to exit prison, you will have support workers five hours per day during the week and three hours both Saturday and Sunday. In my view, this is significant as it provides a high level of support and structure. Your plan as I understand it is due to be reviewed in January 2022 and it is anticipated that Including You will recommend that you continue to have supports for seven days as this will assist you to achieve your goals and hopefully stay out of the justice system.
48Ms Kelly from ACSO has also prepared a letter, tendered on the plea (Exhibit K) dated 21 October 2021, confirming that a reintegration transition plan has been prepared for your release from custody, through ReStart and that upon your release, ReStart will support you with assertive outreach for three months.
Parties' submissions on sentence
49Your counsel has submitted that a combination sentence would be within range, and that particularly having regard to the intensive supports currently available to you, along with the availability of housing, this will be significant in assisting with your rehabilitation. Your current NDIS plan and funding will be in place until January 2022 whereupon it will be reviewed.
50The prosecution submitted that the offending warrants a term of imprisonment by way of a head sentence with a non-parole period. That given your previous difficulties in complying with court orders and supervised orders, coupled with your prior criminal history, this does not bode well for your rehabilitation prospects.
Nevertheless, I agreed to have you assessed for your suitability for a community corrections order. The supporting material tendered on the plea was available to Corrections, who have assessed you as being suitable for a corrections order if a number of recommended conditions are in place. I will say more about that assessment n a moment.
Youth
51Your counsel has submitted that as you are 24 years of age, you fall to be sentenced as a youthful offender and that, as such, greater weight should be given to rehabilitation. I take into account that you are still relatively young and therefore your rehabilitation is a significant consideration having regard to the principles set out in R v Mills [3]
[3] [1998] 4 VR 235.
Family support
52Your mother, Deborah Davey, has prepared a written reference (Exhibit H) in which it is clear that she loves and wishes to support you. However, she realistically acknowledges the difficulties associated with having you return to live with her. She has been in regular communication with you whilst you have been in custody and wishes to assist and nurture you in any way possible.
Prospects of rehabilitation
53
I have taken into account the views expressed by both Dr Deacon and
Ms Lechner regarding your risk of recidivism. Your risk of re-offending is high, particularly if you cannot abstain from illicit drug use and in the absence of supports. Having suitable accommodation is extremely important and your ability to remain drug free is to some extent contingent upon you accepting the supports offered. Corrections have also considered you to be a high risk of reoffending.
Plea of guilty
54I take into account your plea of guilty. This was a plea entered at the earliest opportunity, and it is of significant utilitarian value. You have spared the need for a trial and for witnesses to give evidence. Your plea demonstrates a willingness to facilitate the course of justice. Your plea of guilty provides some evidence of remorse.
55Your plea of guilty has an additional utilitarian value given that it was entered during the COVID-19 pandemic, where the court faces a substantial backlog of trials resulting from the suspension of jury trials. Accordingly, as the Court of Appeal articulated in Worboyes v The Queen,[4] your guilty plea is worthy of greater weight in mitigation than a similar plea entered at a time when the community and courts are not affected by the pandemic. As a consequence, you are entitled to a substantial discount in sentence both for your plea of guilty itself and taking into account that this plea of guilty has occurred during the COVID-19 pandemic.
[4] [2021] VSCA 169
56You have been in custody since your arrest on 1 March this year. It is submitted, and I accept, that your time in custody has been made more difficult as a result of the restrictions relating to COVID-19. You have endured various lockdowns during which you have had no time out of your cell. You have been unable to receive visitors, and there have been few courses available to those in custody. Recently, there have been individuals who have tested positive in the prison system, which has no doubt added to the stressful environment.
57Both parties agree that you have previously spent time in custody between November 2018 and December 2020, namely 108 days. This period in custody cannot be reckoned as a form of pre-sentence detention but it is to be taken into account in a general way in accordance with the principles established in Renzella v R.[5] and I do take those matters into account.
[5] [1997] 2 VR 88
Nature and gravity of the offending; culpability and degree of responsibility
58The offending here is serious. Armed robbery is by its very nature a serious offence, as is reflected in the maximum penalty. The theft was committed it seems for the purposes of carrying out the armed robbery. Your counsel has submitted that this offending falls towards the lower end of seriousness, highlighting the unsophisticated nature of the offending; that it involved little planning; that you made no attempt to disguise yourself; and that although you had with you a knife, you did not use it as a weapon in the true sense. You did not really profit from the offending and it was of relatively short duration.
59Whilst I accept that, I also accept that a lack of sophistication is not uncommon in offending of this nature. The prosecution submits that the fact that you carried a knife with you was for the purposes of defending yourself in the event of a confrontation, as you told police. Whilst the offending was not for profit, it was for the purpose of obtaining medication, submits the prosecution, as is illustrated by the fact that you chose to rob a pharmacy specifically.
Relevant sentencing factors
60I am required, pursuant to the Sentencing Act 1991, to take into account various factors when formulating an appropriate sentence in your case. The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, the effect of your offending on the victim and your personal circumstances. I also am to have regard to matters of parsimony.
61I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, you are rehabilitated and reintegrated into society.
General and specific deterrence
62General deterrence is an important sentencing consideration in sentencing you for these offences. Other members of the community must understand that serious criminal offending will attract significant punishment. In your case, specific deterrence and protection of the community are also required to be given some weight, in light of your prior criminal history.
63Just punishment and denunciation must also be given primary consideration in my instinctive synthesis.
64Although this is but one of the factors for consideration, I have also taken into account current sentencing practices.
65Ultimately there are a number of important matters to be taken into account in determining your sentence. Whilst the offending here is serious and warrants a term of imprisonment, your personal circumstances are such that your rehabilitation is important. Although I view your prospects of rehabilitation as guarded, I am of the view they are potentially improved if you have adequate and intensive supports in place. To that end, the involvement of supports such as Including You, ACSO and Frontyard are crucial. You have not had this sort of opportunity for intensive support in the past, and the fact that it is available now is very significant. The level of support envisaged is such that I am of the view that placing you on a community corrections order following a period of imprisonment would achieve the relevant sentencing objectives. So what I propose to do is to give you this very significant opportunity to undertake a community corrections order. Your counsel has submitted that time served is adequate. The time that you have currently spent in custody on remand is 235 days. I am going to make an order that you be imprisoned for a total period of eight months, which means on my calculations that with the 235 days as time served and factoring into the equation emergency management days you will likely be released within the next ten days, and will commence a community corrections order. Accordingly, the sentence I impose will be as follows.
Disposition
66On Charge 1, a charge of theft, you will be convicted and sentenced to one month's imprisonment.
67On Charge 2, a charge of armed robbery, you will be sentenced to eight months' imprisonment and a community corrections order for a period of 18 months.
68On Charge 3, possessing a drug of dependence (Cannabis L.) the charge is found proven and dismissed pursuant to s76 Sentencing Act 1991.
69On the summary charge, Charge 5, of committing indictable offence whilst on bail you are sentenced to two months' imprisonment.
70All sentences for which you have received a term of imprisonment are to be served concurrently.
71The total effective sentence will therefore be eight months' imprisonment. At the conclusion of your imprisonment you will be placed on a community corrections order with a number of conditions. The community corrections order will last for a period of 18 months. You are to attend at Sunshine Community Corrections office or make contact with them as directed within two working days of your release from custody.
72The conditions of the community corrections order will be as follows:
·You are to be supervised by Corrections.
·You are to undertake treatment and rehabilitation for mental health matters as directed by Corrections.
·You are to undertake treatment and rehabilitation for drug use as directed by Corrections.
·You are to undertake treatment and rehabilitation for alcohol use as directed by Corrections.
·You are to accept the support of Including You Disability Support Services.
·I am also going to order as a condition of your community corrections order that you participate in judicial monitoring.
73
This means that I will list this matter before me in four months' time so as to have an update on your progress. The matter will be listed on Friday 18 March at
9:30 am for judicial monitoring.
74These conditions are in addition to a number of other mandatory conditions that accompany a community corrections order, including:
· You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
· You must comply with any obligation or requirement;
· You must not leave Victoria except without the permission, either generally or in relation to a particular case, of the Secretary;
· You must comply with any direction given to you that is necessary for Corrections to ensure that you comply with the order.
75Mr Davey, the effect of all of that is that I am sentencing you to a total term of imprisonment of eight months, to then be released on a community corrections order. There are a number of conditions that are attached to that order and I need to ask you whether or not you agree to abide by those conditions before the order can be put in place. Do you understand and agree to the conditions as I have set out?
76OFFENDER: Yes, I do understand. Yeah, I understand fully, completely.
77HER HONOUR: With that indication, I will note for the record that you have agreed to the community corrections order in the terms as I have set out.
78Mr Davey, you are being given a real chance here. It is not one you are likely to receive again. You are very fortunate to have the intensive supports available to you as are available right now. If you do not comply with the community corrections order conditions, if you commit further offences, then you will be breached and the matter will be brought back before me for you to be resentenced on these charges of theft and armed robbery, and possibly for the breach itself. So Mr Davey, this is your chance. I know you need some assistance. I know you need some supports. Please take this opportunity to accept those supports and let people help you because otherwise you will find yourself on a slippery slope and continuing to reoffend and be back and forth before the courts and in and out of custody.
Pre-sentence detention
79Pursuant to s18 of the Sentencing Act 1991, I declare 235 days' pre-sentence detention as time already served to be deducted from the sentence that I have imposed.
s6AAA
80Pursuant to s6AAA of the Sentencing Act 1991, had you proceeded to trial and been found guilty, I would have imposed a total effective sentence of two years' imprisonment with a minimum of 15 months.
Ancillary orders
81I make the orders sought with respect to disposal of various items seized during the investigation as set out and I understand this is by consent.
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