Director of Public Prosecutions v Day

[2023] VCC 218

IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

CR-22-00703

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMIE DAY

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2023
DATE OF SENTENCE:	15 February 2023
CASE MAY BE CITED AS:	DPP v Day
MEDIUM NEUTRAL CITATION:	[2023] VCC 218

REASONS FOR SENTENCE

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Subject: Criminal Law
Catchwords: Guilty plea entered after sentence indication – robbery – possession of prohibited weapon – background of childhood trauma – symptoms of PTSD – early onset substance use – relevant criminal history
Legislation cited: Sentencing Act 1991 (Vic)
Cases cited: 
Sentence: Total affective sentence of nine months. 

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms D. Mitchell	Office of Public Prosecutions
For the Accused	Mr A. Chernok	Melinda Walker – Criminal Law Specialist

HER HONOUR:

1Jamie Day, following a sentence indication hearing, you have pleaded guilty to one charge of robbery and two related summary offences, being possession of prohibited weapons. 

2The circumstances reflect no credit on you at all. 

3You and a friend of yours, Nathan Glasgow, met up with another friend of yours, Russell Carr.  You knew that Mr Carr had won a jackpot of just over $2000 from the poker machines at the Royal Hotel in Sunbury on 5 July.  You spoke to Mr Carr and offered to, in effect, launder the proceeds of the poker machine winnings by arranging for him to meet somebody who would give him cash in exchange for the cheque (with an amount deducted for this non-bank cheque cashing transaction.)

4As a result of that, you took Mr Carr to the home of Mr Glasgow where you waited for the person who eventually arrived and gave Mr Carr cash in exchange for his cheque.  You then walked Mr Carr into Mr Glasgow's home where he was set upon by you and Mr Glasgow and the two of you demanded that he hand over the cash proceeds of the cheque. 

5It would appear that you knew this was going to happen and your conduct in walking into the house and immediately setting on him with Mr Glasgow indicates that.  Mr Glasgow produced a knife and slashed at Mr Carr, causing a cut to his bicep and adding to the fear and terror that Mr Carr must have already felt when being set upon by his friends who were trying to relieve him of the cash they had arranged for him to receive. 

6Your plea of guilty to the charge of robbery proceeds on the basis that, although a knife was used, there is no evidence to indicate that you were aware in advance that Mr Glasgow intended to produce a knife to use to reinforce the threats and demands made or that it was going to be used in the manner it was by Mr Glasgow which resulted in Mr Carr being slashed.

7You were, some days after that, arrested by police at your home. It was clear that Mr Carr was able to identify you. When the warrant was executed, you were searched, and a pair of knuckle dusters were found in one pocket and a flick knife in another pocket of your clothing.  It is as a result of that that you have pleaded guilty to the two related summary offences. 

8

You were originally charged with armed robbery on the basis that you and

Mr Glasgow had been complicit, not just in the robbery, but in an armed robbery. Because you have some criminal history, you were remanded in custody.  You have now been in custody, as of today, for a period of 287 days.  You had indicated from the outset that you had contested the armed robbery charge and so you remained in custody while committed to trial to this court.

9As a result of a sentence indication hearing where an offer to plead guilty to robbery was considered, and following the satisfactory outcome of the sentence indication hearing upon which I gave the indication of the likely sentence being not much greater than, or about the same time as the time served, you duly entered your plea of guilty to the charge of robbery and the two related summary offences. And so it is you come to be sentenced for them today.

10It is clear, just from those circumstances that denunciation, deterrence and just punishment are significant sentencing factors.  You have previous convictions which add to the need to factor into the sentencing mix weight to be given to specific as well as general deterrence. 

11At the age of 24 you have a troubling criminal history.  You first appeared before the Magistrates' Court when you were 19 for an offence of violence and you received a significant fine for that.  You have, since then, been before a court on four other occasions.  All summary charges, including one significant charge for these purposes, of possession of a firearm. You say that occurred when a shotgun was pointed at you and you grabbed it and removed it from the other person and placed it in your car. 

12The fact that you were moving in a milieu where firearms were present, where you had, even on your own account, the presence of mind to remove it from someone who threatened you with it and thought it was all right to place it in your car shows that there is clearly a need for specific deterrence, as well as general deterrence.  You clearly were moving in circles and engaging in activity that placed you on the offending scale.

13For that firearms offence you received a term of imprisonment, time served and a Community Correction Order and you have been breached for contravention of that Community Correction Order.  So your history is not impressive in that sense, hence the need to take into account the need to factor in specific as well as general deterrence. 

14Matters that were relied on in mitigation were, first, your relative youth.  You are still only 24 now. You have a significant history of disadvantage in your childhood and upbringing which could be seen to have laid down a pattern of antisocial behaviour, criminal behaviour, detachment from pro-social peers for significant periods, substance abuse and fragmented employment.

15

I was provided with two very helpful psychological reports.  A historic one from

Dr Linda Borg and a more recent one from the psychologist Ms Laura Fleming.  Ms Fleming summarised your circumstances in this way:  

Mr Day presented as a 24-year-old male with a prejudicial child history related to a maternal substance use, neglect, attachment difficulties, witnessing and experiencing violence, and early onset substance use.

16She then said, and I accept:  

Exposure to psychological adversity and major life stressors during childhood can be harmful to later psychological health and well-being across the lifespan.

17She noted your disrupted education and behavioural difficulties resulted in your premature exit from school and observed that that would have impacted upon your behavioural outcomes, limiting routine and structure that may have provided support and reduced the likelihood of antisocial behaviour.  She notes that, given your patchy educational history and your patchy post-school employment history, that you have difficulty regulating your behaviour and committing to long-term goals.  She also noted that you suffer from significant post-traumatic stress disorder symptoms; intrusion, hypervigilance and avoidance and she notes that they relate directly to your adverse childhood experiences. She notes that these experiences can,  

individually and cumulatively impact decision making and judgement.  In addition, there are significant negative alterations to [your] mood and cognitions, negative affective states such as depression and anxiety are inherent in [your] psychiatric profile, can alter cognition and behaviour,

and can be seen to have a direct correlation to your offending behaviour and the poor choices you have often made in your life up until now. 

18She said that they can

impair the ability to rationalise, consider alternative responses, and impact decision-making.

But importantly, she notes that this is due to

Neurological changes in the brain which can impact the functioning of the prefrontal cortex, responsible for emotional regulation, executive functioning and impulse control.

She notes that people with PTSD are

more likely than those without a trauma history to respond to situations disproportionately when their threat system is reactivated [and that your use of] substances can be viewed as an attempt to regulate or avoid distress from past traumas and to numb symptoms of [your] activated threat system.

19That in no way excuses or mitigates your behaviour.  It is not suggested that you were responding disproportionately to a threat situation when you embarked upon this disgraceful episode with Mr Carr.  However, it does explain your criminal history and explains why Ms Fleming rates your recidivism risk factor as high, given the significance of your exposure to the childhood trauma that I have detailed and your criminal history to date.

20Also, not surprising given that history you report and this clearly also relates to your criminal history and your behavioural problems, a history of abuse of alcohol and substances from a very early age.  Ms Fleming notes that this often develops and seems to have in you as a form of self-medication for your untreated distress from the exposure to violence, neglect and, because you saw it modelled by others as a coping mechanism.  You were using or abusing methamphetamine during the period of offending and she notes that heightens the risk of engaging in impulsive and reckless behaviour, further impairing insight, decision making and judgment, as well as worsening the underlying mental health issues.

21On the positive side, Ms Fleming noted that although you have periods where you clearly lapse into serious antisocial substance abuse and behaviour,  you have the capacity to cycle into pro-social behaviour. Although you have not engaged in treatment to manage your ongoing trauma symptoms, you continue, or you have continued up until the time you were remanded in custody on the last occasion, to be surrounded by peers and situations which result in relapse in substance use, antisocial behaviour and contact with the criminal justice system.

22There are some positive factors counting in your favour. The first is that, in the time that you have in custody, it would appear that you have taken the time to reflect and the controlled environment has allowed you to be free from substance abuse and to reflect upon your behaviour in your life and your choices.  Significantly also I received a testimonial from your father. He has not himself been engaged in substance abuse or antisocial behaviour. In the prosocial periods of your life, you have lived and had significant contact with him.

23He and your stepmother have spoken of the good sides of you, your positive qualities, and of the fact that they remain loving and supportive and prepared to offer you a home.  Very impressive testimonials from two people associated with the East Sunbury Football Club were also provided which show, again, when you are on what Dr Fleming called a prosocial cycle, that you are engaging, positive, have many good qualities. You have been a good, enthusiastic, committed and engaged team member in the East Sunbury Football Club. They consider you show great potential and great preparedness to engage in prosocial activity.  They also say that they are prepared to keep an eye on you and to support you to come back into the club where you are welcome. 

24So these are positive things that count in your favour, despite the disadvantage of your youth and the high assessed risk of recidivism that I accept you have.  But you are still young and properly to be treated as a young offender and, therefore, emphasis on encouraging rehabilitation is greater than it would be for somebody older. 

25Ms Fleming recommended that any custodial sentence for you should incorporate a period of support and supervision after release to assist you to transition between prison and the community and link in with relevant support services and treatment.  She also recommended that you be referred to a psychiatrist for medication review, regular monitoring of it and adherence to the effectiveness of pharmacotherapy which can help in managing some of your difficulties in emotional regulation and behaviour control caused by your PTSD, as well as possibly assisting you to medicate with prescribed medication at appropriate levels, rather than lapse into illicit substances.

26She also notes that you would benefit from intensive psychotherapy to identify and increase your awareness of and insight into your underlying mental health issues and address, what she described as your chronic maladjustment and trauma.  She said that psychological intervention should be aimed at developing techniques to more effectively manage your mood and  trauma symptoms rather than self-medicating. 

27Given the limited success you have had in engaging with alcohol and other drug treatment in the past and your difficulties in maintaining abstinence over a long period, she also recommends that you could benefit from placement in a residential rehabilitation facility so you can be helped to address your alcohol and substance use in a controlled environment and through specialised interventions that  can improve your insight into triggers, your risk periods, alternative strategies and a relapse prevention path. 

28

Those recommendations are ones that I would not hesitate to adopt if my hands were not tied by the fact that, in addition to this matter for which I am sentencing you today, you have two outstanding matters which have not resolved.  This  means that you cannot immediately be released from custody or cannot be released from custody by a sentence; either a combination sentence or the fixing of a non-parole period. Therefore, in the circumstances, whilst I thoroughly endorse the recommendations made by Ms Fleming, my hands are tied and there is nothing I can do, given the amount of time you have already spent in

pre-sentence detention, other than sentence you to a straight sentence and hope that, in the event that you are dealt with by way of sentence for the outstanding matters, that the courts will take Ms Fleming's report and Dr Borg's reports into account, and sentence you to dispositions that acknowledge the time that you have already spent in custody for these matters and give you that opportunity with support and help in the community to build on the obvious progress that you have made whilst in custody.

29You have also pleaded guilty and, although it is not an early plea of guilty, it is one that is properly to be taken into account.  It shows acceptance of responsibility for your role.  The fact that you were facing a more serious charge means that I do not regard this as an entirely last minute plea or late plea.  And the fact that you have done your time in custody during COVID so that opportunities for visits and access to education and other programs have been more limited than they were for other people, together with still an increase in the likelihood of lockdowns and an increase in anxiety because of the risk of contracting COVID whilst in custody, all mean that the sentence also must be reduced by reference to those factors.

30In addition, because of the backlog caused in the system by reason of COVID delays, the plea of guilty also must carry weight for its benefits to advancing the interests of justice by reducing court backlog.  It is for those reasons that I decided that the appropriate sentence is one that will be, as I indicated at the sentencing indication, a total effective sentence of nine months' imprisonment. And that will be, divided between the major charge, the robbery charge, to which you pleaded guilty and the related summary offences. 

31Jamie Day, on the charge of robbery to which you have pleaded guilty, you are sentenced to be imprisoned for a period of eight months. 

32On the two related summary offences of possession of prohibited weapons, you are sentenced to an aggregate term of imprisonment of one month that is to be served cumulatively upon the sentence on Charge 1. 

33That makes a total effective sentence of nine months’ imprisonment. 

34I declare that you have spent 287 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

35And I declare, pursuant to s6AAA of the Sentencing Act, that but for your pleas of guilty, I would have sentenced you to a total effective sentence of 18 months' imprisonment and fixed the period of nine months as the time that you would have had to have served before being eligible for parole.

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