Director of Public Prosecutions v Delahaye, Matthew
[2012] VCC 1813
•26 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01608
THE DIRECTOR OF PUBLIC PROSECUTIONS
| v |
| MATTHEW DELAHAYE |
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JUDGE: | Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2012 | |
DATE OF SENTENCE: | 26 November 2012 | |
CASE MAY BE CITED AS: | DPP v Delahaye, Matthew | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1813 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Attempted Armed Robbery – compromised childhood – mild intellectual disability and psychotic disorder consistent with schizophrenia – self reported offending – carer for disabled mother – Community Corrections Order disposition appropriate in lieu of imprisonment
Legislation Cited:
Cases Cited:
Sentence: Community Corrections Order – operational period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N Burnett | Office of Public Prosecutions |
| For the Accused | Mr P Tiwana | James Dowsley & Associates |
HIS HONOUR:
1 Matthew Delahaye you have pleaded guilty to one charge of Attempted Armed Robbery, the maximum penalty for which is 20 years imprisonment. The offending occurred on 2 June 2012. You admitted 6 prior convictions, arising from 3 court appearances, the most recent conviction was over six years ago and none of them are relevant to these proceedings.
2 The facts of the case were opened by Ms Burnett and are contained in the Prosecution Plea Opening, Exhibit A in these proceedings.
3 In brief summary, on 2 June 2012, after consuming a quantity of alcohol at your home in Seaford you walked to a nearby Caltex Service station. You entered the service station wearing a distinctive windcheater with the hood pulled over your head. The word “Choppers”, which I was informed is your nickname, was branded on the windcheater. You approached the attendant and demanded he hand over the money. You produced a large knife and repeated your demand for the money. The complainant told you he would call the police and he then picked up a baseball bat from behind the counter and told you to leave. You then left the service station and went home. Upon returning home you confessed what you had done to your mother, who initially did not believe you due to your intoxication. Four days later police released CCTV footage of you attempting to rob the service station and your father telephoned your mother to say that he identified you as the offender. After your mother observed the footage she drove you to the police station, where you surrendered yourself and participated in a record of interview, during the course of which you made full and frank admissions.
4 In response to my query about the appropriate range applicable in your case, the prosecutor submitted that a non-custodial sentence involving a treatment and rehabilitation component would be appropriate in all the circumstances of your case. Mr Tiwana who appeared on your behalf agreed that a Community Corrections Order would be appropriate.
5 Tendered on your behalf was a psychiatric report of Dr Cidoni, dated 24 September 2012 - exhibit 1, a letter from Peninsula Health - exhibit 2, a letter from Dr Clive Bennetts - exhibit 3, a letter from Joanne Dunne - exhibit 4, a letter from Gerald O’Neill - exhibit 5 and a newspaper article - exhibit 6.
6 In regards to your personal circumstances, you are 32 years old and live with your mother and brother. When you were born you were diagnosed with a congenital heart condition, and you have a history of intellectual disability. Your father died when you were 8, and you were the subject of physical abuse and the hands of your stepfather. You left school at the age of 13 and shortly thereafter began drinking heavily and engaging in poly-substance abuse.
7 The report of Dr Cidoni sets out that you suffer from a psychotic disorder consistent with schizophrenia, that you have a mild intellectual disability and that you suffer from alcohol dependence. Dr Cidoni recommends that you have neuropsychological testing to clarify the extent and nature of your intellectual impairment and that you receive professional treatment and support for you alcohol abuse. Dr Cidnoni noted that your offending was quite uncharacteristic and that it arose in a situation where you were distressed at losing money you had borrowed from your mother, the fact you had lost you memory and that your offending was essentially an impulsive act.
8 Finally, Dr Cidoni noted that there were no clear psychotic symptoms related to the offending, and that you suffered a mild relapse after the offending, but your illness is now stable. Dr Cidoni opined that you would not cope in custody and it would have an adverse effect on your mental health.
9 The letter from Peninsula Health described how you have been engaged with the PenDAP program since July of this year which is aimed at addressing your drug and alcohol problems. The character references largely echo Dr Cidoni’s finding that this offending was out of character for you and relate the many issues you have experienced in your life. It was also evident that you have employment and were the subject of a viscous assault in 2002. The letter from Dr Bennetts reveals that your mother suffers from a number of significant, and at times, life threatening conditions.
10 Your aunt, Joanne Dunne said that you were a gentle, polite and respectful person. She has a close relationship with you and spoke of you as being often quite gullible and not possessing, to use her words, street smarts or general social skills.
11 On your behalf, Mr Tiwana submitted that I take into account the following matters by way of mitigation:
1) The offending in this case was amateurish, in that no attempt was made to disguise yourself;
2) You pleaded guilty at the earliest opportunity and as such should be afforded the maximum discount applicable, as well as the fact that it is reflective of remorse;
3) You self-reported your offending, surrendered yourself and fully cooperated with police;
4) You suffer from a number of mental health issues which enliven the principles in Verdins;
5) That you are the sole carer for your mother and have been trained in emergency procedures to deal with her ill heath. She is your best friend and you hers. You do most things together. The two of you have a mutually dependant relationship; and
6) That you have been abstinent from drug and alcohol use since early this year, apart from consuming some alcohol after the death of your step-father.
12 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I 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 offenders are rehabilitated and reintegrated into society.
13 Armed robbery is a very serious offence. It not only deprives persons of their property but puts them in fear of their personal safety. It violates the community’s fundamental values. Attacks upon soft targets such as in this case are prevalent. Whilst in this case you were unsuccessful, there is no doubt that the production of the hunting knife would instil fear in a person. I accept that this was an amateurish armed robbery, in that you made no real attempt to disguise yourself, and indeed targeted a service station which you had frequented often in the past. However you need to understand that intoxication, and frustration at losing your money and memory are no excuse for arming yourself with a weapon and seeking to steal money.
14 I take into account your troubled background, your intellectual disability, your mental health issues, the fact that you are the sole carer for your mother, your high level of cooperation and early plea of guilty as well as all those matters set out in Dr Cidoni’s report and advanced by your counsel.
15 Please stand Mr Delahaye.
16 On the charge of attempted armed robbery you are convicted and I propose to release you on a Community Corrections Order with program conditions for a period of 3 years. I have received a report from Corrections Victoria which indicates your willingness to comply with such an order. The order commences today.
17 Do you agree to comply with the order?
18 OFFENDER: Yes sir.
19 HIS HONOUR, Very well. In addition to the core conditions which are:
(1) that you not commit whether in or outside Victoria during the period of the order, any offence punishable on conviction by imprisonment;
(2) that you report to a specified Community Correction Centre within two clear working days after the coming into force of this order, in your case that place is the Frankston Community Correctional Services at 431 Nepean Highway, Frankston.
(3) That you report to and receive visits from a Community Corrections Officer.
(4) that you notify an officer at the specified Community Correction Centre of any change of address or employment within two clear working days after the change;
(5) that you not leave Victoria except with the permission of an officer at the specified Community Correction Centre; and
(6) that you obey all lawful instructions and directions of the Community Corrections Officer.
20 In addition I propose to impose three program conditions. Namely that:
(1) you be under that supervision of the Community Corrections Officer
(2) you perform 180 hours of community work over 3 years
(3) you undergo treatment and rehabilitation, namely that you undergo assessment, treatment for drug and alcohol abuse or dependency and mental health assessment and treatment
21 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 18 months imprisonment with a non parole period of 10 months.
22 I make the disposal order and order pursuant to s.464ZF(2) of the Crimes Act 1958. I do so because of the seriousness of the circumstance of the offending, and because the application is by consent.
23 I am obliged to tell you though that notwithstanding your consent if you do not ultimately co-operate in the taking of a sample, reasonable force may be used. Do you understand that?
24 OFFENDER: Yes.
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