Director of Public Prosecutions v Dix
[2016] VCC 248
•8 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No CR-15-01974
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID DIX |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 March 2016 | |
DATE OF SENTENCE: | 8 March 2016 | |
CASE MAY BE CITED AS: | DPP v Dix | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 248 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law- Sentencing-Armed Robbery-Chronic Schizophrenic- Principles of Verdins enlivened to moderate general and specific deterrence- CCO Imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Malobabic | John Cain, Solicitor for Public Prosecution |
| For the Accused | Mr W. Parker | James Dowsley & Associates |
HER HONOUR:
1 David Dix, you have pleaded guilty before me in respect to one charge of armed robbery and that occurred on Friday, 10 July 2015 at about 2 pm. The victim of the armed robbery is Lilly Morrison who was a 20 year old shop attendant employed at the Thirsty Camel liquor store in Mornington.
2 Armed robbery is a serious offence and that is marked by the maximum penalty that I have power to impose, and that is 25 years' imprisonment.
3 I will now proceed to sentence you on the basis of what the prosecutor said in her opening that is exhibited as part of the plea hearing. I note that a total of $180 cash was stolen from the store.
4 You also admitted to me that you had a prior criminal history. It is of limited relevance. I note that there were two court appearances in Melbourne, one in 1994 at Moe Magistrates' Court for minor liquor offences, and one in 2014 at Frankston Magistrates' Court, that related to criminal damage and a make threat to kill charges.
5 On both those occasions you were without conviction, placed on an adjourned undertaking, and on the last occasion there was a requirement that you receive treatment from Stephanie Ryan as directed. She is your general practitioner.
6 This offending did occur during the currency of that last adjourned undertaking so you have breached that and no doubt you will face consequences for that. There is also a minor street offence noted in 2009 in Queensland, but I do not think that that is of any relevance.
7 You have no history with Community Corrections. There are no subsequent or pending matters.
8 There was a victim impact statement completed by Lilly Morrison and that reflects the impact of your offending. You will remember that was read out on the previous occasion.
9 It has been far reaching what has happened to Ms Morrison. She told about the panic attacks that she has at home and at work and in shopping centres, and she is very fearful now in situations where she is serving customers. She now tends to work out the back and has cut back dramatically at work, so that has had a big impact on her financially and also it has caused her to re-evaluate her life. She is looking at finding a new job which is very upsetting for her because she liked her job as a community service officer.
10 She is also seeing a counsellor for her sleeping difficulties and her night terrors. It is really important for you to understand that sometimes your actions have consequences, so you have got to really think about that for the future.
11 There were some aggravating features of your offending. I am satisfied there was a degree of planning. You altered your vehicle's numberplates before attending the Thirsty Camel. You put a beanie on and dark sunglasses before entering the store. You also were armed with a hammer in the pocket of your jacket. You waited for the young female, the victim, to be alone before telling her that it was a robbery and that you had a hammer and you demanded that she give you the money out of the till. You threatened that you would smash up the place if she did anything. She saw the hammer and complied with your demands, and as I said, $180 was taken.
12 You took the money from the counter and drove off in your car. The whole event was captured on CCTV. You then went to the Cash Converters where you used the money to buy back a television that you had on loan there. You purchased some ice and you also used some of the funds for gambling.
13 This is as I said before a very serious offence but it is not the most serious offence of this nature. I have considered all the objective features and I consider that it is at the lower end of seriousness for this offence of armed robbery. Also it is important that the victim was not directly threatened with violence by you and no violence was perpetrated.
14 In your favour, when you became aware of the media reports, you contacted the police and surrendered yourself at the Frankston Police Station on 25 July 2015. You were fully cooperative with the police. In the record of interview that I have read you made fulsome admissions. You explained to the police at the time of the interview about your long history of schizophrenia and that your motivation for offending was to get your television back, score drugs and gambling. You were very remorseful at the time you spoke with police and you explained that you just wanted to redeem yourself for what you had done.
15 It was properly conceded on your behalf by Mr Parker that armed robbery is a serious offence and ordinarily sentencing principles require an emphasis on punishment and general deterrence. But I accept his submissions, given your particular circumstances that because of your history of schizophrenia, that the principles of the case known as Verdins were enlivened and therefore in your case the need to emphasis general and specific deterrence needs to be moderated.
16 He also emphasised other factors in mitigation. I note that the offending was on 10 July 2015, you went to the police shortly thereafter, you were charged and released on bail on the CISP program, and you undertook that successfully and had drug and alcohol counselling. You entered a plea of guilty at committal case conference on 10 November 2015 and the plea hearing took place before me on 3 March 2016.
17
I accept that in all the circumstances that your plea of guilty was entered at the earliest opportunity. I am satisfied that the plea of guilty does reflect genuine remorse. There is real utility in your plea, you have saved the victim,
Ms Morrison the trauma of having to come to court and give evidence on your trial and you facilitated justice, so there is a discount in your sentence for that.
18 I note that you are a person who has had a long history of mental health difficulties. You were first diagnosed in 2002 with schizophrenia and you have had various admissions to hospitals for psychosis between the years 2002 to 2010. You had involuntary inpatient treatment for psychosis in 2011 and you were subjected to a Community Treatment Order for two years. You were discharged from Peninsula Mental Health Service in November 2015 and that is when you first came under the care of Dr Stephanie Ryan, your general practitioner, who is currently treating you under a Mental Health Plan.
19 You have also been referred back to Peninsula Mental Health Service because of a deterioration in your mental health in September 2015. You have an ongoing therapeutic relationship with that service.
20 I was assisted by the report that I had from Dr Jennifer Hodgson, the consultant psychiatrist at that service.
21 It is the case that currently she diagnoses you as a schizophrenic with polysubstance use disorder, and she said you also have problems with pathological gambling. You are prescribed a monthly 150 milligrams of Paliperidone depot injection. She says you are attending regularly, you are abstinent from methamphetamines and you have been engaged with drug and alcohol services. You have continued to report chronic auditory hallucinations to her but you deny other symptoms.
22 She considers that your conditions are currently in remission, you have chronic underlying psychotic symptoms which have improved without substance use. Her current recommendations are that you continue your current medication and ongoing support. She says that you have demonstrated improvements in your mental health state through compliance with rehabilitation. You are currently not using and you are accepting treatment as a voluntary patient.
23 She strongly recommends that you do not use any drugs because that could lead to future re-offending because the taking of drugs seems to be instrumental in this current offence. And she says your risks of re-offending can be minimised by ensuring you receive ongoing support to maintain your mental health and abstain from drug use, and imprisonment would be likely to have a detrimental effect on you as your symptoms worsen at times of stress.
24 I noted that Dr Stephanie Ryan in her short report also says that you are stable currently, compliant with your appointments and treatment. You have expressed remorse to her for what you did and she says you have reasonable insight, you are aware of the importance of not using ice and other drugs, and she considers that further events such as this one would be unlikely if you remain compliant with your treatment.
25 She considered that the offending was out of character but she noted that it occurred at a time where you were using ice in the context of a deterioration in your mental health, and that that resulted in a further exacerbation of your symptoms. Plus you were experiencing some psychotic symptoms at the time and therefore not fully responsible for your actions.
26 I have also read the report from Neil Gilligan, the alcohol and drug dependence clinician who saw you as part of the CISP program and he said that you attended all your scheduled appointments and you were compliant.
27 I have noted all of that and that is important in terms of giving a context to the offending but also in showing how you have been going since you have told the police about your involvement and you have been charged. All of those features suggest to me that you do have remorse for this offending, and good insight into the offending. You also understand the connection between the offending, your mental health and your drug use and it is important for the future that you maintain your mental health as it is currently and that you not use drugs.
28 I consider if that is all in place and you continue along those lines, your prospects for rehabilitation are excellent. I appreciate that you have done a lot in the time since this offending to address all the things that were happening in your life at that time, and provided that you continue along that route, you will be successful in completing your Community Corrections Order.
29 I have also had regard to your personal history and circumstances. I note that you are currently on the Disability Support Pension because of your condition. Since you were retrenched from the family business back in 2012, you have not been able to secure any alternative employment.
30 I noted your long history of drug and alcohol use and that is the reason why in the Community Corrections Order, I have got a condition for you to be assessed and undergo treatment for drug and alcohol abuse.
31 I consider that having regard to the particular features of this case that the principles in Verdins are enlivened. I do not consider that a gaol term is warranted in all the circumstances, and I consider that the community based disposition, a Community Correction Order, can address all the sentencing principles. And I have had regard to the guideline judgment in Boulton.
32 I have had regard to the good family support that you have. It is obvious to me that you are very fortunate that you have a loving and supportive family and I have read the letters from your mum, Lorraine Dix, Emma Brackey and Chris Brackey, your older sister and brother-in-law. They all say this is out of character that you are very remorseful and it has been a big wake up call for you. But they are there for you to support you, so that is all good.
33 I have also had regard to the fact that you did take the step of writing an apology to Ms Lilly Morrison and you have expressed publicly that you are sorry for your behaviour, so I hope that that gets communicated to Ms Morrison and assists her with dealing with the aftermath of your offending.
34 I am satisfied that the Community Correction Order that I have outlined can address the need for punishment, it can deter you, and also continue to support you in the community where you have got very good therapeutic relationships so that the risk of re-offending in the future is dramatically reduced. It is in your interests and also the community's interests that that continue on.
35 Mr Dix, on the one charge of armed robbery you will be convicted and placed on a Community Correction Order. The duration is three years. The conditions are as I described earlier. Supervision, treatment and rehabilitation for drugs and alcohol, and also you have to undergo any mental health assessment and treatment as required and directed by the regional manager of the Community Corrections Office.
36 I make a s.6AAA declaration, but for your plea of guilty I would have sentenced you to a five year Community Correction Order on the same conditions.
37 I make the order pursuant to s.464ZF in respect to the taking of a forensic sample.
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HER HONOUR: Ms Malobabic, have you got the orders for that?
MS MALOBABIC: Yes I do Your Honour.
HER HONOUR: Can you hand that up and I'll just explain that to Mr Dix and that will finalise everything. The consequence of my order is that you have to go to the Mornington Police Station, do you know where that is in Main Street, Mornington.
ACCUSED: Yeah, yeah.
HER HONOUR: And you just have to attend within four weeks of today's date and they will give you a little cotton bud to put in your moth and you just have to brush the side of the cheek with the cotton bud and then give that back to the policeman. That's all this order requires you to do all right?
ACCUSED: Yeah.
HER HONOUR: In the event that you don't do it, I have to tell you that the police can use reasonable force to enable that to be conducted but I have not heard of anyone having to be dealt with in that way. Provided you are compliant it should not take too long, all right?
ACCUSED: Yep.
HER HONOUR: The reason why I'm making that order is just the seriousness of the circumstances of the offending and the order is by consent, not opposed and I think it's in the public interest that it be made. So that order has been made. And the only final thing is you have got an appointment for Rosebud Community Correction Service, do you know that date?
ACCUSED: Yeah on Wednesday yeah.
HER HONOUR: Wednesday, that's right.
ACCUSED: At 2 o'clock.
HER HONOUR: Wednesday, 9 March at 2 o'clock. And that's at Point Nepean Road, Rosebud. You know where the office is?
ACCUSED: I'll be able to find it yeah.
HER HONOUR: It's 2/843-849. Has your client got a copy of the pre-sentence report?
MR PARKER: No Your Honour, but I can provide him with a copy.
HER HONOUR: No, we can do that now and then he can leave armed with all the necessary information.
MR PARKER: Certainly.
HER HONOUR: All right, so all we've got to do is I've signed the CCO, you've just got to sign it too just as an acknowledgement. We'll get your counsel to assist you in that regard. I hope you've understood all the orders that have been made today in relation to your matter. When I leave my associate will give you copies of the documentation. In the event that something happens in the future and you can't comply with the order for some reason or other, you can come back and see me about that.
ACCUSED: Yeah.
HER HONOUR: So you can talk to your lawyer about that.
ACCUSED: Yeah.'
HER HONOUR: All right good. You're free to leave the dock, you can sit behind your counsel there. I can adjourn this matter. So thank you very much, thank you Mr Parker, it was a very well thought through submission.
MR PARKER: Thank you Your Honour.
HER HONOUR: It was very good. Thank you.
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