Director of Public Prosecutions v Draper

[2022] VCC 2264

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-00520

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRENT DRAPER

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2022
DATE OF SENTENCE:	12 December 2022
CASE MAY BE CITED AS:	DPP v Draper
MEDIUM NEUTRAL CITATION:	[2022] VCC 2264

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          One charge of accessory to commission of the offence of aggravated home invasion – offender drove principal offenders away from the scene – specific deterrence and protection of the community important sentencing factors – general deterrence less important sentencing factor – significant mental health issues – plea of guilty at the midway point

Legislation Cited: Sentencing Act 1991

Cases Cited:Worboyes v R [2021] VSCA 169

Sentence:  Adjourned Undertaking for period of two years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr C. Terry	Emma Turnbull Lawyers

HIS HONOUR:

1Trent Draper has pleaded guilty to an offence of being an accessory to the commission of the offence of aggravated home invasion.

2You are the co-accused to Mr Schembri and Mr Woodhouse.  Mr Schembri I sentenced to imprisonment over these principal offences.  Your assistance given to the principal offenders consisted of driving them away from the scene of the aggravated home invasion.

3I sentenced Mr Schembri on 11 November 2022 and in doing so I noted the victim impact statement of Mr Gebhardt and the affect upon him of the actions of the principal offenders. 

4You are now 35.  You live with your father.  Your parents are separated.  You receive a disability support pension because of a long-standing psychological disorder known as schizophrenia.  You are currently on a community treatment order and the true circumstances relating to you are in respect of your psychological disorder and treatment as set out in the letter of Gene Efron, who is a psychologist and your case manager, and that letter is dated 12 December 2022.

5What it says essentially is this. 

‘This letter is to support the proceedings regarding Trent Draper, in outlining his current involvement with Mid-West Area Mental Health Service, Harvester Clinic.

Trent is a 34 year old male [in fact you are now 35] with a formal diagnosis of Schizophrenia (ICD Code F20.9). He is currently case managed at the clinic on an involuntary basis (he is subject to a Community Treatment Order due to expire in April 2023) and receives pharmaceutical treatment including a Paliperidone depot Long Acting Injection on 150mg every 28 days, as well as additional oral anti-psychotic and mood stabilising medication.

Trent had an admission to SAAPU (Sunshine Adult Acute Psychiatric Unit) between 15/092022 and 09/10/2022 due to experiencing severe auditory hallucinations, paranoia, confusion, intense anger and delusions. Since that time he has engaged well with the treating team despite his difficulties, and has attended the clinic on time for his depot injection and spoken appropriately with the psychiatric registrar about the trajectory of his wellness.

While this is the first instance that Trent has been involved with public mental health, it appears that this is a longstanding illness that has been left untreated for some years prior to the current presentation. We trust that this debilitating illness will be taken into account when assessing Trent in court.’

6Those last comments I would interpret as meaning that the treatment of your condition will be a prolonged one, because of the failure to identify it at an earlier stage.  That is the inference I draw from that last paragraph.

7At the age of 35, apart from this matter you have no criminal history, and certainly had no criminal history going into the commission of this offence, which occurred some two years ago. 

8I note the maximum penalty for the offence is five years' imprisonment. 

9I have read the detailed outline of submissions by your counsel and his summary of what he describes as comparable cases. I note certainly in s5(1) of the Sentencing Act 1991, that the purposes of sentencing are set out and certainly in respect of that sub-section, general deterrence I would consider as of very little importance in your case, because frankly there are few in the community that would identify with you and be willing to commit offences of this nature.

10Certainly, specific deterrence in deterring you and also protecting the community from you, are both relevant in sentencing you on this offence.  But your prospects of rehabilitation I must say are good or very good, because you have remained offence free over the period of time you have been on bail which is, as I say, two years, or just over two years. 

11You live with your father and you are actively being treated for the symptoms of your schizophrenia.

12Your plea of guilty was not an early plea of guilty, it was a plea that I would say was made at about the mid-point of a plea of guilty, where the criminal process starts with the laying of the charges and ends with a trial by a jury, if that was to occur.  It certainly has the enhanced benefit identified by your counsel, identified in, or set out in the case of Worboyes v The Queen[1].

[1] [2021] VSCA 169

13I note the primary suggestion of your counsel, and I note the response of the Director.  Your counsel submitting primarily that an adjourned undertaking, he did not say conviction, but I would, for a period of time would be an appropriate disposition, whereas the Director's submitting that with conviction, a Community Correction Order with therapeutic conditions would be appropriate.

14It would seem to me that the therapeutic conditions are those conditions relating to the treatment of your disorder which are in hand and would appear through the Mid West Mental Health Service.  They have seen fit, apart from diagnosing you, to treat you in the manner that I've just described from the letter and also to have you admitted, or requiring you to be admitted as an inpatient, where your symptoms became (indistinct) as they described them.

15I think in the circumstances, that the submission of your counsel is the appropriate submission, that is that I will convict you of the offence, I will adjourn it for a period of two years.  I will make a condition to the adjournment that you undertake such treatment as directed to undertake by the Mid West Area Mental Health Service, or an appropriate nominee. 

16The adjourned undertaking is subject to two conditions in any event. 

(a)   that you be of good behaviour during the period of the adjournment, which means in practice that you do not commit any sort of criminal offence, be it traffic offence, drug offence or anything else.

(b)   and secondly, you come to this court if called upon to do so.  And you realistically only come to this court if you re-offend and that's brought to the attention of the authorities. 

17I am sure Mr Terry has explained the nature of the adjourned undertaking.  It is really putting the issue off for two years.  If you remain offence free, or of good behaviour in that period, then the benefit will be that you will be discharged, if you do not, then you will be brought back before me and I will be asked to deal with you on this offence as well as any new offending if has not already been dealt with in the Magistrates' Court. 

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