Director of Public Prosecutions v Elliott

[2018] VCC 580

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-00527

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE AARON ELLIOTT

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2018
DATE OF SENTENCE:	1 May 2018
CASE MAY BE CITED AS:	DPP v Elliott
MEDIUM NEUTRAL CITATION:	[2018] VCC 580

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Devlin	Office of Public Prosecutions
For the Accused	Mr R Davis

HIS HONOUR: 

1Luke Aaron Elliott, you have pleaded guilty to one charge of armed robbery and one charge of robbery.  Those crimes carry maximum penalties of 25 years and 15 years respectively.  You also pleaded guilty to four summary matters, three of breaching an intervention order which carries a maximum penalty of two years, and one of offending whilst on bail which carries three months.

2You are 37 years of age.  You pleaded guilty at the earliest opportunity and must get the benefit of that.  I accept that within your limited capacities you have appropriate remorse and you must also, of course, get the utilitarian benefit of that plea of guilty.

3You have a very significant prior criminal history.  Indeed, I do not need, I think, in these circumstances to go through it.  You have been before the courts on many occasions, you have been gaoled on many occasions, and over the last decade at least you have been imprisoned for assaulting or threatening members of your family for years.

4There is no victim impact statement in the matter and I understand that.  Fortunately for you, you still have, despite the offending over such a long period of time, support of your family.  I will be going through the summary in a moment but the simple fact of the matter is that it is clear from psychological material that has been presented before me as well that so far as you are concerned general deterrence is of limited operation, specific deterrence is a complete waste of time, and unfortunately community protection becomes a very significant factor. 

5Even if that community is limited to your family, the court still has to do something about it and that is something which I noticed that one of the earlier psychologists who saw you also commented on.

6The summary of offending can be done in fairly brief compass, the Crown opening has been exhibited.  In October of 2016 Jessica Elliott obtained an intervention order against you and you breached that by leaving a voicemail message on her phone.  On 18 October, at approximately 8.15 am, you contacted your father and demanded that he get you synthetic cannabis, food and tobacco.  At 12.45 pm he met you and your girlfriend and purchased things for you.  He dropped you off at home and asked that you not make contact with him for the remainder of the day; you agreed. 

7Later that evening, around 7.30 pm, you phoned him and said you had no synthetic cannabis left and asked that he get you another bag.  He did not agree and reminded you about the earlier agreement.  You became agitated.  Your father essentially hung up on you, you immediately phoned back and threatened, "I don't want to have to catch a taxi to your place".  You in fact then did do that and that is also the contravention of an intervention order.

8You were clearly agitated and your agitation comes about through mental illness and drugs.  I am aware of all those factors.  In any event, at 11 pm that night your father and mother were at home, watching TV.  You arrived and your father found you endeavouring to purchase drugs.  You demanded that he drive you to Morwell to a friend's house to obtain drugs and demanded that he take you to an automatic teller machine and withdraw $100.  He told you not to be ridiculous and you replied, "If you don't take me I'll beat you up and break your false teeth".  You also told your father and your mother that, "If you call the police I'll burn the house down".

9You were then driven by your father to the Westpac Bank in Morwell.  When you arrived there and whilst seated in the car you produced a knife and said to your father, "Don't argue with me and get the money".  Your father, in fear, attended the ATM and withdrew $100.  The knife was described as a platter knife.  You then demanded that you be driven to an address in Morwell.  I do not think I need to go through the rest of it.  Suffice to say that in the ultimate you were endeavouring to self-harm and your father drove you to Latrobe Regional Hospital to get treatment.

10Police had to arrest you, and again I do not need to go through all the detail of that and you were clearly not in very good condition.  For reasons best known to themselves you were then bailed from the police station and in the early hours of 19 October, that is around about quarter to five in the morning, you then contacted your father and asked him to come and get you.  He said he would come at about 7 o'clock and hung up on you.

11He picked you up or essentially found you after being to the police station.  You were then driven to your former girlfriend's house.  You asked him for $100.  He said he did not have it and you replied, "Well, get it.  If you don't get it, I'll murder you and will do myself in".  In fear, your father drove to the bank and withdrew another $100 and gave it to you.  That gives rise to the charge of robbery.  The matter with the knife obviously was the armed robbery.  He then drove you to a shop in Traralgon so that you could buy the synthetic cannabis and later that day you were arrested regarding your bail breach.

12You were unable to be interviewed due to violent outbursts towards the arresting officers and you were remanded in custody.  On 20 October police had put in place an intervention order and on 21 October you called your father's home.  Your mother answered the phone and gave it to your father.  When he got the phone you said to him, "You have charged me with armed robbery, you dog.  You're gone, dog."  That is another contravention.

13As I said, it has got to the stage where that has been fairly typical conduct of yours towards certainly your father for years, and something has to be done about it.  Your counsel properly concedes that a significant gaol sentence is the only alternative here.

14I have before me a number of reports from various psychologists: Mr Simmons, Dr Grech, Dr Walton, Mr Cummins, and Dr Barry-Walsh.  You have been assessed and reported on for decades, effectively.  I think all I really need to do is point out that each of those reports over the years has been pessimistic as to what is going to become of you.  Mr Grech back in 2012 said:

"In essence, following an appraisal of Mr Elliott and discussion with his father, it emerged that a further diagnosis of bipolar disorder has been made in the preceding five years, a diagnosis with which the examiner has no disagreement.  However, the concerns in relation to a comorbid and significant antisocial personality are unchanged.  The major concern of the examiner is that the defendant's family, in particular his father, require long-term protection from their son.  The father requires the assistance of police and in particular the court, with a concern that the defendant, notwithstanding his recent promises, will ultimately revert back towards recklessly taking advantage of his father's support (at best) and most likely resume his threatening stance and stand-over behaviour in the context of substance abuse.  There are significant concerns."

15You were seen much more recently by Mr Simmons and in his report he takes it back through your history of being placed in St Vincent's Boys Home when you were very small.  There was originally a diagnosis of ADHD.  You were expelled from Year 5 and very few institutions have been prepared to take you on since then.  You have used drugs over the years, you have used substances and inhaled fumes and you would appear, on the face of it at least, to have some sort of acquired brain damage from that form of chroming or fly spray or whatever it was you were using.

16You have been previously as I understand it diagnosed with schizophrenia and Mr Simmons says that you suffer from a personality disorder with both antisocial and borderline traits.  He said that you have been unable to sustain stable relationships and you just want to be left alone.  He is concerned that even though you state a dislike of prison, that in effect as I read what he is saying you are becoming institutionalised.  This is talking about gaol.

"It does not appear to have a deterrent effect upon him, but then given his personality disorder it is unlikely to do so anyway.  Mr Elliott's condition and behaviour appears to have deteriorated further than it has in the past.  Whilst there has been attempted self-harm, it would seem that biting pieces of flesh from his body has been a recent phenomena and indicated a greater degree of distress and decompensation.  Personality disorders such as Mr Elliott's may become less problematic over time and are often described as 'burning out'.  However, this may take more than a decade to occur if it is to happen at all".

17He said that you would benefit from referral to a mental health service but it was unlikely you would go or comply with any such services at the present time, and he took the view that you were too unstable to actually form a working relationship with anybody in a therapeutic sense when he saw you on 28 February, just a couple of months ago.

18The prospects are grim indeed, Mr Elliott.  As Mr Davis, who has known you for a long time, has pointed out on your behalf, if you are ever going to get out of this it has got to be up to you.  You are the only person who can achieve anything.  You have in the past shown very little consistency or endeavours in trying to address these matters and I think the prospects of your rehabilitation have to be regarded as depressing and the risk of you reoffending against your family upon release as high indeed.

19As I have said, it reaches a point where, despite the unfortunate aspects of your personality and psychology, the things that have happened to you over the years, both in prison and in the boys' home, that community protection must start to play a significant part in the sentencing process.

20Accordingly, on the charge of armed robbery you are sentenced to be imprisoned for a period of three years and six months.  On the charge of robbery, two years.  On the charge of breach intervention order, three months on each and one month on the summary matter of offending whilst on bail.  For totality reasons I will make those summary matters totally concurrent.  I direct that 12 months of the sentence imposed on Charge 2 on the indictment be served cumulatively with the sentence imposed on Charge 1, which gives an effective head sentence of four and a half years.  I direct that you serve a minimum term of three years before becoming eligible for parole and I give that because I am obliged to.  I understand that the odds on you even applying for parole are probably remote.

21I direct that 193 days be reckoned as having been served under this sentence and pursuant to s.6AAA of the Sentencing Act I say that but for your plea of guilty I would have sentenced you to be imprisoned for a period of six years with a minimum term of four and a half.  The forfeiture order is made and handed down.

22COUNSEL:  If Your Honour pleases.

23HIS HONOUR:  Do you want to talk to him for a second, Mr Davis?

24MR DAVIS:  Yes, thank you.

25HIS HONOUR:  All right, I will leave the Bench.

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