Director of Public Prosecutions v Evangelistis
[2015] VCC 1192
•26 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No. CR-15-00907
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEON EVANGELISTIS |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 and 25 August 2015 |
| DATE OF SENTENCE: | 26 August 2015 |
| CASE MAY BE CITED AS: | DPP v Evangelistis |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1192 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – plea of guilty to one charge of armed robbery – one charge of attempted theft of bicycle – one charge of possess drug of dependence
Legislation Cited: Crimes Act 1958 (Vic), Drugs, Poisons and Controlled Substances Act1981 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: R v Verdins [2007] VSCA 102
Sentence:Convicted and sentence to an immediate period of imprisonment of 12 months and upon release a Community Corrections Order of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T Saville | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms M Walker | Melinda Walker, Criminal Law Solicitor |
HIS HONOUR:
1Mr Evangelistis is 48. He was born on the 28th day of December 1967 and he pleaded guilty to three charges in Indictment No.F10621092. On that day he was represented by Ms Walker who is here today, and Ms Saville, appeared for the Director.
2I should add that since the last hearing we have had the results of the Community Corrections assessment report given to the Court and that matter will be exhibited as Exhibit C.
3In the Indictment, Mr Evangelistis pleaded guilty to three offences, the first being armed robbery. This is an offence against s.75A(1) of the Crimes Act 1958 (Vic). This armed robbery took place on 8 February 2015 and in fact involved a robbery upon one Susie Maharha at the McDonald's store in Laverton North.
4The circumstances insofar as that matter are concerned are fully set out in the prosecution summary, which was tendered as Exhibit A, and accepted by Ms Walker as representing the facts surrounding this matter. There are some bizarre elements in regard to that crime, which I referred to in discussions with counsel, firstly the disguise utilised and secondly the purported means of escape, which in the height of the escape apparently was lost and Mr Evangelistis fled the premises on foot.
5The second matter was when he was detected at the Werribee Station trying to steal a bicycle. That happened on the 21st day of February 2015. That was the day he was apprehended, and found in possession of a small amount of methamphetamine. That makes up the third charge, which was an offence under s.73 of the Drugs, Poisons and Controlled Substances Act1981 (Vic) for which the maximum penalty prescribed is one year and/or eight penalty units.
6It should be pointed out as to the offence of armed robbery, that the seriousness of such offence is demonstrated by the fact that the Parliament has prescribed a maximum sentence of 25 years' imprisonment. That is of course in sentencing considerations one of the prime matters, such demonstrates the revulsion that the community has for this type of activity, especially carried out upon a person going about their usual and normal work activity.
7The priors were admitted. They are of some degree, albeit some time ago, when he was last sentenced in 2002 for an offence of armed robbery, essentially until this current spate of matters and there was a breach of family violence matter in October 2004, which occurred after his latest separation from his wife, the hoped for rehabilitation, to which I will come, was basically effected. However, there is no limit on the rehabilitation. Rehabilitation is expected when you are given a chance as Mr Evangelistis was. That is to continue for your life, but unfortunately here it has not. I will come back to that sentence in due course.
8Insofar as the actual victim, there was no victim impact statement in this matter tendered. The pre-sentence detention served, I understand, is 28 days. And a disposal order was asked of me, which I signed.
9Insofar as to the summary of prosecution opening for which I thank the prosecutor, I have essentially spoken of the background of these matters. The background seems to be, going right back to the domestic issues between Mr Evangelistic and his family, the same circumstances appear to have occurred again in 2002.
10Once the situation came about that he left the family home, his stability, so to speak, seems to go awry. His need for ongoing medication is probably neglected. He seeks redress in drugs and unfortunately you get a combination of all that, he commits serious crime, albeit in somewhat bizarre circumstances.
11However, in both instances we have the impact of drug abuse and excessive drug abuse upon what is a personality, which I think is described by one of the doctors as a reduced personality. It is of interest to come back, however, to the sentence of Judge Rizkalla which was tendered as Exhibit B. Again it should not be misunderstood that this was also for the very serious offence of armed robbery. In that instance, armed robbery was committed with the use of a gun and the role played by Mr Evangelista was that he was the person who was in the getaway vehicle. However, as is correctly observed by Her Honour, the roles are equal.
12Her Honour was, given the material that she had put to her, motivated insofar as sentencing was concerned, by material that showed that you were, at that time, well-motivated in regard to your rehabilitation. You had evidence at that time from your employer, and indeed from your wife who gave evidence that the domestic trauma was over to a degree, that you were able to reside with her and she and the children depended upon you, and in particular depended on you not relapsing into illegal drug use.
13The background at that stage to that crime was that you had basically utilised your own salary and mortgage resources on the home to supply your drug addiction at the time. There is at p.6 the comments of the sentencing Judge that she took the view that you were well motivated and committed to your rehabilitation and made the similar comments that I have just made, that you are a person who has made and achieved high standards in your work and the manner in which you look after your family but when you became involved in drugs, it was generally as a result of putting significant stress upon yourself and thereafter that led to crime.
14Her Honour said she had no doubt that you were genuinely remorseful and had a motivation to continue both with your drug counselling and hopefully to continue being reunited with your family. Judge Rizkalla thought your prospects of rehabilitation are reasonable as long as you do not relapse into drug use.
15It would appear that the facts demonstrate that you were true to your word. Unfortunately however, with a further problem at home leading to you leaving the home, you then became and sought redress in drugs, seemed to be on the streets or homeless, in circumstances which again led to this criminality.
16Twenty one days after you had been arrested, you were subsequently bailed. You were bailed to be on the CISP program, the two reports tendered as Exhibit 6 in regard to your performance on that CISP program were quite positive. Subsequently you were committed for trial in May of this year and as a result, the CISP program ceased. However, bail was varied to allow you to change your address so that you could live at the Drug Treatment Centre in Hoppers Crossing, and you began a residential course at that premises on 14 August.
17Subsequently in the hearing, I had evidence from Mr Ryan not so much as your performance because there really was not much time to assess your performance, being only 14 days from the time of the plea, but very much in explaining the type of centre that transformations offer at Hoppers Crossing and the background to them coming into Victoria. In addition was tendered a letter describing the course and setting out the philosophy of Shelley Stevens in that matter.
18More importantly in understanding your background are the medical reports that I have had. In particular that of the psychiatrist who has treated you since, as I understand, 2002 Dr Manoj Kumar who is a psychiatrist, consultant psychiatrist. He notes that you have been subject to his treatment at what is known as Empathy Health Care in Werribee. You have been on regular medications. This is in his letter of June of this year. And you have been experiencing psychiatric symptoms since 2002. That of course goes back to the earlier evidencing of those symptoms when you committed the earlier armed robbery.
19Subsequently in an application for a disability pension, he has in November of last year filled out a medical certificate pursuant to the requirements of the department in which he noted your symptoms and in particular the diagnosis of a bipolar affective disorder, ADHD cluster B personality issues and indicated that those issues had a date of onset in 2000.
20Also tendered was a report of Gina Cidoni psychologist, the first of those reports is dated 18 March of this year. It was a report, which was of much assistance to the Court. You were seen in the Metropolitan Remand Centre and that was the report which was, as I understand it, the background to you getting bail.
21Without going into the background, one of your problems with your condition and personality issues has been a feeling of lack of self-worth. You have had issues for some years as to seeking to harm yourself thinking that life was not worth living. There was an issue in particular in regard to reckless driving in late 2014 and insofar as the alleged reason for you carrying out this armed robbery for which I am dealing, being an alleged intent to get some money, so you can overdose with heroin.
22Insofar as the actual testing, you have a quite average IQ capacity. However, you suffer from severe psychological disturbances in the sense of anxiety, elevated hysteria, depression, some hypomania related to such depression and Ms Cidoni’s summary at p.7 was that you were:
"A man of average intelligence with a full scale IQ of 95, no cerebral dysfunction. Personality testing revealed psychological disturbance and signs of fluctuating mood with hypomania, anxiety and depression contained by medication. The presentation of test findings were consistent with a bipolar diagnosis"
23Which is the earlier diagnosis of Dr Kumar:
"characterised by sudden and intense shifts in mood, behaviour and energy levels where there is intense depression alternating with episodes of heightened activity and exaggerated sense of self-importance."
24You also presented with stimulant use disorder at this stage, that is the date of this report, March of 15, in early remission. In looking at your history, Ms Cidoni was of the view that the drug use was a form of self-medication to ease the symptoms of your bipolar disorder. Of course, you know that any relief obtained from such substance abuse was short term, and indeed was a trigger for depression and manic behaviour.
25Your symptoms of course ease and cease once you are off illicit behaviours. There is a fundamental need for you to maintain prescribed medication in order to effect stabilised mood. Ms Cidoni stated, which is obvious and has been the position since 2002 and remains the position now, at the bottom of p.7 that you require assistance to maintain your resolve to remain free of illicit substances, you require ongoing psychiatric management of your mental health condition and regular counselling to build coping skills.
26The Court was assisted in an update in that report provided by your instructors on 6 August, the report being dated 6 August 2015 which was tendered as Exhibit 1. It essentially went to the history. However without going through it in total again, on the last p.4 where the opinion was given, she noted that you were progressing well in the community, actively seeking help for your mental health conditions, improving family relationships and addressing your marital separation. As I said yesterday, clearly that is something you just have to learn to live with.
27You had complied with the requirements of CISP and as such that had facilitated your entry into the transformations that I have referred to. He was the person who used that phrase that I spoke of earlier that you were a reduced person and you will require care and understanding in view of your mental illness. Completion of the destiny transformations program and outpatient care augurs well in terms of your prognosis. Ms Cidoni of course thought it would be appropriate if you be given the opportunity to complete that in-patient program.
28All of those matters of course were put to me insofar as the submission made to me, not to sentence you at this stage. The first proposition put to this Court by your counsel was that, pursuant to the provisions of s.83A of the Sentencing Act 1991 (Vic), given that you were now in residential treatment and given your background and psychiatric condition, that I should indeed allow such treatment to continue.
29I should say that I have no doubt that a combination of your psychiatric and personality state, together with the anxiety that had built up following the breakup of your family had indeed and was a direct cause of this offending. I say that in the sense of the R v Verdins [2007] VSCA 102 ‘Verdins’ determination and having made such a determination, I have no doubt that it is appropriate in your circumstances to moderate the need for the effecting of the principles of denunciation and general deterrence and indeed punishment in the sentence to be pronounced upon you.
30It was really, in that taking these issues into account, what I understood your counsel was submitting was for me to adjourn the sentencing under s.83A of the Sentencing Act. It was put that in order to effect your rehabilitation, you should be allowed to continue for the next year upon the program envisaged, and then I should determine to sentence you.
31I however determined yesterday that that was not appropriate. The provisions set out under that particular provision are not satisfied in your case. I have no doubt that it is important for rehabilitation to be effected, if you are going to live a normal life in the community and live a life which does not involve crime. Rehabilitation is always important. However, it always a balance in regard to these matters. As was noted by the earlier Judge in 2002, and as is present now and indeed as was the view of your family in 2002, unless you are not free from drugs, then one cannot be satisfied that you will effect rehabilitation.
32It was my view, which I formed yesterday, that given the totality of this crime, its seriousness, the totality of your background, and in regard to your background I want to stress you are not punished again for the prior offence of armed robbery. However, when coming to determine a sentence, such limits somewhat the options that a Court has.
33I concluded yesterday, having thought about the matter overnight, that yours was a sentence that could not involve anything but immediate imprisonment. In those circumstances I found that it was most inappropriate to defer sentencing to allow you to commence on a pure rehabilitative process for the next 12 months. Such would then have meant that it would have been most inappropriate to impose a period of imprisonment at that later stage.
34I accepted the view and the submission of the prosecution that this crime in all the circumstances must be punished by a period of immediate imprisonment and it was on that basis that I rejected the submission made by your counsel. Yesterday however, having had that submission rejected, your counsel addressed me on the issues as to what sentence do I pass, on the issue of what length that sentence should be. She stressed your early admissions in this matter and your genuine remorse, the early indication of plea made at the committal, she stressed the steps that you had taken and I do not in any way underestimate insofar as rehabilitation is concerned and she also stressed - and one understands - that being addicted to drugs, especially when you have personality and psychiatric issues, that it is never easy to remove yourself from such addiction and of course, as is demonstrated again in your case when circumstances of anxiety present, such as happened when you were banished from the house, unfortunately it is very easy to lapse into this situation.
35I stress that a full understanding of your background has led me to conclude that your sentence must be moderated on the basis of the Verdins principles and I do intend to do that. The final submission from your counsel was that, having balanced all of the factors that I have referred to, what should be imposed, given that I had indicated that I intended to impose an immediate period of imprisonment, was a lengthy Community Corrections Order so that it was a period of imprisonment and a Community Corrections Order and I accept that. There was no proposition put by the prosecution that that would not be an appropriate sentence.
36As I say, balancing all of those matters and in particular taking into account the specific need for cases such as this to effect specific deterrence, punishment and general deterrence, albeit moderated by the Verdins principles, I have concluded, as I have said, there is no other sentence appropriate in your case but for a period of immediate imprisonment. If you would stand please.
37Mr Evangelistis, you will be sentenced in regard to all matters to an aggregate period of imprisonment of 12 months.
38In addition, on all matters, I impose a Community Corrections Order for a period of three years. I do not, pursuant to the provisions of s.11 of the Act, intend to impose a minimum period so that the period that you must serve by way of imprisonment is a period of 12 months. There will therefore be no need for a declaration under s.18 of the Act as to the pre-sentence detention that you have served of 28 days. However, I record that, should such be necessary in any other forum.
39Insofar as that three year Community Corrections Order, which will begin once you finish your period of 12 months' imprisonment, I intend to impose the following conditions apart from the usual conditions. The most important usual condition is that you do not commit an offence punishable by imprisonment.
40For the whole period of the three years I impose a 200 hour work requirement, community work requirement under s.48C of the Act. Under s.48D of the Act, drug treatment and assessment. Whether Transformation assists you again, I am not sure, but I understand from Mr Ryan's evidence that they are closely connected to the Werribee Corrections Centre.
41The condition under s.48D(3A) of the Act of mental health, the condition under s.48(3F) of the Act of a need for assistance in coping and ensuring you do not succumb to offending behaviour and in this regard, it is very important for you to build up your psychological strength to ensure that you cope with any future crises and to ensure that you do not get back on drugs when that occurs. The consequences have now been demonstrated twice and in particular, s.48E of the Act, the matter of supervision.
42The relevant, I imagine, Community Corrections Centre will be Werribee. The supervision I think is important for you and I think the supervision offered by Community Corrections and by this Community Corrections Order will be far sterner and I think a sterner period of supervision is required for you to ensure that you do effect the rehabilitation that is so badly needed.
43To the extent it is necessary for me to declare under s.6AAA of the Act, having imposed a partial period of imprisonment, the sentence I would have imposed upon you as a maximum sentence would have been a period of three years and four months had you not pleaded guilty in this matter. I will not worry about the issue of minimums.
44MS SAVILLE: And just the matter of PSD, Your Honour.
45HIS HONOUR: The PSD declared is 28 days, is that not correct?
46MS SAVILLE: Yes, Your Honour.
47MS WALKER: There's one more task, Your Honour.
48HIS HONOUR: Yes.
49MS WALKER: Which is the pronouncing the commencement date of the Community Corrections Order.
50HIS HONOUR: The Community Corrections Order date commences on the cessation of the period of imprisonment.
51MS WALKER: Yes, I understand that you have to - because he has to report within two working days and ‑ ‑ ‑
52HIS HONOUR: Well I do not know - I cannot pronounce a date. It will be administrative. I think you will find that the orders that Corrections accept are upon release and he is to report two days after release.
53MS WALKER: Thank you, Your Honour.
54HIS HONOUR: Yes, I thank both counsel for their assistance.
55MS WALKER: As the Court pleases.
56MS SAVILLE: As Your Honour pleases.
57HIS HONOUR: Mr Evangelistis, just so there is no confusion with you, the sentence is for you to serve now 12 months' gaol and then three years on a Community Corrections Order, where you will be supervised and hopefully treated and hopefully assisted to make sure there is no more of these issues in your life. All right? It is very important.
58OFFENDER: Yes.
59HIS HONOUR: You must stay on your medication whatever happens. Once you are off that, as we know, disaster. All right, so all the best.
60OFFENDER: Thank you.
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