Director of Public Prosecutions v Francis
[2016] VCC 1768
•21 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -16-00862
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBBIE FRANCIS |
---
| JUDGE: | HIS HONOUR THE CHIEF JUDGE (JUDGE KIDD) |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 July, 25 October & 9 November 2016 |
| DATE OF SENTENCE: | 21 November 2016 |
| CASE MAY BE CITED AS: | DPP v Francis |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1768 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Three charges of robbery, one charge of attempted robbery, two charges of make threat to kill, and related summary offences including dangerous driving – previously undiagnosed mental illness – mistaken ingestion of methylamphetamine – drug exacerbated psychosis – whether prior knowledge – found lack of prior knowledge and mistaken ingestion which triggered a psychotic reaction – significantly reduced moral culpability
Cases Cited: DPP v O’Neill [2015] VSCA 325; R v Martin [2007] VSCA 291; DPP v Arvanitidis [2008] VSCA 189; R v Verdins (2007) 16 VR 269
Sentence: 23 months imprisonment combined with a 4 year CCO---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Bhai and Mr D. Plummer | Office of Public Prosecutions |
| For the Accused | Mr R. Lawrence | Stary Norton Halphen |
HIS HONOUR:
Robbie Francis you have pleaded guilty to one charge of attempted robbery which carries a maximum of ten years imprisonment, three charges of robbery, which carries a maximum of 15 years imprisonment, two charges of making a threat to kill, which carries a maximum of ten years imprisonment, and once charge of attempted theft which carries a maximum of five years imprisonment. 1
You have also pleaded guilty to the following summary offences: one charge of unlicensed driving, which carries a maximum of three months' imprisonment or a fine of 25 penalty units, three charges of drive in a manner dangerous, which carries a maximum penalty of two years imprisonment or a fine of 240 penalty units, four charges of failing to give name and address at the scene of an accident which carries a maximum of 14 days imprisonment or a fine of five penalty units, one charge of failing to stop when signalled by police, which carries a maximum of ten penalty units and one charge of driving whilst impaired by a drug which carries a maximum of 12 months imprisonment or 120 penalty units. 2
You were born on 15 November 1976 and you are currently 40 years of age. You were aged 39 at the time of the offending. 3
CIRCUMSTANCES OF OFFENDING
A prosecution opening was tendered on the plea. It is an agreed summary, and as such I do not need to repeat it here in great detail. Your offending occurred on Sunday 14 February 2016, commencing at approximately 7:00pm on William Street in the Melbourne CBD when you unsuccessfully tried to take control of a B4 MW at the intersection with Collins Street. (Charge 1 – Attempted robbery).
You then pushed the driver of another car, that driver is Mr L, the other car being a Toyota Echo. You pushed Mr L out of his car and drove off. You drove in an erratic and dangerous manner and ultimately collided with a stationary taxi and then with the rear passenger side of a ute which was driven by Mr C, with his wife and daughter in the car. You caused minor damage to both and on neither occasion did you stop. (This conduct encompasses Charge 2- Robbery and the related summary offences 8, 9 and 11- drive in a manner dangerous and fail to give name and address on two occasions).5
6You continued into Glen Iris where you swiped the side of a BMW. Having stopped you ran towards the victim (Ms V) apologising but you then became aggressive and threatening, saying "Give me your keys, give me your fucking keys, I’ll stab you and I’ll kill you now give me your keys". Having managed to obtain the car keys, you got into the BMW but could not start it. You struggled with a bystander who intervened. (this conduct forms the subject of Charges 3, 4 and 5 - threat to kill, robbery and attempt theft, and the related summary offence 15 - fail to give name and address).
7You got out of the car and ran towards a Honda 4WD which had stopped on the road. It was driven by Ms M who had her two children, aged 8 and 11, in the car with her. You ran towards her car and wrenched open the side door. At one point you were very agitated and said "I’ve got a gun and I’ll shoot you and I’ll shoot the kids. Get out of the car". The occupants of the car ran to a nearby house. You drove off in the car, colliding with the Toyota Echo, before colliding with the mirror of another parked car. You did not stop. (This conduct forms the subject of Charges 6 and 7 - threat to kill and robbery and the related summary offence 26 and 27 - fail to give name and address and drive in a manner dangerous).
8You drove the stolen Honda 4WD along Malvern Road, at one point at a speed of about 100 km/h in a 40 km/h zone. You continued along Commercial Road and went through a red light as you turned into St. Kilda Road. You hit a sign post and crossed the footpath, missing a pedestrian by about three meters. You collided with a gate and a fence before stopping. The vehicle was substantially damaged and would not start. You got out of the car and left the scene (This all relates to the summary offences 29 and 34 - fail to stop and drive in a manner dangerous).
9At the time of the offending you did not have a driver’s license. A sample of your blood was taken at the Royal Melbourne Hospital about an hour after the collision, it was found to contain approximately 0.14 mg per litre of methylamphetamine. (This relates to the summary offences 7 and 10 - unlicensed driving, driving whilst impaired by a drug).
Arrest and Interview
10Police attended and after briefly resisting police, you were arrested. An ambulance took you to the Royal Melbourne Hospital. You were released from hospital early the following morning. You were taken to Prahran Police Station where you made a “no comment” interview. You were remanded in custody and have remained on remand since.
Victim Impact Statements
11Ms V and Ms M both made victim impact statements and these were tendered at the plea hearing. The statement of Ms V was read aloud by the prosecutor. Ms V tells of how your offending has affected her life. She is fearful travelling along in her car and feels insecure going about her every day activities. She says that she suffered some bruising to her arms and upper body during the incident. She has suffered financial loss in out-of-pocket expenses in relation to her car and medical expenses. Ms M tells of the terrifying incident she and her children experienced in which she thought that she and her children could have been killed by you when you made threats. Your offending has had a significant impact on their lives. Ms M suffers from flashbacks and nightmares of the incident. She feels as though she is always hyper-vigilant and on the look-out for danger. The family have also had to replace their car, and due to the depreciation in market value they had out-of-pocket expenses to replace their vehicle to the same standard.
PSYCHIATRIC EVIDENCE OF PSYCHOSIS DURING INSTANT OFFENDING
12It is common ground between the parties that at the time of the offending you were suffering from a psychiatric episode. This is based on the outcome of the assessment by Dr Ria Zergiotis, Consultant Psychiatrist from the Victorian Institute of Forensic Mental Health. Dr Zergiotis prepared a report and an addendum report at the request of this Court.
13Dr Zergiotis said in her report dated 7 September 2016 in regard to your account of the offending and the circumstances surrounding it, the following:
He described a fairly elaborate paranoid delusional system involving several strangers whom he described in detail on the day of the offences in question, and had a fixed belief that he was going to be killed on the day of the offences in February 2016. He also described high levels of anxiety, some preoccupation with religious issues and an ability to be able to tell the future. Mr Francis’ insight into his issues was fairly limited and he firmly believed the account of the several individuals out to get him on that day, and was not open to the possibility that it may have been a psychotic experience resulting from his reported use of drugs, in particular methamphetamines. He gave a consistent account of his version of events of the day in question.
It is highly likely that his behaviour and mental state was drug induced at the time of the offences, as he reported having taken a large amount of methamphetamines the day prior the offences occurred. Descriptions of his behaviour and demeanour by witnesses as detailed in the documents, confirms that he presented in a disorganised and chaotic state, consistent with an individual who is drug affected and experiencing a drug induced psychotic episode.
14When Dr Zergiotis turned to your current mental state, however, she noted that despite you being abstinent from illicit substances whilst in custody, you still present with psychotic symptoms:
Of particular concern is that Mr Francis has been abstinent from illicit substances for at least six months in jail, and presents as psychotic on cross sectional examination. He requires further assessment to clarify the diagnosis, as a chronic psychotic disorder such as schizophrenia needs to be excluded. Mr Francis did not present as depressed on cross-sectional examination, and symptoms suggestive of an acute exacerbation of PTSD were not evident during the assessment.
15As a result of the need for further assessment to clarify your diagnosis, an addendum report was ordered. In the addendum report dated 17 October 2016, Dr Zergiotis wrote:
Mr Francis was assessed by Dr Clare McInerney on 13 October 2016 at the MRC Outpatients. In her opinion, Mr Francis was continuing to experience a psychotic episode in prison. He described a complex delusional system involving several individuals, with the description consistent with previous reports. The ongoing psychosis was assessed as not solely induced by illicit substances, assuming that Mr Francis remained drug free in prison. Mr Francis was accepting of the diagnosis and accepted commencing antipsychotic medication (olanzapine). He will be reviewed in outpatients on a regular basis from this point.
Some aspects of Mr Francis’ mental state appear to have improved – he presented as less pressured and was not agitated during the review, and there was no evidence of thought disorder. Mr Francis continued to present with a fixed and extensive paranoid delusional system involving several strangers whom he describes in detail on the day of the offences in February 2016. He continues to have the fixed belief that he was going to be killed on that day, and these beliefs drove the offending behaviour, with Mr Francis attempting to flee his alleged perpetrators. His report of longstanding feelings of something 'bad' happening in the future maybe consistent with a delusional mood.
Given that Mr Francis does not have a formal past psychiatric history, he currently presents with a first episode psychosis of several months duration, which is not drug induced, assuming he has been drug free in prison. The use of methamphetamines may have exacerbated a pre-existing psychotic disorder, which had been undiagnosed and untreated in the community. The functional impact of this psychotic episode is difficult to assess in Mr Francis’ case, given his long history of polysubstance abuse and low baseline of social and occupational functioning.
His exact diagnosis and prognosis will be clearer with a period of treatment on antipsychotic medications. At this stage, the differential diagnoses include schizophrenia and delusional disorder (Diagnostic and Statistical Manual of Mental Disorders – DSM-5).
16In DPP v O’Neill [2015] VSCA 325, this Court recently emphasised that where an offender seeks to rely upon Verdins so as to reduce moral culpability, or to moderate or eliminate the need for general deterrence or specific deterrence, it must be shown that there is a connection between impaired mental functioning and moral culpability.[1] In order to show this connection, the relevant impairment of mental functioning must affect the offender’s ability to appreciate wrongfulness, obscure the relevant intent, or impair the offender’s ability to make calm and rational choices or to think clearly.[2]
[1]DPP v O’Neill [2015] VSCA 325 [74].
[2]Ibid [75].
17I accept that the evidence establishes that at the time of the offending you were (and still are) suffering from a Schizophrenia and Delusional Disorder. It is plain you were very significantly mentally impaired at the time you engaged in this offending. You were experiencing a paranoid delusional episode. The medical evidence and the facts themselves point to that conclusion. Indeed, by the end of the plea, this was common ground between the parties.
18It was also common ground that you had used methylamphetamine in the days leading up to the instant offending and that the methylamphetamine exacerbated your pre-existing psychotic disorder. Dr Zergiotis concluded that the ongoing psychosis was assessed as not solely induced by illicit substances, assuming that you remained drug free in prison. There is now evidence – by way of ‘clear’ drug screening tests - before me that you have remained drug free in prison, which I accept. You also gave evidence before me that you have been drug free.
19I find that your psychiatric condition was not solely drug induced. I approach the matter upon the basis that the use of methamphetamine exacerbated a pre-existing, or your pre-existing, psychotic disorder.
20The only issue on the plea was this: whether the Verdins benefit you get is reduced by the fact that your mental condition was exacerbated by your own illicit drug use.
The principles for a drug exacerbated psychosis
21It is convenient at this point to summarise the principles which emerge from the authorities on whether, and when, a drug triggered (or exacerbated) psychiatric episode can constitute a mitigating circumstance:
a)Where the offender has established he had no awareness – because of a lack of prior knowledge or experience – that the ingestion of a particular drug might trigger a psychotic reaction, the resultant impairment of mental capacity might be regarded as involuntary, notwithstanding that the taking of the drug was a voluntary act. The resultant impairment can thus constitute a mitigating factor under Verdins. [3]
b)In each case the Court must consider ’what the probable consequences of the ingestion of the particular drug by the particular offender were and whether the offender foresaw those consequences’.[4]
c)Whether self-induced psychosis is a mitigating circumstance rests upon the proposition that the offender did not have foreknowledge that he would become dangerously psychotic and violent.[5]
d)It is not enough for the offender to establish he had no foreknowledge that the psychotic symptoms would cause him to behave in the precise manner in which he offended or would cause him to be generally dangerous or violent. If the offender was aware that by taking the drug, his judgment would be so affected that he would behave irrationally or that it would affect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstance. So, an offender’s foreknowledge regarding the potential for paranoia, persecutory delusions, and other forms of disorganised thought can be sufficient to preclude the operation of the principle stated in Verdins.[6]
e)It is for the offender to establish, on the balance of probabilities, that he did not know that the drug would have such effects. [7]
[3]R v Martin [2007] VSCA 291 at [19]-[20]
[4]R v Martin [2007] VSCA 291 at [30]
[5]DPP v Arvanitidis [2008] VSCA 189 at [30]
[6]DPP v Arvanitidis [2008] VSCA 189 at [34]
[7]DPP v Arvanitidis [2008] VSCA 189 at [34]; R v Martin [2007] VSCA 291, [18]–[30]
Drug use in period prior to instant offending
22Mr Francis, you gave evidence that you were released from custody on 26 January 2016. You said that you were removed from the methadone program in prison some five to six weeks prior to your release. This was due to your use of illicit drugs whilst in custody. This drug use included methylamphetamine and to quote you, "whatever you could get your hands on" whilst in custody, often simply to relieve the boredom of incarceration.
23After your release, however, your focus was on obtaining and using heroin. You gave evidence that you have been a long-term heroin user and that this was your drug of choice. You gave evidence that you were using heroin multiple times a day after your release on 26 January 2016 and prior to your arrest for this offending on 14 February 2016.
24It was only on the last occasion before your offending that you say that you mistakenly, used methylamphetamine. I now turn to that occasion.
Evidence of last drug ingestion immediately prior to instant offending
25You gave evidence that you met a man you knew from prison. He told you he knew where to get "gear". To you, "gear" meant heroin. This associate took you to a gaming venue where he purchased the drugs from another person who was there. You returned to the boarding house where you were staying and told your associate to mix up the drugs in your room. Whilst he did this you checked the boarding house for anyone who might report you to the police. You gave evidence that you took the drugs after they had been dissolved in water and were handed to you in a syringe. You did not look at the drugs, you thought it was heroin. You gave evidence that you did not usually inspect the quality of the heroin or look at it before taking it as you would know from the "feeling" whether or not it was a high quality substance. Once you administered these drugs you said that you knew something was wrong and swore at your associate asking "what have you done?" Your associate said to "just ride it" and he laughed.
26You gave evidence that although you had used methylamphetamine on occasions in the past, you had always "snorted it" and had only once injected "speed" when you were about 16 years old.
27The prosecutor put to you in cross-examination that you had lied about this mistake story because you were conscious that you have relied upon taking methylamphetamine once before as an excuse when being sentenced for the subway robbery offence. You denied making it up.
28The prosecutor, Mr Plummer also put to that you had a number of opportunities - in the setting of discussions in custody about your drug use and your treatment for drugs - and you did not mention the mistake claim. He also put to you that you did not raise this mistake claim before you spoke with Dr Cunningham in 2016. You said that you may have told the people at the hospital in the emergency department in Richmond on the day of the offending about this mistake story but otherwise appeared to concede to the proposition that the first you mentioned using methylamphetamine, believing it was heroin, was to Dr Cunningham when you saw him on 21 June 2016.
29You were also cross-examined about a note taken by a nurse who spoke with you on 1 March 2016 whilst you were in custody. It recorded that in the last four weeks in the community the patient was "abusing ice and heroin in the community daily, IV". You denied ever admitting to take taking ice or methylamphetamine intravenously.
Prior knowledge - hallucinations prior to 2014 Subway restaurant offence
30Mr Francis you gave evidence at the plea about taking methylamphetamine a few days before the robbery offence you committed in May 2014 on a Subway restaurant. You said that you were sick and that you were hallucinating around the time of your offending. This arose out of comments in a report by Carla Lechner which was prepared for the plea hearing for that matter on your behalf and indeed, tendered at the plea hearing. You clarified in evidence, however, that you were feeling physically sick at the time because you were needed heroin. You committed the robbery for the purposes of gaining funds to purchase heroin. You described this experience as being completely different from how you felt after mistakenly taking methylamphetamine before these current offences. You said there were a number of days in between your use of methylamphetamine and the offending conduct in relation to the Subway restaurant and that you did not feel under the influence of methylamphetamine during the Subway restaurant robbery.
Defence arguments
31I now turn to the arguments put by both parties as to how I should approach this evidence. Firstly a summary of the defence arguments.
32Your counsel, Mr Lawrence, accepted that the evidence established that you had some degree of foreknowledge that ingesting methylamphetamine could affect your judgment. This is because you had, on your own admission, experienced some hallucinations after taking methylamphetamine in the days leading up to the subway restaurant offence in 2014.
33He nevertheless submitted that I should accept your evidence that in the days leading up to the instant offending you believed that you were taking heroin, not methylamphetamine. There was no evidence that you had ever experienced any mental reaction to taking heroin. Thus, you had no foreknowledge that ingesting that drug could affect your judgment or make you behave irrationally, let alone dangerously or violently.
34In any event your counsel submitted that your reaction to the taking of methylamphetamine in the days leading up to the subway restaurant offence in 2014 fell a long way short of behaving dangerously, violently, criminally or psychotically which you experienced during the current offending. Your counsel thus submitted that even if you knew you were ingesting methylamphetamine in the days leading up to instant offending, in truth you could not have foreseen the dire consequences of that day.
Prosecution arguments
35The Prosecutor accepted that Verdins applied here but it was a question of weight. He contended that I should reject your evidence that you mistakenly believed you were taking heroin in the period immediately prior to the instance offending.
36Mr Plummer argued that you had a number of opportunities - in the setting of discussions in custody about your drug use and your treatment for drugs - and you did not raise the mistake claim.
37An argument was put that you acted recklessly by taking illicit drugs without taking proper care to verify the nature of the drug given your previous bad experience with methylamphetamine.
38In the circumstances, the prosecutor argued you had some foreknowledge that in taking the drug this occasion, this would have a negative impact on your ability to exercise control. He submitted this reduced the benefit you could get from the application of Verdins.
Resolution
39I accept the evidence that you mistakenly believed you were ingesting heroin. I found your account of your purchase and ingestion of the drugs on the occasion before the instant offending to be largely reliable and credible. It was candid and constituted a coherent narrative and was inherently plausible. I note the following:
·You clearly had a heroin addiction at the time – as much is not disputed;
·You gave evidence that when you purchased the drug you called it "gear", which, for you, was slang for heroin;
·When asked why you did not look at the drug you said you knew the person who facilitated the purchased and trusted him and did not feel the need to. You said you were more interested in how it felt;
·You gave evidence that, with one exception, you would ingest methylamphetamine by snorting it. Of course on the occasion in question prior to the current offending the means of administration was intravenous, not "snorting";
·You have administered methylamphetamine intravenously once before, when you were 16 or 17 years of age;
·As to the note taken by a nurse who spoke with you on 1 March 2016 whilst you were in custody which recorded that in the last four weeks in the community the patient was "abusing ice and heroin in the community daily, IV”, in the absence of hearing evidence from the nurse in question I would not be prepared to find that the admission as to IV administration encompassed the drug ‘ice’ in addition to heroin;
·While you did not raise this mistake claim with any prison medical staff or medical staff at the prison, Mr Plummer, the prosecutor, did not establish any clearly inconsistent statements. That is, the prosecutor did not identify any occasion where your disclosure of the mistake claim would have been clearly expected, had it in fact happened. On each occasion you were talking with the relevant medical staff about drug abuse and dependency issues – none of these conversations, in my view, clearly called for disclosure of the mistake claim.
40I find therefore that you have established you had no awareness – because of a lack of prior knowledge or experience – that the ingestion of the drug, which you mistakenly believed to be heroin, might trigger a psychotic reaction.
41As to the recklessness argument, when taking an illicit and unregulated substance there is always a risk to some degree that the drug is not that which the user believed. It might even be said that greater care needs to be exercised to verify the nature of a drug in circumstances where the user, like you, had had a previous bad reaction to the ingestion of one particular drug (such as methylamphetamine). I have found however, as a matter of fact, and on the balance of probabilities, that you believed that what you were taking was heroin. This was not a case where you ingested the drug in question with the reckless indifference as to its nature and consequences.
42I should say that even had I rejected your mistake claim, Verdins would still have materially applied in your case. I would have reduced the mitigatory benefit of Verdins because you would have been on notice that the ingestion of methylamphetamine might cause you to behave irrationally, but I would only have reduced that benefit by a modest degree. While you had previously experienced hallucinations when taking methylamphetamine, this is vastly different from the psychotic and persecutory symptoms you experienced during the instant offending. On the previous occasion the methylamphetamine did not make you behave criminally - I note that the uncontested evidence was, in the end, that when you committed the subway robbery offence, you did so rationally (to obtain money for heroin) while you were no longer suffering from any mental episode. On any view, you had no forewarning that the ingestion of methylamphetamine would trigger or exacerbate an extreme psychotic reaction, of the kind which occurred on the day of the instant offending.
43I find that in the circumstances of your case the application of Verdins significantly reduces your moral culpability. Your offending was irrational and without a sensible motive. It was directly caused by your psychotic episode. You were suffering paranoid delusions. As a consequence general deterrence is significantly moderated. Specific deterrence is moderated also given that this offence was not committed with any rational motive. It is to be contrasted with your prior dishonesty history, which has been largely committed to feed a drug habit. Your counsel nevertheless accepted specific deterrence still has some role to play – I will return to this.
CRIMINAL HISTORY
Mr Francis, you have an extensive prior criminal history, in both Victoria and New South Wales. 44 You have spent many years of your life in gaol. You were first gaoled when you were 19. You have been in custody almost continuously since 2004. Your criminal history is dominated by large numbers of burglaries, thefts and other dishonesty offences.You also have a prior conviction for aggravated burglary (person present). In 2014 you were sentenced to 18 months' imprisonment with a non-parole period of 12 months by His Honour Judge Hicks of this Court for an offence of Robbery committed at a Subway restaurant.
45Your offending history has been almost exclusively connected with your lifelong drug addiction.
46You were most recently released, before this matter, on 26 January 2016. You had not been granted parole so you were released without any supervision or support. You were in the community for approximately three weeks before you committed this offending and were remanded in custody.
PERSONAL AND MITIGATING CIRCUMSTANCES
Personal Background
47Mr Francis you grew up in Penrith, New South Wales. You instructed your counsel that you had a good childhood and supportive parents. Your parents are still together and live in Sydney, running a business which manages large residential buildings in Sydney.
48You have one younger sister who still lives in Sydney. You completed Year 10 at high school in Sydney. You have had a variety of work over your life but last worked in 2008. You have had one significant relationship in your life which ended in 2010, in circumstances connected with your drug use. Your counsel submitted that you have had no contact with your family of phone calls as you instruct him that you are uncomfortable and too ashamed to speak with your family. You do not speak with your parents, and that is by your own choice.
Drug Addiction
49You started using drugs as a teenager. You developed a heroin addiction and have struggled with this ever since. You have been placed on a pharmacotherapy program numerous times.
Outstanding New South Wales Parole
50In 2006 you were sentenced to a total of seven years' imprisonment with a non-parole period of four years in the New South Wales District Court. This was for a range of offences including aggravated break and enter upon commercial premises. At the time of the offending I am sentencing you for, a warrant was outstanding in New South Wales for the remainder of your parole in that matter, being two years and one day. Your parole had been revoked on an earlier occasion (the reasons for its revocation were unrelated to this offending).
51I take into account that this offending occurred when a warrant was outstanding in relation to the revocation of your parole. That said, this is not same as committing an offence on parole. The fact is the parole had been revoked.
52The defence submitted, and the prosecution accepted, that as there is presently an unexpired portion of the New South Wales sentence imposed in 2006 still to be served, the principle of totality requires that it be taken into account in my reasoning.[8] That is so even though it remains uncertain as to whether the New South Wales authorities will take steps to extradite you.
[8]R v Piacentino 15 VR 501, 515 [62]–[63]; Morgan v The Queen [2010] VSCA 248 at [8]-[9]
53I will therefore take it into account under the principle of totality.
54The New South Wales offending involved an offence of aggravated break and enter with intent to steal, at an American Express office. You were armed with a sledgehammer which you used to open the security door behind the customer service counter. There was one staff member and three customers present. You intended to gain access to cash kept in this area but were prevented from doing so due to a metal security door. You were also sentenced for four "break enter and steal" offences and one "break and enter with intent to steal" offence on commercial properties, and an escape from lawful custody offence when you ran from a hospital where you were receiving treatment after being arrested.
Lock down conditions
Your counsel submitted that I should take into account that whilst you have been on remand, you have been subject to "lock-down" conditions during which the time you are able to spend outside your cell has been restricted. Your counsel, Mr Lawrence, said he had been instructed by you that up until a week before the plea hearing in July you were only allowed out of your cell for one to two hours per day. The 'lock-down' conditions were as a result of the riots which occurred at the Metropolitan Remand Centre (MRC) in June 2015. The Prosecution tendered an affidavit sworn by Brendan Money, from Corrections Victoria. This affidavit details that the time you have spent out of your cell has varied from four and a half hours to two and a quarter hours depending on which unit you were placed in and also for reasons of prisoner management. Your counsel concedes that part of the time you were in lock down was connected with your own behaviour in prison. He maintains, however, his submission that you were held in more restrictive conditions during the first part of your remand due as a result of, or due to, the riots in the Metropolitan Remand Centre in June 2015. This was not specifically disputed by the prosecution. I take it into account. 55
Guilty Plea
56You pleaded guilty at the earliest possible opportunity at the further committal mention on 14 April 2016 and the matter proceeded by way of straight hand-up brief. Your early plea is evidence of some remorse, an acceptance of responsibility of your offending and it also carries a utilitarian benefit in saving the community time and expense of protracted legal proceedings.
Remorse and insight
57In the addendum report dated 17 October 2016, Dr Zergiotis wrote:
He demonstrated partial insight in that he believes that he is mentally unwell, and that he has had longstanding feelings that something “bad” may happen. He came across as genuinely remorseful about the offences, and has good insight regarding the impact on the victims.
58I find that you are genuinely remorseful.
Prospects of rehabilitation and risk of re-offending
59This is your first diagnosis by a psychiatrist of any sort of psychiatric condition. It is also the first time that you have been prescribed medication to treat this condition. You have previously remained un-diagnosed and un-treated in the community and also during previous periods of imprisonment.
60You have accepted the diagnosis and you are accepting of taking medication. Now that you know about your condition and that you are accepting the prescribed treatment, you are much better placed to make educated decisions about your future conduct. Some aspects of your mental state have appeared to improve according to the medical evidence.
61That all said, you still present with an ongoing first episode of psychosis of several months duration, and Dr Zergiotis states that your prognosis is not clear.
62In order for you to improve your prospects of rehabilitation it is critical that you understand the connection between your drug use and your mental health. You now have some insight into this.
63I appreciate that prior to this offending you have never known of the potentially catastrophic consequences which drug taking can have upon your mental health. You are not someone who comes before the Court who has previously abused drugs in the knowledge that they might make you psychotically dangerous. This is the first time in which the relationship between your drug taking and your mental condition has been exposed. You deserve an opportunity to show that you can manage this.
64Your prospects still turn upon remaining drug free. Even if, as I have accepted, that you mistakenly ingested methylamphetamine on this occasion, you deliberately ingested an illicit and unregulated substance and this conduct exacerbated your mental condition. It shows that illicit drug taking of any kind carries with it the risk of ingesting the wrong drug, which, in your case, would be mistakenly ingesting methylamphetamine. You must therefore be deterred from engaging in illicit and unregulated drug taking.
65You also have an extensive criminal history and as I have previously said, I am told much of it is drug related.
66Given you prior history and drug abuse, specific deterrence remains relevant for you.
67I am encouraged by the evidence that you have remained drug free in prison on this occasion.
68I find that you still do have some prospects, but they are somewhat uncertain. Your prospects and risk of re-offending turn upon remaining drug free and upon your mental health being properly managed.
69This whole episode has squarely put you on notice Mr Francis that illicit drug taking can lead to you taking the wrong drug – namely methylamphetamine or something similar - and in your case this can potentially have catastrophic consequences for your mental health and behaviour. The episode has also put you on notice as to how important is it for you to adhere to your treatment in the future for your mental condition.
Community Correction Order Assessment
70You were assessed to determine your suitability for a community correction order (CCO) in combination with a term of imprisonment. You were assessed as suitable for a CCO. You were found to be at high risk of re-offending according to the Level of Service Assessment Tool. The report indicates that you have had previous involvement with Community Correctional Services in the form of parole orders, all of which were contravened. Despite this poor history and previous bad attitude towards such orders, the assessor notes that you are keen to complete a CCO as it would provide you with rehabilitative support. You stated to the assessor that you are now "medicated" and you are "older", hence more responsible to complete a CCO. The assessor recommended a number of conditions, as follows: drug assessment and treatment condition, given your long history of drug use and desire to remain abstinent upon release; mental health treatment condition given your recent diagnosis and that you are prescribed anti-psychotic medication; offending behaviour programs, particularly as you have been assessed at a high risk of re-offending; supervision; and a judicial monitoring condition, with the aim of giving you an extra level of motivation and accountability to complete the CCO.
OFFENCE GRAVITY & APPLICATION OF RELEVANT SENTENCING PRINCIPLES
71This is a very difficult sentencing exercise.
72You engaged in what could only be described as a terrifying and highly dangerous escapade on Melbourne’s streets. The offences you committed are objectively very serious. Your conduct posed a very serious risk to other members of the community and it is somewhat miraculous that no one was seriously injured, or even killed. You are also a mature man with an extensive history of prior offending. Much of that prior offending is objectively relevant to your current offending – offences of dishonesty committed largely against property and sometimes against persons.
73In the ordinary course, a substantial term of imprisonment, with a corresponding non-parole period would be warranted.
74But your case is far from ordinary.
75You engaged in this conduct while in psychotic state. You had no coherent motive for what you did. You were not carjacking for dishonest purposes or for financial gain. Nor were you engaged in a form of joy riding. You were operating in your own unreal world. You feared you were going to be killed on that day – because of your mental illness - and these beliefs drove your offending behaviour. Your mental illness rendered you significantly less blameworthy than a person of normal mental health.
76Importantly, you experienced symptoms about which you had no idea because you had never been diagnosed with any condition. You are not someone who has in the past deliberately ceased taking prescribed antipsychotic medication in full knowledge of the consequences. You are not someone who persisted in taking an illicit drug in full knowledge of its adverse effect.
77Other countervailing sentencing considerations, including protection of the community and specific deterrence, still apply. This is due to your priors, the gravity of what took place and your interrelated drug and mental health problems and the risk of your re-offending. But these factors do not loom as large, as they might have done, if you had previously shown yourself to be someone prepared to take drugs, with full knowledge of the potentially catastrophic psychiatric consequences, or had you committed these offences for dishonest purposes.
78The length of any term of imprisonment I can impose upon you is limited by my finding that your moral blameworthiness in relation to this offending is low because of the application of Verdins. The law does not permit me to impose a disproportionately lengthy sentence of imprisonment, incorporating a potentially lengthy non-parole period, so as to protect the community.
79By contrast, a community correction order following a period of imprisonment may be proportionately much longer than would ordinarily be achieved by a sentence of imprisonment incorporating a non-parole period (assuming that parole was granted).
80I have concluded there is a need here for you to be subject to supervision after confinement for a significant period of time to, amongst other things, protect the community and to facilitate your prospects of rehabilitation. It is important to consider a sentence which ensures that you are under a lengthy period of supervision, particularly in relation to the maintenance of your medication and abstinence from illicit drugs. This supervision and support will be critical as you transition from the confinement and routine of imprisonment to life outside of prison.[9]
[9]Manariti v The Queen [2015] VSCA 160
81I have concluded that a term of imprisonment of the length I am about to impose, followed by a lengthy CCO sufficiently meets the aims of all the relevant sentencing considerations including protection of the community.
82I am also mindful that the lengthy CCO will constitute an additional element of punishment.
83You committed the offences in question as part of the one episode over a relatively short period of time on the one day. A single CCO and term of imprisonment is appropriate.
84The Crown submitted that a combination term of imprisonment with a CCO is outside of the available range. I have carefully considered that submission and, in my view, it fails to adequately recognise the extent to which I have found your moral culpability is reduced for this offending and the advantages which a lengthy CCO carries in your case.
I intend to impose a CCO, in combination with a term of imprisonment. Before I formally pronounce your sentence, you must consent to the making of a CCO. 85
So what I am going to do, Mr Francis, I am going to read to you what I propose to do and before I formally pronounce that I will be asking whether you consent to the making of the CCO in those terms86
So these is my proposed orders.87
88On Charges 1 to 7 inclusive and on Summary Charges 8, 27 and 34 (being the drive in a manner dangerous charges), you will be convicted and sentenced to a term of imprisonment of 23 months coupled with a four-year community correction order containing the conditions which I am about to read. On the balance of the charges, Summary Charges 9, 11, 15 and 26 (failing to provide name and address at the scene of an accident), Summary Charge 10 (drive whilst impaired by a drug), Summary Charge 7 (unlicensed driving) and Summary Charge 29 (failing to stop when signalled by police) I propose convicting and fining you an aggregate sum of $500.
89I am now going to read to you, Mr Francis, the conditions of the community corrections order which will be in addition to the 23 months' imprisonment.
90The mandatory terms, which you will have to comply with and these apply to all community corrections orders are as follows. You must not commit another offence for which you could be imprisoned during the time that the order is in force; You must comply with any obligation or requirement proscribed by the Secretary; You must report to, and receive visits, from the Secretary, which the Secretary is effectively Corrections; You must report to the Community Corrections Centre within two clear days of the order starting and as I said, Mr Francis, it will start upon release from prison; You must let a Community Corrections officer know within two clear working days of you changing your address or job; You must not leave Victoria without first getting permission to do so from the Secretary; You must obey all lawful instructions from and directions of the Secretary.
91Now in addition to those mandatory conditions, Mr Francis, I propose imposing the following specific conditions. Supervision - you must be under the supervision of a Community Corrections officer for a period of four years; In relation to treatment and rehabilitation, you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager; You must undergo any mental health assessment and treatment that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager and you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
92I have already mentioned to you that the Community Corrections officer recommended an additional condition, which I also intend to impose, which is judicial monitoring. Which means you will be coming back to me from time to time so I can see how you are travelling and to monitor your time in the community. You will have to attend for your first review of judicial monitoring on 26 February 2018 here at the County Court at ten o'clock.
93Now, Mr Lawrence, I am happy for you to speak with Mr Francis. I have a copy of the proposed orders. Would you like to see a copy? I am happy for you to approach him.
94MR LAWRENCE: I've taken notes of them, Your Honour, I'll speak to Mr Francis briefly.
95HIS HONOUR: So, Mr Francis, can I ask you, will you consent to a community corrections order of that nature with those conditions and of that length?
96OFFENDER: I do.
97HIS HONOUR: Yes.
98OFFENDER: I do, yes.
99HIS HONOUR: All right. You can remain standing, thanks, Mr Francis.
SENTENCE
100On Charges 1 to 7 inclusive and on Summary Charges 8, 27 and 34 you are convicted and sentenced to a term of imprisonment of 23 months coupled with a four-year community corrections order containing the conditions which I am about to read to you and to which you have consented. On Summary Charges 9, 11, 15, 26, 10, 7 and 29 you are convicted and fined an aggregate of $500.
101I disqualify you from obtaining a licence for a period of 24 months effective from today.
102Mr Francis, you can sit down now please.
PSD
103PSD, counsel is it 281 days?
104MR LAWRENCE: Yes, 218, Your Honour.
105HIS HONOUR: Mr Francis you have been in custody on remand since 14 February 2016. You have served 281 days pre-sentence. Pursuant to s.18 of the Sentencing Act I declare 281 days be reckoned as the period of imprisonment already served under that sentence.
6AAA
Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I indicate that had you not pleaded guilty, I would have sentenced you to a total effective sentence of four years imprisonment, with a non-parole period of two years and nine months.106
Judicial Monitoring Condition
107As I indicated to you earlier, Mr Francis, as I have included a judicial monitoring condition on your CCO, you will be required to return to court after your release date for me to see how you are progressing. Your corrections officer will write a report for the Court which will detail your progress. This will hopefully be an incentive for you to show the Court that you are committed to your rehabilitation. I formally announce that that date will be 26 February 2018 at 10:00AM.
108Before I finish, when I was reading my sentence I announced, I am told, the maximum penalty for unlicensed driving. I think I am told I said three years, of course it is three months' imprisonment. Is there anything else, counsel, arising?
109MR LAWRENCE: No.
110MS CAVKA: No, Your Honour.
111HIS HONOUR: All right, look, I have before me a request from, I think it is Seven News to provide CCTV and photos. Is the person from Channel 7 News - all right.
112VOICE (from body of the court): Here, Your Honour.
113HIS HONOUR: Also the record of interview. Look, there was no CCTV tendered or photos tendered on this plea and as for the record of interview he made "no comment" as you doubt you have heard in my reasons. Do you have anything further to say about that?
114VOICE: Ah, I'll put it into the basis that they'd been previously tendered.
115HIS HONOUR: Sure. All right if there is nothing else if you could take the prisoner away please. Adjourn the court.
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