Director of Public Prosecutions v Gates

[2017] VCC 1994

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION Revised
 Not Restricted
Suitable for Publication

CR-17-01581

DIRECTOR OF PUBLIC PROSECUTIONS

v

HEREWINI GATES

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JUDGE:	HIS HONOUR JUDGE WISCHUSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	6 December 2017
DATE OF SENTENCE:	20 December 2017
CASE MAY BE CITED AS:	DPP v Gates
MEDIUM NEUTRAL CITATION:	[2017] VCC 1994

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:              attempted armed robbery; intentionally cause injury
Legislation Cited:     Crimes Act 1958, Sentencing Act 1991

Cases Cited:R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43;
R v Verdins (2007) 16 VR 269.

Sentence:Convicted and sentenced to a total effective period of detention in a Youth Justice Centre for a period of two years. Section 6AAA declaration: total effective sentence of five years’ imprisonment with a non-parole period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Lee Ms S. Clancy	Office of Public Prosecutions
For the Accused	Ms S. Lenthall	Victoria Legal Aid

Pages 1 - 10

 

 

HIS HONOUR:

1Herewini Gates, you have pleaded guilty to one charge of attempted armed robbery, and to one charge of intentionally causing injury.  In addition, you have pleaded guilty to the summary charge of possessing a prohibited weapon and have agreed to have that summary matter dealt with by me. 

2The maximum penalty for attempted armed robbery is 20 years' imprisonment.  The maximum penalty for intentionally causing injury is ten years' imprisonment.  The maximum penalty for possessing a prohibited weapon is two years' imprisonment.

3The circumstances in which the offending occurred are set out in the prosecution opening for plea hearing, Exhibit 1.  Through your counsel you accepted the accuracy of the summary.  As there was no controversy about them, they may be shortly stated.

4On 9 May this year, Tyrone Kondis returned to the apartment block at which he resided in in Footscray.  He had reached the entrance alcove and was in the process of getting out his swipe card to open the security door when he saw you behind him in the reflection of the glass. 

5You then used a 25 cm shifter to strike Mr Kondis twice on the back of the head from behind.  He turned to face you and you said to him, "Give me your shit."  Mr Kondis raised his hands to protect his face and head and you struck him again, this time above the right eye and on his hands.  This cause Mr Kondis to fall to the ground and to start yelling for help.  You continued to demand that he give you “his shit" and you continued to strike him until he managed to get past you and escape to the relative safety of the café next door.  You then ran from the scene.  (Charge 1, attempted armed robbery, Charge 2, intentionally cause injury). 

6You were arrested and interviewed on 15 May and in the course of the interview admitted the offending, offering only the need for cash as the reason for your actions.  In the course of a search of your person on arrest, a multi-tool with an axe head was found and it is the possession of this that gives rise to the summary charge, Charge 3, possessing a prohibited weapon.  You have been remanded in custody since your arrest and indicated your intention to plead guilty at the earliest opportunity. 

7Your actions have cause lasting, physical and mental damage to the victim,
Mr Kondis.  The blows to the back of his head caused lacerations and scarring.  The blows to his hands caused bruising.  The blow to his head caused a fracture of his skull that required plating and screwing and caused the near complete detachment of the retina of his right eye which had to be reattached by surgery. 

8Unsurprisingly, his sense of security has been greatly damaged by your actions and his cautious and anxious approach to many aspects of what he used to regard as his ordinary day to day activities are described in detail in the victim impact statement tendered on the plea, Exhibit 2. 

9You are now 19 years of age and have admitted your criminal history, which comprises three sentencing occasions in the Children's Court.  In 2013 for intentionally damaging property.  In 2014 for a number of dishonesty offences and for similar offending in March 2016. 

10Mr Gates, I state to you that I have taken into account all the matters raised on your behalf by your counsel in the course of the plea, during which counsel spoke to a detailed chronology and outline of submissions which became Exhibit 3.  Very properly, your counsel began by acknowledging the profound effect your offending has had upon the victim, making the point that given your own psychiatric ill health, you could now well understand how it is to be fearful and anxious. 

11As to the gravity of the offending, it was submitted that this was an unsophisticated and opportunistic attempt at armed robbery as in the end you had achieved nothing from it and had used no disguise. 

12As to the matters to be taken into account in mitigation, that were the subject of submissions, I have, in particular, had regard to the following matters:  your plea of guilty entered at the earliest possible stage, I take to be an expression of your remorse for your actions and for the harm you have caused to Mr Kondis.  Further, your plea has saved the witnesses the stress, and the community the cost, of a trial and has facilitated the course of justice.[1]  You are entitled to have these matters taken into account in mitigation of penalty and I have done so. 

[1]On the first listing the plea could not proceed because of troubles at Port Phillip Prison. 

13I have taken into account your youth.  You are still only 19 years of age.[2]  I have taken into account your background and personal circumstances; these were set out in the course of the plea and in the psychiatric material tendered.

[2]I have had regard to the often repeated principles stated in R v Mills [1998] 4 VR 235. See also Azzopardi v The Queen (2011) 35 VR 43.

14Born in New Zealand, you relocated to Australia with your mother and two of your siblings when you were aged nine.  Your parents had separated when you were about five and your relationship with your father – who I was informed is presently in prison in New Zealand – has been distant at best and, at times, strained. 

15At various times during the slightly troubled procedural steps this plea has taken, your grandfather, stepfather and mother have been in court to support you on the plea. 

16On arrival in Australia, you attended two primary schools without problems, but at high school you ran into trouble when you were bullied by others and very unhappy.  At high school, you were introduced to cannabis and alcohol which you appear to have taken to with some enthusiasm.  Because of this, at the age of 14 you were sent back to New Zealand in an attempt to have you straightened out and you spent six months in college there without any obvious problems.

17Returning to Australia in 2013, you attended Karingal Create in Werribee, undertaking the equivalent of Year 10 and, for 18 months or so, you were doing quite well at school and were regular in your attendance.  After about 18 months a change in your presentation was noticed and you became uncommunicative and began mixing with different friends.  What followed were the three Children's Court appearances, each of which resulted in the imposition of a good behaviour bond with which you managed to comply. 

18At the age of 16 you were at Cove Training Solutions where you had obtained certificates in civil construction and licenses in bobcat operation and traffic management, with a view to obtaining employment in the construction industry.  There, you Ms Diamond and formed a relationship with her which continues, although it is now somewhat on and off. 

19You have not had much employment since leaving school, although you have had work from time to time as a labourer and at Aldi, where you worked unloading containers. 

20In 2016, you were introduced to methylamphetamine and very quickly fell into heavy daily use, in the context of difficulties in your relationship with
Ms Diamond.  At the beginning of 2017, your parents returned to New Zealand for a time and when they came back to Australia they found their house, where you were then living, had been trashed.  Your behaviour was erratic and your parents were concerned because of the effect your behaviour was having upon your siblings.

21Ultimately, after a physical altercation with your stepfather, you were thrown out of the family home.  Thereafter, you lived on the couches of friends until, eventually, you found accommodation at a youth refuge in Footscray.  In that time, you lost contact with your family and that contact did not resume until after you were taken into custody in respect of this offending. 

22In that period, that is after you left the family home and before this offending, it seems clear from the medical records and psychiatric reports tendered on the plea[3] that your mental health deteriorated.  In the week before this offending, you had been referred to Orygen Youth Health by the workers at the youth refuge where you were then living. 

[3]Exhibits 4 and 5. 

23At Orygen Youth Health you were treated for what their records describe as “the first episode of psychosis”.  On admission you gave a history of hallucinations for the past nine months, worsening in the last two, and that these auditory hallucinations were derogatory in nature. 

24The discharge summary from Orygen Youth Health shows that you were commenced on Risperidone to assist with the derogatory voices and paranoid delusions, and that you responded relatively well to this medication and that upon discharge, you appeared to them to be going reasonably well.  Although the records and reports are not very clear about this, it seems likely that you were still an in-patient at Orygen Youth Health, but on daily release, when these offences were committed. 

25In evidence was a forensic report from Dr Pandurangi.  Dr Pandurangi had available to her the discharge summary from Orygen Youth Health and the Justice Health records concerning your management whilst in the prison environment.  To her, you gave a history in relation to these offences that included, that at the time you were “stressing out” and you needed money “to buy ice and cannabis” and that you were paranoid and hearing voices at the time. 

26You told her that you were carrying the shifter for protection because people were after you.  Dr Pandurangi noticed that you have quite a strong family history for mental illness and that your use of illicit drugs was a likely contributing factor to it.  As to this last matter, she thought, because you had been drug free whilst on remand and treated, that the persistence of your psychotic symptoms to the time of her examination of you mean that drugs were not causally significant in the illness. 

27Dr Pandurangi thought your history was of psychotic symptoms for many months before your admission and her diagnosis was that you suffer from paranoid schizophrenia, characterised by persecutory and referential delusions, auditory hallucinations and disorganised behaviour.  She thought that the paranoid schizophrenia was an enduring mental illness and that you had little insight into it. 

28As to your mental state at the time of offending, on the basis of the history you gave her and the other contemporaneous medical material, Dr Pandurangi wrote, "I consider that he would likely be disinhibited and was unable to make calm and reasoned decisions.  However, from his conduct at the time, in my opinion, he would have understood the wrongfulness of his actions."

29Dr Pandurangi wrote that your illness would make incarceration more stressful for you but that what was achieved by incarceration was abstinence from drugs and regular medication, both of which are important to your continued general well-being.  She wrote that your history of mental illness, use of illicit drugs, limited insight and limited coping mechanisms were risk factors for future offending. 

30Also in evidence were the Justice Health records regarding your treatment whilst on remand.  They show your continuing management for a diagnosis of schizophrenia and that, for a time, you were treated as an in-patient at the
St Paul's unit at Port Phillip Prison.  There, you are now in the general prison population where you have been mostly compliant with the new antipsychotic medication you have been treated with.

31It was submitted on your behalf, and it was not really in contest, that all six Verdins[4] principles are engaged here.  On behalf of the Director, it is conceded that this was so, despite the gravity of the offending and, in particular, it was allowed by counsel of the Director that the weight to be given to deterrence as a sentencing consideration was reduced by the symptoms you had been suffering from at the time of the offending, and still suffer from. 

[4]R v Verdins (2007) 16 VR 269.

32In the course of submissions on the plea, discussions then turn to whether the anticipated term of imprisonment which, it was common ground was warranted for this offending, should be served in an adult prison or in the youth justice system.

33Noting that (at least) relative stability had been achieved in the adult system,
Mr Steve Riordan of the Youth Justice Department was contacted and, at very short notice, undertook to prepare a report in dealing with the ability of the youth justice system to manage you with the conditions from which you presently suffer. 

34Before turning to that, I should also mention that I was informed on the plea that your family is returning to live in New Zealand on a permanent basis early in the new year and that it was hoped that after completion of your sentence you would return to live with your family there.  For that reason, it was not submitted that the prospect of deportation would occasion any hardship to you.  It does mean that during your incarceration you will be without family support and it was submitted that this did have relevance to the sentencing disposition.  In the end of the sentencing submission was that if you were found to be suitable for a youth justice order, that was an appropriate sentencing disposition, and would meet all relevant sentencing principles. 

35At that point the plea was adjourned until today in order to receive Mr Riordan's suitability assessment report dated 19 December 2017, Exhibit 8.  In preparation of it, Mr Riordan interviewed you for a second time and liaised with those who had been involved in your management at Port Phillip Prison.  With a reservation, to which I will return, he assessed your prospects of rehabilitation as reasonable, but dependent upon compliance with medication, and wrote that you would be vulnerable and impressionable and subject to undesirable influence in an adult prison, noting that in the adult prison, you had been susceptible to being bullied into handing over your medication to others. 

36The reservation Mr Riordan expressed was put in these terms. 

“However there is one major and significant concern and that is, should Mr Gates become non-compliant with his medication as he has done before and he requires an admission to a (sic an) acute psychiatric unit. Malmesbury youth Justice Centre does not have a secure psychiatric unit and Mr Gates mental health would have to deteriorate to such a degree that he would become subject to a secure supervised treatment order and await an involuntary admission to a psychiatric hospital when a bed becomes available. This process could potentially take some weeks. This situation does not occur in the adult prison system where access to psychiatric services are far more accessible for acute patients. Regardless of where Mr Gates is to serve his sentence a robust mental health treatment regime will be required.”

37This morning, I raised these concerns with your counsel and was informed, after further instructions were taken, that you now well understand the importance of compliance to your mental health, and to your prospects of avoiding being returned to the adult prison system and that, in circumstances where you will not be the subject of being bullied out of your medication, which it is to be hoped will be the case in the youth justice system, that it is your intention to continue to take your medication on a regular basis. In the end, although not without some reservations, I have concluded the s.32 criteria of the Sentencing Act for a youth justice order have been met here. 

38Now, Mr Gates, against the matters to be borne into account in mitigation of penalty and the allowances to be made for your then and persisting psychiatric illness, must be balanced the fact that this offending, as the maximum penalties imposed by Parliament show, is very serious offending.  The attempted armed robbery, though fruitless, was committed in broad daylight outside the victim's home and your threats were accompanied by a savage attack with a weapon upon a defenceless young man. 

39The injuries he has suffered have had lasting consequences for him and his mental well-being and sense of security is, in my view, very likely permanently damaged.  Despite your youth and your mental state, I am nevertheless called upon by the Sentencing Act to manifest the community's denunciation of your conduct and to otherwise impose just punishment. 

40On Charge 1, attempted armed robbery, you are convicted and sentenced to a term of detention in a youth justice centre for a period of 18 months.  On Charge 2, intentionally causing injury, you are convicted and sentenced to a term of detention in a youth justice centre for a period of two years.  On Charge 3, you are convicted and discharged. 

41All sentences are to be served concurrently, and that makes a total effective sentence of two years' detention in a youth justice centre. 

42Pursuant to s.6AAA of the Sentencing Act, I state that had you been found guilty of these offences after a trial, I would have sentenced you to a term of imprisonment in an adult prison for a period of five years with a non-parole period of three years. I will check this with counsel but pursuant to s.18 of the Sentencing Act, I state that the period of time you have spent on remand in relation to these charges is 219?

43MS CLANCY: Sorry, s.35 when it is a youth detention sentence, but under the Sentencing Act.  But yes, 219 days.

44HIS HONOUR:  Yes, is 219 days correct?

45MS CLANCY:  Yes, Your Honour.

46HIS HONOUR:  Yes, is 219 days and it is to be reckoned as time served under the sentence I have today imposed and I direct that this fact be entered in the records of the court.  Now, 464ZF, there is an application for an order; is that right?

47MS CLANCY:  Yes, Your Honour, and an application for the disposal of the weapon.

48HIS HONOUR:  All right.  Are those orders opposed?

49MS LENTHALL:  No, Your Honour.

50HIS HONOUR: Now, Mr Gates, you have pleaded guilty to a forensic sample offence within the meaning of s.464ZF of the Crimes Act and the Crown's made an application to this court for a no order directing you to undergo a forensic procedure for the taking of an intimate sample.  I am informed you do not oppose the making of such an order and taking into account the seriousness of the circumstances of your offending, I am satisfied that the making of such an order is justified.  I regard the making of such orders as being very much in the community's interest. 

51Accordingly, I order pursuant to 464ZF(2) of the Crimes Act that you, Herewini Gates, undergo a forensic procedure for the taking of an intimate sample, namely saliva, in accordance with s.30A(3) of the Crimes Act.  I direct that a copy of the order together with a copy of my reasons be served upon you.  I am required to inform you that an officer of Victoria Police may use reasonable force to ensure compliance with this order.  Are there any other orders sought?

52MS CLANCY:  Sorry, Your Honour, just the disposal order.  But no other orders.

53HIS HONOUR:  Yes, and I will make the disposal orders, that is not opposed. 

54MS LENTHALL:  Thank you, Your Honour.  The only other matter is an appeals cost fund certificate from that first date, Your Honour.  Your Honour might recall, Your Honour, reserved costs.

55HIS HONOUR:  I did.  You wanted to make an application against Corrections.

56MS LENTHALL:  Yes, I did, Your Honour.  I have since reconsidered the matter and discussed it with my instructor and we have determined that it would be more appropriate for an appeals cost fund certificate.

57HIS HONOUR:  Yes, well I will grant you a certificate for the day on which he was unable to be brought to court.

58MS LENTHALL:  Thank you, Your Honour. 

59MS CLANCY:  As Your Honour pleases..

60HIS HONOUR:  Thank you for that.

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