Director of Public Prosecutions v Gatherer
[2022] VCC 2190
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01187
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MASON GATHERER |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 NOVEMBER 2022 | |
DATE OF SENTENCE: | 9 NOVEMBER 2022 | |
CASE MAY BE CITED AS: | DPP V GATHERER | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2190 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Theft – Armed robbery – Plea of guilty – Covid-19 – Verdins – Bugmy – Worboyes.
Legislation Cited: s5 Sentencing Act 1991 (Vic).
Cases Cited:Brown v The Queen [2020] VSCA 60; Bugmy v The Queen [2013] HCA 27; R v Mills [1998] 4 VR 235; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169;
Sentence: 216 days’ imprisonment with a 15 month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | A. Liantzakis | The Office of Public Prosecutions |
| For the Accused | P. Pathmaraj | Victoria Legal Aid |
HER HONOUR:
1Mason Gatherer, you have pleaded guilty to one charge of theft and one charge of armed robbery. You also agreed to this Court hearing two summary charges of committing an indictable offence whilst on bail.
2The full circumstances of your offending was set out in the agreed prosecution opening of 11 October 2022 and marked as Exhibit A on the plea.
Circumstances of the offending
3On the morning of 4 April 2022 you attended the Liquorland store at Greensborough Plaza.
4Once inside the store, you asked the victim whether various items were in stock at the rear of the store and sought recommendations for pre-mixed alcohol. At this time, Mr Delic entered the store.
5You handed the victim a four pack of Woodstock pre-mixed drinks. The victim turned around and took the item to the register. You and Mr Delic then both attended the register, paid for the alcohol and then left.
6The victim then reviewed the CCTV footage which showed that while his back was turned, you took a bottle of Tullamore Dew Irish Whiskey from the shelf and placed the bottle down your shorts, ultimately leaving without paying for it. The bottle is valued at $54.00 and is the basis of Charge 1, theft. The victim then alerted security.
7Later the same morning, the victim was serving a customer when you returned to the store carrying a white plastic bag.
8The victim recognised you as the male who had earlier stolen the bottle of whiskey and asked you to leave the store. You said to him, ‘I will stab you’. He told you he was calling security and you replied ‘go ahead’.
9You took a bottle of rum from the shelf and the victim stated that he would call police. You said, ‘go ahead, I’ll stab you anyways’ and turned towards the victim, lifting your shirt, displaying a black handled knife tucked into your waistband. You then placed the bottle of rum into your plastic bag.
10You took a further two bottles of rum from the shelf and placed them in the plastic bag before you left the store without paying and this, in brief, constitutes Charge 2, armed robbery.
11You walked outside the shopping centre and looked back towards the victim who was on the phone to security. You yelled at the victim and kicked the glass windows at the front of the store before leaving the area on foot.
12The items stolen by you were two bottles of Bundaberg Red Rum and one Bottle of Bundaberg Overproof Rum with a total value of $158.00.
13Both the initial theft and the armed robbery were captured on CCTV, which was played in Court and marked as Exhibit C.
14The victim alerted security and telephoned police following the incident.
15At the time of the offending you were on bail, having been bailed by the Heidelberg Magistrates’ Court on 14 January 2022 to appear on 8 April 2022.
16At 11.36am police intercepted a blue 2013 Holden Commodore registration ‘2JUICY’ on Main Street, Greensborough after observing the vehicle deliberately lose traction. Mr Delic was driving and you were the front passenger. Police observed the bottles of liquor but at the time were unaware of the earlier offending. The police ended up impounding the vehicle.
17On 14 April 2022 police arrested you at your residence. You were conveyed to the Mill Park Police Station for interview. Some of your answers are outlined at paragraph [6] of the prosecution opening. You stated that you had no recollection of most of the week leading up to the incident and that you were under the influence of Xanax.
18During the interview police photographed your leg tattoos which matched that shown in the Liquorland CCTV footage and body worn camera footage.
19On 19 April 2022, police executed a search warrant in relation to Mr Delic’s impounded vehicle.
Police located a serrated knife with black handle under the front passenger seat where you were seated, matching the description of the knife used in commission of the armed robbery.
.
Nature and gravity of the offending
20The charge of armed robbery is an inherently serious one as reflected by the maximum sentence prescribed by Parliament. As submitted by the prosecutor, Ms Liantzakis, the principle of general deterrence assumes considerable significance for this offence given its prevalence, particularly for offending committed against ‘soft targets’, as was the case here. While I have not received a victim impact statement, I accept that the victim would have been fearful and scared that you would follow through with your threats, as indicated in his police statement. Your victim was simply doing his job, and he was entitled to a level of safety and security.
21Overall though I do accept your Counsel, Mr Pathmaraj’s submission that this is a relatively low-level and unsophisticated example of the offence of armed robbery. While you re-attended the liquor store I accept that the circumstances of the offending suggest that you did so intending to steal more alcohol and not to commit an armed robbery. You were alone at the time, and were not disguised or concealed in any way. You started taking bottles of alcohol and then upon being confronted by the victim, you momentarily lifted your top to show the knife tucked into your waistband. You never removed the knife or brandished it. I also accept that this offending, where you stole just over $200 in alcohol, occurred in the context of your growing dependency on alcohol.
Plea of guilty and remorse
22You entered a plea of guilty at the earliest opportunity, the first listing of the committal mention. You have spared the victim, and other witnesses, the distress and ordeal of a protracted court proceeding and of having to give evidence. Your plea indicates your willingness to facilitate the course of justice and has important utilitarian value. As your plea is also entered at a time where the Court is still suffering the consequences of the Covid-19 pandemic it will result in a ‘perceptible amelioration’ of sentence.[1] Further, I accept that your plea is indicative of remorse, which is also consistent with the statements you made to the police and Mr Jeffrey Cummins.
[1] Worboyes v The Queen [2021] VSCA 169.
Personal circumstances
23Your personal history was outlined in detail in the report of Mr Jeffrey Cummins and by your Counsel, Mr Pathmaraj. You are 23 years of age and your history is one of profound childhood deprivation. As a child you did not receive the support and security that you were entitled to and it’s significant harmful impact on your life has been enduring.
24I won’t go through all of the distressing details of your background, they are well canvassed in Mr Cummins’ report and by your Counsel.
25You have never met your biological father. You have three younger half-brothers and have a close relationship with your 19 year old brother, Sebastian, who is currently employed as a carpenter. You grew up with your mother and she had several different partners, most of whom were violent. You lived with her in housing commissions and also at times refuges, when escaping violence. You were exposed to extreme domestic violence as a child and also were the direct victim of assaults and physical and sexual violence.
26At around the age of 13 you were placed in foster care. While this offered a form of reprieve from the domestic violence, it didn’t offer any real stability. It exposed you to more negative peers, drugs, and a transient lifestyle.
27You started using drugs at 13 and from that very young age you were a heavy user of Xanax and methylamphetamine. On some occasions you would purchase drugs and then use them with your mother at home.
28Consequently, along with the many moves and instability your schooling was interrupted and you ultimately left in Year 10.
29After leaving residential care at around the age of 17 you tried living with your mother again but she didn’t want contact with you and ended up taking out an intervention order. It seems she may have ongoing drug issues and possibly a bipolar mood disorder. It is this order that accounts for the various breaches of intervention orders in your prior criminal history.
30From that time onwards you were effectively homeless or otherwise leaning on friends or associates who were involved in drugs or crime. By that time you had also developed a dependency on methamphetamine and were smoking the drug regularly.
31In early 2021 you were released from the three month sentence imposed on 16 December 2020 and you were again homeless. You lived for a short period at the Comfort Inn in Watsonia. On 3 March you were interviewed and charged by police in relation to an incident where you attempted to harm yourself in fairly extreme circumstances. You were on Watsonia Road, acting erratically and when police attempted to engage you, you said you had a knife and then started to slash your neck with the knife, and then you started slashing at your face with a piece of glass. You were conveyed to the hospital and then after being medically and psychologically cleared you were conveyed to police. You have a history of self-harming behaviours and suicide attempts. This particular incident was referred to by your Counsel because of the insight it offers as to the level of your previous distress, anguish and struggles. It is also around 2021 that you started smoking heroin and you developed an addiction to it.
32You have a relatively limited work history. You’ve undertaken part of a bricklaying apprenticeship and also completed a Certificate III in Civil Construction. You’ve had some work in construction and you were last doing asphalting and concreting work on a casual basis up to approximately four months prior to your remand.
33Your last residential address was in Thornbury and you had been living at that accommodation for approximately nine months prior to your most recent remand. This accommodation is provided through Melbourne City Mission and Unison Housing.
34You were also in a relationship with Tameeka, who is aged 22. You have known her since you were 18 but have only started a relationship in the last year or so. She works as a manager with Woolworths and currently resides in your home. She has also attended your Court hearings in support of you and you have had regular phone contact while you have been on remand.
35In the week leading up to the current offence, you told Mr Cummins that you had been consuming large quantities of Xanax with alcohol. You told him that you used Xanax ‘because they blank out my past – but when I take Xanax my memory for what I’ve done becomes patchy’. At the time of the offending, you were under the influence of both alcohol and Xanax. You told Mr Cummins you were shocked that you had committed an armed robbery.
Prior history
36You have a relevant prior criminal history which commences in the Children’s Court and which is largely reflective of your drug and mental health difficulties over the years. You have a prior history for criminal damage, dishonesty, violent offences and offences under the Bail Act. You have previously been sentenced to adjourned undertakings, Community Corrections Orders (“CCO”) and short terms of imprisonment. Your prior history is particularly relevant to an assessment of specific deterrence, your prospects of rehabilitation and community protection. I note that this period on remand represents your longest experience of custody. I also note that you have no prior criminal history for offences of armed robbery.
Other factors in mitigation
37Your Counsel, Mr Pathmaraj, went through and relied upon a number of additional mitigating factors on your behalf.
Bugmy principles
38I accept that the Bugmy[2] principles have application in your case. I accept that your ‘moral culpability is less than the culpability of an offender’s whose formative years have not been marred’ in the same way. Your deprived background is relevant to my sentencing task; it moderates your moral culpability and is also relevant to my assessment of your prior criminal history.
[2] Bugmy v The Queen [2013] HCA 27.
Mental health
39As previously noted you have a history of self-harming behaviour and you’ve had contact with mental health services over recent years. You have attracted various diagnoses and have been prescribed the mood stabiliser/antipsychotic Seroquel and also the antidepressant Avanza as well as Valium.
40You are currently prescribed anti-epileptic medication Epilim and the mood stabiliser/antipsychotic medication Risperidone. You speak with a psychologist/psychiatric nurse on a fortnightly basis.
41Mr Cummins considered it likely that you suffer from a Borderline Personality Disorder[3] and is of the opinion that you suffer from a Major Depressive Disorder which is recurrent in type and of moderate severity and associated with fears of traumatisation.[4] Mr Cummins also considered that you are at risk of being diagnosed with an Antisocial Personality Disorder if you continue to offend.
[3] Exhibit 2, paragraph [38].
[4] Exhibit 2, paragraph [51].
42Mr Cummins also offered the following opinion at paragraph [53] of his report:
In my opinion his mental health problems are only likely to be exacerbated the longer the time he spends in custody.
43On the basis of this material and your mental health conditions, I accept that Verdins[5] limbs five is enlivened in your case, and I take it into account, along with limb 6, in that your condition will likely be exacerbated the longer you spend in custody.
[5] R v Verdins [2007] VSCA 102.
Youth
44You are 23 years of age. While you are not a young offender under the Sentencing Act your youth remains a relevant consideration. The Courts recognise that young people may be more prone to ill-considered or rash decisions and also recognise the potential for youthful offenders to be redeemed and that their effective rehabilitation in the long term better protects the community from further offending. I take these principles into account in sentencing you[6].
[6] R v Mills [1998] 4 VR 235.
Time in custody
45Your Counsel made the submission that custody has been more onerous because of the Covid-19 pandemic, and measures taken by Corrections. You have been remanded since 14 April 2022. Since this time you have spent multiple and lengthy periods in lockdowns. During these periods you have only been able to have five minute phone calls, every second day. I accept that the prison environment has been strictly controlled and that this has represented an additional burden for you during your period on remand.[7]
[7] Brown v The Queen [2020] VSCA 60, [48].
Prospects of rehabilitation
46Your Counsel submits that your prospects of rehabilitation cannot be regarded as bleak or poor and that your rehabilitation must still be facilitated in some way on sentencing. In broad terms, I accept this submission.
47You do present with a number of risk factors, including your relevant prior criminal history, your previous drug use, lack of family supports and your history of failing to comply with previous rehabilitative focused community based orders. Also, Mr Cummins considered that you presented with limited insight into the seriousness of the offending to which you are pleading guilty.[8] Having so observed, he did however form the opinion that you did feel guilty, embarrassed, ashamed, shocked and remorseful regarding your offending behaviour.
[8] Exhibit 2, paragraph [52].
48I accept the prosecution submission that in light of these factors your prospects are guarded. However, as the prosecutor Ms Liantzakis, properly and fairly pointed out, there are also protective factors that weigh in your favour, including your current housing, your current engagement with mental health treatment in custody and your youth.
49Importantly, you do have stable housing which I consider critical to your rehabilitation. Without a stable roof over your head your ability to live a productive and law abiding life will be severely compromised. This is the first time you have had stable housing in about eight years. You are at risk of losing that accommodation because you have been in custody now for nearly six months. The letter from Ms Kitty Wilson of Melbourne City Mission confirms that your lease is ending on 20 November 2022 and if you are still in prison at that time you will lose your current housing and you will not receive another property through this program.[9] She also explains the other significant benefits of her program. She offers case management which involves weekly home visits, assistance with referrals to other relevant health services and support services as needed.
[9] Exhibit 3.
50It is also critical that you receive drug and alcohol and psychological assistance. In the Forensicare report that the Court obtained of 9 November 2022 a strong recommendation made was that you continue to engage in mental health treatment as well as alcohol and drug support and counselling in the community. This will support you in preventing your re-offending, as well as harm minimisation and encouraging better coping mechanisms.
51Mr Cummins assessed your risk of committing a further violent offence using the HCR-20 as Moderate-High. He considers it imperative that you complete an anger management program or similar program. You apparently acknowledged that your risk factors related to unresolved feelings of anger and frustration regarding your dysfunctional upbringing and your drug problems.
52You told Mr Cummins that you are now prepared to receive mental health treatment, as indicated by your current contact with a psychologist/psychiatric nurse while on remand.
Sentencing principles
53The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation, denunciation and protection of the community. In my assessment of these principles and their weight I have also considered the Bugmy principles, your youth, and the application of the Verdins principles, as they apply in your case.
54
I take into account the sentencing guidelines referred to in s5 of the
Sentencing Act 1991(Vic) where relevant to your case. I also have regard to the current sentencing practices for the offence of armed robbery and in particular I have had regard to the cases referred to by Counsel.[10] No case is precisely like yours but I sentence you in that general landscape.
[10] R v Harrison [2008] VSCA 65; DPP v MacFarlane [2018] VCC 182; DPP v Dertilis [2018] VCC 379; Galea v The Queen [2020] VSCA 69; DPP v Ahern [2020] VCC 245; DPP v Richards [2020] VCC 1832.
55In sentencing you I also take into account the principles of proportionality, parsimony and totality, noting in particular that the offending occurs within a confined period of time and a similar set of circumstances.
56Both Ms Liantzakis and Mr Pathmaraj accept that a term of imprisonment is warranted for the offending and of course this is correct. While I have assessed the gravity of your offending to fall at the lower end, I again make it clear that the charge of armed robbery is an inherently serious offence. Your Counsel submits that a custodial sentence could be imposed that would see your release in the very near future and that the Court can sentence you in a manner that does not jeopardise your current housing. The prosecution submits that it is open to the Court to impose an immediate term of imprisonment in combination with a CCO.
57I had you assessed for a CCO and you were assessed as suitable for such an order. You presented as motivated and told the assessing officer that you would comply fully with the program conditions of a CCO if given a further opportunity by the Court. A number of conditions were recommended.
Sentence
58Taking into account all relevant matters, you are convicted and sentenced as follows:
59On Charge 1, which is the theft charge, you are sentenced to 30 days’ imprisonment.
60On Charge 2, the armed robbery charge, you are convicted and sentenced to a total term of 216 days’ imprisonment, which is the period of time Counsel agree you have presently served. This will be combined with a Community Corrections Order of 15 months duration.
61I will come to the terms of the order shortly but I will indicate that this order will be largely a therapeutic one, I do not propose to attach a work condition.
62HER HONOUR: Continuing on the charges of breach of bail, there are two charges. You are convicted and sentenced on each to seven days' imprisonment. Charge 2, the armed robbery charge, which is the 216 days combined with the 15-month CCO is the base sentence.
63All sentences to be clear are to be served concurrently with that base sentence. So it arrives at a total term of 216 days.
64Pursuant to s18 of the Sentencing Act 1991 (Vic), I declare that you have served 216 days, and I also indicate, pursuant to s6AAA, that but for your plea, I would have sentenced you to around a further eight months' imprisonment with a lengthier CCO.
65So that indicates, and should indicate to you, Mr Gatherer, clearly that you have received a full benefit and a substantial benefit for the way that you have dealt with this matter by pleading guilty. What this ultimately means, Mr Gatherer, is you are going to be released today, and as of today you will be released on a community corrections order. Okay?
66OFFENDER: Thank you.
67HER HONOUR: That allows you a few days to sort yourself out, and particularly to reclaim your housing and to make sure that you can extend that lease. Okay? All right.
68So I also will make the disposal order that was sought for the knife and that was unopposed. All right.
69Now, Mr Gatherer, this is a remote hearing. I am required, which I will do now, to go through the conditions of the order.
70OFFENDER: Yep.
71HER HONOUR: Now you are required, is it Reservoir Community Corrections that is the closest one to you?
72OFFENDER: Yeah, yeah.
73HER HONOUR: You are also, there are core conditions that are imposed on a community corrections order and these, by core conditions these basically apply to all community corrections orders. All right.
74OFFENDER: Yep.
75HER HONOUR: So the first one is that you must not commit, during the period of the order, an offence punishable by imprisonment. You must report to and receive visits from community corrections during the period of the order which is 15 months. As I have already stated, you must report to the centre within two clear working days. So that really does bring us to by Friday. Do you understand?
76OFFENDER: Yep.
77HER HONOUR: So you might be best off going in there tomorrow and reporting. You must not leave Victoria except with a permission of corrections. You must comply with any direction given by corrections that is necessary to ensure your compliance. Okay? So they are the core conditions of the order.
78You must also, the additional conditions that I am imposing, Mr Gatherer, you will be subject to the supervision of corrections. Treatment and rehabilitation for alcohol issues. Treatment and rehabilitation for drugs. Treatment and rehabilitation for mental health. Treatment and rehabilitation programs to reduce re-offending. In summary, basically, treatment in relation to drug, alcohol, mental health issues and any programs that might help you. Okay?
79OFFENDER: Yep.
80HER HONOUR: The last thing I am going to do is I will impose a judicial monitoring condition and, again, you are not going to have to come back before me frequently within 15 months, but I will assess that as time goes on.
81I do want you to come back before me though before the end of the year to begin with, just so I can see how that transition goes. It is often the most difficult time for people to come out, after being in custody for a while, and get back into the community.
82OFFENDER: Yes.
83HER HONOUR: So that is going to be on the last sitting date of court, which is the 16th. So that will be 9.30 on 16 December. Mr Gatherer it will be a remote hearing and I just wonder how that will be facilitated. If you cannot get a link, if you do not have a computer, come in. On 16 December just come to court at 9.30. All right? All I will be told then is corrections will give me a report and hopefully I will be told that you are giving it a go and you are trying. Okay? So that will be a condition that you appear and then we will take it from there. It might be that I see you one other time if you are doing okay and that is it for judicial monitoring.
84In terms of a corrections order as well, Mr Gatherer, and I know that you understand this because you have got a history of being on them, if you commit another offence punishable by imprisonment, within the 15-month period, you will return for a breach and also resentencing and you risk getting a further term of imprisonment. Do you understand?
85OFFENDER: Yes, Your Honour.
86HER HONOUR: Okay. So, first of all, Mr Gatherer, do you understand the conditions that I am imposing?
87OFFENDER: Yes.
88HER HONOUR: Do you understand the consequences of breaching an order?
89OFFENDER: Yes, Your Honour.
90HER HONOUR: Do you consent to the order?
91OFFENDER: Yes.
92HER HONOUR: Okay. All right. Thanks, Mr Gatherer. Is there anything further, Ms Liantzakis?
93MS LIANTZAKIS: No, Your Honour. Thank you.
94HER HONOUR: Thank you. Mr Pathmaraj, anything further?
95MR PATHMARAJ: Not from my perspective, Your Honour, no.
96HER HONOUR: Counsel, thank you very much for your assistance from both of you in this matter. We'll adjourn.
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