Director of Public Prosecutions v Guy, Daniel

[2013] VCC 580

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-02203

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL GUY

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2013
DATE OF SENTENCE:	29 April 2013
CASE MAY BE CITED AS:	DPP v Guy, Daniel
MEDIUM NEUTRAL CITATION:	[2013] VCC 580

REASONS FOR SENTENCE
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Subject:         Criminal Law  
Catchwords: Armed robbery, burglary; knife held at staff of pharmacy; tablets and cash taken; prisoner suffers long-standing paranoid schizophrenia
Legislation Cited: Mental Health Act 1986; Sentencing Act 1991
Sentence:     18 month’s imprisonment, NPP 8 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Jones
For the Prisoner	Mr J. Lowy

HIS HONOUR:

1       Daniel Guy, you have pleaded guilty to one charge of armed robbery and one charge of burglary.  You committed these offences on 5 September 2012 at Bendigo. 

2       You visited the premises of Vanstan's pharmacy that day and “cased” it, returning a short time later wearing a jacket, the hood of which you pulled over your head.  You produced a kitchen knife and approached the counter where you demanded steroids and confronted a female member of staff.  Two other women were also working in the shop at the time.  A member of staff gave you some Prednisolone tablets.  You then demanded that the till of the cash register be opened saying you needed some cash and you were given $80.

3       You left the pharmacy and threw the knife into the garden and then returned to your sister's house where you had been earlier that day and from where you had obtained the knife.  You then used the money to buy alcohol and to gamble. 

4       At about 11 pm that night you went to the Healthworks Medical Centre and used a rock to break the glass door.  You entered the building and searched through cabinets for cash and medication but found none.  By this time you had taken 20 or 30 of the Prednisolone tablets and had drunk three-quarters of a bottle of whisky. 

5       You were arrested the next day and were interviewed by the police.  As to the armed robbery you made full and frank admissions in the interview and expressed remorse also indicating that you knew what you were doing was wrong.  You explained that you had felt a strong need for steroids owing to a long-standing dependence upon them, however, you declined to comment on the burglary.  Following the testing of DNA found at the premises you pleaded guilty to that charge. 

6       Your background is that you are aged 27, a single man who has, since your teenage years, suffered from schizophrenia.  A report from the Mental Health Review Board as to your status as an involuntary patient prepared in August 2012, immediately before these offences were committed, provides some background details. 

7       You were classified then as an involuntary patient on a community treatment order and you were living at Vahland House in Bendigo.  Your mental state at the time was described as being subject to some paranoia with impaired insight and judgment.  Your recent admission in early July last year had been brought about by a relapse of schizophrenia and polysubstance abuse.  Over a number of years you have been admitted to psychiatric wards some 20 times, initially for drug-induced psychosis.

8       You were raised by your mother and stepfather, one of four children, your father having left the family when you were a baby.  You were subjected to physical abuse as a child and at the age of 13 you began using steroids and later marijuana, alcohol and benzodiazepines. 

9       You attended six primary schools because of the frequent moves by your family but you were popular at school due to your sporting ability.  However, by year 9 you were in frequent conflict with teachers and with your peers and you left school aged 15.  You then worked in casual employment.  You have a criminal history dating back to 2002 when you were about 18 and you were sentenced to three years in a youth training centre for attempted robbery at that time. 

10      Since then you have been convicted of dishonesty offences often connected with motor vehicles and various other offending for which you have served a number of prison sentences.

11      When combined with hospital admissions, it appears you have spent considerable periods in institutions.  You have been remanded in custody in the Thomas Embling centre since your arrest. 

12      You suffer from some other health problems, including meningioma, a brain condition which required surgery, in 2011, and for which you are still treated as an outpatient at the Alfred Hospital.  You have been treated in the past with a blood transfusion for a gastric ulcer and you have a history of hepatitis C as well. 

13      You pleaded guilty to these charges at an early stage and so you are entitled to a discount on your sentence for that because it has avoided a trial and importantly the witnesses have not had to give evidence.  You said in your interview that you knew you had done the wrong thing and you explained it through desperation because you thought it was the only way you could get the steroids you wanted.  You had yourself admitted to the Alexander Bayne Centre the previous night and had been discharged the next morning, subject to a community treatment order.  You had requested steroids but this had been refused.

14      The members of staff at the premises, the subject of the charges, describe your behaviour and its effect upon them in the statements they made to the police at the time.  They heard you say that you were just as scared as they were and that you did not want to hurt anyone, and the staff member who gave you the drugs and money thought you were a psychiatric patient and she was not frightened by you.

15      A Forensicare report has confirmed the diagnosis of paranoid schizophrenia which is described as partially treatment resistant because of your refusal to take clozapine which is said to be the most appropriate medication.  You object to taking it on the basis of side effects.  You are presently being treated with depot injections of risperidone and your mother has reported that you are presently doing very well and your mental condition has markedly improved. 

16      These charges are, of course, very serious and call for prison terms which will address the need for general deterrence, that is, to deter others from similar offending.  Specific deterrence is also important.  But the existence of a treatment plan, together with demonstrated improvement in your mental health are factors which somewhat ameliorate what might be a greater concern otherwise about the risk of reoffending. 

17      The use of steroids and your continuing need for them, combined with your own recognition the night before the offending that you needed to be in hospital suggests that your judgment at the time of the offending was indeed impaired.  That has the effect of reducing your criminal culpability by some degree and therefore serves to moderate the need for general deterrence in this particular case.

18      The prosecution submission as to sentencing is for a head sentence of 18 to 24 months and a nonparole period of between six and nine months.  You have now been in custody for 236 days, not including today, which is almost eight months.  The priority for your rehabilitation is your continuing care and treatment at Thomas Embling and that will be of benefit to you and in the longer term for the community as well.

19      I ask you to stand please, Mr Guy.  I sentence you to 15 months' imprisonment for the charge of robbery and 12 months for the charge of burglary.  Three months of the sentence imposed on charge 2  will be served in cumulation upon the sentence for Charge 1 resulting in a total effective sentence of 18 months.  I order that you serve a minimum of eight months before being eligible for parole.

20 This means in effect that you will be returned to Thomas Embling today and you will remain there for a period of time as an involuntary patient subject to the Mental Health Review Board under s.16(3)(b) of the Mental Health Act 1986.

21      You will be continuing to serve this sentence for approximately the next four days.  You would then be eligible for parole, but that would not be able to take effect because of your status as an involuntary patient.

22      I know that it takes some time for the Parole Board to address a case when in effect time served is given to a prisoner but your circumstances are different from someone who is actually in a prison.  If there is any need to address, I might have a word with Mr Lowy and Mr Jones at the end of this, Mr Guy, I will see.

23 Under s.6AAA of the Sentencing Act I am required to state the sentence I would have imposed if you had pleaded not guilty to these charges. I would have sentenced you to two years' imprisonment with a nonparole period of 12 months.

24      There is an application by the prosecution for a disposal order in relation to the knife.  Mr Lowy, I do not have a note as to whether that was opposed or not.

25      MR LOWY:  It is consented to. 

26      HER HONOUR:  It is consented to and I make that order.  Were there any other ancillary orders, Mr Jones?

27      MR JONES:  None that I can think of, Your Honour.

28      HER HONOUR:  No.  All right, thank you. 

29      Is there anything either counsel want to say about the way I've constructed the sentence?  No, Mr Lowy?

30      MR LOWY:  No, Your Honour.

31      HER HONOUR:  No, Mr Jones?

32      MR JONES:  No, Your Honour.

33      HER HONOUR:  All right, I think that deals with everything then.  Thank you. 

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