Director of Public Prosecutions v Hayes
[2024] VCC 2099
•17 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-01573
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRONSON HAYES |
---
JUDGE: | His Honour Judge Dempsey | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2024 | |
DATE OF SENTENCE: | 17 December 2024 | |
CASE MAY BE CITED AS: | DPP v Hayes | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2099 | |
REASONS FOR SENTENCE
---
Subject:Criminal law- sentencing
Catchwords: Violent public offending of robbery, causing injury intentionally and criminal damage. Victim Impact. Breach of Family Violence Safety Notice. Aboriginal accused. 32 years of age. History of deprivation and extensive cannabis use. Minor prior criminal history. Onset of psychosis. Verdins. Successfully treated in custody. Plea of guilty. Remorse. Good prospects. Suitable for CCO as part of combination sentence.
Legislation Cited: Crimes Act1958, Sentencing Act1991, Family Violence Protection Act2008, Mental Health and Wellbeing Act2022.
Cases Cited:The Queen v McKee and Brooks [2003] VSCA 16; Bugmy v The Queen [2013] HCA 37; DPP v Drake [2019] VSCA 293; DPP v Hermann [2021] VSCA 160; Verdins (2007) 16 VR 269; Byast v The Queen [2021] VSCA 344; Boulton v The Queen (2014) VR 308.
Sentence: Combination sentence of 16 months followed by 2 year CCO with conditions. PSD declared at 309 days. S.6AAA: 3 years 6 months with a non-parole period of 2 years 4 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G Mohammed | OPP |
| For the Accused | Mr T Glass | Sullivan Braham |
HIS HONOUR:
Introduction
1Bronson Hayes, you have pleaded guilty to the following charges on indictment Q10331813:
# Charge Legislative Provision and Maximum Penalty 1 Attempted Robbery on 12 February 2024 on Sandeep Kushawa
10 years imprisonment 2 Intentionally cause injury on 12 February 2024 to Sandeep Kushawa s 18 of the Crimes Act 1958 (Vic).
10 years maximum
3 Robbery on 12 February 2024 on Amy Laidman. 15 years maximum
4 Criminal damage on 12 February 2024 of property belonging to Amy Laidman. 10 years imprisonment 2You have also agreed to have this court deal with, by way of a plea of guilty, the related summary offences, namely 9 and 10, that are as follows:
# Charge Legislative Provision and Maximum Penalty RSO 9 Contravene Family Violence Safety Notice on 12 February 2024 by being within 5 meters of the protected persons s 37(2) of the Family Violence Protection Act 2008
2 years imprisonment.
RSO
10Contravene Family Violence Safety Notice on 12 February 2024 by being within 200 meters of the home of the protected persons s 37(2) of the Family Violence Protection Act 2008 (Vic)
2 years imprisonment.
3This offending largely involves a frightening public episode of violence and menace, as well as breaches of a family violence safety notice, or 'FVSN'. Until one sees the full state of your very poor mental health, it occurs ostensibly without explanation.
4Once material relating to your psychiatric profile is considered though,[1] the picture changes. You were in all likelihood an undiagnosed (and hence untreated) paranoid schizophrenic in the months leading up to the offending.
[1]Exhibit 2: Northern Health Mental Health Discharge Summary dated 5 January 2024; Exhibit 3: Report of Dr Ryann Chia Regarding Fitness for Interview dated 24 January 2024 together with interview notes; Exhibit 4: Psychological Report of Megan Rodgers dated 25 August 2024.
5Now in custody as a first-time remandee, you have been diagnosed with paranoid schizophrenia for which you are properly medicated.
6You have a background of real adversity and deprivation. You have a very modest prior criminal history and a decent work history. You have other prospects too. You have improved yourself in custody, in ways that are more than simply showing that you are amendable to treatment.
7Make no mistake, this is serious offending. Mr Mohammed, on behalf of the Crown, understandably submits that the only appropriate penalty in these circumstances is one involving a head sentence with a non-parole period.
8Mr Glass, who very ably appeared on your behalf, contended that a combination sentence, that is, one involving a term of imprisonment, followed by a long and tailored community correction order (CCO) is the more appropriate penalty.
9I favour the latter option. My reasons for doing so follow.
BACKGROUND[2]
[2]Taken substantially from Exhibit A: Summary of Prosecution Opening dated 18 November 2024.
Parties
10You were born in February 1992. You usually lived in Banool Street, Preston.
11The first victim in this matter is Sandeep Kushawa who was 30. The second victim is Amy Laidman who was only 23.
12At the time of the offending, you were the respondent to a FVSN, where the affected family members were Leonie Baksh, Wundarra Baksh and Djyka Hayes. The family violence safety notice was served on you on 6 February 2024, with full exclusion conditions including:
(a) not to be within five metres of the protected persons; and
(b) not to be within 200 metres of the address in Preston.
13Furthermore, at the time of the offence, you were on bail to appear at the Melbourne Magistrates' Court for offences of attempted carjacking, aggravated burglary - person present and theft of motor vehicle, all of which are said to have occurred on 8 January 2024.[3] I note you are not charged with breaching bail.
[3]You are not charged with offending whilst on bail.
The instant offending
14On 12 February 2024 at about 5.50 pm you attended Northland Shopping Centre with L. Baksh, W. Baksh and D. Hayes. You were in a black Holden Captiva, registered to L. Baksh of Banool Street, Preston. This is summary Charge 9, contravene family violence safety notice.
15You exited the vehicle holding a pair of red handled scissors and entered Northland Shopping Centre. You were apparently armed because of your paranoid state at the time.
16At about 5.53 pm, Mr Kushawa finished his shopping, paid for his groceries at the Coles staffed checkout and stopped with his trolley near the self-serve checkouts to send a friend a text message from his mobile phone.
17You were standing some distance away with the protected persons, at the front service counter, spinning the scissors around in your hand. This was in contravention of the Family Violence Safety Notice, where you were not to be within 5 metres of the protected people.
18Without any warning or notice, you approached the victim and grabbed hold of his mobile phone, attempting to steal it. He held onto his mobile phone, escaped, and ran off to Coles staff and security who were at the front service counter for assistance. (Charge 3, attempted robbery)
19You chased after Kushawa, striking him in the back, shoulders and arms with the scissors causing multiple cuts and lacerations. You both fell to the floor where you continued to stab him with the scissors. (Charge 1 – Intentionally cause injury)
20The photos of the victim[4] show the various physical injuries he suffered from this attack. It is frankly miraculous the wounds are not more serious.
[4]Bundle of Photographs (Photographs 1-14 taken by DSC WRIGHT).
21Bystanders at Northland ran over and intervened in the assault by pulling you off the victim. One removed the scissors from your hands and threw them away.
22Young Ms Laidman was standing near the entrance to the self-service registers at the time of the assault. She was holding her mobile phone in her hands, attempting to call Northland Shopping Centre Security for assistance.
23You then stood up and approached her, punched her mobile phone out of her hand. The force caused her immediate pain to her wrist and further caused her to drop her mobile phone on the floor.
24You picked up her mobile phone and threw it against the fire hydrant, cracking the screen before stealing it as you walked away from Coles. (Charge 2 – Robbery).
25L. Baksh, W. Baksh and D. Hayes followed after you, with L. Baksh locating the scissors and then concealing them in her handbag.
26As you approached the exit, you snapped Ms Laidman’s mobile phone in half, destroying it. (Charge 4 – Criminal damage).
27Not only did you break the phone, you cut your hand and it bled. The blood that dripped along the ground was later matched to you via forensics.
28You left Northland Shopping Centre with L. Baksh, W. Baksh and D. Hayes in the Captiva.
29This whole incident was captured on closed-circuit television from Northland and Coles.
30At 6.05 pm, L. Baksh, W. Baksh and D. Hayes returned to the Banool Street address where police were tasked to attend and speak to them regarding the incident.
31L. Baksh, your then partner, refused to cooperate with police and told them she attended Coles at Northland to get cigarettes and observed two males, both unknown to her, wrestling. She stated the males knocked her while they were wrestling, and she yelled ‘stop’. She then stated she took her children and left Northland Shopping Centre in her car and no one else was with her.
32She further advised police that they could find the children’s father, i.e. you, at an address in Northcote but would not advise his name or why she was providing this information.
33Later police attended Northland Coles and observed Kushawa with a ripped T-shirt, small stab wounds to his back and elbow and lacerations to the back of his neck and torso.[5]
[5]Bundle of Photographs (Photographs 1-14 taken by DSC WRIGHT).
34At 6.20 pm you were observed on Banool Street, Preston, bringing yet a further contravention of the family violence safety notice, by being within 200 metres of that address. You matched the description obviously provided of the offender at the shopping centre and were arrested on the spot. You were given your caution and rights and this also constitutes summary offence 10.
35At 8.15 pm, police attended Banool Street, Preston and spoke to L. Baksh, who finally confirmed that herself and you (and the children) had been at Northland, and she had witnessed the offence occur and that she had also had her phone taken and destroyed by you at one point.[6] She declined to provide a statement.
[6]Which is not a charged act, but places this offending into context. You appeared to be fixated and obsessed by the sinister properties of phones.
36You were transported to the Preston police station for interview. You refused to speak and refused to be assessed by a forensic medical officer.
37You answered 'no-comment' to questions put to you.
Victim impact
38Two victim impact statements have been furnished in this case. Mr Kushawa[7] is now acutely aware and sometimes suspicious of his surroundings. He worries about his safety and the safety of his loved ones. The possibility he might have been seriously injured or killed creates anxiety for him. There are permanent physical scars from your offending. He didn’t want to venture out into the world to do daily activities. He shopped online. He had to take time off to recover, though he has not yet fully put the events in February of 2024 behind him.
[7]Exhibit B- Victim Impact Statement dated 28 August 2024.
39Ms Laidman[8] is now scared and overwhelmed in public. She is suspicious of others and mentally maps out ways out in public places that she can escape in case there is a repeat of this kind of event. Anxiety takes over her at times, which makes it hard to function. She needed that phone that you took and broke. It was her means to be able to contact work and to reach out to others for support. It was not insured. She had to borrow money to replace it, all the while being unable to work.
[8]Exhibit C- Victim Impact Statement dated 13 August 2024.
40I have had regard to the serious and enduring impact of this offending on your victims when passing sentence.
Case history
41You were arrested and remanded on 12 February 2024 where you have been remanded ever since that date. You have spent about 10 months in custody to date. You pleaded guilty early. You are, as I said, a first-time prisoner. Your time in custody has allowed you to be free of cannabis use for the first time in many years, but it has also allowed mental health professionals to see you, assess you and finally diagnose and properly treat you.
MATTERS PERSONAL TO THE OFFENDER
Biographical details
42You are a 32-year-old Gunaikurnai man. You were born in Bairnsdale and grew up in Lakes Entrance. You have ten siblings, eight of which are older and two of which are younger. You lived with your family until the age of 16 when you left to live with your partner, Leonie Baksh, and her family. You were in a relationship with Ms Baksh that has since ended, and you have three sons aged 14, 13 and 9. She has another son from a previous relationship. Prior to your remand, you all lived together.
43You had a good relationship with your parents until the end of primary school. They used alcohol and drugs, and it was their increased use that caused the marriage breakdown.
44At the age of 12 you were sexually abused by a cousin. This deeply affected you and you kept that secret for many years.
Education
45You ceased education in Year 7, where you disengaged due to the sheer degree of instability at home. You struggled with listening at school and were not always as attentive or engaged as you could be.
Employment
46You commenced work as an adult through a groundskeeper's role at Kangan TAFE. This was a traineeship you did not complete.
47You then worked as a factory worker and as a tyre fitter.
48When you are released from custody, you intend to reconnect with old work at Epping K-Mart where you worked in their dispatch area. You believe you will still be able to get a job there through your contacts.
Substance use
49You commenced using cigarettes at the age of 12. Within 12 months you were using cannabis. You could not have hoped at that age to have understood the long-term impact using that drug would have.[9] You have been using cannabis consistently up until the time of remand. It is an aspect of your makeup shaped by deprivation that explains much about your current predicament.
[9]The Queen v McKee and Brooks [2003] VSCA 16.
50You commenced alcohol use at the age of 14 and would engage in drinking on weekends with friends when underage. After you turned 18 you commenced drinking daily. There were periods where you did not drink for up to six months at a time, but you never fully ceased.
51At the age of 20, you commenced smoking methamphetamine for about two years. You have used sporadically since this time
Prior criminal history
52Despite the personal and drug history I have just mentioned, you do not have the kind of prior criminal history one might ordinarily expect.
53At the age of 32, you had been to Court only three times before, all in the Magistrates’ Court and the most recent of those five years ago. You had never had a conviction recorded against you before, which gives one a sense of the comparative lack of seriousness of your prior offending.
(a) In 2014 you received, without conviction, a bond for handle stolen goods:
(b) In 2018 you received a non-conviction fine for theft; and
(c) In 2019 you received a non-conviction bond for assault.
54You honoured all of those undertakings. You had never breached bail or any other court order for that matter.
55This gives some weight to the contention that something changed in late 2023 or early 2024, and that is almost certainly the onset of a serious mental illness.[10]
[10]There are pending matters that I will come to in a moment.
Mental Health
56Your mental health has unravelled in the most unfortunate ways, literally within a period of a few months. Though you may not be the best of historians given the state you were in, as best that I can ascertain, something violent happened to your young son which destabilised you severely.
57On 5 January 2024, you were assessed by Northern Health (in their discharge summary of the same date)[11] as having auditory and visual hallucinations and paranoia regarding the safety of your family. This had been going on for around three months. Whatever had happened to your son had apparently brought to the surface your own childhood abuse and brought about hypervigilance and endless worry in you.
[11]Exhibit 2: Northern Health Mental Health Discharge Summary dated 5 January 2024.
58You had worsening hallucinations, persecutory ideas, paranoia, in that you thought you were being followed, you thought you were being tracked by those who sought to harm you, that your house was bugged and even that your pets were being used to track and monitor you. You barely slept. Your cannabis use increased then and you expressed a genuine desire to seek help. You had been on medication in the past, but it is unclear what effect it had on you, how long you took it for, what it is and when exactly you ceased. That medication you were on is not how you are medicated now. Your judgement generally was so obviously impaired in the opinion of those who assessed you, yet you did not meet the criteria for treatment or hospitalisation under the Mental Health and Wellbeing Act 2022.
59Within three days, on 8 January 2024, you had been arrested for charges of aggravated carjacking and the like, where it seems you tried to steal a taxi to help you get your children away from some unknown perceived harm. Police were concerned that you were simply unfit to be interviewed. The accompanying report by the forensic medical officer at that time is instructive.[12] You were slow to respond to questions. You believed you had been ‘set up’ by the Italian tenor Andrea Bocelli, that the mother of your children was dead (when she was very much alive and deeply concerned about your worsening mental state).
[12]Exhibit 3: Report of Dr Ryann Chia Regarding Fitness for Interview dated 24 January 2024.
60You were seriously deluded and disorganised in your thinking by this time. It was clearly getting worse. You had apparently installed cameras around the house, nailed the windows shut to keep unknown intruders out. Your previous medication was mentioned again in the context of this assessment but in different terms, that is of dosage and duration of use, to that which was discussed above. Your marijuana use remained the same. The forensic medical officer said you were clearly unfit and recommended you be assessed by a mental health professional. It seems ultimately you were bailed, but you were not assessed and/or properly medicated.
61Weeks later, this offending occurs on 12 February 2024. Some aspects of this offending speak for themselves. Consistent with the way you were presenting, when you went out in the world, you were armed with a pair of scissors against potential threats[13], and it is only once people produced their phones, you attacked them. There is no dispute that at the time you offended, you were psychotic.
[13]See Exhibit 7: MHARS report dated 11 December 2024. You told the MAHRS assessor they were from your then partner’s bag.
62Unlike most robberies, you did not demand the phone by way of threat. You did not give any ultimatums of force to the victims if they were not handed over. Instead, you instantly tried to seize them and showed no interest in keeping them for your own use or sale, such as one often sees in robbery offences. Convinced that the victims with their phone posed some kind of threat to you and your family, you forcibly grabbed them or smashed them from their hands.[14] In the case of Mr Kushawa, you went on to attack him in the deluded belief he still posed some kind of threat.
[14]Exhibit 4: Psychological Report of Megan Rodgers dated 25 August 2024.
63You were remanded in custody after this. Only then were you diagnosed with paranoid schizophrenia, a diagnosis that Ms Rodgers[15] says is appropriate. You are further suffering from symptoms consistent with anxiety and depression and meet the criteria for PTSD and substance use disorder of alcohol and cannabis in remission.[16]
[15]Exhibit 4: Psychological Report of Megan Rodgers dated 25 August 2024 at [36].
[16]Exhibit 4: Psychological Report of Megan Rodgers dated 25 August 2024 at [36].
64You are now medicated with olanzapine, which is the gold standard medication for schizophrenia. You feel like that medication has made a significant difference in you. It is working well, and you deny experiencing any negative side effects.
65Ms Rodgers says you are engaged to some extent with Northern Area Mental Health Service which are not clear to me, but you have apparently built a rapport with a case manager who had visited you at home. You reported positive relationships with a GP and local pharmacist, suggesting that you are willing to engage with support services in relation to his intended abstinence. To that end, you have insightfully made enquiries on your own about a stay at Galiamble, a culturally appropriate residential rehabilitation unit.[17]
[17]Exhibit 6: CCO assessment report dated 11 December 2024.
Pending matters
66You have two briefs of evidence in the summary stream that are to be pleas of guilty soon on 20 December 2024. They relate to:
(a) Theft, aggravated burglary (person present) and attempted carjacking which relate to the incidents I mentioned or alluded to earlier on 8 January 2024; and
(b) Criminal damage, leaving the scene of an accident without stopping that is said to have occurred on 22 April 2023.
67One can see that the relatively minor driving matter is in early 2023, but the more serious of the offending falls squarely in the period where you have a serious, undiagnosed and untreated mental illness.
Custody
68You were remanded on 12 February 2024 and as I said you have been on remand ever since. You have been productive in custody as evidenced by the many certificates of completion of courses I was provided with.[18]
[18]Exhibit 5: Bundle of Certificates Attained in Custody
69Though your relationship has broken down and your former partner has
re-partnered, you are able to live with a relative, Ms Holly Gordon, who is present in court. She and her family live in Northcote and will support you upon your release. I consider this significant.70Most importantly, you have been receptive to treatment.
MATTERS OF PRINCIPLE
Offending
71One aspect of your offending obviously involves a frightening episode of public violence. The events not only occur in public, but they are also, as
Mr Mohammed rightly points out, occurring in front of your own children. Though your motivations are unusual, for the robbery offences particularly, they are only properly understood by your mental illness. They are still serious.72I reject the submission the offences were planned in any way. At the time of the offending, you were suffering from the delusion that the innocent victims were intending to harm you or your partner and/or your children. You disclosed to the CCO assessor that during the offending period 'I was paranoid. I thought people were following me and going to hurt my kids'. You reported believing the victims were 'going to grab my son and as such I attacked him'. This does not speak of entering the world in the sense of going to a crowded shopping centre, planning, or anticipating an attack on your children.
73This was the continuation of the delusions you were experiencing around this time relating to strangers coming to your house and being followed. Ms Rodgers suggests that at the time of the offending, your psychotic illness as well as substance abuse contributed significantly to the offending.[19] There is no dispute that this is so.
[19]Exhibit 4: Psychological Report of Megan Rodgers dated 25 August 2024 at [31].
74The way you attacked Mr. Kushawa was especially serious. It had the potentiality for great harm to be caused. In reality, it caused physical and mental harm. It could have been far worse.
75The harm you caused Ms. Laidman too cannot be understated.
76I accept that you were living with Ms Baksh and your children. It appears that she was especially concerned about your mental health, to the extent that she tried to shield you from consequences when dealing with police. The family violence safety notice was imposed in February 2024, at a time when you were severely unwell, and I expect behaving in a most concerning way. You told the CCO assessor you had not really given much thought to the order, as you were living with your family, and from your psychosis I infer that you thought you were a protective factor rather than a risk to them. The reality is that you were in breach of a court order preventing you from having any contact with them. Family violence safety notices are only effective if they are obeyed. You did not obey it. The order lasts until August 2025. I expect it to be honoured.
77I have had regard to the maximum penalty available in each instance as indicative of the way Parliament sees the seriousness of these offences.
78Principles of punishment, deterrence, protection of the community, denunciation and rehabilitation all have a role to play in the sentencing exercise here, though the weight to be given to each sentencing purpose differs and needs to be carefully considered. No one sentencing purpose dominates to the exclusion of others.
79I have taken a parsimonious approach in sentencing you. I have also had regard to the principle of totality when assessing your total criminality and the interaction between the events represented by the charges on the indictment and the related summary offences.
Plea of guilty and remorse
80You indicated that you would plead guilty at an early stage in the proceedings, when the matter was still in the Magistrates' Court.[20]
[20]These matters are triable summarily, but I can well understand why summary jurisdiction was refused in this case.
81You demonstrated a willingness to accept responsibility for your conduct and have facilitated the course of justice. It has saved not just the expense of a trial but spared the victims from having to give evidence in any proceedings. Your plea has real utility.
82But more than that, your conversations with Ms Rodgers evidence your genuine remorse.[21] As does your remark to the CCO assessor that the victims here would have been scared.
[21]Exhibit 4: Psychological Report of Megan Rodgers dated 25 August 2024 at [28].
83Your sentence will be meaningfully discounted as a result of the course you have taken and the attitude you have shown towards your own offending.
Bugmy
84You were exposed to a dysfunctional childhood where your parents’ consumed alcohol and drugs regularly. As I said earlier, drug and alcohol use was normalised. You have consumed various substances since a very young age. You left the house frequently in your early adolescence and completely by the age of 16. You were sexually abused when you were young, which had a profound impact on you.
85In Bugmy v The Queen[22] the High Court considered the sentencing principles applicable to an Aboriginal man who's early years of background have been beset with alcohol abuse and violence. It considered that the experience of growing up in an in an environment surrounded by alcohol abuse and violence may leave a mark on a person throughout their life. Amongst other things, a background of that kind may compromise a person’s capacity to mature and to learn from experience. It is a feature of the person’s makeup and remains relevant to the determination of the appropriate sentence notwithstanding the person has a long history of offending. I pause here to note you do not have such a history.
[22]Bugmy v The Queen [2013] HCA 37 at [43]
86Similarly, in DPP v Drake[23] the Court of Appeal applied Bugmy principles in the following way:
'In particular, profound dysfunction, disadvantage and abuse experienced by the respondent during his formative years were relevant to an appropriate evaluation of his moral culpability. As recognised by the High Court in Bugmy, those experiences, none of which were of his making, all played a significant role in shaping the respondent’s personality and his responses. As a consequence, his subjective culpability, for the offending in which he engaged, could not be equated with that of a person who committed the same offence but had had the advantage of a normal, stable and regular home environment during his or her childhood. In that way, those factors constituted an important mitigating circumstance in the determination of the respondent’s sentence.'[24]
[23][2019] VSCA 293.
[24][2019] VSCA 293, 14-5 [32].
87The impact of disadvantage is complex, multilayered, non-linear and not easily diagnosed or measured.[25] It was submitted quite rightly that your moral culpability should not be assessed in the same light as someone who did not experience the disadvantage you did, and the Crown accepts that this is so. Hence, your moral culpability falls to be assessed in circumstances where you have experienced profound deprivation.
[25]DPP v Hermann [2021] VSCA 160 at [45].
88Importantly, though, Mr Hayes, you have not lived in such a way that means your criminality is entrenched, nor have you squandered dispositions designed to reform you such that I can only protect the community by removing you from our number for an especially long period of time. You are capable of reform under the right circumstances and such reform, if successful, will be the most enduring of all forms of community protection.
Verdins
89Mr Glass relies on the Verdins[26] principles. Fundamentally, as I understand it, it is the recent diagnosis of paranoid schizophrenia that is the cornerstone of this argument, although PTSD plays a role as well.
[26](2007) 16 VR 269.
90Ms Rodgers offers the following opinions regarding you that are relevant to my assessment of the application of the Verdins:
(a) The evidence indicates that you were suffering from a psychotic illness at or around the time of the offence. In particular, the delusional belief that the victim intended to harm your partner.
(b) A custodial sentence may weigh more heavily on you, especially given the anxiety and paranoid delusions associated with this condition, than it would a person who does not experience psychotic illness.
(c) It is possible your diagnosis of paranoid schizophrenia may justify a less severe sentence, considering the impact of your psychotic illness on your offending behaviour and the potentially detrimental effect of a custodial environment on your symptoms.
91It is submitted that notwithstanding your cannabis use, you were suffering from a psychotic illness at the time of the offending and there may be a reduction in your moral culpability and the need for general and specific deterrence.
92Further, it is said a sentence of imprisonment would weigh more heavily on you than a prisoner who does not have such an illness.
93Given your prior history of cannabis use I add, without behaving in such an extreme way as you did here, I am not convinced your psychotic behaviour is simply drug-induced alone, although it is very difficult for me to disentangle this. That is to say, to determine where the drug use ends and the mental illness begins.
94It appears inescapable that both your cannabis use and the onset of schizophrenia (both undiagnosed and untreated) contributed significantly to these events before me.[27] I consider this matter to be different from those where an offender is acutely aware, because of long standing diagnosis of mental illness, that they are susceptible to relapse and offending if they continue to use illicit substances, but do so anyway. You had no such longstanding diagnosis and, as I said, your mental health unravelled very quickly.
[27]Report of Dr Ryann Chia Regarding Fitness for Interview dated 24 January 2024 at [56].
95The effect of any impairment on moral culpability, that is to say, your actual blameworthiness, will be a matter of degree.[28] The mitigatory effect of your mental illness is reduced based on your drug use and the principles in Byast.[29]
[28]Exhibit 1: Defence Submissions dated 4 December 2024 [55]-[57].
[29]Byast v The Queen [2021] VSCA 344 at [39]-[42].
96Your diagnosis does, in my view, have a bearing on the kind of sentence I impose, and I have favoured a longer period of supervision in the community by way of a combination sentence, than the imposition of a head sentence and non-parole period in order to cater for your own specific treatment requirements.
97There will be a modest reduction in weight to be given to general and specific deterrence because of the onset of your schizophrenia at the time of your offending. I query whether you are truly a completely proper vehicle through which to deter others. I find for other reasons that a measure of specific deterrence has been achieved already.
98I accept that a custodial sentence will weigh more heavily on you, especially given the anxiety and paranoid delusions associated with the condition you suffer from, than it would a person who does not experience such an illness.
Prospects of reform
99Given your age, work history, limited prior history, efforts at reform within custody[30] the onset of mental health issues prior to this offending, you still have good prospects of rehabilitation which are linked to the engagement with services for mental health and substance abuse. I note with some optimism your level of insight as to the state of your mental health and how it may be worsened by drug use. I hear the words of caution of Mr Mohammed as to how your prospects for reform are allied in many ways to your capacity to keep being treated.
[30]As evidenced by the certificates of courses that have been filed with the court as Exhibit 5: Bundle of Certificates Attained in Custody
Disposition contended for
100It was submitted you have good prospects of reform should you be afforded the opportunity to complete a CCO. You do not have a long history of breaching court orders, and the orders you did breach are both recent and explicable by virtue of your complete mental decline.
101It is submitted that an order of this nature could be targeted towards mental health and drug use, which are the two of the most important considerations for your reform.
102It was sensibly accepted by your counsel that any sentence imposed must have a component of imprisonment and therefore a combination sentence is appropriate after I weigh up all of the matters in mitigation.
Suitability for combination sentence
103You were assessed as suitable for a CCO.[31] You were cooperative, consistent in the description of your health and circumstances and there were no barriers to your compliance identified.
[31]You were assessed as high risk of general offending which I query given your history.
104No transitional issues were identified at the time of assessment. You intend to reside with your cousin in Northcote upon release from custody. I have concluded that a measure of date certainty of your release in these circumstances is more likely to be conducive to a smooth transition for you into the community into appropriate services.
105The MHARS assessment is also insightful, especially confirming the efficacy of your medication, your desire for treatment (including counselling) and your insight into the inter-relationship between drugs and poor mental health. You were self-investigating, as I said, a stay at Galiamble.
106The author of the MAHRS report indicates:
'Mr Hayes could benefit from ongoing GP review of his mental state and the efficacy of his medication regime. Mr Hayes could benefit from participating in culturally safe and trauma informed psychology with a focus on learning simple, practical skills and strategies to self-manage his mood and thoughts and deal adaptively with stress and distress. Mr Hayes could also benefit from psychoeducation about the causal link between substance use, stress, a chaotic lifestyle and a vulnerability to experience psychotic symptoms.
If indicated, a GP could refer Mr Hayes to a psychiatrist for diagnostic clarification and any treatment recommendations.'
107The author then went on and suggested:
(a) An ongoing GP review of your mental health and physical state and the efficacy of medication. He nominated a GP at VAHS in Epping.
(b) That the GP or mental health practitioner, and referral to a culturally safe, trauma informed mental health counsellor, would be of benefit.
(c) Alcohol and drug counselling to support your goal of ongoing sobriety.
108I have incorporated the tailor-made suggestions for you into my reasons and the conditions I impose upon your release.
Analysis
109The combination of a term of imprisonment and a CCO provides a more flexible sentencing option, enabling both punishment and rehabilitation purposes to be served together.[32] Such a penalty can be imposed even for serious offences if the circumstances warrant it.
[32]Boulton v The Queen (2014) VR 308.
110Having balanced and weighed the necessary considerations, in my view, the combination of your age, modest criminal history, Bugmy considerations, recent onset of serious mental illness for which you are being treated, prospects for rehabilitation, plea of guilty, and suitability for such a disposition, compel such an outcome.
111It appears to me that I can denounce your conduct, punish you, deter you and others, and foster any conditions that might assist in your reform by imposing a combination sentence, comprising of a term of imprisonment together with a long CCO with onerous conditions that are both tailored and specific. You have not served enough time in custody at present in my view.
112Make no mistake, the CCO I impose will be lengthy and it will require your ongoing commitment. It is tailored to your needs and restrictive in its operation. It is designed to address the very issues that bring you here, as well as serving as an ongoing punishment. That is to say, the punitive aspect of this sentence does not cease simply once you are released from prison.
113In many ways, your life will not be your own for the next few years. You will be the subject of this court’s supervision until 2027, more than three years after you offended.
SENTENCE
114Provided you consent, I intend to convict you and sentence you to a term of imprisonment of 16 months,[33] followed by a two-year community correction order.[34]
[33]The order complies with s.44(1) of the Sentencing Act 1991 as the custodial part of the combination sentence being determined after time served has been deducted. Younger v The Queen [2017] VSCA 199.
[34]Section 44 Sentencing Act 1991, see also s.40.
115Every community correction order, including this one, contains core conditions. They are:
(a) You must not commit another offence punishable by imprisonment during the period of the order.
(b) You must comply with any obligation or requirement prescribed by the regulations.
(c) You must report to, or receive visits from, the Secretary during the period of the order.
(d) You must report to Reservoir Community Correctional Services within two working days of the commencement of the order. That would be upon your release from prison.
(e) You must notify the Secretary of any change of address or employment within two working days after that change.
(f) You would not be able to leave the State of Victoria, except with the permission of the Secretary.
(g) You must comply with any direction given by the Secretary necessary for them to give to ensure that you comply with the order.
116The conditions that apply in addition to those mandatory ones are helpfully informed by the recommendations of the CCO assessor and the MAHRS assessor:
(a) That you be the subject of supervision by the Office of Corrections.[35]
(b) You complete 160 hours of unpaid community work over the duration of the order of two years.[36]
(c) In order to encourage you, I propose to order that 60 hours of treatment and rehabilitation successfully undertaken would be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
(d) You would undergo assessment and treatment (including testing) for drug abuse or dependency as directed.[37]
(e) You would undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed.[38]
(f) You would undergo assessment and treatment for mental health as directed.[39]
(g) You would engage in offender behaviour conditions.[40]
(h) You would be judicially monitored by me.[41]
[35]Section.48E Sentencing Act 1991.
[36]Section s.48C. See also s.48C(A).
[37]Section 48D (3)(a).
[38]Section 48D (3)(a).
[39]Section 48D(3)(e).
[40]Section 48D(3)(f) – designed to address potential family violence issues.
[41]Section 48K.
117If you were to breach the order in any way, either by committing another offence or by not complying with any of the core or special conditions, you would be charged with breaching the order.
118The offence of breaching a CCO carries a maximum penalty of three months' imprisonment, but Mr Hayes that would be the least of your concerns. If you were to breach the order, you would come back to court and you would be re-sentenced for the original offending. You would be advised to avoid that at all costs.
119I can only impose the sentence I have just announced providing you consent, Mr Hayes. Do you consent?
120OFFENDER: Yes, I do, Your Honour.
Ancillary Orders
121By way of ancillary orders, I will order compensation in the sum of $1,300 to Amy Laidman for her phone.
Pre-sentence Detention
122I will declare 309 days' pre-sentence detention as reckoned as served under s18 of the Sentencing Act 1991.
Section 6AAA
123But for your plea of guilty, Mr Hayes, I would have sentenced you to a total effective sentence of three years and six months' imprisonment and ordered you serve not less than two years and four months' imprisonment before you became eligible for parole.
124Any matters?
125MR MOHAMMED: No, Your Honour.
126MR GLASS: No, Your Honour
127HIS HONOUR: Give us a few hours, you will have an unrevised copy if it does not have the typographical errors that mine has.
128MR MOHAMMED: Thank you, Your Honour.
129MR GLASS: As the court pleases.
130HIS HONOUR: Can I thank counsel for your considerable help in this matter. Does Mr Hayes need to sign the order? All right. Would you like me to leave Mr Hayes on the line to give you some privacy along with his cousin?
131MR GLASS: If that would be possible, that would very helpful. Yes, thank you.
132HIS HONOUR: All right. You have about six months to go, Mr Hayes. Do you follow that?
133OFFENDER: Yes, Your Honour.
134HIS HONOUR: And within about two months of you being released, you will have your first judicial monitoring.
135OFFENDER: Yep.
136HIS HONOUR: So that will be in eight months' time from today. Can we select a date in eight months' time now? Your first judicial monitoring will be on 18 August 2025 at 9.30 am. It will be done via video link. Corrections will explain how to do that.
137OFFENDER: Yep.
138HIS HONOUR: All right. All good? What is wrong? It will not be on 18 August because I will not be here. Sorry about that. Apparently, I am entitled to go on leave. 26 August at 9.30 am and on that date, Corrections will tell me how you are going and you will tell me how you are going.
139OFFENDER: Yes, so what day will I be released?
140HIS HONOUR: You will be released after you serve a year, so you still have six months to go.
141OFFENDER: A year? Yep.
142HIS HONOUR: And within about two months of your release, you will have your first judicial monitoring in front of me which is when you attend, the Office of Corrections attend, virtually speaking, and I am informed of how you are progressing on your CCO.
143OFFENDER: Yep. Okay.
144HIS HONOUR: All right. But Mr Glass will explain that in more detail when I leave the Bench.
145OFFENDER: Okay. Thank you.
146HIS HONOUR: All right.
147MR MOHAMMED: May it please the court.
148MR GLASS: As the court pleases.
149HIS HONOUR: Thanks everyone.
‑ ‑ ‑
0
8
0