Director of Public Prosecutions v Jacobs

[2019] VCC 470

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

AT MELBOURNE

CRIMINAL DIVISION

Case No.18-01529

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN JACOBS

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	8 April 2019
CASE MAY BE CITED AS:	DPP v Jacobs
MEDIUM NEUTRAL CITATION:	[2019] VCC 470

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Carolan	OPP
For the Accused	Ms T. Skvortsova	VLA

HIS HONOUR:

1       Dylan Jacobs, you have pleaded guilty to one charge of attempted armed robbery.  You are 37 years of age and you were 32 at the time of the offences in 2014.  It is notable that these offences are therefore some five years old.

2       On 13 February of that year at about 2.40 pm, two young men boarded a tram on Whitehorse Road, Box Hill, and came to sit close to where you were seated.  When they sat down you asked one of them if he had phone credit.  You then asked the other and they both stated they did not have credit because they were fearful.  You asked them if they did ice or weed, they replied they did not.  You then said to one of them that, "If I don't get what I want I'm gonna fucking kill you."

3       As one tried to leave you went close to him and stood face to face and said, "Sit down you're not going anywhere if you don't give me what I want in ten minutes I will kill you."  You then pulled a knife out of your pocket, it appeared to be a multi tool style knife with a blade.  You asked him to open his wallet.  The young man complied with the demand but there was no money in the wallet and you again repeated that if you did not get what you wanted he would not leave the tram alive.  And you told the other man to look away and cover his ears.

4       When the tram stopped both men ran off the tram, I should say though young men, school boys.  They heard people telling them to run and turn around to see you running and screaming towards them.  The men reported the matter to Metro officers and then to the police. 

5       Some months later in August of that year one of the young men was at Box Hill Centro Shopping Centre and believed he saw you and recognised you.  Police were notified and you were arrested.  On that day you were interviewed and you denied the offences.  You were then released.  In early September the second young man viewed a photo board and identified you as the man on the tram.  You had told police that in October of 2013 you had an accident in which you had broken your neck which required a halo for some three and a half months, that you had previously resided in Box Hill and that you had a Myki card.  Medical information obtained showed that in October you were hit by a motor vehicle and had multiple fractures in your neck requiring surgery and a halo neck support which was removed in early January 2014 after which you were on another type of neck support.

6       

You were charged on 10 June 2015.  The delay in this matter it was said was caused essentially by your failure to appear thereafter at multiple filing hearings and at committal mentions.  On 30 July 2018 at a committal case conference you pleaded guilty and the matter proceeded then by way of a hand-up brief.  You were remanded on this charge on 4 June 2018 and you were bailed on

3 July 2018.  These 29 days in detention will be declared as pre-sentence detention.

7       As I said you had been charged on 10 June 2015 and bailed at the first filing hearing, however you failed to appear on five occasions in the following three years and on each occasion a warrant was issued for your arrest.  The plea proceeded on 31 October 2018.  It should be probably noted that the reason for your failure to attending was that essentially you were living on the streets for large portions of those years.

8       Armed robbery is a very serious offence.  Attempted armed robbery carries a maximum gaol sentence of 20 years.  By this maximum the legislatures have indicated the gravity of the offence.  The circumstances of such an offence vary greatly and cover a significant different spectrum from one end to the other.  The circumstances of the offence here demonstrated seriousness.  The young men involved as victims were of school age, they were confronted by an older man on a moving tram and threatened while you held a knife and made demands of then.  Armed robbery attempts are despite as in this case their lack of ultimate success, fearful and terrifying experiences.  The victims were vulnerable and unable to easily escape in the confined space of a moving tram.  The attempt was made in public in broad daylight which would have caused consternation and fear in the public as demonstrated by the action of those who warned the boys to run as you chased after them.  The court must denounce this conduct as unacceptable and the community rightly looks to the court for protection.  School boys, and indeed all citizens, have the right to not be targeted and robbed by threat and force as they go about their day. 

9       The court received victim impact statements from the young men.  The court hears the aftermath of these violent events every day and the adverse effects on these two young men is of a nature which naturally follows such traumatic experiences.  The first to whom I shall refer to as ‘C’ writes of his anger and frustration.  For months he had trouble sleeping and when he slept he had nightmares.  He had issues travelling to school every day thereafter hypervigilant as to your presence in the places and on the route where the attempt took place.   You in fact walked into his place of employment and this caused him great fear and anxiety although this was not intentional.  As he had seen you in the area he was aware of the possibility of coming across you, heightening his sense of lack of safety and fear.  He took up martial arts to have some confidence about being out in public in the relevant area. 

10      The second young man to whom I shall refer to as ‘S’ also wrote a statement.  He writes of how helpless and useless to help he felt when you threatened his best friend.  Being out on the street caused him fear and anxiety which affected his lifestyle and his state of mind and I take the impact of your offending upon your victims into account.

11      I also take your circumstances into account.  The history of your background can be quickly summarised.  You were diagnosed with anxiety and depression at a young age.  At age 15 you were made to leave the family home which was clearly dysfunctional.  You were chronically homeless thereafter.  You were diagnosed with Hepatitis C at age 16 and have used drugs since that age.  In 2015 you commenced methadone treatment which is ongoing.  In 2009 you were hit by a car while riding a bike.  In 2013 as a pedestrian you were struck by a car again.  Both of these events have left you with ongoing health complications requiring hospital attendances including issues with your memory.  You have been unable to work since the last accident in 2013 although you had factory work before then.  You have a young son with whom you have intermittent contact.  At the time just prior to the plea you were not in stable accommodation and still using drugs.  You had few social supports, you had no family support and had no involvement in any community organisation.  You had no independent recollection of these events surrounding the attempted armed robbery but you did plead guilty.  I take your plea into account, although clearly it was not an early plea there is some utilitarian benefit derived from it.

12      I accept that you were and are remorseful for this conduct.  Your behaviour in court and in relation to this matter is indicative to me that you are deeply remorseful.  You apologised to one of the young men who was in court during your plea and wrote a letter to S in which you expressed your remorse that you caused anxiety and fear.  You said that as a sufferer of chronic anxiety over 20 years you understood its effect and asked ‘S’ forgiveness for your actions. 

13      In April 2016 you were linked into the Sacred Heart Mission's journey to social inclusion program, a program which provides a long term intensive case management support and service coordination to those who like you experience chronic homelessness.  In March 2017 you were allocated a house and unit which you maintain to date.  You have sought assistance available to deal with issues as they have arisen. 

14      With a support worker you went to the Prahran Police Station voluntarily in June 2018 and you were then remanded in custody in answer to the warrants I mentioned above.  Four days later you were sentenced at the Ringwood Magistrates' Court on unrelated matters to a 12 months' good behaviour bond and you have complied with that undertaking.  Whilst on bail since 3 July you have successfully engaged in the CISP program.  You have maintained tenancy through Sacred Heart Mission, you have engaged proactively with your case manager regularly attending treatment and monitoring appointments with AGB, and sought employment.  You are in remission for the Hep C and have not returned to drug use. 

15      At the plea I received your prior history, given your poor and disadvantaged background, your poor record is not surprising.  In 2004 you received a suspended sentence for threatening serious injury and possession of a weapon.  In 2007 you were placed on a community based order for dishonesty offences.  And in 2011 you received a four months' suspended sentence for attempted robbery.  The LEAP recorded noted on that occasion that you had had a psychiatric admission prior to the offending and you were also affected by alcohol and that you suffered from depression and ongoing health problems from the vehicle accident.  The court recommended a reasonable assessment and supervision to ensure safe custody.  On appeal the sentence was amended from partially to wholly suspended. 

16      On the plea and again this morning I received a letter from Dr Conrad Chiu, a GP who has known you for about 20 years.  He noted your troubled childhood which resulted in your homelessness.  He noted your severe heroin addiction at one point and that you had been stable on methadone provided by a drug addiction specialist since.  You are beset by chronic anxiety and depression and are prone to impulsive behaviour made worse by some paranoid delusions and hallucinations from time to time.  He noted your efforts to put your life back in order more recently.

17      Three references were received from Balsamana Odicho, the intensive care manager for the Journey to Social Inclusion program of the Sacred Heart Mission.  The first statement helpfully included the 2018 annual report from the Sacred Heart Mission as well as a research summary into chronic homelessness by Professor Flatau, Lisa Wood and others.  The first letter was dated 3 July 2018.  It noted you had been able to access long term permanent housing through the Department of Housing in Prahran and maintain that tenancy without issue since March 2017.  You had access Justice Correct in seeking assistance to clear the deck of any outstanding matter and you were referred to ARBIAS for neuropsychological assessment. 

18      The second letter was dated 29 October 2018 and in that letter Ms Odicho outlined a three year intensive case management, indicated that upon your release in July you voluntarily engaged on a weekly basis.  You demonstrated from July to October a willingness to proactively seek assistance including the neurological assessment, desire to work towards identified goals including one to reconnect with your son. 

19      The third letter is dated 8 April 2019 and I should exhibit it to your plea, was received during the hiatus.  Since October you have engaged with J2SI workers every month and have been proactive in completing set goals.  You have sought assistance through Relationship Australia to mediate a reconnection with your son.  You continue to see Dr Chiu which he has confirmed this morning you see him fortnightly.  You have completed a Better Access mental health plan to see a psychologist and are still in the accommodation provided which I was told this morning will be provided to you on a permanent basis.  A long term therapeutic routine is indicated to achieve long term stability.  The program is coming to an end in June and Ms Odicho opines that long term management is still required to coordinate health services such as Star Health which she has given you a long term referral, or NAMI National.  And it is clear your transition to independent living will be a crucial period.  It was noted that the neuropsychological assessment did not find an acquired brain injury but your symptoms are consistent with some neuropsychological deficits. 

20      Given your history and background I acceded in October of 2018 to a submission to defer sentence until late March to see you near completion of the program.  I am satisfied that you have carried yourself through that program adequately.  I am satisfied that the disposition which best provides a balance of all proper sentencing principles and takes into account the need to impose punishment as well as the long term protection of the community is a combination sentence of the time served and a Community Corrections Order for a further two years with the usual conditions of ongoing supervision and rehabilitative programs to deal with your mental health and drug use.  Such an order will hopefully provide management of the ongoing transition away from chronic homelessness and drug use. 

21      During this period of time Mr Jacobs you will be of good behaviour, and as well you will attend to appointments as directed for supervision.  You will continue to be monitored and assisted to continue to see your GP, to access health services and other services and this will ensure your current stability continues.  You will perform 80 hours of unpaid community work. 

22      But for your plea I would have sentenced you to ten months' imprisonment. 

23      I declare that the 29 days of pre-sentence detention be noted in the records of the court and noted as pre-sentence days.  I sentence you to 29 days' imprisonment to be followed by a Community Corrections Order in the terms which I have outlined.  An assessment will be made in the next couple of moments here at the court on the first floor for such a Community Corrections Order and when I receive that report which I may do by this afternoon I will then proceed to sign that order and complete the sentencing exercise.

24      I understand the appointment for Mr Jacobs is on the first floor of this court in one minute's time.  Thank you, I will adjourn until 2:00pm, pending receipt of a report.

(Short adjournment.)

25      HIS HONOUR:  Yes, I have received an assessment outcome report which finds Mr Jacobs suitable for a Community Corrections Order.  I will impose the conditions including some of the usual conditions of supervision and treatment and rehabilitation for drug and mental health.  I have mentioned 80 hours of community work and I will order as I am able to do that 40 hours of treatment and rehabilitation conditions satisfactorily undertaken may be accredited as hours of unpaid community work if they are undertaken, which is an incentive to engage in treatment supports. 

26      I will include a judicial monitoring condition and set a judicial monitoring date.

27      I understand that Mr Jacobs currently resides in Prahran and therefore he will be supervised by Moorabin Correctional Services Centre. 

28      It is noted in the report that Mr Jacobs has several physical ailments including historical injury due to vehicle accidents.  But there should be some capacity to perform some unpaid community work under the order that I have made depending on what the nature of that work is and I intend for the moment to have that work done. 

29      Judicial monitoring was explained to Mr Jacobs and he is amenable to this condition in order to provide a further incentive to comply with the Community Corrections Order. 

30      A drug treatment condition is recommended to assist him to engage in relapse prevention strategies.  And with the assistance of his general practitioner to continue to receive adequate treatment for depression, anxiety and any other mental health concerns. 

31      Mr Jacobs, I should tell you in no uncertain terms and this matter will be transcribed so I will have it for future reference, that this order is primarily designed to enable you a continuing opportunity to rehabilitate yourself in the community.  Your offending is serious offending and together with your priors the usual outcome in such a matter would have been for you to be sentenced to a period of actual imprisonment.  You were fortunate that you were able to enter into the program that you did and that you have steady accommodation.  There are still some improvements to be made in relation to your health and to consolidating your accommodation and employment.  I accept that you are remorseful for your offending but I need to tell you during the course of this offending, and I appreciate there is nothing pending before the courts, you need to be offence free.  That is you must be of good behaviour.  If you offend you will breach this order.

32      OFFENDER:  Yes, Your Honour.

33      HIS HONOUR:  If you do not attend appointments you will breach this order. If you do not attend other programs as directed or the supervision, or you discontinue your mental health treatment or drug treatment, you will breach this order.  The court will then bring you back before it and impose a penalty for the breach which can be a period of imprisonment.  And can also resentence you on this offence, do you understand?

34      OFFENDER:  I do Your Honour.

35      HIS HONOUR:  Right.  Judicial monitoring means that you will be brought back before me at a date that I will give you in a moment and at that time I will want to know that you have done all of those things satisfactorily and the order can continue.  It is designed specifically because in the long term benefit of the community is to ensure that you are rehabilitated and that you do not continue to reoffend.  I hope that that will happen.  I think it is possible for that to happen but you have really got to make a commitment.  Now I know that you have made a commitment pursuant to the Sacred Heart program, you need to now make a further commitment to the order that I am making for the next couple of years.  Yes?

36      OFFENDER:  When you say I'll be brought back before the court to see yourself, will it be yourself?

37      HIS HONOUR:  Yes.

38      OFFENDER:  Yep okay, I just want to be clear on that.

39      HIS HONOUR:  Yes it will be me.  And I will have this sentence transcribed and I will have a report from Corrections to tell me how you are going.  And it is important that on that occasion I am told that you are progressing well.  Do you understand?

40      OFFENDER:  Yes.

41      HIS HONOUR:  What is the date for a judicial monitoring?

42      ASSOCIATE:  Monday, 8 July, Your Honour.

43      HIS HONOUR:  Yes, I will fix the first judicial monitoring date on Monday 8 July at 9.30am.  Just step out of the dock Mr Jacobs for you to sign this documentation in relation to the Community Corrections Order, step out.  You will be given some papers, I suggest that you read it carefully and familiarise yourself with the obligations which pertain to it. 

44      MS SKVORTSOVA:  Would Your Honour excuse me so I can take my client through those?

45      

HIS HONOUR:  Certainly.  Just come and take a seat here behind your counsel.

Mr Jacobs, you don't have to be anchored to your history for the rest of your life, you don't have to be anchored and constrained by your background for the rest of your life.  You can make changes if you wish to.  You have already made changes.  The biggest thing is that you need to get off the drugs, you don't need them.  You can find work, you can stay in accommodation, you can deal with your issues.  Depression doesn't make you a freak, half the people in the community have depression and anxiety.  They can be regulated by medication.  You can get on with your life.  This was your last offence, you've dealt with practically everything that you need to deal with.  I know you have physical issues, you can deal with those too, you're still young.  I am giving you an opportunity to stay in the community because I'm confident that you can make a go of your future.  Do you understand?

46      OFFENDER:  I appreciate your confidence in me let me tell you.

47      HIS HONOUR:  Well that's one thing.  You need to have some confidence in yourself that you can do this.  Having a Community Corrections Order means that you've got someone there that you can talk to who is there to assist you.  It's not just there to supervise you but that you can talk to on a regular basis just like you do with Dr Chiu, just like you did with the lady from the Sacred Heart Mission.  There are people who will assist you but primarily you have got to assist yourself.

48      OFFENDER:  Yep.

49      HIS HONOUR:  All right.  Yes thank you.

50      MS SKVORTSOVA:  If Your Honour pleases.

51      MR CAROLAN:  One final matter Your Honour.  There's disposal sought with respect to the Myki card.

52      HIS HONOUR:  Yes, I will sign that order.

53      MS SKVORTSOVA:  That's by consent Your Honour.

54      HIS HONOUR:  Yes thank you.  Yes you are excused, I will continue with the trial.  Thank you very much.

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