Director of Public Prosecutions v Jamoral

[2017] VCC 1201

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

AT MILDURA
CRIMINAL JURISDICTION

CR-17-00316

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEVIN JAMORAL

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JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	25 August 2017
CASE MAY BE CITED AS:	DPP v Jamoral
MEDIUM NEUTRAL CITATION:	[2017] VCC 1201

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Mr G. Telefson

HIS HONOUR:

1Kevin Jamoral, you are to be sentenced for one charge of armed robbery.  The maximum sentence for that offence is 25 years' imprisonment.

2You pleaded guilty before me on 24 August.  When interviewed by police on 23 June 2016 you made a full confession.  In February 2017 committal went by hand-up brief, after which you entered a plea of guilty.  The matter was then listed for plea hearing in this court.  You receive the benefit of your plea of guilty and a high level of co-operation, both from the earliest time.  That has facilitated the interests of justice.  Your plea expresses remorse.

3At your plea hearing, also yesterday, Mr O'Doherty, for the Crown, tendered
a written Crown opening, CCTV footage of your offence, and the victim impact statement of Coleen Carmichael.  Mr Telefson, for you, tendered the letter dated 29 January 2015, and a report dated 16 June 2016 from your treating psychiatrist, Dr Zoran Radovic, the forensic psychiatric reports of Dr Fiona Best, dated 29 October 2016 and 30 January 2017, the psychiatric report dated 14 August 2017 by Carolyn Sims, who treats you at the Melbourne Assessment Prison, and the letter dated 11 April 2016 of mental health clinician Hannah Cairns.

4The circumstances of offending are set out in the tendered Crown opening, which is Exhibit A.  My own summary may therefore be shorter.

5At about 11 am on 22 June 2016 you committed an armed robbery at Fishers Fuel in Deakin Avenue, Mildura.  Your victim was Colleen Carmichael, who worked there.  After waiting for a customer to leave you moved into the building and jumped onto the store counter.  You were armed with a knife and disguised by a black stocking over your head.  Colleen Carmichael had seen you approach and had, herself, moved into that area.  You demanded and stole $540 and a packet of cigarettes.  You ran out.  Assisted by CCTV footage at the Mildura Law Courts,  police arrested you on the following day.  You had lost the money at a poker machine venue.

6The victim impact statement of Ms Carmichael is an understated but telling account of the effects of such crimes as yours.  I quote it in full:

"When I was confronted by this man crouching on the counter I was petrified.  He had a knife and I feared for my safety.  I was shaking and terrified, and gave him what he wanted because I was scared.  In the days after this I felt anxious and with a heightened sense of vulnerability.  I am now very conscious of people that are wearing hoodies; whether it is in the carpark at the supermarket or while I am at work.  I feel less trusting of people; always wondering if they have ulterior motives.  I hope that this is something I never have to experience again".

7You are a 30 year old man, presently awaiting this sentence in remand.  Because of your mental health you are placed in the Acute Assessment Unit at the Melbourne Assessment Prison.  You have been moved and cared for at Thomas Embling Hospital at least twice since being remanded upon arrest in June 2016.

8You came to Australia from the Philippines with your family when three.  You have never married and have no children.  You live, when not in custody, with your parents in Mildura.  You do not work and receive a disability support pension.  This is because of your mental health.

9Your criminal record filed with the indictment states several court appearances between 2007, which may coincide with the start of your mental health symptoms, and 2011.  There are driving offences, drug offences, offences of dishonesty and violence.  Particularly, in October 2009 you were sentenced to three years and eight months with a minimum term of 18 months, the main offences being intentionally causing serious injury and armed robbery.  The medical evidence before me suggests symptoms from 2007, but states a first diagnosis of paranoid schizophrenia in 2009 whilst serving that sentence.  You have been a client of mental health services in the Mildura area at least since 2012.  There have been several psychiatric hospital admissions,  it seems both voluntary and involuntary, over the time.

10At the time of Dr Radovic's June 2016 report you were subject to a Community Treatment Order under the Mental Health Act.  It is not clear whether that has remained in place during your remand.  If necessary renewal of it would be highly likely, if not certain, upon parole release.  Other medical evidence states that you have, at times, been in a psychotic state whilst in remand custody.  The enquiry earlier this circuit led to the view that there were no concerns as to your fitness to plead.  You presented yesterday, when arraigned, consistently with that.

11This was, self-evidently, very serious offending, as exemplified by the applicable maximum sentence.  There was significant victim impact.  You have relevant prior convictions.

12The objectively viewed circumstances make relevant sentencing considerations of deterrence - that is, both general and specific deterrence - moral culpability, denunciation and proportionate punishment.  However, this is also a case in which the principles stated in such cases as The Queen v Verdins have application.  I am persuaded by the medical evidence - particularly, for example, that of Dr Radovic - that your mental illness impacted in a significant way upon you at the time of offending, although short of making available the defence of mental impairment.  I would find that the sentencing considerations I have identified, such as deterrence, your moral culpability and denunciation, are significantly moderated.  Further, your considerable difficulties in remand state strongly that imprisonment is and will be more onerous for you because of your illness.  There is clear risk of deterioration.  The 29 October 2016 report of Dr Best states as to this:

"Mr Jamoral's current remand has had a significantly adverse effect on his mental health, in that without compulsory treatment he has refused his regular anti-psychotic medication, and, over time, has become increasingly psychotic.  This is combined with the stressors of a prison

regime, which is known to increase the risk of psychotic relapse.  Additionally, the prison regime is likely to weigh more heavily on
Mr Jamoral as a consequence of his schizophrenia".

13This may be seen as particularly relevant to the setting of an appropriate minimum term.  Other moderating factors include your early plea and high level of co-operation.

14Before moving to sentence could I be reminded, or could I be given an updated s.18 period?

15MR O'DOHERTY:  Four two six.

16HIS HONOUR:  Four hundred and twenty-six days, is it?  Is that right?

17MR O'DOHERTY:  Yes, Your Honour.

18HIS HONOUR:  After considering what I see to be the relevant matters,
I sentence you as follows:

19On one count of armed robbery you are sentenced to three and a half years' imprisonment.  I set a minimum term of 16 months before eligibility for parole.

20Under s.18 I declare a pre-sentence detention period of 426 days.

21It would be my expectation that relevant to release on parole would be the Adult Parole Board's consideration of what measures are taken under the Mental Health Act in respect of compulsory treatment. In saying this, I am aware that this is a matter for the parole board. I am aware of the provisions stated in s.5(2A) of the Sentencing Act. What else needs to be done?

22MR O'DOHERTY:  Two orders received, Your Honour, a forfeiture order and
a compensation order.  I applied for these yesterday.

23MR TELEFSON:  There is no objection to either of those orders, Your Honour.

24HIS HONOUR:  Thank you.  Three and a half years.  I sentenced to three and a half years.  I said that, I presume. 

25MR O'DOHERTY:  Yes.

26HIS HONOUR:  That is fine?  I said three and a half?

27MR O'DOHERTY:  Yes. 

28HIS HONOUR:  I will repeat it.  Sentenced to three and a half years' imprisonment, with a minimum term of 16 months' imprisonment.  Declare under s.18, 426 days of pre-sentence detention.  Now I am now signing and order for compensation of the $540.  Today's date is the 25th, is it?  It does not seem to have any provisions.  I will just sign it.  Generally it does not seem to have any provision for where to sign it.  I will just it there.  And there is
a forfeiture order.  Is it in respect of the stocking and the knife? 

29MR O'DOHERTY:  The knife. 

30HIS HONOUR:  Yes, I will sign that too.  Did you hear and understand that,
Mr Jamoral.  Yes.  Good, thank you.  We are going to turn you off now.

(Short adjournment.)

31HIS HONOUR:  It has been brought to my attention that I omitted to - by oversight, to state my s.6AAA indication.  I suppose it is now impossible to get the video link back up.  It is.  Well all I can do - the failure does not invalidate the sentence.  I will look at the section.  For its purpose is to - it depends on communication to the man, or in lay, insignificant part upon communication to the man sentenced, but I do not think I can anything but simply indicate that this, that my s.6AAA indication is a sentence of six years, with a minimum period of three years and eight months.  That is, if he had not have pleaded guilty.  So I state that and now I am looking at s.6AAA. 

32Further, it will be recorded in the records of the court.  I am wondering - well,
I would ask you or Mr Middleton to convey to the accused.

33MR TELEFSON:  I was about to suggest that, Your Honour. 

34HIS HONOUR:  Yes, well thank you.

35MR TELEFSON:  He could be conveyed the full sentence by letter.

36HIS HONOUR:  Yes, all right.  Yes, good, thank you, I appreciate that.  I think that covers it. 

37MR TELEFSON:  Yes.

38HIS HONOUR:  All right.  You do not want to say anything?

39MR O'DOHERTY:  No, Your Honour, no.  No.

40HIS HONOUR:  All right.         

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