Director of Public Prosecutions v Jessop

[2020] VCC 1589

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00053

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRENDON JESSOP

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	24 February – 3 March 2020 (Trial) 21 April 2020 & 18 August 2020 (Plea)
DATE OF SENTENCE:	1 October 2020
CASE MAY BE CITED AS:	DPP v Jessop
MEDIUM NEUTRAL CITATION:	[2020] VCC 1589

REASONS FOR SENTENCE
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Subject:	Attempted armed robbery
Catchwords:	guilty after trial – low intelligence – reduce cognitive function – cannabis addiction –reasonable prospects for rehabilitation dependent on mental health and drug treatment
Legislation Cited:
Cases Cited:
Sentence:	82 days imprisonment and a 30 month community correction order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	Office of Public Prosecutions
For the Accused	Mr C. Pearson	Greg Thomas Barrister & Solicitor

HIS HONOUR: 

1Brendon Jessop, on 3 March 2020, after a trial, a jury convicted you of attempted armed robbery.  The circumstances of your offending are:  

2On 23 June 2018 around 3 am, Craig Lamprell closed up his adult store at Boronia. When he got into his car, which was parked in the car park behind his store, to drive off, an offender smashed the driver's window with a piece of timber.  The timber struck Mr Lamprell in the head.  The offender threatened to smash him unless he handed over all his cash.  Mr Lamprell got out of the car and backed away towards the rear laneway.  The offender went back to the car, rifled through it and then ran off in the direction of a nearby 7-Eleven store on Dorset Road.  Mr Lamprell called 000 for help. 

3The attack was captured on CCTV cameras installed at the rear of Mr Lamprell's store.  CCTV footage from the nearby 7-Eleven store showed, at 3.06 am, you were walking along the laneway where Mr Lamprell had last seen his attacker.  When you got to Dorset Road, you turned left and then walked north for a short distance.  You then ran across the road in an easterly direction and then walked in a southerly direction to the 7‑Eleven store where you bought a coffee.  When you left the 7‑Eleven, you walked north along Dorset Road. 

4Earlier in the night before the attack, you had been to Mr Lamprell's store where you bought cone piece.  Around 4.30 am, after you had returned to the 7‑Eleven store to get another drink, police arrested you. 

5When they interviewed you, you denied any involvement in the attack.  You said you had been playing Pokies at nearby Zagame's.  You said from around 12.30 am you were backwards and forwards from the Pokies all night.  You said you bought a stick of weed from someone at the Pokies and then you got a cone piece from the sex shop, which was Mr Lamprell's shop.  You said you smoked the marijuana and then you went back to the Pokies venue and later went to the 7-Eleven to get a coffee.

6When police asked you if you could explain why you had been running across the road shortly after the attack occurred, you said you had pinched two steaks from Woolworths and when security staff caught you, you threw them over the adjacent railway tracks.  When asked about the similarity between your clothing and the clothing worn by the offender, you said they were commonly worn garments.

7By your plea of not guilty at trial, you denied you were the offender.  The jury were satisfied beyond reasonable doubt that you were. 

8You were born on 11 February 1991.  You were 27 years old when you offended and you are now aged 29. 

9You have admitted a criminal record. 

10On 31 March 2017, for dishonesty, drug and driving offences, you were sentenced to a 12-month community corrections order with drug and mental health treatment conditions. 

11On 14 June 2017, theft of a boat and other offences including breach of the earlier community corrections order.  You were sentenced to 120 days' imprisonment and a community corrections order for 15 months. 

12And on 21 September 2017, for shop stealing, you were sentenced to seven days' imprisonment which was ordered to be served concurrently with the earlier prison sentence. 

13You were on a community corrections order when you committed this crime.

14After your arrest, you spent 82 days in custody, until 13 September 2018, when you were granted bail pending the birth of your daughter.  She was born on 18 June 2018.  After she was born, you lived with her mother and her and Mornington.

15You completed the CISP bail program and complied with stringent bail conditions. 

16After the jury verdict on 3 March, I adjourned you sentencing hearing until 21 April 2020 to allow your legal representatives time to obtain a psychological assessment.  Mr Triandos who appeared for the prosecution very fairly did not oppose your continued bail to allow you to order your affairs which included the care of your daughter and her mother before I sentenced you.

17On 21 April 2020, your daughter's mother gave evidence before me.

18She told she had been in a relationship with you for five years. 

19She said, in June 2018, when you offended, the two of you had moved from Frankston to get away from the drug scene to Boronia where you live with a friend of hers.  She was pregnant with your daughter at the time. 

20She said, before you daughter was born, WHC, an agency which assists homeless women with children found her private rental accommodation.  She described you as a good father to your daughter.  She said because of her own anxiety she relied on your help with her daughter's care and looking after the house.  She said you had some roof tiling work until the public health restrictions were imposed.  

21Gina Cidoni, a consultant psychologist, had interviewed you on 3 April 2020.  You told her your parents separated when you were a small child and that you lived with your mother at Pambula in New South Wales.  You said that she battled alcohol abuse and had an abusive partner.  You had an older brother and you have a younger half-sister and half-brother. 

22When you were eight years old, you went to live with your paternal grandparents at Bega.  Your grandmother favoured corporal punishment to discipline you.  You had a good relationship with your grandfather.  Your mother re‑partnered.  Her new partner was also physically abusive. 

23You went to local schools.  At the beginning of Year 8, you left school to work for a motor mechanic for 12 months.  After that, you worked in the concreting and carpentry trades and, for two years, as a builder's labourer.  Your most recent work was roof tiling and plumbing in February and March this year.

24You have a history of substance abuse.  You abused alcohol and cannabis from an early age.  You dabbled in other drugs from the age of 20 until your arrest.  In June 2018 you were using methamphetamine.

25When you were 21 and you were sleeping rough with your older brother, he died from a GHB overdose.  You found him dead. 

26You reported a history of mental illness.  You said at 24, you were admitted to a psychiatric ward.  Around that time, you met your daughter's mother.  You were homeless and you lived in squats for a round three years.  in 2018, she fell pregnant.  You told Ms Cidoni you were being prescribed an anti-depressant, anti-psychotic and an anti-convulsant.  You said you stopped using alcohol and methamphetamine when your daughter was four.

27In Ms Cidoni's opinion, based on the history you provided, you meet the diagnostic criteria for borderline personality disorder.  Although you told her you had been previously diagnosed as schizophrenic, you showed no indications of schizophrenia when she spoke to you.  You tested borderline on the intelligence scale. 

28In her view, the disorder adversely affects your thinking and judgment. 

29I decided to obtain a Forensicare report to investigate your unconfirmed schizophrenia diagnosis.

30A Forensicare psychiatrist, Dr Neil Wareling interviewed you on 30 June 2020.  In his opinion, you meet the criteria for severe alcohol, cannabis and methamphetamine use disorder.  You described to him a long history of hyperactivity and emotional instability including poorly regulated anger.  Because of your heavy illicit substance abuse, it was not possible for him to assess whether these problems may be related to ADHD.  You said in primary school you were diagnosed with that condition and/or personality disorder.

31In his opinion, to address the risk of you reoffending, you need to access drug and alcohol counselling and mental health services. 

32On 18 August 2020, I heard further submissions from your counsel, Mr Pearson.  He told me your relationship with your daughter's mother had ended and you had entered into a new relationship in early May and had been living with your new partner and her brother in Mornington.

33I was informed you had appeared at Frankston Magistrates' Court on 7 May 2020 when you were released on a community corrections order imposed for contravening a family violence intervention order between February and April 2020 and for other offences which had occurred prior to June 2018. 

34I was also informed you breached that community corrections order by subsequent offending very soon after the order was made. At Frankston Magistrates' Court on 19 June 2020, you were sentenced to two months' imprisonment for subsequent offending and three months' imprisonment for the offences which were the subject of the community corrections order.

35It emerged, on 18 December 2019, your daughter's mother obtained an interim intervention order which prevented you from committing family violence including controlling and dominating behaviours.  But on 23 February 2020, in contravention of the order, you went to her home and demanded to be let in.  When she refused, you forced her rear door and when she asked you to leave you refused.  She called police who attended and arrested you. 

36And, on 27 March 2020, your daughter's mother obtained another intervention order which prohibited you from contacting her or attending her home. I know, 3 weeks later, she gave evidence in this to support you.

37On 29 April 2020, in contravention of the order, you went to her home and argued with her.  Police were called and arrested in the backyard.  On 30 April 2020, you went to her home again and she called police again.

38On 1 May 2020, you volunteered yourself to Mornington police and admitted your contraventions of the intervention order.  You said you went to your home to collect your car and see your daughter.

39Between 15 May and 17 May 2020, you sent her a number of abusive and threatening text messages.  On 20 May 2020, police arrested you at your new partner's home, where you were living, for contravening the intervention order and you were remanded in custody.  On 15 August 2020, you were released from prison after you had served the sentence the magistrate imposed on 19 June. 

40Your time in prison was not easy with the necessary coronavirus-related restrictions.  You had no opportunity to engage in programs or work and had no contact with persons outside the prison other than by Skype. 

41I received a further report from Ms Cidoni, who had interviewed you on 18 June, while you were at Port Phillip Prison.  She wrote, 'His chronic and poor mental health was a major factor in this new offending.  He suffers a mental disorder that is characterised by unstable mood, behaviour and relationships with symptoms which include emotional instability, feelings of worthlessness, insecurity and impulsivity.  His cannabis use results in disinhibition and increased paranoid functioning.  His reduced cognitive function affects his problem solving capacities.'

42On 18 August, because of the emergency court protocols limiting the attendance of persons in the court building, I permitted you appear by telephone.  You told me you were living at Mornington with your current partner.  You said you had potential work when coronavirus restrictions lifted.  You said you had no desire to contact your daughter's mother and believed that she had moved interstate to live with family.

43You said you were not using illicit drugs. 

44I deferred your sentence until the end of Stage 4 emergency  health restrictions so you could attend court in person.  I continued your bail to give you the opportunity to remain in the community to stabilise your relationship with your new partner, obtain employment and demonstrate a continued drug abstinence.

45You returned to court today, 1 October 2020. You were supported by your partner and her mother who have both stood by you, notwithstanding the time you were imprisoned. You have been living with them since your release from jail.

46I was told your daughter is in the care of your mother pursuant to court orders and the DHHS will allow you contact with your daughter, under your mother's supervision, when you have produced three clean urine screens.  I was told you have recently furnished your third clean screen. 

47Your counsel submitted I should impose a combination sentence of 82 days' imprisonment, that is time served, with a community corrections order tailored to assist you to address your drug and alcohol and mental health problems.

48The prosecution submitted the seriousness of your offending warrants the imposition of a term of imprisonment which would require me to fix a minimum non-parole period release period. 

49The maximum penalty of 20 years' imprisonment for attempted armed robbery demonstrates it is a serious offence. 

50While Mr Lamprell chose not to make a victim impact statement, I have no doubt your confrontation of him was frightening.  Ordinarily, persons who commit an offence of the type should expect to be imprisoned.

51Since you trial, I have allowed you your freedom, initially, to attend to your personal affairs and, subsequently, to give you the opportunity to demonstrate you could remain drug free and not reoffend.  In the context of your dysfunctional relationship with your daughter's mother, you defied the obligations of the family violence orders.  You appear to have been abusive and verbally aggressive part not physically violent. 

52You have managed not to offend in any other way.

53With the departure of your daughter's mother interstate and the appointment of your mother as your daughter's primary care giver, that stressor has been removed.  I accept your desire to resume contact with your daughter is a powerful motivation for you to abstain from illicit drug use. 

54I also accept you are now in a stable relationship which appears to be a positive one. And you have roof tiling skills which should get you employment when community restrictions are eased.

55I have some optimism, by your recent incarceration in difficult prison conditions, that you have learned a lesson.  I regard your prospects of rehabilitation provided you remain drug abstinent as reasonable. 

56In the guideline judgment of Boulton v The Queen [2014] 46 VR 308, the Court of Appeal said,

'A community corrections order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.  The sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned community corrections order of lengthy duration is capable of satisfying the requirements of the proportionality, parsimony and just punishment while affording the best prospects for rehabilitation.'

57The court also said,

'The availability of the combination sentence option adds to the flexibility of the CCO regime.  It means that even in cases with objectively grave criminal conduct, the court may conclude that all of the purposes of the sentence can be served by a short time of imprisonment coupled with a community corrections order of lengthy duration with conditions tailored to the offender's circumstances and the causes.' 

58In all the circumstances of your case, I am satisfied a combination sentence can meet all sentencing purposes. 

59You have been found suitable for an order and I accept the assessing officer's recommendations of special conditions.

60I note, but for her recommendation on the contrary, I would also have imposed a community work condition. 

61Please stand, Mr Jessop.

62By the sentence I impose, I must denounce your conduct and punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation. 

63Taking into account the circumstances of your offending and your personal circumstances and antecedence and endeavouring to produce a sentence which reflects and promotes the purposes of the sentencing in a manner appropriate to you, on the charge of attempted armed robbery, you are sentenced to 82 days' imprisonment with a community corrections order for 30 months. 

64In addition to the core conditions, I impose the following special conditions:  supervision, drug assessment and treatment, mental health assessment and treatment, programs to reduce reoffending and judicial monitoring.

65You will be required to attend this court on 16 February 2021 at 9.30 when I will receive a report as to your progress on the order. 

66I declare you have served 82 days of this sentence by way of pre-sentence detention. 

67I make an order for disposal of the property in terms of the order filed with the court.

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