Director of Public Prosecutions v Jude

[2023] VCC 2076

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-02016

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANTHONY JUDE

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	08 November 2023
CASE MAY BE CITED AS:	DPP v Jude
MEDIUM NEUTRAL CITATION:	[2023] VCC 2076

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: committed armed robbery on a tram - member of public attacked with a knife - crime committed in the grip of a paranoid delusion - Verdins principles - schizoaffective disorder - comorbid polysubstance disorder - antisocial personality disorder – concerning criminal history – protection of the community.

Legislation Cited: s75A Crimes Act 1958 (Vic); s14(C) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; Sentencing Act 1991 (Vic);

Cases Cited: DPP v Kao [2009] VSCA 273, The Queen v O'Brien & Gloster (1997) 2 VR 714, 718, Veen No 2 (1988)164 CLR 465; Bugmy v R [2013] 249 CLR 571; Manodh Marks v The Queen [2019] VSCA 253; R v Verdins [2007] VSCA 62; DPP v Dalgliesh (a pseudonym) [2017] ALJR 1063.

Sentence: Pursuant to s44(1) Sentencing Act 1991 (Vic), 542 days of imprisonment and a Community Correction Order of two and a half years. Pursuant to s18, 515 days served on remand is deemed to have been served under this sentence.

S6AAA- If he had not plead guilty, he would not have received a combined sentence.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S Holmes
For the Accused	Mr T Battersby

HIS HONOUR:

1Mr Jude was 52 at the time of these offences, he is 55 now having been born in August 1968.  He is on a disability support pension.  He is on remand at the moment. 

2Insofar as Indictment No. CR-22-02016, the one charge on the indictment was an offence of armed robbery. This offence pursuant to s75A of the Crimes Act, for which the maximum penalty is 25 years, took place on 20 June 2021.  On a tram, actually I think it is the 57 tram when the victim of the armed robbery was a passenger.  That is, Ms Poswillo who is with us by remote.

3Ms Holmes appeared on behalf of the Director and appears today.  Mr Battersby appeared for Mr Jude.  This matter began before the Court on 16 June 2023 as an investigation as to Mr Jude's fitness to plead.

4I adjourned the hearing to 13 October 2023 and on that day I ruled that I was satisfied pursuant to s14(C) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that Mr Jude was fit to plead. Mr Jude was arraigned in short form and pleaded guilty. The matter was adjourned to
24 October 2023 and on that date Mr Jude was fully arraigned and appropriate particulars obtained. 

5Tendered on that day by Ms Holmes for the DPP was a summary of prosecution opening dated 12 October 2023, Exhibit A, which Mr Battersby accepted as being the facts upon which I am to sentence Mr Jude, Exhibit B the victim impact statement of Ms Poswillo dated 18 October 2023, and Exhibit C the prosecution police submission dated 23 October 2023.

6In regard to the victim impact statement which was read to the Court.  I consider that Ms Poswillo's reaction and statement and the matters set out therein, as I said at the time, was quite measured and indeed quite reasonable.  Indeed as I said during the plea, considering the circumstances she was perhaps too brave.

7As put by the prosecutor, the criminality is clearly very serious given the use of the knife, which of course is an element of the crime, being the offensive weapon involved.  Such seriousness of course is reflected in the maximum sentence provided of 25 years imprisonment.  Clearly for a member of the public to be so attacked while on a tram at 3 pm in the afternoon, is objectively outrageous.

8While not disputing such categorisation, the defence in Exhibit 1 pointed out that the offending was brief in duration, unsophisticated in that Mr Jude was quickly apprehended, the victim obtained her mobile back and suffered no physical violence, as against the circumstances that she has spoken about in her victim impact statement.

9The submission of Mr Battersby, which I accept, was that this crime was committed by Mr Jude in the grip of a paranoid delusion hence attracting Verdins principles, [2007] VSCA 102, [32]. I also accept that the crime was not committed for any base motive, such as financial gain.

10Given such circumstances, the prosecution concedes, in Exhibit C [1] and in a more positive endorsement in [11], that a sentence in gaol combined with a community order is in the community interest. In that regard a MHARS report Exhibit D dated 31 October 2023 was obtained. Together with the reports tendered in the investigation which are Exhibits 2 and 3 of
Dr Kalluru, and Mr Deacon, being Exhibit 4, that is the first report of
20 February 2022, and Exhibit 5 being his next report being 12 January 2023.

11Such sentence is also seen as appropriate by the defence, see [7] of Exhibit 2 after the submission to the Court of an appropriate balancing by the Court of the powerful mitigating factors spoken to by Mr Battersby. 

12Insofar as the plea is concerned, the prosecution conceded the relevance of the Verdins principles, given the mental health of Mr Jude, although it noted that his condition is certainly far more stable and that conditions of 5 and 6 are therefore not applicable. The prosecution also conceded the relevance of the Bugmy v R [2013] 249 CLR 571,592-3, [37] such principles are a very important aspect of the sentence in the circumstances.

13I come then to the mental condition of Mr Jude.  Tendered as part of the plea was Exhibit 2 the psychological report of Dr Kalluru dated 27 April 2023, and Exhibit 3 the update dated 3 October 2023. These reports of course were prepared for the impairment investigation.  In the update of Dr Kalluru, that is Exhibit 3, the current diagnosis of Mr Jude was given as a schizoaffective disorder with a comorbid polysubstance disorder and traits suggestive of antisocial personality disorder, [10]. 

14Mr Jude's history is detailed in Exhibit 2 by Dr Kalluru.  Indeed, in New South Wales in the period 6 April 2021 to 13 May 2021, because of his entrenched schizophrenia, he did indeed require physical and chemical restraint in the high dependency ward of the Cumberland Hospital, [13].  Since this time he has been in Ravenhall, in their acute and sub-acute health units and on four occasions has been admitted to Thomas Embling. 

15Fortunately by August 2023 he had begun to engage and cooperate with the treating team, [18].  Despite his letter to the Court, Exhibit 6, he was still confused as to circumstances of the offence.  Dr Deacon, the consultant psychiatrist in his report of 2 February 2022, Exhibit 5, also noted a rambling and discursive history given by Mr Jude as to the offending.  Indeed, as Dr Deacon says, Mr Jude's mental issues began apparently in the early 2000s.

16As background to the day of the offence, Mr Jude had dropped out of community treatment for a sustained period leading up to June 2021.  His mental health is characterised by systematised persecutory delusional beliefs focussed on police corruption.

17Following the offence, when assessed in the Melbourne Assessment Prison on 22 June 2021 he was actively psychotic, and went to Thomas Embling on a secure treatment order. 

18On the basis of all such reports, I have no hesitation in finding Mr Jude to have been actively psychotic at the time of this offence.  Hence principle one of Verdins must operate to reduce the culpability of Mr Jude a temper the role of punishment and denunciation as sentencing objectives, I refer to the case of Manodh Marks v The Queen [2019] VSCA 253, [68].

19Clearly such mitigation must apply despite the role of drug ingestation given his history.  The observations made indeed by Ms Poswillo confirm the florid state that Mr Jude was in.  Clearly all aspects of the Verdins principles are applicable although as I have said, five and six are not in reality as he seems to have in fact improved in gaol, as remarked by Mr Battersby.  There are of course other matters which must be considered in this sentence.

Prior Criminal History.

20Mr Jude has a concerning criminal history.  His priors make up 18 pages with two priors for aggravated burglary and 12 burglaries.  There is also considerable Magistrate's Court history, in particular on 2 August 2018 he received a sentence of 18 months for aggravated burglary.  And the circumstances again involved the use of a knife with a member of the public.  Indeed he had only been released from that sentence in April 2019. 

21Further his history shows 12 months for an assault with a weapon in a sentence of 2018.  In addition, he has priors for numerous thefts and deceptions.  Against that he has never been sentenced in this Court before.  And in regard to his interstate history, has only got a history of local court appearances.

Protection of the Community

22I come then to the issue of protection of the community. Given such history and his mental condition, protection of the community looms large for this offence. I accept that this particular crime, it is not a crime at the highest end. However, it was done in public and on a public tram, s5(1)(e) of the Sentencing Act requires me to look at this particular factor.  Mr Jude has unfortunately a multitude of factors affecting his life.  In particular his mental health, that is with the schizophrenia and a potential capacity to commit dangerous crime.

23In this regard I refer to DPP v Kao [2009] VSCA 273, The Queen v O'Brien & Gloster (1997) 2 VR 714, 718, Veen No 2 (1988)164 CLR 465, 477 to 488. I quote from paragraphs [37]and [38], firstly [37] of O’Brien:

'Although the appellant is not to be again punished for his prior offences.  His significant criminal antecedents are far from irrelevant. '

24As Charles, J A with whom Winneke, P and Southwell AJA agreed, observed in O'Brien & Gloster:

'It is of course clear that no principle of sentencing requires that more severe sanctions be administered to those who persist with their criminal behaviours.  But an adverse criminal record may impact on the sentencing process in a number of ways.  For example as an indicator of the offenders moral culpability, his prospects of rehabilitation, his dangerous propensity and the community's need for protection, and the increased importance of a specific deterrence as a factor in sentencing, having regard to the failure of more moderate penalties as a means of deterrence…'

25Charles JA then at [38] set out the following well known passage from Veen:

'…the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed.  But it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence.  To do so would impose a fresh penalty for past offences.  The antecedent criminal history is relevant however to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence, a continuing attitude of disobedience of the law.  In the latter case retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.  It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders.'

26It is no doubt the reality of Mr Jude's life that he carries a knife for protection, unfortunately given his history it can't always be assured that he uses such knife wisely.  Clearly, he doesn't.

Accommodation

27 I have been given a letter from the cohealth assisting Mr Jude for NDIS, Exhibit 7.  He has accommodation with financial assistance from the Salvation Army at
3 Laburnum Street, Parkdale.  That accommodation will be available up to 3 December this year, thereafter he will apparently lose that accommodation.  The proposition put to me by Mr Battersby that bearing all those factors in mind, especially that he has pre-sentence detention of 515 days, and in those circumstances it was submitted that at least as to the imprisonment part of a combined sentence, that that period already served should be enough, which would mean that he was not evicted.  Such imprisonment would make up 16 months and 28 days.

28I have come to the conclusion, despite some prevarication at the last hearing that given the sentencing submissions of both counsel, although I said I was not enamoured by a CCO, I subsequently ordered a community correction report be obtained.  Such report, which will be Exhibit E of 31 October 2023 prepared by Officer Poutapu, determined Mr Jude to be suitable, albeit a high risk of offending.  But made the comment that they were impressed with the intent of Mr Jude as so expressed.  

29A Forensicare report of 31 August also recommended a mental health condition, that report will be given Exhibit F.

30Mr Jude, today the Court is taking a leap of faith in you.  I have taken into account your medical and psychiatric condition.  I have taken into account the correctional reports.  I have taken into account Ms Cidoni’s evidence as to your change in perception.  I hope that you do not let yourself or the Court down. 

31Pursuant to DPP v Dalgliesh (a pseudonym) [2017] ALJR 1063, Mr Jude is entitled to a just sentence and a individualised sentence upon the facts of this case. Given the totality of the matters that I have referred to, I have determined to accept the submission of both counsel.

32On the charge, and pursuant to s44(1) of the Sentencing Act

[1991],

I sentence you to imprisonment of 542 days and a Community Correction Order of two and a half years. 

33Pursuant to s18 I declare the 515 days which is 16 months and two days which you have served on remand is deemed to have been served under this sentence.

34The conditions that will be placed upon the community correction order are pursuant to s48D(3)(a), a drug treatment order, 3(e) mental health assessment and treatment, s48E supervision and s48D(3)(f) specific programs to assist in ensuring that offending behaviour is overcome. 

35I note the additional material this morning, but it seems to me that takes the matter no further.  Do either counsel have any concerns about any of those matters?

36HIS HONOUR: So that within 27 days from today, he will be released to start his community correction order.  And you'll explain no doubt to Mr Jude his obligations as to attending.

37MR BATTERSBY:  Yes I will Your Honour.  As Your Honour pleases.

38HIS HONOUR:  And that hopefully will achieve by the service of 515 days in remand and another 27 days imprisonment and a community correction order, an appropriate penalty in all the circumstances.  As I say, I do not underestimate the terror that Ms Poswillo went through.  However sentencing people in Mr Jude's position is a very difficult task for the courts and indeed for the community.

27MR BATTERSBY:  Thank you, Your Honour.

28HIS HONOUR:  Ms Holmes any issues?

29MS HOLMES:  Your Honour can I just confirm, that Your Honour made the disposal order on the last occasion?

30HIS HONOUR:  I don't know but I will make it now if you want.  I thought I had signed it.

31MS HOLMES:  Thank you Your Honour.  Thank you Your Honour.

32HIS HONOUR:  I can't tell you for sure because I've just got a new associate today and we're running late as you know with the joy of the Optus organisation.

33MS HOLMES:  Yes.  Yes Your Honour.  Is Your Honour minded to give the 6AAA indication?

34HIS HONOUR:  I thought I did, no? 

35MS HOLMES:  No.

36HIS HONOUR:  s6AAA is almost impossible in this situation, given the totality of the factors, the plea of guilty is simply one of them.  And all I can say is that had he not pleaded guilty he wouldn't have got a combined sentence.

37MS HOLMES:  Thank you, Your Honour.

38HIS HONOUR:  Sorry, wouldn't have got a combined sentence.

39MS HOLMES:  Yes Your Honour.

40MR BATTERSBY:  It looks like we've lost Mr Jude Your Honour but I'll pass that on.

41HIS HONOUR:  Yes well.  Mr Jude you heard what I said, you've got an opportunity, don't mess up.  Right, we've just dropped.

42MR BATTERSBY:  Your Honour did well to get it done by 11 am.  As
Your Honour pleases.

43HIS HONOUR:  All right thank you both for your assistance, not an easy case.

44MR BATTERSBY:  No.

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