Director of Public Prosecutions v L'Hullier

[2019] VCC 1794

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00548

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK L'HULLIER

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JUDGE:	HIS HONOUR JUDGE GEORGIOU
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2019
DATE OF SENTENCE:	1 November 2019
CASE MAY BE CITED AS:	DPP v L'Hullier
MEDIUM NEUTRAL CITATION:	[2019] VCC 1794

REASONS FOR SENTENCE
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Subject:         Criminal Law - Sentence

Catchwords: Attempted robbery with offensive weapon – scissors – theft - early plea of guilty

Legislation Cited Crimes Act 1958 ss. 75A, 321M and 74(1)
Cases Cited:
Sentence: 112 days imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Livingstone Clarke (plea) Mr P. Ironside (sentence)	Office of Public Prosecutions
For the Accused	Mr F. Brimfield (plea) Ms R. Greensill (sentence)

HIS HONOUR: 

1Patrick L'Hullier, on 24 October 2019, you pleaded guilty that at Melbourne on 4 November 2018 you attempted to rob Arsan Mohammed of cash, and at the time had with you an offensive weapon, namely, a pair of children's scissors contrary to s.75A and 321M of the Crimes Act 1958. The maximum penalty for that offence is 20 years' imprisonment.

2You also pleaded guilty to stealing four pieces of banana bread belonging to
7-Eleven, contrary to s.74(1) of the Crimes Act.  That offence carries a maximum penalty of 10 years' imprisonment.

3A summary of prosecution opening was tendered at the plea hearing and marked Exhibit B. 

4On 4 November 2018, you went to the 7-Eleven store at 263 Bourke Street, Melbourne, at approximately 1.20 am.  You entered the store holding a stick, a glass wine bottle, and a small packet of food. 

5Once inside, you spoke to the victim, Arsan Mohammed, who was the only staff member in the store.  You asked Mr Mohammed to give you various food items. You were told that the store was closing.  You then asked for a free sandwich but were told “no, you would have to pay.”  The victim asked you to leave the store, but you persisted in asking for various food items.  The victim eventually said that you could have a chicken roll free of charge, but that you would have to leave.

6You picked up the chicken roll and reached into your pants pocket, pulling out a small pair of children's scissors.  You held the scissors at your side and said, 'Give me the money.  Give me all the money.'  You said that approximately three times.  Whilst saying that, you brought the scissors up to face height and made a lunging motion in the direction of the victim.  This conduct forms the basis of Charge 1.

7You then left the store and smashed the glass wine bottle on the ground.  You re-entered the store with part of the smashed bottle in your hand.  You took four to five slices of banana bread without paying for them,
and left the store.  The prosecution does not allege that you threatened the victim with the broken bottle.

8The victim called 000, and police arrived a short time later.  The offending described was captured on CCTV cameras within the 7-Eleven store.  You were arrested on 6 November 2018 on an unrelated warrant and taken to the Melbourne West police station.  You were identified in respect to the matters before me, and interviewed, where amongst the answers you gave are the following answers:

'And, and said, and, "Give me all your lollies and chocolate bars, sir", and then I put the scissors straight back in me pocket because I wasn't gonna do anything.  And I said, "I have a stick that I found from outside." 
And I picked up that stick that I found on the ground, and I said, "I now magic spell you with this magic wand, sir, to have better manners." 
The spell stuck, and then all the other drunks outside were egging me on, and they go, "Take something, take something."  So I grabbed a heap of banana bread, and I go, "I'm taking it.  I'm taking this banana bread." 
And I ran outside, and, and just to do something else, like, to make it look good, then I smashed the little bottle and then ran.'

9In further answers:

'I know it was wrong to pull the scissors out, and in my defence, they were little pink girls' scissors.  I've even once escaped on a pink girls' pushbike from two divisional van members.  Look, I've - I have got a below average IQ.  I'm not the smartest, sharpest tool in the shed, and I had a different life.  So to me, to pull those scissors out, I'm just gagging.  But the victim has probably taken it the wrong way.

Question:  'Why did you take the bread, then?'

Answer:  'I knew this was coming.'

Question:  'Yep?'

Answer:  'I'm starting an underground banana bread factory.  I'm selling
it on the cheap.'

Question:  'Selling it on the cheap?'

Answer:  'Yeah, I've got a stall at local markets.'

Question:  'Black market of banana bread?'

Answer:  'I'm trying to outdo the people who sell the cinnamon donuts,
and like, jam donuts at the flea markets.  It's, it's all undercover.'

10Later in the interview, you said:

'Sorry, sorry, I want to apologise.  I did feel rather guilty that I - I didn't think he gave me anything because I was drunk, and then when I saw that he gave me the chicken sandwiches, I felt a bit bad.'

11Although no victim impact statement was received, Mr Mohammed told police that he was frightened for his personal safety when you attempted the armed robbery. 

12You were remanded in custody on 6 November 2018, and up to today but not including today, you will have been in custody for 360 days. 

13Since being remanded, you have been sentenced in the Magistrates' Court for other offending.  I am told, and it is agreed as between the learned prosecutor and your counsel, that you have served 112 days in custody for the offences before me.

14I turn to your background and personal circumstances.  You were born on
23 June 1972 in Leongatha, Victoria.  You are now aged 47 years.  Your family moved frequently during your younger years before settling in Golden Square when you were aged approximately 14.

15Your parents separated in approximately 1984.  Your father, with whom you have a close relationship, passed away in April this year.  Your mother is now aged 72 years and lives in the Bendigo area.  I am told that she visits you on a regular basis at Ravenhall prison where you are presently on remand.

16You have a younger brother and a younger sister.  They both live in the Bendigo area.  You had regular contact with them before you were arrested, but they have not visited you in prison.

17You attended Golden Square Secondary College for Years 7 and 8.  However, you were unsettled at school, having been suspended on nine occasions in Year 8 before finally being expelled.  That marked the end of your formal education.

18Over the years, you have had a number of different jobs, including working as a jackaroo on a sheep station, working in a textile factory as a ‘pleater’, and work at a poultry farm.  Your last job was in 2012, when you worked for approximately four months repairing a church.

19You admitted your prior convictions.  You have a significant and lengthy history dating back to 24 August 1990.  Your most recent convictions were on
2 November 2018 for burglary, assaulting an emergency worker on duty, hindering an emergency worker on duty, committing an indictable offence whilst on bail, and contravening a community corrections order.  You were sentenced to an aggregate term of imprisonment of 54 days, which was time served.  Your Community Corrections Order was confirmed and was to run from 10 August 2018 for a period of 12 months. 

20Two days after you were convicted of those offences, you committed the offences that are now before me.  I will not review your prior criminal history any further, save to say that it extends to 23 pages and, as was submitted, reflects your history of struggling with drug abuse and homelessness over the years. 
It may also reflect deeper psychological and psychiatric difficulties.

21Tendered at the plea hearing on your behalf were reports from Dr Walton dated 11 April 2019 and marked Exhibit 2, and a report of psychologist Mr Bernard Healey dated 6 October 2018 and marked Exhibit 3.

22You told Dr Walton that you were introduced to alcohol at the age of 15 when you were working as a jackaroo.  You also began to smoke cannabis at that time.  You told Dr Walton that a pattern developed where you would attend hotels and nightclubs binge drinking during your 20s, but that since your 30s, you had moderated your alcohol intake to between two to six cans of scotch whiskey mix on a weekly basis.

23You also told him that you stopped using cannabis approximately five years ago.  In about 2012, you were using methamphetamine by intravenous injection and your use of that drug has been highly variable since that time.

24Dr Walton noted that you were vague about your past psychiatric history. 
You told him that you had been prescribed the antipsychotic medication olanzapine, first prescribed by Dr Bell at the Melbourne Assessment Prison.  More recently, you were also prescribed the mood stabilising agent, lithium carbonate.

25Dr Walton did not express an opinion as to your diagnosis.  He did state that, given your psychopharmacological regimen, he presumed that Dr Bell made a diagnosis of bipolar disorder.  It was his opinion that you require ongoing psychiatric follow-up upon release into the community.

26When you saw Mr Healey on 6 October 2018 at the Melbourne Assessment Prison, you told him that you had previously been diagnosed with a depressive bipolar disorder for which you were prescribed lithium.  You were also taking olanzapine at the time of Mr Healey's assessment.  You told Mr Healey that in addition to cannabis and amphetamines, you also used heroin for approximately six months.

27At the age of approximately 20, you became homeless.  Intellectual testing performed by Mr Healey revealed that you fall in the below-average range with a full-scale IQ of 84.

28On the morning of your plea hearing, the court received a report from Mr Peter Walker, mental health clinician with Forensicare.  It was not a document requested by the court or either of the parties. 
Neither party objected to my reading the report.  It was agreed that the prosecutor would tender the document.  It is marked Exhibit A.  The author of the report stated that the report had been prepared by the Mental Health Advice and Response Service to assist the Magistrates' Court of Victoria.

29Mr Walker stated in the report that in the event that the court determines that a non-custodial disposition is appropriate, and releases you from custody, you will be transported by ambulance under the Mental Health Act 2014 on an inpatient assessment order to the Bendigo Hospital emergency department for psychiatric assessment. Depending on the outcome of that assessment, you will either be admitted as an involuntary patient or discharged from the hospital.

30Attached to the report is a mental health assessment order prepared pursuant to s.32 of the Mental Health Act by a registered psychiatric nurse and mental health practitioner, Ms Kholekile.  She examined you on 23 October 2019. 
Ms Kholekile considered that all the criteria of s.29 of the Mental Health Act applied to you.

31The order enables you to be compulsorily examined by an authorised psychiatrist.  Ms Kholekile based her opinion on the following:

'Patrick is a longstanding consumer of mental health services with a diagnosis of affective psychosis, currently presenting with a marked deterioration in mental state characterised by elevated mood and affect, grandiose and misconstrued belief about spirituality to an extent he believes he is being spelt (sic) to do wrong.  Pressured speech, tangential, limited insight, poor judgment, refusing treatment.'

32Exhibit A is similar to another report that was handed up to me by your counsel, also prepared by Mr Walker, and dated 18 December 2018. Attached to that report is another assessment order prepared pursuant to s.30 of the Mental Health Act by a mental health practitioner, Courtney Dunn.  She examined you on 17 December 2018.  This was not long after you committed the offences before me.

33Ms Dunn considered that all the criteria in s.29 of the Mental Health Act applied to you.  She based her opinion on the following:

'Patrick presents as manic with symptoms of psychosis, predominantly delusions, including the belief he is being controlled by external sources (witches).  No insight into illness resulting in partial adherence to treatment.  Without further mental health assessment and treatment, he is at risk of further harm to others and himself.'

34This morning, just before I commenced to deliver my sentencing remarks,
I received a further report from Alice Kroll, clinical psychologist with Forensicare.  It is dated 1 November 2019.  In her letter, Ms Kroll states that you have an established diagnosis of schizophrenia, differential diagnosis, bipolar affective disorder, manic episodes with psychotic symptoms, and:

'currently presents with marked deterioration in mental state, characterised by elevated mood and affect, grandiose delusions and pressured speech.  He demonstrates poor judgment and limited insight.'

35Ms Kroll states, and has confirmed with me this morning, that should you be released from custody today, you will be transferred via ambulance to the Bendigo area mental health service, or if the ambulance is unable to travel that far, to Royal Melbourne Hospital.  You will receive psychiatric assessment to determine whether an inpatient psychiatric unit admission is necessary. 
You may or may not be admitted, depending upon that psychiatric assessment.

36Attached to Ms Kroll's report is an assessment order prepared pursuant to s.30 of the Mental Health Act by a registered medical practitioner, Dr Gur Parkasu, who was of the opinion:

'Patrick is a long-standing consumer of mental health services with a diagnosis of affective psychosis, currently presenting with a marked deterioration in mental state, characterised by elevated mood and affect, grandiose and misconstrued beliefs about spirituality to an extent he believed he is being spelt (sic) to do wrong, pressured speech, tangentiality, limited insight, poor judgment and refusing treatment.'

37That opinion is based on an examination carried out by Dr Gur Parkasu on
31 October 2019.  

38Mr L'Hullier, it is clear that you are presently psychiatrically unwell, and in all likelihood, were unwell at the time you committed the offences before me.

39That is not to say you would have had a defence of mental impairment open to you.  Dr Walton did not find that you were psychotic at the time the offences were committed.  Rather, he states you were simply hungry and without money to pay for the goods stolen.  The answers you provided to the police in the record of interview suggest strongly that you were unwell at the time that you committed the offences. 

40You have pleaded guilty to the charges, and it is accepted by the learned prosecutor that you did so at the earliest opportunity.  You admitted your conduct to the police when interviewed.  Accordingly, you are entitled to a significant reduction in penalty because of your pleas of guilty at the earliest stage.

41During the interview, you said that you were a 'dickhead' and that you felt sorry for your victim.  In addition to the utilitarian benefits of your pleas of guilty, I am prepared to accept some level of remorse on your part.

42It was submitted that you acted out of a need for food and money and that you were homeless at the time.  Further, that your conduct was not premeditated, and that you acted on the spur of the moment.  I note you made no effort to disguise yourself, and the items you stole were clearly of small value.  The weapon was a pair of children's scissors.  They had a rounded tip and were not sharp.  I accept the submission that your offending fell at the lower end of the spectrum of seriousness.

43Whilst your counsel did not rely upon the propositions set out in the case of Verdins, I consider that there is sufficient information before the court to moderate general deterrence, specific deterrence and denunciation of your offending, given your mental state both at the time the offences were committed and at the time of sentencing.

44Unfortunately, there is insufficient material in the two reports, that is, the reports of Dr Walton and Mr Healey, to enable me to reduce the level of your moral culpability by reason of your psychiatric illness.

45Your counsel submitted that I should sentence you to a period of 112 days, that being the time you have already spent in gaol, not including today.  The learned prosecutor, in all the circumstances of the case, did not oppose such a sentence.

46Applying the totality principle of sentencing, I may also have regard to the fact that at the time of sentencing, you will have been in custody for approximately 360 days.

47I note from Dr Walton's report that because of your mental state, it is likely that your experience of imprisonment would have been more onerous than a prisoner not suffering mental health issues.

48In all of the circumstances, I accept that the appropriate penalty is to convict you on both charges and sentence you to an aggregate term of imprisonment of 112 days.

49I consider, in all of the circumstances, particularly having regard to what I find to be an impaired mental state, the sentencing objectives of s.5 of the Sentencing Act can be addressed with such a sentence.

50You are clearly in need of psychiatric assessment and possibly treatment, which will be attended to immediately upon your release. 

51I should warn you, however, that there may come a time, if you continue offending, where you will no longer receive the court's leniency.  The offence of attempted armed robbery is a serious offence.  The maximum penalty alone,
of 20 years, reflects the seriousness of this offence.

52OFFENDER:  I've never done anything like that before, sir, and I never intend to again.  Thank you. 

53HIS HONOUR: I am very pleased to hear that, Mr L'Hullier. Pursuant to s.18 of the Sentencing Act 1991, I declare a period of 112 days as having already been served.

54Pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty to the offences, I would have sentenced you to a term of imprisonment of six months.

55So Mr L'Hullier, on that sentence, you will be released, as I understand it, from custody this morning.

56OFFENDER:  Yes. 

57HIS HONOUR:  Unfortunately, you will have to go back downstairs to be processed.

58OFFENDER:  Yes. 

59HIS HONOUR:  But thereafter, you will be transported to a hospital.

60OFFENDER:  Yes. 

61HIS HONOUR:  I wish you all the very best, and hope ‑ ‑ ‑ 

62OFFENDER:  Thanks very much.  I just wanted to say one thing.  The only person I felt for, really, in this whole thing, is the man, the attendant in the store.  I just want to know, do you know anything about that, that he's okay?

63HIS HONOUR:  Yes, I believe he's all right, Mr L'Hullier.

64OFFENDER:  Yeah, that's good.  Thank you, sir.

65HIS HONOUR:  All right.  Are there any other matters?

66MR IRONSIDE:  Not from our point of view, Your Honour.

67HIS HONOUR:  No, Ms Greensill? 

68MS GREENSILL:  Thank you, Your Honour. 

69HIS HONOUR:  All right.  Ms Kroll, I am not sure where you will collect
Mr L'Hullier, but someone here can advise you.

70MS KROLL:  Yes, I will go down to the cells.  Thank you, Your Honour. 

71HIS HONOUR:  Thank you very much. 

72OFFENDER:  Thanks, Robyn.  Thanks, Mr Prosecutor.  Thanks, Your Honour.  Have a good evening.

73HIS HONOUR:  All right.  We will adjourn to 10.30, please.

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