Director of Public Prosecutions v Lavalu
[2017] VCC 1309
•13 September 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01608
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TEVITA LAVALU |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 August, 7 and 13 September 2017 | |
DATE OF SENTENCE: | 13 September 2017 | |
CASE MAY BE CITED AS: | DPP v Lavalu | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1309 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Armed Robbery – 18 year old offender – schizophrenic – suitability of Youth Justice Order
Legislation Cited:
Cases Cited:
Sentence: Detention in Youth Justice Centre for 20 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Plummer | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms N Tittensor | Victoria Legal Aid |
HIS HONOUR:
1 Tevita Lavalu, you have pleaded guilty to one charge of armed robbery. You are 18 years old and were that age at the time you offended.
2 The circumstances of your offending can be summarised.
3 On Saturday, 12 March 2017, your co‑offender, “M”, entered a bottle shop at Werribee with two unknown males. M was 17 years old at the time. The three males were disguised.
4 M produced a knife and jumped the counter. He brandished the knife towards the head of the attendant and demanded that he open the till.
5 A short time later, you entered the store with another unidentified male. You walked through the store and grabbed various bottles of alcohol from the fridges and shelves, while the attendant was still being threatened.
6 The other offenders also took alcohol as well as $500 cash from the till.
7 On 14 March 2017, both you and M were arrested by police. M’s phone was seized and it contained an image of you seated with four unknown males, one of whom is wearing a face mask that was worn during the robbery. All males were drinking alcohol and were seated around various bottles of alcohol.
8 You were deemed unfit for interview.
9 On 14 March 2017, you were remanded in custody and have remained there since.
10 The victim declined to make a Victim Impact Statement.
11 You have no prior convictions, but on 21 August 2017, in the Children’s Court, you were placed on probation for 12 months after pleading guilty to various thefts and other offences that were committed in 2015 and 2016.
12 I turn to your personal circumstances.
13 You were born in Tonga and migrated to New Zealand in 1997. You are one of six children. You completed your primary schooling and commenced secondary schooling in New Zealand. In 2012, when you were 13, your parents migrated to Australia. You recommenced your secondary schooling at Hoppers Crossing, but in 2014, you were expelled from the school because of your poor behaviour and your use of illicit drugs.
14 You have never worked, but enjoy sport, including basketball and soccer. You listen to rap music and attend church with your family, who are devout Mormons.
15 A most helpful report authored by Dr Nina Zimmerman, forensic psychiatrist, and dated 11 August 2017, has been tendered. Dr Zimmerman expresses the opinion that you suffer from paranoid schizophrenia and that your illness is at the severe end of the spectrum. That diagnosis has been endorsed by several other forensic psychiatrists.
16 You have a well-documented psychiatric history.
17 You were introduced to cannabis by school friends when you were some 13 or 14 years old and by 2016, you were smoking 2 grams of cannabis daily. You would also binge drink alcohol.
18 In 2016, you were arrested on several occasions for unrelated offending. You were assessed by forensic medical officers and found unfit for interview. You spent 64 days remanded at Parkville Youth Justice Centre in mid-2016. During that time, you were treated for a psychotic illness. You were commenced on the oral anti-psychotics, olanzapine and risperidone, and the mood stabiliser, sodium valproate. You were noted to be “aggressive” in the context of paranoid beliefs and it was observed that you displayed sexually disinhibited behaviour, spoke to yourself, responded to internal stimuli, heard the television talk to you and heard your own thoughts spoken aloud. Grandiose delusions included the belief that you were rich and a rap writer and you reported voices telling you that you were “cool, sexy and … hot”.
19 On 17 August 2016, Dr Adam Deacon concluded that you were unfit to stand trial because you were actively psychotic.
20 On 24 August 2016, you were transferred from Youth Justice to Orygen Inpatient Unit on a secure treatment order, presenting with a prolonged period of new onset psychotic illness. Your presentation included a florid psychosis, elevated affect, marked thought disorder, grandiose ideals and strong auditory hallucinations.
21 On 24 September 2016, you were discharged to your parents and later moved to live with your uncle. However, it was noted in November 2016, that you were dismissive of services and only passively compliant. Your parents were fatigued and unable to cope. By February 2017, engagement consisted of monthly contacts to administer your depot antipsychotic, but you refused to engage in conversation.
22 On 3 February 2017, you were assessed by Dr Morton, forensic psychiatrist, who provided a report dated 6 February 2017. She diagnosed you as suffering from schizophrenia and misuse disorders involving alcohol, cannabis and methamphetamines. Dr Morton observed that you were floridly unwell and you were admitted to the Werribee Inpatient Psychiatric Unit on 4 February 2017, before being transferred to Orygen Youth Mental Health on 7 February 2017, for a trial of ECT. You were discharged to your family on 4 March 2017, but committed the armed robbery some eight days later. Your parents decided that they could not cope with your fraught mental health and declined to allow their address to be used for the purposes of bail.
23 On 16 March 2017, you were received in the Metropolitan Assessment Prison and found to be distracted, laughing incongruously and appeared to be responding to unseen stimuli. At the time of your arrest, you were subject to an involuntary Treatment Order, which caused you to be treated with antipsychotic medication and a mood stabiliser.
24 When reviewed by a psychiatrist on 23 March 2017, you were floridly psychotic, hallucinating, displayed a distracted affect, observed to be giggling and unable to meaningfully take part in an assessment. On 28 March, you were transferred to the Acute Assessment Unit and by 24 April, you were said to be exhibiting negative symptoms of schizophrenia, with a blunted affect, poverty of speech and little insight. You were discharged to the mainstream for follow-up by the Psychiatric Outpatient Services on 28 April 2017. On 20 June 2017, you were transferred to the Metropolitan Remand Centre (“MRC”) and after review, you were considered to be actively psychotic, with concerns about your incongruent affect.
25 In a report dated 23 June 2017, Dr Fiona Best found you unfit to stand trial, but felt that your circumstances may change over the next three months following treatment.
26 Dr Zimmerman assessed you on 20 July 2017 at the MRC. She noted that you showed a marked poverty of speech, initiated almost no conversation and gave short responses to most questions, often devoid of much content. You appeared to be doing your best to cooperate. You spoke softly and slowly. You did not display any formal thought disorder and did not express any grandiose, bizarre, persecutory or religious preoccupations and did not report any belief that an external force controlled your thoughts or behaviours. You denied any thoughts of wanting to harm yourself or others.
27 Dr Zimmerman considers that your treatment with a combination of antipsychotic and mood stabilising medication is appropriate, but that your compliance must be monitored. Compliance with oral medication will be more difficult in a less supervised environment.
28 Dr Zimmerman considers that a period in a Secure Extended Care Unit, such as an Adult Mental Health Rehabilitation Unit, will provide a supervised environment for the medium to long term, where consolidation of your early recovery can occur. She also emphasises that your illness has emerged in the context of heavy cannabis use and that a specialist service is required to deal with the problem. Caraniche’s Specialist Forensic High Risk Offenders Drug and Alcohol Services (“HRODAS”) is recommended. This service is aimed at individuals who have a high risk of recidivism and relapse into substance use.
29 Your counsel, Ms Tittensor, submitted that you should be sentenced to detention in a Youth Justice Centre. Such a sentence would enable the Youth Parole Board to make appropriate arrangements for your release and facilitate an arrangement for your admission into a supervised setting as recommended by Dr Zimmerman.
30 In my view, that submission is entirely appropriate.
31 You fall to be sentenced as a young offender who is still only 18 years old and your circumstances clearly enliven a number of Verdins considerations. Dr Zimmerman expresses the opinion that your schizophrenia was present at the time of your offending and that it is likely that you were actively psychotic at the time. You were deemed unfit for interview by police and within two days, you were admitted to the Metropolitan Assessment Prison, after hallucinating in police cells.
32 For its part, the prosecution concurred with Ms Tittensor’s submission.
Mr Plummer noted that your offending was directed at a soft target and that a number of your co‑offenders were disguised.
33 An assessment has been undertaken as to your suitability for admission into a Youth Justice Centre facility and somewhat surprisingly, you have been assessed as unsuitable for a Youth Justice Centre Order. It is therefore necessary to examine the basis of that assessment.
34 The pre-sentence report containing an assessment of your suitability for a Youth Justice Centre Order is dated 31 August 2017. It has been compiled by a Senior Youth Justice Case Manager in the Western Metropolitan Area and endorsed by a General Manager in the North West Metropolitan Area. Those persons need not be named.
35 The report reveals that discussions occurred with a Manager of Youth Justice Custodial Services who considered you unsuitable for a Youth Justice Centre Order for various reasons including:
· Youth Justice’s inability to provide assistance to deal with your mental health;
· Youth Justice’s lack of a facility to house you in a low stimulus environment;
· The likelihood that you will be easily targeted by immature clients; and
· Your lack of engagement with services.
36 It is also said that your prospects for rehabilitation and mental health intervention may be better placed in adult custody.
37 In accordance with the best traditions of bureaucratic delegation, the most junior and hapless of the authors of the pre-sentence report, was made available for questioning.
38 It emerged that the authors of the report did not know, and indeed, could not know, where you would be held if an adult custodial sentence was ordered. Accordingly, the authors of the report did not know and could not know what mental health services and other supportive services would be provided to you in an adult custodial setting. Therefore, the proposition that your mental health may be better managed in adult custody was entirely speculative and without any foundation.
39 One might have expected that a pre-sentence report would have specified the services and supports that could be provided to you in a youth justice facility such as Malmsbury. The report is silent.
40 One might have expected a reference to the substance and recommendation of Dr Zimmerman’s psychiatric report. It is not mentioned.
41 One might have expected detailed consideration of the provisions of s.32 of the Sentencing Act 1991, which requires consideration of whether a young offender has reasonable prospects for rehabilitation, or is particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison.
42 Those statutory criteria appear to have been supplanted by management concerns. It need hardly be said that one of the very purposes of a youth justice order, is to divert young persons from a life of crime and that a number of young offenders have challenging mental health issues which, unless tackled and treated at this stage, threaten to escalate in the future.
43 Dr Zimmerman has responded to the pre-sentence report. She states:
“As noted in my report dated 21 July 2017, Mr Lavalu suffers from a severe Paranoid Schizophrenic illness. I outlined my concerns about Mr Lavalu in the custodial environment in that report. The lack of contact with his supports (the Tongan community, his family and his church) leave him isolated and at risk of deterioration in his mental state in the custodial setting. He has a history of being vulnerable to assaults and his unusual and disinhibited behaviour when unwell carries a risk of leading to misinterpretation and retribution by other prisoners.
There is no doubt, given Mr Lavalu’s immaturity and vulnerability to assault, particularly when unwell, that he is at risk in the adult custodial setting. He would be best managed in a properly functioning Youth Justice system.”
44 I endorse those observations.
45 Given the imprecise nature of the services that could be provided within Youth Justice, this matter was adjourned to 13 September, when additional evidence was given by Leonard Norman, Director of Custodial Services at Youth Justice. A different picture emerged. Mr Norman indicated that detainees at Malmsbury have the regular support of psychiatrists, psychiatric nurses and psychologists. Whilst it was recognised that the case involved someone with complex needs and that there may be some difficulties in satisfying all of those needs within the Youth Justice setting, this court was reassured that Youth Justice would discharge its responsibilities, if an order was made.
46 Following the evidence of Mr Norman, both the prosecution and defence repeated their earlier submissions in favour of a Youth Justice Order. I entirely concur with those submissions.
47 On the charge of armed robbery you are sentenced to 20 months detention in a Youth Justice Centre.
48 Pursuant to s.35(1) of the Sentencing Act 1991, pre-sentence detention of 183 days is reckoned as having already been served under the sentence imposed this day.
49 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your plea of guilty, this court would have ordered that you be detained for 30 months detention in a Youth Justice Centre. Does anything emerge from those remarks?
50 MS TITTENSOR: No, Your Honour.
51 MR PLUMMER: No, Your Honour. There was an application for a forensic sample order.
52 HIS HONOUR: Is that resisted?
53 MS TITTENSOR: No, Your Honour.
54
HIS HONOUR: I make an order for the taking of a forensic sample by way of a buccal swab. I must inform you Mr Lavalu that the police may use reasonable force to carry out that procedure. Ms Tittensor if you wish to confer with
Mr Lavalu in court, I am sure the custodial officers will allow that to occur.
55 MS TITTENSOR: Thank you, Your Honour.
56 HIS HONOUR: Thank you, adjourn temporarily please.
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