Director of Public Prosecutions v Leadbetter
[2022] VCC 917
•15 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-00355
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW LEADBETTER |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 & 14 June 2022 | |
DATE OF SENTENCE: | 15 June 2022 | |
CASE MAY BE CITED AS: | DPP v Leadbetter | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 917 | |
REASONS FOR SENTENCE
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Subject:Criminal law
Catchwords: Make threat to damage property; theft; armed robbery; damaging property; commit indictable offence whilst on bail; contravene conduct condition of bail
Legislation Cited: Sentencing Act 1991
Cases Cited:Bugmy v The Queen [2013] HCA 37; R v Verdins & Ors [2007] VSCA 102
Sentence:10 months' imprisonment & Community Correction Order (30 months' duration, with therapeutic conditions)
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. Overend | Office of Public Prosecutions |
| For the Offender | Mr Z. Menon | Matthew White & Associates |
HER HONOUR:
1Matthew Leadbetter, you have pleaded guilty on indictment to make threat to damage property, theft, two charges of armed robbery and a charge of damaging property.
2You have also entered pleas of guilty to two summary charges. Summary Charge 2 is a rolled-up charge of committing an indictable offence whilst on bail. Summary Charge 3 is a rolled-up charge of contravening a conduct condition of bail.
3In sentencing you for these crimes, I must have regard to the maximum penalties for the offences which you have committed. The maximum penalties are as follows:
(a) armed robbery - 25 years;
(b) theft and damaging property - 10 years;
(c) make threat to damage property - 5 years; and
(d) the bail offences each carry 3 months' imprisonment.
4Those maximums reflect the seriousness with which Parliament regards these offences.
5In terms of the circumstances of your offending were set out in a document entitled 'Summary of Prosecution Opening', dated 30 May 2022. This is an agreed document. It represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
Charges 1 and 2
6I turn now to Charges 1 and 2. I am not going to repeat the entire summary, but in brief terms, on 23 May 2021 at 10:20 pm, you entered the 7-Eleven store in Dandenong Road, Prahran. You were let inside by the store attendance Jun Shi.
7You were wearing a black mask and a black bandana on your head and had a large chain with a padlock hanging around your neck.
8Upon entry, you went to the 'ParcelMate' desk area. You took the chain from your neck and selected several plastic postage bags. You waited for a female customer to leave, before approaching Mr Shi who was standing behind the counter.
9You held the chain in your right hand and pointed to the cigarette cupboard but Mr Shi did not understand what you wanted. You said, 'Don't make me smash things'.
10Mr Shi asked what brand of cigarettes you wanted and you told him five pouches. You were then handed five packets of cigarettes valued at around $30.50 each.
11You put the cigarettes into one of the postage bags and left without paying. These facts form the basis for Charge 1, make threat to damage property and Charge 2, theft.
12The prosecution opening tells me that Mr Shi was not too nervous at the time of the incident.
13At the time of this offending you were in breach of a curfew condition attached to a bail order. You were the subject of three bail orders at the time of the offending, which is part of the summary offence to which you have entered a plea of guilty.
Charge 3 – Armed Robbery
14At 1:05 am on 24 May 2021, you went to a 7-Eleven store in St Kilda Road, Melbourne. You again waited outside for another customer to leave before entering.
15You approached the store attendant Imran Mohammed and asked him for drinks. He directed you to the refrigerated section from which you selected two drinks and returned to the counter. You requested a pouch of tobacco.
16Mr Mohammed scanned the drinks and the tobacco and asked if you were paying by card. You told him, 'I paid yesterday'. Mr Mohammed told you that you were to pay. You became aggressive, grabbing the large chain around your neck and lifting it in an aggressive manner and down towards Mr Mohammed. You demanded that he give you the items stating, 'Give it to me or I'll come over the counter and take them.'
17
In fear, Mr Mohammed went into an office area and locked himself in, calling
Triple 0. You climbed over the counter, gained entry to the cigarette cupboard and filled a basket with packets of cigarettes, tobacco and soft drink before leaving the store. The total value of property stolen was approximately $500.
18Again, and the subject of the summary charges, you were in breach of a curfew condition on a bail order at the time of this offending and this offending occurred whilst subject to a bail order.
Charge 4 - Damage Property and Charge 5 - Armed Robbery.
19At around 10:40 am on 27 May 2021, you attended the IGA Xpress supermarket in Park Street, South Melbourne. You were wearing the same large chain with a padlock around your neck.
20On entry, you walked behind an unattended front counter and opened the cigarette cabinet. The store attendant, Sahil Agnihotri, approached you and told you he would call the police if you stole anything. One of the store owners, Satminder Kour, also approached you. You walked towards Mr Agnihotri, holding the chain in your left hand and waiving it aggressively. You yelled, 'You can't stop me. I need cigarettes.'
21You then walked to an ice cream fridge, pulled the chain from your neck and swung the chain in a downward motion, smashing the glass door to the fridge, forming the basis for Charge 4, damaging property.
22You then held the chain in your hand and shouted, 'If you don't give me cigarettes I will hit you.' You went behind the counter and opened the cigarette cabinet, grabbed some packets of cigarettes and walked from the store. You took approximately three or four packets valued at around $120. These facts form the basis for Charge 5, armed robbery.
23At this time, you were again in breach of a bail condition, this time not to enter the suburb of South Melbourne. You had also committed an indictable offence whilst on bail.
24You were arrested by police on 28 May 2021 but were deemed unfit for interview.
Gravity of Offending
25I turn now to the gravity of the offending. CCTV footage of the incidents was tendered. This is obviously serious and similar offending occurring over a period of some four days. Each of your victims were, as described, 'soft targets'. They were vulnerable as store employees when you had an aggressive presentation and access to a weapon in the form of the chain. Mr Shi and Mr Mohammed were working on their own, increasing their vulnerability. General deterrence is an important sentencing objective.
26In addition, each victim was in their work environment, an environment in which they are entitled to feel safe.
27I do accept the submission that your offending appears to be spontaneous. You were acting alone with no attempt to conceal your identity. The property stolen was of relatively low value and the weapon used perhaps less dangerous than some, albeit it was intimidating.
28It was not offending at the higher end of the scale for its type. Relevant also was your presentation at the time to which I will refer later.
Plea of Guilty and Koori Court
29I now turn to your plea of guilty and the plea in the Koori Court. The Sentencing Act obliges me to take into account the stage at which you entered your plea. Witnesses were cross-examined at committal hearing in the Magistrates' Court. This matter resolved at an initial directions hearing in the County Court.
30There remains clear value in saving the victims that need to give evidence in this court and relive distressing events, and there is utilitarian value in saving the community the expense of contested proceedings.
31Your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain as yet unfixed.
32You have taken responsibility for your offending.
33These factors will be taken into account in your favour.
34In addition, you chose to have your plea take place in the Koori Court. You are from Yorta Yorta people. The objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court through the role played in that process by the Aboriginal elders and respected persons. Others, such as family members and supports, are able to contribute to what is referred as the sentencing conversation. You were supported by Susan Foley from Alfred Mental Health.
35The sentencing conversation is designed to assist the reform of an Aboriginal offender through a blend of customary law and English common law. Participation in the process can be more burdensome than appearing at a traditional plea hearing because of its confronting nature and the inability to hide behind counsel.
36Aunty Pam Peterson was the respected elder who took part in the sentencing conversation. She confronted you with your wrongdoing and challenged you to find a different way of life, to connect with other family members and to find something positive to do with your time. She encouraged you to accept the help offered for your mental health treatment. This is something that you do wish to do.
37I did find that you participated in the sentencing conversation to the best of your ability and I take that and your participation in the Koori Court process into account.
Prior Criminal History
38I now turn to your prior criminal history. You do have a prior criminal history of some ten court appearances commencing in 2013 in the Echuca Children's Court.
39The majority of that offending is what I describe as street-based offending including theft, property damage, drug possession and breaches of court orders such as family violence or bail orders. It reflects instability in housing, instability in your mental health and the use of drugs.
40This is not to say that offending history is not serious. You have received short periods of imprisonment on some five occasions, the longest being 56 days from the Melbourne Magistrates' Court on 20 March 2017 for charges of contravening family violence intervention order, fail to answer bail, shop theft, dishonestly retain stolen goods, commit offences whilst on bail, recklessly cause injury, and drunk in a public place. On each of those five occasions, you were sentenced and released from custody with time reckoned as having been served and without being subject to court supervision.
41You have not had the assistance of court ordered support by way of sentencing outcome since a probation order from the Shepparton Children's Court in 2015.
42I am told you have a number of matters pending in the Magistrates' Court.
43Some explanation for your offending comes from your personal circumstances, to which I now turn.
Personal Circumstances
44You are presently aged 24 years.
45You were born in Melbourne but raised in Shepparton. You are the second eldest of a sibship of four and your mother is Yorta Yorta.
46Your parents separated not long after you were born. Your father was a drug user and your mother has mental health and alcohol problems. At present she has an intervention order against you.
47You attended school until Year 7. Not long after leaving school, you commenced drug use, beginning with cannabis. You do not have a work history and your finances are administered by State Trustees.
48Much of your personal history is outlined in reports that have been tendered and do not need to be repeated at length in the sentencing process. In short compass, your childhood was one in which you experienced, trauma, neglect, physical and sexual abuse and multiple placements in foster homes where you also experienced abuse and exposure to drugs.
49The application of the Bugmy principles referred to in the decision of Bugmy (2013) 249 CLR 571 are conceded by the Crown. Those principles include that, and I quote:
'Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving full weight to an offender's deprived background in every sentencing decision.'
50You also have a significant mental illness as you do suffer from schizophrenia. I will go briefly through the reports which have been tendered on your behalf, noting that I have had recourse to each document in its entirety. None of them were the subject of challenge.
51First in time is a letter authored by Dr Louise Dawson, consultant psychiatrist, from Alfred Mental and Addiction Health dated 19 April 2021. This letter confirms that you were first diagnosed with a mental illness in 2012 when you would have been around 14 years of age. You were first admitted as a psychiatric inpatient in 2017 and have had 20 admissions by the date of the correspondence, including a three-month admission in mid to late 2020. You have not received long-term or reliable treatment until a time that was recent to that correspondence, that is, 19 April 2021. Dr Dawson expressed concern for your wellbeing if incarcerated.
52A report from Dr Kevin Ong, forensic psychiatrist, dated 10 March 2022 was also tendered. This was clearly prepared in relation to other matters before the Magistrates' Court. At that time you were prescribed antipsychotic medication, as well as a mood stabiliser. You reported feeling less stressed since commencing the medication. You are accepting of medication and believe that they were of some benefit. Dr Ong confirmed your well established diagnosis of schizophrenia as an enduring psychotic illness. When unwell, you do experience bizarre delusional beliefs involving religion and aliens, as well as having auditory and visual hallucinations. You were also diagnosed with polysubstance use disorder, mainly cannabis and methamphetamine. At that time you were ambivalent about seeking treatment for substance use issues.
53A report dated 31 May 2022, also authored by Dr Kevin Ong, has also been tendered and is directly referable to the charges on the indictment. You believed at the time of the offending that you were the king of the Aboriginals and that you were owed the tobacco, as white settlers had taken all the tobacco, wine and tea. Relevantly, Dr Ong is of the opinion that, and again I quote:
'The armed robbery offences appear to be multifactorial in motivation … however, it also appears that Mr Leadbetter was in the throes of a psychotic episode at the time of the offending. He had been actively avoiding treatment for his schizophrenic illness and his issue was exacerbated by methamphetamine and cannabis use … The psychotic experiences would've impaired Mr Leadbetter's judgement, making him more impulsive and unable to consider the consequences of his actions.'
54Dr Ong also expressed the opinion that any period of incarceration would weigh more heavily upon you than a prisoner without your mental health presentation. You acknowledged to Dr Ong that you experienced a psychotic illness and noted the benefits again from your medication, as well as the detrimental impact of illicit substances on your mental health. You are agreeable to following up with the offered hospital psychiatric services post release.
55I accept that the offending before me occurred in a complex set of circumstances and that you were not in stable accommodation, had not been taking the necessary psychiatric medication in order to treat your illness and were using cannabis and methylamphetamine.
56I do accept in the circumstances that your moral culpability should be reduced.
57Your counsel calls into your aid the principles of a decision of The Queen v Verdins & Ors (2007) 16 VR 269. I accept that all limbs of that decision have application to the sentencing exercise.
58I also accept the protection of the community is important. Dr Ong recommended that the key factors to reduce your risk of reoffending included addressing your mental health, your substance use and your accommodation needs.
59An updated letter from Dr Louise Dawson, consultant psychologist with the Alfred Mental and Addiction Health Team, dated 3 June 2022, confirms that their service are trying to work with you to provide suitable and permanent accommodation. It also advises that you will be linked into the National Disability Insurance Scheme, which would be an additional service to which you have not previously had access.
60On release, you can again have the assistance of the Alfred Area Mental Health Service in managing your schizophrenic illness, your medication, treatment and appropriate referrals. This information was obtained by Ms Susan Foley during the sentencing conversation.
Prospects of Rehabilitation
61In terms of your prospects of rehabilitation, your time on remand has been the longest period you have spent in custody to date, some 382 days.
62This has been an isolating experience for you. I understand that you have not received any personal visits.
63In addition, it has been during the Corrections response to the COVID-19 pandemic which, in general terms, has required prisoners to isolate for a period of seven to 14 days on movement between prisons, has meant less freedom of movement within the prison system, less access to treatment, educational and rehabilitative programs. This is a more burdensome prison experience and I take that into account in a general sense and more so in your case, given the expert opinion about the burden of imprisonment on you particularly.
64You have maintained contact with the Alfred Mental Health Service and are to be linked in with the NDIS scheme for additional support. You are likely to be subject to a Community Treatment Order under the Mental Health Act upon release. The Alfred hope to link you in at accommodation called Queens Road, which would be within walking distance to your clinic. It has 60 self-contained residences and the NDIS scheme could assist with meal subsidies and cleaning. They also hope to access complex needs support from the Multiple and Complex Needs Initiative known as MACNI.
65Importantly, Mr Leadbetter, you see the benefits of treatment, you see the benefits of your psychiatric medication and you do see the need to stop using illegal drugs. I encourage you to hang on to each of those insights.
66A letter authorised by Mr James Stewart of Ravenhall Correctional Centre dated 10 June 2022 tells me that upon your release, transport will be organised to the Alfred Health for your assessment. If and when needed, also to Wulgunggo Ngalu. Intensive case treatment is available to support your return to the community. You do hope at some stage to access an Aboriginal-specific program at Wulgunggo Ngalu. I do accept that you will need considerable support to facilitate your rehabilitation. You will need to be prepared to accept that support or your prospects remain guarded.
Sentencing Submissions
67I turn now to the sentencing submissions. Given the range of matters to be taken into account, both parties submit that all relevant sentencing considerations can be reflected in what is described as a combination sentence. That is, a period of imprisonment in combination with a Community Correction Order. Your counsel also submits that a mere Correction Order without the need of any period of imprisonment would also reflect the considerations of your case.
68Should a Correction Order be imposed, you do hope to access a placement at Wulgunggo Ngalu Learning Place which is a culturally appropriate learning place which houses and supports up to 18 Koori men who are undertaking Community Correction Orders. I am told that your psychiatric treatment and medication can still be accommodated if you do go to Wulgunggo Ngalu.
69I have had you assessed as to your suitability for a Correction Order and you have been found suitable.
70A Mental Health Advice and Response Service report was also provided. It is perhaps of no surprise that a mental health component is recommended on any Correction Order, should one be imposed.
Sentencing
71The basic purposes for which a court may impose a sentence include punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters. These do include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims. I must also balance the interests of the community in denouncing criminal conduct with the interests the community clearly has in seeking to ensure where possible that offenders are rehabilitated and are reintegrated into society.
72I have taken into account the relevant sentencing guidelines referred to in section 5 of the Sentencing Act. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty, as well as the important principles of both totality and proportionality.
73Courts do have more discretion in terms of choosing a sentencing disposition which does enable all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to the option of imprisonment which is skewed towards retribution and deterrence, factors which have less weight in the sentencing mix for you.
74The path to rehabilitation may be a difficult one for you and it seems your ability to access appropriate services has a crucial role to play. A Community Correction Order can be punitive, can achieve deterrence, and may be suitable even in cases of relatively serious offences such as these which might have otherwise attracted an immediate term of imprisonment.
75I am going to deal with the summary offences of contravene conduct condition of bail and committing an indictable offence whilst on bail first. I note that they are each rolled-up charges. You have a relevant history and s18 of the Sentencing Act displaces the presumption of concurrency. The totality principle however has a role to play. For each of those two charges, you are convicted and sentenced to one month's imprisonment.
76For the charges on the indictment I do propose an aggregate sentence as I am satisfied that the offences are founded on the same facts, or form or are part of a series of offences of same or similar character. In so doing, I again bear in mind the principles of totality and proportionality. Accordingly, I sentence as follows.
77You are convicted and sentenced to 10 months' imprisonment with 382 days reckoned as served.
78There is no advantage to your rehabilitation or the community in having you overwhelmed on a Correction Order and I accept the submission that any order should be therapeutic only. Accordingly, in addition to the term of imprisonment, you are placed on a community corrections order for a period of two and a half years, or 30 months. During this time, you will be supervised by the Office of Corrections, you are to submit for mental health treatment, as well as treatment for drug addiction. I do ask that you attend Wulgunggo Ngalu when a place becomes available.
79In addition to the conditions I have imposed, there are standard conditions. The first and foremost of those, Mr Leadbetter, is you cannot commit any other offences during the two-and-a-half year period of that order which could be punished by imprisonment. You also need to attend, within two working days, to the Community Corrections Office. You are required to advise your Corrections officer of any change of address of where you are living or working and do that within two working days. It is a term of any Correction Order that you need to submit to visits as directed and you must obey the instructions of a Corrections officer. You cannot leave Victoria without their permission. So communication is going to be very important.
80In my view, Mr Leadbetter, this order presents you with a chance to change your life in a positive fashion, should you choose to take up that opportunity and the supports that I have asked to be made available. The order can be breached if you do not do it, and the order can be breached if you re-offend whilst it is in place. If you do breach it, you will have to come back before me for breaching the order and I may have to look at resentencing you on the charges all over again effectively.
81Now, I can only place you on that order if you are willing to be placed on that order. Mr Menon, do you wish to speak to Mr Leadbetter briefly?
82MR MENON: No, I think he understands the question that Your Honour's about to ask him.
83HER HONOUR: All right. Mr Leadbetter, do you agree to being placed on that Correction Order?
84OFFENDER: Yes, I do, Your Honour.
85HER HONOUR: Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty. If not for your pleas of guilty, you would have got a total effective sentence of two years and two months with a minimum of 14 months before being eligible for parole. Ms Overend, anything I've missed from your end if indeed you've even managed to keep up?
86MS OVEREND: Your Honour, just that PSD is to be 183 days, not including today.
87HER HONOUR: All right, I'll amend that accordingly and thank you for your assistance. I should've checked that at the start.
88MS OVEREND: That's all, Your Honour.
89HER HONOUR: Anything, Mr Menon?
90MR MENON: No, Your Honour, nothing from me.
91HER HONOUR: All right, well you've got 10 minutes left on the link. I'll let you speak to Mr Leadbetter if you need to, otherwise I'll stand down till 10.30, thank you.
92MR MENON: As Your Honour pleases.
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