Director of Public Prosecutions v Leong

[2023] VCC 167

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01692

DIRECTOR OF PUBLIC PROSECUTIONS

v

Su LEONG

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JUDGE:	Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2023
DATE OF SENTENCE:	13 February 2023
CASE MAY BE CITED AS:	DPP v Leong
MEDIUM NEUTRAL CITATION:	[2023] VCC 167

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing

Catchwords:              Attempted armed robbery – Early plea of guilty – Covid-19 pandemic – Remorse – Worboyes – Verdins – Good prospects of rehabilitation.

Legislation Cited: ss 6AAA, 18 40 Sentencing Act 1991 (Vic).

Cases Cited:R v Verdins [2007] VSCA 62; Worboyes v The Queen [2021] VSCA 169.

Sentence:                  183 days’ imprisonment and a nine month Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	F. Holmes	The Office of Public Prosecutions
For the Accused	H. Moodie	Victoria Legal Aid

HER HONOUR:

1Su Leong, you have pleaded guilty to one charge of attempted armed robbery. You have also agreed to this Court hearing, and pleaded guilty to, summary offences of commit indictable offence on bail and two charges of unlawful assault.

Circumstances of offending

Attempted armed robbery

2On 16 May 2022 at approximately 8:30pm, Mr Sandeep Sodhi arrived home to his address in, Williams Landing. It was bin night, and Mr Sodhi collected his bins and took them out to the front of his property. You saw him doing this, and decided to “target” him for money.

3You were wearing a black facemask and riding a bike. You rode up to Mr Sodhi as he was walking back to his house and yelled out, ‘Give me ten bucks’. Mr Sodhi stopped and turned around, and you got off your bike and approached Mr Sodhi and continued to demand money.

4Mr Sodhi told you he didn’t have any money, saying ‘I don’t have money, please go’. In response, you produced a kitchen knife from the pocket of your jacket and held it towards him, pointing it at him. The knife was double bladed and had a blade of approximately four to five inches. You continued to yell at Mr Sodhi to give you money and that you were hungry. Mr Sodhi was scared and thought you might stab him. Mr Sodhi ran down the driveway towards his house. You shouted after him words to the effect of ‘I know your house. Next time I come back, make sure you have money’.

5You then got back onto your bike and rode away.

Unlawful assault 1

6Not long after, at approximately 9:15pm, you arrived at McDonalds in Williams Landing. You attempted to order food via the McDonalds application on your mobile phone, however you could not get the application to work.

7You started yelling at customers and staff at the McDonalds store. The store manager, Samuel Kritikides, went and spoke to you from the other side of the store counter.

8You said words to the effect of ‘I’m crazy, don’t fuck with me, just give me my feed’. You produced a knife from your pocket and pointed it at him before throwing the knife at him.

9Mr Kritikides took the knife. You became aggressive and demanded it back, trying to grab it and saying it belonged to your mother and you wanted it back. Mr Kritikides told you, ‘If I give you the knife, you have to leave the store’. You agreed, and Mr Kritikides returned the knife. You took the knife, pointing it at your phone, before placing the knife back in your pocket.

10Mr Kritikides gave you some food for free. You then left the store.

Unlawful assault 2

11At approximately 9:30pm, you rode your bike along Waterways Boulevard in Williams Landing. The victim, Mr Amit Gupta, was driving along the same street in the same direction, and was travelling behind a blue hatchback.

12The blue hatchback and Mr Gupta stopped their vehicles at a roundabout. You rode up to the blue hatchback and using the knife hit the driver’s side window a number of times, which was witnessed by Mr Gupta. The blue hatchback drove off, with you riding behind and Mr Gupta’s driving behind you.

13You then threw your bike down in front of Mr Gupta’s car, causing him to stop. You began banging on the bonnet of Mr Gupta’s car shouting ‘give me something’. You banged on the driver’s side window with the knife.

14Mr Gupta drove away from you and performed a U-turn at the next roundabout in order to drive back to his home, which caused him to drive back past you. As Mr Gupta drove past you, you again tried to stab Mr Gupta’s vehicle with the knife.

Investigation and arrest

15Police located you riding your bike along Waterways Boulevard and placed you under arrest.  They later located the knife nearby. You were escorted by police to the Station where you participated in a record of interview, as outlined in the prosecution opening. 

16When asked what happened that night, you said you had a fight with your mother and brother. Your mother had given you $10, but your brother had refused to give you $11 so that you could get KFC, and refused to take you to get food, so you decided to get McDonalds. You said ‘…on the way I did some stupid things that I shouldn’t have done. Like, I was impulsive, I was manic, I was, like, enraged, in a bad mood’.

Nature and gravity of the offending

17The offence of attempted armed robbery is inherently serious as indicated by the maximum sentence set by Parliament.  You produced a kitchen knife and made demands of Mr Sodhi.  While I have not received a Victim Impact Statement in this matter, I accept that this would have been very confronting and frightening for him.  Given the circumstances of your offending I consider it was relatively unsophisticated, with little, if any, pre-planning. After this incident, you continued to act aggressively and erratically, producing and pointing your knife at Mr Kritikides who was at work at the time. Soon after this, you banged on the driver’s door of Mr Gupta’s car with your knife.  This was clearly aggressive and unacceptable behaviour. At the time you were also on bail for offending that relates to your sister and an intervention order.

18In assessing the gravity of your offending, I accept that your mental health is a relevant consideration and that your moral culpability is reduced by reason of this.  I will return to these matters in a moment. 

Plea of guilty and remorse

19You entered a plea of guilty at the earliest opportunity.  This entitles you to a substantial discount in sentence.  Your plea of guilty indicates your willingness to facilitate the course of justice.  It has utilitarian value, heightened as it was entered at a time where the Court system is still suffering the effects of the pandemic.[1]  I also accept that your plea of guilty demonstrates remorse. 

[1] Worboyes v The Queen [2021] VSCA 169.

Personal circumstances

20Your personal was outlined by your Counsel and set out in the report of Dr Ong (Exhibit 1).

21You are 35 years of age.  You were born in East Timor but your family fled the  country as your father had been tortured by Indonesian Security Services.  You sought asylum in Australia and arrived here with your family when you were seven years of age.  Very soon after your arrival your father died, leaving your mother and six children.  You are the youngest amongst your siblings. Your older brother Francesco, only a very young man at the time,  helped take on responsibility for the family.  

22Since your teenage years you life has been profoundly shaped by your mental illness. You have a well-established diagnosis of Bipolar II Disorder characterised by depressive episodes as well as hypomanic episodes. 

23You left school in Year 10, around the time you first started experiencing disruptive mental health problems.  You worked for a brief period in hospitality and retail work but have otherwise been unemployed.  Your brother, Francesco, describes you living an extremely isolated and reclusive life following the onset of your mental health symptoms. 

24You are currently on a Newstart Allowance though wish to apply for a Disability Support Pension and you’re also awaiting to be assessed for assistance through the NDIS scheme. 

25You have a relevant but very limited prior criminal history, attracting non-conviction dispositions. 

Mental health

26As already noted you have a well-established history of bipolar disorder.  Your mental illness is characterised by long depressive episodes, punctuated by intermittent hypomanic episodes during which you become irritable, impulsive, have racing thoughts and pressured speech and are prone to pursue risk taking. 

27You are currently prescribed mood stabilising medication, including lithium carbonate, daily.  Correspondence from Wyndham Clinic (Mercy Health) (Exhibit 2) notes that you have a history of non-compliance with medication and that your hospital admission between June and July 2021 was in the context of medication non-compliance. 

28Dr Ong assessed you in July 2022 in the context of providing an opinion as to the availability of a mental impairment defence.  At that time you were in custody, had been re-established on a mood stabiliser, lithium, and were indicating a willingness to follow up with your local area mental health service upon release.  

29In relation to your mental health diagnosis, Dr Ong states at paragraph 55:

Mr. Leong appears to have a well-established diagnosis of bipolar II disorder. In Mr. Leong, this is characterised by previous depressive episodes, as well as hypomanic episodes. Regarding the latter, Mr. Leong becomes irritable, impulsive, has racing thoughts, pressured speech, has increase in goal directed activity and is more prone to pursue activity that has high potential for painful consequences. He does not experience psychotic symptoms such as delusional beliefs or auditory hallucinations, and reality testing is not impaired. Relapses appear to be in the context of non-adherence to prescribed medication.

30Dr Ong considered the availability of such a defence to be a ‘vexed issue’.[2] Ultimately he considered that your mental illness was not one that would classically be associated with such a defence and there is no evidence that you were psychotic at the time of the offending.  However, he also concluded that your condition results in heightened irritability that does impair your judgement and ability to reason with sense and composure.  Further, it was unlikely that you would have offended in the way that you did had you not been experiencing a hypomanic relapse. As submitted by your Counsel, I consider that on the evidence, this is consistent with your somewhat bizarre and erratic behaviours at the time of your offending.  

[2] Paragraph 61 of Exhibit 1.

31Also, Dr Ong states ‘in addition, due to his ongoing need for mental health care, he is likely to find any term of imprisonment more onerous than a prisoner without his condition.’[3]  This is also consistent with the concerns you expressed to CISP when they assessed you in custody, that is, you were worried about your mental health deteriorating and felt like you were spiralling out of control. I further note that you spent approximately six weeks in insolation in a management unit following an assault upon you in custody.  

[3] Ibid, paragraph 62.

32I accept that you have a longstanding mental illness which has significantly impacted your life.  In the general period leading up to your offending your mental health was unstable, leading to multiple hospital admissions.  On all the evidence, I accept that at the time of your offending you were experiencing a hypomanic episode and that your mental health symptoms heightened your irritability, impaired your judgment and ability to reason with sense and composure or to engage in consequential thinking.  I accept that these considerations reduce your moral culpability for the offending and that the relevant Verdins[4] principles are engaged.  Also, given the nature and severity of your condition, I accept that the fifth and sixth limbs of Verdins also apply. 

[4] R v Verdins [2007] VSCA 62.

33You are currently medicated and your mental health is now closely being case managed by Wyndham Community Mental Health.  Their letter of 22 June 2022 details the nature of the previous case management support, psychosocial education and treatment they have provided in the past (Exhibit 2).  

Period on remand and bail

34You were remanded between 17 May and 14 September 2022 and spent a total of 183 days in custody.  While you were stabilised on your medications in custody, as I’ve already noted, you also struggled in that environment.  I take into account your period on remand and also that it was served under more onerous and restrictive circumstances as a result of Covid-19.  

35You were released on bail with a number of conditions, including that you comply with CISP and also attend before me for judicial monitoring.  The Court received several reports as to your compliance and progress on supervised bail.  The last report of 2 February 2023 confirms that since your commencement on CISP in November you have attended weekly case management appointments.  Your primary goal was to address your mental health and you were waitlisted for some time at the Wyndham Community Health Clinic.  As I’ve already referred to, you are now again a client of the clinic and have been allocated a case manager.  You are to initially attend case management appointments every seven to ten days and you will attend monthly appointments with a medical officer, and appointments with the consultant psychiatrist every three months.  You have also engaged well with drug and alcohol counselling. 

Prospects of rehabilitation

36I take into account the efforts you have made within this period and consider they reflect positively on your prospects of rehabilitation.  Overall, I assess these prospects as being relatively good: you have assumed responsibility for your actions; you have performed well on CISP and importantly you are actively engaging in mental treatment and case management and complying with your medications.  You also live with your family and have their support. Your brother Francisco,  has attended all of your court hearings.  He indicated in his letter to the Court (Exhibit 3) that since your release from custody you have been doing great; helping around the house, attending appointments and complying with your medication.  It is very clear that your brother is committed to supporting you and you are fortunate in this regard. It is also very clear that your ongoing rehabilitation is tied in with you continuing your mental health treatment and remaining compliant with your medication.

Sentencing principles

37The basic purposes for which a court may impose a sentence are punishment, general deterrence, specific deterrence, denunciation, rehabilitation and protection of the community. In my assessment of the weight to be given to these matters, I have taken into account the matters raised on your behalf, and in particular the application of the Verdins principles in your case. I do not regard you as an appropriate vehicle for general deterrence. 

38I also take into account the principles of proportionality, parsimony and totality, noting that your offending is very closely connected in time and circumstance.  I must also have regard to the seriousness of the offending, your culpability, your personal circumstances and also the general sentencing landscape for such offending. 

39On your behalf your Counsel submitted that a combination sentence was appropriate, that is a period of imprisonment, not exceeding the time you have already served, combined with a community corrections order (CCO).  The prosecution accepted that a combination sentence was within range but that it was a matter for the Court as to the term of any immediate imprisonment.

40I had you assessed for a CCO and you indicated a willingness to comply with the order and were assessed as suitable.

41Taking into account and synthesising all relevant factors in your case, I consider that a combination sentence is just and appropriate in your case and that you should not be required to serve any additional time in custody.  Given your very limited prior criminal history and your particular vulnerabilities, I consider that the 183 days you have already served on remand represents a  stern and significant punishment.  I take this into account in structuring both the period and the conditions of the CCO I will impose. 

Sentence

42Weighing up all those matters on the charge of attempted armed robbery you are convicted and you are sentenced to 183 days' imprisonment combined with a community corrections order for a period of nine months.

43In respect of the summary charges, that is the bail offence being Summary Charge 2 and the two charges of unlawful assault being Summary Charges 9 and 12, the sentence on these matters will form part of the nine month Community Correction Order.  So in other words, on those matters you are convicted and you will be sentenced to a nine month Community Correction Order.

44HER HONOUR: Pursuant to s40 of the Sentencing Act 1991 (Vic), given I consider that the offences are founded on the same facts or form part of the same series of offending, also taking into account the sentencing principles including totality and parsimony that I have already referred to, I have determined that it is appropriate to make the one Community Correction Order in respect of these matters.

45So to be clear, Counsel, it is the 183 days’ imprisonment combined with the nine month Community Correction Order.  He receives that for the attempted armed robbery.  For the summary offences I have sentenced him to the nine month component of the Community Correction Order.  Is that clear?

46MR MOODIE:  Yes. 

47HER HONOUR:  All right.

48MR MOODIE:  Yes.

49MS HOLMES:  Yes.  Thank you, Your Honour.

50HER HONOUR:  The conditions of the order will be as follows.  Supervision.  Treatment and rehabilitation for drugs.  Treatment and rehabilitation for alcohol.  Treatment and rehabilitation for mental health.  What I would expect, Mr Leong, but you will discuss it with Corrections obviously, is given that you are linked in with your local community mental health service I expect that they will also work with that service but you will speak to your case worker.  All right?

51Pursuant to s6AAA but for your plea of guilty I can indicate that I would have imposed a sentence of some 15 months' imprisonment with a non-parole period of around eight months’ imprisonment.

52I declare pursuant to s18 that you have served as pre-sentence detention 183 days’ in custody. I declare that period as served.

53Was there anything else, Ms Holmes?  Was there a disposal order, sorry?

54MS HOLMES:  There was.  Just for the knife.

55HER HONOUR:  That was consented to?  It was the knife, wasn't it?

56MS HOLMES:  Yes. 

57HER HONOUR:  I make the disposal order in the terms sought which I do note was unopposed.  Nothing further?

58MS HOLMES:  No, Your Honour.  Thank you.

59HER HONOUR:  All right.  Mr Moodie, anything further?

60MR MOODIE:  Nothing further, Your Honour.