Director of Public Prosecutions v Levy

[2018] VCC 1925

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-18-00937

DIRECTOR OF PUBLIC PROSECUTIONS

v

LENNY LEVY

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATES OF HEARING:	23 May and 26 October 2018
DATE OF SENTENCE:	29 October 2018
CASE MAY BE CITED AS:	DPP v Levy
MEDIUM NEUTRAL CITATION:	[2018] VCC 1925

REASONS FOR SENTENCE
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Subject:  

Catchwords:             One charge of attempted robbery, one charge of carjacking and one related summary offence of unlicensed driving

Legislation Cited:     Confiscation Act 1997; Sentencing Act 1991
Cases Cited:            R v Verdins (2007) 16 VR 269

Sentence:                  Total effective sentence 3 years’ imprisonment with a non-parole period of 22 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Caruso	Solicitor for the Director of Public Prosecutions
For the Accused	Ms S Poulter	Greg Thomas, Solicitor

HER HONOUR:

1       Lenny Levy, you have pleaded guilty to one charge of attempted robbery which carries a maximum penalty of 10 years’ imprisonment, one charge of carjacking which carries a maximum penalty of 15 years’ imprisonment and one related summary offence of unlicensed driving which carries a maximum penalty of 25 penalty units or 3 months’ imprisonment. 

2       Your offending all occurred on 25 May 2017 and is summarised in the prosecution opening (Exhibit “A”). 

3       Your father’s car broke down and, shortly after 3.00pm, you walked into a car wash near Broadmeadows Shopping Centre and took the keys of a black Holden vehicle, which a customer had left to be washed.  You got into the car and put the keys in the ignition. An employee of the car wash got into the front passenger seat and commenced to try to get control of the car keys.  You reversed the car for about 2 metres, with the employee’s legs hanging out of the car.  The employee punched you in the face and obtained the keys from the ignition, but you then punched him in the face and placed him in a headlock and grabbed the keys.  The employee then managed to break the key off from the ignition and you then left.  The incident was captured on CCTV.  Your victim was left with bruising and swelling to his right eye and face (Exhibit “B”).  This conduct constitutes Charge 1, attempted robbery.

4       About an hour later, you went to the home of Ms Mills and Mr Devine, who were known to you.  You asked Mr Devine to drive you to Dallas but, as he had been drinking, Mr Devine asked another friend, Mr Kayzer, to do so.  Mr Kayzer drove you to 12 Riggall Street in Dallas at your request.  You then got out of the vehicle and walked around to the driver’s side and reached into the car and attempted to pull the keys out of the ignition.  Mr Kayzer tried to stop you but you succeeded.  He then opened the door of the car to try to get the keys and you came and stood over him and told him to “Piss off”.  Mr Kayzer was in fear and got out of the car and you then drove away.  This is the offending constituting Charge 2, carjacking. 

5       You drove the stolen vehicle without being the holder of a driver’s licence and this comprises the related summary offence of unlicensed driving. 

6       On 8 June 2017, you were arrested by police.  You claimed that you could not remember the incident at the car wash or the carjacking and stated that you had been using drugs every day since you had been released from prison.  It is common ground that you had been released on 10 May 2017, only 15 days prior to the date of offending.  You had served a term of imprisonment of 140 days for dishonesty offences, intentionally destroying property and being in possession of ammunition without a permit.  It is also common ground that, at the time of offending, two concurrent Community Correction Orders made at Melbourne Magistrates’ Court on 27 October 2016 were on foot.

7       You are presently aged 24 years, having been born on 10 November 1993.  You come before the Court with a significant criminal history, dating back to your first appearance before the Melbourne Children’s Court in 2008, when you were aged 14 years.  Between that date and the commission of this offending, you have court appearances for eight robberies, two attempted robberies and, also, an attempted theft of a motor vehicle.  There are numerous other offences of dishonesty, assaults, damaging property, and, also, an aggravated burglary.  You also have been sentenced in courts in New South Wales and Queensland for dishonesty, drug offences, destruction of property and assault.  Over the years, you have been given a number of without conviction youth supervision orders, which you have breached, and sentences of imprisonment in a Youth Justice Centre.  You also have been given Community Correction Orders, which you have breached, and served immediate custodial sentences, totalling seven months in 2015, one year in 2016 and the previously mentioned 140 days in 2017.

8       In a plea on your behalf, Ms Poulter urged the Court to take into account that your pleas of guilty to the subject charges are early pleas.  Apparently you had been originally charged with a more serious offence and, on two occasions, the Office of Corrections failed to transport you from custody to the committal hearing in the Magistrates’ Court.  When you were ultimately transported to the hearing, a resolution occurred earlier this year.  I take such pleas of guilty into account in sentencing you and you are entitled to a discount for them, however, there is no material upon which I could be satisfied that you are remorseful for your offending.

9       At the plea hearing, a number of reports were tendered on your behalf.  A report of Ms Carla Lechner, psychologist, dated 29 August 2014, which is now somewhat dated, assessed you as having a mild intellectual disability as well as a poly-substance use disorder.  According to subsequent assessments by Ms Cidoni, psychologist, conducted on 24 October 2016 and 22 May 2018, the IQ scores of 69 or 70, arrived at on Ms Lechner’s assessment, differed somewhat from Ms Cidoni’s assessment.  Ms Cidoni assessed you as having a below average IQ with a score of 81 (albeit that intellectual testing was limited due to the box visit setting in which she interviewed you in prison).  This was in 2016.  When she assessed you in 2018, she considered that intellectual testing showed that you had a borderline capacity, with a full scale IQ of 77.  In any event, it is plain from the sentencing remarks of his Honour Judge Dean on 23 January 2015,[1] that you did not satisfy the criteria for an intellectual disability in order to receive services from Disability Services Victoria. 

[1]DPP v Levy [2015] VCC 11 page 3

10      I do take into account that your intellectual functioning is low and that there is a theme of impulsive and immature behaviour in the reports put before the Court.  However, the picture is complicated by you having been a long term abuser of cannabis since the age of approximately 13 years, and a significant abuser of ice since you were approximately 18 years old, together with having a problem of intermittent binge drinking.  Ms Cidoni’s report of her assessment on 22 May 2018 notes that on the Minnesota Multiphasic Personality Inventory, you showed elevated scores in relation to schizoid and paranoid ideation, unstable mood, anxiety and anti-social traits.  She noted that your impulse control problems can be excessive and unremitting and low frustration tolerance causes you to behave recklessly or irresponsibly.  You have difficulty thinking through the ramifications of your actions, are distrustful of others, and lack basic social skills.  You tend to rationalise or blame your difficulties on others.

11      Ms Cidoni stated that you have a “number of personality characteristics associated with substance use or abuse problems and acknowledged that you have resorted to drugs as a coping mechanism.”  She stated that you remain vulnerable and very immature and impressionable, but gave no elaboration of the reasons for reaching such conclusions. 

12      She considered that your ability to cope with stressors was poor and stated, “overall the clinical picture presents like a Schizoaffective Disorder and there is concern about an emerging personality disorder (antisocial or borderline type)”.  She provided no elaboration upon this, except to reiterate your symptoms of impulsivity in relation to risky behaviour, mood swings, intense episodes of anxiety and depression and mania, poor communication skills and difficulty controlling your emotional responses.  She did note that signs of psychosis and fluctuating mood were more pronounced in 2018 than in 2016. She stated that they were possibly exacerbated by 3 month lock down with only 1 hour out of your cell each day.

13      Ms Cidoni also noted that you meet the criteria for Substance Abuse Disorder (currently in enforced remission in custody) and that behavioural and psychological symptoms such as agitation, effective blunting and impaired judgment, had been present before and at the time of offending and were continuing in the custodial setting.  She stated that there was evidence of poor coping in prison with paranoia and aggressive and acting out behaviours, which are misinterpreted by others.  However, she did not give any examples of such behaviour.  She considered that you would need intensive psychiatric support and regular counselling in prison and expressed concern about you becoming institutionalised.  Overall, I found Ms Cidoni’s report to be vague and it lacked detail.

14      I adjourned the matter to 30 May 2018 to enable Ms Cidoni to provide some clarification of matters in her report. A third report, dated 24 May 2018, was tendered as Exhibit 4. In this report, Ms Cidoni stated that your borderline IQ means that you have difficulty with clear thinking, good judgment, problem solving and considering the consequences of your actions. These difficulties have given rise to issues in custody.

15      In this report (unlike her earlier one, which stated that “the clinical picture presents like (my emphasis) a Schizoaffective Disorder”) she stated definitively that you present “with (my emphasis) Schizoaffective Disorder”. she stated that this “disturbs normal thought process and behaviour where (your) perception of events can be obscured or misunderstood.”  She had referred to symptoms of this disorder in her earlier report, as previously mentioned.  She considered that these symptoms were responsible for your being managed in prison by being confined for 23 hours each day.  She stated that this setting impacts adversely on your cognitive functioning and mental health and means that you have limited access to programs.  She noted that you reported not having seen a psychiatrist or psychologist and you were, thus, in a destructive cycle where you were misunderstood and react with bad behaviour.

16      The matters expressed by Ms Cidoni caused me to further adjourn the matter to 27 August 2018 so that you could undergo a psychiatric assessment by Forensicare.  I also considered it appropriate to obtain a report from the Sentence Management Unit of Corrections Victoria detailing your management whilst in custody.

17      Unfortunately, the matter had to be further adjourned from 27 August 2018 to 26 October 2018 due to delay in the request by the Court being communicated to Forensicare.  Subsequently, Ms Melanie Fletcher, senior administration officer at Forensicare, provided a letter to the Court dated 5 October 2018.  This states that, on two occasions, namely, 27 September and 4 October 2018, a videolink assessment of you by Dr Amy Preston of Forensicare was organised, but you failed on each occasion to attend such assessment.  In a covering email of the same date, Ms Fletcher states that you refused to attend each of the assessment sessions (Exhibit F).

18      By the date of the ultimate adjourned hearing on 26 October 2018, two affidavits had been filed with the Court relating to your management since being remanded in custody on the subject charges on 8 June 2017.  These are an affidavit sworn by Jennifer Anne Hosking, Acting Assistant Commissioner, Sentence Management Division, Corrections Victoria, on 24 August 2018 (Exhibit D), and an affidavit of Brendan Francis Money, Assistant Commissioner, Sentence Management Division, Corrections Victoria, on 12 October 2018 (Exhibit E).  It is apparent from this material that you have been involved in frequent incidents in custody, involving aggressive behaviour to prison officers, and threats to and fights with other prisoners, and other anti-social behaviour, as well as failures to obey prison directions.  This has resulted in you spending significant amounts of time in management units, with only one or two hours out of your cell each day, as well as suspension of visiting privileges.

19      It is apparent that you have presented prison authorities with a challenge in their management task, and that the methods of managing your behaviour have made your time served on remand onerous.  Of the 16½ months spent on remand, approximately 9 months have been under conditions of lockdown, where you were entitled to only 1 or 1½ or 2 hours each day out of your cell. 

20      Ms Poulter, on your behalf, argued that, on the basis of Ms Cidoni’s third report (Exhibit 4), the Court should accept that you have a schizoaffective disorder that disturbs normal thought processes and behaviour, and your perception of events can be obscured or misunderstood, and this includes symptoms of impulsivity.  In addition, Ms Poulter invited the court to find, on the basis of Ms Cidoni’s earlier assessment on 22 May 2018 embodied in her second report of that date (part of Exhibit 1), that you had borderline intellectual capacity, and that these two factors merited the application of principles 5 and 6 in R v Verdins.[2]

[2](2007) 16 VR 269

21      As discussed with your counsel during the plea hearing, I consider your psychosocial presentation to be a complex one, which was why I had sought clarification by psychiatric assessment.  Unfortunately, I now do not have the benefit of that assessment, and I do not regard the reports of Ms Cidoni as providing sufficient clarity to support the proposition that the principles of Verdins’ case should apply in the way articulated by your counsel.  This is because, in addition to other matters, Ms Cidoni, in her report dated 22 May 2018, makes mention of you having a number of personality characteristics associated with substance abuse or abuse problems.  She stated that personality testing indicated that your ability to cope with stressors is poor, and that your profile suggested emotional and personality disturbance that is becoming very entrenched, with elevations on schizoid and paranoid scales, mania, depression, and anxiety.  She noted that you meet the criteria for a substance abuse disorder, but also expressed “concern about an emerging personality disorder (antisocial or borderline type).”

22      I find that I cannot be satisfied on the balance of probabilities that you either have a cognitive impairment or a psychiatric/‌psychological condition of a magnitude sufficient to attract the principles in Verdins’ case.  However, I consider that on the basis of a combination of circumstances personal to you, as a matter of fairness and common sense (as distinct from pursuant to the application of the principles in Verdins’ case), I should take into account that imprisonment has been, and is likely to be, more burdensome for you than for others without the relevant factors I will mention, and that you may well suffer a deterioration in your mental state.

23      It is plain that you suffer a background of disadvantage and deprivation.  You were born in New Zealand to Samoan parents.  Your mother abandoned you before you were 12 months of age, and you were raised by your father and a stepmother in Auckland, before you came to Australia at age thirteen.  Your stepmother was apparently physically violent towards you, and expelled you from the home when you were aged fourteen.  You were homeless for a time, and, then, subject to the care of the Department of Health and Human Services, and lived in youth residential units until the age of eighteen.  Thereafter, you have had an unstable accommodation situation.  At times, you were living in a tenanted house, at times with your sister in Sydney, and at other times in Brisbane or in Melbourne.  You have suffered significant periods of homelessness.

24      Layered upon this is low cognitive function and symptoms of anxiety and depression, and substance abuse, initially cannabis and, then, escalating use of ice from your late teenage years.  In the past you have been prescribed Zoloft.  I accept Ms Cidoni’s assessment that you are a very immature and impressionable, and are vulnerable person because of your relatively low intellectual capacity, unstable mood, anxiety, and anti-social traits.  I accept that you have difficulty thinking through the ramifications of your actions, and your emotional and personality disturbances can be misinterpreted by others and make you a target.  It would appear that these factors have played a role in the substantial number of incidents whilst you have been in custody, causing a rigid lockdown regime to be put in place.  I make it plain that I do not take into account the infractions mentioned in Exhibits D and E, other than in attempting to understand how you have coped in prison, and in assessing your prospects of rehabilitation.

25      Mr Levy, your behaviour in committing Charge 1 and Charge 2 was wilful, dishonest, brazen and very frightening for your victims.  The CCTV footage tendered as Exhibit “G”, demonstrates this very clearly.  This was taken at the carwash to which Charge 1 relates.  Your victim on Charge 1, Mr Nitish, should never have been put in a position of having to wrestle for the control of the car of one of his customers from a would-be thief by you.  He was very courageous in trying to look after his customer’s property and, for his efforts, received bruising and swelling to his eye and face.  As far as Charge 2 is concerned, it is a substantial loss and inconvenience for anyone to have their car stolen, regardless of the value of the vehicle.  Your behaviour was all the more offensive given that Mr Kayzer, who was a total stranger to you, had been good enough to give you a lift.  You are a powerfully built person and, although there is no Victim Impact Statement from Mr Kayzer, it is entirely understandable that he became very scared as you stood over him and told him to “Piss off”.  It is not surprising that he was so afraid that he got out of the car enabling you to steal it.

26      Unfortunately, carjacking has become such a prevalent offence that a couple of years ago Parliament showed the concern of the community by making it a specific offence carrying a higher maximum penalty than that for theft alone.  In sentencing you, the Court must denounce your conduct and place emphasis upon general deterrence so that other people who think they can terrorise others in order to steal their cars will know that they will be appropriately punished.  In addition, your significant history of violent and dishonest offences means that emphasis must be placed upon specific deterrence. 

27      Unhappily, you have shown yourself, time and time again, to be a person from whom the community needs protection.  Your counsel has acknowledged that a custodial sentence with structured supervision by way of parole is appropriate.  She has urged that the Court take into account your relatively young age and the fact that your management issues in custody have meant that you have been unable to access programs to help to prepare you in any way for release back into the community.  I do take these matters into account.

28      However, your antisocial behaviour and lack of sophistication due to your low intellectual functioning presents a significant management problem, particularly when it is coupled with long term serious substance abuse of both cannabis and ice.  Whilst you have had a background of disadvantage, it is difficult to know how much of your behavioural problems are attributable to underlying depression and anxiety, low intellect, substance abuse or personality factors.  It is likely that substance abuse exacerbates your feelings of depression and anxiety, as well as compounding your cognitive difficulties.

29      In sentencing you, I take into account your early pleas of guilty, for which you are entitled to a meaningful discount upon the sentence which, otherwise, would have been imposed.  I have referred already to my reservations about your prospects of rehabilitation.  I have already referred to your background of disadvantage and, presumably, disrupted education.  It would appear that you began a history of regular use of cannabis at around 12 or 13 years of age, together with abuse of alcohol, and later progressed to daily dependence on methamphetamine.  You have very limited work experience, except for a few months here and there in unskilled jobs some years ago.  You still apparently enjoy a reasonably close relationship with your father who, along with a younger brother of yours, has visited you in custody and keeps in telephone contact with you. Other than that, you have very few supports, except for old associates who, like yourself, are drug users.  Unhappily, your antisocial, dishonest, violent and wilful behaviour seems to have become a way of life for you and multiple dispositions by courts to try and assist you have met with little or no cooperation from you. 

30      Your significant criminal history involving offences of violence, the fact that the offending for which I must sentence you was committed only 15 days after you were released from serving a sentence of 140 days’ imprisonment and in breach of two community correction orders which were still current, pursuant to the disposition of the Melbourne Magistrates’ Court made on 27 October 2016, do not inspire optimism for your rehabilitation.  However, it is perhaps significant that since 11 July 2018, when you were transferred to the mainstream prison system, after having spent so long in management units, there have been no further incidents in prison. Indeed, although there was material before the Court to suggest that you had been placed on Zoloft for your anxiety, you instructed your counsel that you have not been taking Zoloft for some three months and have enjoyed a job as a billet, working attending to the bins in the Charlotte South Unit, where you are housed and have enjoyed, once again, having 11½ hours out of your cell each day.  In addition, you supplied urine for analysis on 14 August and 4 September 2018 and the reports of such analysis were negative for illicit drug use (Exhibit 5). These matters are to your credit.  It is very early days, and particularly in the absence of a current psychiatric assessment, I find it difficult to make other than a very, very guarded assessment of your rehabilitative prospects.  You have presented an extremely difficult management problem in prison and have shown yourself to be a repeated menace to society.

31      I do note that when you were placed on the Court Integrated Services Program in April 2016 and the report of your brief time on that program (Exhibit “3”) shows some engagement by way of three appointments for drug counselling and two appointments with a psychologist in relation to your anger management problems.  You also attended seven of 10 scheduled appointments with your case manager and apparently were prescribed antidepressants by your general practitioner.  It seems that, given your low intellectual functioning and long term substance abuse, you are in need of quite intensive support and supervision. Unfortunately, your engagement with the CISP program was relatively short-lived, as you were remanded in custody for further offending.

32      It can only be hoped that a period of sustained abstinence from alcohol and illicit drugs whilst in custody, coupled with intensive supervision on parole, will enable you to undertake drug and education programs to try to assist you.  You have not previously had the benefit of a parole period.  You need to be aware that any application for parole is a matter for the Adult Parole Board and this will depend upon you having behaved satisfactorily whilst you are in custody.  If you are granted parole and do not take advantage of the supports offered to you, then you will continue to be a menace to society and your life will be a wasted one. 

33      Although I am not optimistic about your prospects of rehabilitation in the light of a decade of repeated antisocial offending, it would be wrong of this Court to ignore your prospects of rehabilitation. Taking into account your low intellectual functioning and the likely burdensome nature of your experience of imprisonment, to which I have already referred, and the fact that you are still only 24 years of age.  I consider it is appropriate to try to ensure maximum support once you are returned to the community.  Hence, the sentence which I intend to impose, which involves a parole period.  However, as I have said, whether parole is granted is a matter for the Adult Parole Board.

34      On Charge 1, attempted robbery, you are convicted and sentenced to be imprisoned for a period of 18 months.

35      On Charge 2, carjacking, you are convicted and sentenced to be imprisoned for a period of 2 ½ years. 

36      On the summary offence, Charge 6, unlicensed driving, you are convicted and sentenced to be imprisoned for a period of 1 month.

37      The base sentence is that of 2½ years imposed on Charge 2.  I direct that 6 months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2.  Save for such cumulation, all sentences are to be otherwise served concurrently.

38      The total effective sentence is thus 3 years’ imprisonment.  I order that you serve a period of 22 months’ imprisonment before becoming eligible for parole. 

39      I declare a period of 508 days pre‑sentence detention be reckoned as time already served under the sentences imposed this day.

40 Pursuant to s78(1) of the Confiscation Act, I order the forfeiture to the State of the property referred to in the schedule of this order, namely, a Repco 5 litre fuel can, a hand written note, a KFC receipt, a pair of grey shorts and Victoria driver’s licence No 15816236.  I further direct that such property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.

41 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been 4½ years’ imprisonment with a non-parole period of 3 years.

42      Mr Levy, I hope that you get some assistance with staying away from illicit drugs and the court wishes you well with your rehabilitation.

PRISONER:

43      Thank you.

HER HONOUR:

44      Ms Poulter, thank you for your diligence on your client’s behalf in this matter which has a checkered history.

MS POULTER:

45      Thank you, Your Honour.

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