Director of Public Prosecutions v Lim
[2014] VCC 1826
•3 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 14-01485
Indictment E11735575
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ELVIS LIM |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 3 November 2014 | |
CASE MAY BE CITED AS: | DPP v Lim | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1826 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. O'Halloran | Office of Public Prosecutions |
| For the Offender | Miss L. M. Torres |
HER HONOUR:
1 Elvis Lim, you have pleaded guilty to one charge of theft (Charge 1) and one charge of armed robbery (Charge 2). The maximum penalty for armed robbery is 25 years’ imprisonment. The maximum penalty for theft is 10 years’ imprisonment.
2 The prosecution made application for an order for the disposal of certain items. The making of that order was not opposed.
3 The circumstances of your offending are set out in the Prosecution Opening upon Plea which was tendered as Exhibit A. The offence of theft, which is the subject matter of Charge 1, occurred between 26 April 2014 and 27 April 2014. The owner of a black Mercedes car lent the car to a person who left it locked and parked in Mornington, Victoria. Between 26 April 2014 and 27 April 2014, you stole the car which was located on 27 April 2014 in a damaged and unlocked state in Moama, New South Wales. Your fingerprints were found on the fuel cap and the interior rear-vision mirror. You were found by police in Moama on 28 April 2014, sitting on the ground, rocking backwards and forwards and talking to yourself. You appeared to police to be possibly drug-affected and you appeared disoriented and confused. You were taken to the Echuca Regional Hospital for a mental-health assessment.
4 The armed robbery which is the subject matter of Charge 2 occurred on 26 May 2014. You entered a convenience store in Caroline Springs, Victoria. You tried to buy some cigarettes but your credit card was declined. You became angry and left the store. You then went to a bottle-shop. You asked about an ATM. You went outside and then came back to the shop throwing your card on the counter. You asked the shop owner for a packet of cigarettes and said you would pay later. The shop owner said he could not give you a packet of cigarettes. You said “Call the police, but I want a packet of cigarettes.” The owner refused again. You threw a chip-stand on the ground and threatened to “grab this piece of wood and smash everybody’s windows”. You left the shop.
5 The shop owner and his father followed you out of the shop. They saw you collect a wooden stake from outside another nearby shop. Holding the wooden stake, you confronted the shop owner and made further demands for cigarettes. You swung the wooden stake in the direction of the victim’s left thigh, striking the victim’s left hand and thigh, causing him pain. An empty bottle then fell from your back pocket onto the ground. You picked it up, smashed the end off and held the neck of the bottle in your right hand. You had the wooden stake in your left hand. You began approaching the store owner and his father. You said “You guys don’t want to get killed for a packet of cigarettes,” and “I will cut you off.” The shop owner feared for his safety. He returned to the shop and gave you a packet of cigarettes and a lighter. You said you would later pay for the items and then left the store.
6 Shortly after the armed robbery, you were found one block from the shop, where you were arrested and taken to a police station. In custody your behaviour became erratic. A forensic medical officer deemed you unfit to be interviewed.
7 Your counsel said that at the time of each of these offences you had been using Xanax and ‘ice’. Her instructions were that you could only remember ‘bits and pieces’ of the incidents including part of the drive to New South Wales and voices in your head telling you to take the cigarettes.
8 You were charged on 26 May 2014. The committal case conference proceeded by way of straight hand‑up brief on 21 August 2014. On that date you indicated that you would plead guilty to these charges.
9 Victim impact statements from the store owner’s father and the store owner were tendered as Exhibits B and C. In his victim impact statement, the store owner describes the effect on him of your offending. He says that he gets nightmares and wakes up during sleep. He says that he is always “paranoid” at work. He says that he tries to have two staff at work at all times, with one person standing near the door to keep an eye outside. He says it has had a detrimental effect on his ability to work efficiently. The victim’s father, who is seventy-seven years old, says that he is very concerned for the safety of his son. He says he goes to work with him every day and feels stressed about what has occurred.
10 In sentencing you I have taken into account your personal circumstances. You are now twenty-five years old. You came to Australia from East Timor with your family when you were twelve. After living in Sydney for some years, your family moved to Melbourne. You are one of five siblings. Your parents separated a few years ago and you have had no contact with your father for about four years. Your mother has remarried. You get on well with your stepfather. Your mother and stepfather were in court to support you.
11 You completed part of Year 10. After leaving school, you did one year of an apprenticeship as a boiler-maker. You were in trouble at school with truanting and getting into fights. You worked in a number of jobs in the Melbourne area after doing the year’s apprenticeship. You were living with friends at this time. You have had jobs in warehouses, bakeries and factories.
12 You had a significant relationship when you were twenty. You had a relationship with a young woman for about a year and were devastated when that broke up.
13 You had been using cannabis and pills intermittently since your adolescence. From twenty years old you were using ice regularly and that use increased after the break-up with your girlfriend when you were around twenty-one years old. You were also feeling stressed at that time because of issues between your parents around their break-up.
14 You did reduce your drug use in around 2012–2013. This was particularly in the context of being placed on a CISP program and a community correction order. You did some drug counselling, to which you responded reasonably well. In early 2014 you went back to heavy drug use.
15 You have admitted a significant prior criminal history. Your offending is consistent with your instructions that your offending was drug-related.
16 In May 2011, you were convicted in relation to a number of charges including intentionally causing injury, trafficking methylamphetamine and driving offences. You were placed on a 12‑month community-based order.
17 In July 2011, you again appeared in the Magistrates’ Court on drug and driving-related charges. You were sentenced to a four month sentence of imprisonment, wholly suspended.
18 In February 2013, you appeared in the Sunshine Magistrates’ Court in relation to a number of charges including charges of aggravated burglary, driving offences, assaulting police, reckless conduct endangering serious injury and theft of a motor vehicle. In respect of those charges you were placed on an 18‑month community correction order. That offending breached the suspended sentence which had been imposed in July 2011 and that suspended sentence was wholly restored. You had served 110 days on remand which was reckoned as served under that sentence.
19 I was advised that you have been charged with other offences in February and March 2014. You have also been charged with breach of the community correction order by further offending and failure to comply. The offending for which I am sentencing you would appear also to breach that community correction order. The breach of the community correction order and the other charges will be dealt with in the Magistrates’ Court.
20 In sentencing submissions your counsel particularly relied on:
(a)Your plea of guilty;
(b)Your relative youth;
(c)Your prospects of rehabilitation;
(d)The impact of drugs and psychosis on you at the time of the offending.
21 Your counsel tendered a number of documents which were tendered as Exhibit 1. Exhibit 1 included a psychiatric report from Dr Lester Walton dated 7 October 2014. Dr Walton says that you are currently being treated with anti-psychotic medication in custody. You continue to experience auditory hallucinations but you are able to ignore them. Your previous paranoia has resolved. Dr Walton says:
“I observed nothing to contradict Mr Lim’s assertion that his hallucinations are now quite mild and that he is no longer deluded. There was no evidence of thought disorder nor any other sign of current psychosis.”
22 It is Dr Walton’s opinion that the probability is that you are suffering from a drug-induced psychosis, with methamphetamine being the principally-relevant substance. He says there is a possibility that you may be suffering from schizophrenia aggravated by drug use but that, at this stage, he prefers to make a diagnosis of drug-induced psychosis. Dr Walton says:
“The aggressivity which accompanied the armed robbery is certainly characteristic of methamphetamine.”
23 Dr Walton is of the opinion that your drug abuse would have compromised your ability to exercise proper judgment and control your impulses and urges. He is also of the view that it would be likely that aggressive tendencies might be disinhibited. Dr Walton says that no additional psychiatric treatment is required for you at the moment and that you would be a candidate for further drug rehabilitation.
24 Dr Walton says that the symptoms of a person suffering from drug-induced psychosis may be indistinguishable from the symptoms of acute schizophrenia and, as I understand his report, he is saying that the distortion of judgment would be more likely to be the result of the psychosis rather than the direct impact of the drug itself. Dr Walton says that incarceration would not be especially more onerous for you now that there has been partial restoration of mental health.
25 Amongst the material tendered was a report from Mr Warren Simmons, psychologist, dated 20 November 2012. Mr Simmons describes the effect on you of a shooting which occurred in about June 2012 when you were shot in the right calf and a bullet was fired at your head. This apparently occurred in the context of drug debts. Dr Walton says that you do not appear to have suffered any enduring adverse psychological effects from that incident. You told Mr Simmons that your prior convictions at that stage were related to your substance use. You told Mr Simmons that your substance use was a factor in the relationship breakdown with your girlfriend.
26 Mr Simmons suggests that a period of time on remand and the shooting had motivated you to cease your substance use. He said that mental-state examination was otherwise unremarkable. In respect of the matters that were currently before the court in 2012, Mr Simmons says that they occurred when you had been using meth-amphetamine, which would have impaired your cognitive processes as you were using the drug on a daily basis.
27 A further undated report from Dr Stephen Brockway from Orygen Youth Health describes your admission to that service in May 2014. It appears from the material provided that you were admitted between 6 May 2014 and 16 May 2014. Dr Brockway refers to June but it is agreed that that was an error. Dr Brockway says you were admitted and treated for a psychotic disorder related to ongoing methamphetamine intoxication and use. You were stabilised with treatment with anti-psychotics and abstinence from methamphetamines. Dr Brockway says:
“Over the course of treatment he gained insight into the connection between using methamphetamines and psychotic symptoms.”
28 When discharged, you said you planned to continue treatment, stay on medications and to think about stopping drug use. You were not exhibiting psychotic symptoms on discharge and you were assessed as being capable of voluntarily engaging with treatment. You did not follow through on that and went on to engage in further drug use and the offending which is covered by Charge 2.
29 Your counsel submitted that it was open to me to conclude that you had an underlying schizophrenic condition. She submitted that that amounted to a psychotic illness and ought to attract the application of Verdins principles. She said it was of particular importance that the diagnosis of psychosis had only been made on the admission to Orygen and by Dr Walton. Whilst you had been admitted to Orygen, that was only very shortly before the offending in Charge 2, and you had not at that point understood the connection between your use of ice, psychosis and offending.
30 Your counsel said that she had read the victim impact statements to you and you understood how your offending had impacted on the victims. You have said that you want to stay off drugs and continue with mental-health treatment. Your mother and stepfather have said you are able to live with them on your release. You have said you would like to work at anything and are enjoying your work in custody doing kitchen-cleaning duties seven days per week.
31 The prosecutor submitted that you were aware that your offending was linked to your drug use. The prosecutor also referred to Dr Brockway’s conclusion that you did have insight into the connection between your ice use and psychosis. The prosecutor submitted that there should be no application of Verdins principles.
32 The prosecutor confirmed that you had spent the period between 13 March 2014 and 14 April 2014 in custody on remand for the matters which are pending in the Magistrates’ Court.
33 Elvis Lim, you have committed serious offences. Armed robbery is a particularly serious offence. That is reflected in the maximum penalty available. I accept that it is possible that someone else was also involved in the theft of the car but that does not reduce your responsibility for the theft. The theft must have caused some distress and inconvenience to the owner. The armed robbery was clearly frightening for the store owner and his father, both of whom continue to be fearful. You threatened to use weapons, which were a piece of wood and a broken bottle. I accept that the use of weapons was opportunistic and not pre-planned.
34 You appear to have set out to get cigarettes with your card but became frustrated when that was declined. I note that all you got was a packet of cigarettes and a lighter and that you said you would pay for them later. That said, you swung the piece of wood at the owner and broke the neck of the bottle. You referred to killing the owner and his father. This sort of offending also causes fear amongst people who work in convenience and other stores and undermines feelings of safety amongst other members of the community. A sentence must be imposed which is severe enough to deter others from similar offending.
35 I consider that specific deterrence must also be given significant weight in sentencing you. You have a significant history of drug related offending. You have one prior conviction for theft of motor vehicle. You have no prior history of armed robbery but do have multiple convictions for offending including violence or dishonesty. You have continued to offend despite previous court orders providing for your rehabilitation in the community. You must understand that if you commit serious offences in the future, you will be subject to significant punishment including jail sentences. It is to be hoped that the prospect of a return to jail in the future will encourage you to obtain support to stay away from illegal drugs. You are still relatively young. Your prospects of rehabilitation are clearly linked to your ability to remain drug free.
36 It is encouraging that you appear to have responded well to the anti-psychotic medication and have greater insight after having spent some time on remand. I note that you have expressed some empathy for the victims to your counsel. It is encouraging that you are working in gaol and wish to obtain employment on your release. I note your family support and offer of accommodation. At this stage, I assess your prospects of rehabilitation as being moderate at best.
37 On the material before me, I cannot conclude, to any level of satisfaction, that you have an underlying psychotic disorder. From that material, I accept that it is likely that at the time of this offending you were suffering from drug-induced psychosis. It appears that it was only with the admission to Orygen that this diagnosis was made. On that basis, I accept that your mental state was compromised more than it had previously been due to your drug taking. That is reflected in your state after you were found in Moama and after you were arrested for the armed robbery. Your offending also has some bizarre aspects. On that basis I accept that there is some small reduction of moral culpability in application of Verdins principles which ought to result in a commensurately moderate reduction of sentence. From what Mr Walton says, it does not appear that you are facing any difficulties in prison or worsening of your mental state which would attract the application of Verdins principles for those reasons.
38 You are entitled to a significant discount in sentence for your plea of guilty for its utilitarian value and as an expression of remorse.
39 I consider that a sentence of imprisonment is warranted for the purposes of just punishment, denunciation, general deterrence and specific deterrence. I have applied the principles of totality and proportionality in setting the sentences and degree of cumulation. I have taken your prospects of rehabilitation and relative youth into account in setting the non-parole period.
40 For the sake of completeness I should add that I have considered the possibility of a sentence of imprisonment combined with a community correction order. Such an order would not be appropriate in this case because of your offending history, including your history of breaching community based orders.
41 On Charge 1, theft, you are convicted and sentenced to five months' imprisonment.
42 Your licence is cancelled and you are disqualified from driving in the State of Victoria for six months.
43 On Charge 2, armed robbery, you are convicted and sentenced to 24 months' imprisonment.
44 One month of sentence on Charge 1 is to be served cumulatively on the sentence on Charge 2.
45 The total effective sentence is 25 months' imprisonment.
46 If fix 15 months as the period you are to serve before being eligible for release on parole.
47 I declare that you have served 161 days of this sentence by way of pre-sentence detention, that will be deducted administratively.
48 But for your plea of guilty, I would have sentenced you to a term of imprisonment of 42 months, with a non-parole period of 30 months.
49 I have made the disposal orders sought.
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