Director of Public Prosecutions v Lindsay

[2021] VCC 1191

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00282

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYTON THOMAS LINDSAY

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2021
DATE OF SENTENCE:	25 August 2021
CASE MAY BE CITED AS:	DPP v Lindsay
MEDIUM NEUTRAL CITATION:	[2021] VCC 1191

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Koori Court - armed robbery – soft target – Aboriginal young offender – limited criminal priors – mental health issues – substance misuse – good prospects of rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Azzopardi v The Queen [2011] VSCA 372; Boulton v R [2014] VSCA 342; DPP v Worboyes [2021] VSCA 169; Honeysett v The Queen [2018] VSCA 214; Leigh Brown v R [2014] NSWCCA 335; R v Michael John Brown [2013] NSWCCA 178; R v Mills [1998] 4 VR 235; R v Pratt [2003] VSCA 186; R v Verdins & Ors [2007] VSCA 102.

Sentence:                  Combined sentence – time in custody reckoned as time already served

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Teo	Office of Public Prosecutions
For the Accused	Ms N Grunwald	Criminal Lawyers Geelong

HER HONOUR:

1Jayton Lindsay, you consented to have your plea heard before the Koori Court. You have pleaded guilty to one charge of armed robbery, for which the maximum penalty is 25 years imprisonment; two charges of theft from motor vehicle, for which the maximum penalty is 10 years imprisonment; one charge of attempted burglary and one charge of attempted theft from motor vehicle, each of which carries a maximum penalty of 5 years imprisonment. You admitted your prior convictions.

2The circumstances of the offending were set out in the Prosecution Opening on the Plea and I sentence you on the basis of the facts contained in that document.  The prosecution also filed submissions on sentence. In essence, the prosecution submitted that, in spite of limited planning (using what looked like a face mask to cover your nose and mouth), your commission of armed robbery against a soft target in the early hours of the morning is serious offending. The prosecution accepted that at the time of offending you were under the influence of an over consumption of Xanax, but did not accept that Ms Maynard’s report (which is summarised below) established a causal connection between your mental impairment and your offending. However, the prosecution conceded that, in the light of your youth and your good behaviour on bail in the past year, a combination sentence was open.

3In these circumstances, you were assessed by telephone for suitability for a Community Correction Order (“CCO”) on 23 August 2021. The Corrections report noted that you engaged well in the assessment, admitted your offending, and expressed remorse for your actions. You told the author of the report that you were abusing Xanax and felt pressured by your peers to steal. You expressed empathy for the victims of your offending. You stated that you regret your actions and want to complete a CCO to turn your life around.

4You were also assessed by telephone on 23 August 2021 by Gemma Stephenson, Senior Clinical Psychologist at the Mental Health Advice and Response Service located at the Melbourne Magistrates’ Court. She noted that you have a documented history of anxiety and ADHD which has been complicated by substance abuse and that you presented with long-standing yet untreated generalised social anxiety. She indicated that mental health treatment from a youth-specific service like Headspace or a culturally specific service such as Wathaurong would be of likely benefit to reduce distress and improve social functioning. She also opined that anxiety is your primary area of treatment need, and that it may occasionally be a barrier to you attending appointments with Corrections. She considered that telephone appointments could be suitable initially to help you prepare for in-person attendance.

5You were ultimately assessed as suitable to undertake a CCO with the following conditions:

(a)   Community Work;

(b)   Treatment and Rehabilitation – Drugs;

(c)   Treatment and Rehabilitation – Mental Health;

(d)   Supervision; and

(e)   Judicial Monitoring.

6Your counsel filed written submissions, a family tree which establishes your Aboriginality and the fact that your great-grandfather was part of the Stolen Generation, a psychological report dated 7 August 2010 from Ms Alison Maynard, clinical psychologist, and a letter dated 19 August 2021 from Wathaurong Mental Health Services indicating that you have been referred to the Service by your general practitioner under a Mental Health Plan for weekly counselling, which will commence on 26 August 2021.

7At the time of offending you were 18 years old. All of the offending occurred between 1.10 a.m. and 5.05 a.m. on 1 June 2020, after you had consumed a large quantity of Xanax, around 40 tablets. CCTV footage shows that you tried to gain entry via the front door of a home in Leopold (charge 1). You then stole items to the value of $1,600 (including a Louis Vuitton clutch bag) from the owner’s unlocked car which was parked in the driveway (charge 2). You then went to a second address in Leopold, where you stole a first aid kit and cash (total value $70) from a car parked in the driveway (charge 4). There is CCTV footage of you throwing the first aid kit down a drain next door. You then went to a third address in Leopold and tried to get into a car but failed (charge 5). Your attempt was captured on CCTV.

8Finally, at around 5.05 am, you went into a service station in Leopold, covered your mouth, pulled out a knife, reached through the plastic barricade on the counter and demanded cash from the victim, telling him not to press any security buttons. You asked for a bag to put the money in, then for cigarettes. The victim gave you a plastic bag, 30 packets of cigarettes and cash with a total value of $2,000. You then left the store (charge 3).

9The victim of the armed robbery called police, who arrested you about 20 minutes later. You told police you had been on a Xanax binge and taken about 40 tablets. You admitted being the person shown on CCTV at the first address, and said you threw the clutch bag into a lake because it had no money in it. You gave no-comment answers to questions about the armed robbery.

10You were remanded in custody until 28 July 2020, when you were granted bail. There are 58 days of pre-sentence detention, 20 of which were spent in lockdown. Although you were unable to receive visits and had limited access to educational courses, you managed to complete a food handling course and also worked in the bakery. You indicated an intention to plead guilty on 12 March 2021, prior to any contested committal hearing taking place.

11At the time of offending, you were on a 12-month Community Correction Order imposed by the Geelong Magistrates’ Court on 1 May 2020 in respect of a charge of aggravated burglary (person present), theft, theft of a motor vehicle, and driving offences. You were ordered to complete 50 hours of unpaid community work (or, alternatively to have 50 hours of treatment and rehabilitation), to be supervised, to have assessment and treatment for drug dependency, and to undertake offending behaviour programs as directed. You completed the Order, apart from 32 hours of unpaid community work, which was not completed due to Covid-19 restrictions.

12Your personal circumstances were set out in the psychological report of Ms Maynard and the submissions of your counsel,  and were fleshed out further during the sentencing conversation, which was attended by your father.

13You have a younger brother, as well as a half-brother and half-sister. You and your brother, aged 16, live with your father, who is from the Wemba-Wemba tribe. Your relationship with your mother appears quite tenuous.

14As a child, you had difficulty concentrating, got bored easily, and played up at school. In spite of meetings between your parents and school teachers, you were not offered any extra assistance. You also had several hospital stays due to your asthma. Your father says you were, as a child, diagnosed with depression, anxiety and ADHD.  Your father also pointed out that you were badly affected emotionally when, without notice, your mother left you, aged 9 and your brother, permanently in his care. He said that you became very uncommunicative and unable to take or give affection. At school, you had trouble with academic course work and so did not attend regularly.

15In early secondary school you were usually playing games on your IPAD at school. You had lots of friends with whom you would hang out and use drugs. You self-medicated with cannabis from the age of 14 believing that it helped you feel relaxed, helped your appetite and your sleep. From the age of 15 you also abused Xanax intermittently, buying it online. Taking Xanax helped relieve your anxiety. You also used methamphetamines when with your friends. You finished Year 9, then moved to a technical college for Year 10 but lost interest once the course work began. You then left school to undertake a carpentry apprenticeship. You lost interest in the apprenticeship, and then worked briefly as a roof tiler and plumber.  By age 17, you were using Xanax, ice, speed and MDMA. All of your offending occurred while you were under the influence of drugs. You have been unemployed since the age of 17 and living on Centrelink benefits.

16You had been bingeing on Xanax in the days prior to this offending. You reported anxiety and paranoia relating to social anxiety to Ms Maynard but denied depressive symptoms.

17Ms Maynard diagnosed you as suffering from ADHD, Generalised Anxiety Disorder, Social Anxiety Disorder, and Disorders relating to Cannabis Dependence and abuse of anti-anxiety medication – in this case Xanax.

18Ms Maynard concluded that the combination of anxiety and ADHD that you suffer has been very difficult for you to manage, that you have not received targeted treatment for these problems, and that you have been self-medicating with cannabis, methamphetamines and Xanax to cope with the negative symptoms of these conditions. She felt that you have little self-awareness and high impulsivity, problems with thinking ahead of consequences, and have not learned to identify and express your emotions. She indicated her opinion that both your mental health issues and your addiction issues have contributed to your offending behaviours.

19Ms Maynard felt that you have a moderate chance of rehabilitation, given your youth and limited criminal offending, but that you would benefit from targeted treatment of your mental health issues with medication and cognitive behaviour therapy to address your anxiety symptoms and learn ways to cope without using cannabis or other illicit drugs, as well as counselling to teach you some problem solving techniques. She felt that you are “quite a vulnerable young man” and would find custody quite onerous due to your ADHD and mental health conditions.

20I accept the matters put in mitigation on your behalf by your counsel. I turn to the relevant sentencing considerations.

21Firstly, the objective gravity of your offending. I consider that the offending the subject of charges 1, 2, 4 and 5 is at the lower end of seriousness for those offences.

22On the other hand, armed robbery is in itself a serious offence, carrying a maximum sentence of 25 years imprisonment. The Court of Appeal has frequently emphasised that committing such offences in the early morning against a soft target warrants substantial punishment in the form of a substantial period of imprisonment, to deter the offender and others from offending in this way, and also to protect the public.[1]

[1]        R v Pratt [2003] VSCA 186 [21].

23In this case, I consider your offending, which occurred whilst you were on a Xanax binge and wandering the streets alone, was unsophisticated and opportunistic. Although it was the first time you have committed such an offence, it is nevertheless serious offending and must have terrified the victim.

24I turn to the factors in mitigation, which include: your youth, your mental impairment and its contribution to your offending, your time in custody, your early plea of guilty during the period of the Covid-19 pandemic, your prospects of rehabilitation, and your genuine participation in the sentencing conversation in the Koori Court.

25You were 18 years and 4 months old at the time of offending and are now 19 years old. You have much of your life ahead of you. The law says that your youth is a very important sentencing consideration,[2] even in the case of serious offending, and that there is significant community interest in your rehabilitation because this will help protect the community in the long run. I note that you had not been in prison prior to your period of remand in custody in relation to this matter. This experience, prior to you being granted bail, seems to have helped you remain abstinent from drug-taking and offence-free in the past year. In turn, being abstinent from drugs and law-abiding for this period, in the context of stringent bail conditions, is a good sign that your prospects of rehabilitation are good, particularly since you have a supportive family and stable accommodation with your father.

[2]        Azzopardi v The Queen [2011] VSCA 372; R v Mills [1998] 4 VR 235.

26I accept the expert evidence of Ms Maynard to the effect that your drug abuse commenced during childhood as a response to the negative symptoms of your untreated psychological impairments (ADHD and  anxiety disorders), and therefore that these impairments are causally connected to your offending. For this reason, I consider that the following limbs of Verdins[3] apply: your moral culpability for the offending is reduced; you would greatly benefit from treatment for your ADHD, anxiety disorders and drug abuse disorders; a further period in custody would be more onerous for you given your severe generalised anxiety, social anxiety and ADHD and given Ms Maynard’s assessment that you are a vulnerable young man.  In this regard, I am mindful of your evidence that you hardly go out because of your anxiety.

[3]        R v Verdins & Ors [2007] VSCA 102.

27The case law tells us that young people who start taking drugs at an early age to cope with their distressing emotional or psychological symptoms cannot be expected to fully understand the consequences that a drug addiction will have on their functioning and their subsequent lives. In such cases, where the drug addiction is part of the causal chain leading to the commission of a crime, it is appropriate for the rehabilitative aspects of sentencing to assume a more significant role than might otherwise be the case if there is strong evidence of real progress towards actual rehabilitation.[4]

[4]        Leigh Brown v R [2014] NSWCCA 335 [27].

28The law also says that imprisonment of an offender is only appropriate where no lesser penalty would satisfy all the relevant sentencing considerations,[5] particularly in relation to Aboriginal young offenders,[6] and that imposing a CCO may be suitable even in cases of relatively serious offences which previously might have attracted a medium term of imprisonment.[7]

[5]        Sentencing Act 1991 (Vic) s 5(4).

[6]R v Michael John Brown [2013] NSWCCA 178 [35]-[36]. This case emphasises the vulnerability of young Aboriginal accused and the preference for bail involving culturally appropriate supervision, over remand. See also HA (a pseudonym) v The Queen [2021] VSCA 64 [58]-[59].

[7]        Boulton v R [2014] VSCA 342 [131].

29This is the first time you have appeared in Koori Court. Given your mental health conditions, particularly your social anxiety, your participation in the sentencing conversation is to be commended. It was a challenging exercise given that, due to Covid-19 restrictions, the Elders appeared by video-link. Although you were quite reticent, it is clear from your participation that:  you took the process seriously; regretted your offending; have begun to reflect on your Aboriginality and the benefits to be had from making a firm connection with your culture; that you realise that there are treatments available for your mental health conditions and for your drug abuse issues; and that you are motivated to have counselling, to get a job, and to travel. You are entitled to have your sentence further mitigated by reason of your genuine participation in the Koori Court sentencing conversation.[8]

[8]        Honeysett v The Queen [2018] VSCA 214.

30Due to your early plea of guilty, you are entitled to a substantial discount for sparing the community the cost and inconvenience of a committal and a trial. You are also entitled to an additional discount for making your plea during the currency of the Covid-19 pandemic.[9]

[9]        DPP v Worboyes [2021] VSCA 169 [39].

31In all the circumstances, I consider that the appropriate disposition is that of a combination sentence.

32I therefore sentence you as follows. Would you please stand.

33On charges 1, 2, 4 and 5, you are convicted and sentenced to an aggregate sentence of a 6-month CCO with conditions of supervision, judicial monitoring, mental health treatment and assessment, drug and alcohol treatment. I also impose a condition that you perform 100 hours of unpaid community work. I direct that all the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

34On charge 3, you are convicted and sentenced to 58 days’ imprisonment reckoned as time already served and a 2-year CCO with conditions of supervision, judicial monitoring, mental health assessment and treatment, drug and alcohol treatment. I also impose a condition that you perform 200 hours of unpaid community work. I direct that all the hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

35I note that the conditions of those two CCOs are concurrent pursuant to section 41 of the Sentencing Act 1991 (Vic).

36You will need to report to Geelong Community Correctional Services within two working days. Because of the restrictions introduced in response to the Covid-19 pandemic, that will be by telephone.

37The mandatory conditions of the order include that you must not commit any other offences during the period of the CCO - that is, 2 years from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment in relation to those offences. You must not leave Victoria without first getting permission to do so from a Corrections officer, you must obey all lawful instructions from and the directions of Corrections officers, and you must report to and receive visits from a Corrections officer. Finally, you must notify a Corrections officer of any change of address or employment within 2 clear working days after the change. Do you understand all the conditions I have imposed and the general terms that apply?

38Your counsel will explain the order to you in more detail. You must make sure that you comply with the order because if you breach a condition of the order, aside from a direction of the Secretary, that is an offence punishable by 3 months’ imprisonment. You will then be dealt with for breaching the order, but will also be exposed to the possibility that you will be brought back and re-sentenced for the original offending. If you are re-sentenced, you may be sentenced to a term of imprisonment. Do you consent to the making of a CCO?

s.6AAA

39I declare pursuant to s 6AAA of the Sentencing Act that if you had not pleaded guilty to the charges and if you had been found guilty of the charges by a jury, I would have convicted and sentenced you to an aggregate 12-month CCO in relation to charges 1, 2, 4 and 5 and, in relation to charge 3, convicted and sentenced you to 12 months’ imprisonment and a 2-year CCO.

40The matter will be adjourned to a judicial monitoring hearing at 10:00am on 17 December 2021 so that I assess your progress on the CCOs.