Director of Public Prosecutions v Liu
[2023] VCC 2404
•18 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00569
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| YUMING LIU |
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JUDGE: | HER HONOUR JUDGE HARPER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2023, 15 December 2023 | |
DATE OF SENTENCE: | 18 December 2023 | |
CASE MAY BE CITED AS: | DPP v Liu | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2404 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed robbery – schizophrenia, bi-polar – subject to CTO
Legislation Cited: Sentencing Act 1991
Cases Cited:Worboyes v DPP [2021] VSCA 169; R v Verdins [2007] VSCA 102; R v Mills (1998) 4 VR 235; R v Azzoppardi [2011] VSCA 372; Bugmy v The Queen [2013] 249 CLR 571
Sentence: 9 months YJC
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Moran Ms A. Dearman | Ms A. Hogan, Solicitor for Office of Public Prosecutions |
| For the Offender | Ms C. O'Gorman for sentence Mr M. Cramer for plea | Victoria Legal Aid |
HER HONOUR:
1Yuming Liu, you have pleaded guilty before me to one charge of armed robbery, the maximum penalty for which is 25 years' imprisonment.
2You have no prior criminal history and come before the court of previous good character.
Circumstances of the offending
3The circumstances of your offending were outlined in Exhibit A, the summary of prosecution opening, dated 12 October 2023. I will summarise those facts here.
4On 5 December 2022 at around 9:46 pm, your victim Mr Abbas Abbas was using a Commonwealth Bank ATM on Edward Street in Reservoir.
5You approached Mr Abbas and lingered behind him before you dropped a knife from your pants pocket onto the ground. Mr Abbas heard this noise and in fear he immediately ran away from you.
6You then proceeded to pick up the knife from the ground and chase Mr Abbas.
7You caught up to him about 30 metres away and held your knife to him and you demanded that he hand over his cash, mobile phone and wallet.
8Your victim was terrified and fearful for his safety and therefore complied with your demands.
9This offending forms the basis of Charge 1, armed robbery.
Gravity of the offending
10The offence of armed robbery is a serious one. I have seen footage of the incident and note that you persisted even after Mr Abbas tried to flee, chasing him along the street. You were armed in advance of your offending and seemingly looking for money to support your drug habit.
11I consider your offending to be at the lower mid-range of this type of offending.
Victim Impact Statement
12I received a victim impact statement from Mr Abbas. In it he details his ongoing fear and paranoia and his hypervigilance in public since this incident.
13Fortunately, Mr Abbas was not physically injured, however the psychological impact of your offending is readily apparent.
Plea of guilty
14You entered a plea of guilty at an early opportunity, being the committal mention stage of proceedings. This has significant utilitarian benefit. You have saved the court and the community the time and expense of running a trial and spared Mr Abbas the ordeal of giving evidence. In those circumstances, you have facilitated the administration of justice and you are entitled to a benefit for that.
15The utilitarian benefit of your plea is enhanced by the fact that the Worboyes v DPP [2021] VSCA 169 considerations are, to a modest extent, engaged. This results in a more pronounced amelioration of sentence than at other times.
16By your plea of guilty you have also demonstrated an acceptance of responsibility for your offending. I will moderate the sentence to reflect this.
Personal circumstances
17I turn now to your personal circumstances.
18You are 20 years of age, having been born in March 2003 in northwest China. You migrated to Australia with your father as a young child and have two half-siblings from you parents’ previous marriages.
19While you report suffering physical and sexual abuse during your childhood, perpetrated by your father, there is little detail as to the nature of this abuse.
20You report that you were diagnosed with autism and ADHD as a child, however these diagnoses have not been substantiated.
21You were educated at Braybrook Secondary College until Year 10. You have held several short-term jobs and hope to find employment in the warehousing and logistics industry.
22You have a history of cannabis and methamphetamine use.
23You lived with your father in Sunshine until early 2022 when a decline in your mental health led to an extended period of homelessness. In April 2022 you were involuntarily admitted to hospital under the Mental Health Act 2014.
24You spent five months at the Orygen inpatient unit before being released into motel accommodation. Melbourne City Mission supported you with housing and you stayed at various crisis accommodation locations until your arrest.
25After your arrest you were assessed by Forensicare and transferred under a community treatment order to an inpatient treatment order.
26In December 2022 you were bailed to reside at your father’s address.
27Significantly, in February 2023 you were accepted into the Circuit Breaker Accommodation Program run by Frontyard Youth Services and moved into a youth refuge in Melbourne. In July 2023 you returned to live with your father.
28On 26 September 2023 you were again admitted to the Orygen inpatient unit until you were released on 10 October. Your mental health treatment has been repeatedly scrutinised by the Mental Health Tribunal.
29OFFENDER: Your Honour, (indistinct).
30HER HONOUR: Do you need to approach the dock, Ms O'Gorman?
31MS O'GORMAN: Would Your Honour permit me to approach briefly?
32HER HONOUR: Yes, certainly.
33MS O'GORMAN: Thank you, Your Honour.
34HER HONOUR: You were again admitted to inpatient care on 17 November 2023 and were released in mid-December. You are now receiving long lasting antipsychotic medication by injection. You have ceased mood stabilising medication against advice.
35I received a comprehensive psychiatric report from Associate Professor Danny Sullivan, Exhibit 2, dated 28 September 2023. He detailed your psychiatric history and past substance use. He provided an overview of information from other sources which indicated you had been diagnosed with a 'manic episode with psychotic symptoms, unspecified nonorganic psychosis, mental and behavioural disturbance due to cannabis use, and acute and transient psychotic disorder.'
36Associate Professor Sullivan reports that you have attracted several diagnoses of serious mental illness, including bipolar affective disorder and schizophrenia.
'At the time of my assessment he presented with psychosis and although he has grandiose delusions he does not appear to present with other manic features. The formal diagnosis is rendered more difficult by ongoing treatment with antipsychotic medication and the possibility of ongoing substance use, which is not verified.'
37Ultimately, Associate Professor Sullivan found that you have a severe psychotic illness, best described as schizophrenia, a severe substance use disorder and borderline, antisocial and narcissistic personality features.
38I have also given consideration to a bundle of Youth Justice supervised bail program reports, Exhibit 3, a Mental Health Advice and Response Service assessment, Exhibit 4, three letters from Orygen Youth Health, Exhibits 5 and 9, letters from Frontyard Youth Services, Exhibits 6 and 8, and a Letter from Youth Projects, Exhibit 7.
39Forensicare provided a letter dated 14 December 2023 as to the Thomas Embling Hospital waitlist, Exhibit F. I further received affidavits from Justice Health Youth Justice, Corrections Victoria and Justice Health, Exhibits G, H, and J.
Sentencing principles and factors
40Mr Liu, members of the community should be free to go about their business without the fear of being robbed with a weapon. This threat was however realised for Mr Abbas as a consequence of your offending. Not only did you rob your victim, you chased him with a knife before doing so.
41Mr Cramer, on your behalf, submitted that the principles in Bugmy v The Queen [2013] 249 CLR 571 apply. While you report being the victim of physical and sexual abuse as a child, you have not elaborated on this. While childhood deprivation need not be profound, I am not persuaded that any moderation of moral culpability is warranted on the bare account you have provided.
42Your counsel further submitted that all principles espoused in R v Verdins [2007] VSCA 102 are enlivened.
43Associate Professor Sullivan considered that:
'At the time of the alleged offence, his psychotic illness was only in partial remission. There was a partial causal association with the offending, in my opinion. It is likely that his judgment and his capacity to think clearly and make calm and rational choices was negatively impacted due to chronic psychotic illness and poor insight into his diagnosis. Schizophrenia, even when under effective medical treatment, is associated with impaired executive functioning. There is also a likely potential contribution to this impairment from substance abuse.'
44The prosecution contended that specific deterrence should only be moderated to a limited extent because you willingly engaged in substance abuse and were non-compliant with medication.
45While the impact of your psychotic illness cannot be unravelled from your drug use, I accept there must be a reduction in the weight given to your moral culpability as to both general and specific deterrence, given your schizophrenia, as per Verdins Limbs 1, 3 and 4.
46I further accept that imprisonment or detention will negatively impact your mental health, as is Associate Professor Sullivan’s view, relevant to Verdins Limbs 5 and 6, which in turn impact Limb 2, the type of sentence to be imposed.
47Given your age, rehabilitation remains a primary focus of the sentencing exercise as per R v Mills (1998) 4 VR 235 and R v Azzoppardi [2011] VSCA 372. You are a youthful offender with no criminal history. You have engaged with various support networks while subject to Youth Justice bail and remain subject to a community treatment order.
48I must then balance the primacy of rehabilitation with the clear need for community protection. This offending was committed whilst you were subject to a community treatment order. There remain live risk factors, including your unwillingness to take mood stabilising medication and your tendency towards drug use which you must find the means to fund.
49You are subject to regular, compulsory anti-psychotic injections, and it is clear that should you become acutely unwell, you will again be admitted as an inpatient but your conflicting reports as to your ongoing drug use cause concern.
50I consider specific deterrence to have limited application to you. General deterrence, whilst moderated, must have some application.
51I note your father remains somewhat supportive of you, in a financial sense and also by providing housing from time to time and visiting you in hospital.
52I must also impose just punishment and denunciation, and I take both of these factors into account.
53Mr Cramer submitted on your behalf that I should impose a community corrections order, without conviction. Ms Moran, for the prosecution, submitted that a period of detention was called for in all the circumstances.
54I had you assessed for a community corrections order and received an extended pre-sentence assessment dated 5 December 2023. Ultimately, you were found to be unsuitable for a community corrections order. I am, of course, not bound by this recommendation. You told the assessor that you disagree with your diagnoses, are unsupportive of receiving medication and continue to abuse methamphetamine.
55The assessor was of the view that the imposition of a CCO would set you up to fail as you do not ‘have the appropriate motivations, supports, or mental health stability to navigate nor comply with a community corrections order.’
56I also received a Youth Justice assessment dated 8 December 2023. You were found suitable for a Youth Justice Centre order. In the assessment you reported abstinence from illicit substances for the last four weeks. The author of the report advises that you would have mental health support available in a Youth Justice setting through Orygen’s multidisciplinary team.
57The report opines that you do meet the threshold for reasonable prospects for rehabilitation in a Youth Justice Centre and that you are particularly impressionable, immature or likely to be subject to undesirable influences in an adult prison and are thus suitable for YJC.
58Despite the matters very ably put in your favour on the plea, given the seriousness of your offending, I am persuaded that a period of detention is warranted in your case. I do not, however, consider adult imprisonment to be a suitable option. I am satisfied that your rehabilitation and mental health can be adequately catered for in youth detention and that you can maintain the support of Orygen should it be required.
59Please stand, Mr Liu.
Disposition
60I direct that you be detained in a Youth Justice centre for a period of nine months.
61I declare that you have served five days by way of pre-sentence detention pursuant to s18 of the Sentencing Act 1991, excluding today.
62Pursuant to s6AAA of the Sentencing Act 1991, had you not pleaded guilty, the sentence I would have imposed would have been 16 months' detention in a Youth Justice centre.
63I grant the prosecution application for a disposal order in relation to the knife.
64You may be seated, Mr Liu.
65Is there anything further from either party?
66MS O'GORMAN: No, Your Honour.
67MS MORAN: No, Your Honour.
68HER HONOUR: Mr Liu can be taken out, thank you. I thank all counsel for their assistance. We will adjourn the court, thank you.
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