Director of Public Prosecutions v Livingstone
[2017] VCC 1257
•1 September 2017
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-17-00483
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER LIVINGSTONE |
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JUDGE: | HIS HONOUR JUDGE C J RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 September 2017 | |
DATE OF SENTENCE: | 1 September 2017 | |
CASE MAY BE CITED AS: | DPP v Livingstone | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1257 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Armed robbery – Attempted armed robbery – Plea of guilty
Legislation cited: Mental Health Act 2014; Sentencing Act 1991
Cases cited: R v Verdins (2007) 16 VR 269
Sentence: Aggregate period of imprisonment 15 months together with a Community Corrections Order for a period of 3 years with supervision and conditions. 254 days pre-sentence detention. Section 6AAA declaration: 4 years imprisonment with a non-parole period of 2 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper | Lauren Spence Office of Public Prosecutions |
| For the Accused | Ms S. Seoud | Caroline Salter Paul Vale Criminal Law |
HIS HONOUR:
1 Peter Livingstone, on 24 August 2017 you pleaded guilty to one charge of armed robbery (Charge 1) and two charges of attempted armed robbery (Charges 2 and 3). The maximum penalty for armed robbery is 25 years’ imprisonment, while the maximum penalty for attempted armed robbery is 20 years’ imprisonment.
2 You are aged twenty-four years and you are a young man without prior conviction.
3
You were arrested on 21 December 2016 and remanded in custody on
22 December 2016. Accordingly, you have spent 254 days by way of
pre-sentence detention.
4 Tendered as Exhibit A on the plea, and read aloud in court, was the Crown opening that set out the facts surrounding your offending. Your offending in each instance was caught on CCTV, and tendered as Exhibit B on the plea was a DVD of the CCTV.
5 In summary, on 8 November 2016 you entered a bottle-shop in Maidstone and robbed the two attendants, using one-half of a pair of scissors as a knife. You walked behind the counter and shouted “Open the till” while pushing your way behind the attendants. You stole approximately $1,500 in cash and a bottle of Hennessy Cognac. (Charge 1)
6 Approximately six weeks after committing the armed robbery on the bottle-shop, on 19 December 2016 you entered an IGA supermarket in Footscray and attempted to rob the attendant. Again you used the scissor blade as a weapon. On the CCTV footage you can be seen brandishing the blade and threatening the attendant with it. You yelled at the attendant “Fucking open the till”. The attendant was unable to open the till, and after attempting to open the till yourself you fled empty-handed. You were seen to drive away in your own motor car. (Charge 2)
7 Approximately ten minutes later you attempted to rob the FoodWorks supermarket in Braybrook, again using the scissor blade as a weapon. You yelled at an attendant “Open the till, open the till, quick open the till”. You jumped the counter, but were seen off by the attendants when one of them threw a chair at you. You were pursued from the store by the attendants, and once again you were seen driving away in your own car. (Charge 3)
8 During the course of your offending you disguised yourself by wearing a baseball cap and covering the lower portion of your face with a scarf. On 21 December 2016 police executed a warrant at your home where you lived with your mother and brother. Police arrested you and seized the clothing that you used during your offending. You were interviewed under caution in the presence of an independent third person. You generally answered “No comment” to questions put to you by investigators, but also denied any involvement in the offending.
9 Tendered as Exhibit 1 on the plea was the report of Dr Fiona Best, psychiatrist, dated 18 May 2017. Mr Moglia of counsel, who appeared on your behalf, relied on the contents of the report in the main – when combined with other matters to which I shall refer – to found the submission that the principles in R v Verdins apply to you in that there was a nexus between your mental state, your impaired capacity to exercise judgment and make rational choices, and the offences. Accordingly, it was submitted that your moral culpability was reduced. Further it was submitted on your behalf that you were not a vehicle for the application of general deterrence. Mr Moglia submitted that specific deterrence could be addressed by supervised release, not imprisonment. Additionally, your counsel submitted that time in custody would be more onerous for you and that further time in prison would have a deleterious effect on your mental health. Accordingly, it was submitted that the appropriate penalty in all the circumstances was to sentence you to a term of imprisonment in the order of the time already served by you, in combination with a Community Corrections Order. Mr Roper who appeared on behalf of the Crown submitted that such a disposition was within the range of sentences available for your offending.
10 As to matters personal to you. Your parents separated shortly after your birth. You came to Melbourne with your mother and brother when you were three or four years old. You were living with your mother and brother at the time of your offending. Your memory of your mother is that she was always working and that you did not have a close relationship with her. This attitude sits in stark contrast to your mother’s presence in court during the course of your plea, supporting you, and you planning to return to her home upon release.
11 You were diagnosed with ADHD as a school-child and prescribed Ritalin, as was your brother. Your recollection of school was that you struggled academically, and that you were assisted with an integration aide. Despite this, you completed a VCAL pre‑apprenticeship in bricklaying and worked for a bricklayer for a period of 12 months. However, this came to an end because your cannabis abuse affected your performance.
12 Dr Best, in preparation of her report, had access to medical records that covered your time in prison as well as the period prior to your offending. You were diagnosed with schizophrenia in 2013 whilst an involuntary patient at the Werribee Mercy Hospital Psychiatric Unit. This admission came about after a two-year decline in your mental health that culminated in you attempting to take your own life. According to the notes of the Werribee Mercy Hospital Psychiatric Unit, during admission you were vague, tangential in thought form, disorganised, and reporting auditory hallucinations. Upon release you were referred to Orygen Youth Health for intervention and case management. However, you refused that help, and instead consulted your general practitioner, Dr Simon Benson, who prescribed antipsychotic medication and referred you to a local psychologist.
13 Dr Best reported:
“Mr Livingstone has a long history of illicit substance use and his recovery from schizophrenia has been compromised both by illicit drug use, and a 10-month history of non-adherence with his prescribed antipsychotic medication.”
14 Later in her report Dr Best notes that you were probably non-adherent with your antipsychotic regime for at least six months prior to being remanded.
15 In respect to your offending, you told Dr Best that you just needed money at the time for drugs and some bills you had to pay. You told Dr Best that at or about the time of your offending you were smoking ice and “I wasn’t comprehending of my actions”.
16 In short, while suffering from a serious psychiatric illness and being non-compliant with your medication, and under the influence of ice, you committed the instant offending.
17 To my mind, whilst you suffer, and did at the time of your offending, suffer from a serious psychiatric illness, it was your non-compliance with medication and your abuse of the drug ice that was causal to your offending, and not your illness. Your moral culpability, to my mind, is not reduced by reason of your serious mental illness.
18 Mr Moglia additionally submitted that the likely effect of your drug addiction on your offending is mitigating. I am unable to accept this submission in your circumstances. At the time of the instant offending you suffered from and knew that you suffered from schizophrenia yet you were noncompliant with your medication. In all likelihood you had been non-medicated for months prior to your offending as a result of a decision that you made. Whilst it is true that you had abused drugs from your teens, your offending was not drug related offending and was only partly motivated to by your desire to buy ice, it was also motivated by your need to pay bills.
19 On being taken into custody you were very unwell, and as at 8 January 2017 Dr Morton, psychiatrist, opined:
“I believe that Peter is currently suffering from a relapse of schizophrenia with associated risk to self and others.”
20 You were considered a high priority admission to the acute assessment unit, and you were certified under the Mental Health Act for admission to Thomas Embling Hospital for compulsory treatment because of your psychotic state and your refusal to commence medication and admission to the acute assessment unit.
21 As at 9 February 2017 medical staff held concerns about the risk of you harming yourself because you were refusing to engage, take treatment, or be admitted to the acute assessment unit. However, since that time you have become compliant in respect to taking antipsychotic medication. You spent some time in the acute assessment unit until you were well enough to be transferred to a mainstream cell. Your mental state has improved to the extent that you are no longer considered appropriate for transfer to the Thomas Embling Hospital.
22 Your offending occurred against a background of a long history of use of cannabis and ice, as well as a history of excessive alcohol use, a documented history of serious psychiatric illness dating back to at least 2013, and a history of poor adherence to antipsychotic medication.
23 You suffer from a serious psychiatric illness, and at the time of sentence you are not an appropriate vehicle for the application of general deterrence.
24 I agree that specific deterrence can be met in part by supervision upon release, and such supervision ought to occur in the context of a Community Correction Order.
25 At paragraph 8 on page 12 of Exhibit 1, being the report of Dr Best, she opined:
“Potentially imprisonment will present a greater burden on him than it might on an individual without schizophrenia and may have a deleterious effect on his mental health.”
26 Dr Best does not opine that each of those occurrences will occur, in her opinion. Further, although Dr Best expresses herself in terms of Verdins' considerations, she does not opine that there is a serious risk of imprisonment having a significant adverse effect on your mental health. Accordingly, principles 5 and 6 in Verdins are not made out on the evidence.
27 However, you are a young man. You have no prior convictions. After becoming fit, you entered your pleas of guilty at the earliest opportunity, and you are entitled to the benefits that flow to you from that plea, being that it has utilitarian benefit and it is some evidence of your remorse.
28 You presently suffer from a serious psychiatric illness, although it appears to be properly managed in prison.
29 Your offending was serious. You committed or attempted to commit three armed robberies on soft targets. Your victims were going about their lawful business. Offences of this kind are all too frequent occurrences within our community.
30 Doing the best I can to balance the factors personal to you, the objective circumstances of your offending, and sentencing principles, I sentence you to an aggregate period of imprisonment of fifteen months together with a Community Corrections Order for a period of three years, with conditions:
(i) you undergo treatment and rehabilitation in respect of your drug abuse,
(ii) you undergo treatment and rehabilitation in respect of your medical condition,
(iii) you undergo treatment and rehabilitation in respect of your mental health, and
(iv) you be subject to the supervision of the Secretary of the Department.
31 In respect to the issue of the Community Corrections Order, do you consent to that order?
32 OFFENDER: Yes.
33 HIS HONOUR: I declare that you have spent 254 days by way of pre-sentence detention.
34 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of four years’ imprisonment with a non-parole period of two years’ imprisonment.
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HIS HONOUR: Do you suggest there's some difficulty about the form of that sentence?
MR ROPER: The PSD is 254 days, but in terms of the sentence Your Honour, sorry I was just wondering whether there was a problem with it Your Honour, but if it's the period to be served will be - - -
HIS HONOUR: Less than 12 months or less.
MR ROPER: Not less than 12 months.
HIS HONOUR: Then does it comply to the s.44. Now if there's any difficulty with that I'll be dealing with a jury this morning, I will not sign the return of prisoners as it was once upon a time known, until after lunch. There will be time for counsel to return to address me if there is an error in form in my sentence.
MR ROPER: Thank you Your Honour.
MS SEOUD: Yes Your Honour. Your Honour, if I may, my friend raised earlier that it's 254 days PSD. I think Your Honour said 252.
HIS HONOUR: And I will correct that.
MS SEOUD: Thank you Your Honour, I appreciate that.
HIS HONOUR: Yes. Now the Crown made application Mr - - -
MR ROPER: There's an application for disposal of the scissor blade. The scissor blade Your Honour.
HIS HONOUR: I'm sorry I didn't hear you.
MR ROPER: Application for disposal of the scissor blade.
HIS HONOUR: Yes. It's been provided to my associate what is to be disposed is a scissor blade with bright green coloured handle.
MR ROPER: That's right Your Honour.
HIS HONOUR: Yes.
MR ROPER: I have a draft - - -
HIS HONOUR: They've already been provided to me and three copies have been signed. Now Mr Livingstone, the Crown also made application for what's known as a forensic sample. You may be seated Mr Livingstone, it's all right. And that was not opposed by your counsel. Now pursuant to the provisions of the Crimes Act, I have ordered that you undergo a forensic procedure which is a scraping from your mouth. I have granted that order because the seriousness of the circumstances of your offending warrant it, that the order was not opposed and that the granting of the order is in the public interest. Mr Livingstone, I need to inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted. All right. It won't present a problem Mr Livingstone. I hand down three copies of that order.
Now what's going to happen shortly is that my associate will bring to you a document that relates to the Community Corrections Order. The Community Corrections Order takes effect upon your release from imprisonment or from prison. The total amount of time that you will spend in prison is 15 months. But that includes the time that you've already spent in prison which is 254 days. Do you understand? So that is taken off the 15 months' sentence. So you've got about another seven or eight months to go. When you are released from prison you then undergo a Community Corrections Order. What that means is that upon your release you are to attend upon the Sunshine Community Corrections Service at 10 Foundry Road, Sunshine within two clear working days of you being released from prison.
Now I've placed conditions on this order and the conditions are this. That you must be under the supervision of a Community Corrections Officer for a period of three years. That you must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. You must undergo medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility as directed by the regional manager. You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager. Now the purpose of this order so far as I am concerned is to provide a framework for your continued treatment in respect to your psychiatric illness and to hopefully assist you in maintaining a normal life whilst dealing with that illness, and that you don't offend again. That's what it's designed for.
The supervision aspect of it is really designed to assist you to comply with those rehabilitative or therapeutic conditions that I've put on this order. So the people that you'll deal with at the Sunshine Community Corrections Services are there to assist you. From time to time you might feel that that's not necessarily the case. What you need to understand is that it is the case. You may become frustrated during this period of three years. You're just going to have to work your way through it with the assistance of your mother and your brother and with the assistance of the people at the Community Corrections service office. It's my fervent hope that I don't see you again, all right.
OFFENDER: Yeah.
HIS HONOUR: Now this will be brought down to you for your signature. Ms Seoud would you like to assist in this respect.
MS SEOUD: Yes Your Honour, certainly.
HIS HONOUR: What will happen now is that copies of that will be made for counsel and for yourself. So there will be a copy of the document in your personal property at the prison so that you understand what that Community Corrections Order is about. In respect to that Court of Appeal authority
Mr Roper, would you give me the name and citation of that please.
MR ROPER: Your Honour, I'll hand up a copy. I've actually marked paragraph 65 because it related to the brief discussion I had with Your Honour then.
HIS HONOUR: Thank you very much.
MR ROPER: And it confirms what Your Honour said earlier, I've just marked 65 Your Honour.
HIS HONOUR: It's always been my understanding and in the present s.44(1) is in similar terms as the original one was.
MR ROPER: Yes..
HIS HONOUR: Save for the maximum term of imprisonment.
MR ROPER: And back when it was three months Your Honour, one of the decisions there says the court imposed 249 days but because the amount to be served was less than three months, the Court of Appeal held that was fine.
HIS HONOUR: Thank you very much. You may remove the prisoner please. Thank you very much Mr Livingstone.
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