Director of Public Prosecutions v Lopes

[2016] VCC 563

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00010

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS LOPES

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 May 2016
CASE MAY BE CITED AS:	DPP v Lopes
MEDIUM NEUTRAL CITATION:	[2016] VCC 563

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms a. McLure
For the Accused	Mr G. Thomas

HER HONOUR: 

1Nicholas Lopes, you have pleaded guilty to one charge of armed robbery and one charge of attempted theft.  The maximum penalties for these offences is 25 years' and five years' respectively. 

2The circumstances of your offending are set out the prosecution opening, Exhibit A. 

3At about 7 pm on Saturday 24 October 2015, you went to a grocery store in Spencer Street.  You were wearing a cap and had a backpack.  You went to the counter with a can of Coke.  You then went to the other end of the counter and reached over and grabbed an iPad that was charging.  Both people working in the shop then struggled with you and the iPad remained in their custody.  You then left the shop.

4Minutes later you went to another shop close-by, again in Spencer Street.  There was only one staff member in the shop.  You went to the counter again with a can of Coke, but also had scissors.  Whilst holding the scissors towards Ms Tang, the shop assistant, you demanded money and told her you would kill her.  She was scared and you removed $1,100 from the till and repeated the threat you would kill her.  You then got in a taxi and were dropped off in Balaclava. 

5That night, about three hours later, police searched you and you had on you the scissors and cash in the sum of $695.  You told police the cash came from a shop in the city. 

6You have been in custody since 24 October 2015, when you were arrested.  This is your first extended period of time in adult custody.  This offending breached a community correction order and justice plan imposed on you on 15 May 2014. 

7No victim impact statements were tendered, however no doubt that the victims, particularly Ms Tang, were frightened and terrified by your actions.

8As to your personal circumstances, I received a report from psychiatrist, Dr Ana Lusicic from Orygen Youth Health, dated 16 September 2015.  Additionally I received a report from Thomas Connell, your case manager at Disability Justice, dated 7 April 2016.  Mr Connell also attended court and prepared a justice plan, to which I will refer later in these reasons.

9Your personal circumstances are set out in detail in the more recent report of Mr Connell, dated 5 May 2016.  I take all of that material into account.

10You are currently aged 22 years and a young offender.  Most relevant to this sentencing task is both your youth, but also your level of mental functioning.  You grew up with your parents in Melton, though your parents died when you were very young.  You had various placements in foster care and residential units during your childhood and in 2007, were made a client of Disability Services. 

11You have many prior convictions in the Children's Court and clearly you have had a very unstable adolescence, including spending periods detained in youth justice, most significantly in September 2010, having been convicted of two counts of armed robbery.  Your most recent period in youth justice was imposed on 14 February 2013.  I was informed you were placed on a CCO and justice plan on 15 May 2014 at Melbourne Magistrates' Court.  It was around this time that you became involved with Mr Connell. 

12You have the support of Danielle Lesley, who gave evidence on your behalf.  She has known you since you were a young boy and now sees you as part of her extended family.  She told me about the living arrangements that she had for you, with the caravan in her backyard.  She also told me about the support she had given you before you were in custody and her regular contact with you by visits and phone since you have been there. 

13She explained to me your circumstances directly leading up to this offending and the difficulties you were having with drug abuse.  She also tried to ensure at that time that you were being compliant with your medication.  Though your situation leading up to this offending was clearly not ideal, it was during a period of relative stability, as compared to your predicament before. 

14I note the other supports then available to you, including through Orygen Youth Health and My Life Mentor ACSO Outreach worker, as outlined in the report of Mr Connell.

15You were a client of Orygen Youth Mental Health Services since April 2014, and have been treated under a diagnosis of schizophrenia, complicated by cannabis dependence and amphetamine use.  In addition, there is your underlying intellectual disability.  You have had occasions of acute psychotic episodes, with admission to Thomas Embling and Orygen inpatient psychiatric unit, the latter during 2015 for three months', and one months' respectively.  On each occasion you were an involuntary patient, with your symptoms precipitated by non-compliance and drug abuse.  I note that these periods of time as a voluntary inpatient were during the course of the CCO that was imposed in 2014.

16There were some aggravating features of this offending, particularly that it was a "soft target".  People in these kind of jobs are entitled to feel safe in their work environment. 

17I take into account your early plea.  It was at the earliest opportunity.  Adopting this course has saved time and expense to the community and also avoided the need for witnesses, particularly Ms Tang, from giving evidence and reliving the incident.  I accept that you are remorseful for your actions.

18As previously noted, you have an extensive prior history with numerous court appearances in the Children's Court and in the Magistrates' Court.  These offences are drug related and some involving violence and other dishonesty offences.  You have received various dispositions, including detention in YTC and have also breached other orders that were imposed in the community. 

19You have been in custody since 24 October 2015, that is, as of today's date, I think 206 days, or approximately six and a half months.  It is, as I said, your first extended time in adult gaol. 

20I take into account your youth.  You are a young offender, and despite your extensive history, this remains an important sentencing consideration in your favour.  I accept the principles of general and specific deterrence should be moderated, given your psychiatric issues and your intellectual disability.  I also note that during previous periods in detention or custody, the stability of your mental health has rapidly deteriorated and you have been required to be transferred to the relevant psychiatric unit.

21Your prospects for rehabilitation are fair, but are clearly dependent on you being compliant with your medication and dealing with your drug and alcohol issues.  Without those matters being adequately addressed, you pose a significant risk to the community of re-offending in a similar manner to that currently before me.  This feature is what makes the sentencing task before me so difficult. 

22I note that Mr Connell, in his report, sets out how it is anticipated that your professional network will continue to support you and that it is set in more concrete terms in the justice plan. 

23I received a declaration of eligibility for services under the Intellectually Disabled Persons Services Act 1986, dated 13 April 2007.  I also received a client overview report and justice plan, dated 5 May 2016, prepared by Mr Connell.  I take that material into account, including the level of your disability, your developmental history and your previous contact with the Department. 

24I note you have been discharged from Orygen Youth Health, but that you will be referred to Area Mental Health Services following your release from custody.  I also understand that because of your age, you can no longer receive support through My Life Mentor, however, a replacement Outreach agency will be identified, so as to continue work with you.  Other supports with family friends remain. 

25The justice plan was prepared at my request and outlines the available services aimed at reducing the likelihood of you re-offending.  The Department will monitor your participation in the services recommended.

26Your counsel submitted I should place you on a community correction order, with a justice plan condition.  I note in the pre-sentence report prepared by the Office of Corrections, it is indicated that you are deemed suitable for the CCO, however, that is with some reservation.  Your demeanour and presentation appears very different to the Correction’s representative than to those involved in the justice plan.  No doubt you will need to utilise the assistance offered through the justice plan and your other supports to comply with the community corrections order. 

27The prosecution submitted that a combined imprisonment/CCO was within range.  Concern was expressed regarding your previous lack of compliance and the risk to the community if you do not follow treatment recommendations relating to your various issues. 

28I must take into account all matters in mitigation and balance those against factors, such as denunciation and deterrence.  The interest of the community need to be served by both the imposition of punishment, but also ensuring your rehabilitation and reintegration into society. 

29I am satisfied this can be best achieved by sentencing you to a term of imprisonment of six months' which is effectively time served, and a community correction order for a period of three years, with conditions including the justice plan and also judicial monitoring.  Given that you have spent six months in custody, but also because of the myriad of issues that you have, I do not propose to include an unpaid community work component in the community corrections order.

30Taking all relevant sentencing considerations into account in respect of Charge 1 and 2, you will be imprisoned for a term of six months', and at the expiration of that term, you will be placed on a community correction order for a period of three years, which will include the following conditions:  You will be required to attend for any assessment and treatment, including testing, for drug dependency.  You will be required to attend for any mental health assessment and treatment, that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility, and also be required to attend for offending behaviour programs, all as directed by the Community Corrections officer. 

31You will be under the supervision of the Office of Corrections.  There will be a judicial monitoring condition, which means you will have to come back before me in about three months' time.  I will just get my associate to get a date.  The purpose of that, Mr Lopes, is for me to just check out basically how you are going on the order and check that you are complying with it.  We will make that 6 August at 9.30. 

32Finally, you will be required comply with the justice plan that has been prepared for you by Mr Connell. 

33I understand you are prepared to comply with that condition and I have the order made ready for you to sign.  Mr Thomas, would you mind going with my associate.

34MR THOMAS:  Yes, Your Honour.  Can I just - a couple of matters, Your Honour. 

35HER HONOUR:  Yes.

36MR THOMAS:  Was the - we're just looking at the pre-sentence detention.

37HER HONOUR:  Yes.

38MR THOMAS:  We calculated that as 196 days.

39HER HONOUR:  One hundred and ninety-six, sorry.  I just cannot add up.  But it is still ‑ ‑ ‑

40MR THOMAS:  Usually it's me, Your Honour. 

41HER HONOUR:  It still makes the six months', doesn't it?

42MR THOMAS:  Yes.

43HER HONOUR:  Yes.

44MR THOMAS:  Yes.

45HER HONOUR:  Yes, that is all right. 

46MR THOMAS:  That is the ‑ ‑ ‑

47HIS HONOUR:  All right, I formally declare pre-sentence detention of 196 days.

48MR THOMAS: The other matter, Your Honour, I'm just looking at s.80 of the Sentencing Act, in respect of ‑ ‑ ‑

49HER HONOUR:  Is that the period of the justice plan?

50MR THOMAS:  Yes.

51HER HONOUR:  Yes, I was wondering that.

52MR THOMAS:  It can be up to two years.

53HER HONOUR:  I wonder whether - because the order was longer though, you could make the justice plan longer.  Is it if it is shorter, and is the highest the two years?

54MR THOMAS:  Yes, it's 80(4), it's "When attaching a justice plan, the condition may apply for a period of up to two years, as specified by the court, or the period" all right, "or the period of the sentence, whichever is the shorter."

55HER HONOUR:  Yes, that is what I thought.

56MR THOMAS:  That is two years.

57HER HONOUR:  ­Yes, it has got to be two years. 

58MR THOMAS:  Yes. 

59HER HONOUR:  That is all right.  I will indicate that on the order.  Can you do that, or not?  Yes, all right, so that justice plan condition is only valid for two years.

60MR THOMAS:  Yes.

61HER HONOUR:  Although the community corrections order itself is valid for three. 

62MR THOMAS:  Yes, Your Honour.

63HER HONOUR:  That is my intention.  I would ordinarily make a declaration, pursuant to s.6AAA, but in these circumstances, I am not going to do that.  I do not think it is a suitable case for doing that, and if someone wants to tell me I am wrong, well they can. 

64MS McCLURE:  I will check the section, but I believe it's a requirement when a term of imprisonment is ‑ ‑ ‑

65HER HONOUR:  Yes, I understand that, but I think that the circumstances in this case are such that it does not make sense to make such an order. 

66MR THOMAS:  Unless Your Honour's effectively saying that you'd make the similar sort of order.

67HER HONOUR:  Well I was just thinking ‑ ‑ ‑

68MR THOMAS:  Whether it was a trial or not.

69HER HONOUR:  Maybe for the sake of ‑ ‑ ‑

70MR THOMAS:  Yes.

71HER HONOUR:  ‑ ‑ ‑ being strictly in accordance with the law, I should say, pursuant to s.6AAA, I would have imposed a sentence of two years', but I want it noted that that really is a ‑ ‑ ‑

72MR THOMAS:  As much ‑ ‑ ‑ 

73HER HONOUR:  Not a particularly meaningful declaration. 

74MR THOMAS:  As many of them aren't. 

75HER HONOUR:  Yes.

76MS McCLURE:  Yes, Your Honour. 

77HER HONOUR:  So I am just getting the order, I think, done up.  It is just a bit of a hiccup, I think, having a justice plan for two years and the order for three.

78MR THOMAS:  I see.

79HER HONOUR:  So I think that is where we - we have just got a little bit of a hiccough.  You might be able to put may have a justice plan condition for the whole order and then put at the bottom of the order an additional thing so - - -

80ASSOCIATE:  (Indistinct) the actual (indistinct) module has crashed.

81HER HONOUR:  Yes, all right. So do I need to stand down?

82ASSOCIATE:  Yes.

83HER HONOUR:  Apparently CLMS has crashed so I will come back when it is ready.  Thanks.

84(At 9.50 am Her Honour left the Bench.)

85(At 10 am Her Honour returned to the Bench.)

86Thanks.  Yes, that is great.

87ACCUSED:  Thank you, Your Honour.

88HER HONOUR:  That is all right.  I hope you go all right.

89ACCUSED:  Thanks.

90HER HONOUR:  Anyway, you will be back here in a few months and I will see how you are going, all right.  All right, thanks.

91                (At 10.01 am Her Honour left the Bench.)

92                (At 10.03 am Her Honour returned to the Bench.)

93All right, I have signed the disposal order and the 464 order.  Mr Lopes, you just  need to know that you are required to provide a sample for the 464.  I think Mr Thomas will explain to you what that means and the police are able to use reasonable force if you do not cooperate with that procedure but I am sure, as I said, Mr Thomas will explain to you what that is all about. All right?

94ACCUSED:  Yes.

95HER HONOUR:  Thank you.

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