Director of Public Prosecutions v Manns

[2020] VCC 538

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00062

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARRISON MANNS

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2020
DATE OF SENTENCE:	21 April 2020
CASE MAY BE CITED AS:	DPP v Manns
MEDIUM NEUTRAL CITATION:	[2020] VCC 538

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Criminal law sentencing – attempted armed robbery and related summary charge of commit indictable offence whilst on bail – youthful offender – early plea of guilty – combination sentence imposed

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Livingstone Clark	Solicitor for the Office of Public Prosecutions
For the Accused	Ms K. Ljubicic	Stary Norton Halphern

HER HONOUR: 

1Harrison Manns, you have pleaded guilty before me to one charge of attempted armed robbery and one related summary charge of commit indictable offence whilst on bail.  The charges are serious and that is reflected in part, in the maximum penalty prescribed by law, and that is, 20 years in respect to the attempted armed robbery charge and three months' imprisonment or 30 penalty units in respect to the summary offence. 

2You admitted your prior criminal history.

3At the time of the offending you were 21 and unemployed and homeless and you are now 22.  You have a fairly extensive prior criminal history with court appearances being recorded in South Australia as well as here in Victoria.  The criminal history spans a period from 19 January 2016 until 4 June 2019. 

4On numerous occasions you have been dealt with by the courts for dishonesty offending and of relevance you were convicted of serious criminal trespass, non-residential; dishonesty take property without consent; and commit assault, aggravated by use of an offensive weapon, for which you received a gaol term in South Australia on 15 December 2017.  At the same time, you were breached for not adhering to bond conditions for an assault and damaging property.  You underwent a sentence in South Australia of nine months, 11 weeks and 24 days. 

5There is also subsequent offending and convictions have been recorded. You are currently undergoing sentence, due to be released on 12 June 2020.  On 17 September 2019 at Moorabbin Magistrates' Court a total effective sentence of nine months' imprisonment was imposed in respect of a consolidation of a number of charges that included various dishonesty offences, including multiple theft charges:  theft of a motor vehicle, burglary offending, obtain property by deception, commit indictable offence whilst on bail, deal property suspected of proceeds of crime and possession of drug of dependence.  That offending related to offending on 13 January 2019 and on 1, 9, 10, 13 and 14 August 2019.  

6Your matter was the subject of an Appeal that was heard before the Honourable Justice Tinney in the Supreme Court of Victoria. 

7On 16 December 2019 he set aside the orders made by the Magistrates' Court imposed on 17 September 2019, and made new orders effectively in the same terms with the same orders for cumulation and concurrency and the same ancillary orders and a declaration of pre-sentence detention of 124 days.  You were also disqualified from obtaining a driver's licence or permit for a period of four months from 16 December 2019.

8The current offending happened on 25 July 2019 at about 12.30 am.  It concerned you approaching the victim Minsu Jang, a 25-year-old male who was standing outside a building at 639 Lonsdale Street, Melbourne, smoking.  He was with a female friend.  You approached him and asked him for a cigarette.  He initially told you he did not have any, but, due to your aggressive response, he gave you a cigarette and you then walked away.  A short time later you returned and said to Mr Jang:  'Are you laughing at me?  Are you talking about me?'  You then demanded that he give you his wallet. Both the victim and his female friend told you they did not have their wallets and showed you their empty pockets.

9The victim Mr Jang offered to call his manager to bring you some money.  You then showed him a bottle that was inside your sleeve and said, 'I know you are going to report this to police, so cough up some money'.  He told you that he did not have any money and you continued to swear at him and demanded that he hand over his mobile phone to you.  You held up the bottle in a threatening manner, at which time he asked you to calm down, to which you replied, 'If you don't give them to me, I'll hit you'.

10Jang continued to try to calm you down for about a minute and he did not give you his wallet or phone.  You then raised the bottle and struck him to the left side of his face and that caused his glasses to come off, causing him to be quite dazed.  He became afraid that you may assault his female friend, so he walked up towards you and you then ran away from the scene.  The incident was captured on CCTV footage.

11Mr Jang suffered a graze and soreness to the left side of his forehead and a sprained ankle as a result of the offending.  No victim impact statement was filed; however, common sense dictates that he would have suffered some physical discomfort and upset as a consequence of the offending.

12Eventually police were able to identify you as the offender and on 9 September 2019, whilst you were being held in custody, a record of interview was conducted, during which you denied any involvement in this incident. 

13Ultimately, the matter was the subject of negotiations and you indicated an early plea of guilty at committal case conference on 20 January 2020.  The prosecution accepts the plea was entered at the earliest opportunity and your sentence will be discounted accordingly.

14You are currently undergoing two sentences, the first one being the one that was initially imposed on 17 September 2019, to which I have earlier referred, and the second sentence was imposed on 13 December 2019 at Moorabbin Magistrates' Court, where you were sentenced to three months' imprisonment.  An order was made that one month of that sentence be cumulative upon the sentence you are currently undergoing. The 13 December 2019 matter was in respect to a charge of possess prescribed graffiti implements, possess prohibited weapon, theft from a motor vehicle and theft of a motor vehicle.

15You are currently being held at Ravenhall Corrections Centre and previously you were held at the Melbourne Assessment Prison.  You have been subject to limitations and restrictions imposed by Corrections Victoria as a result of the COVID-19 pandemic. 

16By way of background and history, you were born and raised in Western Australia.  Your parents met shortly prior to your birth and married shortly before your birth.  You were raised by your parents and four sisters, three of whom are older, and they are half-siblings from one of your mother's previous relationships.  You have one full sibling.

17Your parents both live interstate.  They were regular users of cannabis and alcohol.  Your mother was a chronic alcoholic as well. Your childhood was blighted by their addictive behaviours.  It is believed that you may suffer from foetal alcohol syndrome. 

18There were times during your early childhood where you were exposed to drugs and you commenced using cannabis when you were 11. 

19Your parents divorced when you were aged 15 and your mother relocated South Australia, where she repartnered.  Your father remained in Western Australia and he also repartnered. 

20You continued to live with your father and your stepmother until you were about 17 years of age.  Due to conflict with your stepmother, your father asked you to leave home at around the age of 17. 

21You have completed Year 12 at a local community college. 

22After some time, you left Western Australia and relocated to South Australia, where your mother was living, but your time there was difficult because you were subjected to a serious physical assault in 2015.  You suffered fractures to your face, skull, wrist and ribs and you were deeply affected by the assault.

23You remained in Mount Gambier for about eight months and then relocated to Melbourne, ostensibly for a new life.  It was difficult for you when you relocated to Melbourne, as you have no real connections in this city.  You could not secure employment, you were homeless and using methamphetamines. 

24In the past you have never had any rehabilitation or treatment in respect to you chronic substance abuse issues. 

25Of note you are now keenly interested to participate in rehabilitation, including residential rehabilitation for drug treatment if that is offered to you.

26Your past criminal history does reflect to a large extent the chaotic lifestyle you have led associated with periods of homelessness and instability. 

27I have had regards to the contents of the report of Mr Jeffrey Cummins, the consultant psychologist who saw you, and his report of 4 December 2019 was tendered on your behalf.  He confirms you were diagnosed with ADHD as a child.  Following his assessment, he concluded that you do not present with any acquired brain injury and that you are probably functioning intellectually at the lower end of the range of average or perhaps at the top of the below-average range.

28He said that you displayed some characteristics of a borderline personality disorder and you openly acknowledge behaving impulsively at times, having a history of relatively superficial friendships and acquaintances.  He considers you do suffer symptoms of PTSD attributed to the assault in South Australia and he considers that those symptoms could be relevant in terms of your subsequent dependency on GHB and methamphetamines.  He too noted your motivation to seek treatment in respect to your drug abuse issues.

29Around the time of the offending you had ceased a relationship with your girlfriend, who was also a homeless person but not an illicit drug user.  You had begun to use more heavily, and the offending occurred in that context. 

30Mr Cummins considers you are a moderate risk of further offences of violence, but he notes that you are motivated to receiving counselling and treatment relevant to your drug-using lifestyle.  I have had regard to those comments in formulating the sentence.

31Mr Manns, this is objectively serious offending; however, I note that you did not inflict any violence upon the victim other than what was effected at the time you attempted to steal his wallet and that you did desist once it became evident that he was not going to provide you with either his wallet or phone.  Overall the offending falls in the lower end of seriousness for this sort of offence of attempted armed robbery.

32The fact that you committed the offence whilst on bail does demonstrate an ongoing disregard for the law and does not reflect favourably upon your rehabilitation prospects. 

33On behalf of the community I must denounce your behaviour. 

34I have, however, taken into account all the matters put on your behalf in mitigation by Ms Ljubicic. 

35The plea was entered at the earliest opportunity, there is real utility in the plea.  It evidences that you now accept responsibility for your actins and that you are genuinely remorseful.  Further, you have spared the victim and his girlfriend the further trauma of having to give evidence and you have avoided the inconvenience of a trial.  You have facilitated the justice and the sentence will be discounted accordingly. 

36I have regard to your relative youth, and I consider that rehabilitation is an important aspect of your sentence, although it is less so than it would be for a younger offender. 

37I accept the context of the offending occurred on the basis of your homelessness, heavy use of drugs and that that, in part, is attributable to your ongoing post-traumatic stress disorder symptoms.  I have moderately reduced your moral culpability and also the necessity to emphasise specific and general deterrence.  I also have regard to your difficult childhood and disrupted upbringing, and I have applied the Bugmy[1] principles.

[1]Bugmy v The Queen (2013) 87 ALJR 1022, [42].

38You have utilised your time well in custody and you are employed in the timber industries.  You completed first aid and CPR training, you have learnt to cook, and you are completing a Certificate III in retail baking so that you potentially have a skill that will be transferrable once you are released.  You are now keen to seek employment and you will seek assistance through the YMCA Bridge program to help you secure employment upon your release. 

39I have had regard to the difficult conditions that you are currently being held in, having regard to the Corrections Victoria response to the COVID-19 epidemic and I have taken that into account in a general sense.  It makes imprisonment more burdensome for you and does increases your anxiety associated with the uncertainties of your situation in a large institution with many people and that has been taken into account.

40Overall, given your expressed intention that you are willing to seek assistance to address your long-standing drug addictions, I am cautiously optimistic about your rehabilitation prospects.  You do, however, need to utilise all the supports that are available to you in the community either through Front Yard or the Bridge program in order to make good your motivation to change. 

41You have now been in continuous custody since 16 August 2019 and I have taken into account the principle of totality. 

42Ultimately Ms Ljubicic submitted that it was open for the court to consider a combination sentence.  That is a sentence of imprisonment in addition to a community correction order with appropriate conditions to support you in your rehabilitation in the community. 

43Ms Livingstone Clark on behalf of the prosecution considered, having regard to all the circumstances and mitigating factors, that such a disposition was within range.

44In formulating the appropriate sentence, I have had regard to general and specific deterrence appropriately modified, your relative youth, your future rehabilitation prospects and also your willingness to undertake treatment.

45This morning you have had explained all the mandatory conditions of a Community Correction Order, as well as the special conditions I propose, and the consequence of breach of any order and you have confirmed that you consent the making of an order in the terms that been described.

46This will be the first time that you have had available to you a structured post-release order and it will give you the opportunity to engage with the Corrections Victoria authorities to address your underlying offending behaviours. 

47The formal sentence is as follows.

48On Charge 1, attempted armed robbery, you will be convicted and sentenced to three months' imprisonment to be followed by a two-year Community Correction Order with special conditions of supervision; treatment and rehabilitation, including drug testing for drug abuse and dependency as directed; mental health assessment; and treatment and offending behaviour programs.  There will be judicial monitoring on Tuesday, 1 September 2020 at 10 am at Melbourne County Court to assess your progress and to ensure your progress with the order and the conditions that I have imposed.

49You are required to report to Melbourne Justice Service Centre at 50 Franklin Street, Melbourne within two working days of your release date.  Details of their phone contact will be provided to you so that you can telephone them upon your release to organise the induction process consistent with the modified arrangements that have been put in place because of COVID-19.

50On the Summary Charge 2, commit indictable offence on bail, you will be convicted and sentenced to one month's imprisonment, which is concurrent with the sentence imposed in respect to the indictable offence.  Each of those sentences are concurrent with the sentence that you are presently undergoing.

51Section 6AAA declaration, but for your plea of guilty I would have imposed a term of imprisonment of two years to serve 16 months. 

52So that completes the orders.  I do not believe there was any ancillary orders sought. 

53MS LIVINGSTONE CLARK:  There was not, Your Honour, no.

54HER HONOUR:  No, so that completes everything.  Provided that Mr Manns understands the effect of the order I think we can disconnect the video.  So I will just check again, do you understand, Harrison, what has happened today?

55OFFENDER:  Yes, Your Honour.

56HER HONOUR:  All right, good.  Well, thank you for your attendance, everybody, and we will now discontinue the link.  Thank you, everybody.

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