Director of Public Prosecutions v Marzano

[2014] VCC 1463

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-14-00057

DIRECTOR OF PUBLIC PROSECUTIONS

v

FRANCESCO MARZANO

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2014
DATE OF SENTENCE:	3 September 2014
CASE MAY BE CITED AS:	DPP v Marzano
MEDIUM NEUTRAL CITATION:	[2014] VCC 1463

REASONS FOR SENTENCE
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Catchwords:            
Legislation Cited:     
Cases Cited:            
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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr L. Exell (Plea) Ms B. Yildiz (Sentence)	Office of Public Prosecutions
For the Accused	Ms E. Turnbull	Emma Turnbull & Associates

HER HONOUR:

1       Francesco Marzano, you have pleaded guilty to two charges of armed robbery.  The maximum penalty applicable to each offence is 25 years’ imprisonment.

2       It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A.  I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.  It is sufficient for present purposes to simply say the facts in this case are most serious.

3       I turn to a brief summary of your offending.

4       At the time of this offending you were 30 years of age and are 31 at time of sentence.

5       The two charges before me relate to armed robberies committed at service stations in Kealba and Sunshine North on the evening of 21 October 2013. 

6       Turning to the first armed robbery.

7       At approximately 8.25pm on 21 October you entered the BP service station in Sunshine Avenue, Kealba.  The victim of your offending, Syed Azeen Akhtar, was working as an attendant at the counter.

8       You were wearing a white plastic bag around your head, black peak cap, T-shirt, camouflage pants and white sneakers.  You held a kitchen knife approximately 10 inches in length in your right hand.  You walked to the counter and pointed the knife at Mr Akhtar and said, “Give me your money, all you have”.  Mr Akhtar said he did not have any money.  You repeated your demands and Mr Akhtar again refused.  You then held the knife at shoulder height pointing it at the victim and repeating your demands.  Mr Akhtar opened the cash register and placed the cash tray on the counter at which time you took notes from the tray and left the premises.  You took approximately $150. 

9       Your offending was captured on CCTV and I viewed that during your plea hearing.  You were in that store for approximately one minute. 

10      Mr Akhtar told police in his police statement that at the time of your offending he was concerned for his welfare and believed you could stab him at any time.

11      Approximately an hour and a half later you went into the United service station in McIntyre Road, Sunshine North.  Sriker Gude was working as an attendant behind the counter.

12      You were wearing camouflage pants, white sneakers, T-shirt and had a blue T-shirt which you had stretched over your nose and lower part of your face.  In your right hand you held a 30 centimetre black-handled knife in front of you.  You approached the counter and told Mr Gude to stay still.  You pointed the knife over the counter at him and demanded money.  Mr Gude took the cash tray out of the register and held it over the counter at which time you placed your knife on the counter and removed the notes from the tray.  You picked up the knife, turned and ran out the door.  On that occasion you took approximately $350 cash. 

13      Again, this incident was captured on CCTV footage which I also viewed.  You were in the store on that occasion for approximately 30 seconds. 

14      A photocopy photograph of the knife you used was also tendered (Exhibit D). 

15      Police attended the relevant premises that same evening.

16      The following day, on 22 October 2013, at about 8.50am you contacted Sunshine Police and reported you had committed the offences.

17      The police went to your home and found you wearing the camouflage pants and white shoes depicted in the CCTV footage. 

18      The police also located $105 in your pocket. 

19      You were conveyed to Keilor Downs Police Station where a record of interview was conducted, in which you told police you went to the petrol station as you thought someone was after you.  You remembered going into petrol stations and getting money but you could not “really remember much”.

20      You said you had woken at 6.00am the morning of the robberies and were a bit confused because the person who talks to you does not leave you alone.  You described being on medication for schizophrenia, and that your mother usually gave you your medication but as you wanted to start controlling your life you had thrown it down the toilet.  You thought someone might be trying to poison you. 

21      You described being at the Kealba Hotel for a time, drinking and gambling during the afternoon before the armed robberies.  You said you did not think you had ever been drunk in your life.  You left the Kealba Hotel in your car at about 6.00pm.

22      You said you went into a petrol station with a kitchen knife and asked for money, then continued to drink and play the pokies.  You said you thought the knife was somewhere in Coburg.

23      You thought someone was trying to poison you so you put your medication into the toilet, but you knew the medication helped you. 

24      You described hearing gunshots and voices and drinking to cope with that.  You said you had $400 at the start of the day but lost that through the pokies and TAB.  You then went to the petrol station to get money.  You did not know how much money you had taken from the service stations. 

25      The interview was suspended while you directed police to the Drum Hotel, Coburg where the knife, its packaging and the blue T-shirt you had used in the offending, were located.

26      When the interview was recommenced you told police you felt your life was coming to an end with a man after you.  You said you were really frightened and had been struggling with the voices in your head. 

27      An aggravating feature of your offending was the use of a disguise, although I accept not a complete or sophisticated disguise. 

28      You were charged and remanded to appear at the Melbourne Magistrates’ Court on 23 October 2013.  At that time you indicated you would be pleading not guilty (by reason of mental impairment) at the first committal mention on 15 January 2014 and you were committed by way of straight hand-up brief.

29      There were directions hearings in the County Court in January, February and May 2014 with you pleading guilty to both charges on 5 June 2014. 

30      Following being taken into custody on 22 October 2013, you have spent 304 days in custody by way of pre-sentence detention up to and including 21 August 2014. 

31      Your counsel, Ms Turnbull, prepared a helpful outline of submissions, which I have read, and she addressed them during the course of your plea hearing. 

32      You have pleaded guilty to these two charges and you are entitled to have that taken into account in your favour when sentencing, and I do so. 

33      Your plea of guilty has saved the time and cost of a trial and witnesses have not been required to give evidence upon your trial.  Nor was there a contested committal. 

34      The stage at which you entered your pleas of guilty is also a relevant consideration.  I accept your pleas of guilty were entered at the earliest opportunity.  I accept it was, on the material before me, appropriate for those representing you to firstly ascertain your fitness to be tried and whether a defence of mental impairment was available to you. 

35      You have admitted a number of prior court appearances which are troubling, and in particular I have had the benefit of reading two sentences imposed by her Honour Judge Gaynor in relation to your past similar offending, the first sentence handed down in 2006 and her second sentence in 2010.  I shall refer to her Honour’s sentencing remarks in a moment. 

36      You have admitted an extensive and relevant prior criminal history.  Your first court appearance was on 21 June 2005, then, significantly, on 24 February 2006 you appeared at the Melbourne County Court before her Honour Judge Gaynor on six charges of armed robbery and one of attempted armed robbery, disturbingly also involving armed robbery on service stations whilst armed with a knife, on two occasions the same service station, as was also relevant to one of the charges before me.  At the time of that sentence you were 23 years of age.  Your background and history at that time was summarised by her Honour in her sentencing remarks. 

37      Her Honour noted that at that time you contacted your mother and ended up at the police station, which she considered to be strongly indicative of your remorse.  Similarly, I note you contacted police to tell them of your involvement of the armed robberies before me. 

38      On the charges of armed robbery, which were dealt with by her Honour, you were sentenced to a total effective sentence of two years’ imprisonment on the armed robbery charges, with 21 months of that sentence suspended for three years.  In relation to the attempted armed robbery you were convicted by her Honour and placed on a Community-Based Order for two years.

39      You then appeared at Sunshine Magistrates’ Court on 16 August 2008 and were dealt with for failing to comply with a Community-Based Order previously imposed on 9 September 2005 for driving offences.

40      You next appeared at Sunshine Magistrates’ Court on 30 October 2007 charged with criminal damage by fire, and the matter was without conviction adjourned for a period of twelve months.

41      You then appeared at the Sunshine Magistrates’ Court the day after, on 31 October 2007 on a charge of robbery, making a threat to kill, assault with a weapon, theft from a shop, carrying a controlled weapon without excuse, for which on some charges without conviction, the matter was adjourned till 30 June 2010 and on others you were convicted and placed on a Community-Based Order for a period of six months, with various conditions.

42      You then appeared again before Her Honour Judge Gaynor on 8 April 2010 on charges of armed robbery, attempted robbery and theft, and were sentenced to a total effective sentence of two years and six months, with a non-parole period of twenty-months imposed.

43      You also on that date before her Honour were dealt with for a breach of her Honour’s Order of 2006 in relation to the charges of armed robbery.  Your sentence was partially reinstated and you were required to serve ten months’ imprisonment.

44      You then appeared at the Melbourne Magistrates’ Court on 15 April 2010 on a charge of robbery, and received six months’ imprisonment concurrent with the other sentence you were then undergoing.

45      Your most recent prior matter was on 16 August 2012, where on a charge of attempted robbery you were convicted and placed on a Community Corrections Order for twelve months with conditions. 

46      Ms Turnbull, who appeared on your behalf, relied heavily upon your successful completion of Community-Based Orders in the past, however, acknowledged when previously on parole, in particular following your release on 17 January 2011, you breached parole shortly thereafter and were remanded at the Melbourne Assessment Prison on 25 May 2011.  Ms Turnbull conceded you had an opportunity whilst on parole between January and May 2011, however, you did not comply.  I note you have also previously breached a suspended sentence. 

47      A number of reports were before me upon which Ms Turnbull relied. 

48      There was a report from Dr Paul Grech, Consultant Clinical Psychologist, dated 7 November 2013, prepared for a bail application for the charges before me, as I understood, which did not proceed. 

49      You were referred to Dr Grech by your general practitioner regarding your depression, anxiety and negative symptoms associated with your schizophrenia.  You had previously made, what was described by Dr Grech, as “a serious suicide attempt” in mid-April 2013.  Since that time, you had made a steady recovery with the assistance of anti-psychotic medication, which blocked the effects of alcohol on the opioid receptors that caused high or lifting of mood associated with drinking.  Dr Grech noted at that time, of significance, you had abstained from alcohol use until you missed your medication and ended up binge drinking, after which you committed what was referred to as a number of “aggravated burglaries” at the time of that Report.  At the time your score on a self-report scale of depression revealed you had been experiencing moderate mood difficulties consistent with the negative symptoms of otherwise reasonable well-controlled schizophrenia, and you reported extreme punishment feelings (page 2 of the Report).  Dr Grech also referred to psychiatric symptoms that you were exhibiting and revealing at that time (pages 2-3).  Dr Grech referred to your attendance for psychological treatment since the time of your original referral to him in early 2013.  You had managed to remain drug and alcohol free during Dr Grech’s involvement until recently, making “tremendous progress” until relapsing (after ceasing use of Naltrexone) and re-offending.  In the time you had been involved with Dr Grech, you had been prescribed antipsychotic medication, and had availed yourself of cognitive-behaviour therapy responding well.  It was noted that prior to your re-offending on that occasion there had been a three week break in therapy.

50      In the opinion of Dr Grech, ongoing psychiatric and psychological interventions were essential to ensure you remained stable and to reduce your risk of recidivism.  At that time it was anticipated you would continue to attend for weekly psychology appointments and more frequent medical and psychiatric reviews “when released from custody”. 

51      I was also given a report from Dr Elias Sleaby dated 17 December 2013, again, as I understood from Ms Turnbull, prepared for the bail hearing which did not proceed.  You commenced with him on 26 October 2004 with problems regarding depression and alcohol abuse from a young age.  You were in 2013 prescribed a number of medications, as outlined in his report.  You were also receiving regular psychological support and counselling.  In the opinion of Dr Sleaby, you were troubled with “complex psychological problems” requiring intensive therapy and long-term support. 

52      Ms Turnbull relied in particular upon your efforts outlined in the reports of Dr Grech and Dr Sleaby when you attended with them whilst in the community, and that you had done well until the time of the offending before me. 

53      Ms Turnbull’s ultimate submission was that you be considered for a further sentence of three months, and thereafter be placed on a lengthy Community Corrections Order with appropriate conditions.  I discussed with Ms Turnbull at some length the appropriateness of that sentence for your offending, taking into account all relevant matters, including not only the seriousness of this offending but all matters in mitigation of your sentence.

54      There was also a report from Dr Lester Walton, Consultant Psychiatrist, dated 16 December 2013, referrable to this offending on 21 October 2013 where you said you woke to hearing gunshots and conflicting voices urging “you can do it, no you can’t”.

55      You resorted to drinking alcohol to try and drown out the hallucinations and also attempted to distract yourself by engaging in gambling, ultimately exhausting your funds.  The armed robberies were to replenish your finances.  You acknowledged your involvement in the alleged offending saying, “I don’t think it’s really my fault.  I done it but it’s like I received instructions.  I’m sorry for what happened, yeah”.

56      Dr Walton noted, as did I, you have previously engaged in similar dishonesty offending, having previously been released from prison some nine months prior to Dr Walton’s assessment on 11 December 2013. 

57      You described experiencing a recurrence of hallucinations and paranoia and as a result began to attend with a private psychiatrist in Sunshine receiving treatment by way of anti-psychotic medication from March 2013.  You said you had also consulted with a psychologist, Dr Mohammad.

58      It was noted by Dr Walton that you were “less than reliable” in terms of applying yourself to taking your medication whilst in the community.

59      During past incarceration you had spent six months in the St Paul’s Psychiatric Unit at Port Philip Prison.  I note also whilst on remand for these offences you have been in the St Paul’s Unit for some of that time.  Dr Walton had also made reference to your psychiatric history in his earlier report of 16 December 2008. 

60      There was a history of mental disorder in your family.  When you were in the community you had been living with your parents and described them as thoroughly supportive of you.  I note the presence of your family during your plea hearing. 

61      Since your most recent relationship in 2008, you had attempted to establish further relationships without success. 

62      You have not been in paid work since 2008.

63      In the interview, on 11 December 2013, you described having been in the community most recently, and intoxicated two or three times a week in an effort to quash the auditory hallucinations, as well as the visual images of you being shot and the like. 

64      Occasionally you said you had smoked cannabis.

65      There had also been an incident of self-inflicted wounding.

66      At the interview on 11 December, you described your mood as “I’m just so mentally drained.  I want these voices to go away”.  At the time, however, it appeared to Dr Walton you were not being distracted by hallucinations.  You expressed the fear you were being poisoned in prison and had been avoiding eating for up to three days at a time as a result. 

67      Your underlying intelligence was considered to be normal.

68      In Dr Walton’s opinion (in 2013) you were a gambling and alcohol addict who suffered from chronic paranoid schizophrenia. 

69      Regarding the defence of mental impairment, relevant to your offending before me, Dr Walton concluded you were intoxicated and impoverished because of your gambling and actively psychotic, however, he was not of the opinion you had a viable defence of mental impairment.  Having said that, your active psychotic illness in his opinion had made a central contribution to your offending, compromising your ability to exercise proper social judgment and disinhibiting aggressive dishonesty behaviour inflamed by the effects of alcohol.

70      In Dr Walton’s opinion, you required revision of your current treatment and that you remained actively symptomatic at present.  He concluded the mainstay of your treatment would be antipsychotic medication. 

71      Your lack of remorse, he suggested, should not be accepted at face value but was a reflection of your schizophrenic illness. 

72      In his opinion, the principles enunciated in R v Verdins[1] should be given significant weight in your case, that imprisonment would be more onerous for you than mentally able prisoners. 

[1] (2007) 16 VR 269

73      In his opinion, your combination of gambling, alcohol abuse and psychotic illness represented a major challenge in terms of appropriate treatment, management and rehabilitation.  That treatment could only be partly approached in a custodial setting.

74      In his opinion, you were not an appropriate vehicle for general deterrence.  That when intoxicated and/or psychotic, considerations such as general deterrence and specific deterrence would be lost to you. 

75      The most recent report before me was that of Dr Danny Sullivan, Consultant Forensic Psychiatrist, dated 23 May 2014, a report requested by the prosecution to address the question of your fitness to be tried and availability of a mental impairment defence.  In that report there were details of your personal history. 

76      You were born in Italy, the fourth of six children, two brothers and three sisters. 

77      Your parents remain married and at the time of his report were living in St Albans.  You outlined a history of mental health issues in relation to your mother and also your extended family.

78      You came to Australia with your family in 1990 attending Alban Vale Primary School, and describing school as difficult for you.

79      You then attended Deer Park Secondary College and completed your Victorian Certificate of Education.  You were suspended at times for minor misdemeanours.

80      After completing school in 2000 you commenced studies in sport administration at Batman-Kangan TAFE but failed.

81      In your early 20s you studied for a security qualification and had worked since then in security and retail but had not worked since 2007.  You had also spent some time working in a chocolate factory.

82      You described enjoying sport and had attended at the Mormon Church in Deer Park.  You lived with your family when in the community and described being on “quite good terms with them”.  In the past you had some relationships, the longest about six months.  You were not currently in a relationship and do not have any children.

83      Dr Sullivan referred to your current medications (see paragraph 13 of his Report).

84      Turning to your psychiatric history.  You said you believed you had been diagnosed with schizophrenia and depression but had never been admitted to a psychiatric hospital.  You had in the past had contact with the CATT team through North-West Area Mental Health Service.  Since 2008 you had been seeing a psychiatrist, Dr Assadi, through Harvester Clinic. 

85      You reported experiencing ongoing auditory hallucinations of a male stranger, you felt scared and the voices told you to hurt yourself.  The voices were episodic but recurrent.

86      Most recently you said the voices had told you to cease your medication as it was “poison”.  You did, however, state you felt the medication made you better.  Whilst taking anti-psychotic medication you said your hallucinations were less intense but still occurred and you struggled to ignore them.  On Risperidone you felt the voices were improved. 

87      Further, you reported frequent feelings that others wished to harm you, and you would visualise yourself being hurt. 

88      You also described what Dr Sullivan called a general prevailing sense of paranoia, being suspicious of people believing they were speaking about you.

89      You described a number of obsessive-compulsive behaviours, also you had reported previous attempts to harm yourself physically to relieve distress.  You also reported intermittent gambling.

90      Turning to your substance use history, you reported alcohol use from the age of 19 and more heavily from 25.  You said you drank intermittently.  You also described having received treatment in the past for alcohol and drinking and had previously undergone alcohol detoxification.

91      You reported cannabis use intermittently from the age of 19, smoking up to five cones daily, with prior to this recent incarceration, once or twice per week. 

92      Since being remanded in custody in October 2013, following the offences before me, you spent some time in St Paul’s Psychosocial Rehabilitation Unit.  You were doing all available courses in custody, including the GROW course.  You described this was your third time in prison and that on another occasion you had also spent time in the St Paul’s Unit.  Dr Sullivan noted the reports of Dr Grech and Dr Walton.

93      Turning to your account of this offending, you said that at the time of these offences you had been prescribed Olanzapine and that generally your mother would administer that medication.  You, however, stopped taking that medication two weeks prior as the auditory hallucinations told you to stop taking it.

94      You described on the date of this offending feeling confused and reporting auditory hallucinations.  You consumed alcohol and gambled, however, continued to hear voices.

95      You told Dr Sullivan you used the proceeds of the armed robberies on food.

96      Dr Sullivan diagnosed you with paranoid schizophrenia with a likely overlapping diagnosis of Obsessive-Compulsive Disorder.  Further, you had a history of substance abuse, including alcohol and cannabis, and a longstanding gambling problem.

97      He observed that at the time of this offending you had unilaterally ceased antipsychotic medication, lapsed into alcohol use and were spending money gambling.

98      In Dr Sullivan’s opinion, whilst you were experiencing auditory hallucinations, at the time of this offending they were not sufficient to explain the commission of the charges before me.  Further, you had acknowledged the reason for this offending was to obtain money for gambling.  You had also, he noted, made efforts to disguise yourself and dispose of the paraphernalia used in the offending.

99      Despite the psychotic symptoms you were experiencing at the time, in the opinion of Dr Sullivan the defence of mental impairment was not available to you (paragraph 49).  In Dr Sullivan’s opinion at the time of these offences you were disinhibited due to intoxication, and through a combination of psychosis and intoxication your judgment was significantly impaired, as was your capacity to make rational choices and think calmly and clearly.

100     Dr Sullivan considered you would benefit from a medication review and suggested consideration of a trial of Clozapine.  In his opinion your overlapping obsessive-compulsive symptoms may render your symptoms and treatment more complex.

101     Regarding your ongoing alcohol use and gambling, in Dr Sullivan’s opinion longer term consideration should be given to maintenance in psychological counselling interventions, as well as longer term Naltrexone prescription. 

102     I was, as I have said, also given the earlier sentencing remarks of her Honour Judge Gaynor, who sentenced you on two previous occasions to which I have referred, and in her sentencing remarks there were also details provided of the developing awareness by professionals of your mental health issues. 

103     Returning to her Honour Judge Gaynor’s sentence on 24 February 2006, there was a report on that occasion before her Honour from Mr Bernard Healy, Psychologist.

104     Her Honour noted the seriousness of your offending on that occasion (and before me).  Her Honour referred to the victims in that offending as being “soft targets”, as were the two victims before me.  At the time of her Honour’s sentence, on 24 February 2006, your actions following your offending and your desire to desist from such behaviour in the future was, in her opinion, “strongly indicative of your rehabilitation prospects”.  Unfortunately, since then, you have re-offended.  Her Honour at that time was satisfied that on that occasion your offending occurred in the context of an emotional meltdown following the ending of your relationship with your then partner.  In those circumstances you became depressed, drank alcohol and gambled.  Her Honour imposed a partially suspended sentence and a Community-Based Order. 

105     Returning to your appearance before her Honour on 8 April 2010, your offending on that occasion involved ‘soft targets’ where you used a knife to demand money.  After obtaining about $500 on that occasion you then spent the money gambling and drinking alcohol.  Later that same night you went to the Shell service station in Coburg and demanded money (attempted armed robbery).

106     Her Honour noted that at the time of sentence in 2010 there had also been two breaches of her Honour’s earlier suspended sentence. 

107     Her Honour had a report from Dr Sleaby, and reference was also being made to your attendance with Mr Mohammed, and also a report from Dr Lester Walton (in 2008). 

108     Concerns were then being expressed regarding your mental health. 

109     Dr Walton had noted then it was of concern you had not been placed on antipsychotic medication earlier as you appeared to be suffering paranoid ideas and hallucinatory experiences since at least May 2007. On that occasion there was also a report from Mr Jeffrey Cummins, dated 16 October 2009, before her Honour (referred to in paragraph 31 and following of her Honour’s sentencing remarks). 

110     At the conclusion of the plea hearing at that time it was unclear whether or not you suffered from schizophrenia, and therefore a report was ordered from Forensicare, subsequently received on 20 January 2010 prepared by Dr Remy Glowinski (as outlined in paragraphs 40 to 47).

111     Her Honour was then satisfied you suffered from a schizophrenic condition, although at that time you were reluctant to accept such a diagnosis.  Your psychiatric illness was considered to have played a part in your offending and that your psychotic symptoms caused you to drink extravagantly, which led to gambling, the need for money and thus offending. 

112     I also accept such is applicable in the offending before me.

113     Her Honour concluded the principles in Verdins had some significance, directly impacting upon your moral culpability and moderating your sentence accordingly, as have I.  Her Honour sentenced you to a term of imprisonment, also dealing with you for the breach of the suspended sentence.  It was anticipated that on parole you would have the necessary assistance.

114     Ms Turnbull also tendered a number of Certificates for courses you had recently completed. 

115     You completed the GROW Program in June 2014 whilst in custody. 

116     There was also a Certificate for completion of the Job Preparation Program dated 16 June 2014, a Certificate for completion of the Understanding and Managing Emotions program dated 20 June 2014, a Certificate for completion of the Budgeting Program dated 4 June 2014. 

117     You also completed the Relapse Prevention Program – March 2014, the Substance Use Program – March 2014, a Certificate 2 in Kitchen Operations (2014) run by the Kangan Institute and a Certificate 2 in cleaning operations (2014) run by Kangan Institute. 

118     Your efforts of late are impressive and hopefully you will continue to seek out further programs whilst undergoing your sentence to improve your rehabilitation prospects when you are in the community.

119     There were also a number of references before me. 

120     There was a reference from your mother, Rosa Marzano, undated.  She was very concerned, understandably, about your health.  She described you as a "much loved uncle".  She was keen for you to receive the treatment you need for your alcohol use and mental health issues. 

121     A reference from William Ahokava, dated 26 June 2014, who is one of the leaders in the Church of the Latter Day Saints, who has known you for more than 12 months as a convert to the Church.  The Church was supportive of you. 

122     A reference from Peter Gill, dated 3 November 2013, who has known you for nearly 6 years (as at the date of his reference).  He is a Minister of the Church of the Latter Day Saints. 

123     You were a regular attendee and had acknowledged and confessed your crimes.  You had shown a genuine interest in good Christian principles. 

124     A reference from Helen Conlon, dated 22 June 2014, who has known you and your mother for approximately 8 years.  She described you as a loving son to your mother.  Ms Conlon is also a member of the same Church as you.  You have the love, she said, and support of those in the Church. 

125     A reference from Campbell Walshe, undated, who has known you for approximately 6 years.  You had at times been able to abstain from alcohol and gambling, and Mr Walshe had attended addiction recovery classes with you for support.  You regularly attended Church and participated in Church activities.  He would remain supportive of you. 

126     A reference from your sister-in-law, Lisa-Marie Marzano, undated.  You had been a great support to her over the years.  You had the support of all your family to help you with your mental health issues and your use of alcohol. 

127     A reference from Stephen Sacco, dated 22 July 2014.  He knows your family through the Church.  He had observed your challenge with alcohol, a problem that you also acknowledged.  You had berated yourself for disappointing your family and re-offending.  When not affected by alcohol you were a gentle and loving member of your family. 

128     Your mother and various members of your family were present in court to support you, as were three members of your local Mormon church.  I have no doubt that your family and others are supportive of you, and I hope and trust that support continues.  They are also aware of your mental health issues, which is important.

129     Further, I was advised that you had undertaken a mood management course and a cognitive behaviour therapy course and the certificates were going to be provided to me by Ms Turnbull prior to sentence.  They have not arrived but I accept that when you are mentally well, and abstinent from alcohol, you are able to apply yourself to appropriate programs.  I am prepared to work on the basis that you have completed those programs. 

130     Further, I read correspondence from you (Exhibit 6) in which you have expressed remorse for your offending behaviour.  It appears you do at least appreciate the adverse impact of your offending upon your victims.  Unfortunately this offending has become an entrenched pattern for you.  There have been multiple victims of your offending in the past.

131     I accept that you made full admissions in your record of interview to your offending behaviour, and as I also noted, from having read the decisions of her Honour Judge Gaynor, it is clear you have also made admissions in the past to your similar offending.  You have also previously, and also before me, recognised that your offending behaviour has been against a background of your schizophrenia on an occasion before me not taking medication and, of course, consumption of alcohol.

132     Consistent with the reports of the ‘experts’ placed before me to which I have referred, Ms Turnbull was relying on each of the principles in Verdins, and as I discussed with her, consistent with the conclusion reached by her Honour Judge Gaynor in previous sentencing of you, I accept those principles apply when sentencing you. 

133     I turn then to briefly highlight some of the matters referred to in Ms Turnbull’s outline of plea submissions but I have of course read her submissions.

134     I accept, as I previously stated, that you pleaded guilty at the earliest reasonable opportunity and that that is relevant in mitigation of your sentence.

135     I accept that you also made full admissions to police when interviewed, and co-operated by disclosing the location of the weapon and the discarded items.

136     I also accept you have been diagnosed with paranoid schizophrenia.  Ms Turnbull also agreed that aggravating aspects of your offending behaviour on this occasion was your use of a disguise and threatening language.

137     Regarding your offending occurring on the same night, approximately an hour and a half apart, whilst I do not necessarily accept that this is a course of conduct based on those factors, I do however agree that a significant degree of concurrency should be ordered between the sentences imposed on the two charges.

138     Whilst Ms Turnbull submitted yours was not the most serious example of the offence of armed robbery, and that is so, it was nevertheless repeated offending by you of the same type of offending you have participated in in the past.

139     Ms Turnbull also referred to your mental health and the principles in Verdins as being relevant and I agree, and such has been taken into account by me, relevant to both the minimum term and the head sentence to be imposed in your case.

140     I accept that whilst there may be some concerns about your statements of remorse, I nevertheless as has been outlined, accept you co-operated with police in the investigation and made admissions in the record of interview.  I note, as did Ms Turnbull in her written outline of submissions, in the report of Dr Walton your “lack of expression of remorse should not be accepted at face value but is a further reflection of your schizophrenic illness.”

141     Ms Turnbull submitted again, taking into account all relevant considerations, a Community Corrections Order was the appropriate disposition in relation to a term of three months’ imprisonment.  I have of course turned my mind to your counsel’s submissions on the appropriate disposition, but ultimately have decided to not accede to her request and to do so would lead to a manifestly inadequate sentence being imposed.

142     Ms Turnbull’s secondary submission, without abandoning her primary submission, was that if the only appropriate disposition was a term of imprisonment there should be a longer period on parole to enable you to be supervised within the community. 

143     Regarding your rehabilitation prospects, I have guarded optimism.  When you are compliant with taking medication, seeking assistance from appropriate supports, and not drinking alcohol, there is some comfort in your ability to be rehabilitated.  Unfortunately you tend to fall back into the same pattern, and your offending occurs in that light.  Obviously your rehabilitation prospects would be greatly enhanced if you continued to address all the relevant issues in your life.  You are obviously someone who requires a lot of ongoing treatment and assistance for there to be any real prospect of your rehabilitation.  In fixing an appropriate sentence, however, I must seek to maximise your chances of rehabilitation as they may be.

144     Mr Exell, who appeared on behalf of the prosecution, submitted it was a concerning aspect of your offending behaviour both now and in the past, that it was similar offending and that you were intoxicated at the time.  You further had foreknowledge your behaviour would likely end up in you offending in the same type of behaviour when you were intoxicated.  There is no doubt that alcohol is part of your offending history, and that whilst you may have some understanding and appreciation of consumption of alcohol with your mental health issues leading to offending behaviour, I do not consider that you have the necessary foreknowledge of that to have this as an aggravating feature of your sentence.  It is nevertheless one matter that is repeated in your offending behaviour and is of concern, albeit not an aggravating feature for the purposes of sentencing.

145     I do, however, accept Mr Exell’s submission that this is relevant to my assessment of the need to protect the community, as it is a repeated cycle by you.

146     Mr Exell referred to Dr Grech’s report of 2013 written in relation to, as I understood it, from Ms Turnbull in preparation for a bail application in relation to the offences before me, not ultimately pursued by those that were then acting for you.  Where Dr Grech said you had no explanation for taking yourself off medication, you had in fact said you did take yourself off that medication.

147     Mr Exell referred to the maximum penalty applicable to these offences as being very high, 25 years.  He referred to the vulnerability of the victims of your offending, that they were “soft targets” as referred to in the courts, and of course they are.  In addition, you used threatening behaviour to both of them.  He submitted that there was a small degree of planning, in that you took a knife to the premises, having purchased it, it would seem, earlier that same evening.  Further, you had the wherewithal to dispose of the weapons and your disguise.

148     There were no victim impact statements before me, however I can well understand the concern of Mr Akhtar, as stated in his statement to police that “throughout the incident, I was concerned for my life and believed the male could stab me anytime.” 

149     I accept, as previously stated, the principles in Verdins are applicable when sentencing you.

150     As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, which is of considerable importance in a case such as this.

151     There is also an element of specific deterrence required when sentencing you.  You have a significant and relevant prior criminal history.

152     I must also consider the question of protection of members of the community from you, and bear in mind the likelihood of your re-offending.  This still concerns me, given your mental health issues and the difficulties in managing those.  You also have a history of very similar offending, and again that troubles me in relation to the need to protect members of the community, and in particular those who are “soft targets”, those going about their business and their employment.

153     I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose just punishment.

154     On Charge 1 you are convicted and sentenced to 2 years and 2 months’ imprisonment.

155     On Charge 2 you are convicted and sentenced to 2 years and 2 months’ imprisonment.

156     Charge 1 is the base sentence, and I direct that 4 months of Charge 2 be served cumulatively upon Charge 1.  That results in a total effective sentence of 2 years 6 months’ imprisonment, and I direct that you serve a period of 14 months before you are eligible for parole.

157     The prosecution also made application for a disposal order in relation to the knife and clothing worn by  you during the commission of the offences.  This was not opposed by counsel on your behalf, and I make the order in the terms sought.

158 Pursuant to s18(4) Sentencing Act 1991 I declare you have spent 316 days in custody by way of pre-sentence detention up to and including yesterday, which was 2 September, and I direct that this be entered into the records of the court.

159 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict I would have sentenced you to a term of imprisonment of 5 years and set a non-parole period of 3 years.

160     The prosecution also made application for a retention sample pursuant to s464ZF.  Do you agree to that?

161     COUNSEL:  Yes, Your Honour.

162     HER HONOUR:  So counsel on your behalf consented to the order being made, it is a retention sample.  How is the PSD?

163     MS YILDIZ:  Correct, Your Honour. 

164     MS TURNBULL:  In agreement, Your Honour. 

165     HER HONOUR:  Good.  I will sign those.  Is there anything else that I have missed?  Very well, just to make it clear, I have proceeded on the assumption that he has done those courses albeit they did not arrive.  I neglected to mention it and remind you about it but I will work on the assumption you did it? 

166     MS TURNBULL: That is kind of Your Honour, thank you.

167     HER HONOUR:  Yes, thank you.  Can you remove Mr Marzano, please?  Thanks counsel for your assistance, yes. 

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