Director of Public Prosecutions v Massey
[2024] VCC 1031
•21 June 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
Charlie MASSEY (a pseudonym)
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 May 2024 |
DATE OF SENTENCE: | 21 June 2024 |
CASE MAY BE CITED AS: | DPP v Massey |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1031 |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty to armed robbery - being a prohibited person possessing imitation forearm summary charge: learner driver without appropriate supervision – breach of CCO (Judge Syme) – offending on CCTV - mid- range seriousness offending - about to turn 21 - diagnosed with schizophrenia
Sentence: Case ending 664 2 years 6 months at Youth Training Centre
Case ending 586 breach proved – 336 days imprisonment 336 days of pre sentence detention reckoned as already served.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms O. Richwol | Office of Public Prosecutions |
For the Accused | Ms H. Anderson VLA |
HER HONOUR:
1Charlie Massey,[1] in relation to case number ending 664 you have pleaded guilty to one charge of armed robbery and one charge of being a prohibited person possessing an imitation firearm, as well as a summary charge of driving a car while being a learner driver without an appropriate supervising driver sitting beside you. You have also pleaded guilty to a charge of breaching a Community Correction Order which was imposed by her Honour Judge Syme of this court on 12 October 2022 – case number ending 586. Her Honour sentenced you to a four-year Community Correction Order for committing three armed robberies and for two summary charges; they were possessing cannabis and possessing two imitation firearms. I will be re-sentencing you for those offences.
[1] A pseudonym
The offending that is the subject of the plea before me.
2On 4 February 2024 at almost 1.00 am you were alone in your father's car in a car park in Truganina. Two bays away from your car, two people were returning to their vehicle after they had been to buy some juice from a nearby shop. They were Kapil Chattwall aged 25 and Kirti Chadda aged 26. As Ms Chadda got into the driver's seat of her car, you approached her saying 'get in the car'. You opened the driver's side door and as you did this Mr Chattwall saw you and moved towards you. You pointed at him a black imitation handgun wrapped in a red cloth and told him to get back in the car.
3You demanded his wallet, saying 'I'll shoot you' while pointing the imitation gun at him. Ms Chadda got out of her car, saw what was happening and ran to the juice store for help. The two indictable charges arise from these circumstances.
4You reached into Mr Chattwall's pants to try to find his wallet and Mr Chattwall grabbed at the gun. There was a struggle and you punched Mr Chattwall to the head, then pushed him up against the car and again demanded his wallet.
Mr Chattwall told you he did not have one, but you searched his pocket and stole his iPhone 12 Pro Max Gold. You then walked back to your father's car and Mr Chattwall tried to follow.5You pointed the imitation gun at him again. Mr Chattwall saw the registration of your father's car, and once you had driven away, he went to the juice store and asked staff to call the police. They attended and took statements from the victims.
6The offending was captured on CCTV. At the time, you were a learner driver and you drove the car without an authorised person beside you, resulting in the summary charge.
7On 6 February, police went to your parent's address. When you were leaving with them, you attempted to flee over a side fence with the imitation firearm tucked into your pants. When you saw police next door, you went back into your garage and dropped the firearm on the floor. You then walked out of the garage and were arrested. You have remained in custody since then.
The aftermath
8On 24 May, I heard the plea submissions and adjourned the matter for a report as to your suitability for a Youth Justice Detention Order. The adjourned hearing was listed for 20 June, five days before your 21st birthday. In order for you to be eligible for youth detention, you needed to have been under 21 at the time of sentencing. Hence the hearing was brought forward to 24 May to the assessment could be completed in time for me to sentence you in a timely way. As it happened, the report of the assessment could not be made available until yesterday and so the sentencing date was delayed by one day.
9At the outset, I made it clear that I have read the sentencing remarks of her Honour Judge Syme. Those remarks are comprehensive and illuminating as to your mental health background and the likely state of your mental health at the time of the earlier offending that was the subject of the Community Correction Order which Her Honour imposed. Her Honour crafted an order with conditions designed to take account of your particular needs and set out her conclusions as to those matters in clear detail, partly so you and your family, as well as Corrections, would be in no doubt as to what was hoped and expected for your treatment and progress.
10I will take the perhaps unusual step of appending those sentencing remarks to my own sentencing remarks, partly in order to obviate the need to fully repeat the quite extensive observations Her Honour made about the psychological reports provided in that case and also relied upon before me and to make your background clear to those responsible for future administrative aspects of your sentencing.
Gravity of the offending
11I turn now to the gravity of the offending, and I note that armed robbery is a very serious offence which is obvious from the maximum penalty of 25 years' imprisonment.
12 While no victim impact statements have been provided, the statements made to the police by the victims describe quite graphically the way you threatened them with what they thought was a gun. As you stole the male victim's phone from him, he managed to push the gun away from his face where you were pointing it and you then punched his face. When you demanded his wallet, he told you he did not have one and ran back to the car. Meanwhile, the female victim saw you hold the gun to her husband's head and saw you punch him when he deflected the gun and she ran for help. This is the type of armed robbery which can probably be classified as of mid-range seriousness, similar to those instances described by her Honour Judge Syme.
Background and circumstances.
13You are aged 20, about to turn 21. You are Samoan born and as a child went with your family to New Zealand where you are a citizen. The family came to Australia when you were five or six, but you and your siblings returned to New Zealand with your mother when your parents separated. Tragically, when you were 12, an older brother committed suicide in the context of suffering a psychotic illness and when you were 15 your mother died suddenly and unexpectedly.
14You and your siblings returned to Melbourne to live with your father and stepmother, and you were living with them when taken into custody in 2022. It appears that this was also the case at the time of your recent arrest as you were arrested at your father's home and you had been driving his car when you offended.
15In the history you have given the professional people that you have seen, you describe your time at school in New Zealand, your work as a sandblaster later on and the fact that you had been close to your brother who died. You described your difficulties with the symptoms which have led to a diagnosis of schizophrenia and your changing views from time to time over whether mental health treatment and medication has helped you. These were matters explored by psychologists, Dr Dion Gee and Dr Donald Hanratty, and psychiatrist,
Dr Maria Trillia.16Dr Gee and Dr Trillia saw you in 2022 in relation to the earlier offending and
Dr Hanratty say you very recently in May 2024. Dr Hanratty considers that your most likely diagnosis is schizophrenia with symptoms including impulsivity, disorganisation, poor judgment and agitation. He also diagnosed methylamphetamine use disorder and cannabis use disorder. The symptoms of schizophrenia would be exacerbated by methamphetamine and cannabis use at the time of the offending resulting in your judgment being impaired.
Dr Hanratty thought you might also have post-traumatic stress disorder and that the schizophrenia might be contributing to this. Some of the symptoms were demonstrated by your experience of religious and persecutory delusions including thoughts conveyed to you by your deceased brother.17Treatment is difficult because you have limited insight, something which is commonly experienced by people who suffer from schizophrenia and you have been able to mask your symptoms. In any event, it has remained untreated and drug-use has probably made the symptoms worse[2].
[2] Report of Dr Donal Hanratty dated 16 May 24 [92 – 110]
18Dr Hanratty referred to your claim that you were receiving messages at the time telling you something bad was going to happen and that your brother was telling you to do something that would put you in prison, and you believed you could find peace there.
Sentencing issues
19It is clear, Mr Massey, that your mental health problems are relevant to sentencing you. That is because according to the principles in a case called Verdins which judge Symes explained to you in her sentencing remarks, your criminal responsibility is reduced by your mental health impairments. That is important because people in the community should be deterred from offending by severe sentences imposed on offenders. However, because of your particular problems and reduced responsibility, you should have a less severe sentence than some other similar offenders.
20Dr Hanratty has been able to assess you very recently, as I said, after you had been in custody for three months and had not been using drugs. In his opinion, the psychotic illness that he has observed is the same as that which you have described to him as having prevailed at the time of the offending. He also had the benefit of 2022 reports from the other practitioners.
21The case of Verdins also says that your experience of prison is likely to be more difficult than for those who do not suffer in the same way and I should take that into account in determining your sentence. It has been submitted by the prosecutor that you say your experience of prison has not been difficult, but at the same time you are not receiving treatment for your illness and that is disadvantageous for you. I do take that into account.
22A further consideration is your early plea of guilty, which means you are entitled to a discount on your sentence. This case has proceeded very quickly which is to your advantage in your circumstances, but it also assists the criminal justice system because a trial has been avoided. It also shows that you have accepted responsibility for the offending. I accept that you are remorseful to some extent. Indeed, you have said that you understand the victim did not deserve what you did to him. Dr Hanratty stated that your condition probably prevents you from expressing empathy.
23A further important matter is your youth. You are only 20, about to turn 21. It is broadly accepted that young people when they make mistakes should be given a second chance. Although you already have had your second chance, there are good reasons which I have explained, why your case is an exception which deserves some leniency. Because you are young, your rehabilitation is a matter of great importance for you and also for the protection of the community from any further offending. That risk may be reduced by treatment and in his report, Dr Hanratty considered how that might be arranged, depending on whether you are in custody or in the community.
Sentence
24For charge 1, the charge of armed robbery, I sentence you to serve two years in a Youth Justice Centre.
For charge 2, nine months for the charge of being a prohibited person possessing an imitation firearm.
For the summary charge, one month for driving as a learner driver without an authorised person beside you.
25The sentence for Charge 1 is the base sentence for purposes of cumulation. I order that six months of the sentence for Charge 2 be served in cumulation upon the base sentence. The sentence for the summary charge is to be served concurrently. This results in a total effective sentence of two years and six months to be served in a Youth Justice Centre for which you have been assessed as suitable.
26It is to be hoped that your complex needs will be better addressed there than in adult custody and that your prospects for rehabilitation will be enhanced by that opportunity.
27If you had pleaded not guilty to these charges, I would have sentenced you to three years to be served in a Youth Justice Centre. The
pre-sentence detention for this matter is 136 days. I declare that time is to be reckoned as already served and I shall note it on the court record.Breach of Community Correction Order
28I now turn to the charge of breaching the Community Correction Order imposed by Her Honour Judge Syme. You pleaded guilty before Judge Syme to three charges of armed robbery committed in October and November 2021. You also pleaded guilty to the summary offences of possessing a drug of dependence, which was a small quantity of cannabis, and the possession of two imitation firearms. You were 18 when you committed those offences and aged 19 when sentenced.
29On each occasion, you entered the premises of a shop or a business and pointed an imitation firearm wrapped in a cloth at the person in charge demanding money. You obtained $400 on two occasions and $100 on the third occasion. Each victim felt scared or shaken.
30You were arrested on 10 November 2021 and made full admissions. You were remanded in custody until you were sentenced to the four year Community Correction Order on 12 October 2022. You had spent 336 days in custody which was undeclared because of the imposition of the Community Correction Order instead of prison. Despite many instances of non-compliance, you did complete one drug program when you were completing the Community Correction Order, but when you tested positive to substances, another treatment program was organised, but you failed to attend.
31Your mental health treatment was hampered by your failure to engage with Orygen Youth Health, but eventually you attended an initial appointment with a psychologist, only for that person to become unavailable. Before a further arrangement could be made, you were arrested.
32The recommendation of Corrections was for the order to be cancelled and for you to be re-sentenced on the original charges.
Sentence for breach of Community Correction Order
33I order that the correction order be cancelled and the breach found proved. I sentence you to 336 days' imprisonment for each of the three charges of armed robbery and six months for the charge of possessing two imitation firearms.
34You will be convicted and discharged in relation to the charge of possessing cannabis. Each of those sentences is to be served concurrently with each other, resulting in a total effective sentence of 336 days. I make no order in respect of the breach charge itself.
35Pursuant to s6AAA of the Sentencing Act, if you had pleaded not guilty to these charges, I would have sentenced you to two years' imprisonment with a
non-parole period of 18 months. In sentencing you for both sets of charges, I have taken into account the principle of totality given that you have spent considerable time in adult prison.36Are there any other matters? First of all, Ms Anderson, anything I have omitted or neglected.
37MS ANDERSON: Your Honour, the only thing I may have not heard it, but on the breach, I'm not sure if Your Honour declared the pre-sentence detention which was for 336 days.
38HER HONOUR: No, I did not, I just noted that it was 336 days. That will be declared to be reckoned as already served and noted on the court record. Thank you.
39MS ANDERSON: Thank you, Your Honour. Otherwise, I don't think there is anything that needed to be noted.
40HER HONOUR: Thank you very much. Ms Richwol, anything else?
41MS RICHWOL: No, Your Honour.
42HER HONOUR: All right, thank you. All right. Well I hope that is in order. I would imagine that Mr Massey will be transported in due course, or today, from prison to Youth Justice.
43MS ANDERSON: Yes, Your Honour, that's our understanding.
44HER HONOUR: All right. Thank you, I will leave the Bench now.
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IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLIE MASSEY (a pseudonym) |
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JUDGE: | Judge Syme | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August 2022, 3 October 2022 | |
DATE OF SENTENCE: | 12 October 2022 | |
CASE MAY BE CITED AS: | DPP v Massey (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1767 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed robberies - Airsoft Desert Eagle – Youthful offender – Early onset schizophrenia – No prior criminal history - Verdins considerations – Exceptional circumstances
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Sentence: Community Corrections Order of 4 years duration.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Hamnett | Ms S. Chapman |
| For the Accused | Ms McGrath | Ms A. Kousari |
HER HONOUR:
1In relation to this matter, Mr Massey,[3] you have pleaded guilty to three very serious charges of armed robbery. Charge 1 relates to offences that took place on 6 November 2021; and, Charge 2 and Charge 3 relate to offences that took place on 8 November 2021.
[3] A pseudonym.
2The maximum penalty for each charge of robbery is 25 years' imprisonment. You also pleaded guilty to one charge of possession of a drug of dependence relating to a small quantity of cannabis. You have agreed that I should sentence you in relation to a summary offence relating to the possession of two imitation firearms.
3The maximum penalty for the possession of drug offence is five penalty units, and the maximum penalty for the possession of imitation firearms is 240 penalty units or two years' imprisonment. Each offence was committed when you were 18 years of age. You are now 19 years of age.
4I am now going to refer briefly to the events that occurred in relation to each charge.
Incident 1: Tandoor & Tadka, Truganina - 8 October 2021
5The first incident occurred on 8 October 2021 at about 6:50pm. You entered a restaurant, namely Tandoor & Tadka, located at Leakes Road, Truganina. You entered through the front door. You were wearing all black with a hoodie and cap. You were holding what appeared to be a gun wrapped in a cloth.
6You pointed the barrel of what is now known to be an imitation gun toward a worker in the restaurant, Mr Singh, and demanded cash. He backed away and warned other employees. You went to the register and took out all of the $50, $20 and $10 notes. This totalled approximately $300 or $400. You then ran out of the front door.
7The incident was captured on the restaurant's CCTV. It shows you getting into the driver's seat of a black Holden Astra Hatch, which was parked next to the restaurant. Mr Singh stated that the incident made him feel afraid. He felt like you would shoot him.
Incident 2: Ozzy Tyres, Laverton North - 6 November 2021
8The second incident was at Ozzy Tyres in Laverton North on 6 November 2021. On that day, at about 8:30am, you entered the store through the front entrance, carrying a red Adidas backpack. You approached the manager Mr Saliba in his office and said, 'Give me the money'. You put your hand in the backpack and pulled out what Mr Saliba was convinced was a gun, and you pointed it at his chest.
9It is now accepted it was an imitation gun wrapped in a red bandana. Mr Saliba was scared for his life, and immediately grabbed the locked metal cash drawer and placed it in your backpack. You demanded it be opened and in response to your threats he opened it. He handed you a handful of $50, $20, $10 and $5 notes, totalling approximately $300 and $400. You then demanded to know where the safe was and were told there was no safe. Mr Saliba was shocked and shaking. The CCTV footage shows you heading along Leslie Road, Laverton North, after the incident.
Incident 3: Devine Cuts, Sunshine West - 6 November 2021
10The third incident on the same day, at about 9:05am, Ms Trang was working at her salon at The Avenue in Sunshine West. You entered Devine Cuts where a customer was also present. You told Ms Trang to open the drawer of the cash register. She saw what she believed was a gun, which is now known to be an imitation gun, in your left hand which was covered with a red scarf with the barrel protruding. The barrel was pointing in her direction, and she was extremely scared. You opened the drawer and took $100 in $20 notes and walked away quickly. A call was made to Triple-0 and the police attended promptly.
Arrest
11
You were arrested by the Special Operations Group in your family home on 10 November 2021. You made full admissions to the offending, saying you needed cash to clear a debt owed to a gang, and that you used an
Airsoft Desert Eagle gun, which fired little beads, for the two incidents. The prosecution accepted this.
12You expressed some remorse. You have been in custody since that date, a period now of some nearly 11 months. You have no prior convictions either as an adult or as a juvenile.
Objective gravity of the offending
13The first job of the court is to assess the objective gravity of the offending. It is noted that each offence was committed over a relatively short period of time. You were armed with what is now known to be an imitation gun. There was no more than the usual planning for this type of offence. On at least one occasion, you used your father's motor vehicle. There was little prospect that you were not going to be identified as having committed these offences.
14On each occasion, relatively small amounts of money was taken. There are few aggravating circumstances evident in the offending. There was no actual violence, although the use of a weapon, even an imitation one, was a clear threat of violence. Each of the victims were vulnerable in that they were persons working in small businesses during daylight hours. Each believed the gun to be real, and each was terrified. They were in fact so frightened that they handed over money when the demand was made.
15Ms Bortollo, the customer in the shop on the third incident, made a victim impact statement. The consequences for this victim are what would be expected for each victim of a robbery such as this. The prosecution do not suggest that the consequences for any victim are circumstances of aggravation; however, it does remind the court of the serious consequences for victims of offences such as those in this case.
16The serious nature of the offending is reflected in the maximum penalty of 25 years’ imprisonment available for each offence charged. Considering each offence individually, they are, in my view, below mid-range objective seriousness for the offence charged.
Personal circumstances and background
17I will now turn to your personal circumstances and background. Your personal circumstances are as described by Dr Gee in his psychologist report, dated 8 August 2022. It is unnecessary to repeat your background here. As I noted, you were only 18 years of age when the offences were committed.
18I note that your family resided in Samoa, then in New Zealand, and then in Australia, when you were around five or six years of age. You, your mother, and your siblings returned to New Zealand about three years later. You are a New Zealand citizen.
19When you were 12 years of age, your older brother, who I understand was around 20 years of age, died after seemingly suffering from a psychotic illness. You feel his loss keenly. He had not been receiving assistance for his mental health issues, which makes his loss ever more tragic and gives a real cause for concern as to your presentation.
20Your mother suddenly and tragically died when you were 15 years of age. At that time, you and your siblings relocated back to Melbourne, Australia, to live with your father and your stepmother. You report that you feel supported by them.
21You commenced working in various warehousing and factory roles, including driving a forklift. You were consistently employed until your mental health significantly deteriorated in January 2021.
22There was significant concern for your mental health, and a referral was made to Orygen Mental Health Assistance. It is not known whether you were using cannabis or other substances at this time, but looking at the history as related to Dr Triglia, you probably were. You still report hearing your brother talking to you, notwithstanding the fact you are currently not abusing substances.
Previous good character
23You have no prior criminal matters and come before the court as a first-time offender. Dr Gee, the psychologist who reported to the court, opines that you have good prospects of rehabilitation, subject to you engaging in treatment for your complex mental health issues.
24Significant investigation has been undertaken to consider whether those mental health issues include a first episode of psychosis, possibly a first schizophrenic presentation, or whether the substances you were consuming themselves produced a psychotic episode. It is for that reason that several reports were ordered. A report recently prepared by Dr Triglia is very helpful, and a useful adjunct to Dr Gee's observations. Both will be detailed later in my reasons.
Pre-sentence detention and time in custody
25You have served over 10 months in custody by way of pre-sentence detention. This is your first time in custody. It is submitted, but without evidence, that the experience has been a salutary one. Your presentation, as reported in the recent CCO report, was reported to be unusual.
26Concerns must be held for a person such as yourself, being a youth offender incarcerated with adults, but you have expressed no particular issues. However, it is not known whether you would tell anyone if such problems did exist.
27It is observed that you are private about your own personal and family matters, and several clinicians have reported that you have been less than forthcoming in talking about yourself and your issues. This is not a criticism, but an observation that your desire for privacy can have the effect of less than optimal assistance being provided to you as you have not told anybody what your issues are.
28However, in relation to custodial issues I acknowledge that due to the COVID-19 pandemic, the conditions in custody are a relevant factor for the court to take into account. In addition, I know that your father has recently suffered a medical episode and was in hospital as a result. This is an added burden, above the usual COVID-19 isolations, affecting your ability to support, and be supported by, your family.
29Before I discuss the reports relating to you and the offending, I would like to place on the record, so that you and your parents can understand in summary, the matters that a court must take into account during sentencing. It has been submitted on your behalf that some features of your mental health presentation suggest that your moral culpability for the offending is reduced.
Verdins considerations
30In the case of Verdins, the Court of Appeal identified ways in which mental health difficulties are relevant to sentencing. I have considered these ways when reading the reports that I have referred to briefly and will refer to at length later. If the considerations mentioned in the case I have referred to exist, it may moderate both the minimum term and any head sentence. The considerations are exceptional and should not be invoked in routine cases.
31For reasons that I will outline below, I am of the view that this is not a routine case. The two expert reports that I have considered are consistent in their observations and findings. I will first set out the findings I will make. Next, I will explain why I make those findings.
32First, I am satisfied on balance that at the time of the offending, your moral culpability was reduced by a psychosis that existed at the time. There was found to be a strong possibility that you have schizophrenia, and therefore at the time of the offending the psychosis that you were experiencing may have related to that diagnosis.
33A discussion on this is contained in paragraph 53 and onwards of Dr Triglia's report. A differential diagnosis suggests a substance abuse psychotic disorder. The possible history in your family of psychosis in your brother, and the presentation of concern by you in early 2021 increases the probability of a mental health induced psychosis, rather than a drug induced one.
34If your psychosis, because of a probable schizophrenic episode, reduced your ability to exercise calm judgement or appreciate the wrongfulness of your conduct, then your moral culpability is reduced. In the circumstances of this case, that is your first group of offending, and in light of the very comprehensive and worrying report from Forensicare, it would, in my view, not be appropriate to punish you as harshly as someone who was fully responsible.
35I note the possibility of drug use producing a psychotic episode. I take this into account alongside your age and your background. In my view, a reduction in your moral culpability is an appropriate and measured finding. I do not accept, to the required standard, that this was simply a drug induced psychotic episode.
36I am of the view that the evidence establishes that your impairment was more likely to be caused by a schizophrenic episode, therefore making you less culpable as a result. Notwithstanding the lack of finding of a direct connection between your hallucinations and the offences, I find your reference to a desire to be taken into custody supports a finding of psychotic symptoms and may have contributed to the offences. Paragraph 59 of Dr Triglia's report discusses this in further detail.
37While the offences themselves are serious, there is no evidence that you planned the offending, or attempted to avoid detection. In your case, Mr Massey, it seems that most of the Verdins principles are relevant. Very little is known about any deprivation in your early life, apart from the untimely deaths of members of your family.
38I will now refer in some detail to the findings of the two expert reports provided, on which I have based the findings that I have made above. The observations of both professionals are not disputed. Psychologist Dr Dion Gee’s report is dated 24 June 2022. Dr Gee is well qualified and experienced in making the observations he does. There was no challenge made to his report, nor its conclusions.
39Of particular concern was the suggestion of the possibility that you, Mr Massey, may have been, or are currently experiencing the beginning of a serious psychotic illness. In addition, or alternatively, concerns were expressed by you, Mr Massey, that you would not accept any diagnosis or treatment for such an illness as you would expect your cultural background and family to disapprove of it.
40The comprehensive report from Dr Triglia, together with the report from Dr Gee, should be used as a basis for further mental health management for Mr Massey. Both reports should be interpreted and explained to members of his family and appropriate members of his community so that they may support him with any future mental health assistance.
41This court understands, and is aware that for young people, usually men, who experience the beginnings of psychosis at the age Mr Massey is, resorting to substance abuse is often a way of avoiding the symptoms and the anxiety that any hallucinations may bring. The observation made of a cannabis dependence is consistent with this understanding. It is also noted that Mr Massey has been prescribed an antipsychotic medication, but he also reports not taking it.
42In addition, Dr Gee observes what he suggests is a cognitive deficiency, resulting in not only a lack of processing or problem solving at any level, but also a lack of insight into mental health difficulties and how those difficulties might be alleviated. It is with those observations that the risks of future reoffending, and some guidance as to the state of his mental health, is sought.
43At present, the risk of reoffending is suggested to be a moderate to high level by both the Department of Justice CCO report writers and Dr Gee on a more detailed assessment. Dr Triglia's report notes similar concerns and strongly suggests that prior to his release arrangements be made for immediate referral to Orygen Youth Mental Health Services.
44During a short adjournment last week, such a request was made to both community corrections services at Werribee and to Forensicare. Unfortunately, the response from Forensicare was less than helpful. Although they were requested to assist in providing a referral for appropriate wraparound mental health services, they declined for what seemed to be unjustified bureaucratic reasons. It was disappointing.
45Any reduction in the risk factors for general, and more specifically violent, offending will require what is defined by Dr Gee as requiring a long list of supports which he outlines and details in paragraph 17 of his report.
46I am not going to read it all out, but the important things that are required immediately are best practice oversight, and mental health monitoring. Consideration should also be given to potential psychotropic medication, and his use and access to both licit and illicit substances. Mr Massey requires the existence of accepted, stable, and coordinated structures. He also requires access to staff that are suitably trained and qualified.
47I note Mr Massey will need assistance on how to productively spend his time. He requires the presence of vocational or employment pursuits, and he requires assistance to aid his willingness for engagement in tailored therapeutic intervention. This encapsulates monitoring of his ability to maintain prosocial connections with his family and longer-term acceptance of intensive case management.
48This is, I accept, a very long list of targeted and therapeutic requirements, most of which will require significant cooperation from Mr Massey and his family in order to be successful. The lack of English language competence in the family is a further factor complicating the provision of assistance.
49Although it was not submitted that there is a clear and direct causal nexus at the point of offending, which is illness, the observation of Dr Gee is that, and I quote:
The combined disinhibiting effect of his impairment would certainly have placed Mr Massey in a position where he would have been much more vulnerable than the average person to act in a manner without giving due consideration to the consequences of his actions.
50It is this observation that must reduce his moral culpability for the offending and the reasoning that I have used to do so, as I explained at the commencement of this discussion.
51A discharge summary from a consultant psychiatrist early in 2021 described the symptoms of psychosis that he was experiencing. These symptoms included both visual and auditory hallucinations, thought insertion, illusion that he could read other people's minds; paranoia and ideas of reference. It is observed that these symptoms were reported to be present about 12 months prior to the commission of these offences.
52
I note that Mr Massey was prescribed risperidone but was reportedly
non-adherent to the medication. Dr Triglia suggests a closer causal connection between his psychosis and his decision-making processes. This is contrary to the excuse that he gave police, which was of a drug debt. I note Dr Triglia did not accept that to be accurate.
53Custodial mental health care records indicate that you have twice attended for psychiatric review and reported no active symptoms of mental illness. Again, it is unknown whether you were truthful. In her report, Dr Triglia doubts that you are.
54Dr Gee expressed concern that you, Mr Massey, may have been misleading him, and/or misleading your family as to the degree of mental health distress you are suffering. This may be because of what you perceive to be a disapproval by your culture and your family of any psychotic or mental health issues.
55Dr Gee doubts the accuracy of your self-reporting of substance abuse. This self-report inconsistency does not assist in resolving the question of whether the substance abuse is causative of any psychotic presentation, or whether the substances are taken to alleviate any symptoms of psychosis.
56The recently presented CCO report reinforces concern about your presentation, Mr Massey, as well as the accuracy of your self-reports. There are, however, some useful observations and you are found to be suitable for intensive supervision via mental health monitoring and assistance, supervision for drug and alcohol treatment, and unpaid CSO providing some structure and allowing some hours to be credited via treatment or other counselling. I am not going to take all of those options up.
Hardship in custody
57Another sentencing consideration I have to take into account is the fact that you have been in custody for some time and there has been some hardship associated with that. Paragraph 23 of Dr Gee's report contains the following observation, and I quote:
Mr Massey's impaired mental functioning has considerable potential for imprisonment to weigh more heavily on him than on a person in normal mental health; indeed, it would likely weigh more heavily on him than on many who have a similar profile. At the point of sentencing, Mr Massey's incarceration could likely result in further deterioration of his mental health.
58Further, in Paragraph 27 he says, and I quote:
Whilst not formally assessed as part of the current evaluation, subjectively Mr Massey gave the impression of a man whose cognitive abilities or capacities were, at best, in the borderline to low average range of intellectual functioning.
59While this is not a formal cognitive assessment, I have regard for the experience and qualifications of Dr Gee and the thoroughness of his report to accept such an informal observation as being of some weight, and a useful observation in the assessment process. It was submitted by defence counsel that each of the Verdins limbs 1 to 6 are enlivened, and to a greater or lesser extent I agree.
Family support
60Now I will turn to the question of family support. I am told that your family, Mr Massey, has provided support and are willing to continue to do so. Unfortunately, the CCO report writers did not contact the family to confirm Mr Massey's understanding of his future support requirements. The report provided by the Department of Justice CCO report writers is of limited use with respect to the kind of support that is available in the community.
61However, subsequent enquiries made by both Dr Gee and defence counsel suggest that the family's church may be of great assistance to the family if the CCO and other support services make the required effort to contact them and explain the need for Mr Massey to have mental health support. It is also important for the family and for the community to understand that need for mental health support.
62Again, for that reason, sentencing was delayed last week to enable an urgent referral to be made to mental health support services to secure the availability of those support services immediately on his release. I trust and hope that the Department of Justice has taken that request made by me with some urgency.
63I will now refer to other sentence considerations.
64Admissions were made by Mr Massey immediately upon being spoken to by police and the plea of guilty was entered at the first available opportunity. This is significant evidence of Mr Massey's remorse and acceptance of responsibility. In addition, it entitles him to a significant administrative discount which, all in all, benefits the criminal justice system.
65In addition, it is noted that he has been in custody since his arrest and during that time, as I noted above, has endured the usual difficulties in custodial situations at present. As such, and for the reasons described above, custodial time has been more onerous on him than would usually be the case.
Risk of deportation
66Another consideration is the risk of deportation. Mr Massey is not an Australian citizen, but rather is a citizen of New Zealand. Mr Massey is lawfully in Australia as a temporary visa holder. His visa may become in doubt. It is a matter of some concern; however, in light of his reduced moral culpability, that this offending ought not be of detriment to him.
67His family in Australia is his only family. He is particularly vulnerable and in great need of both community and family support. Deportation would be a tragedy for this young man and would result in a significant reduction in his ability to manage the difficulties of life.
Purposes of sentencing
68Finally, I acknowledge the purposes of sentencing as set out in section 5 of the Sentencing Act. All of those purposes are relevant to a greater or lesser extent. The best protection for the community is for Mr Massey to become well and to be supported in doing so.
69It is accepted by defence in their submissions that armed robbery is an inherently serious offence, as is reflected in the maximum penalties. It is further accepted by defence that the offending is serious, given that there were three instances of offending before the court, including two that were committed on the same day.
70However, there are circumstances which really are exceptional that require something other than a custodial sentence to be imposed, even acknowledging that he has already spent nearly 11 months in custody. Mr Massey's sentence ought to reflect not only the objective seriousness of the offending, but also his reduced moral culpability and other features particular to Mr Massey.
71This young man has an opportunity here to address his significant mental health concerns with supervised medical intervention, as opposed to him self-medicating with substances which are available on the street. For the reasons I detailed above, his moral culpability is significantly reduced. In these circumstances, I propose to take an unusual step of simply noting that the time he has already spent in custody be informally observed as specific deterrence. He is not an appropriate vehicle for general deterrence due to his cognitive and mental health difficulties.
72The protection of the community would be best served if he was supervised by Corrective Services in the way that they have proposed to do so for a lengthy period of time. Such supervision will require active encouragement from his family. After having discussed this matter briefly with his stepmother on the last occasion, I am satisfied that such encouragement will exist.
73What I propose to do is to make a four-year community corrections order. What I am going to do now - and this is in relation to the three armed robbery charges initially, Mr Massey, is to read out the conditions of the order that I propose to impose. Listen carefully. Please ask me if you have got any questions or if you do not understand anything I have said. Is that all right, sir?
74OFFENDER: Yeah.
75HER HONOUR: All right. Listen carefully please. The first are the mandatory terms that all community corrections orders have, and they are, first, you must not commit any offences for which you could be imprisoned during the term of the order, which will be four years. You must comply with any obligation or requirement as required in the regulations. You must report to and receive visits from the person representing the community corrections.
76You must report to the community corrections centre - this is going to be at Werribee, which is closest to your home - within two days of being released. You must let community corrections know within two days of you changing your address or your job. You must not leave Victoria without first getting permission to do so from Corrective Services. You must obey all lawful instructions and directions from the representative of Corrective Services.
77In addition to that I am going to order that you be under the supervision of a community corrections officer for a period of four years. You must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the manager and your officer. An alcohol and other drug clinician must assess you to determine your suitability for substance use treatment. Substance use treatment might entail either one-on-one counselling for up to 15 hours or a group program such as KickStart for up to 42 hours depending on what is suitable for you.
78You must be subject to, and allow random uranalysis and/or breathalyser, whatever is appropriate, screenings throughout the life of the order that is for four years to ensure that any usage of substances can be monitored and managed. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed, if it is directed. As with any potential drug abuse, you might be assessed to determine your suitability for substance abuse treatment.
79You must undergo any mental health assessment and treatment. That may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility as might be directed by the regional manager after you have been comprehensively assessed at the commencement of this order.
80On 3 October 2022 the court required that you be referred to, before release from custody by custodial mental health services, Orygen and/or Forensicare's community mental health programs. As I observed, Forensicare were less than helpful.
81Psychosocial community connection is to be facilitated through mental health care providers and the Assembly of God in Sunshine. Otherwise, it will be as directed by Corrective Services.
82Mr Massey, you must participate in the programs or courses that address your offending. You will be assessed by a clinician through Corrections Victoria Forensic Intervention Service to determine the most appropriate interventions to address your risk of reoffending. Corrections must give consideration to the timing of referring to other programs in conjunction with mental health treatment.
83Finally, sir, you must reappear in court before me on 7 December 2022 at 10 am for what is called judicial monitoring. On that day, that is, 7 December 2022 - and you'll be given this date by Corrective Services as well - I will be given a report as to your progress so far with respect to mental health assistance, drug and alcohol assessment, and anything else that is being recommended. I will be given a report, personally, from those who are supervising you as to how you are progressing.
84I propose to keep a close eye on your progress, Mr Massey, to ensure, at least at the beginning, that you are complying with all of the requirements of the orders that have been set out so for that reason, from time to time, you will come back either personally in court or online as you are at the moment, it doesn't matter much to me, for me to check that you are doing everything you should do. My first question, sir, is do you have any questions about the contents of that order?
85OFFENDER: No.
86HER HONOUR: Normally you would be given it to sign but you are over there and I am over here so we can't do that at the moment so I will note that you understand it. Do you agree to enter into all those conditions, sir?
87OFFENDER: Yeah.
88
HER HONOUR: All right. I will note that, and it will be noted that you have agreed. Finally, I have got a section 6AAA declaration to make. Had it not been for your plea of guilty, I would have made an order that you spend three and a half years in imprisonment with an 18-month non-parole period. This assumes that there was still concern about your moral culpability and mental health, so the 6AAA finding is three and a half years with a non-parole period of
18 months.
89Now, in relation to the other charges before the court, there was a possession of cannabis charge. I propose to deal with that matter, noting a conviction but without any further penalty, and in relation to the summary offence of possess controlled weapon, again deal with that by way of conviction but without further penalty. So, the penalty that is imposed, sir, is a community corrections order for a period of four years. That will commence today. Hopefully, arrangements can be made with your family for you to be collected from where you are currently being held, sir. All right.
90OFFENDER: Yeah.
91HER HONOUR: I know that your step mum is still online, I see. Perhaps she is able to stay online so that perhaps she can discuss with the instructing solicitor the best way of Mr Massey to get in from where he currently is to where he needs to go. Is there anything else, counsel?
92MS HAMNETT: Thank you, Your Honour. It was mentioned on the last occasion just to clarify that the draft disposal order that was filed, that those orders would also be made.
93HER HONOUR: Done and dusted, and those orders were made. All of the items that were taken from Mr Massey on his release, including the imitation firearms and the clothing that he was wearing, I am making an order for disposal of that.
94MS HAMNETT: Thank you, Your Honour.
95HER HONOUR: Nothing else?
96MS HAMNETT: Nothing further, Your Honour.
97HER HONOUR: Anything from you, Ms McGrath? Any questions?
98MS McGRATH: Nothing further, Your Honour.
99HER HONOUR: Would it be best if we vacated the court room so that you and your instructing solicitor can speak to your client and his step mum?
100MS McGRATH: Yes, thank you, Your Honour, guided by your clerk as to whether or not she can place us - or they can place us in a lobby or leave it in court.
101HER HONOUR: I have no idea. They'll work it out very shortly. I'm signing the order now and the record will note that Mr Massey has agreed to that. Thank you very much. I'll vacate the court now and you can do what you need to do. Thank you, counsel.
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