Director of Public Prosecutions v May

[2016] VCC 938

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00591

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT MAY

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2016 at Bendigo
DATE OF SENTENCE:	30 June 2016
CASE MAY BE CITED AS:	DPP v May
MEDIUM NEUTRAL CITATION:	[2016] VCC 938

REASONS FOR SENTENCE
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Subject:  Intentionally causing injury.  Attempted armed robbery.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  Two years' imprisonment.  16 months non-parole. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Rooney
For the Accused	Ms S. Grace

HIS HONOUR:

1Robert May on 26 May 2016, you pleaded guilty in the Bendigo County Court to one charge of theft, for which the maximum penalty is ten years' imprisonment; one charge of intentionally causing injury, for which the maximum penalty is ten years' imprisonment; and one charge of attempted armed robbery, for which the maximum penalty is 20 years' imprisonment.

2In addition, you pleaded guilty to a number of summary offences and you agreed to having those matters disposed of by myself in this court.

3Those summary charges comprised of five charges of contravening a family violence intervention order, for which the maximum penalty is two years' imprisonment and/or a fine of 240 penalty units; one charge of drive whilst disqualified, and because you have prior convictions for this offence, the maximum penalty is two years' imprisonment or a fine up to 240 penalty units; one charge of driving a motor vehicle in a dangerous manner, for which the maximum penalty is two years' imprisonment and or a fine of 240 penalty units; and one charge of trespass, for which the maximum penalty is 25 penalty units or six months' imprisonment.

4At the time that you pleaded guilty, you also admitted a lengthy criminal history. I will discuss this later.

5The circumstances of your offending are contained in a written prosecution opening that was tendered in evidence and marked as Exhibit A on the plea. Your counsel, Mr Kelly, agreed that the prosecution opening is accurate and forms a proper basis upon which I can proceed to pass sentence upon you.  The opening was read in open court by the learned prosecutor, Mr Cordy.  It is therefore not necessary that I refer to it in detail and I do so only in a summary way.

6You had previously been in a relationship with the victim in this matter.  You have two children with her.

7On 8 December 2015, your former partner’s mother was granted an intervention order against you, the first intervention order.  The first intervention order was valid and commenced to operate from 26 December and stipulates that you are not to be within 100 metres of the home of the mother of your former partner.

8On 21 December, your former partner was also granted an intervention order against you valid until 31 December 2019, the second intervention order”.  The second intervention order stipulated that you must not commit family violence against your former partner and this includes physical abuse.

9In Summary Charges 3, 10, 13 and 14, you breached the first family violence intervention order obtained by the mother of your former partner when, contrary to the order, you attended at her home.

10On 2 January 2016, you breached the second intervention order by physically committing family violence against your former partner.  You went to the home of your former partner and entered it through the kitchen window.  This is the conduct comprising the trespass charge.

11Whilst at the home of your former partner, you punched her in the head and then in the mouth, causing it to split and bleed.  This is the conduct the comprises the charge of intentionally causing injury.

12When police were called, they attempted to intercept a vehicle that you were driving.  You accelerated heavily towards a police vehicle and only turned away at the last second, narrowly avoiding a collision.  This is the conduct the comprises the charges of driving in a dangerous manner and drive whilst disqualified.

13Also, later on 2 January 2016, and in a completely unrelated incident, at about 9 pm, you and your co-accused, Gray, entered the United Service station on the Marong Rd in Bendigo.  You were driving the motor vehicle.  You attempted to fill the car with petrol, but the attendant stopped the pump, recognising you as the perpetrator of an earlier petrol drive off.  Charge 1, theft of petrol.

14The operator stopped the pump and asked you to pre-pay for the fuel.  You and your co-accused then entered the store and verbally abused the attendant and demanded that he give you cash.  You then left the petrol station and returned to the car.  From there you retrieved a knife from the boot and gave it to your co-accused, who re-entered the service station brandishing the knife and repeated demands for cash.  When the attendant fled to a safe place, you and your co-accused left the scene.  Charge 3, attempted armed robbery.

15You refused to be interviewed by police after your arrest, which is your right. 

16Your offending in relation to the various breaches of the family violence intervention orders is serious offending and represents a serious example of what is a serious offence.  The orders were made to protect your former partner and her mother.  In relation to your former partner, you breached the order and imparted family violence towards her.  That is unacceptable and she needs protection.

17You should not have been driving a motor vehicle because you are disqualified and you have prior convictions for driving whilst disqualified.  The dangerous driving that you engaged in, placed police officers doing their duty to protect victims of family violence, in danger.  Again that kind of behaviour is unacceptable and again the public needs protection if individuals like you engage in such behaviour.

18The attempted armed robbery is also serious offending.  The service station attendant was alone and unarmed.  He was a "soft target" for you and your
co-offender, Gray.  Having said that, I accept that this offending was towards the lower end of the scale.  It was unplanned and unsophisticated.  It was opportunistic.  There was no disguise used and your movements were recorded on CCTV.  You were bound to be caught.  You gained nothing and the victim was able to retreat to a safe place, fortunately for you and Gray.  Nevertheless the sentence for the charge of attempted armed robbery needs to reflect proper application of the principle of general deterrence.  The public is sick and tired of soft targets being the subject of armed robberies by drug affected criminals. 

19The sentence I will pass in relation to the offence of attempted armed robbery is slightly more for you than for Gray.  I have taken the view that it was you who instigated the offence and provided Gray with the knife that he used.  You are also much older than Gray, who is a youthful offender and you have more prior convictions than Gray.  The sentencing of you must reflect a greater application of specific deterrence.  That is why the sentence in his case is lower.  The theft of petrol is relatively minor in the scheme of things.

20You are now aged 38 years.  Your prior convictions in Victoria are contained in a 15 page LEAP report dating back to your first offence in November 1992, when you are convicted in the Bendigo Children’s Court at the age of 13.  Since that time you have had many appearances in courts in Bendigo and Swan Hill for a variety of offences, including offences of dishonesty, numerous motor vehicle and driving offences, drug offences and offences relating to what might be described as "social disorder".  You also have a lengthy criminal history in Queensland for similar kinds of offending.  You have been given numerous opportunities in the past to reform your ways and have been given a number of suspended sentences and community-based orders.

21Notably, on 1 September 2015, you were dealt with in the Bendigo Magistrate's Court for driving offences, including drive whilst disqualified and drive in
a manner dangerous and dishonesty offences.  You were sentenced to a term of imprisonment of three months', together with a community corrections order for a period of 12 months, commencing on 12 November 2015.

22This offending for which I must sentence you, occurred whilst you were on that community corrections order.

23The sentence for you must properly reflect specific deterrence to deter you from re-offending.

24Mr Kelly told me and I accept that at the time of offending, you were affected by alcohol and amphetamine use.  The offences in relation to your former partner and her mother all occurred in that setting and were a reaction by you to your relationship with your former partner coming to an end.  I accept that to be the case.  Whilst it helps to explain your offending, it does not excuse it and the courts must ensure that any sentence passed is appropriate application of the principle of general deterrence, that is, the sentence must deter others from acting as you have in relation to their former partner.  Family violence will not be accepted from anyone and the public expects that the courts will, by sentencing, express proper denunciation of offending of the kind that you have engaged in and where necessary, protect the public.

25To your credit, you have pleaded guilty to all of the charges and by your pleas you have saved the time and cost of a trial in relation to the indictable offences and what might have been a lengthy summary hearing in relation to the summary matters.

26The indictable offences were resolved at committal and there was no contested committal.

27I treat you as having pleaded guilty to all of the charges at the earliest possible opportunity. For that you are entitled to a reduction in sentence and this will be reflected in the sentence that I will shortly pass.

28I also treat your pleas of guilty as an indication of genuine remorse on your part for your offending and I have taken this into account.

29I was told and accept that you have a long-standing history of schizophrenia, for which you have had several admissions to psychiatric care and at various times, community treatment orders have been made in relation to you.  At times you have engaged in self-harm.

30I accept that your psychiatric condition does result in poor behaviour on your part and I accept that there is a link between your psychiatric condition of schizophrenia and your offending.  Because of this, your moral culpability for this offending is somewhat reduced and in the circumstances of your offending, there can be some moderation in the sentence, so that there is less reliance on both general and specific deterrence.  I am also satisfied that at the time of sentencing you, your psychiatric condition of schizophrenia persists, so that this affects the kind of sentence that I should pass.

31You were born on 27 January 1979 and you are of Aboriginal descent.  Your mother continues to reside in Bendigo and your father passed away in 2009. You were born and raised in the Bendigo area, attending various primary schools, but you failed to complete Year 7.  You were last employed in 2004, but you have had work in the past of a labouring kind, including wood chopping and fruit picking.

32You have had a number of relationships with women and at least three of these relationships have produced five children.  You have a son, Benjamin. aged 11 and you have no contact or a relationship with him or his mother. Laura.

33You also had a relationship with a woman named Melissa, which produced two children, both boys now aged seven and eight.  You have no contact or relationship with them either.

34The relationship with the complainant in these charges produced two boys also and you have a difficult relationship with the complainant, as these charges indicate.

35You were diagnosed as suffering from schizophrenia in your late-teenage years or early-20s and you are in receipt of a disability support pension.  Since you were a teenager, you have had heavy intermittent abuse of cannabis, amphetamines and alcohol.

36I admitted into evidence as Exhibit 2, a medical report dated 10 February 2015 relating to you.  At that time you had just been transferred out of Thomas Embling Hospital in Melbourne to the Alexander Bain Centre and you have been diagnosed with schizophrenia, exacerbated by substance abuse.

37You were prescribed a variety of medications, including Paliperidone 100mg four weekly, which was administered monthly by a depot injection.

38I also admitted into evidence a psychological report, dated 26 August 2015, from Warren Simmons, a psychologist.  That report sets out much of your history, including your history with drugs and alcohol and your psychiatric history.  It refers to your dislocated childhood, in the fact that your family moved around a great deal.  Mr Simmons points out that your psychiatric history is related to your offending, but your condition is exacerbated by your substance abuse, including drugs and alcohol.  He concludes his report with the following: 

“Mr May does present as a significant issue with regard to what   would best help him in the future.  No doubt a community   treatment order, with ongoing compulsory treatment by the local              mental health service, would be of assistance, although it is   understood that legislation prevents them being in place longer   than 12 months.  Mr May would also benefit refraining from   substance use and drug and alcohol counselling to assist him              with this would be helpful.  While the court may entertain some   doubt as to whether Mr May’s offending behaviour is totally   related to his psychiatric condition, or whether this has become an             excuse that Mr May gives when he offends, the reality is that the   truth is probably somewhere in between.  Mr May’s psychiatric             disorder is well documented and established.  His involvement                    with the local mental health services also documents a long   history of psychiatric disturbance.  Therefore, it is prudent to   acknowledge the extent to which his mental illness has an impact   on his offending behaviour.  As this has been a complex issue and                 one that has existed for many years, it is difficult to see that there   will be a significant change in Mr May, unless he is able to remain   substance-free and compliant with medication.  Otherwise, it is   almost certainly the case that Mr May will be before the court                    again in the near future.”

39Mr Kelly submitted and I accept that when you do not comply with prescribed treatment, you quickly descend into alcohol and drug abuse and this leads to further offending.  Bendigo Health and the Alexander Bain Centre has been your primary health carer over a number of years.  I was told and accept that shortly after your release from custody on 11 November 2015, you ceased your medication, especially you depot injection of Paliperidone and this offending occurred shortly thereafter.

40You have now served 211 days pre-sentence detention, having been in custody since 2 January.  As I said earlier, this offending occurred a short time after you were released from custody, having served a four month sentence earlier imposed.  Mr Kelly submitted that an appropriate sentence for you would be
a term of imprisonment of time served, together with a further community corrections order with appropriate conditions, including a condition that you continue to attend at the Alexander Bain Centre for treatment and obey all lawful instructions.

41Mr Cordy agreed that such a disposition was within the range, having regard to your psychiatric history.  He agreed that having regard to the live Verdins issues relevant to the sentencing of you, a sentence may be reduced to some extent.  But he stressed that your offending was serious and the sentence must have regard to the need to protect the public from you.  He submitted that because of your lengthy criminal history, you know that if you continue to consume alcohol or participate in illicit drug use, then you are most likely to break the law.

42The sentencing of you is not an easy task.  You suffer from a long-standing psychiatric illness of schizophrenia, but it is exacerbated by substance abuse. You are of Aboriginal decent and you have had a deprived background and upbringing. 

43You have pleaded guilty at the earliest possible time and I accept you are remorseful.  However, I think there is a need for the sentence I impose to protect the community from you.  Because of your lengthy criminal history and your lengthy history of poor mental health and your lengthy history of drug and alcohol abuse which exacerbates you mental health issues, I am not confident that you can comply with a community corrections order.  I am concerned that if I imposed a disposition of the kind urged by Mr Kelly, I would only be setting you up to fail.  These kinds of dispositions have been afforded to you in the past, but have not assisted you in ceasing to offend.  Having given the matter considerable thought, I am of the opinion that a sentence of imprisonment is the only appropriate sentencing disposition in the circumstances of this case.

44On Charge 1, theft of petrol, you are convicted and sentenced to a term of imprisonment of one month.

45On Charge 2, intentionally cause injury, you are convicted and sentenced to
a term of imprisonment of 12 months.

46On charge 3, attempted armed robbery, you are convicted and sentenced to
a term of imprisonment of nine months.

47On Summary Charges 3, 4, 10, 13 and 14, contravene a family violence intervention order, you are convicted and I make an aggregate sentence of six months' imprisonment.

48On Summary Charge 7 of drive whilst disqualified, you are convicted and sentenced to a term of imprisonment of three months.

49On Summary Charge 16 of drive a motor vehicle in a dangerous manner, you are convicted and sentenced to a term of imprisonment of six months.  Any licence to drive a motor vehicle which you may hold is cancelled and you are disqualified from holding a licence to drive a motor vehicle for a period of
12 months from the 2 January 2016.

50On Summary Charge 17, trespass, you are convicted and discharged.

51I direct that six months of the sentence imposed on Charge 3, attempted armed robbery, and three months of the aggregate sentence I have imposed for contravening family violence intervention orders, and three months of the sentence imposed for the summary charge of driving a motor vehicle in
a dangerous manner, cumulate upon the sentence imposed on Charge 2, intentionally cause injury, making a total effective sentence of 24 months' imprisonment.

52I direct you serve a minimum term of 16 months before being eligible for release on parole.

53I declare that there has been 211 days pre-sentence detention under the sentences passed this day and I direct that 211 days be reckoned as having been already served and entered into the records of the court and be deducted administratively.

54For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of three years' imprisonment and I would have fixed a

non-parole period of two years.

55Now is there some issue about the pre-sentence detention? 

56

MR ROONEY:  Your Honour, the accused was remanded on 2 January

2016- - -

57HIS HONOUR:  At the plea I was told by the prosecution that it was 144 days, as at that time.  That was on 25 May.  According to my calculations, there are - I beg your pardon.  Mr May.  I was told on his plea on 26 May, 144 days, not including today. 

58MR ROONEY:  I think you will find that it - - -

59HIS HONOUR:  Plus 36 is 180 - what is it, 180?

60MR ROONEY:  Correct. 

61HIS HONOUR:  The declaration of pre-sentence detention will be 180 days.  My sentencing remarks will be amended accordingly.  Any questions arising out of that? 

62MR ROONEY:  There is also the forensic sample application that was made.

63HIS HONOUR:  There is no order.

64MR ROONEY:  I have the order today.  As I understand it, it was made on - - -

65HIS HONOUR:  Well have you given it to my associate? 

66MR ROONEY:  I haven't, but as I understand it, it was made - the application was made on - - -

67HIS HONOUR:  Have you given the order to my associate? 

68MR ROONEY:  I haven't had the opportunity to, but I do have it here, Your Honour. 

69HIS HONOUR:  I don't think it was applied for on the last occasion.  I might be wrong about that, but in any event.  It is referred to in the papers, but no application was made and I don't have the order. 

70MR ROONEY:  Your Honour, I'll just - if you just give me a minute, I've got a couple of orders here I just need to - - -

71HIS HONOUR:  Yes.  Have you got the order there that relates to a person in custody?

72MR ROONEY:  Yes, Your Honour, I'm just getting that now. 

73HIS HONOUR:  Ms Grace, is it?

74MS GRACE:  Yes.

75HIS HONOUR:  Do you oppose this order?

76MS GRACE:  No, Your Honour. 

77HIS HONOUR:  I have been asked to make a forensic sample order.  The application was not opposed, because of the seriousness of the circumstances of the offending, your prior convictions, and I am of the view that it is in the public interest that such an order be made.  I have signed that order, Mr May, which means that whilst in custody, a member of the police force may approach you and ask you for a forensic sample, which you will be obliged to furnish.  Do you understand?

78Very well, thank you.  Could you remove Mr May please.  Feel free to leave the Bar table, if you wish, Ms Grace.  Thank you.  Thank you for coming.   

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