Director of Public Prosecutions v McCleod
[2014] VCC 1654
•1 September 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00797
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT ANDREW McCLEOD |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 July 2014 | |
DATE OF SENTENCE: | 1September 2014 | |
CASE MAY BE CITED AS: | DPP v McCleod | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1654 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Three charges of attempted armed robbery – pleas of guilty – remorse – opportunistic offending – defendant has intellectual disability and schizophrenia – had been on remand in custody for 199 days – first time in prison was burdensome for defendant – reduction of emphasis on general and specific deterrence – Community Correction Order of 23 months on each charge with conditions including Justice Plan.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Balleek | Office of Public Prosecutions |
| For the Accused | Ms J Hardy | James Dowsley & Associates |
HER HONOUR:
1 Robert Andrew McCleod, you have pleaded guilty to three charges of attempted armed robbery. Each of these offences carries a maximum penalty of 20 years' imprisonment.
2 The circumstances of your offending are details in the Summary of Prosecution Opening (Exhibit “A”). The dates of your offending were 21 and 23 January 2014 and 30 March 2014.
3 On the first occasion, you attended a café and ordered a meal, which you ate. You then picked up a steak knife and approached two waitresses stating that you had no money and that you wanted money, while pointing the knife in their direction. The waitresses approached the manager, who asked, “Shall I call the police?” and you replied, “Yes” and sat down at a table and waited until police arrived. You were arrested and, during your interview, made full admissions but stated that you did not mean to scare the staff.
4 On the second occasion, you attended a restaurant and picked up a bread and butter knife, which you pointed towards a waitress, and stated several times, “I need money.” Another waitress came over and the two waitresses walked to the back of the restaurant and called police. When police arrived, you were still standing in the restaurant holding the knife, which you put down when asked to do so. You were arrested and, during your interview, made full admissions to police.
5 On the third occasion, you entered a restaurant and ordered a meal. After you had finished, you picked up a cutlery knife and approached two waitresses at the bar, pointing the knife at one of them, stating, “Give me money.” The waitress initially thought you were joking, but then became scared and called her manager. You placed the knife on a table behind you and the manager, thinking that it was a dispute over a bill, spoke with you and arranged for your sister to pay the bill by telephone. You were permitted to leave the restaurant and caught a bus home, but were later arrested by police and made full admissions during a record of interview.
6 You are presently aged forty-three years, having been born on 11 July 1971. You come before the Court with two prior Court appearances at Frankston Magistrates’ Court in 2011 and 2012. The first was for criminal damage, for which you were given a without conviction bond. The second was for recklessly causing injury and throwing a missile, for which you were placed on a community corrections order for 12 months without conviction. That order involved participation in Justice plan.
7 In a plea on your behalf by Ms Hardy, the Court was told that you suffer an intellectual disability within the mildly intellectually disabled range and have experienced mental health issues and been treated for psychosis in the past. You have been a client of Disability Client Services, part of the Department of Human Services, for a number of years. Ms Hardy stated that you have a history of opportunistic and unsophisticated behaviour which is motivated by your love of food. On a number of occasions you had attended at restaurants and had not been able to pay, and the restaurants would call your sister, who would arrange for payment. Your money is managed by State Trustees. Ms Hardy stated that, at the time of this offending, you were unhappy in the accommodation where you were then residing, which had a low level of supervision. She stated that, at that accommodation, you had limited association with other individuals, no money of your own and felt restricted and did not like the food.
8 Ms Hardy stated that you had instructed her that you wanted to go to jail because you did not like your accommodation. Following your offending on Charge 3 on 30 March 2014, your bail was revoked. Since then, you have been housed in the Marlborough Unit for people with disabilities and Ms Hardy stated that you are probably the least competent of the 40 residents there and your view of wanting to be in custody has changed. She stated that you have been unhappy and vulnerable because of physical abuse and adverse influences in that unit and had begun wetting the bed.
9 Tendered on the plea were two reports from your case manager at Disability Client Services, Ms Lynda Campbell, dated 4 March 2014 and 7 July 2014 (Exhibit “1”). Ms Campbell’s reports detail your history of having lived with your mother until she died in November 1999, your father having died some time earlier. Family members, particularly your sister, endeavoured to accommodate you and support you following your mother’s death but this became increasingly difficult and the Department of Human Services were asked to assist in 2000.
10 It was noted that, in late 2010, you were assessed at the Centre for Developmental Disability Health Victoria by Associate Professor Robert Davis. In a report dated 3 December 2010, he wrote that you have “longstanding problems with a psychotic disorder, probably schizophrenia”. He considered this was appropriately treated with medication but you do still experience problems with outbreaks of schizophrenia which require more intensive intervention by Mental Health Services. It was noted that your behaviours deteriorated after the death of your mother and tend to become worse on significant days, such as the anniversary of your mother’s death and Mother’s Day. After your siblings struggled to support you, alternative accommodation was found at various supported residential services until you were offered accommodation in April 2004 in cluster housing managed by the E W Tipping Foundation. This was where you were living at the time of your offending for which I must sentence you.
11 You are able to manage your personal care and a number of domestic tasks independently, but, for safety reasons, you are generally supervised when preparing meals. You are able to use public transport but, at times, you fail to buy a ticket. You have difficulty expressing yourself due to unclear articulation, so it is hard for others to understand you and you have limited reading and writing skills. You were assisted by staff to attend medical appointments and have fortnightly depot injections at your general practitioner’s rooms. You have a psychiatrist, Dr Kruk, who is consulted if significant changes in behaviour are noticed.
12 Ms Campbell indicated in her more recent report that additional funding had been made available for you to engage in community activities but, since you have been incarcerated, she has made a referral to Disability Forensic Treatment Service for a service level assessment and also met with the Australian Community Support Organisation (“ACSO”) to see whether a vacancy could be found in one of their forensic residential facilities.
13 Mr Matthew Ferguson, manager of housing services for Southern Metropolitan Region of ACSO, gave evidence to the Court that, after having been contacted by Ms Campbell, ACSO has a panel comprising a senior manager, occupational therapist, social worker and a behavioural practitioner assessing your case to see whether you might be accommodated at their residential facility at Calabro House, 15 Dunlop Street, Ormond. This is a home for people who have a variety of presentations, but is specifically set up for people who have an intellectual disability under the Disability Act and who are at risk of coming into further contact with the criminal justice system. It has been operating for 15 to 18 years. There are staff actively supporting the residents from 7.00am to 11.00pm and social educators come in during the day to assist with training around issues as well as social education, control of emotions, independent living and other practical skills. It is not a locked facility, although there is a staff member who stays overnight, and Mr Ferguson stated that they have a close relationship with the local police and would report any concerns that they may have about a resident.
14 The matter was adjourned until 25 July 2014 to see whether assessment for a placement had been completed. On that day the Court was advised that further time for an assessment was required.
15 A report from Mr Ferguson of ACSO dated 21 July 2014, was tendered as Exhibit “4”. This indicated that ACSO would require approximately another four weeks to assess your needs in order to develop an holistic support plan, which would involve visiting you in prison to familiarise you with the proposed accommodation and developing a comprehensive plan to link you with day services and area mental health facilities. Time was also required to develop and train staff in relation to a mental health crisis management plan and have in place an identified exit strategy in the event of behavioural concerns or you expressing a wish to no longer reside at the accommodation, as well consulting with your previous residential service (E W Tipping). In addition, Ms Campbell indicated to the Court that Disability Client Services would provide an up-to-date report and devise a proposed Justice Plan. Accordingly, the matter was adjourned to 1 September 2014.
16 I have had the benefit of reading the report of Associate Professor Robert Davis dated 3 December 2010 which was referred to in Ms Campbell’s reports. This was tendered as Exhibit “3”. Professor Davis confirmed that for the most part you are a fairly amiable fellow with a mild degree of intellectual disability, but, in more recent times, your behaviours have deteriorated to a more psychotic state which can involve aggression and you have suffered more florid episodes. These have included hearing voices coming from electrical appliances, which has caused you, at times, to cut the cords of those appliances. He considered back in 2010 that you needed ongoing psychiatric management and that depot injections were probably necessary because of your tendency to abscond and be out of contact for a number of days.
17 A more recent report by Dr Lester Walton, consultant psychiatrist, dated 12 May 2014, was tendered as Exhibit “2”. Dr Walton stated that you suffer the double problem of chronic schizophrenia and intellectual disability. Although he assessed you as fit to be tried, he stated that your appreciation of wrongfulness remains at a rather childlike level. His opinion is that your chronic schizophrenia and intellectual disability made a contribution to your rather unusual offending. He stated that it was not that that you were assailed by acute psychotic symptoms such as delusions, but, rather, the negative features of schizophrenia, (including erosion of social competence and failure to properly consider the consequences of your actions), endure between acute episodes of schizophrenia. He considered that your current psychiatric and neurological treatment appeared to be adequate and that you do express remorse in a childlike fashion consistent with your intellectual disability. He considered that you require a degree of protection, that any period of imprisonment is more onerous for you than for a person without your disabilities, and that specific deterrence was unlikely to be enduring because of your chronic intellectual and psychiatric problems.
18 I accept the opinions of Dr Walton concerning the nexus between your schizophrenia and intellectual impairment and your offending. Accordingly, both general and specific deterrence should be moderated in sentencing you. I also take into account that prison is likely to be more burdensome for you than for someone who does not have your disabilities. Indeed, the pre-sentence report from the Office of Corrections mentions five incidents since April 2014. Your counsel also drew to the Court’s attention that you had been experiencing bed-wetting in custody.
19 In sentencing you, I take into account your pleas of guilty. I am satisfied that they are as remorseful as your intellectual capacity enables them to be. However, it is important that the community be protected from further offending by you. Although it has been unfortunate that you have had to be incarcerated since being remanded in custody in March this year, hopefully the planning that has been put into your case by your case managers at Disability Services (initially Ms Campbell and, now, Mr Coleman), and the staff at ACSO will ensure a good transition back into the community and ongoing support and supervision for you, which one hopes will reduce the risk of re-offending. If this occurs, then, obviously, that is in the best interests of the community.
20 At today’s hearing there has been tendered a client overview report authored by your new Disability Services Case Manager, Brendan Coleman, together with his manager, Ann Kenneally, dated 27 August 2014 (Exhibit “4”). This report appends a proposed Justice Plan pursuant to s80(3)(c) of the Sentencing Act 1991, which is also dated 27 August 2014 (Exhibit “5”). Also tendered is a pre-sentence report by Melissa McAvoy and Billie Preston of the Office of Corrections, dated 8 August 2014 (Exhibit “6”).
21 The recommendation of the proposed Justice Plan is that you reside at Calabro House. The report describes Calabro House as being funded by the Department of Human Services and managed by ACSO. It is said to be a five bed residence, which supports people with an intellectual disability who are involved in the criminal justice system. It is said to provide 24 hour support and supervision.
22 It is also recommended in the proposed Justice Plan that you engage with the Disability Forensic Assessment & Treatment Service for further assessment and therapeutic support or other similar services, as recommended by Disability Client Services. Further, it is recommended that you engage with mental health support providers, as recommended by Disability Client Services, and comply with treatment.
23 The final recommendation of the proposed Justice Plan is that you accept case management services from Disability Client Services for the duration of any order.
24 The pre-sentence report from the Office of Corrections (Exhibit “6”) assesses you as suitable for a Community Correction Order and recommends that a Justice Plan form part of such order, together with a number of other conditions, which I consider appropriate.
25 I note that the authors of the pre-sentence report do not recommend a residential restrictive condition in case the proposed accommodation at Calabro House should become a hostile or unstable environment for you. However, I consider that for, at least, the short-term, there should be a stipulated residential condition. I consider it appropriate to judicially monitor the situation by having the matter brought on for a mention in three months’ time.
26 In all of the circumstances and, particularly, taking into account that you have already served 199 days in custody, I consider that the appropriate disposition on each of the three charges is a Community Correction Order with a number of specific conditions, including that you comply with the conditions of a Justice Plan. In attaching such condition I have considered the matters set out in s80(2) of the Sentencing Act, and I have received documentation complying with s80(3) of that Act.
27 Mr McCleod, the material before the court indicates that your offending occurred in a context of you becoming bored and lonely whilst living in your former accommodation. It appears that there was inadequate supervision, social interaction and occupational therapy for you. These factors will hopefully be addressed by the orders which I make today.
28 On each of the three charges, you are convicted and ordered to undertake a Community Correction Order for a period of 23 months commencing today.
29 The terms of each order are as follows:
(a) you must not commit whether inside or outside Victoria during the period of the order an offence punishable by imprisonment;
(b) you must comply with any obligation or requirement prescribed by the regulations;
(c) you must report to and receive visits from the Secretary during the period of the order;
(d) you must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force;
(e) you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f) you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(g) you must comply with any direction given by the Secretary that is necessary for the Secretary to give in order to ensure that you comply with the order.
30 Mr McCleod, in addition to those terms, each of the orders has the following conditions:
(i) that you be supervised, monitored and managed as directed by the Secretary;
(ii) that you undergo treatment and rehabilitation as directed by the Secretary and, in particular:
(1) a violence intervention program;
(2) mental health assessment and treatment;
(3) any other programs to reduce the risk of re-offending;
(iii) that you participate in the services specified in the Justice Plan attached to this order, namely:
(1) you reside at Calabro House at 16 Dunlop Avenue, Ormond and comply with the house rules as set out by ACSO;
(2) you engage with the Disability Forensic Assessment & Treatment Service for further assessment and therapeutic support or other similar service, as recommended by Disability Client Services;
(3) you engage with mental health support providers, as recommended by Disability Client Services, and comply with treatment;
(4) you accept case management services from Disability Client Services;
(iv) that, pursuant to s48(K) of the Sentencing Act, you appear before this Court at 10am on 1 December 2014 for judicial monitoring of your progress under the Community Correction Order.
31 Mr McCleod, I have put that last condition in the order for you to come back to court so that I can ensure that you are happy at Calabro House and that there are no issues that need to be addressed there.
32 Mr McCleod, do you consent to the Community Correction Order on each of the charges with the terms and conditions that I have just read out?
33 Prisoner: Yes, Your Honour.
34 Mr McCleod, you must understand that if you do not comply with those terms and conditions, you will have committed another offence and will be brought back before the court to be dealt with for that new offence.
35 Prisoner: Yes, Your Honour.
36 Pursuant to s464ZF of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a sample of saliva in accordance with Sub-Division 30A of Part 3 of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database. I consider that this order is justified by reason of the seriousness of the circumstances of your offending.
37 Mr McCleod, this will involve you having to attend a police station. You will be given a cotton swab which you will need to place inside your mouth so that a sample of saliva can be obtained. The police then take the swab and the information from it is recorded on a database. You need to understand that, if you do not co-operate with the police in taking this swab of saliva, then the police may use reasonable force to obtain the sample. Do you understand that, Mr McCleod?
38 Prisoner: Yes, Your Honour.
39 Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed would have been four years’ imprisonment with a non-parole period of three years.
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