Director of Public Prosecutions v McLeod

[2023] VCC 911

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-23-00225

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT McLEOD

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JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2023
DATE OF SENTENCE:	30 May 2023
CASE MAY BE CITED AS:	DPP v McLeod
MEDIUM NEUTRAL CITATION:	[2023] VCC 911

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Attempted armed robbery – Plea of guilty – Plastic knife -

Legislation Cited: S 75A, 321M Crimes Act 1958 (Vic) – S 6AAA Sentencing Act 1991 (Vic)

Cases Cited:McCarthy [2018] VSCA 91 – Luchian [2019] VSCA 145 – Worboyes [2021] VSCA 169 – R v Verdins (2007) 16 VR 269

Sentence:18 months imprisonment, non-parole period of 10 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Tamburro	Ms B. Vaughan
For the Accused	Ms L. Thies	Mr B. Barratt

HIS HONOUR:

1In this matter Mr McLeod, Robert McLeod, has pleaded guilty to a charge of attempted armed robbery laid under Indictment no.N12576454. Such charge is laid pursuant to the combined provisions in the Crimes Act of s321M and s75A. Robert McLeod has pleaded guilty to, at Mitcham on
29 November 2022, attempted to rob Nu Ly and at the time had with him an offensive weapon, namely a white plastic knife.

2Such a charge of attempted armed robbery brings with it a maximum penalty of 20 years' gaol.  Insofar as the circumstances of that matter I note that Exhibit A was tendered by the prosecution and read by the prosecutor.  The facts being admitted by Ms Thies on behalf of her client as being the facts which I am to sentence her client on.  Also, Ms Thies accepted the prior offences as set out and which will be detailed by me.

3As I say, the criminality, which is summarised in Exhibit A, has been
admitted.  The crime was committed at the Serafino Bakery conducted at
526 Whitehorse Road in Mitcham by Mr Ly.

4The circumstances were that he was at the premises, the owner was there behind the counter.  As I said, that is Mr Ly, and there were two patrons, one of whom was accompanied by two young daughters.  With the use of a white plastic knife, taken from the counter, Mr McLeod sought money and on four occasions in a loud and demanding tone, maintained the demand for money despite the owner saying, 'I can't'.  Eventually the owner, looking very shaky and apparently visibly scared, refused to give any money.  He called the police.  Mr McLeod started to spill cutlery and condiments.  The owner and the patrons went outside.

5While they were outside Mr McLeod sat inside and waited at one of the indoor tables.  The reason why he waited is set out in his record of interview, at Question and Answer 37, he wanted to go back to gaol.  He accepted that he had frightened the mother and her child, accepted that he was shouting and he accepted that he had used the white plastic knife, and in particular the circumstances of the attempt.

6This history unfortunately, insofar as Mr McLeod is concerned, has been going on for some time. I refer to Exhibit B of the prosecution submissions on sentence and his summary as to the last 10 years of offences, or nearly 10 years, nine years, which is set out at paragraph 10.

7It is a somewhat unique situation where a person becomes so institutionalised that he commits serious crimes for the purpose of getting back into gaol.  The history is set out, as I said, by the learned prosecutor and I have taken the opportunity in particular to read the two most recent sentences insofar as
Mr McLeod was concerned, that is the sentence of Her Honour Judge Cannon of 28 September 2018, reported [2018] VCC 1583. Another sentence of
Her Honour Judge Cannon, which was passed on 9 August 2019, [2019] VCC 1249, and the most recent sentence, being of Her Honour Judge Ellis, passed on 12 September 2022, [2022] VCC, no actual number being put in.

8As the prosecutor summarised it, the accused has a recent and relevant criminal history, this offending is the sixth episode in a series of near identical armed robberies.  Clearly those matters must be taken into account by this Court.

9In addition to those particular personal histories, I do refer to my own experience in dealing with similar cases and the comments made by the Court of Appeal in those cases.  The first is McCarthy, which was determined by the Court of Appeal on 13 April 2018, [2018] VSCA 91, and then a further determination of Luchian, which was also determined by me, [2019] VSCA 145, the Court of Appeal handing down its judgment on 25 June 2019.

10I described the circumstances of McCarthy as a unique situation.  The circumstances that now confront me, I think summarising both counsel's submissions, are even more complicated insofar as Mr McLeod is concerned.  For the last nine years we have had a situation where, as the prosecutor put, he has repeated the same sort of crime in order to get himself back into an institution.  If is a very concerning situation.  Unfortunately, at times the community just has to deal with these matters as best it can, and so does a sentencing Court.  Of course, particularly important in this matter is an analysis of material tendered by Counsel, which I have read.

11In particular I want to go to Exhibit 7, which is the neuropsychological report of Mr Jackson dated 25 May 2023.  Mr Jackson noted the difficulties in obtaining a history, Mr McLeod being a poor historian, and also what we have noted today insofar as the difficulties as to his speech. We note from Luke McNally, the mentor, that once you get used to him you can overcome those things to a degree.  In the summary and assessment of Mr Jackson, on p12, he noted that Mr McLeod was 51 years old.  He indeed was 51 at the time of this offending.  As a result of the current neurological assessment undertaken, his intellectual disability and full scale IQ seemed to be consistent with previous assessments.  He was, if I turn to p13 paragraph 8, diagnosed as having schizophrenia some years ago, and is currently receiving depot medication.  That medication seems to keep his symptoms under control.  Mr McLeod denies any current psychotic symptoms.  He occasionally gets upset and smashes things, which seems to have occurred on this day at the bakery.

12At the bottom of p12 Mr Jackson concludes, that overall Mr McLeod is a man of previously diagnosed mild intellectual disability, who currently presents with a full scale IQ consistent with moderate intellectual disability.  On current assessment all of his performances were in an extremely low range.  He goes on to detail this.  He then comments on the tendered reports of Mr McKinnon, the consultant psychologist, and insofar as his opinion, assessing the behaviours of the Mr McLeod over the last nine to ten years, as well as the cognitive and behavioural impairments associated with Mr McLeod's moderate intellectual disability, he concludes on p14 that Mr McLeod really should not be going into the community on his own.  He further states “As such, living in an environment where he is free to come and go as he pleases is not a satisfactory environment to manage him.  I agree that he needs a gated environment, which means that he cannot actually get out unless he is accompanied by another person.”  I think as I have pointed out during this plea, unless we call gaol a gated community, it doesn't seem to me, certainly to my knowledge and on the basis of submissions from counsel, that such a facility is available in Victoria.

13If I go to p15 Mr Jackson says further, 'The main difficulty in this case is that Mr McLeod is so low functioning that he has no capacity to change his behaviour on his own and has no capacity to view situations as anything other than as he thinks they are.  So, unless there is a significant change in how he is managed in the community, then every time he is released, he is simply going to reoffend again after a short cycle so he can go back to prison to be with his “friends”’.

14It is also important to look at Exhibit 6, which is the report from the Blue Sky Support Organisation, which is, or has been, utilised by the NDIS, that is the National Disability Insurance Scheme, as Mr McLeod's specialist support coordinator.  It is pleasing to know that that scheme provides a situation where, as Bryony Epa, who is the senior support coordinator, indicates that those supports are being given in gaol.  She notes at p2 of her report something which is encouraging for the Court:  'During our meetings Robert is encouraged to independently identify strategies that increase his capacity to regulate his emotions and ultimately improve his prospects of attaining', and I stress this, 'his goal of living a full and safe life within the community, post his incarceration'.

15That has certainly been the desire of the Courts and, in particular, I refer to the sentence of Judge Cannon when she released him most recently on a combined imprisonment and community correction order.  There was also, as part of that community correction order, resort to a Justice plan.  Unfortunately, that was not successful and it is the joint submission of both counsel that a community correction order, and I might say my view, does not seem to be the solution, if there is a solution.

16Coming to the matters that one needs to take into account, of course, the first matter was the plea of guilty by Mr McLeod.  Such plea was entered, given when this crime occurred, at the earliest possible time.  It indicates of itself remorse and I accept the statements made to Mr Jackson that Mr McLeod was remorseful as to the stress and pain that he caused to the owner and the patrons at the time of this offending.

17It is also appropriate to take into account that this plea has been entered while we are still having difficulties with the pandemic, that we have just got through, to a degree at least.  The principles of Worboyes [2021] VSCA 169, [39], apply.

18For 182 days Mr McLeod has been in gaol by way of pre-sentence detention and he has had to endure the Covid regime, and of course in any further sentence he would have to endure that as well.

19The is no dispute that the principles set out in Verdins, in particular 1 to 4, are applicable here to reduce culpability and, in particular, Principles 5 and 6, given the assessment made by Mr Jackson, such that despite his desire to be in gaol, clearly there are far better environments for him.  I cannot quite decide whether there is a risk to him exacerbating his symptomology, but I will apply those principles.

20Mr McLeod was clearly cooperative once the police arrived and was fully open with his statements made in the record of interview. One of the difficulties, as I have already said, in assessing this matter objectively, is his stated object with which he committed this crime.  It is the one that makes this matter so difficult.  There is no doubt that as it currently stands, similar to the findings of earlier judges, one could not necessarily say that Mr McLeod will effect rehabilitation. Of course unfortunately this community has to deal with people with Mr McLeod's difficulties and such present difficulties for the Court as to sentencing.  I take into account all the materials that are before the Court, the five sentences of the Court, where Judges of this Court have tried to deal with these issues and, as I said, my own experience in regard to other persons of a similar ilk.

21Both counsel submitted ultimately on the basis of all of the material before the Court that the appropriate sentence is one of a period of gaol with a parole period. I find given the totality of the circumstances, that I should accept that submission. It is not necessary for you to stand up, Mr McLeod, but
I will pronounce sentence as follows.

22You will be sentenced to a period of imprisonment of 18 months for this offence to which you have pleaded guilty.  A finding of guilt will be recorded.  I will order that the period that you must serve before being eligible for parole is a period of 10 months. I declare that the period that you have served by way of
pre-sentence detention of 182 days be deemed as service of this sentence, and such declaration be recorded in the records of this Court.

23The requirements set out in S 6AAA of the Sentencing Act are very difficult to comply with in these circumstances, as the plea of guilty is perhaps one of the minor factors being taken into account in this case.  However, doing as best I can, had Mr McLeod not pleaded guilty, I would have sentenced him to a period of imprisonment of 30 months with a minimum period to serve of 24 months.

24Ms Thies, could I ask your instructors to ensure that these sentencing remarks are delivered to the Parole Board.  It is my view, no doubt they look at this matter independently as their statute indicates, but why I have set that period is in the totality of the circumstances of this case, given that he has already served seven months on remand, in the three months left of the non-parole period one would hope that the Parole Board in conjunction with the NDIS support set out in Exhibit 6, that is the letter of Ms Epa, that steps can be taken to create a situation where hopefully Mr McLeod can live in the community and, as Ms Epa points out, live in a manner whereby he is not committing crime in order to be returned to prison.

25MS THIES:  Yes, Your Honour.

26HIS HONOUR:  It is a very concerning matter for the Court to have someone before the Court who has been effectively institutionalised for the last 10 years.  It goes against all that is held holy in our justice system for a man to be institutionalised, in many cases for committing, although on the statute, a serious crime, actually in nearly every instance, almost the least serious instance of such a crime, in order to be back in gaol.

27MS THIES:  Yes.

28HIS HONOUR:  I am not too sure - I think it is really a job for the instructing solicitors.  There is not much the Court can do.  I will ensure that the Parole Board is sent all the reports that have been tendered and it is probably a matter for your instructor to ensure that steps are taken, to ensure parole is effected at the time I have indicated. But as I have said, it is not my role to make those determinations.

29MS THIES:  Yes, Your Honour.

30HIS HONOUR:  Can I thank counsel, both counsel, for their assistance in what is a very difficult sentencing task.

31MR TAMBURRO:  If the Court pleases.  Thank you, Your Honour.

32MS THIES:  If the Court pleases.

33HIS HONOUR:  Thank you.  Mr McLeod, what I have done will be explained to you.  Do you want to do that, Ms Thies now?  If we - Mr McLeod stays on the screen?

34MS THIES:  If I could.  Yes, thank you, Your Honour.

35HIS HONOUR:  Alright.  Ms Thies will talk to you now with the assistance of Mr McNally, but what that effectively means is at the moment you have got another three months to serve before you are eligible for parole.  I cannot say that you will get parole, but I hope you do and that with NDIS we can get something in place so that you are not in and out of gaol, all right?

36OFFENDER:  Okay.

37HIS HONOUR:  So good luck.

38OFFENDER:  Okay.

39HIS HONOUR:  Thank you, Mr McNally, much appreciated.

40MR McNALLY:  Thank you, Your Honour.

41HIS HONOUR:  If you just stay there and Ms Thies will have a chat to you,
all right?

42MR McNALLY:  Yes, no worries.

43HIS HONOUR:  Thanks very much.

44MR McNALLY:  Thank you.

45MS THIES:  As the Court pleases.

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