Director of Public Prosecutions v McLeod
[2019] VCC 1249
•9 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-19-00966
Indictment No. K10509208
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT McLEOD |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 July 2019 | |
DATE OF SENTENCE: | 9 August 2019 | |
CASE MAY BE CITED AS: | DPP v McLeod | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1249 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence (CR-19-00966) – Plea of guilty – Attempted armed robbery – Relevant criminal record for similar offending – Suffers from schizophrenia - Congenital intellectual disability of moderate severity – Impaired mental functioning – No full appreciation of right and wrong – Related matter CR-18-00498 Contravention Community Corrections Order
Case citations: R v Verdins & Ors (2007) 6 VR 269
Sentence: CR-19-00966 Convicted and sentence to 2 years’ imprisonment with non-parole period of 12 months’ imprisonment – pre-sentence detention 165 days declared as having already been served – s.6AAA Sentencing Act 1991 declaration
CR-18-00498 Contravention CCO found proven but no further order made in respect of Contravention – Re-sentencing on CR-18-00498 (two charges of Attempted armed robbery and one charge Theft) 366 days’ imprisonment – 366 days’ imprisonment declared as already having been served
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. O’Toole Mr D. Brown | Solicitor for Public Prosecutions |
| For the Accused | Mr C. Pearson (For Plea) Mr B. Barratt (For Sentence) | James Dowlsey Associates |
HER HONOUR:
1 Robert McLeod, you have pleaded guilty to one charge of attempted armed robbery, which has a maximum penalty of 20 years’ imprisonment. I must take into account the maximum penalty when sentencing you, as this shows how serious the offence of attempted robbery is regarded by our Parliament.
2 You were 47 years old at the time that you committed the offence and you were living in Noble Park. The victims of the offence were all working at The Pancake Parlour at Fountain Gate Shopping Centre in Narre Warren.
3 On Monday, 25 February 2019 at about 9.00 am, you went to The Pancake Parlour at Fountain Gate and ordered a meal totalling $25.70. After you had eaten the meal, you went to the front counter of the restaurant holding your knife and fork.
4 As you approached the counter, you repeatedly yelled, “Give me all your money” and, “I’m robbing you”.
5 Natalyia Taleski was working at the front counter of the restaurant when you approached, yelling your demands. Nathaniel Robinson, who was the kitchen manager, came over and tried to engage with you. You continued to make demands to Mr Robinson while waving your cutlery around. Then the manager, Paras Satia, approached and tried to reason with you. You continued to be loud and aggressive towards the staff members, and when they did not give you any money, you picked up a bowl of lollies which was on the counter and threw it at Mr Satia. You then threw your cutlery at him, hitting him in the stomach, but causing no injury.
6 There were other customers at the restaurant who saw what you were doing.
7 You then left the restaurant and went back into the shopping centre. Security guards from the shopping centre followed you and apprehended you in the carpark, where you waited for police. When the police arrived, you were arrested and cautioned. You were asked your name, and when you told police your name you went on to say that you had robbed the shop and wanted to go to Port Phillip.
8 You were interviewed by police on 25 February 2019 and you made full admissions to the attempted armed robbery. When you were asked why you had the knife and fork with you when you approached the front counter, you said that this was to “stab the person”. In the circumstances, I accept your counsel’s submission that you did not actually intend to do this but, rather, this was part of your bravado or showing off to ensure that you got what you wanted, which was to return to gaol.
9 You have been in gaol since you were arrested.
10 Mr McLeod, your offending is serious and deserving of a punishment which is just in all of the circumstances, and your conduct must be appropriately denounced. Your actions were very wrong and would have been most frightening to those who were witnessing them. It may be that you simply wished to return to Port Phillip Prison, but this was no way in which to behave. It is not a laughing matter and it is time for you to behave yourself once and for all, and accept that you might not always get what you want, and you should not frighten other people in trying to do so.
11 I have previously sentenced you in relation to fairly similar offending, and Her Honour Judge Hogan has too. At the time that you committed the offence at The Pancake Parlour, you were subject to a community corrections order with a justice plan attached. I had given you the chance to behave yourself in the community with appropriate supports, but this was not enough for you to behave yourself apparently.
12 As I said at the plea hearing, while you might like going to prison in order to get the attention and structure that you enjoy there, the time may well come when people who are in prison with you are not so friendly and you risk being in a place for a long time that you dislike and will not be able to get out of it in a hurry.
13 I am also to deal with you in relation to the breach of the community corrections order that I previously imposed. You have breached that order by committing the attempted armed robbery at the Pancake Parlour, as well as failing to obey the order by not attending for supervision on four separate occasions. The penalty for breaching the community corrections order is a maximum of three months’ imprisonment and, in your case, it is agreed that the community corrections order ought to be cancelled and you ought to be resentenced in relation to the original matters for which I imposed sentence on 26 September 2018.
14 For the purposes of the attempted armed robbery on the indictment for which I now sentence you, you have the following criminal history.
15 On 7 December 2011, without conviction, you obtained a 12 months' adjournment for six charges of criminal damage.
16 You complied with that undertaking and you were discharged on 7 December 2012.
17
On 1 September 2014, you were convicted of three charges of attempted armed robbery in this court and a community corrections order was imposed for
23 months with supervision and a Justice Plan attached.
18 On 1 October 2015, in this court, you were dealt with for breach of that community corrections order, and her Honour Judge Hogan resentenced you to a total effective sentence of 35 months with a non-parole period of 20 months’ imprisonment, declaring 538 days by way of pre-sentence detention. Her Honour also dealt with you for two further charges of attempted armed robbery, and imposed a total effective sentence of 15 months’ imprisonment in relation to these.
19 On 26 September 2018, in this court, you were convicted of two charges of attempted armed robbery and one charge of theft, and I sentenced you to an aggregate term of imprisonment of 366 days, which was time you had already served in combination with the community corrections order with a justice plan attached. I have recently spoken about that disposition in these sentencing remarks.
20 I am very worried about your prospects of rehabilitation and the protection of the community.
21 In sentencing you, I accept that the circumstances of the attempted armed robbery at The Pancake Parlour earlier this year, although potentially frightening for those who witnessed it, was rather pathetic and lacking in sophistication. Having said this, there was a degree of pre-planning involved, as I understand that you had thrown away your means to pay for the meal before attending The Pancake Parlour because you wanted to return to prison. I understand that you wished to return to prison because you were bored with your life outside its walls. Unfortunately, this has been your motivation for offending in the past.
22 In assessing your moral culpability, I have factored in that you have a congenital intellectual disability of moderate severity, and I accept that this was impairing your ability to make calm and rational decisions and to properly appreciate the consequences of your actions at the time that you committed the offence for which I now sentence you. You also suffer from schizophrenia. However, you were being appropriately medicated for this at the time of the offending.
23 Although there has been a degree of difference of opinion in relation to the level of your intellectual disability, I accept the most recent opinion of Mr McKinnon, consultant psychologist, who has seen you on a number of occasions, most recently, on 20 June 2019. He was of the view that you did not possess the intellectual and moral capacity to fully appreciate the ordinary meaning of right and wrong, and that you were unable to satisfactorily process and competently negotiate your legal matters.
24 He noted that you were enjoying life whilst in the Marlborough Unit, including the company of staff and other prisoners. You also enjoyed the activities including going to school and learning maths and reading and writing.
25
In addition to the reports of Mr McKinnon, I also take into account the material that was tendered by Mr Pearson, who appeared for you at the plea hearing, being the earlier psychiatric report of Associate Professor Davis dated
3 December 2010, and psychiatric report of Dr Lester Walton dated 12 May 2014.
26 Further, I have factored in the various reports from the Department of Human Services in 2014 and the Department of Health and Human Services in 2018. In view of your reduced moral culpability, I will make equivalent reductions in relation to the weight that I place on specific deterrence and general deterrence.
27 In sentencing you, I have also taken into account your background with which I am most familiar.
28 As I said when I sentenced you last time, you are the youngest of five children. Sadly, your father died in 1983 and your mother, who is your guiding force, died in 1999. You went to Ormond Special School and then Moorabbin Boys Special School. You developed epilepsy when you were 13 years old. However, your current medication has been effective, so you have not suffered seizures for many years now.
29 You have been employed as a school crossing supervisor for a period of about six years and you have also worked as a cook. However, more recently, you have been unemployed and in receipt of a disability support pension.
30 In the past, you have lived with your mother, who I understand did a great deal for you and you tolerated a great deal of rather poor behaviour by you. When she died, you lived with one of your brothers and then with your sister.
31 A salient aspect of your background is you have a sister who continues to provide you with moral support and kindness, despite your poor behaviour. She has done a great deal to help you in the past and she continues to be supportive of you and visits you in gaol, as well as having phone contact with you. You are very lucky to have her.
32 I am afraid that your prospects of rehabilitation are poor, and there is a danger that you will become institutionalised, if this has not happened already. You seem to prefer being in gaol than in the community, although Mr Pearson told me that you can become sick of either situation from time to time.
33 I allow for a significant discount in the sentence you would otherwise receive because of your early plea of guilty, which has saved the witnesses the time and trouble of giving evidence, and has saved the community the expense and time of contested proceedings. I am unable to find that you have any remorse or insight in relation to your offending, which is probably more to do with your intellectual capacity rather than anything else.
34 In all of the circumstances, I must place fairly strong weight on protection of the community. If not for your impaired mental function, I would have placed strong weight on specific deterrence and general deterrence. However, in view of the state of your mental health, I reduce the weight that would otherwise attach to these factors rather substantially.
35 It is indeed unfortunate that someone in your position is happier in gaol than in the community. It seems that there are simply insufficient resources in the community to provide appropriate support to you in the way that would see you sufficiently occupied and supervised, as well as in good company. I must say that I was disappointed to hear that the person supervising you from Community Corrections, and with whom you had a good rapport, was, in the words of the officer who appeared on behalf of Community Corrections at the plea hearing, was 'suddenly seconded' to another position, without any appropriate handover to a new case worker. It was after your case worker was seconded that you commenced to fail on the order and the context in which you committed the offence for which I now sentence you.
36 In any event, there were other supports in the community - in particular, supports provided via the justice plan, but unfortunately this was not enough to keep you in check.
37 I come now to the breach of the community corrections order that I previously imposed.
38 You fall to be resentenced in relation to the previous matters, namely two charges of attempted armed robbery and one charge of theft. The charge of theft has a maximum penalty of 10 years’ imprisonment, and as I have said, attempted armed robbery has a maximum penalty of 20 years' imprisonment.
39 In resentencing you, I take into account all of the circumstances of that offending and the extent to which you complied with the community corrections order that I had imposed. There was clear compliance with the order for the first couple of months, but things went downhill fairly quickly. You were absent from supervision from 27 November 2018 to 20 February 2019 on four occasions, and then you committed the offence for which I now resentence you. Therefore, your compliance was fairly limited.
40 In relation to those matters, I take into account all of the matters in mitigation which are pertinent – in particular, your early plea of guilty, Verdins considerations, and the background matters which I have also factored in for the purposes of the offence on the indictment now before me. I also take into account the prior convictions which you had at the time that I first sentenced you in respect of these offences.
41
Mr Pearson submitted that when resentencing you for the breach of community correction order offences, I ought be mindful of the fact that you had served
366 days in relation to the previous offending, which was the punishment side of things, and that the community correction order was therapeutic in nature rather than punitive. That is, it was there to try to help you behave yourself and engage in a positive way in the community rather than to punish you. Therefore, he argued that the time that you had already served in relation to the previous offending was a good starting point when it came to resentencing you. This submission has some force to it in my view.
42 As he submitted, totality is an important consideration in your case.
43 Mr McLeod, your case is a difficult one and a sad one, but having considered all relevant matters, I have arrived at a sentence which, in my view, does justice to all relevant sentencing principles. When you are released into the community, you will be supported by the NDIS, and hopefully, you will be released on parole so you will be supervised to some extent. I express the very strong hope that you are supported in the community in a strongly structured way that sees you being able to have the company of other people and to be involved in suitable activities so that you can live a good and happy life, without any wish to return to gaol ever again. Do you understand? All right.
Would you please stand up.
44
You are convicted of the offence of attempted armed robbery, which is the offence on the indictment, as well as the breaching offence in relation to the contravention of the CCO. I cancel the CCO that I previously imposed and set aside the sentence in relation to the two charges of attempted armed robbery and one charge of theft. You are convicted once again in relation to those offences. In relation to the offence of breach of the community corrections order, I find the charge proven but I make no further order. In relation to the two charges of attempted armed robbery and one charge of theft, I sentence you to 366 days’ imprisonment, but I declare that you have already served
366 days in relation to these matters.
45 You are convicted of the offence of attempted armed robbery on the indictment, and you are sentenced to two years’ imprisonment with a non-parole period of 12 months. I declare you have already served 165 days by way of pre-sentence detention. On my calculation, this means that you have about seven months in gaol before you are eligible for parole.
46 If not for your pleas of guilty, I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of two years.
47 Take a seat for a moment please, Mr McLeod. Is there anything arising from those matters?
48 MR BROWN: Not from me, Your Honour, no.
49
HER HONOUR: All right. Now, Mr Barratt, did you want to have a word with
Mr McLeod now?
50 MR BARRATT: Just to explain what has occurred, Your Honour.
51 HER HONOUR: If you want to or if you want to see him down in the cells, that is up to you.
52 MR BARRATT: I will go and see him downstairs, Your Honour.
53 HER HONOUR: All right.
54 MR BARRATT: So I am content to do the explanation there.
55
HER HONOUR: All right. Yes, thank you. Very well, yes, you can remove
Mr McLeod, thank you. Thanks, we will adjourn.
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