Director of Public Prosecutions v McLeod
[2018] VCC 1583
•26 September 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 18-00498
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT McLEOD |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 and 24 July 2018 respectively |
| DATE OF SENTENCE: | 26 September 2018 |
| CASE MAY BE CITED AS: | DPP v McLeod |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1583 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Attempted armed robbery – Theft – Relevant criminal history – Deliberative behaviour – Congenital intellectual disability – Schizophrenia – Impairment of mental functioning linked to offending
Sentence:Convicted and sentenced to 366 days’ imprisonment together with Community Corrections Order of 3 years’ duration with Justice Plan attached – 366 days pre-sentence detention declared as already having been served – Ancillary order – Forfeiture order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Cookson | Solicitor for Public Prosecutions |
| For the Accused | Mr C. Pearson | James Dowsley & Associates |
HER HONOUR:
1 Robert McLeod, you have pleaded guilty to two charges of attempted armed robbery. This offence has a maximum penalty of 20 years’ imprisonment. You have also pleaded guilty to one charge of theft, which has a maximum penalty of 10 years’ imprisonment.
2 I must take into account the maximum penalties when sentencing you, as these reflect the seriousness with which Parliament regards each of the offences.
3 I was told by the prosecutor at the plea hearing that you were 46 years old at the time that you committed the offences, and lived in a house in Noble Park in supported accommodation which was managed by Australian Community Support Organisation.
4 You knew the first victim in this matter, as you were a regular customer at the Caltex service station where he was employed. However, you did not know the second victim, who was working at a local bottle-shop.
5 On 25 September 2017, at about 2pm, you went to the local Caltex service station shop. You were carrying a silver dessert spoon. You approached the counter and said to the first victim, “This is a robbery, give me some money,” while pointing the spoon towards the victim’s face. You made the demand three or four times. The first victim initially thought that you were joking, but you then pointed the handle of the spoon at his face, at which point he realised that you were serious. This is the basis for Charge 1, attempted armed robbery.
6 You then walked towards the exit of the service station shop and, on your way out, you took three Crunchie chocolate bars. This is the basis for Charge 2, theft.
7 You then returned to your home and ate the stolen Crunchie bars in your room.
8 You then approached and spoke with your forensic residential worker. You were holding the empty Crunchie wrappers, and said “I pinched them”, referring to the Crunchie bars, and then added, “I also demanded money from them.”
9 Your residential care worker went to her office and tried to call her team leader. As she was making the call, you walked past her and said “I’m going to the shops again.” Your residential care worker replied, “Where are you going? What are you going to do?” You replied, “I’m going to rob them.” At that point, your residential care worker called triple zero.
10 You walked to a nearby shopping strip, again carrying the silver dessert spoon. You went to the Bottle Mart liquor shop and threatened the second victim, who was working behind the counter. You held up the spoon so that the handle of it was displayed. The second victim believed that the spoon was a knife. After producing this, you said “Open the till, give me money,” two or three times. The second victim was afraid, and remained still and silent. Your actions were observed by another customer who was inside the shop. The facts that I have just referred to are the basis for Charge 3, attempted armed robbery.
11 When the second victim failed to respond to your demands, you began to knock items from the counter to the ground. You then approached the customer to whom I have just referred, who was standing nearby. You walked towards the customer without saying anything, but he could hear you breathing heavily, and told you to calm down, before walking out of the store. The second victim activated the duress alarm before also leaving. You stayed inside the shop for a few minutes, pacing around the store, and ultimately left the shop without taking anything. You returned to your residential facility at about 2.30pm, carrying the spoon in your hand when you returned. You sat in the lounge area, and told your care worker that you had obtained the spoon from a newsagent’s. You asked if the police were coming.
12 Both of the incidents were captured by CCTV footage, and show that on each occasion you made no attempt to hide your appearance.
13 At about 3.15pm you were arrested at the residential care facility, and you were subsequently interviewed in the presence of an independent third person.
14 You told police that you had obtained the spoon from a drawer in the kitchen of the residential facility, and that you had obtained the spoon in order to rob the petrol station and the bottle shop. You made full admissions in relation to the offending at the service station and the bottle shop. You said you did not know why you committed the offences, but later said that you had committed them because you were bored.
15 You were remanded in custody on 25 September 2017 and have remained in custody since that time. You did make a bail application on 31 January this year, but it was refused.
16 Mr McLeod, the offences you have committed are very serious, and you must be punished in such a way that is fair in all of the circumstances of your particular case. Also your offending must be denounced.
17 You have committed offences of this nature in the past, which is of great concern. You have prior findings of guilt or convictions as follows:
18 On 7 December 2011 in the Frankston Magistrates’ Court, you were dealt with for six charges of criminal damage, and received an order without conviction for the matter to be adjourned for 12 months.
19 On 28 November 2012 in the Frankston Magistrates’ Court, you were dealt with for recklessly causing injury and throwing a missile to injure or damage, and without conviction you were placed on a 12‑month community corrections order. There were treatment and rehabilitation conditions attached, including a 12‑month justice plan.
20 On 1 September 2014 in this court, you were dealt with by her Honour Judge Hogan for three charges of attempted armed robbery. You were convicted and placed on a community corrections order for 23 months with conditions involving supervision, assessment and treatment for programs for violence intervention, judicial monitoring, and a justice plan which involved you being required to live at Calabro House and to comply with the various requirements of the justice plan.
21 On 1 October 2015 you were dealt with for two further attempted armed robberies and contravention of the community corrections order previously imposed by her Honour. You were sentenced to a total effective sentence of 35 months’ imprisonment with a non-parole period of 20 months’ imprisonment (with 538 days being declared as having already been served).
22 Most concerningly, the offending which gave rise to the attempted armed robberies which her Honour dealt with involved offending which was of a fairly similar nature on each of the occasions that her Honour sentenced you. On each of the occasions before her Honour you committed attempted armed robberies at various restaurants, sometimes having ordered a meal, but then threatening staff with knives and demanding money. While your offending in some ways has been rather pathetic, it is also very frightening for the people who you threatened – at the very least, you are a nuisance, and at the very most, you are someone who behaves in a very frightening way toward people who are doing nothing more than trying to do their job. Do you understand that?
23 OFFENDER: Yes.
24 HER HONOUR: While it might be the case that your motivation for committing the offences for which I now sentence you was not money, greed, or drugs, that is no comfort to the victims who you have affected. It may be that you are bored, and it may be that you like the prison environment, where you have been rather popular, but this is no excuse for what you have done.
25 In your favour, however, you pleaded guilty at the first available opportunity, which means that you receive a significant discount in the sentence that you would otherwise receive. In taking this course you have saved the witnesses, especially the victims, the time and trouble of giving evidence, and you have saved the community the time and expense of contested proceedings. However, I am not convinced that you are genuinely remorseful or fully remorseful: that is, that you are sorry for what you have done. I say this because you have behaved in a most deliberate manner on the two occasions for which I now sentence you, against a background of having committed offences of a fairly similar nature in the not too distant past. However, I accept that your level of intellectual functioning has a good deal to do with your offending conduct.
26 I take into account your background: you are 47 years old. You were the youngest of five children. Sadly, your father died in 1983, and your mother, who was your guiding force, died in 1999. You went to Ormond Special School and then Moorabbin West Special School. You developed epilepsy when you were about 13 years old; however, your current medication has been effective, so you have not suffered seizures for a long time now.
27 The material presented to me shows that you have been diagnosed with schizophrenia and also have a congenital intellectual disability of moderate severity.
28 You have been employed as a school-crossing supervisor for a period of about six years, and have also worked as a cook. However, more recently you have been unemployed and in receipt of a disability support pension.
29 In the past you lived with your mother, who, I understand, did a great deal for you, and who put up with a great deal from you. When she died, you lived with one of your brothers and then with your sister. Most recently you have been in accommodation through Disability Services when you have not been in jail.
30 You have solid ongoing support from your sister, Sue Black, who gave evidence at the plea hearing. She was very honest in her evidence about your behaviour, and expressed concern that you appeared to be getting worse. Your barrister referred to your sister as being long-suffering, and I must say that this seems to be a most accurate description.
31 Ms Black gave evidence that she was very close to you, and had always been there for you, and had tried to help you. She said when she discussed with you your offending in recent times, you told her that you committed the offences because you were bored. She also said that you did these sorts of things to get attention.
32 She said that you have rung her on multiple occasions while you have been in jail, but she had only visited you once in jail on this occasion, because she had warned you that she would not see you if you committed offences again. When she has visited you sometimes, you have treated her quite poorly. She said that you quite enjoy being in jail. She said that you have always been obsessed with food, and that since being in jail you had lost some weight. Ms Black said that you seemed to cope well in jail, as you had a good deal of company and were accepting of the discipline, in contrast to times when you were in the community.
33 She said that when you were released from jail in March 2017 you lived at the residential facility in Noble Park, and she visited you every week and took you out for a meal, or you would go to her place for dinner. She said that whilst living at the facility you just sat in your room and watched TV, but had little else to do. However, she said that you appeared to get on well with the other residents. She said that you were not too happy there, and sometimes said that you wished to leave.
34 Ms Black said that when you are released from jail she will continue to take you out for meals and take you to Bendigo to visit one of your brothers. She said that you have a good relationship with one of your brothers; however, the others do not have a lot to do with you because of your offending. Ms Black said that the only brother who would support you in the future was the one who lived in Phillip Island. She said that your mother did everything to support and protect you.
35 When cross-examined by Mr Cookson for the prosecution, Ms Black said that in the past, if you had been told to do something at the residential facility that you did not wish to do, you would destroy things around the house, and that it was very hard to stop you from doing what you wanted to do. She said that when in prison you are the centre of attention, and that it was a shame that you did not have the companionship and attention in the community that you had when you were in jail.
36 Mr Cookson took your sister to various things she had said at the plea hearing before Judge Hogan in 2015, in respect of you being manipulative and the likelihood of you reoffending if not in a locked facility, and she agreed with what she had said then as still being the case. However, she said that each time that they warned you that if you kept offending you would return to jail, you said that you knew this and would not commit offences again. She said that only time would tell as to whether you would really change your behaviour. She said that you needed to be occupied by being involved in a program on a daily basis so that you had something to keep you occupied.
37 Having read the reports of Dr Lester Walton and Associate Professor Robert Davis, I accept that you have an impairment of mental function which is linked with your offending so as to impair your ability to make calm and rational decisions and to properly appreciate the consequences of your actions. Therefore, your moral culpability is somewhat reduced, as is the weight that I would otherwise attach to specific and general deterrence. If not for your impairment of mental function, I would have attached fairly strong weight to specific deterrence, and very strong weight to general deterrence in a bid to deter others from behaving as you have. However, because of your impairment of mental function, I reduce the weight that attaches to specific deterrence to a fairly significant extent, and I make a similar allowance in relation to general deterrence.
38 On the other hand, I must be concerned for the protection of the community and give strong weight to that consideration.
39 I have considered the evidence of Mr Cyriac from the Disability and NDIS Branch of the Department of Health and Human Services, and I have also considered the reports from DHHS and the pre-sentence report dated 8 August 2014, albeit that these reports are somewhat dated.
40 I adjourned the matter for a short time in order to consider what would be the best way to proceed, and adjourned the matter further so that I could have you assessed for a community corrections order with a justice plan attached.
41 I must say that I am very concerned about the risk of future offending in your case, as I regard your prospects of rehabilitation as being fairly poor. The problem is that you appear to offend in order to entertain yourself, get attention, and also because you seem to prefer life in jail to life in the community. It appears that the problem has been that you have lacked the structure and a level of company and attention when in the community, as compared with jail. I understand that you are a fan of the Carlton Football Club, and you are keen to follow them and perhaps attend training sessions and the like if permitted to do so. This might be one aspect that can be pursued in occupying your days and encouraging you to behave yourself. And I must say to encourage Carlton to behave better.
42 I have now received a report from Community Corrections and from the Department of Health and Human services dated 21 September, with a justice plan annexed. The report from DHHS was most informative and helpful-it indicates that you have complex needs and that the authors of the report have done their utmost to put supports in place to enable you to transition into the community and receive appropriate supervision and supports. I am most grateful for the hard work and conscientious attention that has been given to your case by all the people involved and a number of them are in court today.
43 In further evidence given by Mr Wybrough today, he expanded upon the measures that have been and would be put in place in your case and he also gave evidence in relation to what would be the level of supervision on a weekly basis. Also, I viewed a draft time table in relation to the proposed daily activities which will be offered to you and the level of supervision which would go along with these and I have also - I also understand that your sister will be seeing each Saturday to take you out for lunch. Over and above this, there is evidence of more supervision of you than has previously been offered to you whilst you were living in supported accommodation on the previous occasion.
44 I am of the opinion that it is in the interests of the community that you are released into it with appropriate supervision and structure so as to ensure, as best one can, that you do not commit any further offences. If you keep committing offences, Mr McLeod, your sister just might decide that she has had enough and will not continue to see you, which would be a very sad situation for you and for her. Do you understand that?
45 OFFENDER: Yes.
46 HER HONOUR: I cannot warehouse you in a jail, and, in view of your impairment of mental function, I do not consider that it is appropriate to do so, in any event. However, if you continue to offend when you are released, in all likelihood, I may have no option but to send you back to gaol in order to protect the community.
47 I am also very grateful for the most helpful report from Community Corrections. Although judicial monitoring is suggested, I have reached the view that there will be sufficient supervision of you without me monitoring you, and I must say I am concerned that, to impose that further condition might well be counterproductive in overloading you.
48 Would you please stand up?
49 You are convicted of the offences.
50 I intend to sentence you to a term of imprisonment to reflect the time you have already served and in addition I intend to place you on a CCO with a justice plan attached.
51 I can only place you on a justice plan if you agree to do so please listen carefully to what I have to say:
52 The community corrections order would run for a period of 3 years.
53The conditions of the community corrections order would be:
54Firstly, the mandatory terms that apply to all Community Correction Orders, which are:
55You must not commit another offence for which you could be imprisoned during the time that the order is in force;
56You must comply with any obligation or requirement prescribed under the Sentencing Regulations 2011;
57You must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);
58You must report to the Dandenong Community Corrections Centre before 4 pm within two clear working days of today.
59You must let a community corrections officer know within two clear working days of you changing your address or job;
60You must not leave Victoria without first obtaining permission to do so from the Secretary to the DOJ (or his/her delegate);
61You must obey all lawful instructions from and directions of the Secretary to the DOJ (or his/her delegate).
62The conditions that apply in addition to the mandatory terms listed are:-
Supervision
63You must be under the supervision of a Community Corrections Officer for a period of 3 years from today.
64You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility if necessary, as directed by the Regional Manager.
65In relation to the condition in respect of supervision and in respect of mental health, I make it clear that community corrections are to closely liaise with DHHS, and it may be appropriate for DHHS to administer the supervision for as long as they are able in relation to the mental health conditions.
66It is a further condition of this community corrections order that for the next two years you engage in the Justice plan dated 28 September 2018, which requires you to engage with a Disability Justice Co-ordinator from the South Division of the Department of Health and Human Services and that you agree to any supports and treatment that are identified by this person. Also, that you agree to any forensic disability supports and treatment that are identified by the Disability Justice Co-ordinator.
67If you wish to vary any of the conditions of the order, then you must apply to the Court to do so.
68Do you consent to the terms and conditions of the order?
69OFFENDER: Yes.
70HER HONOUR: I should tell you that if you do not comply with all of the requirements of this community corrections order then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges-in which case you may well be sentenced to a period of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
71Do you understand this? Do you maintain your consent to the order?
72OFFENDER: Yes. Yes.
73HER HONOUR: I just want to confirm with counsel, is it 366 days?
74MR COOKSON: Yes, Your Honour.
75MR PEARSON: Yes, Your Honour, that's agreed.
76HER HONOUR: Yes, thank you.
77In relation to the offences, I impose, in combination with the community corrections order to which you have just consented, I impose an aggregate term of imprisonment of 366 days.
78And I declare that that 366 days has already been served.
79So, therefore, in relation to the charges on the indictment you are convicted and sentenced to 366 days imprisonment and to a community corrections order in the terms that I have just set out.
80Further, I impose the forfeiture order which has been applied for by the Crown and is not opposed by you.
81If not for your pleas of guilty, I would have sentenced you to a total effective sentence of three years' imprisonment with a non-parole period of two years.
82Could you take a seat for a moment please?
83MR COOKSON: As Your Honour pleases.
84MR PEARSON: Your Honour pleases.
85HER HONOUR: Mr Pearson ‑ ‑ ‑
86MR PEARSON: Yes.
87HER HONOUR: ‑ ‑ ‑ I'll ask that you help your client with the signing of that order please.
88MR PEARSON: I'll do that, Your Honour, yes.
89HER HONOUR: You need to explain it to him obviously and ‑ ‑ ‑
90MR PEARSON: I'll do that, yes.
91HER HONOUR: ‑ ‑ ‑ get him to sign that please.
92MR PEARSON: (Indistinct words) certainly assist him, Your Honour. Thank you.
93HER HONOUR: It may be that because of your client's difficulties, he might not be able to read that document too readily, so you might need to explain that.
94MR PEARSON: No. I'll certainly explain it to him, Your Honour. I'll make sure that
Mr Wybrough gets a copy of it as well, Your Honour, so that - but I'll go through it with Robert in any event.95HER HONOUR: Well, I need you to do that just while I'm on the Bench ‑ ‑ ‑
96MR PEARSON: Yes.
97HER HONOUR: ‑ ‑ ‑ so he can - Mr Wybrough can approach the dock as well if needs be. But just to explain what the order involves because I'm not sure of his reading ability.
98MR PEARSON: Yes. Yes, thank you, Your Honour. So, Mr McLeod has signed that order.
99HER HONOUR: Thank you.
100MR PEARSON: Your Honour, may have heard some of that exchange. I think he understands the terms of that order ‑ ‑ ‑
101HER HONOUR: Thank you.
102MR PEARSON: ‑ ‑ ‑ but we'll make sure we go through it again with him.
103HER HONOUR: Yes, thank you. All right, I've signed that order. He'll have to be processed downstairs before being released obviously. So, he'll be in custody but released at some stage today and no doubt those supports will be put in place. Thank you for your assistance counsel.
104MR COOKSON: Thank you, Your Honour.
105HER HONOUR: All right, we'll now adjourn or stand down for the next matter.
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