Director of Public Prosecutions v McLeod
[2015] VCC 1366
•1 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00098
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT McLEOD |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 March, 22 May, 14 July, 10 August, 17 August and 10 September 2015 | |
DATE OF SENTENCE: | 1 October 2015 | |
CASE MAY BE CITED AS: | DPP v McLeod | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1366 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Two charges of attempted armed robbery and breach of Community Correction Order (given for three charges of attempted armed robbery) – defendant has intellectual disability and schizophrenia – longstanding maladaptive behaviour focussed upon wanting food – breached earlier CCO within a short time in circumstances where community accommodation was unable to provide extent of supervision and support for defendant’s complex conditions. In addition to 200 days in custody for earlier offending, defendant had spent a further 338 days in custody at the Marlborough Unit at Port Phillip Prison – Verdins principles applicable but need to protect community – total effective sentence 35 months for all offences with NPP of 20 months – additional funding from DFATS and support services now available in the event that defendant is granted parole.
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L Stevenson | Office of Public Prosecutions |
| For the Accused | Ms J Hardy | James Dowsley & Associates |
| For the Department of Health and Human Services | Ms Casey |
HER HONOUR:
1 Robert McLeod, you have pleaded guilty to two charges of attempted armed robbery, each of which carries a maximum penalty of 20 years’ imprisonment. You have also pleaded guilty to one charge of breaching a Community Correction Order, which carries a maximum penalty of three months’ imprisonment.
2 The circumstances of your offending appear in the prosecution opening (Exhibit “A”). The dates of your offending were 27 and 28 October 2014. On each occasion, you attended a restaurant and ordered and ate a meal. You then picked up a knife from the table at which you had been sitting and approached the counter, holding the knife and demanding that the staff member behind the counter give you money. After your offending on 27 October 2014, police were called and they drove you home to Calabro House, where you were residing pursuant to a condition of a Community Correction Order made by me on 1 September 2014. You were not charged with an offence on that night. However, you committed an almost identical offence the following morning, and, then, you were taken into custody and interviewed by police and made full admissions to the offending. You were then remanded in custody where you have remained to the present time.
3 You are presently aged 44 years, having been born on 11 July 1971. You have admitted prior court appearances as follows. At Frankston Magistrates’ Court on 7 December 2011 you pleaded guilty to one charge of criminal damage and, without conviction, the matter was adjourned on your undertaking to be of good behaviour to 7 December 2012. On 28 November 2012, you again appeared at Frankston Magistrates’ Court and pleaded guilty to one charge of recklessly causing injury and one charge of throwing a missile. Without conviction, you were ordered to undertake a Community Correction Order for a period of 12 months, which order involved participation in a Justice Plan. On 1 September 2014, in the County Court at Melbourne you were convicted of three charges of attempted armed robbery. I sentenced you to undertake a Community Correction Order for 23 months. It is an aggravating feature of your offending that you breached such order within two months of it being given and that your new offending involved conduct of a very similar type to the three offences for which you were given such order.
4 The material placed before the court on the plea hearing was the same as that which had been tendered on your behalf on the earlier plea hearings which preceded my sentence given on 1 September 2014. This comprised a report of Associate Professor Robert Davis, Director, Centre for Developmental Disability Health Victoria dated 3 December 2010, two reports from your former case manager, Lynda Campbell, of Disability Client Services dated 4 March and 11 July 2014, and a report of Dr Lester Walton, psychiatrist, dated 12 May 2014 (Exhibit “3”). In addition, at this plea hearing there was a report from your current case manager, Brendan Coleman of Disability Client Services, dated 20 November 2014 (Exhibit “1”) and a report from Ms Conor Duggan, clinician, Forensic Assessment and Intervention Team and Disability Forensic Assessment & Treatment Service dated 18 November 2014. (Exhibit “2”)
5 You have been a client of Disability Client Services since approximately 2000, following the death of your mother. You suffer from an intellectual disability within the mildly intellectual disabled range and have been diagnosed with schizophrenia and been treated with antipsychotic medication by way of fortnightly Depo injections, as well as oral medication, for many years. Your background in this regard is set out in my sentencing remarks of 1 September 2014. I accepted, when sentencing you on that occasion, that there was a nexus between your schizophrenia and intellectual impairment and your offending, and that the emphasis upon both general and specific deterrence should be moderated in sentencing you. I also took into account that prison was likely to be more burdensome for you than for someone who did not have your disabilities.
6 At the plea hearing I heard oral evidence from your case manager, Brendan Coleman. He described how, after your release from custody on 1 September 2014, you initially seemed to be very settled at Calabro House, which has a total of five residents who have disabilities and forensic issues. Mr Coleman stated that there were fortnightly case management meetings whilst you resided there and he personally saw you at least once a week. He stated that activities were organised for you, which included going to a dance each week with residents from other Disability Services community homes and being taken out for an evening meal once a week. Attempts were made to have you engage with community programs such as a cooking course, but Mr Coleman said that you would change your mind regularly about whether you wanted to undertake such programs. He stated that your case presented some difficulty in that you were not the lowest functioning client, but to transition you into a mainstream program, such as one dealing with generic work skills, would have been extremely difficult. Moreover, you had indicated that you did not want to work but just wanted to have fun by doing such things as going out to eat, cooking, undertaking arts and crafts, and dancing and singing activities. He stated that initially you would participate in cooking meals at Calabro House but, as the weeks progressed, you had indicated that you did not want to cook but wanted someone to cook for you.
7 Just before you committed the offences on 27 and 28 October 2014, you had been referred to an Outreach mental health worker at NEMI, which is the central referral agency in the southern metropolitan region. Unfortunately, you did not get to meet your mental health worker before your re-offending, nor did you get to see your treating psychiatrist, Dr Cruck, although an appointment had been made.
8 Mr Coleman stated that you were taken to see a general practitioner in Ormond on a regular basis and that this practitioner supervised your antipsychotic medication. However, it was difficult to ascertain what you wanted to do by way of activities and generally you kept to yourself at Calabro House and did not mix with other residents. Mr Coleman said that you had never told him that you had any problems with other residents but you did not like having to clean your room or do other chores around Calabro House, which had been explained to you prior to your being released from custody to live there.
9 Mr Coleman stated that because you did not want to do these chores, you stated that you did not like the Calabro House staff who were requesting that you do them. He described you as engaging in increasingly challenging behaviours as the weeks at Calabro House went by, including refusing to sign the house logbook before you went out and when you returned, indicating where you were going. You also had said on one occasion to a staff member from Calabro House, who was accompanying you on an outing, “If I stepped out on the road and got hit you would lose your job”.
10 He stated that, on one occasion, you had taken off unannounced to spend time in Bendigo, where you were later found by police and returned to Calabro House. It was impressed upon you that it was crucial that your whereabouts be known, but you did not co-operate and increasingly laughed at staff who told you that you should do so. Mr Coleman stated that, although Calabro House had a staff member present 24 hours a day, as it was an unlocked facility, the staff had no power to prevent you going out and could not accompany you every time you went out, to ensure that you were going where you claimed to be going.
11 Mr Coleman stated that he visited you in custody at the Marlborough Unit at Port Phillip Prison in January 2015. A disability liaison officer at Port Phillip Prison, Mr Mark Stevenson, had reported to him that you had problems with incontinence at night and there had been an incident where you had broken a television and prison staff had struggled to understand why these behaviours were occurring. However, the co-ordinator of the Marlborough Unit, Ms Michelle Enbon, had stated that there had been some reduction in bedwetting and improvement in your personal hygiene by the time he visited you in January 2015. Moreover, you told him (and both Ms Enbon and Mr Stevenson reported) that you said that you liked prison because of the food and the activities there, such as gardening, and had made it clear that you did not wish to return to Calabro House.
12 At the hearing on 13 March 2015, I also heard oral evidence from your sister, Ms Susan Joy Black. She stated that you had had a long-term focus on eating and that your finances, which are managed by the State Trustees, were organised so that $20 would be paid into your bank account on Monday and $50 on Tuesday. However, you would automatically access the money using, your Keycard, and buy food immediately. She stated that she would take you out each Friday night for a meal and often see you during the week as well, but she found that you were increasingly spending a lot of time alone in your room listening to music.
13 She described you as being manipulative, in the sense that, once you had determined that you did not like something, you would do the wrong thing because you realised that this would bring about a change. She believed that this was why you offended again, because you had become bored since being at Calabro House. She expressed the view that, although she was supportive of you and, indeed, your brother (who was also in court) was also supportive, that your behaviour had always presented a difficult challenge.
14 She stated that she believed that you needed to be in a locked facility and would not be happy unless you were cooked for and had someone to do the housework, because that had always been your attitude. She considered that if you were returned to live in a community house like Calabro House, you would be likely to re-offend unless stricter measures were in place. She stated that in the past when you became tired of living at a community home run by the EW Tipping Association, you offended to bring about change. Also, when you tired of attending a day program at Blairlogie in Pearcedale, you damaged staff cars, knowing that that would ensure that you were banned from attending the program, which you no longer wished to do.
15 Your sister stated that in custody you seem happy and you talk to her regularly on the phone about the food you have eaten, entertainment that you have had, and some of the people in the Marlborough Unit.
16 Since the hearing of this plea first came before me on 13 March this year, there have been subsequent occasions where material has been tendered as part of an ongoing attempt by me to grapple with a difficult sentencing exercise. On 13 March 2015, I adjourned the matter so that a neuropsychological assessment could be conducted. Subsequently a report of Dr Ashkar, neuropsychologist, dated 20 May 2015 was tendered as Exhibit “E”. As with other material before the Court, the history taken by Dr Ashkar was that you had committed the offences because you were “bored”. He noted that you were friendly and appeared to enjoy social interaction and had a lot of energy with poor impulse control. He noted your speech was poorly articulated and difficult to understand at times. He also observed that, although you were able to follow simple instructions, complex material had be repeated and simplified and that you were easily distracted. Dr Ashkar stated that your basic literacy skills were limited in that you did not know all the letters of the alphabet, your writing in terms of ability to form letters and numbers was very poor and that, although you were able to perform basic addition and subtraction, you had difficulty with basic multiplication.
17 On formal assessment, Dr Ashkar found your overall level of intellectual functioning fell within the “extremely low” range at the 0.3 percentile and that your intelligence quotient ranged between 56 and 64, which is consistent with an intellectual disability or intellectual developmental disorder.
18 Dr Ashkar concluded that, based on adaptive behaviour functioning (as distinct from intellectual functioning), your limitations appeared most consistent with an intellectual disability of mild severity. Such a disability generally results in a person having trouble regulating his behaviour and emotions, particularly without structure and routine and during times of stress. Dr Ashkar said this is largely due to a limited capacity to engage in higher level thinking such as planning and organisation, problem solving, abstract reasoning, consequential thinking, self-monitoring, social understanding and judgment.
19 In his report, Dr Ashkar noted that you had responded well to the structure and routine of the Marlborough Unit at Port Philip Prison and would require a similar structure and support to manage your behaviour and minimise your risk of recidivism when you return to the community. He concluded: “He does not have the intellectual and/or cognitive resources to benefit from standard psychological treatment (and/or counselling) and management of his behaviour will require the strict and consistent use of behaviour modification techniques. His strong interest in football can be used to reward appropriate behaviour and discourage inappropriate behaviour as part of a tailored behaviour modification program. Management of his psychotic illness (and psychiatric health more generally) will also be important to support his rehabilitation and return to the community.”
20 In the light of Dr Ashkar’s remarks and indications that you were very settled and happy at Marlborough Unit, I became concerned about the risk of you becoming institutionalised should you remain too much longer within the Marlborough Unit. At the suggestion of your counsel, Ms Hardy, on 22 May 2015, I ordered pursuant to s82AA(2) that a pre-sentence report, statement and plan of available services be provided by the Secretary to the Department of Human Services in order to determine whether it was appropriate to make a Residential Treatment Order. This seemed to me to be the only alternative to having you imprisoned, given that the arrangements at Calabro House were such that there were no consequences that could be applied if you failed to obey house rules. Unfortunately, there was considerable delay in the report being supplied to the Court. Ultimately, a report dated 8 July 2015, authored by Ms Conor Duggan, clinician from the Disability Forensic Assessment and Treatment Service (“DFATS”) was produced on behalf of the Secretary to the Department of Health and Human Services and was co-signed by Gayani Maddumage, Senior Clinician, and Tiffany Carroll, General Manager at DFATS. This report was tendered as Exhibit “F” on 14 July 2015.
21 That report concluded that, although you currently assessed as moderate-high risk of violent offending based on psychometric testing, your “typical pattern of offending does not appear to pose a serious risk of physical or psychological harm to others.” The report stated that your offending was a maladaptive method of meeting your needs of boredom and loneliness, there had been no significant escalation in violence or aggressive behaviour and that you did not meet the criteria of being a “person who presents as a serious risk of violence to another person”.
22 The report also concluded that you did not meet the criteria for a Residential Treatment Order as “all less restrictive options had not been tried”. The report indicated a need for increased engagement in meaningful activities on a daily basis, structured family contact, employment and an assessment and intervention plan from BIST to assist staff to work effectively with you.
23 I was troubled by the report authored by Ms Duggan, particularly as it appeared to acknowledge that you had “a long history of non-compliant, oppositional and aggressive behaviours, which appear to be escalating in frequency”. I was also troubled by the conclusion that, as your pattern of offending had remained unchanged, it was “considered to be of low severity in terms of the risk of harm that he poses to victims”. Various recommendations about further structure and intervention were made in the report, however, multiple reports from your case manager, Mr Coleman, over the period of this protracted plea hearing had indicated that substantial planning had gone into your case management at Calabro House and the level of support given to you could not have been greater and that there was no community facility which would give greater support.
24 I sought the comments of Dr Ashkar on the report from Ms Duggan. A supplementary report from Dr Ashkar dated 30 July 2015 was tendered as Exhibit “G” at the hearing on 10 August 2015. Dr Ashkar queried the applicability of the violence risk assessment tool which had been used in Ms Duggan’s report, stating that its applicability to people with intellectual disabilities was not clear, as it was not developed with intellectually disabled offenders. Although he did not cavil with Ms Duggan’s assessment of your violence risk as being “moderate-high”, he queried whether that translated into not being a serious risk of violence to another person. He particularly highlighted that you have a heightened or higher than average risk of impulsive and poorly controlled behaviours (including violent behaviours) because of your intellectual disability, particularly during times of psychological stress. He concluded that “It appears patently obvious that Mr McLeod’s needs and behavioural difficulties far exceed the resources of his former residential facilities and that his previous supervision and support in these facilities has been manifestly inadequate for his needs. I can only reiterate that Mr McLeod has responded well to the structure and routine of the Marlborough Unit of the Port Philip Prison and will require a similar level of structure and support (in terms of supervision, instruction, responsibility and social activity) to effectively manage his behaviour and minimise his risk of recidivism when he returns to the community. Without this support it is more likely than not he will commit similar offences in the future.”
25 On 10 August 2015, the author of Exhibit “F”, Ms Conor Duggan, gave evidence before me. It became apparent that she was not registered as a psychologist but, rather, was undertaking a supervised internship under several senior psychologists. She personally had four clients, whom she sees weekly for one hour each. She stated that her conclusion that you did not represent a serious risk of violence to others was based on the fact that your criminal history for violent offending was relatively short and she did not consider it serious or life-threatening to victims. Ms Duggan appeared unaware of a number of incidents of manipulative behaviour engaged in by you where you sought to extricate yourself from situations or programs which you did not like. She agreed with Dr Ashkar’s view that without structure and support you would be likely to reoffend and particularly if you were put in a similar community facility again like Calabro House. She said it was a presumption on her part that Calabro House was limited in resources and she expressed the view that she thought that the staff at Calabro House were not trained sufficiently to deal with you and that a BIST program could help. I expressed my concern about Ms Duggan’s relative lack of experience and requested that her report be reviewed.
26 Subsequently, at a Court hearing on 17 August 2015, a supplementary report authored by Ms Gayani Maddumage, Senior Clinician at DFATS, dated 12 August 2015, was tendered as Exhibit “H”. The report was authorised by Ms Tiffany Carroll, General Manager of DFATS. Both these persons had been signatories to Ms Duggan’s report, Exhibit “F”. The report declined to alter the view expressed in Exhibit “F” that you were unsuitable for the DFATS residential treatment facility and reiterated criticisms of the support and supervision at Calabro House and the earlier recommendations which had been in Exhibit “F”. It expressed the view that you had responded well to the structure at Marlborough Unit at Port Phillip Prison and that these could be replicated in the community. It recommended that you would benefit from accessing a number of the services provided by DFATS as a community client but not as a residential client and DFATS was prepared to provide a consultancy role to help develop an incentives-based behaviour support model for you.
27 On 17 August 2015, a further hearing took place before me at which Ms Gayani Maddumage gave evidence. She stated that the DFATS facility at Fairfield has two operational units called Waratah and Yarra which house approximately 20 residents. She stated that a number of those residents have quite complex issues and intent to harm others and they could potentially be adverse role models for you. She stated that there was a third unit at Fairfield, known as the Blackwood Unit, which had not been operational since December 2013 and she was unable to say why. Another unit operated by DFATS in Bundoora known as Kookaburra House was less restrictive and was designed for people who were in the latter part of their treatment at DFATS, but it, also, was not operational at the present time, there were no staff there and she was unable to say why it was not operational.
28 Ms Maddumage was critical that there appeared to be substantial periods of time at Calabro House during which you had not been occupied. She considered that there were more supports which could be put in place which involved staff training and greater supervision, but she stated that she was not aware of any of any one-to-one funding that might be available for such purpose. She stated that she did not believe that she could ever discount that you may become physically violent. She agreed that the fact that DFATS had categorised your forms of offending as “maladaptive behaviour” would not mitigate the fear and psychological harm that any victim of your behaviour might suffer. She had not liaised with staff at Calabro House in order to ascertain the extent of planning and organisation that took place prior to your earlier reception there after I sentenced you on 1 September last year. Indeed, she had made her assessment without ever having met you or your family or any staff at Calabro House.
29 Subsequent to the hearing on 17 August 2015, your case manager with Disability Client Services, Mr Brendon Coleman, filed an addendum report dated 10 September 2015 (Exhibit “J”). This report revealed that subsequent to the last hearing, the Australian Community Service Organisation (‘ACSO”), which runs Calabro House, had indicated that it would have a vacancy available and would be willing have you return to reside there. If this occurred, it was proposed that ACSO would apply to VCAT for a Supervised Treatment Order under the Disability Act 2006 and, to this end, the Department of Health and Human Services had engaged Ms Vicki Quinton, clinical psychologist, for the purposes of undertaking a risk assessment of you.
30 The report also revealed that DFATS had indicated that you would be eligible for its social problem solving and offence-related thinking program, which consists of 15 interactive sessions, each lasting approximately two hours. Also, DFATS had indicated that it could include you in its social skills group, which would commence early next year and DFATS was prepared to provide a consultancy role to support your care team.
31 Further, since the last hearing, the Department of Health and Human Services had committed to providing you with up to eight hours of funded individual support, seven days per week, after your release from prison for a period of up to three months. This would enable ACSO to provide you with your own one-to-one outreach staff so that you could engage in a wide range of activities in the community. Following the three month period, your progress would be reviewed to determine your need for further support needs and funding required for them.
32 Today, a report from Vicki Quinton, clinical psychologist, dated 31 August 2015 has been tendered as Exhibit “K”. Much of the history detailed in this lengthy report has appeared in several of the other reports which have been tendered either at the earlier plea hearing prior to my sentence on 1 September 2014, or on the many dates of the protracted plea hearing for the matters for which I must now sentence you. In essence, Ms Quinton notes that you have diagnoses of an intellectual disability in the mild range with associated impulse control problems, epilepsy and paranoid schizophrenia and that your current medications are Zuclopenthixol depot injection 150mg fortnight, Epilem 500mg twice daily, Ostelin 100iu morning, Quetiapine XR 50mg twice daily, fish oil tab daily, Panadol 1g twice daily when required and Lactulose 20ml twice daily when required.
33 Ms Quinton detailed your history of indulgent behaviour by your long suffering mother and your increasingly demanding behaviour when you did not get sufficient of her attention or what you wanted. She noted that the loss of your mother had resulted in substantial destabilisation of your mental state flowing from the loss of structure and predictability of the life with your mother. She considered that your offending and behavioural problems are strongly associated with the difficulty you have had adjusting to the loss of your mother and your resulting high levels of anxiety.
34 Her thesis is that these levels of anxiety and emotional loneliness associated with mental illness and a lack of predictability about what would happen next had led to a compulsive obsession with food or comfort eating. She noted a history of behaviour reflecting an increasing degree of entitlement with ordering meals and expecting your sister to pay for them, and your behaviour becoming more intimidating when you were asked for money to pay for your food, resulting in staff calling police. She also noted that you enjoyed engagement with people including waiting patiently in order to engage with police.
35 She acknowledged that your large build and habit of staring intently at people could be very intimidating. Your loneliness, limited means of expression (indistinct speech) and limited coping skills had led to your expressing dissatisfaction through maladaptive actions which were then reinforced by secondary gains. She noted Dr Lester Walton’s assessment in May 2014 that your dual disabilities of intellectual disability and schizophrenia had directly contributed to your offending. She considered that long periods without meaningful activities in Calabro House (up to eight hours a day of unstructured time) had increased your anxiety, loneliness and boredom and led to your offending. She stated that it appeared that a combination of delay in referral to various organisations for support and activities had led to you having limited structure, such that you then took things into your own hands.
36 She hypothesised that the things which are important to you, such as contact and connection with family, predictable food availability and engagement with others, were not readily apparent to you and you then developed a compulsive desire to comfort eat and to offend. She considered that these situational triggers were poorly understood by the staff supporting you in your community housing.
37 She went on to state that, whilst there had initially been problems at the Marlborough Unit of Port Phillip Prison which involved you breaking into the kitchen to obtain further food or intimidating other prisoners to obtain their food, you had gradually become used to a consistent routine and knowledge of when your food would be available and learned to queue and wait your turn and had responded well to the boundaries of a consistent routine.
38 However, she acknowledged that you had limited insight into the factors and processes which led to your offending and limited understanding of the consequences of your behaviour on others. She considered that you were at moderate risk of engaging in further violent offending, but had shown a positive trend towards increased compliance with supervision and direction whilst in custody. She expressed the view that it was important for you to have structured activities and recommended that two support staff needed to be recruited to provide you with roles which were currently performed by mentors in custody. She suggested that those support staff needed to be matched with your love of football and other sporting activities and be appreciative of your needs about wanting to interact with others. She considered that having staff available to assist you to manage the transition into the community would be crucial for your success and that it was important to have a consistent care team which understood your needs.
39 The final document tendered in this long-running plea was an up to date report from your case manager from Disability Client Services, Mr Brendon Coleman, dated 28 September 2015 (Exhibit “L”). Essentially, Mr Coleman acknowledges a number of recommendations in Ms Quinton’s report and has indicated a willingness to endeavour to provide you with a structured, supervised and supported living environment upon your release from custody. He acknowledges the benefit of you being funded with a one-to-one support worker and has gone to a deal of trouble to identify a range of community and occupational therapy services in various areas of Melbourne which may help structure your day and overcome your problem with boredom and loneliness. Mr Coleman made it plain that ACSO had indicated that ideally a transition period of a minimum of four weeks’ duration would be needed to transition you from custody to Calabro House and it was imperative that the ACSO staff recruited to support you meet you at the Marlborough Unit prior to your release form custody. He indicated that you will have a structured care team who would meet on a regular basis and this would include members of your family.
40 Mr McLeod, it will be apparent to you and to all who have been involved in this very protracted plea hearing now spread over some seven months, that this is a very difficult sentencing exercise. You are a person who unhappily has significant problems by way of a dual disability in terms of schizophrenic illness and intellectual impairment. I find it frustrating and indeed shameful that our society can do no better than providing a place in a prison for someone like you. It has been a painful process involving prodding and questioning by myself as to what services might be made available before finally arriving at this point.
41 I am critical that as a long-term client of Disability Services, it has taken further offending before any seriously comprehensive assessment of your mental processes and needs by way of support have taken place. There has been a huge amount of Court time and other resources consumed in trying to ascertain how you should be best supported in order to prevent you reoffending, which is something which should have been looked at a very long time ago and, had this occurred, your further contact with the criminal justice system may well have been prevented.
42 It is of some comfort that the Department of Human Services, finally, has provided extra funding to give you some further support. However, whilst I acknowledge that the principles of Verdins apply to reduce your moral culpability and the need for general and specific deterrence and denunciation of your conduct, I must also be mindful of the need to safeguard members of the community. There are now five people in our community who have been subjected to frightening experiences of you making demands whilst holding a knife.
43 When occupied and engaged in ways that suit you, you appear to be something of an amiable and gentle giant. However, you have shown a capacity to be manipulative when things do not go your way. When stressed, you become agitated and, given your large build and focussed stare which can become intimidating, it would only take one of your victims to react in a particular way and that may further increase your agitation, resulting in someone being harmed.
44 It is all very well to say that, since you have been in custody at the Marlborough Unit for the last 11 months, your behaviour has settled and you have responded well to a structured routine. However, the fact of the matter is that a prison environment is a place where there are sanctions if you do not comply. Whilst Calabro House is prepared to have you reside back there with the increased supports offered by the Department of Human Services, the staff at Calabro House have no ability to control your behaviour or prevent you leaving the house if you choose to disobey directions.
45 I am also concerned that in the light of the amount of time that you have spent in custody, both before my sentence last year on 1 September 2014 and, also, in the last 11 months, that you are at risk of becoming institutionalised. This is not in your interests or in the interests of the community. It is important that you be given maximum support to try to manage your life in the community. However, balancing all of the many and complex factors involved in your case, I have decided that I simply cannot take the risk of ordering another Justice Plan incorporated into a Community Correction Order. I consider that it is necessary that you have the sanction of a parole order hanging over your head. In this way, if you are released from custody to Calabro House and then begin to act up, you will know that you will be returned to custody. While I have compassion for your needs, I must also protect the community and, hence, although I consider it undesirable, having carefully examined your situation and the options available over a very long time, I consider that, unhappily, the only appropriate sentence is a term of imprisonment.
46 I impose a non-parole period in the hope that you will be given parole and that you will be given an opportunity to reside at Calabro House , which you now wish to try again. Ultimately, whether that occurs must be for the Parole Board, rather than me.
47 I find the contravention of the Community Correction Order made by me on 1 September 2014 proven. The maximum penalty for this offence pursuant to s83AD of the Sentencing Act is three months' imprisonment. Given the sentences which I intend to impose hereafter, I do not find it appropriate to impose any penalty in relation to the offence of contravention itself. Accordingly on that charge you are convicted and discharged.
48 Pursuant to s83AS(1)(c) I cancel the Community Correction Order made by me on 1 September 2014 and propose to deal with you for the three offences of attempted armed robbery as though you had just been found guilty of those offences. Each of those offences carries a maximum penalty of 20 years' imprisonment. The sentences which I impose take into account the application of the principles in Verdins case as well as the considerable delay which has taken place in sentencing you.
49 In relation to Case No CR-14-00797 involving Indictment No C1409617, you are sentenced as follows:
50 On Charge 1, the offence of attempted armed robbery committed on 21 January 2014 , you are convicted and sentenced to be imprisoned for a period of 10 months.
51 On Charge 2, the offence of attempted armed robbery committed on 24 January 2014, you are convicted and sentenced to be imprisoned for a period of 10 months.
52 On Charge 3, the offence of attempted armed robbery committed on 30 March 2014, you are convicted and sentenced to be imprisoned for a period of 10 months.
53 I direct that the sentence imposed on Charge 1 is the base sentence of 10 months. I direct that five months of the sentence imposed on Charge 2 and five months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1 and upon each other.
54 The total effective sentence for these charges is thus 20 months' imprisonment.
55 Prior to imposing the Community Correction Order on 1 September 2014, I took into account that you had already served 199 days in custody up to 31 August 2014. As that Community Correction Order has been cancelled, it is appropriate to take into account and reckon as already served those 199 days in custody, together with one further day. That day is 1 September 2014, upon which you were in custody for a substantial period before you ultimately were released. Thus, I formally declare a total of 200 days pre-sentence detention to be reckoned as time served under this sentence.
56 At the time of imposing my previous sentence on 1 September 2014 in Case No CR-14-00797, I stated pursuant to s6AAA of the Sentencing Act that, had it not been for your pleas of guilty, the total effective sentence in relation to those three charges of attempted armed robbery would have been four years' imprisonment with a non-parole period of three years. I restate that declaration in the same terms.
57 In relation to Case No CR-15-00098 involving Indictment No E13585774, you are sentenced as follows:
58 On Charge 1, the offence of attempted armed robbery committed on 27 October 2014, you are convicted and sentenced to 10 months' imprisonment.
59 On Charge 2, the offence of attempted armed robbery committed on 28 October 2014, you are convicted and sentenced to 10 months' imprisonment.
60 The sentence imposed on Charge 1 is the base sentence of 10 months' imprisonment. I direct that five months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.
61 Thus, the total effective sentence for these offences is 15 months' imprisonment.
62 Since being remanded in custody for the offences committed in October 2014, you have served a further 338 days in custody. It is appropriate to reckon this further period of pre-sentence detention as time already served under the sentence imposed for your offending on 27 and 28 October 2014.
63 In relation to the sentences imposed on the two charges of attempted armed robbery in Case No CR-15-00098 involving Indictment No E13585774, I state pursuant to s6AAA of the Sentencing Act that, had it not been for your pleas of guilty, the total effective sentence imposed for those two charges would have been two years and six months with a non-parole period of one year and nine months.
64 I direct that the sentence of 15 months' imprisonment imposed in relation to the offences comprising Case No CR-15-00098 involving Indictment No E13585774 be served cumulatively upon the sentence of 20 months' imprisonment imposed for the offences comprising Case No CR-14-00797 involving Indictment No 1408617
65 Thus, the total of the two sentences imposed this day is 35 months' (or two years and 11 months) imprisonment.
66 I set a single non-parole period relating to both sentences of 20 months. The total of the two periods of pre-sentence detention reckoned as time served is 538 days.
67 Mr McLeod, as I have said, it will be up to the Parole Board as to whether you are granted parole and, if so, when that will occur. If it is granted at the earliest possible time you should have slightly more than two months and less than three months to serve in custody and that will give ACSO and all involved in trying to support you upon your release time to put in place the best structures and programs for you.
68 I wish you well and hope that the supports which ACSO can put in place with the extra funding from the Department of Human Services might assist the parole process.
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