Director of Public Prosecutions v Merrigan

[2019] VCC 967

Article I.     

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-19-00153
CR-19-00732

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW MERRIGAN

AND

MICHAEL ROBB

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	25 June 2019
CASE MAY BE CITED AS:	DPP v Merrigan & Anor
MEDIUM NEUTRAL CITATION:	[2019] VCC 967

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Goetz
For Accused Merrigan For Accused Robb	Mr K. McLaughlin Ms S Thirlwall

HIS HONOUR:

1.Matthew Carl Merrigan, you have pleaded guilty to one charge of attempted armed robbery, contrary to s.75A and 321M of the Crimes Act [1958] and one charge of armed robbery, contrary to s.75A of that Act.  You have also pleaded guilty to the summary offence of unlawful assault and you have consented to that matter being heard by this court.

2.Michael Raymond Robb, you have pleaded guilty to one charge of robbery, contrary to s.75 of the Crimes Act [1958] and one charge of theft contrary to s.74(1) of that Act.  Circumstances of your offending were set out in some detail, in the amended summary of prosecution opening that was tendered at your plea hearing.  In summary the circumstances were as follows. 

3.On 3 October 2018 you both attended at a 7-Eleven store in Knox city. 
Mr Merrigan initially entered the store alone.  At that time there were a small number of customers in the store—two aged 15, a 17 year old and an 18 year old.  You threw two plastic containers in the direction of two of those customers narrowly missing them and hitting a window nearby.  You approached one of the customers and demanded $20 from him.  Those words were uttered in a soft voice but in a sharp and aggressive manner.  He told you that he did not have any money, you approached him from behind, knocked a drink container out of his hand, causing it to fall to the floor.

4.Mr Robb then entered the store and physically removed you from the store.  The two of you remained outside the store for a time.  You, Mr Merrigan, then
re-entered the store alone and approached another of the customers, demanding $20 from him.  He also told you that he had nothing on him.  You then showed a customer an orange-handled knife which you were holding.  The customer became scared that you would stab him, that conduct constitutes the offence of attempted armed robbery against Mr Merrigan, Charge 1.

5.One of the other customers then called on you to leave the customer alone.  You responded with the words, 'Don't touch me bro, or I'll stab you.'  The customer reported that when he saw the knife he freaked out and did not feel safe.  This conduct constitutes the summary charge of unlawful assault brought against you Mr Merrigan.  Shortly after Mr Robb re-entered the store joining
Mr Merrigan and standing by him.  Mr Merrigan again demanded that one of the customers give him $20. The customer appeared to be scared and stressed.  He produced his wallet and handed Mr Merrigan the sum of $70.  He was scared that you would use the knife on him.  This conduct constitutes the offence of armed robbery, Charge 2, in respect of Mr Merrigan and the charge of robbery, Charge 3, in respect of Mr Robb.

6.Soon after you both left the 7-Eleven store.  In the process of leaving Mr Robb said to one of the customers, 'I'll take your hat too' and snatched the hat off the customer's head and took it with you.  That conduct constitutes the offence of theft, Charge 4, in respect of you Mr Robb.

7.Later that evening you were both arrested by police in the carpark of a Kmart store in Forest Hill.  You were both formally interviewed on 11 October 2018 and chose to exercise your rights to make 'No comment' records of interview.  Mr Merrigan was remanded in custody on 11 October 2018 and released on bail on 19 November 2018.  Mr Robb was remanded in custody on 11 October 2018, released on bail on 7 March 2019 and further remanded in respect of these matters on 6 May 2019.

8.HIS HONOUR:  Mr Goetz am I correct in my assumption that Mr Robb is still in custody?

9.MR GOETZ:  Yes, you are correct Your Honour.

10.HIS HONOUR:  Yes, thank you.

11.The maximum penalties for these offences imposed by parliament are as follows.  For the offence of attempted armed robbery, 20 years' imprisonment.  For armed robbery, 25 years' imprisonment.  Of robbery, 15 years' imprisonment.  For unlawful assault, three months' imprisonment.  And for theft, 10 years' imprisonment. 

12.A victim impact statement from one of the customer's in the store was tendered at your plea hearing by the prosecution.  He was a Year 9 school student, who as a result of his involvement in the robbery has had nightmares and problems focusing his mind on school work and assignments.  He has had some counselling from school personnel.  He suffers from fear of going out with friends and no longer has the self-confidence that he experienced previously.

13.The second victim impact statement was provided by the mother of that young boy.  She noticed that his sleep has been disturbed.  On occasions he is distraught, visibly upset and he has lost his appetite and suffers anxiety.  His grades at school have dropped and he suffers from massive mood swings.

14.I will now deal with you both separately.  Mr Merrigan you were born in Ballarat before moving when you were young to Box Hill where you grew up.  I accept that your mother was a heavy user of heroin and that you were exposed to your parents drug use from a very early age.  Your mother left your family when you were four years old.  Your father raised you along with your two siblings.  You were educated locally, leaving secondary school whilst in Year 10.  I accept that you reconnected with your mother when you were aged about 12 and you were greatly saddened when she died when you were aged 14.  Although her death was explained as a drug overdose, you have since maintained suspicions that she was murdered.  After leaving school, you worked briefly in the tree lopping business and in landscaping where you completed an apprenticeship.  You worked as a sub-contractor doing landscaping work before moving back to tree lopping, where you worked until mid-May of 2019.  You have recently been terminated for failing to attend work on the day following Mother's Day this year.

15.Reports from Ms Carla Lechner, a clinical psychologist dated 30 April 2019, and Dr Loretta Evans, a neuropsychologist dated 25 January 2019, were tendered at your plea hearing on your behalf.  You have been diagnosed as having major depressive disorder, generalised anxiety disorder and a cannabis use disorder.  Ms Lechner noted that although you have pleaded guilty to charges of armed robbery and assault, you told her that you had no memory of these matters at all.  You told her that you did recall that earlier in the day you'd taken Xanax and consumed two bottles of bourbon.  She considered that you presented with symptoms of a major depressive disorder, cannabis use disorder, as well as abuse of cocaine and Xanax.  Although you profess to have no recollection of your offending, you do apparently accept responsibility for your offending conduct on the day in question. 

16.Dr Evans similarly noted your childhood characterised by an early exposure to parental illicit drug use and the death of your mother.  Dr Evans noted that it was difficult to provide an opinion about your potential for an acquired brain injury. Further investigations would be required.  Similarly, she considered that it was possible that you suffered from post-traumatic stress disorder, but again considered that further psychiatric investigation would be required in order to confirm that suggestion.  I could not be satisfied on the evidence before me that you suffer from either of those conditions.  Dr Evans considered that you did meet the criteria for a generalised anxiety disorder.  She considered that you required intensive psychological counselling and support from suitably qualified dual diagnostic clinicians.

17.She thought that you possessed the cognitive skills to benefit from drug and alcohol counselling.  In November 2018, whilst in custody you were assessed by Eva Kalivas for involvement in the Court Integrated Services Program or CISP and were recommended by her for case management.  Her report gave at 21 January 2019, was also tendered at your plea hearing.  She noted that you had been a respondent in two family violence orders, both involving
non-contact conditions.  You had already commenced counselling with a psychologist and attended appointments with CISP.  Ms Kalivas noted your positive, respectful and pro-active engagement with the CISP program.  She noted that you had attended all of your appointments on time and had approached your treatment plan in what she described as a self-directed, calm and methodical manner.  Those matters are indeed encouraging and lead me to conclude that you have reasonable prospects for rehabilitation.

18.I say that notwithstanding your criminal record.  You have prior convictions of relevance, albeit dating back some years.  Between December 2009 and
November 2011, a number of charges against you were found proven by courts but you were sentenced without conviction.  These matters in the main related to matters of violence and dishonesty.  In September 2012, you were convicted of possession of a prohibited weapon, dealing with property suspected as being proceeds of crime and failing to answer bail.  You do not appear to have been previously sentenced to any custodial term.

19.The victims of your offending were young and they were soft targets for you.  Although you did not use the knife to injure anybody, you did display it in a manner which caused the victims to become scared fearing that you would use it to inflict injury.  A likely indication of the fear caused to one victim, is that when you demanded that he give you $20, he proceeded to give you $70 in cash.  I note that about one hour after these offences were committed by you, when you were arrested in the carpark of the Kmart store in Forest Hill, you had in your possession a different knife, a black-handled knife, not the one in your possession during the offending for which you are before this court.  Although of course you are not charged with any offence relating to the black-handled knife I consider that it is relevant to your prospects of rehabilitation, that a short time after the offending in question, you were in a public place with another knife in your possession.

20.I take into account that you entered a plea of guilty at the second listing of the committal mention on 21 January this year and that was at a very early stage.  I consider that your plea is an indication of some remorse on your part, although I consider that you would have been aware that the Crown case against you was a strong one.  Further, your plea has utilitarian value in that witnesses will not be required to attend court and give evidence at a trial and the resources of the court will not be unnecessarily wasted.

21.I accept that prior to your arrest you had a reasonable work history after leaving school.  It appears and I accept that you have not appeared in a court since 2012 up until the offences for which you are to be sentenced today.  It was submitted on your behalf, but I do not accept that your conduct constituting Charges 1 and 2, attempted armed robbery and armed robbery were unplanned and opportunistic.  You had been inside the store initially where you would have observed the premises, the customers there and you had unsuccessfully demanded money from one customer and been taken outside the store by
Mr Robb.  You had remained outside with him for a time and then you then
re-entered the store, made further demands for money on two customers, while showing them the knife that you were holding.  I am satisfied that you had thought about what you would do before re-entering the store. 

22.Save for one instance of failing to report to police, I accept that you have otherwise complied with stringent bail conditions since being released on bail in mid-November 2018, and that you have not re-offended in that time.  I consider that your offending behaviour on the day was more serious than that of Mr Robb.  You were in possession of a knife, capable of inflicting serious injuries.  You would have known that the young men in the store would have seen it and been fearful that you would use it.  Notwithstanding, your criminal record is a relatively limited one.  You appear to have stayed out of trouble with the law for the six years leading up to October 2018.

23.I have read and taken into account the character references from your father,
Gary Merrigan, and from Katrina Mallison. Both of them are of the opinion that you appear to be keen and prepared to turn your life around. Your counsel submitted that a sentence involving a term of less than your pre-sentence detention of 39 days was appropriate, in combination with a community correction order. I am unable to agree. Principally, because of the seriousness of the offence of armed robbery, I consider that the purposes for which I am to sentence you as set out in s.5 of the Sentencing Act are not satisfied by such a lenient sentence as was suggested.  On an aggregate basis I consider it appropriate to sentence you, in respect of the offences of attempted armed robbery, armed robbery and the summary offence of unlawful assault, to a term of imprisonment of eight months together with a two year community correction order to commence on the day that you are released from custody.  That community correction order would have a number of conditions attached to it.

24.The law does not permit me to impose such a community correction order without your consent. Before asking whether you do consent, I should in fairness to you, tell you what those conditions will be. Firstly, there are mandatory conditions to such an order pursuant to s.45 of the Sentencing Act.  A principal of those mandatory conditions are that during the two year term of the community correction order, you must not commit any offence punishable by imprisonment.  Secondly, you must report to Corrections Victoria, it will be at 2 Bond Street, Ringwood, within two clear working days of your release from prison and you must notify Corrections Victoria within two clear working days of any change of address or employment. 

25.In addition, I'll impose conditions that require you to undergo treatment and rehabilitation, namely, assessment and treatment including testing for drug abuse or dependency, pursuant to s.48D(3)(a) of the Sentencing Act;  assessment and treatment including testing for alcohol abuse or dependency, sub-s(3)(b) of that section; assessment and treatment including testing at a residential facility for withdrawal from or rehabilitation for alcohol or drug abuse or dependency, pursuant to sub-s.(3)(c) of that section;  any mental health assessment and treatment that may include psychological,
neuro-psychological, psychiatric or treatment in a hospital or residential facility if necessary, pursuant to sub-s.(3)(e) of that section; any program that addresses factors related to your offending behaviour pursuant to sub-s.(3)(f) of that section; and finally, that you be supervised and monitored by Corrections Victoria pursuant to s.48E of the Sentencing Act.

26.Counsel are agreed, I understand, that you have served 39 days of
pre-sentence detention to date. I direct that that period be deemed to be time served pursuant to the sentence and recorded in the records of this court as such. Pursuant to s.6AAA of the Sentencing Act, I declare that had you not pleaded guilty to these charges, but had later been convicted of them, I would have sentenced you on an aggregate basis to a term of imprisonment of
15 months.

27.I now turn to Mr Robb.  You are aged 23 and at the time of your offending you were aged 22.  Your parents separated soon after you were born and you have had no involvement with your father since.  It was submitted on your behalf that your childhood was marred by your mother's ongoing problems with substance abuse, turbulent social relationships, poverty, housing problems and schooling instability, which culminated in you leaving the family home at the age of 15.  Since then you have been able to stay with your mother from time to time and I note that you were residing with her at the time of this offending.

28.You ceased regular attendance at school at the Year 7 level.  In your teenage years you had some employment working at a butchery and also in a bakery.  Since turning 18, you have worked regularly as a labourer on a farm in Monbulk run by the father of your girlfriend.  For some periods in the past you have resided at her family home.  You have a significant history of substance abuse, which commenced when you were aged about 12.  You commenced using methamphetamine and Xanax when aged 13 or 14.  The report of Ms Devlin which was tendered at your plea hearing, dated 6 March 2019, indicates that you continue to have problems with methamphetamine and also reported regular use of Benzodiazepines.

29.Mr Robb you have a relatively large number of prior convictions in adult courts.  In October 2017, you were convicted of possession of a firearm whilst a prohibited person, committing an indictable offence whilst on bail, attempted theft, intentionally damaging property, failing to answer bail, theft from a shop, resisting an emergency worker whilst on duty, possessing an unregistered general category handgun, possessing cannabis, theft of a motor vehicle (three counts), driving a motor vehicle without a licence, driving at a speed dangerous. 

30.In January 2018, you were convicted of possession of an unregistered general category handgun, driving whilst disqualified, failing to stop your vehicle on police direction, two counts of driving at a speed dangerous, reckless conduct endangering serious injury, burglary, theft, unlawful assault, criminal damage, a further offence of driving whilst disqualified, failing an oral fluid test within three hours of driving, driving whilst disqualified, that's a third conviction, driving whilst your authorisation was suspended, exceeding the speed limit, negligently dealing with proceeds of crime, exceeding the prescribed blood alcohol concentration within three hours of driving, possessing a drug of dependence, theft, intentionally damaging property, committing an indictable offence whilst on bail, making a threat to kill, assaulting a protective services officer, a further count of theft, possession of a controlled weapon without permission, a further count of intentionally damaging property, using an unregistered motor vehicle on the highway, using a vehicle which was not in a safe and roadworthy condition, fraudulently using an identified number – registration plates, contravening a condition of a community correction order, driving a motor vehicle without a licence, possessing a firearm whilst a prohibited person, possessing cannabis, committing an indictable offence whilst on bail, theft of a motor vehicle, attempted theft, intentionally damaging property, failing to answer bail, theft from a shop and resisting an emergency worker on duty.  

31.In addition you have a number of Children's Court convictions relating to drugs, violence and dishonesty going back to November 2011.  I am informed that you

Mr Robb, indicated a preparedness to plead guilty on the day of your committal hearing, prior to witnesses being called to give evidence.  I accept that this shows some remorse for your offending, although I consider that you too would have been aware that the police case against you was a strong one.  Your plea also has utilitarian value, as witnesses were not required to give evidence at committal or at trial and court resources were not wasted unnecessarily.

32.I am informed by your counsel that, at the time of your offending, you were significantly under the influence of drugs and alcohol having consumed or ingested a large quantity of alcohol and a non-prescribed drug, Xanax.  This was a self-induced condition, I consider, and I do not consider it to be a mitigating factor as such.  I was informed that you did not know that your co-accused Mr Merrigan would behave in such a hostile manner to others when he entered the store in question, and that it was for that reason that you sought to intervene and remove him from the store earlier in the incident.  That alone would go in your favour.  However, there is simply no explanation as to why it was that you followed Mr Merrigan back into the store later, supported him in his armed robbery and then later stole a hat from one of the other customers as you left the store.

33.A report from Dr Julia Shekleton dated 21 August 2013, which is some six years ago, was tendered on your behalf.  She reported that your general level of intellectual ability was well below the level expected for your peers and in the borderline range.  Your memory for visual and verbal information was also described by her as borderline or in the low-average range.  She considered you were functioning at a level which was below more than 97 per cent of your same-age peers, which placed you at a significant disadvantage generally.  She considered that you possessed very basic problem solving and reasoning skills.  She considered that the age of onset, length and pattern of your substance abuse together with the pattern of your current performances on testing, were not consistent with any acquired brain injury.

34.Of some importance I note that you advised Dr Shekleton that you had a strong desire to complete your Year 10 schooling and to commence an apprenticeship with your uncle.  However, you appear to have taken no steps to do so, in the six years since her report.  I note that she commented that any increase in your Benzodiazepine use should be monitored, as any increase would place you at risk of developing further cognitive difficulties.  She thought you'd be likely to benefit from formal intervention to improve your ability to cope with and resolve conflicts, improve your emotional regulation skills and in particular your anger control and frustration tolerance.  She considered that if you were able to remain abstinent from illicit substances, alcohol and Benzodiazepine medication for six months, it was recommended that you undergo a review neurological assessment at that time.

35.It was submitted on your behalf that the fifth limb of the High Court decision in the matter of Verdins was applicable in your case, but I do not consider there is evidence to support this.  I do accept that the principles set out in the 2013 High Court decision of Bugmy have application here and I take into account your disadvantaged family upbringing.  I accept that your conduct can be described as at the lower end of conduct constituting the offences of both robbery and of theft.  I accept that your offending conduct was less serious than the conduct of your co-offender, in that you at no time were carrying a weapon, as was he. 

36.Notwithstanding, your past criminal record is far more extensive and serious than is his.  Your criminal record given your age is truly appalling.  Your age however, is an important consideration in sentencing you.  Although I consider that the principles of deterrence are important, I consider that the principle of facilitating some rehabilitation is an important sentencing consideration, given your age.  Of course specific and general deterrence and protection of the public are also important sentencing considerations.  With regard to the offences of robbery and theft, I consider that it is appropriate that I sentence you on an aggregate basis to a term of imprisonment of six months, together with a two year community correction order commencing on the day that you are released from custody with a number of conditions attached.

37.Again, I say to you that that law does not permit me to impose such a community correction order without your consent but before asking if you do consent I should in fairness tell you what those conditions will be. Firstly, there are mandatory conditions to such an order pursuant to s.45 of the Sentencing Act as already described. There will be also conditions that you submit to treatment and rehabilitation in respect of drug abuse and dependency pursuant to s.48D sub-s.(3)(a), alcohol abuse or dependency pursuant to sub-s.(3)(b), mental health generally pursuant to sub-s.(3)(e), assessment and treatment including testing at a residential facility if necessary for withdrawal from or rehabilitation for alcohol and drug abuse or dependency pursuant to sub-s.(3)(c) and programs relating to your offending behaviour pursuant to sub-s.(3)(f). There will also be a condition that you be subject to supervision and monitoring, pursuant to s.48E.

38.Now it has just occurred to me as I sit here that I did not ask
Mr Merrigan whether he did consent to those terms and I should ask him whether he does.  Perhaps you might like to have a quick word with him and establish whether he consents to such a community correction order coupled with the prison sentence.

39.MR McLAUGHLIN:  Yes, Your Honour if I might - - -

40.HIS HONOUR:  Likewise Ms Thirlwall you might want to have a discussion with
Mr Robb as to his consent or otherwise.

41.MS THIRLWALL:  Yes, Your Honour.  Your Honour I've taken instructions from
Mr Robb, he consents.

42.HIS HONOUR:  Yes, thank you.

43.MR McLAUGHLIN:  Mr Merrigan consents Your Honour.

44.HIS HONOUR:  Yes, thank you.  Accordingly, Mr Robb I will order that on the charges of robbery and of theft, you're convicted and sentenced on an aggregate basis to a term of imprisonment of six months.  Now pre-sentence detention, Mr Goetz, I had a hundred and ninety-six, but that was the previous date, I think.

45.MR GOETZ:  It's 197, not including today Your Honour for Mr Robb.

46.HIS HONOUR:  I see, all right.

47.MR GOETZ:  Yes.

48.HIS HONOUR:  Is that agreed upon Ms Thirlwall?

49.MS THIRLWALL:  Yes, Your Honour.

50.HIS HONOUR:  Thank you.  Counsel agree that you have served 197 days by way of pre-sentence detention not including today.  I declare that such period shall be reckoned as served in accordance with this sentence and recorded in the records of this court accordingly.

51.I impose a two year community correction order with each of the conditions previously outlined by me.  That community correction order will commence upon your release from custody.  You will be required to report to Corrections Victoria at 2 Bond Street, Ringwood, within two clear working days of your release. 

52.I should also note in relation to both Mr Merrigan and Mr Robb that I am in possession of reports from Corrections Victoria, both dated 23 May 2019, indicating that you are both considered to be suitable for such a community correction order.

53.There were some sundry orders sought, were there not?

54.MR GOETZ:  Yes, Your Honour.

55.HIS HONOUR:  Just remind me, was there a disposal order?

56.MR GOETZ:  Yes, disposal order in relation to the black knife that was in the possession of Mr Merrigan.

57.HIS HONOUR:  Yes.  Just a moment.

58.MR GOETZ:  That order's been prepared Your Honour.  I can hand it up to
Your Honour's - - -

59.HIS HONOUR:  Well I've got to know what you're – have you got a spare copy there?

60.MR GOETZ:  Yes, I'm handing it up to Your Honour's associate now.

61.HIS HONOUR:  All right.  Is that the one ancillary?

62.MR GOETZ:  No an order for compensation in respect of victim Teal Lynch in the sum of $70, Your Honour.  Likewise I've got an order - - -

63.HIS HONOUR:  What's that relate to?

64.MR GOETZ:  The taking of the $70 cash from that victim.

65.HIS HONOUR:  Of course.  Yes.

66.MR GOETZ:  Thank you Your Honour.

67.HIS HONOUR:  Mr McLaughlin, do you have anything to say about those orders?

68.MR McLAUGHLIN:  No opposition, Your Honour.

69.HIS HONOUR:  Tell me this, why is the black-handled knife the subject of a disposal order when it is not related to this offending?

70.MR GOETZ:  Because it's a prohibited weapon and he ought not have it.

71.HIS HONOUR:  It might be prohibited, but he hasn't been convicted of any offence regarding it, has he?

72.MR GOETZ:  No, Your Honour.

73.HIS HONOUR:  Well what do you say about that Mr McLaughlin?

74.MR McLAUGHLIN:  I only state Your Honour that it is a prohibited item, he has no possession of it needed.  There's no opposition Your Honour.

75.HIS HONOUR:  I will make those orders.  Thank you.  Is there anything else that I should be turning my mind to?

76.MR GOETZ:  No Your Honour.

77.MR McLAUGHLIN:  Nothing further Your Honour.

78.HIS HONOUR:  I did make a declaration pursuant to 6AAA in relation to both.

79.MS THIRLWALL:  Not for Mr Robb, Your Honour.

80.MR GOETZ:  Not in relation to Mr Robb, Your Honour.

81.HIS HONOUR:  Not in relation?  Well I'm sorry.  That was an oversight. 
Mr Robb I declare that had you not pleaded guilty to these charges but had been convicted of them by a jury, I would have sentenced you on an aggregate basis to a term of imprisonment of 12 months.  Anything else?

82.MR GOETZ:  No Your Honour.

83.MS THIRLWALL:  No Your Honour.

84.MR McLAUGHLIN:  No Your Honour.

85.HIS HONOUR:  Thank you.

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