Director of Public Prosecutions v Michelsson
[2017] VCC 1593
•10 November 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No.CR 17-01408
CR-15-00799
Indictment No. H10176323
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY NATHAN MICHELSSON |
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| JUDGE: | HIS HONOUR JUDGE PARRISH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 October 2017 |
| DATE OF SENTENCE: | 10 November 2017 |
| CASE MAY BE CITED AS: | DPP v MICHELSSON |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 1593 |
REASONS FOR SENTENCE
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Subject:Sentence - one charge of attempted armed robbery and one charge of possession of cannabis, and one uplifted charge of a related summary offence of committing an indictable offence (attempted armed robbery) while on bail – contravention of a Community Correction Order made in proceeding CR-15-00799.
Legislation Cited: Crimes Act 1958 (Vic) s75A, 321M; Drugs, Poisons and Controlled Substances Act 1981, s 73; Bail Act 1977, s 30B; Criminal Procedure Act 2009; Sentencing Act 1991; Sentencing (Community Correction Order) and Other Acts Amendment Act 2016.
Cases Cited:Director of Public Prosecutions v Michelsson [2015] VCC 1308; Boulton v R [2014] VSCA 342; R v Verdins & Ors (2007) 16 VR 269; Muldrock v
R [2011] HCA 39.
Sentence:Convicted and sentenced to 18 months imprisonment; 2 year Community Correction Order with conditions; convicted and fined $150; Section 6AAA declaration – two years and ten months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Ms E. Tueno | Solicitor for Office of Public Prosecutions. |
| For the Accused | Mr R. Davis (solicitor) |
HIS HONOUR:
1Gary Nathan Michelsson, you have pleaded guilty to the following offences.
(a)That you at Morwell in Victoria on 10 January 2017 attempted to rob Wei Chen of certain money and at the time had with you an offensive weapon, namely a sharpened fence paling. The offence of attempted armed robbery is contrary to s.75A and s.321M of the Crimes Act 1958 and carries a maximum penalty of 20 years' imprisonment.
(b)That you at Morwell in Victoria on 10 January 2017 had in your possession a drug of dependence, namely cannabis. Possession of cannabis is contrary to s.73 of the Drugs Poisons and Controlled Substances Act 1981 and carries a maximum penalty of five penalty units.
(c)That you at Morwell in Victoria on 10 January 2017 did commit an indictable offence, that is the attempted armed robbery, while on bail. Such offence was transferred from the Magistrates' Court to this court pursuant to s.145 of the Criminal Procedure Act 2009.
Such offence is contrary to s.30B of the Bail Act 1977 and carries a penalty of 30 penalty units or three months’ imprisonment.
The circumstances of the offending
2The prosecution has provided a document headed "Summary of Prosecution Opening upon Plea" which provides a written summary of the circumstances surrounding your offending. Such summary has been marked as an exhibit, Exhibit 1, and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)You are 34 years old, having been born in July 1983 and were 33 years old at the time of the offending;
(b)The victim in this matter is Wei Chen who is the owner of the Vary Street milk bar, Morwell. At the time of your offending he was 53 years old and was not known to you;
(c)At approximately 7.50 pm on 10 January 2017, you attended the Vary Street milk bar, Morwell, while armed with a sharpened fence paling. At that time, Wei Chen and his son, Bill Chen, were present;
(d)You walked up to the front counter and approached
Wei Chen, pointing the stick at him and making a demand for cash whilst stating only one word, "money". Charge 1, attempted armed robbery. Wei Chen stated, "Go away" and acted defensively by throwing a large swivel chair at you, which caused you to retreat to the front of the store without obtaining any money or property;(e)The incident was witnessed by Bill Chen, who armed himself with a bat and chased you outside the store, where you were observed walking down Bolger Street, Morwell, towards the Princes Highway;
(f)CCTV footage shows the offending taking place and also shows you wearing a camouflaged baseball cap, a red bandana and white patterns across your face, an olive drag long-sleeved shirt, blue denim jeans and black sneakers with a white logo;
(g)You proceeded down Bolger Street where you dropped the bandana and the sharpened fence paling and then sat in a side garden bed, removing your shoes and shirt. You then continued along Bolger Street, where you removed your pants and attempted to hide in a front doorstep out of view;
(h)On police investigation, the various clothes and shoes discarded by you were recovered by police. On 11 January 2017, police conducted a search of the blue denim jeans and located a small plastic snap lock bag containing cannabis in the right front pocket. (Charge 2, possessing a drug of dependence);
(i)On 19 January 2017, you were located and arrested and conveyed to the Morwell Police Station where the following comments were made in your record of interview:
·You were at your auntie's house in The Boulevard, Morwell, on that day between the hours of 12 and 4 pm.
·You went to 12 Bolger Street, Morwell, because you thought your friend lived there and knocked on the door.
·You then walked to another friend's place and stayed there for a period of time.
·You denied ever attending the Vary Street milk bar.
·You denied having any knowledge of the cannabis located in the pocket of your jeans.
(j)The red bandana, shoes and sharpened fence paling were lodged for forensic analysis and DNA results obtained demonstrate that you were a contributor to the items seized.
3At the time of such offending, you were on bail in relation to one charge of theft and commit indictable offence while on bail. Bail was granted at the Morwell Police Station on 24 December 2016 and you were required to attend before the Latrobe Valley Magistrates' Court on 17 January 2017. The summary charge of committing an indictable offence while on bail was transferred to the County Court on or about 28 July 2017 pursuant to 145 of the Criminal Procedure Act 2009.
4On 13 July 2017, at a committal case conference you were committed to the County Court by way of a "straight hand-up" plea of guilty. The prosecution accepts that this was at an early stage.
5You were remanded in custody on 19 January 2017 in relation to the subject offending and have been in custody since that date, 266 days as at 11 October 2017 inclusive.
6However, you were convicted to three months' imprisonment on 26 July 2017 at the Latrobe Valley Magistrates' Court which declared at that time, you being in custody, that 93 days of your custody constituted pre-sentence detention in relation to that offending. Accordingly, I am informed that you have served 173 pre-sentence detention at the date of the plea.
7Counsel for the prosecution informed the court that the victims of your subject offending declined to make victim impact statements. Application is sought for a disposal order in relation to the cannabis, sharpened fence paling and clothing items seized during the investigation.
Contravention proceedings
8Contravention proceedings have also been brought against you in relation to a community corrections order made by this court on 16 September 2015, CR 15-00799. Contravention documents involving the charge sheet and the information supplied by various officers from the Morwell Community Correction Services were tendered, (see Exhibit 3).
9On 16 September 2015, you were convicted of recklessly causing serious injury and theft. In relation to the recklessly causing serious injury charge, you were convicted and sentenced to a period of 11 months' imprisonment, and in relation to the charge of theft you were convicted and sentenced to two months' imprisonment. One month of the theft charge was cumulated upon the sentence in relation to recklessly causing serious injury.
The total effective sentence was 12 months' imprisonment and the court declared that you had served a period of 362 days by way of pre-sentence detention (that is, you would be released within a couple of days).
10Furthermore, in relation to the charge of recklessly causing injury, the court ordered that you be further sentenced to a community correction order for a period of two years on your release from prison, with special conditions for you to undergo assessment and treatment for drug use or dependency, assessment and treatment, including testing for alcohol abuse or dependency, undergo mental health assessment and treatment, undergo any program that addresses factors relating to your offending behaviour, undergo supervision and monitoring and be judicially monitored every three months.
11I directed that you participate in the services specified in the Justice Plan prepared pursuant to s.83C of the Sentencing Act 1991.
12I annex a copy of my “Reasons for Sentence”, (Director of Public Prosecutions v. Michelsson [2015] VCC 1308), to these Reasons, which sets out the circumstances of the offending at that time. Furthermore, those Reasons also set out your criminal record as known to 17 June 2013, your personal circumstances, education, general background and analysis of a report to the psychologist, Dr A. Cunningham. I shall not repeat the matters referred to in those earlier Reasons.
Further criminal record
13I set out your further criminal record since 17 June 2013. On that day, you were convicted of contravening a family violence intervention order, aggravated assault of a female, and criminal damage and sentenced to six months' imprisonment to be served concurrently with an earlier sentence. The court suspended three months of the six months' imprisonment for an operational period of 12 months. Thereafter the following has occurred.
(a)On 17 November 2014, at the Latrobe Valley Magistrates' Court, you were convicted of shop steal, intentionally damaging property and resisting police and sentenced to an aggregate period of two months' imprisonment to be served concurrently with other sentences. Also, on that day the court wholly restored the suspended sentence made on 17 June 2013;
(b)On 16 September 2015, this court convicted you of recklessly causing serious injury and theft and, as has already been discussed, part of your sentence involved you being placed on a community correction order for a period of two years;
(c)On 14 April 2016, at the Latrobe Valley Magistrates' Court, you were convicted of theft, attempted burglary, intentionally causing property damage, burglary, committing an indictable offence whilst on bail, and shop steal. Such offending apparently occurred on 23 December 2015. You were sentenced to an aggregate period of 81 days of imprisonment with the time already held in custody reckoned as a period of imprisonment already served under this sentence. Further, you were sentenced to a community correction order for 12 months with a variety of conditions;
(d)On 26 July 2017, at the Latrobe Valley Magistrates' Court, you were convicted of intentionally damaging property, threat to damage property, make threat to kill, shop steal, committing an indictable offence whilst on bail, obtaining property by deception, handling and receiving stolen goods, using threatening words in a public place and assault with a weapon and sentenced to three months' imprisonment. At that time the court declared and reckoned that 93 days of pre-sentence detention be deducted administratively off that sentence.
Also, on that day it was found proven that you had breached the community correction order made on 14 April 2016. You were convicted of such offence and the earlier correction order was confirmed.
Materials relied on by the accused
14Your counsel tendered the following documents.
(a)Earlier psychological reports of Dr Aaron Cunningham dated 20 February 2013 and 14 June 2015 (Exhibit A). These are referred to in my earlier reasons for decision.
(b)Defence outline of submissions dated 9 October 2017 (Exhibit B).
(c)Justice Overview Plan report dated 6 July 2017 (Exhibit C).
15It is to be noted that also what is referred to as a "Client Overview Report" dated 9 October 2017 and signed by Ms Andrea Milson and Ms Amanda Lupton, dated 10 October 2017, was tendered by the prosecution (see Exhibit 4).
16In his Outline of Submissions, your counsel confirmed that you would be pleading guilty to each of the subject offences and also to contravening the community correction order made by this court on 16 September 2015.
In particular, your counsel referred to the earlier “Reasons for Sentence” which sets out your personal history at paragraphs 12 to 35 in some detail up to that time. In the period from 17 September 2015 to date, your counsel referred to the contravention report dated 26 July 2017 (Exhibit 3), and also the Justice Plan Review dated 30 June 2017 (Exhibit C).
17I do refer to the conclusion and recommendations made by Ms Nikita Kile and Ms Kyle Mills in the breach report (Exhibit 3), wherein they state, in part:
"Mr Michelsson is a 34-year old male with an Intellectual Disability and significant drug, alcohol and mental health concerns. He commenced this order in a less than satisfactory manner, however, maintained engagement with services despite his long-term accommodation issues and transient lifestyle.
Mr Michelsson has accrued a total of nine unacceptable absences, the majority of which are from drug and alcohol assessment and treatment appointments. He has in effect commenced engagement and treatment; however, due to being remanded on two occasions throughout the order is yet to successfully complete the required interventions".
Mr Michelsson was placed on a further CCO imposed by the Latrobe Valley Magistrates' Court due to further offending. He subsequently contravened by order by further offending… noted in the table above. He has also allegedly committed further offences…which if found guilty will also contravene this order.
In light of the above, it is specifically recommended that the order be cancelled and Mr Michelsson be resentenced on the original charge."
18I also refer to the Justice Review Plan (Exhibit C), wherein Ms A. Milson confirms that you have had continuous case management since being referred to the Disability Client Services by the court on 18 June 2015 for the preparation of a Justice Plan. Furthermore, a case manager was allocated on 7 July 2015 and the Justice Plan was attached to the subsequent community correction order made in 2016. In particular, Ms Milson states:
"Mr Michelsson has continued to engage positively with his case manager since July 2015 and remained focused on his goals. He has added the goal of being abstinent from alcohol to his other goals. All of these goals are linked and support the success or failure of the other goals.
Mr Michelsson has experienced continual homelessness throughout this period, consistent with a history of long-term homelessness, going back more than ten years, which has brought him into continual contact with the criminal justice system. Homelessness significantly affects his ability to engage with services in that he often does not have money, loses his phone or ends up staying somewhere that is not good for either his mental health or ability to stay abstinent from alcohol.
…”.
19I note from other parts of that document that the goals on which you have focused involve you living independently in the community and addressing issues in order to spend more time with your two children.
20I also refer to the Client Overview Report, (Exhibit 4), dated 9 October 2017 authored again by Ms A. Milson wherein she states in part:
"DCS case management continue to liaise with Community Corrections throughout 2016 and early 2017 and supported Mr Michelsson to attend appointments, including those at community housing, Quantum Support Services and Centrelink. He attended most AOD counselling appointments without assistance, but struggled to attend others scheduled for him, such as appointments with counsellors.
Mr Michelsson received an offer of housing through the Public Housing register in October 2016. However, due to his itinerancy, he did not receive this letter until the offer had expired. Mr Michelsson was again remanded on 14 February 2017. He has received a number of visits from the Disability case managers while at MRC. These were on 15 March, 21 June, 12 July, 31 August. He also refused to see DCS case managers visiting the prison on three occasions. He was found suitable for employment in transitional accommodation through Action Housing in July 2017, however was not able to take up the vacancy due to incarceration.
…
Mr Michelsson is 34 years of age and currently on remand at the Melbourne Remand Centre, Ravenhall. Mr Michelsson has a wide circle of acquaintances and has a few close friends in the Morwell area.
Mr Michelsson receives some family support from his mother, who lives in Callignee in Gippsland. He has had no visitors while in prison apart from DCS. He advised case managers that he goes to the gym most days and engages in artwork, mostly line drawing.
Mr Michelsson has advised that his father resides in Melbourne and that he has no contact with him for several years. DCS documents indicate that Mr Michelsson had no contact with his father throughout his childhood.
A relative of Mr Michelsson's former partner allows him to use her address for his mail. He collects it sporadically from her home."
Matters put by your counsel in mitigation
21Your counsel submitted that the following matters should be taken into account in mitigation in relation to the subject offending.
(a)Your plea of guilty was entered at an early stage in the proceedings and was the first possible court date after the DNA results were made available. Such plea has "utilitarian value and represents acceptance of responsibility for your crime".
(b)The attempted armed robbery was particularly brief in duration and seemingly was poorly planned, poorly executed, and left you easily detected.
(c)The reference in the indictment of being a "sharpened fence paling" was a shortened, sharpened piece of wood.
(d)Consistent with the earlier reasons for decision, the case of R v. Verdins & Others [2017] 16 VR 269 and Boulton & Ors v R [2014] VSCA 342 are "relevant".
Your counsel submitted, in relation to the charge of possession of Cannabis, it is only punishable by way of a fine and that otherwise an appropriate disposition would be a further community correction order, following a term of imprisonment. Your counsel, although recognising that you have breached Community Corrections orders in the past, refers to various comments within the material tendered, that did note positive engagement with the orders. It is also noted by your counsel that alcohol continued to be a problem, together with your tendency to over perceive threats and react in excess of what is appropriate, given your mental health issues. In this respect, counsel is making reference to the earlier reports of Dr Cunningham. Furthermore, your counsel echoed the concerns from the Department of Human Services, which note that much of the offending occurred in circumstances where you were homeless and drinking.
The response of the prosecution
22In response, Counsel for the Prosecution submitted:
(a)You have an horrendous criminal record, which has continued since the imposition of the community corrections order made by this court on 16 September 2015.
(b)You have demonstrated your inability to comply with community corrections orders and in particular, it was highlighted that you were reoffending within a month of the community corrections order imposed by this court. In this respect, counsel for the prosecution was referring to your convictions on 26 July 2017, which involved offending commencing on 20 October 2015 through to November 2016.
(c)That there was no basis to apply the principles enunciated in Verdins as there was no material, reports or otherwise, that relate to the specific offending to support such a relationship between your mental state and such offending.
Ultimately, it was submitted that a term of imprisonment, with a non
parole period was warranted in all the circumstances.
Further material
23At the time of your plea, there was a video link to Morwell, which permitted one of your case managers, Ms A Milson from Disability Client Services, and Ms Nikita Kile from Community Corrections, to be available to give various comments. Such comments were particularly helpful and consisted with the various reports to which I have made reference to. The issue of your homelessness assumed prominence, as both of these officers considered homelessness was one of the key issues prompting your ongoing offending.
24I arranged for you to be assessed as to your suitability for a further community corrections order and further ordered a justice plan.
25In a report from Ms Kile dated 27 October 2017, she confirmed that you were assessed by video link on 26 October and 27 October 2017. She notes that you had been identified as having a "high risk of general reoffending", according to the level of service risk assessment tool. Ultimately, you were assessed as suitable for a community corrections order, with added conditions for drug, alcohol and mental health treatment and rehabilitation, together with programs to reduce reoffending. You would also be subject to supervision.
26In the report, Ms Kile noted that Community Corrections Services gave consideration to recommending that a curfew condition with electric monitoring be made for a period of six months but ultimately, considered this not to be suitable as you do not have stable accommodation.
27I also refer to the Client Overview Report from the Senior Case Manager Ms Andrea Milson dated 25 October 2017. In that report, Ms Milsom, again, confirms that you have consistently identified your goals to include long term secure housing, which enables you to live independently and have overnight access with your children, having support to address your long-term addiction to alcohol and abuse of other substances and support for good mental health.
In particular, Ms Milsom states:
"Mr Michelsson experiences a number of barriers to successfully living in the community without offending. These barriers are his long history of repeated incarceration and his Child Protection history. Repeated long term incarceration has been linked to increase with (indistinct). Mr Michelsson has exhibited decrease in his skills and capacity to live outside prison during his current incarceration. Mr Michelsson's history of Child Protection involvement has left him with a significant history of trauma during his developmental period. Historically, Mr Michelsson exhibits inappropriate responses when confronted with stressful situations. It is not unreasonable to assume that he struggles to respond to stressful (indistinct) in more appropriate way because of his trauma history".
28In particular, Ms Milsom recommended:
(a)That you continue to meet with your case manager to further discuss your goals of living independently in secure housing. Being supported in your skill development and good mental health.
(b)That you undergo assessment for suitability to participate in drug and alcohol specific treatment, with such embodies the Australian Community Support Organisation, ASCO. Being referred to Support Services for alcohol dependency through an addiction specialist, general practitioner, Dr John Donoghue".
Conclusion
29 There is no issue that you did contravene the community corrections order made by this court on 16 September 2015. Pursuant to s.83AB of the Sentencing Act 1991, I find the contravention proven and convict you of such an offence and sentence you to one month of imprisonment to be served concurrently with any other sentence of imprisonment imposed this day.
30 Pursuant to s.83A, AS1D of the Sentencing Act, I cancel the community corrections order and make no further order. In this respect, I do note that as part of the original order made on 16 September 2015, you are sentenced to a total effective sentence of twelve months imprisonment. The vast bulk of which was constituted by pre-sentence detention and the two year community corrections order.
31 I also take into account the extent which you have complied with the order, consistent with s.83AS(1) and (2) of the Sentencing Act 1991. In particular, to the comments of Ms Mills in the police report, that leaving aside subsequent offending, you had commenced engagement with the order, but the requirements of the order were interfered with by being remanded on two occasions throughout the course of the order. Although there are clear unacceptable absences, I consider that in all the circumstances, no further orders should be made.
32 Turning to the subject of the offending, the offence of attempted armed robbery is a serious offence, as is may manifest by the maximum penalty of 20 years imprisonment. Although such event was seemingly short lived, it must have been frightening for the victim, Wey Chen to be confronted by you wearing a camouflaged baseball cap with a red bandana with bright patterns across your face and wielding a shortened sharpened fence paling.
33Although I accept that there was no detailed planning about the attempted robbery, you did have the (indistinct words) to wear the clothes that you did, remove a mask on leaving the store in order to evade being apprehended.
34Your counsel informed the court that you have no particular recollection of this day and believe that you had been drinking heavily around the time of the offence, or had taken medication given to you by someone else. At the time of the offending, you were again homeless.
35I do take account that it is accepted that your plea of guilty was entered at an early stage, which does have utilitarian value. I also accept that it is likely that you do have no memory of the event, due to your ongoing mental and/or alcohol problems.
36I do refer to my earlier reasons for sentence, wherein I made various conclusions, in relation to the material supplied by the psychologist, Dr Cunningham. Although there is no direct evidence from Dr Cunningham, or indeed any other doctor, as to the relationship between your mental state and the subject offending, I am prepared to accept that as a matter of probability, such offending was at least in part, brought about your homelessness, lack of prosocial support, an ongoing deterioration in your mental state as described by Dr Cunningham.
37Accordingly, in this context, I do accept Dr Cunningham's opinion of a diagnosis of a Psychotic Disorder brought about by trauma and instability in your childhood home. I do consider that such cases of Muldrock v The Queen, [2011] HCA 39, at paragraphs [53] – [54] and The Queen v Verdins & Ors, [2007], 16 VR 269 and in particular, paragraph [32] requires considerations of just punishment and general and specific deterrence to be tempered given such diagnosis.
38More particularly, consistent with the opinions of the officers from the Department of Human Services and Community Corrections Services, one of the core issues giving rise to your offending is your ongoing homelessness. I do accept the submission of your counsel, that there was indeed some compliance and attempts on your part to comply with the various community corrections order, which unfortunately were interrupted by various periods of incarceration. Furthermore, it is tragic at one level that when housing was potentially found for you on one occasion, you could not be located due to homelessness and on another occasion, you are incarcerated on remand
39As I have pointed out in my earlier Reasons for Sentence, you experienced a tragic childhood which according to Dr Cunningham, has impacted on your mental state, (together with other matters) and that you continue to have mental health problems, impacting on issues involving alcohol and drugs. The difficulty confronting the court is that you have objectively demonstrated ongoing offending, sometimes of a very serious nature.
40Furthermore, you have also demonstrated having difficulty complying with various community corrections orders over the years. In particular, you were reoffending within one month after being ordered to a community corrections order on 16 September 2015, the subject of the current breach proceeding.
41The law requires that issues involving just punishment, general and specific deterrence and perhaps more so in the circumstances of your case, protection of the community, all be considered in determining an appropriate sentence. Of course, the process must be taken in the context of a poor criminal record and as I have stated, various breaches and the restoration of a suspended sentence.
42Against that, consistent with the opinion from those from Community Corrections and the Department of Health Services, one of the core problems is your homelessness and if that is attended to, there is hope that your other concerns involving - seeing your children will occur and ameliorate your problems with alcohol and drugs. I also note the comments by your case officer that the longer you stay in prison, the more likely you will lose any skills of coping within the community.
43The court is also concerned that following any period of imprisonment, that you have an appropriate "safety net" around you to assist with obtaining accommodation and to receive appropriate treatment for your alcohol, drug and mental health problems. In this sense, Community Corrections did comment that it was preferable to have a community corrections order with specific conditions rather being released on parole.
44I intend to convict you of the subject offences, and in relation to the armed robbery offence, sentence you to a period of imprisonment, followed by a Community Correction Order with very specific conditions. For sentences imposed on or after 20 March 2017, irrespective of the time of offending, you may be sentenced to both a community corrections order and a term of imprisonment, provided that the sum of all terms of imprisonment does not exceed one year, (following deduction of pre-sentence detention in accordance with the Sentencing Act 1991, s.18, see s.44(1) as amended by s.12, a sentence of a community corrections order and other Acts, Amendment Act 2016) . In the circumstances of this matter, there is no issue that your pre-sentence detention, pursuant to s.18 of the Sentencing Act is 203 days.
45Please be upstanding.
46In relation to Charge 1, you are convicted and sentenced to a period of imprisonment of eighteen (18) months, after which you are further sentenced to a community corrections order for a period of two (2) years. In particular:
(a)On release from prison, you are to attend the Morwell Community Corrections Centre at 25 Ann Street, Morwell within two working days.
(b)In addition to the core conditions, there will be the further following conditions:
(i)Pursuant to s.48D3A of the Sentencing Act 1991, you are to be assessed and treated, including testing for drug abuse or dependency with the Australian Community Support Organisation, ACSO, and in particular the Community Offenders Advice & Treatment Programs, COATS, or a similar organisation.
(ii)Pursuant to s.48D3B of the Sentencing Act, you are to undergo assessment and treatment, including testing for alcohol abuse or dependence, also at the Australian Community Support Organisation, ACSO, and in particular, undergo a Community Offenders Advice & Treatment Program, COATS, or a similar organisation. Further, you are to be referred for Support Services for alcohol dependency through an addiction specialist, the general practitioner Dr John Donoghue or someone of similar qualifications.
(iii)Pursuant to s.48D3E of the Sentencing Act, you are to undergo any mental health assessment and treatment, that may include psychological, neurological, psychiatric treatment in a hospital or a residential facility.
(iv)Pursuant to s.48D3F of the Sentencing Act, you are to undergo treatment and rehabilitation involving any program that addresses factors related to your offending behaviour.
(v)Pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary.
(vi)Pursuant to s.80 of the Sentencing Act 1991, I direct that you participate in the services specified in the justice plan prepared pursuant to s.83C of the Sentencing Act 1991.
47I declare that you have served 203 days pre-sentence detention and this is to be administratively deducted from the sentence of imprisonment.
48In relation to Charge 2, I convict you and sentence you to a fine of $50.
49In relation to the summary charge which was uplifted at this court, I convict you and sentence you to a fine of $100.
50I grant the disposal order made by the prosecution in relation to the cannabis, sharpened fence paling and clothing items seized by the police during the investigation.
51In relation to Charge 1, I declare pursuant to s.6AAA of the Sentencing Act 1991, that save for your plea of guilty, I would have sentenced you to a period of two years, ten months imprisonment.
52Mr Michelsson, you probably did not take that all in and no doubt your counsel will talk to you about this. The courts had to balance several things. You come to this court unfortunately with a very bad record in terms of breaching conditions in the past and also ongoing offending.
53On the other side of the coin though, I am very aware that you have had what can only be described as a tragic background and people who are expert in the area have made the comment that one of the core problems in relation to you is your lack of accommodation. One hopes that that will be sorted out, once you are out of prison and that will help, I hope, with you overcoming your alcohol and drug problems.
54Part of my job is to protect the community and I cannot have people doing things like what you are doing and be given endless chances, although the court is prepared to give you a chance here after your sentence is completed. You have slightly less than a year to go in prison, then the community corrections order will commence and hopefully, with the assistance of those around you, you can obtain accommodation and try and overcome these problems and hopefully get to the situation where you will have frequent access to your children which seems one of your core issues.
55But you have to understand, and it is just so important that you do understand, that it just cannot be tolerated in the community of going around and offending. Your crimes are not the worse crimes. I am not suggesting that, but they are crimes and very frightening to people who are involved, the victims of your crimes. So you just cannot do that. You just cannot do that.
56I think it is wonderful to see that apparently you are quite interested in line drawing and things like that. It would be great if you can just develop your interests that way because if I recall, the very first time you came on the judicial monitoring, I think you brought a book of what you had - your plans set out. So these things can be done Mr Michelsson, but you are going to have to make a decision yourself too, to do the best you can. People can help you, but you have to help yourself too. Do you understand?
57OFFENDER: Yeah.
58HIS HONOUR: Yes. Now anything about the period of - 203 days is correct isn't it?
59MS TUENO: That's correct, Your Honour.
60HIS HONOUR: Yes, anything else to say about the sentence?
61MR DAVIS: No sir.
62MS TUENO: No.
63HIS HONOUR: Ms Millsom, I direct this to you and to Ms Kile from Community Corrections, in this case you have both been of great assistance. I am well aware of what you told me last time, that after three months, you cannot continue to - I do not know how it works after a period of nearly 12 months, I hope that there can be a re-introduction. If not, I might perhaps make this plain and I - from Community Corrections. If there is some technical reason why a justice plan cannot be brought into account at the time of release, I dare say, it can be brought back to me and a variation sought if that is required.
64But what is clear - I hope that my orders - the intention is that when this man is released from prison, to use the words I used in the sentence, "a safety net", would include the type of things I have been referring to. Yes, I have made that clear?
65MS TUENO: Yes, Your Honour.
66HIS HONOUR: Yes. Mr Davis, no doubt you'll explain in ‑ ‑ ‑
67MR DAVIS: Yes, Your Honour.
68HIS HONOUR: ‑ ‑ ‑ greater detail?
69MR DAVIS: I will sir.
70HIS HONOUR: And I've signed the appropriate orders. Yes, we will adjourn temporarily.
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| ANNEXURE A – “EARLIER REASONS FOR DECISION” | |
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-00799
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY NATHAN MICHELSSON |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Latrobe Valley and Melbourne | |
DATE OF PLEA: | 18 June 2015 (Latrobe Valley) | |
DATE OF SENTENCE: | 16 September 2015 (In Melbourne) | |
CASE MAY BE CITED AS: | DPP V Michelsson | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1308 | |
REASONS FOR SENTENCE
Subject: CRIMINAL LAW
Catchwords: Sentence – theft; recklessly causing serious injury
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Disability Act 2006;
Cases Cited:Boulton v R [2014] VSCA 342; R v Verdins (2007) 16 VR 269
Sentence: 12 months imprisonment followed by a 2 year Community Correction
Order with Justice Plan condition; 6AAA declaration – 18 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Mr D O’Doherty | Solicitor for Office of Public Prosecution |
For the Accused | Mr R Davis (solicitor) | Rod Davis Barrister & Solicitor |
HIS HONOUR:
1 Gary Nathan Michelsson, at the Latrobe Valley Court on 18 June 2015, you pleaded guilty to the following offences:
·Charge 1 - that you at Morwell in Victoria on 12 May 2014, stole a pair of headphones belonging to the Reject Shop.
The offence of theft is contrary to s74(1) of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment.
·Charge 2 – that you at Morwell in Victoria on 20 June 2014, without lawful excuse recklessly caused serious injury to Gurpreet Singh.
The offence of recklessly causing serious injury is contrary to s17 of the Crimes Act and carries a maximum penalty of 15 years’ imprisonment.
2 The prosecution has prepared a written summary of the circumstances surrounding the offending. Such summary has been marked as an exhibit (Exhibit 1), and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
(a)That you are now 32 years of age (born 5 July 1983) and was aged 30 at the time of the offending;
(b)The complainant, Gurpreet Singh (“Singh”), was employed as a console operator at a service station situated at 271 Princess Drive, Morwell, and was 30 years old at the time of the offence. On Monday 12 May 2014 at 2.29pm, you entered the Reject store at Mid Valley Shopping Centre, Morwell, and left your backpack at the front entrance;
(c)You then went to the rear of the store where the audio section is located and removed a set of pink-coloured headphones valued at $5, took the headphones out from their packaging and put such headphones into your pocket. You left the empty packaging on a shelf;
(d)Another customer in the aisle observed your movements, as did a staff member. Your actions were captured on CCTV and made available to the police (Charge 1, theft);
(e)On Friday 20 June 2014 at approximately 2.40am, you attended at the United Service Station, Morwell, and lifted one of the fuel pumps activating an alarm within the store;
(f)Singh heard the alarm, but could not see anyone outside so he opened the front doors, after which he saw you and enquired if you needed fuel. You then started yelling at Singh, asking why he was “calling” him;
(g)Singh told you “you took the pump off, do you need any fuel?”, but you kept yelling at him angrily, trying to get up into his face;
(h)Singh then told you that he was calling the police, and went inside to do so. When the doors were closing behind Singh, you forced them open and followed Singh inside, who then pushed you out of the doors causing you to fall on the ground. You then got back up, again stopped the doors from closing, entered the store with Singh retreating behind the counter in the store. As Singh was walking you kicked him to the back;
(i)Singh got behind the counter and picked up a rod that was there while he pressed the duress button and backed away from you. You got in his face again. Singh tried to use the rod to push you away but you punched him in the face;
(j)You then got a meat cleaver, holding it in your right hand, and then used such meat cleaver on Singh. Blood is seen on the floor of the service station (Charge 1 – recklessly causing serious injury);
(k)Singh then went behind the counter and attended to his wound by wrapping paper towels over his arm and called an ambulance, after which you came over and assisted Singh, telling him that you were “sorry”.
(l)At 3.16am police arrived at the service station and spoke with both Singh and you. At that time, you told the police that you had only done it because Singh had “hit you first” in the head and “it wasn’t your fault”;
(m)An ambulance arrived at the scene and Singh was conveyed to the Latrobe Regional Hospital where he was treated for an 8 centimetre-deep laceration to his left forearm and a small laceration to the webbing of his thumb on his left hand. The third, fourth and fifth digits of the left hand had no movement and four tendons required repair;
(n)You were arrested and later interviewed by police. During the course of such interview you said, amongst other things that:
· (Q62) – that you had cracked the shits and had a go at Singh and that Singh had hit you on the head with a metal pole so he got cut
· (Q63) – that it wasn’t personal but you weren’t going to get hit in the head with a pole and not do something about it
· (Q72-8) – that you wanted to go in and ask for directions but you could not remember where to go and that you were just looking at shit, and Singh had tackled you first
· (Q91-108) – that you used a sharp object, an implement that you used to cut up meat and all that shit when you’re camping, and that should’ve been in your bag, but that you might’ve had it on you
· (Q116) – that it was an instant reaction and you pulled out the cleaver and actually went like that at him and got him by accident
· (Q126) – that it was only a little scratch on Singh’s arm
· (Q128-132) – that you were going to have a go at him because he pushed you on your arse and that you’d done nothing to him and that Singh had attacked you
· (Q135) – that you didn’t mean to do what you did
· (Q138-144) – that you picked up the pump as you thought you saw it leaking on the floor
· (Q153) – that you didn’t know where the cleaver went
· (Q199) – that the knife got Singh by accident, and that’s when you freaked out
· (Q204) – that the whole night’s been fucked, everything’s been fucked
· (Q210) – that it wasn’t personal, it was just fuckin’ dumb
· (Q243) – that in shops you just pick up things in shops, look at them and move them to another aisle
· (Q260) – that it’s bullshit that you put the earphones in your pocket
· (Q264) – that you didn’t say anything and didn’t know what they were on about.
3 Counsel for the prosecution tendered a video of CCTV footage of the offending at the service station (Exhibit 4). I observed the video during the course of the plea.
4 Counsel informed me that, as at the date of the plea, you had served 363 days in custody, up to but not including, 18 June 2015. You have been on remand since the date of your arrest on 20 June 2014. Counsel for the prosecution noted that you had served a sentence of three months’ imprisonment during that time and, in particular, that it extended for 91 days from 17 November 2014 to 6 February 2015.
Your criminal record
5 Your criminal record, the contents of which you agree were accurate, was tendered (“Exhibit 2”). I note the following:
(a)On 6 February 2001 at the Moe Magistrates’ Court you were sentenced to a Community-Based Order (“CBO”) for six months, without conviction, in respect of a theft of a motor vehicle and unlicensed driving;
(b)On 28 August 2001 at Moe Magistrates’ Court you were convicted and sentenced to a Community-Based Order for three months in relation to the offences of burglary, theft and going equipped to steal/cheat;
(c)On 22 October 2001 at Moe Magistrates’ Court it was proven that you had failed to comply with a Community-Based Order in relation to the offending on 6 February 2001. Also on that day, you were convicted and sentenced to a further Community-Based Order for three months in relation to the offences of theft from shop and failing to answer bail;
(d)On 19 May 2003 at the Moe Magistrates’ Court you were convicted and sentenced to a Community-Based Order for six months in relation to the offences of possessing and carrying a handgun without a licence and possessing an unregistered handgun;
(e)On 5 March 2007 at the Sale Magistrates’ Court you were convicted and sentenced to a six month Community-Based Order in relation to offences involving intentionally causing damage, using indecent language in a public place, drunk in a public place and acting in a disruptive manner;
(f)On 15 May 2007 at the Sale Magistrates’ Court you were convicted and sentenced to a Community-Based Order for 12 months with a variety of conditions in relation to offending involving reckless conduct endangering serious injury, recklessly causing serious injury, make threat to kill, unlawful assault and criminal damage, together with assault with weapon;
(g)On 9 May 2008 at the Latrobe Valley Magistrates’ Court it was found that you had failed to comply with the Community-Based Order in relation to the offending for which you were convicted on 15 May 2007. Such Order was cancelled and you were sentenced to three months’ imprisonment, suspended for 12 months under the then s27 of the Sentencing Act 1991. Furthermore, on that day, you were convicted of theft, escape from custody from a police member, burglary, theft from shop, criminal damage, recklessly causing injury, unlawful assault, failing to answer bail, entering building with intent to steal, intentionally damaging property and burglary, for which you were sentenced an aggregate
18 months’ imprisonment with a non-parole period fixed at six months;
(h)On 10 July 2009, at the Latrobe Valley Magistrates’ Court, it was found that you had breached the suspended sentence of three months made on 9 May 2008 and such sentence was restored. Also on that date you were convicted of theft and using threatening words in a public place and sentenced to an aggregate three months’ concurrent imprisonment. Furthermore, on that date you were convicted of theft from a shop and sentenced to a further one months’ imprisonment, directed to be served concurrently with the other sentence of imprisonment imposed that day;
(i)On 20 August 2010 at the Latrobe Valley Magistrates Court you were convicted and sentenced to three months’ imprisonment concurrent with other sentences in relation to the offence of recklessly cause injury;
(j)On 20 December 2010 at the Latrobe Valley Magistrates’ Court you were convicted of wilfully trespassing in a public place and the matter was adjourned for sentence for six months for you to comply with a Justice Plan dated 16 December 2010;
(k)On 6 September 2011 at the Latrobe Valley Magistrates’ Court you were convicted of unlawful assault, attempt to commit an indictable offence, carrying a dangerous article in a public place, without authority or excuse enter a private place, make threat to kill, contravene a Family Violence Intervention Order and four charges of intentionally damaging property, and was sentenced to 14 months’ imprisonment with a non-parole period fixed of eight months;
(l)On 20 August 2012 at Latrobe Valley Magistrates’ Court you were convicted and fined $300 for the offence of criminal damage by fire (arson);
(m)On 24 September 2012 at Latrobe Valley Magistrates’ Court you were convicted and sentenced to 180 days’ imprisonment, of which all were suspended save for 20 days over an operational period of 18 months for offences involving recklessly cause injury, criminal damage and unlawful assault;
(n)On 8 April 2013 at Latrobe Valley Magistrates’ Court you were convicted and sentenced to 12 months’ imprisonment with a non-parole period of six months in relation to the offences of stalking another person, contravening a Family Violence Intervention Order, threat to inflict serious injury, unlawful assault and wilfully damaging property. Also on that date, it was proven that you had breached the Suspended Sentence Order made on 24 September 2012 and the balance of the sentence of 160 days was restored;
(o)On 17 June 2013 at the Latrobe Valley Magistrates’ Court you were sentenced to six months’ imprisonment of which three months was suspended pursuant to the then s27 of the Sentencing Act 1991 for an operational period of 12 months in respect of the offences of contravening a Family Violence Order, aggravated assault on a female and criminal damage.
Victim Impact Statement
6 Counsel for the prosecution tendered a Victim Impact Statement of Singh declared 20 May 2015 (“Exhibit 3”).
7 In that statement, Singh describes the difficulties that he has with his left arm because of the injuries that he suffered. He describes his inability to perform heavy chores, or even carrying his son, as his arm is weak. He has been back to India where his family has farms and it is very difficult for him to perform any manual labour because of the injury.
8 After the offending he could not work for two months, during which time his partner was not working, as their baby had just had heart surgery. There are ongoing problems about paying rent, everyday living and taking care of his bills. Since he has been in India, he cannot work and cannot help his family financially.
9 He notes that the offending not only has affected him, it has affected his family as well as his partner, and he is always afraid that when he goes out something like the attack will happen again. He is particularly concerned that he has difficulties holding his son as any attempt to hold him for a couple of minutes causes his arm to go weak, and he is frightened that he will fall.
10 Counsel for the prosecution also tendered two folders of photographs of the injuries suffered by Singh. I have observed such photographs.
Material tendered by your counsel
11 Your counsel, in support of your plea in mitigation, tendered the following documents:
·
Exhibit A – reports of the psychologist, Dr Cunningham, dated
28 February 2013 and 14 June 2015;
·Exhibit B - Short report from Latrobe Regional Hospital with letter dated 28 February 2013;
·Exhibit C – Discharge summary from the Latrobe Regional Hospital dated 2 June 2011;
·Exhibit D- Sentencing snapshot dated June 2014 in relation to “causing serious injury recklessly”;
12 Based on some of the materials tendered and the submissions made by your counsel, I set out the following details in respect of your personal circumstances, your educational and vocational background.
13 Dr Cunningham initially examined you on 19 February 2013, when you were facing earlier charges. At that time, you informed Dr Cunningham that you were raised by your mother in Morwell and that you had only met your biological father “a couple of times” and described him as a “good bloke”.
14 You described that your mother was “wild” and “was around a lot of bikies” and that you were raised in the context of motor cycle clubs. During that time you observed a lot of violence and also suffered significant physical and sexual abuse when living with your mother.
15 When you were aged four you were placed by the Department of Human Services into care and you lived in boys’ homes to the age of 17. You referred to these homes as “kids jail” and that the time you spent there was “horrible”. In particular, you stated you did not understand why you were taken away from your mother and what you had done wrong to be placed in such homes. During your stay at such homes you were also subjected to violence from other children and staff.
16 You attended primary school in Morwell and later attended Kurnai College, but left school during Year 9 because you could not “take it” with regard to school work. At school you had a teaching aide during secondary school.
17 On leaving school you began gardening employment with an uncle and, thereafter, became bored with such work and gained employment in several different short-term labouring jobs.
18 You were placed on the Disability Support Pension in about 2011 in respect of Tourette’s Syndrome, Schizophrenia and Attention Deficit Hyperactivity Disorder.
19 From the age of 17 you “attempted” to live with your mother, but after an argument you moved into a refuge. Later still you moved in with a partner, Krystal, with whom you maintained a relationship for about five-and-a-half years and had two children, Harley now aged about 12 and Isabelle, now aged about nine.
20 In particular, you stated you could not function during that relationship due to the alcohol and drug abuse, and that you would become violent when abusing drugs and alcohol. After the relationship came to an end you stated that you effectively “died” in the absence of your children.
21 You described to Dr Cunningham that after that relationship breakdown you commenced to associate with negative peers and had various periods of homelessness. After a short attempt to reconcile with Krystal, that relationship broke down again and you had, what you described as an “emotional breakdown”, which involved an escalation of your drug abuse and negative peer associations.
22 You then formed a relationship with Caroline, during which time you both abused illicit substances which was continuing at the time that you were incarcerated in 2013. At that stage you had not spoken to your mother for one year.
23 At that first consultation with Dr Cunningham, you reported that you had suffered several head injuries from being beaten with baseball bats and also being hit by a car at the age of 26.
24 You commenced using cannabis at the age of 14 and reported regular use of cannabis to the age of 15, after which alcohol had become a “big problem”, with you drinking up to one slab of beer per day. You did note at that first consultation, that your use of alcohol through intervention of ACSO Coates, reduced your alcoholic intake. You also reported prior abuse of dexamphetamine and morphine.
25 On the day of the first consultation you described to Dr Cunningham that you are paranoid and do not trust people. You believe that you used to experience auditory and visual hallucinations and that sometimes you continue to talk to yourself.
26 You had, at that time, been prescribed Seroquel and Epilim and reported a history of suicidal and self-harm behaviour, in that you had overdosed and had attempted to run in front of trains. In particular you had been treated at the Flynn Ward of the Latrobe Valley Hospital and continued to report ongoing symptoms of anxiety and depression.
27 At that time, Dr Cunningham considered that you suffered a substance-induced Psychotic Disorder, presenting with significant paranoia and auditory hallucinations when abusing drugs and alcohol.
28 At that time you were assessed to have a slightly below-average range of intelligence.
29 At your second consultation with Mr Cunningham, you described that you continue to be medicated with Epilim and Seroquel, and that you saw your children on a sporadic basis. You stated that your support in the community is through your mother and an older Department of Human Services case manager.
30 You describe that your daughter was sexually abused by your ex-partner’s new partner and you do not know how to cope with this stress. You had been living in a boarding house in the community where you were surrounded by people using methylamphetamine, and that one of your neighbours had slit another person’s throat in the next room.
31 You stated that you could not cope with the stress and decided to camp in the bush for a few days in a place where you would go when you needed to clear your mind. You were returning from the bush at the time of the offence involving recklessly causing serious injury.
32 In his opinion, Dr Cunningham states, in part:
“In my opinion Mr Michelsson continues to present with a substance-induced psychotic disorder. In my opinion, Mr Michelsson was predisposed to the development of a psychotic disorder by the trauma and instability in his childhood home. He was placed into care at an early stage. He did not have stable and supportive role models and was exposed to violence and antisocial behaviour. He relied on drug and alcohol abuse as a form of coping with life stressors. In my opinion Mr Michelsson’s drug abuse contributed to the deterioration in his mental state. He developed paranoid delusions and increased deficits in adaptive behaviour. He has been unable to maintain stability with regard to employment, accommodation and relationships. He is homeless in the community, living in boarding houses and camping in the bush during the period of his offending. In the context of his delusions, Mr Michelsson is prone to over-perceiving threat and reacting in excess of what is appropriate. In my opinion, Mr Michelsson’s offence behaviour occurred in the context of his homelessness, lack of pro-social support and ongoing deterioration in his mental state.” [my emphasis]
33 Dr Cunningham did think you had some current protective factors in that you could live at your mother’s property and there would be stable accommodation.
34
I also refer to the Discharge Summary from the Latrobe Regional Hospital on
2 June 2011. You had been admitted to that hospital on 3 May 2011, with complaints of confusion, auditory hallucinations, suicidal ideation and feelings of hopelessness and helplessness. Furthermore, at that time you had been homeless for approximately a week and had been engaged in poly-substance use, including various inhalants. I also refer to an earlier Discharge Summary from that hospital when you were discharged on 4 September 2007, wherein it is recorded that you have a long history of alcohol and substance abuse.
35 I also refer to the letter dated 2 November 1998 from Dr T.K. MacLachlan, a child psychologist to the Department of Human Services. In that letter Dr MacLachlan diagnosed you to be suffering from an Adjustment Disorder with depression, Tourette’s Syndrome of a mild degree, Language Disorder and insecurity and mild paranoia, secondary to your earlier life experiences.
36 In support of your plea in mitigation, your counsel informed me that your instructions were consistent with what you stated in your record of interview, that you were first hit by Singh with a metal rod and you just retaliated. Of course, this is what not has been agreed to in the summary put by the prosecution. I might add that, on viewing the CCTV footage, it is not clear whether the rod was used by Singh as an offensive or defensive weapon.
37 Your counsel pointed out that the plea which had been entered into was negotiated in that, initially, you were charged with aggravated burglary and it was only when the charge was changed to recklessly causing serious injury that you pleaded, and this was at the earliest opportunity. I was informed that at no stage did Singh have to give evidence, and although there was a listing of a contested committal, no witnesses were called and Singh did not have to attend. Your counsel agrees that your lengthy criminal record was “horrendous” and involved various acts of violence.
38 Your counsel did point out that an appropriate disposition would be time served, together with a lengthy Community Correction Order or alternatively, a lengthy parole period. In this respect he noted that although you have breached some orders in the past you have also completed orders. Your counsel also informed me that, in the past, there have been Justice Plans attached to various orders and that, indeed, it would be appropriate to seek a Justice Plan in this matter.
39 Counsel referred to the contents of Mr Cunningham’s report and stressed the tragic upbringing that you have undergone. Since being in custody you have had some phone contact with your children and, of course, you are keen to have face-to-face contact with them on your release. Furthermore, as you stated to Dr Cunningham, you have had the support of your mother and on release from custody you could live with her on her property.
40 Your counsel also informed the Court that you appeared at the Latrobe Valley Magistrates’ Court on 17 November 2014 on unrelated matters. At that time you pleaded guilty to two counts of shop steal, one count of criminal damage, and one count of resisting arrest. The offending breached an earlier suspended sentence of three months, which was restored in full.
41 Counsel for the prosecution submitted that it was of some importance that you get appropriate assistance when you are released from custody, whether that be by way of a community correction order or through the Parole Board.
42 Counsel for the prosecution also confirmed that it was a negotiated plea and you are entitled to a "discount” for the guilty pleas.
43 After consideration, the matter was adjourned to seek a Justice Plan, pursuant to s80 of the Sentencing Act 1991. In a report dated 20 August 2015, the Department of Human and Health Services advised that a Justice Plan was appropriate under the relevant legislation. In particular, case management has the potential to assist you living independently in the community, addressing issues in order to spend more time with your two children and to access services and supports to help reduce your risk of re-offending. I do note that the authors of the Report note that your mother advises that it is not currently possible for you to reside with her.
44 I also requested that you be assessed for a Community Correction Order. In a report dated 1 September 2015, the Department of Justice and Regulation advised that you had been assessed as suitable for a Community Correction Order, together with the addition of the following conditions: treatment and rehabilitation in relation to drug and alcohol problems (s48D(3)(a) of the Sentencing Act 1991), treatment and rehabilitation in relation to mental health (s48D(3)(e) of the Sentencing Act 1991), treatment and rehabilitation in relation to programs reducing re-offending (s48D(3)(f) of the Sentencing Act 1991), supervision (pursuant to s48E of the Sentencing Act 1991), judicial monitoring (pursuant to s48K of the Sentencing Act 1991) and a Justice Plan pursuant to s80. In that report, you were assessed as being a high risk of re-offending according to the Level of Service Risk Assessment Tool. The Court notes that the conditions and requirements of such order have been explained to you and you agree to comply with those conditions.
Conclusion
45 The crime of recklessly causing serious injury is a serious offence, as is evidenced by the maximum penalty being 15 years’ imprisonment. Although you assert that you were provoked to some extent to commit the crime, it cannot be gainsaid that you brought the meat cleaver out of your bag and caused the injuries to Singh.
46 It must be borne in mind that you have pleaded guilty to that offence and must be dealt with according to relevant sentencing considerations.
47 The use of meat cleavers, or indeed knives, to injure people will not be tolerated in the community and, in normal circumstances, just punishment, general and specific deterrence become very important sentencing considerations and lead to a significant prison sentence.
48 It is also important to bear in mind the effects your offending has had on Singh in that he has ongoing difficulties with his arm as a result of your offending.
49 Further, your offending must be seen in the context of what can only be described as a horrendous criminal record including various crimes of violence. The offence of stealing the headphones belonging to the Reject Shop, although of a lesser nature, must also be seen in the context of earlier convictions for theft.
50 In mitigation, I do accept that you indicated that you would plead guilty as early as possible, given that initially you were charged with aggravated burglary but later, you pleaded to the lessor charge of recklessly causing injury following negotiations with the Director of Public Prosecutions. Furthermore, I do accept that there was no premeditation about the act, and the meat cleaver was in your bag to be used as a utensil when you camped in the bush.
51
More particularly, I accept the opinion of Dr Cunningham, that you suffer a psychotic disorder, most probably brought about by the trauma and instability of what can only be described as a tragic childhood. Furthermore, I also accept the opinion of Dr Cunningham that, in the context of the delusions suffered by you as a result of your psychotic disorder, you are prone to
over-perceiving threat and reacting in excess of what is appropriate.
52 Accordingly, based on well-established authority, I consider the sentencing considerations of just punishment and general and specific deterrence have to be significantly tempered given the diagnosis of a psychotic disorder brought about by trauma and instability in your childhood home (see Muldrock v R [2011] HCA 39, [53] – [54]; and R v Verdins & Ors [2007] VSCA 10, and in particular at [32]).
53 I refer to the guideline judgment given by the Court of Appeal in Boulton v R [2014] VSCA 342 pertaining to the operation of Community Correction Orders, which have been available in Victorian courts since January 2012. As the court stated:
“the community correction orders are a radical, new sentencing option with the potential to transform sentencing in this state.”
54 Although a non-custodial order, such order has certain mandatory conditions laid down by the legislature, and the sentencing court can attach to a Community Correction Order, a range of conditions which are variously “coercive, prohibitive, intrusive and rehabilitative”. As pointed out by the Court of Appeal, a Community Correction Order is a “flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously”.
55 I refer to s5(4) and (4)(c) of the Sentencing Act 1991 and note that the Court of Appeal has stated that s5(4)(c):
“… prohibits the imposition of a sentence of imprisonment, unless the sentencing court has paid specific and careful attention to:
(a) the purposes for which the sentence is to be imposed on the offender and
(b) where those purposes can be achieved by a CCO, to which one or more of the specified onerous conditions is attached.” (See Boulton, op cit, [120]).
56 I also refer to Appendix 1 to the Court of Appeal judgement which is headed “Community Correction Orders: Guidelines for Sentencing in Court”. Pursuant to that document, it is necessary that I assess the objective nature and gravity of the offence and moral culpability of the offender. As I have already recorded, although I consider the offence of recklessly causing serious injury objectively serious, your moral culpability is reduced by the principles I have referred to and, furthermore, general and specific deterrence do not have the same force. I am then called upon to consider whether:
(a)the crime is so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment will suffice to satisfy the requirements of just punishment; or
(b)a Community Correction Order, either alone or in conjunction with a sentence of imprisonment, would satisfy the requirements of just punishment.
57 After careful consideration, I consider the appropriate sentencing disposition should be a period of imprisonment, together with a Community Correction Order for a period of two years with various added conditions.
58 Mr Michelsson would you be upstanding, please? I order:
(a)In relation to Charge 2, recklessly causing serious injury to Singh, you are convicted and sentenced to a period of 11 months’ imprisonment. This is the base sentence on this indictment.
(b)In relation to Charge 1, involving theft, you are convicted and sentenced to two months’ imprisonment;
The Court directs that one month of the sentence imposed on Charge 1 be cumulated upon the sentence imposed on Charge 2. The total effective sentence is 12 months’ imprisonment.
59 I declare, pursuant to s6AAA of the Sentencing Act that, save for your plea of guilty in relation to each of the charges, I would have sentenced you to a period of 18 months’ imprisonment.
60 The Court declares that you have served a period of 362 days by way of presentence detention and such period of time is to be deducted administratively as time already served upon the sentence.
61 In relation to Charge 2 you are further sentenced to a Community Correction Order for a period of two years after your release from prison. I further order that the following conditions are to be added to the Community Correction Order:
(a)pursuant to s48D(3)(a) of the Sentencing Act 1991, you are to undergo any assessment and treatment (including testing) for drug abuse or dependency;
(b)pursuant to s48D(3)(b) you are to undergo any assessment and treatment (including testing) for alcohol abuse or dependency;
(c)pursuant to s48D(3)(e) of the Sentencing Act 1991, you are to undergo any mental health assessment and treatment that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility;
(d)pursuant to s48E(3)(f) of the Sentencing Act 1991, you are to undergo any program that addresses factors related to your offending behaviour;
(e)pursuant to s48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary to the Department of Justice and Regulation;
(f)pursuant to s48K of the Sentencing Act 1991, you are to be judicially monitored every three months and will be required to report to this Court on Friday, 11 December 2015 at 10.00am before me.
(g)pursuant to s80 I direct that you participate in the services specified in the Justice Plan prepared pursuant to s80(3)(c) of the Sentencing Act 1991
62 Further, in relation to Charge 2, the Court orders that pursuant to s78(1) of the Confiscation Act 1997, the forfeiture to the State of the property referred to in the Schedule, and I further direct that it be placed in the custody of the Chief Commissioner of Police and held by him until 28 days from this date or the conclusion of any appeal proceedings.
63 Mr Michelsson, you might not have taken all that in, and I dare say it will be explained to you by your counsel in due course. The upshot of it means that you will be released subject to any other sentences you might have. In relation to this sentence, you effectively only have a couple more days to serve. The total sentence is 12 months and you are very close to that now, but thereafter you are based on what is called a Community Correction Order, and that also is a sentence, and it is very important that you comply with the conditions of that.
64 What I have to stress to you is that most of those conditions are to benefit you, to help you with your drug and alcohol problems, to help you with your psychological problems, to help you find accommodation and things like that. So it is very, very important that you try and comply or do comply with that order. But if you do not comply with it, the chances are you will be brought back for breaching that order and I will have to deal with you, and next time round, if you do not comply with that order, my options are very limited and prison would have to be a very real option for you.
65 Now you have a frightful record. You probably appreciate that more than anyone. You have got a chance now to perhaps do the things which are in that order, hopefully see more of your children and hopefully get your home life worked out to some degree. But it is up to you, because if you fall off again, you will be back before me. Do you understand all that?
66 OFFENDER: Yeah.
67 HIS HONOUR: As I say, look, it is quite a mouthful you have to take in, no doubt your counsel will explain it to you, and you will have to sign some documents before you leave now.
68 Anything to say by counsel?
69 MR DAVIS: No, Your Honour. If Your Honour please.
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