Director of Public Prosecutions v Mitchell
[2021] VCC 833
•28 May 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01613
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CALEB MITCHELL |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 May 2021 |
DATE OF SENTENCE: | 28 May 2021 |
CASE MAY BE CITED AS: | DPP v Mitchell |
MEDIUM NEUTRAL CITATION: | [2021] VCC 833 |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Crimes Act 1958 ss23, 74, 75A, 317AC, 317AE
Sentencing Act 1991 ss6AAA, 16, 89
Cases Cited: Jaeger v The Queen [2020] VSCA 116
Sentence:Total Effective Sentence of 44 months with Non-Parole Period of 29 months; Licence Disqualification of 36 months; 6AAA: 5 years with 3 years Non-Parole Period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Crouch | Office of Public Prosecutions |
For the Accused | Mr L. Gwynn | Valos Black & Associates |
HIS HONOUR:
1Caleb Mitchell, you have pleaded guilty to the following offences which carry the following maximum penalties:
| Charge Nos. | Charge | Max Penalty |
| 1 | Theft contrary to s74 of the Crimes Act 1958 | Level 5 imprisonment (10 years maximum) |
| 2 | Armed Robbery contrary to s75A of the Crimes Act 1958 | Level 2 Imprisonment (25 years maximum) |
| 3 | Theft contrary to 74 of the Crimes Act 1958 | Level 5 imprisonment (10 years maximum) |
| 4 | Recklessly Expose Emergency Worker Risk-Driving contrary to s317AE(1) of the Crimes Act 1958 | Level 5 imprisonment (10 years maximum) |
| 5 | Engage in Conduct Endangering Persons contrary to s23 of the Crimes Act 1958 | Level 6 imprisonment (5 years maximum) |
| 6 | Theft contrary to s74 of the Crimes Act 1958 | Level 5 imprisonment (10 years maximum) |
| 7 | Intentionally Expose Emergency Worker Risk-Driving contrary to s317AC of the Crimes Act 1958 | Level 3 imprisonment (20 years maximum) |
2Your plea of guilty to a serious offence involving a motor car attracts the operation of s89(2)(b) Sentencing Act. Any license you hold must be cancelled and you will be disqualified from driving for at least two years.
3Section 16(3D) of the Sentencing Act presumes cumulation on Charges 4 and 7.
· Section 16(3D) Every term of imprisonment imposed on a person for an offence against section 317AC, 317AD, 317AE, 317AF or 317AG of the Crimes Act 1958 must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
4You have admitted your prior criminal history. I shall return to that later in these sentencing remarks.
Circumstances of Offending
5The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows:
6On 27 January 2020 at about 9.30 am, you attended the cigarette counter at Woolworths Supermarket in Coburg. You stole a carton of cigarettes worth $275 (Charge 1 – Theft).
7On 28 January 2020 at about 11.30 am you entered Jazzy's Fish and Chips Milk Bar in Williamstown and approached the cash register. The shop was empty and the attendant was cleaning in the backyard of a house adjoining the shop. A sensor notified the attendant that someone had entered the shop. You forced open the cash register. The attendant entered the shop and saw you taking money from the cash register. You took a meat cleaver and raised it towards the attendant. The attendant ran away calling for help. You took about $100 and ran out of the store (Charge 2 – Armed Robbery).
8At about 3.30 pm on 28 January 2020, you attended the Boundy's IGA Super Store in Essendon and stole another carton of cigarettes (Charge 3 – Theft).
9On 30 January 2020 at about 9.30 pm, an anonymous caller contacted Triple 000 and reported a car parked at the Albion Charles Pub in Northcote. Police covertly attended and observed the car. A few minutes later you got into the car and turned it on. Police positioned their car in front of your car and activated the emergency lights. Police exited the front passenger side of the police car to arrest you. At this time, you accelerated and made glancing contact with the front bumper bar of the police car. This did not cause any discernible damage to the front bumper; however, an emergency light with attached number plate 1LN6UZ from the police car became detached and was later found in your car (Charge 4 – Recklessly Expose Police Officer to Risk).
10Then next, police entered the Albion Charles Pub carpark and activated their emergency lights. You accelerated away and drove at high speed through the nearby 'BWS Drive Through Bottle Shop' causing the attendant to jump out of the way of your speeding car (Charge 5 – Engage in Conduct Endangering Persons).
11Other police units attended and attempted to block you in, but you evaded them and police lost sight of you driving away on the wrong side of St George's Road.
12On 31 January 2020 at about 3.55 am, police observed you driving the grey Range Rover and started covertly following you. You stopped at Coles Express on Lygon Street in Brunswick East, got out of the car and took a slab of spring water (Charge 6 – Theft).
13Then at about 4 am, police were patrolling in an unmarked car and recognised your grey Range Rover on Edwards Street in Fitzroy North. They followed you as you entered a 'One way in, one way out’ carpark attached to the apartments at 272 Barkly Street. The police car was directly behind you at this point. You looked directly at the police car, then reversed directly towards it. Police believed you intended to ram the car, so Senior Constable Taylor closed the distance between the cars to minimise your capacity to build up momentum. You rammed the police car with enough force that the airbags were deployed, and the doors became jammed (Charge 7 – Intentionally Expose Police Officer to Risk).
14You then left your car through the driver's window and fled on foot. Police found you hiding in St George's Road, Fitzroy at about 4.15 am and they arrested you.
15When police searched the grey Range Rover they located a meat cleaver, a slab of spring water, and license plate 1LN6UZ with police lights attached.
16You were transported to the Fawkner Police Station where the forensic medical officer, Dr Michael Barrett assessed you and found you unfit for interview.
17You were remanded in custody in September 2020 and you have now spent 483 days, excluding today, on remand by way of pre-sentence detention. I will reckon that period as already served.
18You entered a plea of guilty at the committal mention on 24 November 2020.
Objective Gravity and Moral Culpability
19I turn now to consider the objective gravity of, and your moral culpability for your offending.
20The seriousness of the offences of armed robbery and intentionally exposing a police officer to risk by driving is immediately marked by the maximum penalties for these offences.
21Whilst the offence of armed robbery on this occasion may be a less serious example than many instances before this court, Mr Gwynn who appeared on your behalf, readily conceded that the production and brandishing of the meat cleaver must have been a frightening experience for your victim.
22Moreover, you chose a classic soft target for this offending. Those who work in convenience retailing deserve and must be afforded protection from those who seek to steal by the terrifying production of such weapons as you chose.
23On the charge of intentionally exposing an emergency work at risk by driving, I note the observations of the Court of Appeal in the case of Jaeger. As the court said in that case, the message needs to be sent clearly and unequivocally to like-minded individuals that this conduct cannot and will not be tolerated.
24Moreover, your offending on these charges overall was accompanied by other reckless acts of driving.
25In all, the objective seriousness of your offending attracts principles of deterrence, denunciation, just punishment and protection of the community.
26It is necessary to consider carefully the question of your moral culpability. Your offending occurred in the context of your long-standing, largely untreated schizophrenia, depression and anxiety; together with (perhaps not surprisingly) a long bout of homelessness. Your underlying condition, however, was exacerbated by your severe bout of drug use before the offending, and the fact that you had not slept for about a week.
27I shall return to the question of your moral culpability and these issues of underlying illness and drug use after I consider your personal circumstances.
Personal circumstances
28I turn now to a consideration of your personal circumstances.
29You are 27 years old and you were born on 14 December 1993. You are the eldest of four siblings, with one biological sister and two maternal half-brothers. You have a positive relationship with your siblings and maintain some contact with them.
30Your parents separated when you were four. Your mother re-partnered shortly after separating from your father. You were largely raised by your mother and stepfather and subjected to sustained domestic violence from both parents through your childhood. They frequently and severely beat you. You left home at the age of 15 due to the difficulties in your relationship with you stepfather. From this time, you have been homeless, without supports and living out of your car.
31You were educated to Year 9 and at that time you left home. You were home schooled in grades four and five due to behavioural issues. You were a poor student and struggled throughout school having difficulties with peers and teachers, and poor attendance. You have not participated in any formal education since you left school.
32You began smoking cannabis at age 11. Since the time you left home, you drank heavily for two years following. Since the age of 17, you drink infrequently as you started to experience auditory hallucinations. You began using heroin and methamphetamine intravenously at age 18. You would use heroin monthly, and methamphetamine weekly. Since the breakdown in your relationship two years ago, your drug use escalated to daily use of one point of heroin and at least half a gram of methamphetamine. In the past two years, you also began using cocaine, amphetamine, GHB and LSD. You are currently on methadone but continue to experience cravings and you have found abstinence difficult.
33You received a disability support pension since the age of 15. Your only employment has been at Subway for about a month when you were 17. In custody, you have been working in the manufacture of nuts and bolts.
34You lived in Queensland for a number of years from at least 2011 or 2012 but left (apparently) when you amassed a number of outstanding warrants. You lived in Sydney for a year or so before returning to Melbourne about two years ago.
35You have had one significant relationship with Tonille Smith. You were in a relationship for four years and separated, as I said, about two years ago. You failed to cope well with the breakdown of your relationship. You have one daughter from this relationship, Oceania, who is now seven. Oceania lives with Tonille and her stepfather and is not aware that you are her father, although you maintain monthly contact with her.
36You have some telephone contact with your mother. You do not have any contact with your father. You do not consider that you have any friends.
37You have a considerable number of prior court appearances dating back to 2012. The majority of your offending occurred in Queensland between 2012 and 2016. These include drug possession and use, assaults and various crimes of violence, property damage, failing to appear on bail, public behaviour offences, dishonesty, possession of a weapon and convictions for obstructing a police officer and an ambulance officer.
38Your offending tracks your move to New South Wales where you have convictions from 2016 for assault, drugs, breaking and entering, driving offences and some public disorder offences.
39You have convictions from the time of your return to Melbourne for drug, weapon, dishonesty, assault and fail to answer bail offences.
40Over the years, you have served three previous periods of imprisonment, each only of a couple of months' duration. This is far and away the longest time you have spent in custody.
41I have read the psychological report of Sandra Cokorilo. Ms Cokorilo considers that your drug taking from a young age developed as 'an early maladaptive mechanism to cope with emotional distress'. She considers that your continued drug use is a form of self-medication and arises from your poor coping mechanisms. In turn, your drug use has reduced your insight into your own mental health.
42Ms Cokorilo considers your emotional and social development has been compromised by your drug use; impairing your cognitive ability and insight, decision-making and causing a worsening of your underlying mental health issues.
43Turning then to your mental health diagnosis, Ms Cokorilo found that you have reported schizophrenic symptoms since childhood and you have described symptoms consistent with major depressive disorder and generalised anxiety disorder. Ms Cokorilo has documented that you have suffered two psychotic episodes in the past, you have attempted suicide and you had a four-day psychiatric admission a few years ago.
44Since you have been in custody on this occasion, you have been prescribed olanzapine. I interpose in my analysis of the psychological report to note that you have been medication compliant whilst in custody. The present health file indicates you have attended all appointments and you are medicated with antipsychotics, anti-depressants and antianxiety drugs. You are also receiving methadone in relation to your previous heroin addiction.
45A key issue of dispute between Mr Gwynn and Mr Crouch lies at the effect of your drug use against your history of mental illness, and the influence of each on your offending. At the heart of this lies the question of whether your moral culpability for your offending should be reduced by your mental health issues. Ms Cokorilo states:
'It appears that there are a number of factors outlined above which are linked to his offending behaviour and impaired functioning. Whilst his acute intoxication with substances contributed to actual commission of the offences, it is thought that his complex psychiatric profile, exacerbation of his mental health issues, psychosocial adversity and absence of supports, have played a significant underlying role in his self-medicating'.
46Then, at [114], [115], Ms Cokorilo states:
'It seems clear that at the time of offending Mr Mitchell was not able to think clearly, make calm and rational choices and appreciate the wrongfulness and consequences of his conduct. It is likely he would have exerted more control over his behaviour had he not been struggling with exacerbation of his psychiatric symptoms.
'His intoxication with substances would have further compromised his already disturbed functioning. Had he not been intoxicated at the time, his decision-making and judgement would not have been severely impaired, and he may have been able to rationalise and consider alternative options to manage the situation'.
47In the end, whilst I conclude that your mental health issues must affect much, if not all of your day-to-day functioning, you had been using a considerable amount of intoxicating drugs in the days leading to your offending. You told your counsel you had not slept for a week. It is apparent that you are unfit to be interviewed after you were apprehended.
48I generally consider that I ought (and will) take your mental health issues into account in determining your moral culpability and the burden they place you under whilst in custody (see Cokorilo [117], [118]), I do not consider that I should particularly and significantly reduce your moral culpability for this offending. In my opinion, the influence of drugs on your offending must have been pronounced.
49Mr Gwynn, who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence:
a.You pleaded guilty at the earliest opportunity, and the matter resolved at the committal mention stage;
b.The plea of guilty has facilitated the course of justice and is of utilitarian benefit;
c.You have some insight into the impact of your offending upon the victims and you have empathy for them, as outlined in the report of Ms Cokorilo. You stated to her that you deserved to be in gaol, that you believe your victims would have be scarred by your offending and you told me in court that she was sorry for what you had done.
d.You have some insight into the impact of your drug use and poor mental health, the impact that your drug use and poor mental health has had on your behaviour, again as outlined in the Cokorilo report;
e.You come from a background of disadvantage; you were homeless at the age of 15 and you were the victim of domestic violence;
f.You were still a relatively young man;
g.Whilst on remand, you have responded positively to the psychologist and participation in counselling;
h.You have responded to anti-psychotic medication and methadone whilst on remand;
i.You have not received any visits whilst on remand, and you are relatively isolated in the prison population;
j.Your remand on the current matters is the longest period you have spent in custody;
k.You have been subject to a restrictive regime necessitated by the COVID-19 pandemic, and have been in a management unit where you were only allowed outside your cell for one hour a day;
l.You are at risk of being institutionalised;
m.You have prospects of rehabilitation as long as you can maintain treatment and taking medication for schizophrenia and remain drug free.
50Mr Gwynn submitted that all the relevant sentencing submissions could be met through the imposition of a term of imprisonment that gives you the opportunity for grant of parole at a relatively early stage. Mr Gwynn further submitted that your case is one merits a degree of leniency and mercy of the court.
51Your time in custody on this occasion was affected by the COVID-19 pandemic lockdown. The immediate effect of the lockdown was a reduction and suspension of vocational and personal improvement courses, restriction on your ability to move around the prison, a severe reduction in work available and a suspension of visits.
52The other more insidious effect of the pandemic and lockdown was the stress and isolation - that is the fear that the pandemic would penetrate into the prison system, and so isolation was used as a strategy to limit close contact.
53I shall take this into account as a mitigating factor in the sentencing process.
54Mr Crouch for the Crown submitted that an immediate custodial sentence with a non-parole period was the only available disposition. Mr Crouch submitted that the following factors should be considered:
a.Ms Cokorilo considers your risk profile as high. The reduction of that risk is contingent upon the management of your drug addiction and psychological intervention;
b.Your criminal history shows repeated offences related to drug use, violence and driving;
c.Your prospects of rehabilitation remains poor;
d.It is conceded by the Crown that your plea of guilty was entered at the earliest reasonable possibility;
e.The Crown does concede that you have a 'deprived' background, as set out in Ms Cokorilo's report;
f.You have a relevant criminal history.
55I generally accept the submissions of Mr Gwynn and Mr Crouch on your sentencing plea. What it comes down to is this: the question of your rehabilitation prospects remains a difficult one. Ms Cokorilo considers that your risks are high. Nevertheless, I accept that you have remained drug-free whilst in custody and Ms Cokorilo assesses your emotional and psychiatric risk factors as amenable to treatment and that these can be managed by a combination of psychological intervention and medication. Ms Cokorilo reports that you are responding positively to the olanzapine medication. Unsurprisingly, the psychologist considers your management of your substance abuse problems would likely substantially reduce your risk of further offending, just as psychological intervention aims to reduce the distress brought on by your illness and hence your need to self-medicate.
56Clearly, these require complex and intensive interventions now and continuing into the future. As such, I can only assess your prospects of rehabilitation as currently poor to guarded, but they are contingent upon the success of the current interventions.
57I have decided that an overall sentence which provides you with the opportunity for parole (if granted) is warranted and so accordingly I have granted a reasonable period of parole if it is granted. Parole would provide you with both the support you need and supervision in the community. I have tried to structure a sentence which recognizes your deprived background and exerts a degree of leniency. I cannot lose sight overall, however, of the effect on the sentencing process of the objects of deterrence, denunciation and protection of the community. Nevertheless, as I say, I have tried to structure an overall sentence which does give some recognition to your personal circumstances and provides you with the opportunity for parole.
58Accordingly, the sentence I impose is as follows:
59On Charge 1 of theft you are convicted and sentenced to one month's imprisonment.
60On Charge 2, armed robbery, you are convicted and sentenced to 28 months' imprisonment and that is the base sentence.
61On Charge 3, theft, you are convicted and sentenced to one month's imprisonment.
62On Charge 4, recklessly expose an emergency worker, you are convicted and sentenced to six months' imprisonment.
63On Charge 5, engage in conduct endangering persons, you are convicted and sentenced to 12 months' imprisonment and I make four months of that sentence cumulative on the base and other sentences.
64On Charge 6 of theft, you are convicted and sentenced to one month's imprisonment.
65On Charge 7 of intentionally expose an emergency worker to risk by driving, you are convicted and sentenced to 24 months' imprisonment and I order that 12 months of the sentence be served cumulatively on the base sentence and other sentences.
66Now, the total effective sentence is a sentence of 44 months. I order a non-parole period of 29 months be served before you are eligible for parole. I declare the pre-sentence detention period of 483 days excluding today reckoned as already served. I order your license, any license held by you, be cancelled and you are disqualified from driving for a period of 36 months from today's date.
67The 6AAA declaration is that but for the plea of guilty, I would have imposed an overall sentence of five years with three years to serve.
68I am aware that I have not cumulated any part of the sentence on Charge 4. In my view the objective gravity and circumstances of the offending on this charge do not warrant any cumulation especially in circumstances where I must take into account the overall principle of totality of sentencing across the seven offences.
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