Director of Public Prosecutions v Moloney

[2015] VCC 626

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-02162

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY MOLONEY

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2015
DATE OF SENTENCE:	12 May 2015
CASE MAY BE CITED AS:	DPP v Moloney
MEDIUM NEUTRAL CITATION:	[2015] VCC 626

REASONS FOR SENTENCE
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Subject:   Armed robbery.
  Common assault, five charges.
Catchwords:
Legislation Cited:
Cases Cited: 
Sentence:  Three years' community corrections order.  

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Exell
For the Accused	Mr R. Martini

HIS HONOUR:

1Timothy Moloney, you have pleaded guilty to one charge of armed robbery and five charges of common assault.  The maximum penalty of the charge of armed robbery is 25 years' imprisonment and the maximum penalty for the charge of common assault is five years' imprisonment so as you can see from the penalties set down by the parliament, it regards this kind of offending very seriously.  In sentencing for these kind of offences, the sentencing principles that normally guide the sentence are what is known in the law as general deterrence, that is to say that the sentence imposed by the court should deter others from offending in the way that you have. 

2

The offences in this indictment to which you have pleaded guilty all occurred at the same time on 12 August 2014 and the circumstances of your offending are set out in a prosecution summary which was tendered in evidence which

I marked as Exhibit A.  That document was read to the court in a summary way by the learned prosecutor, Mr Exell, and your counsel, Mr Martini, accepted that the summary was accurate and set out a proper basis upon which I can proceed to sentence you for these matters.  It is not necessary that I here repeat what is set out in the prosecution summary except in a summary way and anyone reading these sentencing remarks needs to do so along with a copy of the prosecution summary that was marked as Exhibit A. 

3At about 3 pm on 12 August of last year the victims which are named in the indictment were doing nothing more than waiting to catch the train at a railway station.  You approached them and asked them for money and when your request was denied you walked away and then returned and again asked, this time armed with a knife which you had on your possession in your left hand.  One of the victims handed you a $20 note and they are the facts that found the charge of armed robbery.  At the time each of the victims, who were all together in a group, were in fear of you and that is the fact that founds the five charges of assault.  Although these are serious matters, in my view your conduct falls towards the lower end of the scale, if I can put it that way for this kind of offending.

4The actual act of you offending was captured on closed circuit television and a film of that on a DVD was tendered in evidence and marked as Exhibit B.  The whole episode took but a few seconds and it did not appear to me to be very well planned by you.  You did not actually brandish the knife except to make it clear to all of those present that you had a knife in your left hand.  You were not wearing a mask.  You did not run away from the scene of the crime, did nothing to disguise your appearance and the whole episode really was I think pretty amateurish and you were bound to be caught because of the existence of the CC television. 

5You have pleaded guilty to the charges and that is to your credit.  Because you have pleaded guilty to the charges, you have saved the time and cost of a committal and trial and you have also saved each of the victims from having to give evidence against you, thereby reliving these matters.  The prosecution did not rely upon any victim impact statements.  The law says that because you have pleaded guilty, you are entitled to a reduction in sentence and that is a fact which I must and do take into account.  I also take into account the fact that you pleaded guilty to these charges at the earliest possible opportunity.  Since arrest, you have spent three days in custody and the record will record that there are three days pre-sentence detention. 

6In a helpful written outline of submissions, Mr Martini, your counsel, argued that there are a number of factors at work in your case which have swayed me that I should not impose a disposition which requires you to be placed in immediate custody.  He argued on your behalf that this was a matter appropriate for disposition by what is called a community corrections order and I have decided in all the circumstances of this case to impose that kind of disposition. 

7When you committed this offending you were 21 years of age, at that time a young offender.  You were born on 26 February 1993 and so now you are aged 22.  You are regarded by the law as what is known as a youthful offender and the law in this state has been for a long time that where there are mitigating circumstances, the courts should not impose a disposition which will unduly punish but the disposition should be more focused towards rehabilitation. 

8Everyone in the community has an interest in trying to ensure that you are given every opportunity to rehabilitate yourself.  You told those with whom you conferred, in particular Mr Cummins, a psychologist who saw you for the purposes of these proceeding and whose report I will deal with in more detail a little later.  This incident which resulted in your charge and arrest was somewhat of a watershed in your life because it made you appreciate how out of control you were.  I will come back to that in a moment.

9Mr Martini tendered in evidence a report from Dr Sean Das, a general practitioner from the Blackburn Clinic.  That report is dated 14 August 2014.  That is to say, it was written some two days after the offences.  Dr Das said in his report, inter alia as follows:

"I am the above named's general practitioner and have known him for several years.  He has a long history of severe anxiety and depression as well as alcohol and substance addiction difficulties.  He has struggled greatly with these, has been on several different medications and seen specialist psychiatrist, both on an outpatient and inpatient basis.  He is under a great deal of personal stress and has made several attempts on his life.  In my opinion, he needs inpatient specialist assessment and treatment if there is any hope for his long term psychological and physical health."

10Dr Das went on to set out three medications which you were then taking for anxiety and depression, namely Avanza Soltab, 14 milligrams nightly, Diazepam, tablet form, 5 milligrams and Epilim, tablet form, 100 milligrams. 

11You were taken into custody by police who located you not far from the train station shortly after these offences occurred.  You were a short time later medically examined by Dr Jason Schreiber, a doctor from the Victorian Institute of Forensic Medicine.  He examined you three hours following apprehension.  In a report prepared the day after the offending, Dr Schreiber wrote:

"As a conclusion, I formed the opinion that Timothy Moloney was not fit to be interviewed.  I advised the police that Timothy Moloney needed to be seen in hospital and have a six hour rest period afterwards before being fit for interview with an independent third person."

12A couple of weeks later you were assessed by Dr Steven Chau, a consultant psychiatrist.  He wrote a report on 28 October 2014 which said inter alia as follows:

"I first assessed him on September the 9th, 2014 and at that time he had a diagnosis of cannabis and alcohol dependence as well as antisocial personality disorder.  Since then, Tim has successfully completed a ten day detoxification inpatient program at the Melbourne Clinic, under the care of Associate Professor Alan Gijsbers, an addiction physician.  I reviewed Tim again today and he is keen to engage in the 28 day inpatient rehabilitation program at the Melbourne Clinic.  Unfortunately at this stage it's not clear if the unit will be open over the Christmas and New Year period and due to our wait list, Tim may not be able to enter the program until 2015."

13It is clear to me from those medical reports that I have just referred to that at the time of this offending, you were drug and/or alcohol affected but also you were being treated for depression.  It is in that context that I refer to your background as set out by Mr Cummins in his report.  He saw you on 23 April of this year at his rooms.  You told him that as a condition of bail, you were on the CISP program via the Melbourne Magistrates' Court and I have been told that you have properly participated in that program.  You told him and I accept that this offending occurred shortly after the breakup of a relationship which you had with a woman which terminated in early August of 2014, about ten days prior to this offending.  There have been intervention order proceedings on foot between yourself and that woman and I was told during the course of the plea that there are other intervention orders in respect of you, some of which have been contested.  But it seems to me that apart from recording those matters in the chronology of your life, they bear little if any relevance to this sentence or to the facts of this case. 

14Your parents separated when you were very young and you have had little contact with your father since about the age of nine.  You told Mr Cummins that your father was a heavy drinker of alcohol and that you have no bond with him.  In contrast, you reported a close bond with your mother who is 47 years of age, vision impaired, but otherwise in good health.  You live with your mother and I note that you have agreed to a condition in any community corrections order that I may make that you will continue to reside with her.

15

You attended school at Laburnum Primary School to Grade 6 and then attended Camberwell Grammar until midway through Year 9 when you were asked to leave apparently for being disruptive.  You and your mother moved to Queensland not long after and you attended Elanora High School for

Year 10 and Year 11 and you told Mr Cummins that you thought that you passed Year 11.  You were apparently diagnosed as being ADHD in Grade 3 for which you took Ritalin.  At age 18 you relocated back to Melbourne and you have had various jobs since then working for two years at a company called TGI in Forest Hill and also as a chef.  Thereafter you have had employment as a forklift driver at the Melbourne Exhibition Centre and you assisted your former girlfriend's father as an assistance plasterer until the relationship with your girlfriend broke up at which time the father terminated your employment.  You have a history of being suicidal and confused and you suffer from depression.  You are presently on the Newstart Allowance. 

16In his report, Mr Cummins said inter alia as follows:

"(25) He explained he had attempted to take his life on multiple occasions from around age 14.  He then spontaneously stated 'At times I felt I was getting too much unwanted attention from mum.  I know she's always meant well but I was feeling a bit suffocated and I know mum was concerned for my welfare.  The most recent I tried to suicide was around July 2014 when I ran in front of cars and I got arrested by police and I was taken to the Psych Unit at Malvern Hospital and I stayed there for a week.  For the first 24 hours I was an involuntary patient and then after that I was voluntary, I think what was going on was I just didn't want to face the music with my girlfriend and her family.  I was feeling suffocated by my girlfriend and her family and I was starting to think she wasn't the person I wanted to remain with.' 

(26) He smokes approximately ten cigarettes today.  He said prior to his arrest in relation to the armed robbery he was reckless with alcohol, 'Beer, spirits or anything.  Since March 2014 I've just been drinking anything because I was so stressed.  The pregnancy wasn't planned.  My moral code was that I felt rejected by my father so I wanted to look after the baby - but I left it up to Ashleigh to decide if she wanted to keep the baby but by that stage I was starting to think I was having the baby with the wrong girl.  Now I lose sleep over Analina, I'm really missing her but I don't want to get back with Ashleigh.'  He then explained as a condition of bail that he is prohibited from consuming alcohol or using any illicit drugs."

17

You went on to explain to Mr Cummins that you were on a bender from about 2 or 3 August until the time of the commission of these offences.  Normally taking drugs and/or alcohol is no excuse for offending although it might help explain it.  In your case, however, I think that it is clear from all the evidence that there is an underlying mental health issue and that you suffer from depression which needs treatment.  You expressed deep remorse to

Mr Cummins and you expressed appropriate empathy for the victims of your crimes.  All of that is in your favour in my view because it shows that you have some insight into the effects which your offending can have. 

18Mr Cummins was of the opinion that at the time that you offended here you were experiencing symptoms of an acute situation or crisis upon a background of suffering from depressive symptoms and anxiety symptoms over several years.  The acute situation or crisis have been triggered as a result of you coming to the conclusion that you were in a relationship with a partner that you did not regard as appropriate. 

19Mr Cummins gave this opinion:

"In my opinion, at the time of offending his ability to perceive accurately and to think clearly and to make rational decision was adversely affected.  Indeed, in my opinion it is probable at the time of offending he was in an acutely suicidal state.  In my opinion, his moral culpability was therefore compromised at the time he offended."

20Mr Cummins went on to also opine that your mental state would inevitably deteriorate were you to be incarcerated in a prison.  You have never before been to prison and I am not convinced it is time to send you to one.  The relevance of Mr Cummins' opinion is important.  Here that opinion is in my view corroborated by the closed circuit TV footage which shows the way in which you offended.  That offending was not the work of an armed robber intent on threatening harm if he or she did not get their own way.  It was clearly offending in my view of someone who was mentally affected at the time.

21The law in this state provides that in such circumstances the sentence imposed by the court does not have to reflect application of general deterrence to the extent that it normally would.  That is because your moral culpability for offending is reduced.  Further, the fact that you suffer from these mental health issues affects the kind of disposition that I should pass.  For all of these reasons I am of the opinion that it is appropriate to make a community corrections order and I do so on each of the charges, having received an assessment that you are a moderate risk of reoffending and that the terms of the community corrections order have been explained to you.

22The community corrections order that I will make on each of the charges is with a conviction for a period of three years, that you undertake unpaid community work of 200 hours, that you engage in treatment and rehabilitation and drug assessment and treatment, alcohol assessment and treatment and mental health treatment and also undergo treatment for your offending behaviours and that you be supervised.  There will also be a condition that you continue to reside for the term of the community corrections order with your mother at 10 Hillside Crescent, Blackburn, Victoria, 3130. 

23Now Mr Moloney, do you understand the effect of a community corrections order?

24OFFENDER:  Yes, Your Honour.

25HIS HONOUR:  Do you understand that there are a number of conditions which you must comply with?

26OFFENDER:  Yes, Your Honour.

27HIS HONOUR:  The first one is that you will have to report to community corrections people at their Blackburn office at 703 Station Street, Box Hill before 4 pm on 14 May.

28OFFENDER:  Yes, Your Honour.

29HIS HONOUR:  What date are we today?  Today is the 12th, so you will have to be there before 4 pm on Thursday.  Do you understand?

30OFFENDER:  Yes, Your Honour.

31HIS HONOUR:  That is the first condition.  The second condition is that you will have to undergo unpaid community work and you will have to undergo treatment and rehabilitation programs, drug assessment and treatment, alcohol assessment and treatment, mental health treatment and programs to address your offending behaviour.  Do you understand that?

32OFFENDER:  Yes, Your Honour.

33HIS HONOUR:  And you will be supervised.

34OFFENDER:  Yes, Your Honour.

35HIS HONOUR:  Now, time and time again I explain these to people in your position and occasionally people come back before me.  Do you understand?

36OFFENDER:  Yes, Your Honour.

37HIS HONOUR:  Because if you commit any offence whilst you are on this community corrections order, you will be brought back and the first thing that happens is my associate gives me a copy of the transcript ‑ ‑ ‑

38OFFENDER:  Yes.

39HIS HONOUR:  ‑ ‑ ‑ of what I am now saying to you.  You understand?

40OFFENDER:  Yes, Your Honour.

41

HIS HONOUR:  And it will record the fact that you have said to me "Yes,

I understand, Your Honour."  You understand?

42OFFENDER:  Yes, Your Honour.

43HIS HONOUR:  If you breach the community corrections order, you need to clearly understand that you will be brought back and you can be sent to gaol.  Do you understand that very clearly?

44OFFENDER:  Yes, Your Honour.

45HIS HONOUR:  The time that you spend addressing these various programs and health assessment and so forth is reduced from the amount of hours that you will have to spend attending a community corrections - I beg your pardon, attending to unpaid community work.  Do you understand?

46OFFENDER:  Yes, Your Honour.

47HIS HONOUR:  So the harder that you work at the counselling and treatment programs, the less community work you will have to do.  But the corrections people will address that with you.  Do you understand that?

48OFFENDER:  Yes, Your Honour.

49HIS HONOUR:  Now, I have also been asked to make what is called a forensic sample order for the taking of a forensic sample from your body.  That was not opposed and having regard to the seriousness of the circumstances of your offending and the fact that I am of the view that it is in the public interest that I make the order, I have signed that order.  Now having signed that order, that means that a member of the police force may use reasonable force to take a forensic sample from you which is only a swab from your mouth.  Do you understand?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  And you need to understand that when that is done, your DNA will be recorded on the police database.  You understand?

52OFFENDER:  Yes, Your Honour.

53HIS HONOUR:  I have also been asked to sign a disposal order for disposal of the knife that you were carrying and in the circumstances I have signed that order.  Any questions arising out of that, Mr Martini?

54MR MARTINI:  I don't believe so, Your Honour, no.

55HIS HONOUR:  Mr Exell?

56MR EXELL:  No, sir.

57HIS HONOUR:  Very well.  Could you have the prisoner sign the order, please?  Come out of the dock if you would, please, Mr Moloney.  Yes, very well, I have signed the order and on the rising of the court, you are free to leave, Mr Moloney, and I do not want to see you back here again.

58OFFENDER:  Thank you, Your Honour.

59HIS HONOUR:  That all?  Yes, at 3 o'clock tomorrow.

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