Director of Public Prosecutions v Moore
[2023] VCC 776
•15 May 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00294
Indictment No. M12009327
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN TIMOTHY MOORE |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 March 2023 | |
DATE OF SENTENCE: | 15 May 2023 | |
CASE MAY BE CITED AS: | DPP v Moore | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 776 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Sentence – Armed robbery – Common law assault – Lengthy criminal history – Well-established diagnosis of schizophrenia – Unsophisticated offending but not altogether irrational – Other expert diagnoses – Personality and anti-social personality disorder – Drug induced psychosis – Self-medicating at the time of offending – Impairment of mental function at the time of offending such to impact upon ability to exercise good judgment – Impairment must also been seen through the lens of illicit drug use
Cases Cited:R v Verdins (2007) 16 VR 269
Sentence: Convicted and sentenced to 3 years’ 2 months’ imprisonment with non-parole period of 1 year 11 months’ imprisonment – 604 days’ imprisonment declared as already having already been served as part of the sentence imposed – s.6AAA Sentencing Act 1991(Vic) declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J. Swiney | James Dowsley & Associates |
HER HONOUR:
1Stephen Moore, you have pleaded guilty to one charge of armed robbery and one charge of common assault.
2The maximum penalty for armed robbery is 25 years’ imprisonment, and the maximum penalty for common assault is five years’ imprisonment.
3In sentencing you I must into account the maximum penalties, as these reflect the seriousness with which Parliament regards each of the offences.
4I was told that at the time of the offending you were 45 years old and living in Frankston with your girlfriend, Melanie Symons.
5The victim, Mr Vathappallil, operated a convenience store called the Frankston Spice and Asian Grocery supermarket. The store is located in Deane Street, Frankston, immediately next door to where you were living.
6At the time of the offending, Mr Vathappallil had been operating the store for about five years, and knew you as Steve and as the neighbour to his store. He would regularly see and speak to you – about four times a week. You would often buy single cigarettes for one or two dollars, as you did not have enough money for a full pack.
7Mr Terome is the son of Mr Vathappallil, and was hearing-impaired. He helped his father at the store.
8On 18 September 2021, Mr Vathappallil was working at the store with his son. That day, you attended the store on three occasions to purchase various items. At about 3.33 pm, you went to the store for the third time and made a purchase for $2, using a bank card.
9At 4.01 pm, you phoned Mr Aggarwal, a taxi driver who you knew, saying you needed a taxi to pick you up from your home in Deane Street. He was not available, so he asked his friend, Mr Singh, to collect you.
10Soon after this, Mr Singh attended your address. When he arrived he saw there was another taxi in the driveway, which was driven by a Mr Williamson. He too had received a booking to collect you.
11At about 4.40 pm on 18 September, Mr Vathappallil was working behind the counter of his store, whilst his son was standing at the counter but on the side used by customers. He was packing orders for food delivery.
12You entered the store armed with a large knife which you held extended above your head. You were also carrying a large plastic shopping bag. You were wearing a black hooded jumper with the hood lifted over your head, black pants, and a face-covering over the lower portion of your face. You walked directly towards the service counter.
13Mr Terome looked up and saw you holding the knife and walking towards the counter where he was standing. He felt frightened, and jumped to his right, yelling “Daddy” to alert Mr Vathappallil. Mr Vathappallil saw you point the knife at his son and say “Move out of the way”. This gives rise to Charge 2, common assault.
14Despite your attempts to disguise yourself, Mr Vathappallil immediately recognised you from your eyes, voice, and build. You approached the counter still holding the knife in a stabbing position above your head, and aggressively yelled at Mr Vathappallil, demanding “Give me your money and cigarettes or I will kill you”. Mr Vathappallil was frightened for his safety.
15You walked around the counter to where he was standing. Mr Terome helped Mr Vathappallil to climb over the counter away from you. You then opened the roller door of his cigarette display cabinet and placed about 25 packets of cigarettes into the plastic shopping bag. As this was happening, you pulled the hood off your head or else it fell down, revealing more of your identity, which strengthened Mr Vathappallil’s recognition of you.
16You then walked back around the corner and left the store. You placed the knife in the plastic bag. Both Mr Vathappallil and his son followed you, at which stage Mr Terome pulled out his phone and started to film you.
17You then approached Mr Singh’s taxi, but, having seen you with your face and head covered running away from the victims, Mr Singh locked his car. You then unsuccessfully tried to enter the taxi, after which Mr Singh moved his car and left. Mr Terome continued to film you.
18You then approached Mr Williamson’s taxi and got into the front passenger seat. As this was happening, Mr Vathappallil yelled at a nearby car to block the driveway so the taxi could not leave. The car pulled in behind the taxi.
19You gave Mr Williamson, the taxi driver, a $20 note and yelled “Move, move, move”. Mr Williamson replied, “Mate, there is a car behind me so just wait a minute”. You then told him to move and to hurry up. Mr Terome filmed you inside the taxi. You concealed your face and head except for your eyes with your hooded jumper and face-covering.
20Mr Williamson was able to reverse out of the driveway after the motorist moved their car. He then turned onto Hill Street.
21At 5.12 pm, after directing Mr Williamson through a series of streets, you were dropped off at the corner of Wooten Close, Frankston. You were then given change for the fare, and were last seen walking towards Maslen Close, Frankston.
22On 22 September 2021, police attended your address with a search warrant. You answered the door and you were arrested without incident.
23Police searched your home. They seized your mobile phone, but no other property or clothing relating to your offending was recovered.
24You were then taken to the Frankston Police Station, where you exercised your right not to take part in a record of interview.
25Mr Moore, your offending is serious and is deserving of a punishment which is just in all of the circumstances. Your punishment must be appropriately denounced in all the relevant circumstances.
26You behaved in a most frightening manner toward the two victims, who, it appears, had been kind towards you leading up to the offending. There is no victim impact statement, but it takes no imagination to know that both of the victims would have found your behaviour very frightening, which is confirmed by the prosecution opening. Although you had a well-established diagnosis of schizophrenia, your conduct on the day in question had a rationality to it. You demanded items of value, then took them after terrorising your victims with the knife you were brandishing. You took some crude steps to disguise yourself, although I accept that your offending in all was unsophisticated, and it was only a matter of time before you would be arrested.
27You have a criminal history dating back to 1998, although there are some breaks of several years in a number of instances as between one court appearance and the next.
28In December 2003 you were convicted of two charges of intentionally causing injury, one charge of make threat to kill, one charge of breaching an intervention order, one charge of reckless conduct endangering serious injury, one charge of criminal damage, hinder police, recklessly cause injury, and a further charge of criminal damage, as well as a charge of possess dangerous article. Your matter was adjourned for a year with a condition that you obey all lawful directions of your treating psychiatrist in order to facilitate compliance with your community treatment order.
29In October 2008, in this Court, you were convicted of arson and sentenced to 30 months’ imprisonment with a non-parole period of 12 months. 291 days was declared as already served.
30In February 2014 you were convicted of make threat to kill and unlawful assault, one charge of indecent assault, and a further charge of unlawful assault. You were sentenced to a total effective term of two years’ imprisonment with a non-parole period of 14 months. You successfully appealed the sentence in these matters, whereby a total effective term of 12 months was imposed, with a non-parole period of six months’ imprisonment.
31In June 2021 you were dealt with for intentionally damaging property, three charges of recklessly causing injury, two charges of unlawful assault, two charges of theft, one charge of shop steal, two charges of driving whilst suspended, one charge of threatening words in a public place, obtain property by deception, two charges of committing an indictable offence whilst on bail, a charge of burglary, assault police officer, possess methylamphetamine, possess drug of dependence where the drug was not named, and possess GHB. You were convicted and sentenced to an aggregate term of 206 days’ imprisonment, and the term of imprisonment was declared to be already served.
32As Ms Swiney submitted in her written submissions, your personal circumstances ought be seen in the context of your enduring mental illness. You grew up in a loving and supportive family in East Bentleigh and completed VCE. You travelled and worked in factory and labouring jobs.
33Your first contact with mental health services was in 1997, where you were diagnosed with acute schizophrenic episodes. You were 20 or 21 at the time. After this, you have had a series of admissions as a voluntary and involuntary patient throughout your life. I have no difficulty in accepting that you have a well-documented history of treatment for mental health disorders, specifically schizophrenia. Your inpatient admissions and involuntary community-based treatment have occurred between 1997 and 2011. You were taking antipsychotic medication fortnightly via intramuscular injections until September 2020. A report from Dr Nicholas Owens, forensic psychiatrist, dated 16 March 2021 confirms your diagnoses. Other diagnoses made of you include personality disorder, antisocial personality disorder and drug induced psychosis.
34I gave your counsel time to have you further assessed in a bid to see whether you were suffering impaired judgement due to mental illness at the time of the offending for which I now sentence you.
35I have now received a report from Ms Carla Lechner dated 19 April this year and further submissions from your counsel. I have also today heard from the prosecution who accept those submissions in effect. Ms Lechner was provided with material from Peninsula Health and noted that upon your release from gaol in June 2021, your community treating team had changed which required you to be proactive in obtaining your medication. You told Ms Lechner that you preferred depot medication. Unfortunately, you were not closely managed in respect of your mental health at this time which inevitably led to you resorting to drug use ‘with an attendant decline in (your) mental health’.
36Therefore, it seems that, effectively, you were self-medicating with illicit drugs at the time of the offending and you were not taking proper medication to alleviate any symptoms of mental illness which it appears you were having. In these circumstances, I am satisfied that your impairment of mental function impacted your ability to exercise good judgment although this must also be seen through the lens of illicit drug use. I allow for less than moderate reduction in your moral culpability in these circumstances and reduce the weight to the same extent in respect of just punishment, specific deterrence and general deterrence. However, I must give fairly solid weight to protection of the community.
37It was submitted that time in gaol would be harder for you because of the symptoms that you have suffered from your mental health conditions, although you are stable in gaol as you are now properly medicated. Notwithstanding this, I am prepared to accept that time in gaol will be harder for you due to you suffering from these conditions.
38In sentencing you, I allow for a fairly substantial discount in the sentence you would otherwise receive due to the stage at which you pleaded guilty. It cannot be said that you pleaded guilty at an early stage, as was conceded by your counsel, as this occurred after a case assessment hearing in this Court. You conducted a contested committal hearing, which is your right, where you challenged the identity of the offender and the victim was subjected to cross-examination.
39However, I understand that it took you some time to accept that the case against you was a strong one and to take responsibility for your actions, which you have now done.
40In all the circumstances, I am prepared to allow for a fairly substantial discount in the sentence you would otherwise receive, as you have ultimately saved the witnesses the time and trouble of giving evidence at a trial. The discount would have been greater had you taken responsibility at an earlier stage. Again, I accept that the course that you have ultimately taken, and delay in taking it, may have a good deal to do with your mental health issues.
41Further, I allow for a palpable discount in the sentence you would otherwise receive as your preparedness to plead guilty during the pandemic has contributed to the reduction in backlog of trials in this Court. Further, I accept that there are still some COVID-19 restrictions in place, and you have endured some whilst you have been on remand, meaning that time in custody has and would be harder for you due to these, notwithstanding that restrictions have now significantly eased – at least for the time being.
42I also take into account that there has been substantial delay in this matter. Again, the course that you have taken has contributed to this. However, you have still had the anxiety of matters hanging over your head for a significant period. During that period you have been able to achieve stability in terms of your mental health, as you have accepted proper treatment whilst on remand. Therefore, you have done what you can to improve your prospects of rehabilitation.
43You have good, strong family support and stable accommodation to return to. I must say I am concerned that you intend to return to the apartment next door to the victim’s business, and would hope that alternative accommodation might be obtained for you. However, you are well-supported by your family in the community, even though I understand there is a difficulty with them having you stay with them. I understand that they have been in regular contact with you, and that this would occur in the future. Of course, there was that family support at the time that you committed the offences before me. However, these matters are still relevant to my assessment of your prospects of rehabilitation.
44I have difficulty with finding any remorse that you have for your offending or any insight into the seriousness of it. Again, this may well be attributable to your mental health issues and the way that these impact upon you.
45In view of the offending before me, your relevant criminal history, your struggles with mental health issues, but also factoring in your acknowledgment of responsibility, good family support and stable accommodation, as well as your ongoing struggles with taking illicit substances, I assess your prospects of rehabilitation as guarded. If not for moderations due to Verdins I would have placed fairly strong weight on specific deterrence and just punishment, and strong weight on general deterrence in a bid to deter others from behaving as you have. As I have said I must give fairly solid weight to protection of the community.
46Your counsel acknowledged that a sentence of imprisonment was appropriate in your case, such sentence involving a non-parole period. The prosecution make a similar submission. I have done what I can in relation to the gap between the head sentence and non-parole period, to maximise your chances of being supervised in the community for a substantial period, but I must also bear in mind other relevant sentencing considerations to which I have referred.
47You have now served a significant period on remand, which I am very mindful of. However, in my view, it is necessary for you to serve an additional period before becoming eligible for parole.
48As Ms Lechner observed in her report, when you are released from gaol on this occasion it is to be hoped you are managed with a good deal more care to ensure that you remain mentally stable and do not resort to illicit substances and further offending.
49You are convicted of the offences.
50You are sentenced as follows:
51Charge 1, two years and 10 months' imprisonment;
52Charge 2, 12 months’ imprisonment.
53I direct that four months of the sentence on Charge 2 be served cumulatively with the sentence on Charge 1, producing a total effective sentencing of three years and two months' imprisonment and you are to serve 23 months before becoming eligible for parole.
54I declare that you have already served 604 days by way of pre-sentence detention.
55Section 6AAA Sentencing Act 1991 declaration;
56If not for your pleas of guilty I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three years.
57Counsel, is there anything arising from my sentencing remarks that you wish to raise with me?
58MS HOLMES: There isn't, Your Honour, thank you. I might indicate, Your Honour, there was a restitution order considered with respect to the cigarettes but the material in relation to the value of that has not been provided so such an order will not be sought.
59HER HONOUR: Yes, thank you. Because there was one slip that I noted when I was referring to the criminal history, I referred to the first set of offences as a requirement that he obey to facilitate compliance with your community correction order. It should have been a community treatment order. I said correction order so I will just change that.
60MS HOLMES: As Your Honour pleases.
61HER HONOUR: All right. Anything from your point of view, Ms Swiney?
62MS SWINEY: No, Your Honour.
63HER HONOUR: All right. Did you wish to have a word with your client over the audio visual?
64MS SWINEY: If I could, Your Honour, yes, I'd be grateful.
65HER HONOUR: Yes, very well. I will adjourn. Thanks for your assistance, counsel. I will adjourn and we will just give you a chance to have a chat and if you can tell Mr Taylor when you are ready to finish up.
66MS SWINEY: Yes, Your Honour.
67HER HONOUR: Thanks very much, we will adjourn.
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