Director of Public Prosecutions v Nason

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR 22-00877

DIRECTOR OF PUBLIC PROSECUTIONS

LOUIS NASON

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2022
DATE OF SENTENCE:	29 September 2022
CASE MAY BE CITED AS:	DPP v Nason
MEDIUM NEUTRAL CITATION:	[2023] VCC 1614

REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords:
Legislation Cited:  Crimes Act 1958 (Vic);
Cases Cited:Azzopardi v The Queen [2011] VSCA 372; 35 VR 43; 219A Crim R 369
Sentence:  18 month Community Corrections Order; Disposal Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Karitzis
For the Accused	Mr W. Barker

HIS HONOUR:

1Louis Nason, you have pleaded guilty to one charge of Armed Robbery, contrary to s 75A Crimes Act[1] which carries a maximum penalty of 25 years' imprisonment.
[1] 1958 (Vic).
2You have no prior criminal history, but you have subsequent convictions for which you spent 49 days on remand, and you are now undertaking a CCO which commenced in March 2022.

Circumstances of Offending   
3The Crown tendered the summary of prosecution opening as Exhibit A.  A summary of your offending is as follows:  
4About 4 am on Thursday, 9 September 2021, you and another unknown male approach a car driven by the victim near 400 Queen Street Melbourne. You had previously arranged with the victim to pick up 600 capsules of nitrous oxide known as ‘nangs’.
5You tried to enter the car, but it was locked. You spoke to the victim about payment. You hold him that you refused to pay until he handed over the capsules. He refused to hand over the capsules until you paid. You produced a knife and held it by your side. The victim drove off a short distance as you were leaning through the window. You attempted to take the key out of the ignition, but it ended up snapping off.
6Over the next two or three minutes it appears you and the victim variously chased each other. You got into the car in an attempt to find the capsules and at various stages you brandished the knife and demanded the victim's wallet and phone. At one stage you pursued the victim about 100 metres and then returned to the car. Two witnesses approached you. You told them 'stay back I have a knife'. You then stole the capsules and a mobile phone that was in the car.
7One of the witnesses called the police. When the police arrived, you threw away the capsules and the phone. The police recovered those items and you were apprehended and arrested. You were interviewed by the police. You were generally cooperative and admitted to producing the knife and chasing the victim. You told the police you entered the car to get the capsules and that you held a knife in the victim's direction to scare him off. You explained that you were 'robbing a drug dealer'. I make the comment that you were not somehow acting for the good of the public in doing so (and the question also remains, which I emphasise is entirely irrelevant to my consideration, what you yourself were planning to do with 600 capsules of nitrous oxide).
8In any event, you were remanded in custody on 10 September 2021 and subsequently bailed on 23 September 2021, spending 13 days in custody before you were granted bail.
9On 31 March 2022 you appeared at the Melbourne Magistrates Court on charges of contravening a conduct condition of bail, committing an indictable offence whilst on bail, fail to answer bail and theft (shop stealing). As I have said, you spent 49 days on remand. You were placed on a community corrections order for 12 months with conditions to undergo assessment and treatment for drug and alcohol abuse, mental health assessment, and to attend offending behaviour programs.

Objective gravity and moral culpability
10I turn now to a consideration of the objection gravity of and your moral culpability for your offending. The seriousness of the offence of armed robbery can be determined immediately by its maximum penalty of 25 years. The seriousness of your crime is in no way mitigated by your explanation to the police that you were 'robbing a drug dealer'.
11Your offending was premeditated and it was planned at least to some extent. You placed the order for the capsules and you attended at the agreed pick up location. Your counsel told me that you originally planned only to steal the capsules, not to commit an armed robbery. You carried a knife with you, but you stated that you did not originally plan to use it. Quite frankly, I do not believe you. I do not believe the coincidence that is suggested by the circumstances. When I refer back to the Crown opening, it is apparent that you produced the knife immediately after the dispute about the payment arose. That does not sit neatly with your stated intention to simply steal the nangs.
12Moreover, this was an ordeal that took a couple of minutes to play out. The fact that you brandished the knife at the victim on more than one occasion, and chased after him, leads me to conclude that this must have been a frightening experience, even if the victim was there for an illicit purpose. I can reach this conclusion, even in the absence of a victim impact statement. Then as you searched through the car, you threatened two witnesses.
13You told your counsel Mr Barker that you were drug affected at the time of your offending.
14It is to your credit that you were generally cooperative with the police and admitted your offending.
15The sustained nature of your offending in the circumstances I have described makes this more than a simple, quick offence at the lowest end of objective gravity. Also, I find your moral culpability to be high.
16Ordinarily, the dominant sentencing purposes in a case of armed robbery are deterrence, just punishment, denunciation, and protection of the community. Because of your age and your lack of prior convictions those principles still apply, but the law requires a greater focus on a sentencing disposition which promotes your rehabilitation.
17I will turn to the question of your youth in my analysis after considering your personal circumstances

Personal Circumstances
18You are 19 years of age, being born in July 2003.
19You are the youngest of three children.
20Your parents are both professionals and are actively involved in supporting you. You lived with them until it seems your release after your second remand in prison.
21You completed school up to Year 12 at Wesley College. You struggled with remote learning during the COVID-19 lockdowns.
22You began using cannabis at least age 13, and Xanax it appears at about age 15.
23Since leaving school you have worked at Milk Run as a bike delivery person and in scaffolding as a labourer.
24I have read the references from your parents, from Professor Daffern and from Mr Rio. Mr Rio also attended court to support you and to support your parents. Your mother Nicole gave evidence before me. It is apparent that you have had behavioural and psychological challenges when growing up. It is also apparent that your parents provided you with their love and support through, not only what they did for you, but by providing a private school education, tutoring and counselling.
25I have also read the email report of your current CCO case manager, Kristina Rotondo. Ms Rotondo reports that you have attended fortnightly on 14 occasions, and missed 2 since commencing the order. Your case manager is concerned that you have continued to offend whilst on the order and you have an outstanding graffiti charge before the Melbourne Magistrates' Court on 22 November 2022.
26
Your case manager reports that you completed drug and alcohol counselling through a program in which you were reported to have shown great insight, but which you personally did not find particularly valuable. You have asked for

one-on-one counselling. You have attended for drug testing on five occasions and you have failed to attend for a further three occasions. You have tested positive to multiple drug presence on every single one of those five occasions. Your case manager notes your honesty and transparency in your drug use disclosures.
27You have not yet received psychological counselling. Your case manager reports that you have been endeavouring to locate a psychologist and she has also unsuccessfully tried to find a suitable psychologist. She reports that you told her that a forensic psychologist has accepted your referral, but there is a two to three week wait. I am uncertain where the status of this lies, but it is an important deficit in your mental health that has not been addressed and I will say more about that later in these remarks.

Sentencing Submissions
28Mr Barker, who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence:
(a)   Youth;
(b)   The fact that you have no prior criminal history;
(c)   Your prospects of rehabilitation are presumed by your youth and he submits that you have actual prospects of rehabilitation;
(d)   That you pleaded guilty in a timely fashion; and
(e)   He notes that your plea is made in the time of Covid.
29Mr Karitzis, who appeared for the Crown, submitted that a CCO was open, and agreed that the plea of guilty, your youth, and the absence of prior criminal history are mitigatory factors which I should take into account in the sentencing consideration. Mr Karitzis submitted that at a return to prison could well be deleterious and counter-productive at this time.
Analysis
30I take full account of your youth. The case of Azzopardi 35 VR[2] stated:
First, young offenders being immature are therefore ‘more prone to ill-considered or rash decisions’. They ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct….
Secondly, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it is been stated that the rehabilitation of young offenders, ‘is one of the great objectives of the criminal law’. [T]he effective rehabilitation of a young offender protects the community from further offending….
Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation… The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community….
[2] Azzopardi v The Queen [2011] VSCA 372; 35 VR 43; 219A Crim R 369.
31So what that case is saying is the following. First of all, that I have to take into account the fact that you are immature, and you might be making bad or rash decisions. Second, because you are still young and you only just 19, your potential for rehabilitation must be presumed. That is, you have got your whole life ahead of you and you have got the time to get things back on the rails. And the third is, sending you back to prison where you are likely to meet older, more experienced criminals is going to be counter-productive. That is what both barristers have said.
32I am satisfied that this is a case where, notwithstanding the usual dominance of the other sentencing considerations, your youth should be given a significant focus in the sentencing consideration. As I say, the law presumes your prospects for rehabilitation because of your youth. It seems to me that you have made some but only very limited progress towards your actual rehabilitation since you were placed on the CCO on 31 March this year. Even so, I am not yet prepared to interrupt your progress, slow as it might have been, by sending you back to prison or ordering a term in a Youth Justice Centre.
33This morning, I ordered a further assessment for a further CCO. The Mental Health Advice & Response Service report considers from your initial assessment that you have a mild to moderate mental health problem or difficulty. It recommends your ongoing assessment or treatment for mental health issues as a condition of a CCO to promote your well-being and to reduce the likelihood of you reoffending.
34The Mental Health Advice report refers to the fact that you have a private psychiatrist. Now that can only have come from you, Mr Nason. They did not make it up. It recommends that you make an appointment for a mental state review, discuss potential pharmacological interventions, that is medication, and recommencement of ADHD specific medication. It recommends a referral to a youth mental health service such as Orygen Youth Health or Head Space. Finally, the report recommends practical support creating a meaningful structure in a daily routine: such as employment, study and/or prosocial recreational activities.
35You told them you have got a psychiatrist. Your barrister tells me you do not. Now, if that has come from you, Mr Nason, perhaps they have misinterpreted it but it is time that you start facing up to the fact that this is the real world. When you start doing things like you did, you will not be treated as a kid. I have limited powers. I only have two sets of powers, really. Gaol and very limited non-gaol. And if I get the feeling, after all my experience in the criminal law, that kid or not, the person sitting in the dock is messing around with the system, I start leaning towards gaol. Now, you have a GP, I am sure of that because there is reference to the GP. You need to see your GP and get a mental health plan, all right. Note those words. You have got to see your GP and ask for a mental health plan and perhaps get a referral back to another psychiatrist. You will get some of that back on Medicare; some bulk bill, most do not.
36You have to take real steps yourself and it is time that you grow up and you face these things. Just like the thing we had this morning about housing. There is no blurry lines here. I want clear bright lines and I want to see you fitting within them, because if you do not that is the door you go through. I cannot be clearer than that. I am sure you are only taking in one in every 10 words I am saying, but I cannot be any clearer. You have to comply with this order or there is every chance you will go back to gaol, all right.
37So the Mental Health Advice report recommends a referral to either Orygen or Head Space or one of those organisations. I will be making it clear to Corrections, I will be giving a copy of these sentencing remarks to Corrections and I want them to organise that, but you have to do some work yourself. You have got to get to a GP and you have got to get a referral to a psychiatrist.
38Now let us move to the next part, no before I do. It says, ‘Create a structure in your day'. You worked at Milk Run, jolly good. You worked scaffolding, hard work, no doubt about it. Get your jobs back, they say study, or prosocial recreational activities. I am told you are a brilliant sportsman; you can play any sport you turn your hand to, go back out there and do something. Because you know what the nangs are going to do to you in the end? You know what nangs does? It starves oxygen to your brain, that is what the high is, toxicity in your brain, it cuts the oxygen off. And you know what people die from in the end, ultimately, all of us? No oxygen in the brain. We all know the stories of parents our age, with kids who are near vegetables, not from the billies, not from the ecstasy, the ICE is doing it, it is dementing the population at a rapid rate, but you know what it is? It is kids your age on the nangs.
39The CCO assessment was positive. It assesses your risk of reoffending as moderate. Personally, I think it might be a little bit higher than that and you have got some real work to do, and I think that it is higher than that because I am just not yet convinced that you understand the seriousness of what is happening here. I hope you understand what a chance you are getting today.
40Now in the CCO report, as I say, the report of Ms Rotondo makes reference to the fact that you are open and transparent about the fact that there are still multiple drugs present in your system on each of the five occasions that you have reported for analysis, and you have missed another three. What I am going to do is I am going to propose a CCO to you and I am going to tell you how you can breach it, and I want you to listen very carefully to me when I say that.

Orders

Now, as I say, I propose to make an order for a further CCO. I can only do that if you consent, that is you agree to the making of such an order. There are certain conditions which attach to every CCO which I must ensure that before you consent that you understand what they are, and that you are willing to comply with, all right. So the general conditions that apply to every CCO are as follows:
During the term of the order you must not commit, whether in Victoria or outside Victoria, during the period of the order, any offence punishable by imprisonment, all right. So if you were to nick a bottle of Jim Beam, a can of VB, Kathmandu jacket, the chances are you will not go to gaol, although you did last time, but the chances are you will not. But it is an offence punishable by imprisonment because the offence is theft and it carries a maximum of 10 years imprisonment. So it does not depend on whether you go to prison or not, it depends what the maximum penalty of the offence is. And so the law says, if you are on a CCO during the period of the CCO you must not commit any offence punishable by imprisonment. Possession of drugs, use of drugs, all of them, they are offences punishable by imprisonment.
You must report to and receive visits from Corrections during the period of the order, all right.
The third is, you must report to the Community Corrections Centre specified in the order within two clear workings days after the order comes into force. So you follow so far? Do not commit an offence punishable by imprisonment. You must comply with any orders made. You must report and receive visits. And then you must report to the Community Corrections Centre. So far do you understand each of those four conditions?
OFFENDER: Yes, Your Honour. Yes, Your Honour.
HIS HONOUR: Thank you. Now the next is you must not leave Victoria except with the permission, either generally or in relation to a specific case, of the Office of Corrections. So you cannot fly to Sydney for the weekend without letting them know or something like that. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: You must comply with any directions that they give you, that are designed to ensure you comply with the order. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. And a direction might be given by The Secretary either verbally or in writing. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: Mr Nason, in addition to those general conditions I intend to impose a number of specific conditions and I want you to listen very carefully to these specific conditions and I want to be clear in my own mind that you understand them and that you agree to them.

The first condition is that – I will not leave you in suspense. I propose to make an order over a period of 18 months, one and a half years, all right. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. The second is that I propose that you perform 150 hours of unpaid community work which will be set for you by the Office of Corrections over the period of the order. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. Now as part of that order, I intend to impose treatment and program conditions and all of the hours of treatment and rehabilitation that are satisfactorily undertaken – so if you get a tick off at the end of 10 hours of program, that is deducted from the unpaid community work. Do you follow that? All right, so if you do 10 hours of a drug and alcohol program, your hours of unpaid community work go down to 140. If you do 20 hours, 130 and so on.
OFFENDER: Yeah.
HIS HONOUR: If you do 140 hours of programs you do 10 hours.
OFFENDER: Yes.
HIS HONOUR: Do you follow that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right. The next aspect is that I propose that you be supervised, that is like you have been doing, you have attended 14 times, missed two. I propose that you attend for supervision during the life of the order. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: I also propose that you undergo assessment and treatment including testing for drug abuse or dependency as directed by Corrections. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: That you undergo any mental health assessment and treatment which may include psychological, neuropsychological, psychiatric treatment and it could be outpatient, it could even be inpatient if directed by the Manager of Corrections. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: And I propose that you participate in programs or courses that address offending behaviour as suggested and directed by the Office of Corrections. Do you understand that?
OFFENDER: Yes, Your Honour.
HIS HONOUR: All right, bear with me one moment. The final condition is that I propose that for the first six months of the order that you must comply with a curfew between the hours of 10 pm and 6 am. That is, that you must be at the home where you are residing between the hours of 10 pm and 6 am. And that means that either the police or Corrections can attend to check on your address that you are home. Do you understand that?
OFFENDER: Is that like 10 pm till 6 am?
HIS HONOUR: 10 pm to 6 am.
OFFENDER: Yep, yes, yes, Your Honour.
HIS HONOUR: All right. Now before I ask you whether you are willing to comply with an order on those terms, I want to tell you this. You can breach a community corrections order in one of two ways, or both ways. The first is, you can breach it by committing further criminal offences, all right. And the second way you can breach it, is by not complying with the conditions. Now let us be clear on that. I have already made it clear that committing criminal offences can be a very low stumbling block. You nick something from a 7-Eleven or whatever they are now, you get charged by the police, that breaches the order. You need to be very careful, and you need to stiffen your resolution about drug use, failing to attend when required by the Corrections officer, and failing to attend for drug analysis.
All other sorts of non-compliance might breach the order too. Turning up for unpaid community work and not doing the work directed. Or, not completing one of the courses that are set for you. All of those things can cause a breach of the order. And the consequence of breaching the order is, you come back before me and if you come back before me it is likely that you will be facing a charge of failing to comply with a community corrections order and that carries a maximum of three months' imprisonment, and then you are called upon to be resentenced for the offence of armed robbery. You know what happens then, do you not?
So before you agree to the order I need you to think very hard about things and I need you, more than any other time in your life, to take this seriously and say if you are going to do it, you have got to commit to doing it. Because if you come back before me it is just going to cause heartache.
If you feel you are going to stumble along the way, do not reach for the illicit substance, do not go into the shop, do not do anything violent. Reach for help. Nip it off at the bud and then things can remain on track. But if you mess up and Corrections bring you back and I can tell you, you have got a very, very tolerant case worker from the report I read, if you mess up and they bring you back or if you commit further offences, then you will be brought back for resentence.
Now I just need to clarify with you, which Corrections Centre are you attending?
OFFENDER: Franklin Street.
HIS HONOUR: Which one, Franklin?
OFFENDER: Franklin Street.
HIS HONOUR: Franklin Street. All right, can you work out from then. So now I ask you the question and I will ask you to stand up, remove your mask and tell me. Mr Nason, are you prepared to consent to the order I propose to make?
OFFENDER: I consent.
HIS HONOUR: All right, thank you. Take a seat. Mr Nason, the order I make is that on the Charge of armed robbery you are convicted and ordered to serve a community corrections order for a period of 18 months. The order commences on 29 September 2022 and ends on 28 March 2024.
You must attend at the Melbourne Justice Service Centre by 3 October 2022 at 4 pm. So you have got to attend there before next Monday.
In addition to the mandatory terms that I have already read, you are to undertake 150 hours of unpaid community work over a period of 18 months as directed by the Regional Manager.
I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of this condition.
You are to be under the supervision of a Community Corrections Office for the period of 18 months.
You are to undergo assessment and treatment including testing for drug abuse or dependency as directed by the Regional Manager.
You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the Regional Manager.
You must participate in programs and/or courses that address factors relating to your offending behaviour as directed by the Regional Manager.
You are to comply with a curfew between the hours of 10 pm and 6 am for a period of six months. That is, you must within those hours be present at the address where you are living between the hours of 10 pm and 6 am. If you fail to comply with this order then Corrections may give you direction increasing the curfew in accordance with the Act. If you fail to comply with the unpaid community work Corrections may give you a direction to perform additional hours of unpaid community work.
I will have the order prepared. I will, as I have said, direct that a copy of these reasons be supplied to your case manager at the Franklin Street Centre, and I add these remarks and I want this to go as well. That it is imperative as the Mental Health Assessment Report specifies, that Mr Nason be directed into a mental health treatment program specific to his age. It is essential for Corrections, notwithstanding the intentions of Mr Nason, it is essential for Corrections to take the lead on this and with the assistance or a referral from Mr Nason's GP if necessary.
I urge you to undertake – go to your local GP and get a mental health plan prepared and a referral to a psychiatrist so that you may be appropriately medicated or treated as a psychiatrist sees fit.
All right, well I am told that your verbal consent to the making of the order is sufficient, that I do not need to have it signed by you. That will be noted on the order that you gave verbal consent. A copy of the order will be provided to you in a moment. Mr Barker, anything arising from any of that.
MR BARKER: No, Your Honour.
HIS HONOUR: Thank you. Mr Karitzis.
MR KARITZIS: Yes, just quickly, Your Honour. Does Your Honour intend on making a disposal order in respect of the nangs?
HIS HONOUR: Yes. I will make the disposal order in chambers.
MR KARITZIS: Yes, thank you, Your Honour.
MR BARKER: That is not opposed, Your Honour.
HIS HONOUR: Right, thank you. 6AAA, but for the plea of guilty I would have imposed a sentence of seven months imprisonment.
MR BARKER: As Your Honour please.
HIS HONOUR: Nothing else? All right. To Mr and Mrs Nason, thank you for your participation in the proceedings today. I wish you two luck.
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[2022] VCC 1614

29 September 2022