Director of Public Prosecutions v Nesbit, Robert and Jarvis, Guy
[2013] VCC 135
•25 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02191 (NESBIT) & CR-12-02196 (JARVIS)
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT NESBIT and GUY JARVIS |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2013 | |
DATE OF SENTENCE: | 25 February 2013 | |
CASE MAY BE CITED AS: | DPP v Nesbit, Robert & Jarvis, Guy | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 135 | |
REASONS FOR SENTENCE
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Subject: Armed Robbery and other offending
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Nesbit: TES 6 years and 3 months with 4 year non-parole period.
Jarvis: TES 3 years and 6 months with 21 month non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Harper | OPP |
| For Accused Nesbit For Accused Jarvis | Mr T. Marsh Mr A. Lewin | C. Marshall and Associates |
HIS HONOUR:
1 Robert Nesbit you have pleaded guilty to 6 charges of armed robbery (Charges 1, 2, 4, 5, 6 and 7) and one charge of being armed with criminal intent (Charge 8).
2 Guy Jarvis, you have pleaded guilty to 3 charges of armed robbery (Charges 1, 5 and 7), and a charge of robbery (Charge 3) and also pleaded guilty to a summary offence of possessing a controlled weapon without lawful excuse.
3 The prosecutor, Ms Harper, opened the circumstances of the offending and I will mark as an exhibit a “Summary of Prosecution Opening” from which she read.
4 The offending consists of a course of conduct beginning in the early hours of 25 August 2012 and culminating in the arrest of both of you on the morning of 27 August 2012. The course of conduct involved six incidents prior to the circumstances of your arrests.
5 The first was a joint armed robbery at a 7-Eleven store in Alphington, where you obtained $300 (Charge 1).
6 The second concerned an armed robbery mid afternoon on 25 August committed by you Mr Nesbit on an employee of Myer Melbourne at the cosmetics section just off Little Bourke Street. You obtained $293 from the register (Charge 2). Mr Jarvis the prosecution concedes that you did not know about the production of a firearm by Mr Nesbit and so are only guilty of robbery concerning this incident (Charge 3).
7 The third incident concerns an armed robbery on a 7-Eleven store in Canterbury in the early hours (3.30am) of the morning of 26 August committed by you alone Mr Nesbit. You obtained $240 (Charge 4).
8 The fourth incident occurred about twenty minutes after incident three (3.40am). Mr Jarvis, you entered a 7-Eleven store in Hawthorn, taking $450, while you Mr Nesbit remained in a car (Charge 5).
9 The fifth incident concerns an armed robbery by you alone Mr Nesbit on a Subway store in Preston at about 8.30pm on 26 August. You obtained $200 but dropped $150 from the bag, picked it up but then dropped a $100 note as you left the premises (Charge 6).
10 The sixth incident occurred at about 10.45am on 26 August when you both committed an armed robbery on a 7-Eleven store in Collins Street, Melbourne obtaining $160 (Charge 7).
11 On 27 August you were both arrested in the city where you had gone to commit a further robbery. You had entered Myer Melbourne where a security guard recognised both of you, at about 9.40am, from CCTV footage he had seen concerning incident two.
12 Mr Nesbit were arrested in Royal Lane having left Myer, passed through the Mall and Swanston Street. You were in possession of a black imitation handgun (Charge 8). You were also wearing distinctive clothing that had been worn by you in the earlier offending.
13 Mr Jarvis you were arrested on the corner of Bourke and Russell Streets. You were wearing distinctive clothing you had worn in previous offending and were in possession of a black imitation handgun (summary offence of possessing a controlled weapon).
14 Mr Jarvis you were unfit to be interviewed. Mr Nesbit, you made admissions an accepted responsibility for your offending.
15 Mr Jarvis, you have consented to me making an order for the taking of a forensic sample. I will make the order. My reasons will appear in it. You must understand that a police officer may use reasonable force to obtain the sample.
16 I will make the Forfeiture and Disposal Orders sought.
17 Each of you has been in custody since your arrest. I think the calculation is 182 days. Will counsel check that and let me know. I have been informed that you have served 182 days pre sentence detention, not including today. This period is to be reckoned as time already served under the sentences I will impose on each of you.
18 A victim impact statement from the Myer employee was tendered. As expected she has suffered significantly.
19 Mr Marsh appeared for you Mr Nesbit. His submissions were not contentious. He accepted that the offending was serious, describing it as mid range. A firearm, albeit an imitation, was used. The targets were “soft” and some planning and preparation had been undertaken.
20 He submitted that production of the weapon was sufficient to achieve compliance and there was no gratuitous violence.
21 Let me interpose my sentencing remarks and address you, Mr Marsh. I did not raise this issue with you, but I note that the material indicates that the Myer employee claimed that the words, "Shut the fuck up, bitch" were used. Now, to my way of thinking that is not going to make any significant difference, but I do not think it can be said that there was a complete absence of gratuitous verbal violence, so if there is something you want to say about that, I will hear you.
22 MR MARSH: Thank you, Your Honour. Please forgive me if I remain seated. If I stand I will disappear.
23 HIS HONOUR: No, that is fine.
24 MR MARSH: I do not take issue with that, sir. The submission that I made with respect to the use of the weapon was more along the lines that the weapon itself was not used in an attempt to perhaps further intimidate or degrade the victims past the point of which compliance had been achieved.
25 HIS HONOUR: Yes.
26 MR MARSH: But I do not take issue with the proposition that the phrasing used in the Myer incident would have been a matter of perhaps additional or further harm to the complainant, but my primary submission was in relation to the fact that the weapon itself was produced in order to gain compliance. Once that compliance had been effected, there was very little in the way of other brandishing or other carry-on as you might, see, for example, in an armed robbery on a bank, for example.
27 HIS HONOUR: Thank you.
28 The firearm used on each occasion was an imitation. This obviously limits the risk to others but of course the victims were not to know this.
29 Mr Nesbit, you are 37 years old. You have a very extensive criminal history, including prior offending for dishonesty and violence. You have been previously imprisoned for possession of a controlled weapon. You have been previously imprisoned for attempted robbery. Your prior history begins in 1993 and your most recent prior conviction was in March 2003.
30 I wrote these sentencing remarks some time ago, but in reading that comment I thought that must be inaccurate. I do not know why I have written that, because Mr Nesbit's most recent prior conviction was much more recent. It was in March of 2011 and I can only assume that was a typing error. I have got that correct, have I not, Ms Harper?
31 MR HARPER: 2011, sir.
32 HIS HONOUR: Yes, I think it is just a typing error that I have made, because I was conscious of the fact that Mr Nesbit's prior history is extensive.
33 You had a significantly deprived and disadvantaged upbringing. You were adopted aged 2. You left home at 13, it seems to escape your parents fighting and alcohol abuse. You have lived on the streets and spent time in foster homes. Your education was limited, leaving school at 16. Your employment has been menial, sporadic and limited with the longest job being for 4 months. As noted you have a lengthy history of offending. You first went to prison aged 23 for a combination of dishonesty, drug and violent offending. However, as your counsel noted since early 2008 you only have one prior offence and that was for unlawful assault for which you were placed on a CBO in March 2011 for 12 months. So there appears to have been a diminution in offending in recent years.
34 In short however, your life seems to have been marked by disadvantage, lack of parental guidance, homelessness, early drug use, offending, imprisonment and more recently the identification of psychiatric problems. This is a very common pattern seen in this court but it is nonetheless regrettable that you suffered the disadvantages you have experienced.
35 It was common ground that your life was in a chaotic state at the time of the offending. It seems that you realised your arrest was inevitable but you did not care. The fact that your arrest followed recognition of your distinctive clothing is telling. Your motivation for offending was to get money for drugs.
36 Your counsel tendered a psychiatric report from Dr Anthony Cidoni.
37 Dr Cidoni noted your background details. You told him that you began cannabis and heroin use aged 14, although you told your counsel you began cannabis use aged 9. It seems you ceased using heroin after being treated with methadone, this program ending in April 2011. Your counsel suggested that you may have substituted amphetamine and methamphetamine use for heroin and that your decline in mental heath about this time may reflect this. You began using amphetamines in your later teens and were using methamphetamine or ice in the 3 months leading up to your arrest.
38 In 1997 and 1998 you were diagnosed with personality disorders that seem to have been related to problem behaviour including offending.
39 Your first psychiatric admission was in April 2011 when you were experiencing persecutory delusions. You were treated but readmitted as an involuntary patient in May 2011 and further treatment included antipsychotic medication. The discharge diagnosis was schizophrenia, depression and antisocial personality disorder and you were discharged onto a community treatment disorder. However, you disengaged from treatment and were not being treated at the time of the current offending.
40 Your drug use is likely to have exacerbated your psychotic symptoms. You require ongoing monitoring and treatment including medication. Your schizophrenia and psychotic symptoms may contribute to your aggression and agitation and cause significant impairment of your functioning but Dr Cidoni considers that your antisocial personality disorder is a bigger contributor to your ‘impulsivity’ by which I understand he means your reckless behaviour and lack of regard for the consequences of your actions.
41 Although Dr Cidoni thought there was no clear evidence of your delusions or hallucinations as such contributing to your offending he emphasised that you were not on treatment and were abusing drugs at the time of the offending.
42 Your counsel disavowed reliance of the principles in Verdins case to reduce moral culpability. He conceded that the relationship between your mental illness and offending cannot be clearly identified but nevertheless your illness was part of and led to your generally chaotic life in the lead up to the offending. Accordingly, he argued I should not sentence you as severely as I would a person without your mental state problems. I accepted this in argument and will act upon it.
43 Because of your schizophrenia you are likely to find prison more onerous than others and the conditions of prison may precipitate anxiety and aggression and further exacerbate your mental health problems.
44 I am guarded about your rehabilitative prospects. Much will depend on how you respond to mental health treatment and substance abuse treatment. Your counsel said that you are not receiving medication at the moment. I propose to provide a copy of Dr Cidoni’s report to the prison authorities unless you have some objection.
45 There was no challenge to the opinions of Dr Cidoni and I accept them.
46 Your counsel emphasised your pleas of guilty as requiring a reduction in sentence. He is correct. I accept that you pleaded guilty at the earliest opportunity and made significant admissions when interviewed. This case has been dealt with expeditiously.
47 Your counsel noted the thread of hopelessness running through your life. Indeed, he noted the current relatively dismal view you have about your future. You told him that you expect to use drugs on release because it is what you do. Your counsel did not expect you would receive visits in prison.
48 The prosecution emphasised the seriousness of the offending and the need for denunciation, specific and general deterrence as well as community protection. The armed robbery at Myer, it was submitted, was the most serious of the offences. I accept this as noted in discussion.
49 The prosecution accepted that imprisonment would be more burdensome for you.
50 It was submitted by the prosecution that a total effective sentence of between 5 and 7 years with a non-parole period of between 3 and 5 years was appropriate. Some accumulation between the charges was required. Your counsel did not respond to the sentencing range figures submitted by the prosecution. I think the sentencing range submissions are constrained and reflect the need to give real weight to your mental state problems.
51 Despite the parties agreeing that I have the power to impose an aggregate sentence I was urged not to do so by all counsel. The principal reason identified by all counsel was that discrete sentences and concurrency orders provide greater transparency particularly when there is a need to treat the accused disparately. I propose to impose an aggregate sentence on both accused. I am of course very conscious of the concerns raised by counsel and I note the discussion just before beginning these sentencing reasons.
52 Mr Nesbit, you will be convicted on each charge and sentenced to an aggregate sentence on all charges of 6 years and 3 months imprisonment. I fix a non-parole period of 4 years. You can sit down, Mr Jarvis. You too, Mr Nesbit, you can sit down.
53 Had you not pleaded guilty I expect I would have sentenced you to about 8 years imprisonment with a non-parole period of about 6 years.
54 Mr Lewin appeared for you Mr Jarvis.
55 He adopted the submissions of Mr Marsh concerning the analysis of the level of offending with the qualification that planning by you was more limited. Your attempts to disguise yourself were limited.
56 Of course you face less charges than Mr Nesbit and incident two only results in a charge of robbery in your case (Charge 3).
57 Very importantly, you have no prior history.
58 Mr Lewin outlined you background in considerable detail. In short however, he emphasised that your background was one of difficulty, disadvantage, dysfunction and instability. Your parents separated when you were 2. Your mother suffered mental health problems, which seems to have significantly reduced her ability to properly raise you. You lived in about 20 different houses during your childhood.
59 You are 28 years old. You began to manifest mental health problems at about 6. You were sent to boarding school in New South Wales aged about 8 and remained there with little contact with your mother for about 4 or 5 years when you then again began to live with your mother in Melbourne. Although in your mother’s care until removed a couple of years later the interim was one of unsettled accommodation including emergency accommodation. You were then placed in foster care moving between two foster homes. You then moved into Housing Commission accommodation with two older associates before travelling to Scotland to live with your father, aged about 16. However, this was unsuccessful and you fled to your mother who was in England at this time. You stayed with her for some months before her declining mental state resulted in your return to Australia in 2003 aged about 18.
60 You then resided in a rooming house on Centrelink benefits, about which time you began to display mental health problems and were placed on medication. Between 2004 and 2005 you lived in temporary accommodation.
61 In 2006 you received treatment at the Hawthorn Clinic. You were diagnosed with schizophrenia. From this time, aged 21, there has been a steady decline in your mental health and associated problems.
62 At first you were allocated transitional accommodation however you were only eligible for this accommodation for 2 years.
63 In 2008 you obtained further alternative accommodation through the Hawthorn Clinic. Your mental health declined and you were placed in a mental health facility on four occasions over the 2009 – 2012 period.
64 In 2010 you obtained further alternate private accommodation through the Hawthorn Clinic. Unfortunately this exposed you to drug and criminal associates. Indeed, you met Mr Nesbit there.
65 In 2011 you attempted suicide.
66 In April 2012 you were admitted to St Vincent’s Hospital and released on a Community Treatment Order. The current offending occurs 4 months later. You had used some drugs previously, “dabbled in ice” as your counsel put it, but in the setting I have just referred to your use of methamphetamine escalated.
67 Of course the mix of methamphetamine and psychotic illness was toxic.
68 It was common ground on the plea that Mr Nesbit took the leading role in the offending. When interviewed he, that is Mr Nesbit, was frank to the police about this.
69 This brief summary tells a tragic story. Your counsel emphasised your early intellectual and learning difficulties, increasingly strange behaviour including obsessive compulsive conduct in your mid teens, your diagnosis of schizophrenia at about 21, the treatment of psychotic symptoms and both voluntary and involuntary admissions for mental health treatment. Your psychotic symptoms increased from about 2008 and your functioning declined in the 2011 to 2012 period including an attempt to hang yourself.
70 It was in this setting that the current offending occurred.
71 A report from Warrick Brewer, a consultant clinical neuropsychologist, was tendered on your behalf. Hospital notes from St Vincent’s Hospital Mental Health were provided to Mr Brewer. What I assume are the same notes, relating to the period 10 February 2012 to 12 April 2012 were tendered as were notes from St Vincent’s dated 19/10/2012 which are described as a “Major Review”. These notes focus on your treatment at the MRC but also contain background history fleshing out and elaborating the background chronology presented by your counsel which I just summarised. They are particularly depressing to read.
72 There is also a letter from Dr Daina Rumbergs dated 13 February 2013 addressed to your counsel. She notes your long involvement with psychiatric services dating back to early childhood. In 2006, as noted in other material and repeated by Dr Rumbergs you were found to be functioning at an extremely low to borderline intellectual level probably consistent with a chronic psychotic disorder. You have been treated as an involuntary patient in the community because of your impaired insight regarding your mental illness. Your illness has remained resistant to treatment with only partial response to antipsychotic medication. She notes that you will be difficult to treat and at risk of significant deterioration requiring psychiatric admission.
73 Mr Brewer assessed your IQ and found that you fell within the ‘low average range’ overall.
74 Mr Brewer expressed views about your precise mental state diagnosis but stated that “irrespective of past diagnoses, Mr Jarvis currently suffers a severe mental illness (Schizophrenia) with associated cognitive deficits that leave him at a significant functional disadvantage”. He thought this relevant to your offending, describing you as a highly vulnerable individual both with respect to your mental illness and compromised history that afford you little opportunity for establishing independent survival skills.
75 Mr Brewer, noting that your developmental immaturity significantly impacted on your ability to focus on and be constrained by the impact of your behaviour on others.
76 I accept that you cannot be relied upon to think clearly and make calm reasoned decisions and appropriate judgments, or to regulate emotions particularly under the influence of drugs.
77 Mr Brewer thought prison might provide you with structure, which you need, however you will remain highly vulnerable. You will require highly specialised treatment preferably in the community; in particular, in a Community Care Unit managed by public Mental Health Services. The prospects for mental health rehabilitation are slim but the risk of re-offending is mild given appropriate assistance and treatment.
78 Your counsel submitted that your moral culpability should be reduced because of the relationship between your mental state problems and your offending. Whilst he acknowledged that the use of “ice” at the time of the offending makes it impossible to quantify the role of your underlying mental state illness in the offending, it must be a significant contributor, he argued.
79 In my view, in assessing your culpability I need to keep in mind your background of disadvantage and history of mental state problems.
80 Additionally, the prosecution concedes that the Verdins principles are activated on the basis that you will find prison more burdensome than others. I also accept this.
81 You pleaded at the first opportunity and of course must benefit from your pleas of guilty.
82 It is a depressing thought to contemplate the presence of people with mental state problems as profound as yours in our prisons.
83 I accept that you played a secondary role in the offending. You have no prior convictions. Your exposure to serious drug use is relatively recent. This is your first time in prison. Treatment in the community is highly desirable. You will be highly vulnerable in prison. Aside from lawyers and mental health workers you are unlikely to have visitors.
84 Of course you face less charges than Mr Nesbit. Additionally, you are guilty of robbery only concerning the incident at Myer. You have no prior offences, as I have noted several times. both you and Mr Nesbit have seriously disadvantaged backgrounds and both of you suffer mental state problems.
85 There is much to be said for your counsel’s submission for a lengthy parole period to assist transition back into the community.
86 The prosecution submitted that a total effective sentence of between 2 ½ and 3 ½ years with a non-parole period of between 18 months and 2 years was appropriate in your case. Your counsel did not respond to this submission.
87 The sentencing range submissions made by the prosecution are modest when focus is directed at the offending. In my view, they reflect the special circumstances of your case including your mental state.
88 Could I ask you to stand up please, Mr Jarvis.
89 You will be convicted on each charge and sentenced to an aggregate sentence of 3 years and 6 months imprisonment. I fix 21 months as the non-parole period.
90 But for your pleas of guilty I would have sentenced you to about 5 years imprisonment with a non parole period of about 3 years.
91 Anything that I’ve got wrong factual or any other matter that I've overlooked that needs correcting that counsel can identify?
92 MS HARPER: May I confirm the pre-sentence detention figure, Your Honour?
93 HIS HONOUR: Say that again.
94 MS HARPER: May I confirm the pre-sentence detention. It’s 182 days.
95 HIS HONOUR: 182, not including today, you both agree.
96 MR HARPER: Not including today.
97 HIS HONOUR: Is there any reason why the prison authorities shouldn’t be provided with the material tendered on the plea relating to each of the accused’s mental state problems?
98 MR LEWIN: I've got no issue with that, Your Honour.
99 MR MARSH: Not from my perspective, no, Your Honour, it might assist in reconciling the mental health treatment in custody.
100 HIS HONOUR: I agree with that so I will ensure that the material is provided to the prison authorities.
101 MR HARPER: As Your Honour pleases.
102 HIS HONOUR: Thanks very much.
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