Director of Public Prosecutions v Nicholls
[2022] VCC 1857
•24 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-02192
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER NICHOLLS |
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JUDGE: | HIS HONOUR JUDGE SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | To Plead: 2 February 2022 Further Plea: 1 April 2022; 31 May 2022; 1 June 2022; 28 July 2022; 7 September 2022; 24 October 2022 | |
DATE OF SENTENCE: | 24 October 2022 | |
CASE MAY BE CITED AS: | DPP v Nicholls | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1857 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Armed Robbery
Legislation Cited: Sentencing Act 1991; Mental Health Act 2014
Cases Cited:Worboyes v The Queen [2021] VSCA 169; Cameron v The Queen (2002) 209 CLR
Sentence: 15 Months Detainment in a Youth Justice Centre
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Connolly | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms Smith | Emma Turnbull Lawyers |
HIS HONOUR:
Introduction
1Christopher Nicholls, you have pleaded guilty before me to one charge of armed robbery, which carries a maximum penalty of 25 years' imprisonment.
Circumstances of the offending
2The circumstances of your offending were set out in the amended prosecution opening upon plea dated 3 February 2022, Exhibit B at your plea hearing. That document sets out the agreed factual basis for the offending in relation to which you now fall to be sentenced. Your offending can now be briefly summarised.
3
At about 10.04 pm on 19 April 2021, you were in the company of your two
co-offenders in relation to this matter, Jahmyle King, and his brother, Jacob. Earlier that evening, the three of you were involved in a theft at the Liquorland store in Union Square, Brunswick West, and other dishonesty offending at the Brunswick City Soccer clubrooms in Brunswick West.
4
At about 10.04 pm, the three of you attended the IGA Supermarket at
490 Albion Street, Brunswick West
. The three of you entered and walked past the store attendant, who was standing behind the counter, before walking down an aisle and starting to place bags of potato chips in your bags. The store attendant approached, having observed the actions of the three of you, and asked you to return the items and leave the store. Jahmyle King walked towards the store attendant, and said 'Are you going to hit me?' You said, 'Let's start, let's start.' When the store attendant tried to stop Jahmyle King from approaching any further by putting his hands out, he felt an object similar to a hammer under
Jahmyle King's clothing. The store attendant retreated behind the counter, and the three of you followed him to the counter.
5
Jahmyle King walked behind the counter and started taking cigarettes from the cabinet, with the store attendant trying to push him away from behind the counter. At this point, Jahmyle King produced a small axe from under his jumper and threatened the store attendant with it. When the store attendant grabbed the axe, he and Jahmyle King struggled for control of the axe, with Jacob King telling the store attendant to calm down and that they would take what they wanted.
Jacob King went behind the counter and grabbed the store attendant from behind around the neck, while Jahmyle King continued to struggle for the axe. During this struggle, and due to the actions of Jacob King, the store attendant was unable to talk because of the pressure around his neck and was finding it hard to breathe.
6Jacob King then threw the store attendant to the ground and you took possession of the axe, then hitting it on the counter three times. Jahmyle King tried to open the cash register but was unsuccessful, and he then took the register which contained an unknown amount of cash. The three of you then left the supermarket with cigarettes and the register, but not before a female bystander spoke to the three of you, asking whether you were doing a good thing, to which you collectively replied that it was none of her business.
7The three of you were arrested on 20 April 2021, when police executed a search warrant at Jahmyle and Jacob King's address where the three of you were then present in the garage. You were arrested without incident.
8When interviewed by police on the day of your arrest, you indicated that you could not recall much of the offending due to your intoxication, but you recalled that you were at the King residence, and you identified yourself from the CCTV stills of the armed robbery incident.
9You were remanded in custody on the day of your arrest, and bailed eight days later. You have been on bail since this time, some 17 months.
10
As indicated in the procedural history attached to the prosecution opening, your matter resolved to a plea of guilty at the committal mention stage on
16 September 2021. You were arraigned before me on 2 February 2022, formally pleading guilty to the charge of armed robbery. You have subsequently appeared before me on numerous occasions with regards to plea submissions and bail review hearings. Your most recent hearing prior to sentencing being on
5 October 2022.
11You have subsequently been dealt with, with regards to criminality in the hours preceding the armed robbery, together with, as I understand it, other offending in the weeks leading up to the armed robbery. At the Melbourne Magistrates' Court on 21 January 2022, you received a Community Correction Order in relation to those matters.
12I will return to your progress since being granted bail shortly. However, I accept that you have, it seems, not engaged in any criminality that is in any way comparable to the armed robbery for the entirety of the 17 month period whilst on bail.
Nature and seriousness of the offending
13
The gravity of the armed robbery offence to which you have pleaded guilty is reflected in the statutory maximum penalty of 25 years' imprisonment. The seriousness of this example of armed robbery is reflected in the fact that it is a category 2 offence pursuant to the relevant definition contained in the
Sentencing Act 1991,
due to the fact that you were in company, requiring a custodial penalty to be imposed unless one of the exceptions contained in s5(2H) of the Sentencing Act 1991 apply. Through your plea of guilty, you have acknowledged responsibility for participating with two others in serious and inherently violent offending.
14Your victim, a store attendant at an IGA supermarket, was a soft target, simply going about his work as a store employee. Due to your offending in company, the objective seriousness of your criminality is increased. The presence of three offenders no doubt emphasised the vulnerability in the mind of your victim. Likewise, the prevalence of this type of serious offence also enhances the objective seriousness of it. There is a significant need for any penalty to reflect the important sentencing purposes of denunciation and general deterrence. Furthermore, the community has a right to be protected from such serious criminality.
15At your plea hearing, I viewed the CCTV footage of the armed robbery, Exhibit C at your plea hearing. That footage graphically highlights the violent, dangerous and no doubt frightening nature of the armed robbery. Whilst no victim impact statement was provided by the store attendant, it can be reasonably assumed that he was frightened by your collective actions. Whilst I accept that you did not make physical contact with the store attendant, in contrast to your two co-offenders, you were clearly acting together, and the fact that this armed robbery involved physical contact and aggression further enhances the objective seriousness of this particular example of the crime of armed robbery.
16There was also a female bystander present for at least part of the incident, who no doubt was also adversely affected by what she saw and heard. I accept in many respects, that this example of armed robbery was fairly short-lived, and was unsophisticated in the sense that none of you were meaningfully disguised. However, in all the circumstances, this incident represents, in my view, a serious example of the crime of armed robbery.
Level of responsibility and culpability for your offending
17Turning now to your level of responsibility and culpability of your offending.
18As I have stated, you acted together, and therefore collectively, in my view bear responsibility for the armed robbery. However, I accept that your role was somewhat more passive than that of your two co‑offenders who both made direct physical contact with the victim in contrast to you. Both Jahmyle and Jacob King went behind the counter, whereas you remained on the other side of the counter. You only came into possession of the axe, which forms the basis of your armed robbery charge, midway through the offending, though once in possession, your actions in hitting it on the counter three times whilst the victim was in the midst of a struggle with your two co-offenders and had been thrown to the ground, no doubt increased the victim's fear and apprehension during the commission of the armed robbery.
19It cannot in my view, be said that you were entirely passive. In the initial stages of your group's dealings with the victim when he approached you in the aisle to ask you to return the bag of potato chips and leave the store, when Jahmyle King walked towards the victim saying, 'Are you going to hit me?' you said, 'Let's start, let's start.' This in my view, hardly the conduct of a passive participant in an armed robbery and highlights in my view, that you were well and truly involved in the commission of this crime.
20Your counsel did not submit that your moral culpability for the offending was reduced due to any impaired mental function in accordance with Verdins principle 1. However, whilst your level of culpability for this offending must be seen as significant, in my view your extremely difficult personal background and psychological fragility do bear upon your level of responsibility and culpability for your offending. Given your psychological profile, as described by Psychologist, Carla Lechner, both in her reports and in evidence before me, I accept that you were likely going along with your two co-offenders at the time of the armed robbery, and that, if not for your involvement with them, you may not have engaged in this offending. In that regard, I note that at the time of the offending, you did not have a criminal history.
Personal circumstances
21Turning now to your personal circumstances.
22You are now 20 years of age, turning 21 in February 2023. At the time of your offending, you were just 19 years old.
23For reasons that will become clear during the course of my reasons for sentence, a true understanding of your background and personal circumstances has been difficult to say the least to obtain, given conflicting information provided to the court. I will deal with the belated information emanating from your appearance before me for what was due to be a sentencing hearing on 5 October 2022 in due course. Suffice to say that there is some doubt, in my view, as to the extent to which your father has been absent in your life, particularly in recent times.
24You are the youngest of three sons born to your parents, Bronwyn and Ian, who separated when you were four years old. Following the separation, you lived with your mother and two older brothers, who are now both in their early 20s. Whilst you have maintained a close relationship with your mother, it appears that the same cannot be said, at least until recently, with regards to your father. When you were six years of age, your father remarried, leading to reduced contact with him and a disconnected relationship as you grew up. With the full‑time care of three children, your mother apparently worked hard to provide for you and give you a stable home environment, with very limited family support.
25
You apparently struggled at school, to the degree that your mother thought you might have ADHD, but you were never assessed. You reported poor concentration and focus, and restlessness that persists to this day. You reportedly had no friends at school, and would often sit alone at lunchtime. You were often bullied, which only served to exacerbate your feelings of loneliness. You do not recall ever receiving any assistance at school, either academically or socially. Sadly, your education seems to have ended at the Year 8 level. You had attended
Footscray High School for Year 7, but left a few weeks into Year 8 at
Lynall Hall Community School in the context of further bullying.
26You indicated to Psychologist, Carla Lechner, when she assessed you for the purposes of this plea hearing, that around this time you became rebellious, feeling angry at school and angry with life. You reported that during this period, you started drinking and smoking. You also, it seems, withdrew from your family. Not in school and not engaging in any vocational pursuits, you would it seems, spend time sleeping in your room and would often disappear from the family home for days on end.
27During this period, you began abusing drugs and alcohol. Around the age of 14, you initially tried cannabis, which led to daily use until you were aged approximately 19. You tried methamphetamine at 15 years of age and used it consistently from the age of 17. There was sporadic use of other substances.
28Your counsel indicated that alcohol was a serious issue for you in your teenage years and that you would consume at least a six pack of alcohol to a slab on a daily basis for a number of years. You indicated to police in your interview with regards to the armed robbery that you were intoxicated at the time, and I note that upon your arrest, police found significant quantities of alcohol in the garage where you and your co-offenders were then located.
29It seems, from a review of the various documentary materials provided in this case, that your teenage years have been marked by a lack of motivation or direction in your life, with a lack of engagement in any real pro-social activities. Indeed, there is a strong sense that you have felt for some time that you do not fit in and have virtually given up, notwithstanding your youth. Your counsel referred to your abusing illicit substances as a means to escape these feelings and the attendant significant depression which has beset you for some time now.[1]
[1]Defence Outline of Submissions dated 25 March 2022 at paragraph [17].
30
Clinical Psychologist, Carla Lechner, provided a comprehensive psychological assessment and report for the purposes of your plea hearing, dated
21 March 2022, Exhibit N2, together with a supplementary report with regards to subsequent contact with you, dated 12 July 2022, Exhibit N8. Ms Lechner also gave evidence before me on 1 June 2022. I have found the reports and evidence with regards to Ms Lechner's opinions of significant assistance in understanding your psychological profile and its impact on the sentencing exercise.
31According to Ms Lechner, you suffer from severe eczema which has, at times, necessitated hospital care, this serious skin condition being a contributing factor to your low self-esteem and depression. According to Ms Lechner, your presentation at interview was consistent with a diagnosis of clinical depression. Indeed, according to Ms Lechner, you presented with symptoms of major depressive disorder and alcohol use disorder. Whilst you have been trialled on a number of anti-depressant medications, there has not been any noted improvement in your mood. According to Ms Lechner, your depression is severe and undermines your ability to seek employment, make social connections, or believe that you have any agency in your life.
32Your use of alcohol to manage your depression has only served to aggravate and exacerbate your low mood.[2] Furthermore, according to Ms Lechner, you impressed as socially and emotionally immature with a limited capacity to engage in reflective and consequential thinking. You are caught in a cycle of depressed and negative thinking, and you interpret the world around you as too big a challenge, particularly as you lack any sense of urgency. On a background of multiple suicide attempts during your young life, as at 21 March 2022, Ms Lechner opined that you were reporting symptoms of severe psychological distress and extreme depression, and you were then at risk of further suicide attempts.
[2]Psychological Report by Ms Carla Lechner dated 21 March 2022 at page [6].
33
Ms Lechner gave evidence before me on 1 June 2022, to amplify some of the aspects of her primary report dated 21 March 2022. In evidence, Ms Lechner opined that your severe depression is longstanding and probably stems from childhood and adolescent experiences, leading you to feel disconnected from the community and yourself, and not really being able to form a strong sense of self or identity. In relation to the offending, Ms Lechner referred to your reported intoxication at that time, with ongoing symptoms of depression. According to
Ms Lechner, you present as more of a follower than an instigator, and 'It seemed to me unlikely that he would commit this type of offence if he was on his own.'[3]
[3]Transcript of Proceedings, DPP v Christopher Nicholls [2022] VCC 1857 (County Court of Victoria, Plea, His Honour Judge D. Sexton, 1 June 2022) page 15.
34In relation to your eight days on remand, Ms Lechner referred to your difficulties during this time. You essentially refused all food, and according to Ms Lechner, your lack of eating was an act of starving yourself, essentially an attempt to take your own life. In the context of your history of suicide attempts, Ms Lechner opined that any attempt or threat made by you needs to be taken seriously.[4]
[4]Ibid page 18.
35In terms of the impact of a custodial sentence upon you given your psychological profile, Ms Lechner concluded that your mental health would be further aggravated through imprisonment. According to Ms Lechner, you were quite socially and emotionally immature and you would likely find the custodial environment extremely intimidating, such that she would anticipate a further decline in your mental health and a deepening of your depression, raising the issue of potential suicide.[5]
[5]Ibid page 20.
36In a subsequent report dated 12 July 2022, Ms Lechner reported that you continued to present with symptoms of major depressive disorder. Ms Lechner did note a degree of improvement from her previous contact with you, in the context of your engagement with the County Court CISP Supported Bail Program, reporting by way of example a reduction in your consumption of alcohol.
37
Returning to the issue of your experience of imprisonment should you be sentenced to a sentence of imprisonment, given your psychological profile,
Ms Lechner concluded that the burden of imprisonment on you would be significantly greater than on a person without the level of depression from which you suffer. A term of imprisonment would hamper your ability to alleviate your depression through slow but steady progress with community support. According to Ms Lechner, 'I would anticipate a sense of despair and hopelessness that could realistically result in a suicide attempt. In my view, the risk of suicide would constitute a 'substantially and materially greater than ordinary burden', certainly from a psychological perspective.'[6]
[6]Ibid page 3.
38
Further information with regards to your more recent personal circumstances since being bailed for this offence in April 2021 was helpfully provided through the various progress reports from Youth Justice, who supervised you on bail from
27 April 2021 until 31 May 2022. Those reports were tendered at your plea hearing and marked Exhibits N3 and N4. In those reports, Youth Justice confirmed your difficulties during your period of remand in adult custody, during which period you refused to eat. The reports refer to your untreated mental health and substance abuse issues, together with a lack of constructive day programs and no form of income.
39The reports referred to a long slow process of rapport building, during which time you struggled to communicate in any meaningful dialogue and presented with flat mood and being melancholic. The reports refer to your successful completion of a limited period of alcohol and drug counselling. A neuropsychological assessment organised through Youth Justice confirmed the absence of any acquired brain injury, but the existence of chronic depression and anxiety. Overall, the reports confirm a satisfactory level of compliance on your part with supervised bail over an extended period of some 12 months, demonstrating it was said, your ability to comply with court orders in the community. However, due to a reduction in your contact and motivation levels with Youth Justice, at their request involvement of Youth Justice with regards to supervised bail ended in May this year at a hearing before me.
40
At that hearing, senior court advice officer with the north and west region,
Ms Donna Ascher
, gave evidence with regards to your progress, and concerns held by Youth Justice. In that regard, Youth Justice have consistently it seems expressed concerns with regards to your ability to cope in a custodial environment given your personal issues and psychological profile. By way of example, in her report dated 25 March 2022, Mr Ascher indicated,
'Christopher appears to lack the interpersonal skills to navigate through a contained environment, this was displayed when he was remanded in custody when he refused to eat.'
41In evidence before me on 31 May 2022, Ms Ascher reiterated her concerns with regards to you not being equipped for a custodial setting given your history of suicidal ideation from the age of six and your longstanding difficulties with depression, and your most recent experience of the custodial setting when being remanded for this matter. Ms Ascher indicated that she on behalf of Youth Justice had concerns with regards to your ability to cope in any custodial setting, both adult and Youth Justice.
42The concerns expressed by Ms Ascher were again reiterated in the Youth Justice Centre Order suitability report ordered by me, dated 12 July 2022, with regards to your suitability or otherwise for a Youth Justice Centre Order. According to that report,
'Youth Justice believe custody would be to Christopher's detriment given he would be highly impressionable and vulnerable in an adult custodial environment due to his young age, level of immaturity, but particularly longstanding mental health issues and identified suicide risk. …'
43Referring to your traumatising experience in custody whilst on remand for this matter, Ms Ascher opined,
'Christopher is still articulating suicidal intentions if he receives a custodial sentence. Youth Justice believe that Christopher would struggle in any custodial setting.'
44At your further plea hearing before me on 7 September 2022, a representative from Youth Justice confirmed that these concerns expressed in this report applied equally to the Youth Justice Detention setting as to the adult custodial setting.
45Furthermore, with regards to your more recent personal circumstances, helpful information was provided through the various CISP progress reports, since I varied your bail on 1 June 2022 to incorporate the support of CISP as an alternative to Youth Justice. Overall, you have it seems managed to build some rapport with the CISP case manager, Ms Rice-Lacy, though consistent with other professionals who have attempted to assist you over the years, progress has been slow.
46Under the auspices of CISP, you attended for an assessment with
Consultant Psychiatrist from Forensicare, Dr Roth Trisno, whose findings were set out in the mental health report dated 28 July 2022, Exhibit N7 at your plea hearing. With Dr Trisno, you acknowledged low mood with associated insomnia and fatigue, with periodic suicidal thoughts. You referred to a panic attack three days prior to
Dr Trisno's assessment of you. You referred to ongoing use of illicit substances, particularly cannabis and alcohol. You referred to a reluctance to accept specialist interventions.
47Consistent with Ms Lechner, you presented with features of Major Depressive Disorder and substance use disorder on a background of avoidant personality disorder, with the latter likely stemming from traumatic experiences of your childhood years. Dr Trisno concluded that due to your youth, presence of multiple psychiatric comorbidities and the risk of further deterioration if interventions are not provided, a more assertive intervention be provided moving forward. Dr Trisno made various recommendations with regard to appropriate referrals and services in that regard.
48It was originally my intention to sentence you with regards to this matter at the hearing on 5 October 2022. A CISP Finalisation Report dated 4 October 2022 had been provided by your CISP case manager, Ms Rice-Lacy, confirming your ongoing involvement with CISP up to the date of this report. You had attended most appointments, having slowly developed a rapport with Ms Rice-Lacy, and had always impressed as polite and appropriate in terms of your communication with regards to appointments.
49According to Ms Rice-Lacy, whilst clearly resistant to specialist interventions, with the assistance of CISP you had at least secured financial and job-seeking assistance from Centrelink. Unfortunately, the reference by Ms Rice-Lacy to your departure from the protective environment of the family home where your mother and brother lived on 29 September 2022 highlighted a critical change in circumstances very much bearing upon your rehabilitative progress.
50You attended court over an hour late for your sentencing hearing on
5 October 2022, and when you did attend your presentation was, to say the least, concerning. Through your counsel you indicated that you were no longer residing at your bail address with your mother and brother, and had been staying with friends. Your counsel indicated that there had been an incident on the Grand Final public holiday at your mother's house involving alcohol, leading to your mother obtaining an intervention order, essentially prohibiting you from returning to that address.
51I was then informed that you had been in contact with your father, Ian, and your brother, both of whom were in court at the hearing on 5 October 2022. Your father, Mr Nicholls Senior, gave evidence before me and indicated the contact he had been having with you since your exit from your mother's property on
Grand Final Day.
52Mr Nicholls indicated that he was then in a position to fund private accommodation for you in the short term, together with funds for essential supplies. He also indicated a preparedness to essentially play a supportive role with regards to your day to day health and safety, in the context of these pending legal proceedings being at such a critical juncture. Similarly, Mr Nicholls provided an undertaking to contact police should you not comply with any continuing bail obligations in the event that the matter was not finalised on 5 October 2022.
53Dealing with questions from me with regards to the apparent inconsistency of historical details with regards to his contact with you, Mr Nicholls senior indicated that he had been in touch with you since July of this year when he became aware of the charges, and remained a supportive person in your life.
54I made my views clear at the hearing on 5 October 2022 with regards to the apparent inconsistencies with regard to the role of your father in your life, and I made my concerns clear to you with regards to your troubling trajectory given the critical stage in the proceedings. I adjourned the matter to today for further plea and sentence, and varied your bail to incorporate a requirement on your part to reside as directed by the CISP program, and to report once per week to police.
55I understand that following this hearing your father organised accommodation, firstly at a Quest apartment complex in Williamstown followed by CISP organised accommodation at a private hotel in Parkville until the date of this hearing. According to the most recent CISP report from Ms Rice-Lacy, dated
20 October 2022, you have essentially failed to attend any appointments with
Ms Rice-Lacy in the intervening periods, on 7th, 12th & 13 October. You participated in a phone conversation on 13 October at that time declining any offer of support from CISP.
56On at least one occasion, and I suspect two occasions, you have failed to report to police in accordance with your bail conditions. According to a phone conversation between yourself and Ms Rice-Lacy on 19 October you indicated that you had not been reporting to police. You indicated that whilst you had been staying at the Carlton accommodation, you had been 'jumping around a bit' and staying with friends. You reported concerningly a significant increase in drug use and indicated that you were highly drug-affected when you were last before me on
5 October.
57It seems therefore that in the context of the last almost three weeks since I varied your bail, you have breached almost every condition of bail by not residing as directed by CISP, not following CISP directions, not reporting to police, and using a drug of dependence.
58Your counsel Ms Smith provided an updated document entitled 'Further plea submissions dated 21 October 2022' Exhibit N9. In that document you appear to be taking issue with much of the evidence provided by your father with regards to his contact with you historically. You did however indicate through counsel that you were open to having an ongoing line of communication with your father moving forward and you acknowledged his support.
59It is apparent from the plethora of reports that have been generated in this matter, together with your recent progress, that you present with a complex picture with regards to your rehabilitative trajectory. You present with a complex and challenging psychological profile, with self-evident risk profiles including suicidality, in combination with a troubling degree of apathy on your part. You also continue, it seems, to engage in illicit substance misuse. Notwithstanding the intervention of your father in recent times, and the holistic supports offered through the CISP program, your circumstances remain incredibly unstable, and accordingly the risks to yourself, let alone the community, are self-evident. I note that those risks were referred to by Ms Rice-Lacy in her most recent CISP report.
Sentencing factors
60The Sentencing Act 1991 requires me to have regard to various factors, principles and purposes when formulating an appropriate sentence in your case. I have already referred to the maximum penalty for the offence of armed robbery, the nature and seriousness of your offending, your level of responsibility and culpability for it, and your personal circumstances.
61I have also had regard to the current sentencing practices for the crime of armed robbery, noting that sentences involving imprisonment or detention have not infrequently been imposed with regards to the offence of armed robbery.
62I turn now to the issue of your plea of guilty.
63I accept that in your case that the timing of your plea must be considered as an early plea, given that your matter resolved in the Magistrates' Court, at the committal mention stage. Your plea of guilty has avoided any contested proceedings, and the need for any witnesses including your victim to be
cross-examined. Through your early plea of guilty, you have facilitated the course of justice and saved the community the cost and inconvenience of a trial. Particularly given that your plea of guilty came during the COVID-19 pandemic which has had catastrophic impacts upon the disposition of criminal trials in this state with unprecedented delays being experienced, the utilitarian benefit of your plea of guilty is very significant, warranting a significant sentencing discount.[7]
[7]Worboyes v The Queen [2021] VSCA 169, 35.
64Furthermore, I am satisfied that your early plea of guilty is reflective of your regret for your actions and your willingness to accept responsibility for your conduct.[8] In your dealings with Psychologist, Carla Lechner, you expressed shame for your actions, and identified appropriately that the victim would have been traumatised.[9] Likewise, in your dealings with Youth Justice, you have expressed appropriate remorse in my view, indicating that you had thought about the victims and how they would have felt.[10]
[8]Cameron v The Queen (2002) 209 CLR, 350.
[9]Psychological Report by Ms Carla Lechner dated 21 March 2022 at page [5].
[10]Youth Justice Centre Order Suitability Report dated 12 July 2022 at page [2].
65Likewise, in your assessment with Ms Caruso with regards to your extended pre-sentence assessment for suitability for a Community Correction Order dated
16 August 2022, whilst to a degree you seemed to have minimised your involvement, you acknowledged that the victim would have been traumatised by the offending.
66Finally, in a support letter from your mother, Bronwyn, tendered at your hearing and marked Exhibit N5, your mother referred to your awareness that your offending had likely traumatised innocent people, and you had expressed genuine remorse to her on several occasions. Your remorse for your offending is an appropriate reaction to your criminality. It impacts upon the degree to which the community needs to be protected from you, and represents a positive factor with regards to your prospects for rehabilitation. In combination with your early plea of guilty, it also reduces the degree to which any sentence must reflect the sentencing purpose of specific deterrence, particularly given your absence of any criminal history as at the date of the armed robbery.
67As highlighted by your counsel in written submissions, your youth remains a primary sentencing consideration in the sentencing exercise, pursuant to well established authority. You had just turned 19 shortly before the armed robbery, and you are now still only 20 years of age. Notwithstanding your difficult personal history, you fall to be sentenced as a young offender with an absence of any prior criminal history.
68In your case, as indicated by Ms Lechner, you are emotionally and socially immature with a limited capacity to engage in reflective and consequential thinking. Whilst of course you have engaged in serious offending and the sentencing purposes of deterrence and just punishment remain important, there is a significant community interest in the rehabilitation of a young person in the interests of community protection. Your youth in my view remains a significant mitigatory factor in sentencing.
69I return now to your psychological fragility and its impact on sentencing. In my view there is cogent evidence before me, in the context of your difficult personal circumstances, with regards to your psychological vulnerability. You have been diagnosed with a major depressive disorder and alcohol use disorder. Your depression is severe. On a background of multiple suicide attempts, you have been assessed as being at risk of further suicide attempts. I am satisfied accordingly that any sentence of imprisonment would weigh more heavily upon you than a person in normal health, such that a mitigatory allowance is warranted pursuant to Verdins principle 5. Furthermore, I have concluded that there is a serious risk that imprisonment will have a significantly adverse effect upon your mental health, and accordingly a further mitigatory allowance is warranted pursuant to Verdins principle 6.
70As I have stated, the armed robbery committed by you is a category 2 offence given that it was committed in company, such that I must impose a custodial order, other than a term of imprisonment in combination with a Community Correction Order, unless one of the criteria contained in s5(2H)(a)-(e) of the Sentencing Act 1991 applies. Your counsel submitted that I should be satisfied on the balance of probabilities that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment, pursuant to s5(2H)(c)(ii) Sentencing Act 1991.
71I am satisfied that your major depressive disorder is a mental illness within the definition contained in the Mental Health Act 2014, and as it is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory. Accordingly, pursuant to s10A of the Sentencing Act 1991, I am satisfied that you suffer from impaired mental functioning given your particular psychological profile, and based upon the cogent evidence before me, in particular the opinions expressed by Psychologist Carla Lechner in her reports dated 21 March 2022, and 12 July 2022, and in her evidence before me on 1 June 2022.
72After giving this matter careful consideration, I am satisfied on the balance of probabilities that your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment. It is clear from the wording of s5(2H)(c)(ii) that the hurdle to be overcome with regards to this exception to the requirement of a custodial order is a high one indeed. The threshold is clearly higher than the underpinnings of Verdins principles 1-5. In my view, the psychological evidence on this issue could not be clearer.
73Ms Lechner referred to the burden of imprisonment being significantly greater on you than a person without the level of depression that you suffer from. Where I earlier referred to Verdins principles 1-5, withdraw that, Verdins principles in general. Ms Lechner referred to the realistic risk of a further suicide attempt should you be imprisoned. Such sentiments are entirely consistent with the views expressed by Youth Justice that custody would be to your detriment due to your young age, level of immaturity, 'but particularly longstanding mental health issues and identified suicide risk'.[11]
[11]Youth Justice Centre Order Suitability Report dated 12 July 2022 at page [2].
74Whist I am satisfied, particularly given the evidence of the Assistant Commissioner of Sentence Management at Corrections Victoria, Ms Jennifer Hosking, on
1 June 2022 with regards to the availability of mental health treatments and supports within the custodial setting, that there are services and supports available to you in the custodial setting, I am nevertheless satisfied to the requisite standard that your severe depression would result in you being subject to significant burdens or risks through imprisonment, at a level that is substantially and materially greater than the ordinary burden or risks of imprisonment. Accordingly, I am satisfied that your severe depressive disorder and significant risk of suicide satisfies the threshold test in s5(2H)(c)(ii) such that a custodial order is not mandatory.
75An assessment with regards to your prospects of rehabilitation is far from straightforward, particularly with regards to your recent progress. Clearly you remain resistant to specialist interventions in the absence of them being a mandatory requirement. Rapport building has been challenging, to say the least. You remain fairly entrenched, it seems to me, with regards to illicit substance use. There is an absence of any pro-social activities, and your motivation with regards to such activities is questionable. For whatever reason, you have simply been unable to grasp the rehabilitative opportunities that have been offered to you in recent months. Your compliance with bail conditions has been far from satisfactory.
76However, complicating the picture with regards to your prospects of rehabilitation is the fact that you remain a young person, at just 20 years of age. You fall to be sentenced as a young offender with an absence of prior criminal history. You have pleaded guilty early in the proceedings and you have demonstrated a degree of remorse. There is no evidence before me of any offending since the commission of the armed robbery in April 2021. Notwithstanding the difficulties to which I have referred, in the intervening period you have made some progress whilst on bail, for example through the completion of a fairly short-lived period of alcohol and drug rehabilitation, and through your progress with CISP.
77In the Youth Justice Centre Order suitability report, you were assessed as demonstrating 'reasonable prospects for rehabilitation'.[12] Clearly though, challenges remain. In my view, you will require extensive considered and tailored specialist interventions, noting the suggestions and recommendations with regards to future treatment and supports made by Carla Lechner and Dr Trisno from Forensicare.
[12]Ibid page 5.
78For these reasons, your prospects for rehabilitation must be viewed in my opinion, as somewhat speculative and guarded, though it is critical in my view that any sentence give appropriate prominence to the facilitation of your rehabilitation.
Pre-sentence reports
79At my request, you were assessed with regards to your suitability for a
Youth Justice Centre Order, pursuant to s32 of the Sentencing Act 1991. According to Youth Justice, you would be highly impressionable and vulnerable in an adult custodial environment for the reasons that I have previously outlined. You were found to have met both criteria stipulated in s32 of the Sentencing Act 1991, and you have been deemed suitable therefore for a Youth Justice Centre Order. However, according to that report,
'Whilst Christopher Nicholls has been found suitable for a
Youth Justice Centre Order, whether it is the most appropriate sentencing option is a matter for the court. An order involving rehabilitation and supervision in the community, if assessed suitable for a Community Correction Order, is less likely to have a detrimental effect on Christopher.'[13]
[13]Ibid page 6.
80As I previously indicated, at your further plea hearing on 7 September 2022, a representative from Youth Justice reiterated that the concerns with regards to your vulnerability in the custodial setting applied to the juvenile detention setting as well as the adult custodial setting.
81You were also assessed as to your suitability or otherwise for a
Community Correction Order by Corrections, with their findings set out in the outcome report dated 16 August 2022. Notwithstanding some concerns expressed within that report, you were ultimately found suitable for a
Community Correction Order with reservation, with various conditions recommended, noting that that suitability it seems was predicated upon your last circumstances which have fundamentally altered for the worse since the time of that assessment. By way of example, you no longer reside with your mother and cannot return pursuant to an intervention order taken out against you by her, or on her behalf.
Submissions
82Your counsel, Ms Smith, ultimately submitted that a custodial order, incorporating either adult imprisonment or youth detention, was not required given the evidence in support of s5(2H)(c)(ii) of the Sentencing Act 1991. Ms Smith submitted that in all the circumstances a combination sentence of imprisonment not exceeding the
pre-sentence detention, coupled with an appropriately tailored
Community Correction Order, would be an appropriate sentencing disposition. This submission was made and maintained, notwithstanding the downturn in your personal circumstances in recent times. In contrast, the prosecution submitted that whilst the evidence in support of s5(2H)(c)(ii) was cogent, you were not an appropriate candidate for a Community Correction Order, particularly as highlighted through your recent progress, and it was submitted that I should impose either a sentence of imprisonment with a non-parole period or a period of detention in a youth justice centre.
83Mr Nicholls, would you please stand?
Sentence
84The offending in which you engaged was serious and concerning. Like-minded offenders must know that engaging in such serious criminality will have significant punitive consequences. More often than not it will be appropriate to impose either a sentence of imprisonment or a period of detention with regards to such criminality. Having considered all of the relevant factors, whilst a sentence of imprisonment or a term of youth detention is not mandatory given my findings with regard to s5(2H)(c)(ii) of the Sentencing Act 1991, in my view, a sentence involving your confinement is required.
85Indeed, having regard to the parsimony principle, in my view, there is no reasonable alternative to a sentence involving your confinement. Given in particular your recent progress in the community, it is simply unrealistic to expect that you would comply with a Community Correction Order. For that reason, I have determined that it would be inappropriate to impose a combination sentence incorporating a sentence of imprisonment together with a Community Correction Order.
86In all the circumstances, given your youth, lack of criminal history, psychological fragility, and the opinions expressed in the Youth Justice Assessment Report, it is appropriate to impose a Youth Justice Centre Order in your case. Whilst I note the concerns expressed by Youth Justice with regards to your vulnerability even in a youth detention setting, I have concluded that there is no reasonable alternative in the circumstances of this complex case.
87On the charge of armed robbery, you are convicted and ordered to be detained in a Youth Justice Centre for a period of 15 months. Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of eight days' pre-sentence detention.
88Mr Connolly, I am required to provide a s6AAA declaration given the nature of the penalty imposed, correct. You're on mute, I think you said yes.
89MR CONNOLLY: I was just confirming that just before Your Honour said that.
90HIS HONOUR: Sorry, so, is that a yes or are you still confirming.
91MR CONNOLLY: I'm just loading the Act now, Your Honour. Yes, it's an order under provision 2 of Part 3.
92HIS HONOUR: Yes. Pursuant to s6AAA of the Sentencing Act 1991, had you pleaded not guilty, but been found guilty of the charge of armed robbery, I would have imposed a sentence of two years detention in a Youth Justice centre.
93With no other ancillary or other orders being sought that concludes my sentencing remarks.
94MR CONNOLLY: May it please the court.
95MS SMITH: As Your Honour pleases.
96HIS HONOUR: Thank you. I will, before Mr Nicholls is removed have noted on the relevant order the psychological fragility and the need for Mr Nicholls to be seen by a custody nurse as soon as possible, given the history.
97MS SMITH: Thank you, Your Honour.
98HIS HONOUR: Yes, thank you. Mr Nicholls can be removed thank you. Thank you Mr Sweeney I'll adjourn.
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