Director of Public Prosecutions v Nicolas
[2025] VCC 1366
•17 September 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted |
Case No. CR-24-01731
CR-25-01000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROGELIO NICOLAS |
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JUDGE: | HER HONOUR JUDGE BRECKWEG | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 February, 28 April, 15 August 2025 | |
DATE OF SENTENCE: | 17 September 2025 | |
CASE MAY BE CITED AS: | DPP v Nicolas | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 1366 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Arson – Attempted Armed Robbery – Schizophrenia – lengthy prior history – early plea – Verdins limbs 5 and 6 applicable – unsuitable for community correction order – high risk of reoffending
Legislation Cited: Crimes Act 1958, Sentencing Act 1991 (Vic)
Cases Cited:Umi v The Queen [2013] VSCA 211; R v Catts (1996) 85 A Crim R 171; Markarian v The Queen (2006) 228 CLR 257; DPP(Vic) v Candaza [2003] VSCA 91; Verdins (2007) 16 VR 269
Sentence: Convicted and sentenced to total effective sentence of 3 years 6 months imprisonment with a non-parole period of 18 months; 428 days of presentence detention to be declared
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Curtain | Office of Public Prosecutions |
| For the Accused | Ms E. Byrt | Victoria Legal Aid |
HER HONOUR:
Charges
1Rogelio Nicolas, you have pleaded guilty to one charge of arson on Indictment Q11227357. That offence carries a maximum penalty of 15 years' imprisonment.
2You have also pleaded guilty to three charges of attempted armed robbery on Indictment Q11486276. That offence carries a maximum penalty of 20 years' imprisonment.
Circumstances of the offending
3The facts of your offending in relation to - I will call it Indictment 1 - are set out in the summary of prosecution opening dated 17 July 2025 (Exhibit A on the plea). Briefly, on 17 January 2024, you were alone at your home in Preston, a unit owned by the Department of Family, Fairness and Housing. A few days earlier you had told your neighbour that you were going to move out of the unit, or if you could not move out, you were going to set fire to the unit.
4At approximately 9.00 am on 17 January 2024, you ignited combustible material at the foot of the bed in the unit, causing the bedding, mattress and bedframe to be engulfed in flames. There was minor fire damage to the carpet under the bed, moderate to heavy sooting, a heat broken bedroom window and heat damage to the walls and ceiling and sooting partially through the unit. The estimated cost to repair the damage is $62,000.
5The facts of your offending in relation to Indictment 2 are set out in the summary of prosecution opening dated 6 February 2025 (Exhibit B on the plea). In summary, on 15 July 2024 you were at the Croxton Park Hotel playing pokies. At around 1:07 pm, CCTV footage shows you approaching the gaming cashier counter carrying a knife. You approached the cashier, Mr Smith, and said, 'I’ve lost a lot of money here, give me back the fucking money'. Mr Smith said, 'It’s not happening, put the knife away and get out, I’m calling the police'. You responded, 'Call the police then'. As the police were called, you shouted 'Run you fucking dog' before walking out of the venue. (Charge 1 – attempted armed robbery).
6At approximately 1:37 pm, on the same afternoon, you went to the Rose Shamrock Hotel in Reservoir. CCTV footage captured you approaching a gaming cashier, Mr Dhakal, producing a knife. While you held the knife you said, 'Give me my fucking money back'. The cashier retreated through a glass door to the bistro area in the venue. You then exited the venue (Charge 2 – attempted armed robbery).
7On the same day, at approximately 2:29 pm, you were at Cramer’s Hotel, Preston. CCTV footage shows you approaching the cashier counter and producing a knife towards the attendant. You told her you wanted the return of the money you had just lost on the pokies. Ms Kharoud, the attendant, took a step back and closed the door to stop you coming behind the bar. You were aggressive and began swearing at her before you left the venue. (Charge 3 – attempted armed robbery).
Personal circumstances
8You are 44 years old and were 43 at the time of the offending. You are single. You were born in the Philippines and moved to Australia with your mother and stepfather when you were 10 years old. Your father passed away when you were six. Your mother moved you and your three siblings to Australia seeking a better life. When you arrived in Australia, you and your family resided in government funded housing in Bundoora. You finished your primary schooling at Grimshaw Primary School and then completed Grades 7 to 11 at Bundoora Secondary College.
9You then left school and worked in cabinet making for three years before working as a kitchen hand. You told Ms Fakhri, psychologist, that it was after this that you suffered a back injury and were diagnosed with schizophrenia. You have been unable to work since that time and have received the disability support pension for the last 10 years.
10Your childhood was overall positive and free of violence or substance abuse. However, your youngest brother, who had cerebral palsy, died after falling down the stairs. There are conflicting reports as to when this occurred. You described this period as a very difficult time for your family and particularly your mother.
11You left the family home at 29 and details of your living arrangements since then have been unclear. You have experienced periods of homelessness and have been unable to return to your family home due to a family violence intervention order which was ordered against you several years ago following verbal arguments between you and your mother and brother. You commenced gambling in your 30s and usually attend the pokies weekly spending $10 to $20 per visit.
12You commenced consuming cannabis and alcohol at the age of 16 but deny a history of alcohol misuse. You said you ceased using cannabis about five years ago. You started using heroin at the age of 28. You have used methamphetamine intermittently since you were 20 and last used this drug about a week before your first instance of the present offending.
13I have had regard to the reports on your mental health prepared by Ms Fakhri dated 21 November 2024 and Dr Deacon dated 4 April 2025. I have also considered the contents of MHARS reports dated 17 March, 16 July 2024 and 21 August 2025, an inpatient treatment order (involuntary) made on 17 March 2024 and a mental health transition discharge summary confirming your stay as an inpatient at Broadmeadows Health between 18 and 25 March 2024. You have had 10 periods of involuntary treatment under the Mental Health Act and seven acute inpatient ward admissions between 2007 and March 2024. Most recently you were subject to involuntary treatment between 16 April and 1 May 2024.
14Ms Fakhri confirmed that you have had several diagnoses including schizophrenia, substance induced psychosis, schizoaffective disorder and substance use disorder, marked by experiences of auditory and visual hallucinations. She opined that at the time of the offending you would have met the criteria for stimulant and opiate use disorders, and your diagnosis of schizophrenia meant that when you offended your capacity to engage in rational decision-making and understand the illegality and consequences of your conduct were severely impaired.
15Ms Fakhri noted that you acknowledged in a CISP report that non-compliance with your medication caused you to engage in 'risky behaviours' and breaches of various court orders. She also noted that a MHARS report referred to you having a long-standing substance use disorder and despite your attempts to minimise your usage you do appear to have a significant problem in this regard. Ms Fakhri opined that you do not display much insight into your mental health deterioration and your substance use.
16Dr Deacon confirmed a diagnosis of schizophrenia about 10 years ago made by your GP. He noted that you have limited insight into your mental illness and were vague about your mental health history and treatment.
16You told Dr Deacon that you were not under the influence of drugs or alcohol at the time of your offending, however, he opined that you appear to have a long history of substance abuse and alcohol misuse, and whilst you minimised your use collateral reports point to persistent and substantive use.
19Dr Deacon considered that it was difficult to assess retrospectively your reasoning capacity at the time of the offending due to your lack of insight and poor memory, although you are now able to appreciate on a superficial level that your actions were unlawful and wrong and it seems likely that you had some appreciation of this at the time of the offending. But whether your '…thinking was similarly organised is unclear', that is, your recall of your state of mind at the time of the attempted armed robbery offending was so vague that it was difficult to assess how much consideration you did have of what you were doing.
17Noting your involuntary admission for psychiatric care in March, Dr Deacon indicated that it was not clear whether your mental health had stabilised between then and July 2024 when you offended. To this I would include a query about your mental health at the time of the arson offence in January 2024 and I note you were subject to involuntary treatment between 16 April and 1 May 2024. Further, Dr Deacon noted the opinion of Ms Fakhri that in October 2024 your illness was active and unstable.
18Since being incarcerated you have been compliant with your medication, and your presentation at interview suggested to Dr Deacon that you have benefitted from a long period of continuous treatment in the absence of drug use. Your psychotic symptoms have declined, and you told Dr Deacon that you are coping. This contrasts with the view of Ms Fakhri who said that you still experience psychotic symptoms in custody even though you were abstaining from illicit substances and on anti-psychotic medication.
20The prosecution accepted that Limbs 1, 3 and 4 of Verdins[1] are enlivened in your case given your inability to make rational decisions and appreciate the wrongfulness and consequences of your actions at the time of your offending appears to have been severely impaired. In my view, there is little doubt your mental health was disordered at the time of your offending based on the opinions of the experts and because you were involuntarily detained, at times fairly contemporaneous to your offending, and you have a lengthy history of compromised mental health. Accordingly, I find that your moral culpability for the offending, which I would otherwise assess as being high, is reduced by virtue of your mental health problems being extant at the time of your offending as is the weight to be given to general and specific deterrence.
[1] (2007) 16 VR 269 (Verdins)
19The prosecution submitted, however, that in terms of the mitigating effect of your mental illness, regard must also be had to the contribution played by your use of illicit substances during the offending. In this regard you told Dr Deacon that you were aware that you had to avoid using illicit substances like cannabis and methamphetamine given your diagnosis of schizophrenia, but you believed they calmed you down. You also told the author of the August 2025 MHARS report that illicit substances negatively impact your judgment and your mental health. Importantly, Dr Deacon opined that: '…it is reasonable to opine that his substance use has contributed to destabilisation of his schizophrenia'.
20In my opinion, the weight of the evidence suggests that drug and/or alcohol use did very likely play some role in destabilising your schizophrenia albeit it is difficult to delineate precisely the role played by schizophrenia and that played by drugs or alcohol use in your offending. For this reason, I temper the Verdins reductions to a degree to factor in the effect your voluntary substance abuse likely had on exacerbating or destabilising your mental health conditions – this is in circumstances where you knew you should not use drugs given your precarious mental health and you continue to minimise such illicit substance use.
21I accept based on the opinion of Ms Fakhri that Limbs 5 and 6 of Verdins are applicable in your case and at the time of sentencing imprisonment will be more onerous on you than another prisoner without your mental health diagnoses and the effects of your mental health condition are likely to deteriorate due to your incarceration. Dr Deacon similarly considered that you may be at risk of your mental health declining '…depending on the inevitable stressors of prison environments'.
22 You have quite a lengthy prior criminal history commencing from October 2009 with convictions for drug, assault (including assault with a weapon), criminal damage, theft and multiple family violence intervention order and bail breaches. Most relevantly, you were placed on a community-based order without conviction for the offence of armed robbery in September 2010 and in June 2012 you were dealt with for breaching that order. It is clear from your criminal history that many of your prior offences were committed in the context of mental illness and drug addiction. You have no prior convictions for arson.
23I accept you indicated a preparedness to plead guilty to the charges on both indictments at an early opportunity. Your pleas warrant a clear reduction in the sentences to be imposed to reflect its utilitarian value in saving the community the time and expense of any trials and witnesses, especially the victims, from having to give evidence, and to reflect its demonstration of acceptance of responsibility, willingness to facilitate the course of justice and a degree of remorse. There is little evidence before me of any expression of remorse over and above the fact of your plea. You told Ms Fakhri when asked about your attempted armed robbery offending, 'If you are allowed to punish animals, why can’t I do that? I don’t regret doing it', but you told Dr Deacon that you were embarrassed by your offending and would not do it now.
Sentencing considerations and principles
24 In sentencing you I have had regard to the purposes for which a court may impose sentence set out in s5 of the Sentencing Act, and to the matters outlined in s5(2), which include the maximum penalty for the offence, the nature and gravity of the offence, the offender's culpability and degree of responsibility for the offence, the impact of the offending on any victim, an offender's prior character and the presence of any aggravating or mitigating factors or other relevant circumstances.
10In sentencing for the offence of armed robbery, the principles of general deterrence, denunciation and protection of the community are of particular importance. Your victims were employees of gaming venues, and they have the right to undertake their employment without fear of being the target of predatory actions from people like yourself whose actions shatter their sense of security.[2]
[2] Umi v The Queen [2013] VSCA 211, [42].
36In terms of the criminal damage by arson offending, in assessing the objective seriousness of the offending, the court is required to consider the extent of the damage caused, the nature and severity of risks posed by the damage, how the damage was caused, the type of property damaged, the degree of planning, the timing of the offence, the drain on public resources, whether any individuals were present and the effect on any victim. Deterrence is also a key sentencing objective because arson is simple and easy to commit, is not easy to detect and usually has destructive consequences.[3] Protection of the community is a similarly important sentencing consideration.
[3] R v Catts (1996) 85 A Crim R 171, 176; Quarrell v The Queen [2011] VSCA 125, [31].
Nature and gravity of the offending
28Clearly your offences are serious. The maximum penalties reflect Parliament's view of the seriousness of the offences and the maximum penalty, taken with other relevant factors, provides a yardstick against which a sentence is to be considered.[4] It is also the case that ordinarily a custodial sentence will be imposed on those convicted of armed robbery.[5]
[4] Markarian v The Queen (2006) 228 CLR 357 at [30]-31].
[5] DPP (Vic) v Candaza [2003] VSCA 91, [17].
34Your counsel submitted, and the prosecution conceded, that yours were unsophisticated and unplanned or opportunistic attempted armed robberies. It was also agreed that your offences occurred on a single date with no attempt made by you to conceal your identity and each offence was of limited duration. Your counsel noted your motivation was to recover the money you had lost whilst playing the pokies at the hotels. Whilst I accept those submissions, your offending occurred at three different places and involved three separate victims. On each occasion you demanded money whilst threatening each victim with a flick knife.
35Further, whilst no victim impact statements were provided, Ms Kharoud said in her police statement that she became 'very scared' when she saw the knife you were holding and Ms Dhakal said she was 'shocked and scared' and concerned that you were going to follow her when she moved from the counter. In my view there cannot be any doubt that all three victims would have been frightened and disarmed by your actions.
36Turning to the arson charge. Thankfully there were no occupants in your unit and the fire did not spread beyond it. The fire began in daylight hours, and it was not sophisticated offending in terms of its execution. However, your offending was 'purposive' and you clearly intended to set fire to the material at the foot of your bed, and it was clearly dangerous for you to do so as your unit was in a residential area where there was a risk of the fire spreading to neighbours. The damage to the unit was in the vicinity of $62,000 and your actions meant that the accommodation was no longer available for another member of the community who may have needed public housing accommodation. Your offending also required the attendance of the fire brigade to extinguish the blaze.
34Ms Fakhri opined that you are a moderate to high risk of reoffending if you relapse into drug use and fail to take your medication. In terms of your prospects of rehabilitation, I do not consider these to be good in view of your prior criminal history including multiple breaches of court orders and sentences aimed to rehabilitate you, your risk of reoffending, your denial of having a substance abuse problem, lack of insight into your offending and your history of non-compliance with your anti-psychotic medication regime. In my view, until you comply with your medication regime and cease your use of illicit substances, your prospects of rehabilitation are not favourable.
Totality and cumulation
39I consider there should be a degree of cumulation between the arson and attempted armed robbery charges to reflect the two separate types of offending each carrying different elements and warranting separate punishment. Further, there should be a degree of cumulation between the attempted armed robbery charges to reflect the three different occasions of offending and the existence of three separate victims. In assessing the degree of cumulation, I am of course mindful of the need to reflect the principle of totality and ensure that the sentence I impose is commensurate with your overall criminality and is not a crushing sentence.
Current Sentencing Practices
45I was provided with some arson sentences by the defence said to represent comparable sentences that may be of assistance in sentencing. I have had regard to these cases, most notably for the sentencing principles they set out, but each case must be determined on its own facts and the cases presented, as is often the case, have relevant differences to your offending.
Sentencing submissions
42The prosecution submitted initially that the attempted armed robbery charges would normally attract a term of imprisonment with a non-parole period. Following your plea of guilty to the further indictment containing the arson charge, the prosecution pointed to s 44(1) of the Sentencing Act 1991 which provides that the rule relating to the length of community correction order ('CCO') combinations does not apply to arson offences and the court may order a combination sentence regardless of the length of the term of imprisonment which would be open in your case.
43Your counsel submitted that you should be sentenced to a term of imprisonment in combination with a CCO as the best method of furthering your rehabilitation and the ensuing protection of the community.
44I ordered an assessment of your suitability to be placed on a CCO and in a report dated 20 August 2025 you were found to be unsuitable. Mr Meyer, who conducted the assessment, noted that you had previously been placed on CCOs on four occasions. Of these you breached three orders, the first order by conditions and further offending, the third order by conditions and the fourth order (which was a combination) by conditions and further offending. You were assessed as unsuitable when assessed for CCOs in 2019 and 2022.
45Mr Meyer assessed you to be a high risk of re-offending and noted that you have no accommodation so would seek assistance via The Bridge program. You have contact with your mother who visits you in prison but no social friendships. There are current intervention orders in place against you, although you told Mr Meyer there were not. You told Mr Meyer that when you offended you were using drugs and alcohol and you felt paranoid and vulnerable as you thought people were chasing you, but you cannot remember some of the offending. Mr Meyer stated that you present with significant mental health problems, and you have treatment requirements that may not be met through the imposition of a CCO. Mr Meyer concluded that in view of your prior criminal history, most notably your failure to comply with court orders, your previous failed attempts at completing a CCO, your homelessness and lack of social and family supports and the level of mental health intervention and treatment you would require, you are not suitable to be placed on a CCO.
46Whilst I am not bound by the assessment by Corrections of your unsuitability for a CCO, I am guided by their concerns. Most importantly, I do not consider a CCO to be appropriate for you at this juncture because you will not be afforded the level of mental health treatment you require. The significant mental health problems causative of your offending will not be addressed. It is not the case, therefore, that you would not comply with treatment conditions, although there is clearly a risk you may not, but whether these would assist you in any event. I am mindful of the availability of The Bridge program to assist you upon your release from custody with referrals available to drug and alcohol support and area mental health and services providing housing.
Sentence
44On Charge 1, on Indictment 2 ending 276, armed robbery indictment, you are convicted and sentenced to 18 months' imprisonment. This is the base sentence on this indictment.
45On Charge 2 on Indictment 2, you are convicted and sentenced to 18 months' imprisonment. I direct that six months of the sentence on this charge be served cumulatively on the sentence imposed on Charge 1 and on all other sentences.
46On Charge 3 on Indictment 2, you are convicted and sentenced to 18 months' imprisonment. I direct that six months of the sentence on this charge be served cumulatively on the sentence imposed on Charge 2 and on all other sentences.
By my calculations the total effective sentence on Indictment 2 is 30 months' imprisonment.
47On Charge 1, on Indictment 1, you are convicted and sentenced to 12 months' imprisonment. I direct that eight months of the sentence on this charge be served cumulatively on the sentence imposed on Indictment 2.
47This results in a total effective sentence of three years and two months' imprisonment. I direct that you serve a period of 16 months' imprisonment before becoming eligible for parole.
48I direct pursuant to s18E of the Sentencing Act that 428 days' imprisonment, excluding today, be declared as having been served by way of pre-sentence detention.
51 Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty I would have imposed a sentence of four years’ imprisonment with a non-parole period of two and a half years.
52I make the order for forfeiture in relation to the knife.
54MS BYRT: Thank you, Your Honour.
55MS CURTAIN: And just to confirm, on my calculations I have also got two months as well.
56HER HONOUR: Yes, three years two months with 16 to serve. All right, well I don't think there was anything else I needed to do so I will stand down. Thank you again both of you for all of your assistance. And Mr Nicolas, you will be released in a couple of months and I hope that you can get the assistance that you need from The Bridge program so that I don't have to see you back here again.
57ACCUSED: Yes, Your Honour.
61MS BYRT: Thank you, Your Honour.
62HER HONOUR: Thank you very much.
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