Director of Public Prosecutions v Nightingale

[2018] VCC 363

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02189

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANNON NIGHTINGALE

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JUDGE:	HER HONOUR JUDGE CONDON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 March 2018
CASE MAY BE CITED AS:	DPP v Nightingale
MEDIUM NEUTRAL CITATION:	[2018] VCC 363

REASONS FOR SENTENCE
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Subject:
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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K Role
For the Accused	Ms S. Gall

HER HONOUR: 

1Shannon Nightingale, you have pleaded guilty before me to one count of armed robbery; one count of drug of dependence; one count of criminal damage; and by your counsel, agreed to have two summary charges dealt with by me, being assault with a weapon and trespass. 

2The facts in relation to your offending are contained in the summary of prosecution opening, which was tendered on the plea as Exhibit A.  However,
I will briefly summarise the offending in relation to this matter. 

3On 28 July 2017, at approximately 2 pm, you drove your car to a car yard in Campbellfield.  There you approached the victim, Sudhir Kumar, who was an employee at a used car yard and asked about trading in your car.  The victim said that your car was too dirty and that he was not prepared to make you an offer.  You then produced a knife, holding it to his neck and demanded the keys to a car in the car yard stating, "Give me the keys.  My life is dangerous." 

4The victim was scared for his life and gave you the keys to a 2011 Toyota Camry sedan.  You then got in the car and drove along the Hume Highway.  This activity constitutes Charge 1, being the count of armed robbery.

5The victim then got into his car and followed you, however lost sight of you. 

6When your car was searched, the police located a white powder, believed to be cocaine, located in the compartment underneath the driver's seat.  This drug was later tested and established to be heroin.  This constitutes Charge 2 on the indictment, possession of a drug of dependence.

7You drove the car to Broadmeadows, left the car and then walked to a house at Cornell Close, Broadmeadows.  You knocked on the door and when the victim, Mustafa Wardak opened the front door, he saw you holding that same knife.  You stated, "I need a wine or I'm gonna die."  As Mr Wardak tried to close the door, you moved quickly towards the door.  He managed to lock the door, but you smashed the window in the front door, reached inside, unlocked the door and entered the house and followed the victim into the kitchen.  You were still holding the knife and again asked for a wine glass.  This activity constitutes Charge 3, criminal damage on the indictment, but also encompasses the related summary offending, assault with a weapon and trespass.

8You then placed a white powder into a glass and began to cook the white powder by burning the glass with a cigarette lighter.  The victim's father, who had been in another part of the house, came into the kitchen.  Both the son,
Mr Wardak, and his father then ran out of the house to a neighbour's property and called the police.  The police attended to arrest you and you stopped your activity immediately, held up your hands and said you were happy to talk to police. 

9An ambulance was called as police had real concerns regarding your mental health.  When you were being assessed by paramedics, you had an irregular heartbeat and you told the paramedics that you had taken a lot of cocaine.

10During the arrest, police observed that you were very apologetic and genuine and you made the following comments:  That you had been receiving visions, compelling you to kill a demon, which would otherwise take over your body; that you had always experienced visions which told you that you had to either save or take over the world; that you had travelled to Melbourne to buy a Samurai sword, which you needed because of the upcoming zombie apocalypse; and that you had just stolen a car and that you were worried that you had scared the person.

11You were then transported by ambulance to the Northern Hospital and deemed unfit to be interviewed. 

12You were remanded into custody on 28 July 2017 and released on bail on
22 August 2017. 

13The maximum penalty for armed robbery is 25 years' imprisonment.  The maximum penalty for possession of a drug of dependence is one year imprisonment.  The maximum penalty for criminal damage is ten years' imprisonment.  The maximum penalty for assault with a weapon is six months' imprisonment.  And the maximum penalty for trespass is six months' imprisonment. 

14Mr Nightingale, you entered a plea of guilty to these matters on 26 October 2017.  In the circumstances, I find that your plea of guilty here is both consistent with an expression of remorse and also the facilitation of the administration of the criminal justice system.

15Written submissions were made on your behalf by Ms Rolfe of counsel.  She made the clear and concise submission on your behalf that each of the limbs of the decision of the Court of Appeal in R v Verdins were activated in your case.

16In reliance upon this submission, a report of Dr Nina Zimmerman was tendered in evidence upon the plea.  That was Exhibit 1. 

17In the course of Dr Zimmerman's report, she made the observation that during the offending, you were in a floridly psychotic state.  Ms Zimmerman was also of the opinion that there was indeed a real connection between your mental health and the offending at the relevant time. 

18The defence submission conceded the seriousness of the offence of armed robbery and the fact that the usual sentencing considerations of general deterrence, denunciation and punishment, represent important considerations in your case, as they do in relation to most offences of armed robbery.  However, your case is clearly an unusual one.  The prosecution, before me, indicated that they agreed with the defence submission that each and every limb of the decision of R v Verdins was triggered in your case. 

19In the circumstances, in my view, that does make your case an unusual one and it means that considerations of general deterrence and specific deterrence have less weight in your case. Your moral culpability is clearly reduced by dint of the fact that there is a clear link between your delusional state and your offending on 28 July of last year.

20Furthermore, it is clear that since being released on bail in August, that you have engaged in mental health therapeutic services and the submission was made to me that the interests of the community are best addressed here by imposing a sentence that provides for supervision and treatment of you within the community. 

21It was put to me that you had demonstrated, on bail, your ability to comply with directions of the court and respond to treatment.  Indeed, at paragraph 6 of her submissions, Ms Rolfe quoted the DPP v Borg, citing a key passage in Boulton, where the Court of Appeal said this:

"A CCO may be suitable, even in cases of relatively serious offences,           which might previously have attracted a medium term of   imprisonment, such as, for example, aggravated burglary,   intentionally causing serious injury, some forms of sexual offences                    involving minors, some kinds of rape and some categories of   homicide.  The sentencing judge may find that, in view of the                         objective gravity of the conduct and the personal circumstances of                 the offender, a properly conditioned CCO of lengthy duration, is   capable of satisfying the requirements of proportionality, parsimony                 and just punishment, while affording the best prospects of   rehabilitation." 

22In my view, the circumstances of your case provides an appropriate illustration of the principle as expounded in Boulton.

23Please stand up, Mr Nightingale.

24In relation to each of the charges on the indictment, Charge 1, 2 and 3 and the two summary matters, I propose to impose upon you a community corrections order. 

25I propose to make that order for a period of 18 months, with the following conditions:

·That you perform 200 hours of community work and I make the order that you receive credit in relation to the therapeutic aspects of 100 hours of that 200 hours;

·That you receive treatment and rehabilitation for drugs;

·That you receive treatment and rehabilitation for mental health; and

·That you receive treatment and rehabilitation in relation to any other programs to reduce your offending.

26Now, in this case, given your plea of guilty, s.6AAA of the Sentencing Act applies.  If it were not for your plea of guilty, I would have imposed a sentence of imprisonment of four years, with a non-parole period of two years.

27Pursuant to s.18(4) of the Sentencing Act, I declare that you have served
25 days pre-sentence detention.

28Now, there is also some disposal orders, counsel, and a compensation order, that I understand was not opposed, is that right?

29MS GALL:  Not opposed, Your Honour, that's correct.

30HER HONOUR:  So in the circumstances, those two orders have been signed.  My associate has those orders.

31Now, Mr Nightingale, you can be seated now.

32Just before it comes to the point where you sign the order, I am obliged to explain to you the consequences of a breach of that order and no doubt,
Ms Rolfe and Ms Gall will engage in the same process, but I am obliged to tell you this.  If you were to breach the order, for the duration of the time that I have imposed it, you are brought back before me and you are liable to be
re-sentenced for the offences that I have - that you have pleaded guilty to.  Do you understand that?

33OFFENDER:  Yes, Your Honour.

34HER HONOUR:  All right.  So, in those circumstances then, we will get you to sign a copy of the order.  We are just printing out the order. 

35MS GALL:  Thank you, Your Honour.

36HER HONOUR:  Thank you, Ms Gall.  Is there anything else, counsel?

37MS ROLFE:  No, Your Honour. 

38MS GALL:  No, Your Honour.  If it pleases the court.

39HER HONOUR:  All right, thank you.  We will adjourn until 9.30 tomorrow.  Thank you.

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