Director of Public Prosecutions v Njoroge

[2020] VCC 742

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01766

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN NJOROGE

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	19 May 2020
DATE OF SENTENCE:	28 May 2020
CASE MAY BE CITED AS:	DPP v Njoroge
MEDIUM NEUTRAL CITATION:	[2020] VCC 742

REASONS FOR SENTENCE
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Subject: Armed Robbery, Recklessly cause injury
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	OPP
For the Accused	Mr J. Miller	James Dowsley & Associates

HER HONOUR: 

1John Njoroge, you have pleaded guilty to one charge of armed robbery and one charge of recklessly cause injury.  The maximum penalty for those offences is 25 years and five years respectively.  Additionally, the offence of armed robbery, when committed as it was in these circumstances when the victim suffered an injury as a direct result of the events, is a Category 2 offence under the Sentencing Act 1991 (the Act). I will address the consequences of that under the Act later in these reasons.

2The full details of your offending are set out in the amended summary of prosecution opening dated 19 May 2020, Exhibit A, and can be summarised as follows. 

3On Thursday 24 March 2019 at approximately 9.10 pm, Jasmine Shell was walking home.  You knew her as she had been a friend of your ex-girlfriend.  You screamed at her, accusing her of stealing drugs from you.  Although she tried to walk away, you approached her, taking out two thin metal poles from under your sleeves of your jumper.  You grabbed her and swung one of the poles towards her, causing her to fall to the ground.  As she put up her hand to protect herself, the pole cut her smallest finger on her right hand.  You tried to take her backpack and continued to hit her with the pole.  You ultimately pulled the bag with enough force to break one of the straps and took it.  The bag contained her wallet, other personal documents, cards and a phone charger.

4Ms Shell and another witness spoke with police.  Police also obtained CCTV footage from a nearby service station that identified you.  You attended Flemington police station later that night and again three days later for an unrelated matter, and you had the bag in your possession.  When you were arrested on 17 March 2019, the bag was seized and contained Ms Shell's possessions.

5You participated in a record of interview and maintained that the incident related to a dispute regarding a mobile phone.  You explained that you carried the metal rods for your own protection after suffering an assault with a baseball bat in Ascot Vale.  You maintained that you snapped after Ms Shell said something and did not give back the phone.

6No victim impact statement was provided.  It is clear, however, from the summary your actions this night would have scared or frightened Ms Shell who was walking in the near vicinity of her home that evening.

7I was provided with two reports from Dr Prashant Pandurangi, psychiatrist, dated 19 October 2019 and 2 May 2020.  I take that material into account. 

8You were born in Kenya and are the youngest of eight siblings.  You grew up in that country, living with your family in poverty or in happy but poor circumstances.  You were able to complete school and were part of a local soccer team.  You came to Australia in November 2008 as part of the Kenyan homeless street soccer team for the Homeless Soccer World Cup in Melbourne.  You sought asylum in Australia and ultimately were granted citizenship in May 2018.  You have had no recent contact with your parents.

9Since being in Australia, you have enrolled in a number of courses and been employed in different industries, most recently as a storeman at a hydraulics business in Footscray.

10You were involved in a long term relationship over a period of about eight years and have two children, aged five and two.  That relationship broke down in 2019 and you are now subject to a related intervention order.

11You first experienced mental health issues in 2011 after a psychotic episode in the context of your cannabis use.  You were at that time hospitalised for a period of three months with Origin Youth Health and were prescribed mood stabilising medication.  You then have resided in various community houses and had other periods of hospitalisation, becoming mentally unwell over periods when you caused medication and increased your illicit substance use.  Your treatment has included ECT, clozapine, then depot injections.  You have a confirmed diagnosis of schizophrenia. 

12Unfortunately, you disengaged from mental health service towards the end of 2018 and increased your use of cannabis.  You commenced using cannabis in about 2013.  You have used this intermittently though your use increased in late 2018 as a consequence of your relationship breakdown and loss of employment.  At the time of this offending, you were using cannabis on a daily basis and your alcohol consumption had significantly increased. 

13Dr Pandurangi had available your Justice Health medical records relating to your mental state at the time of the offending.  It is clear from that material that you have required regular psychiatric assessment and treatment during your incarceration, particularly during the early stages.  I note that on 6 March 2019, your ex‑partner had contacted Inner West Area Mental Health Service concerned about your deteriorating mental health. 

14When remanded on 19 March, the psychiatric reception notes described your presentation as psychotic.  On 3 April, you were certified under the Mental Health Act to transfer to Thomas Embling though ultimately you were managed under lockdown conditions and that you have had slow or gradual improvement with different anti‑psychotic medications and your situation improved in June 2019 with resumption of depot injections.

15As noted by Dr Pandurangi, you developed mental illness following immigration to Australia probably in the context of stress, poor social support and illicit drugs.  You suffer from enduring mental illness, schizophrenia.  Although you were not floridly psychotic on remand to prison, your mental health unravelled into a state of florid psychosis within days for which you were certified under the Mental Health Act and managed on restrictive regimes.  Your mental state gradually improved over months after you agreed to accept anti‑psychotic medications and you have remained stable for a number of months.  This was as at 2 May 2020.

16The prosecution did not dispute you suffered from a mental illness and that such was a matter I could take into account in consideration of your personal circumstances and also the appropriateness of you as a vehicle for general deterrence.  However, it was submitted there was no real causal link between this offending and your mental illness.  Written submissions provided by the prosecutor outlined the relevant law in respect of the application of Verdins.  See paragraph 13.

17Emphasis was placed on the limited connection, as opined by Dr Pandurangi in his second report, between your mental illness and the offending.  See paragraph 35.  Further, it was submitted that there were other logical explanations for your offending, such as your alcohol and drug use at the time and there was no material to suggest one explanation was more likely than the other. 

18Your counsel though conceding that Dr Pandurangi indicated only limited evidence to suggest a direct causal relationship between your mental illness and offending, relied on the doctor's opinion that your unwell mental state would have contributed to your offending by affecting your ability to exercise appropriate judgment or make reasoned decisions.  See paragraph 34.

19I note that paragraph concludes the use of cannabis and alcohol around the time of the offending would have made you disinhibited and also affected your decisions which eventually led to the offending.

20In the course of argument on the plea, your counsel conceded that the evidence regarding the causal link between your mental illness and the offending was not strong.  Further, it was not suggested that the existence of your condition made custody more burdensome for you.  This was particularly given your condition had stabilised whilst you had been in custody.

21I am not satisfied that Verdins principles have been enlivened though I accept your mental illness is relevant in the way the prosecution conceded to this sentencing exercise.

22Your conditions in custody are more onerous than those that existed before the restrictions relating to the COVID-19 virus.  With that has become increased anxiety and uncertainty particularly given that you have no control over your environment or exposure coupled with your medical history.

23Additionally, the cancellation of personal visits for prisoners has meant that you have not been able to see anyone from outside the prison since March 2020.  Prior to this, you had been visited and supported by Ms Carmel Cavanagh from House of Welcome, an organisation designed to assist vulnerable members of the community.

24You have engaged in and completed educational and other programs whilst in custody though these have now ceased.  Each of these matters has made your time in custody more burdensome. 

25You have no prior convictions though there is one court appearance for theft in 2012 where you received a non-conviction fine. 

26The prosecution accepted you pleaded to these matters at the earlier opportunity and any delay was necessary given your mental health.  I accept that there is a high utilitarian value of your plea.  Further, it is submitted by your counsel, your acceptance of responsibility, willingness to facilitate the course of justice and remorse can be inferred from your plea.  Your actions in returning the bag and goods back to the police is also indicative of your remorse. 

27Armed robbery is a serious offence as reflected in the maximum penalty of 25 years and its classification as a Category 2 offence.  Ms Shell was alone walking near her home at night and entitled to feel safe.  It was submitted, however, on your behalf that this instance was at the lower end given a number of factors including its short duration, no evidence of planning or attempt to disguise yourself, no suggestion the poles were in your possession for the purpose of this offending, your motivation for offending even though that was misplaced and recovery and return of the property.

28These features were not disputed by the prosecution, however, the prosecution emphasised the general deterrence, denunciation and protection of the community remained important sentencing considerations in offending of this type.

29Your counsel submitted you had excellent rehabilitation prospects given the following:  your lack of prior convictions; your support in the community on release; the letter from Ms Cavanagh, Exhibit 2, indicated that she was prepared to support you with accommodation, travel to any appointments and provide you with employment on her property; your plea of guilty; remorse; stabilisation of your mental health issues; and compliance with treatment and insight into your condition; engagement in programs whilst you have been in custody; and your personal history including that you were granted asylum in this country.

30The prosecution conceded that you had reasonable prospects for rehabilitation, particularly if you desisted from drug use and continued with your mental health treatment.  That assessment was made with the level of cautiousness given your history of non-compliance with your medication, the requirement or recommendation that you need to be followed up assertively and that you are not currently undergoing any drug dependency treatment whilst you are in custody.

31I accept that you have very good prospects for rehabilitation.  This is so given the matters outlined above particularly with the stabilisation of your mental health, the insight that you have developed into your mental illness, your willingness to engage in programs and level of support that has been offered to you with a new start in a rural geographical area.  I am mindful however that it would be necessary to monitor your compliance with medication in the community.  I also note that this has been your first experience in custody and the conditions since March this year have been more difficult.

32Your counsel submitted you should not be required to serve any more time in custody.  Further, it was submitted that you should be assessed for a community corrections order whether that be as part of a combination sentence for the armed robbery offence or as the sentence to be imposed in respect of the injury charge.

33Both counsel agreed that if I was minded to impose a combined sentence of a term of imprisonment and CCO for the armed robbery that I would have to be satisfied of one of the exceptions or that you could discharge the test in s.5(2H) of the Act.

34I had you assessed as to your suitability for a community corrections order and gave counsel to further address me on any matters arising from that assessment prior to imposing sentence. 

35Section 5(2H) of the Act provides in sentencing for a Category 2 offence the court must impose a term of imprisonment not including a combination sentence unless one or more of a number of things can be proved.  Relevantly, in this case, reference was made to sub-s.C and E. 

36As to sub-s.C and impaired mental functioning, the arguments regarding impaired mental functioning have been addressed earlier in consideration of the application of Verdins.  Your counsel conceded this was not its strongest argument.  On material available to me, I do not accept you have discharged the onus as required.

37Substantial and compelling circumstances - sub-s.E.  Your counsel relied on accumulation of factors in support of this submission that substantial and compelling circumstances existed.  In summary, it was submitted that even disregarding the matters listed as required by this section, the nature and gravity of this example of this offence, your history in coming to and successfully seeking asylum in Australia, the strong support you have in the community, the stabilisation of your mental health and the current conditions in custody were such as to meet the test.

38The prosecution submitted that such does not meet the test; that general deterrence and denunciation had greater importance that the other purposes set out in s.5(1) of the Act; that I must have regard to Parliament's intention that in sentencing an offender for a Category 2 offence only an order under Division 2 of Part 3 should ordinarily be made and a high threshold had been imposed.  Particularly, it was submitted that matters relied on by your counsel were matters primarily personal to you which the court must not have regard.

39I do not accept that substantial and compelling circumstances have been made out given the very high threshold.

40The prosecutor disputed that I was empowered to impose a sentence of imprisonment on the armed robbery offence and a community corrections order on the injury offence.  It was submitted that such a course was contrary to the spirit of the provisions relating to offenders who committed a Category 2 offence.

41On enquiry from me, the prosecutor indicated that it had not been authoritatively determined by the Court of Appeal whether that course could be adopted.  The prosecutor did, however, refer to a decision of Judge Cannon of this court Scatterlan [2019] VCC 1382 where this issue arose and Her Honour viewed that given the ambiguity in the section of the meaning of offence that the court could legitimately impose a mandatory term of imprisonment in respect of the Category 2 offence and a CCO for other offences. As indicated, I had you assessed for a community corrections order and received a positive report.

42Armed robbery is a serious offence though I accept that there were features in your execution of this offence that made it less grave.  Principles of general deterrence, just punishment, denunciation and community protection are all relevant.  Specific deterrence is of less relevance given your good rehabilitation prospects.  Taking all relevant sentencing principles into account, I propose to sentence you as follows.

43In relation to Charge 1 - armed robbery, you are convicted and sentenced to a term of imprisonment of 14 months. 

44In respect of Charge 2 - recklessly cause injury, you are convicted and to serve a community corrections order to commence on your release.  That community corrections order will go for a period of 12 months and I propose to include the conditions that are recommended in the Corrections report other than the requirement that you undertake any community work given the time which you have already spent in custody. 

45Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to these matters, I would have imposed a term of imprisonment of two years.  The pre-sentence detention, please, is that 436, counsel?

46MR HARRISON:  Apologies Your Honour.  I had 438 days.

47HER HONOUR:  Four hundred and thirty-eight?  All right.  I am right though that that 14 months will be incorporated within that PSD?  That is correct, is it not?

48MR HARRISON:  Yes, Your Honour.  That will - yes, it is 14 months 11 days.

49HER HONOUR:  Yes.  All right.  I declare a pre-sentence detention of 438 days.  All right.  My associate will prepare the relevant community corrections order.  Mr Njoroge, you need to understand that if you breach the order, that is by the commission of other criminal offences or by not complying with the conditions of the order, the Corrections office may bring the matter back for a breach and that you may be required to be resentenced in respect of these matters before me.  Do you understand that?

50OFFENDER:  Yes, I understand. 

51HER HONOUR:  Thank you.  All right.  Is there anything else?  Thank you.  I will stand down.

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