Director of Public Prosecutions v O'Doherty

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE
CRIMINAL JURISDICTION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST
CR-20-00478
Indictment No. K13274135

DIRECTOR OF PUBLIC PROSECUTIONS

RODNEY O’DOHERTY

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2020
DATE OF SENTENCE:	8 September 2020
CASE MAY BE CITED AS:	DPP v O’Doherty
MEDIUM NEUTRAL CITATION:	[2020] VCC 1382

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Attempted armed robbery – plea of guilty
Sentence:Total effective sentence of 8 months’ imprisonment followed by a community correction order for a period of 12 months.
Section 6AAA declaration: 2 years’ imprisonment with a non-parole period of 14 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Sargent	Solicitor for the Office of Public Prosecutions
For the Accused	Ms N. Low	Victoria Legal Aid

HER HONOUR:

Rodney Peter O'Doherty you have pleaded guilty to one charge of attempted armed robbery.

CIRCUMSTANCES OF THE OFFENDING

At about 7.10 am on 20 December 2019 you entered the Coles Express Service Station in Cremorne carrying a syringe half-filled with blood. The complainant was working in the store, behind the counter. You waited for the customer at the counter to leave, then walked up to the counter and said to the attendant, 'Give me $100 or I will stab you with the needle'. The complainant says your tone of voice was quite low. Two other customers entered the store and went to the coffee machine. The complainant told you to leave and said he would 'call the police and you left.
This offence was captured by the CCTV security system at the store. You can be seen entering the store, waiting until a female customer left the counter, and then approaching the counter. The complainant backed away from the counter and appeared to be on the phone. At one point you moved your hand forward under the security wires at the front of the counter. Other customers then get in line behind you, and you turn and leave. The whole incident lasts for around one minute.
The police attended and located you at the Richmond Railway Station. They searched you and found the syringe in your pocket. They arrested you.
You were taken to the Melbourne West Police Station for questioning, but you were examined by a medical practitioner who assessed you as being unfit for interview. You were remanded in custody and have remained on remand since.
The complainant said in his statement, 'At the time, I don’t even remember how I felt, I was in a little bit of shock'.
This matter resolved at the committal case conference on 19 March 2020. The prosecution agree that this is an early plea of guilty.
Your explanation for the offending, as told to Dr Zimmerman and through your counsel was that you were homeless at the time, 'sleeping rough' around the Dandenong area. You met a woman the day before and travelled into Richmond with her. On the way, you gave her your wallet which contained your Myki and $200 cash to carry in her handbag.
You and this woman injected heroin together in Richmond. You say this was the first time you had used heroin for many years. You said a small amount of blood remained in the syringe following the heroin use. I note that the photo of the syringe shows more than a residual amount of fluid in the syringe.
Sometime later the woman left, taking your wallet and cash. You say you were thus stranded in Richmond without a Myki or money to travel back to Dandenong or for food for the rest of the week. Dr Zimmerman reports that you said:[1]
'… he spent the night on the streets feeling emotionally hurt and frustrated and unable to sleep. He said that he still had the syringe from using the heroin and decide to get some money by holding up a petrol station. “It’s interesting thinking about it because I never thought about not doing it – it was a spontaneous thing with no thinking"'.
[1]Exhibit D4, paragraph [53]
You say you intended to use the money for food and a train ticket.

Personal Circumstances

You were 43 years of age at the time of the offending and are now 44 years old. You had a good childhood with loving parents in a stable home in Pakenham. Your family lived on a farm and you enjoyed watching the cattle and exploring. You went to the local primary school where you were not academically strong. You told
Dr Zimmerman that you had trouble understanding what was being said, and difficulty with your memory.
In secondary school you played up a bit, but did not get involved in fights, and were never suspended or expelled. You left school after Year 11, did an apprenticeship in air-conditioning maintenance, and worked in that area for some years. You have also worked in warehousing and sales, and as a music teacher. As your mental health declined you were not able to retain employment and you are now on the Disability Support Pension.
You father has passed away, dying from a brain tumor. Your mother has remarried and lives with her husband. You have two older sisters both of whom were present via the web-link at your plea hearing and are listening today. Your sister Sharon wrote a reference on your behalf in which she said how shocked she was to learn you had committed this offence She has spoken with you regularly since you have been on remand, and she discussed with you your plans for your life once you are released in the community. She says you sound a lot better, and positive about the future. You want to reconnect with your mother, and your son and grandchild, as well as your sisters.
You left home when you were 19, moving in with your partner. You and your partner were together for five years, and you had a son together who is now 24 years old. Your son has two children of his own.
You have had periods of estrangement from your family in the context of your mental health issues, and you were homeless at the time of this offence, having moved out from your mother’s home in 2018. I am told that when you are released you plan to live with your mother, again. You are fortunate to have the support of your family, and it is very generous of your mother to agree to have you come and live with her.
Criminal History
Your first court appearance was in 2006, when you were 27. You then appeared again in the Magistrates’ Court in 2014, aged 34 and 35. On 26 August 2019 you were sentenced on charges of possession of methylamphetamine, proceeds of crime charges, multiple theft charges and committing an indictable offence whilst on bail. On that day a community correction order was imposed with conditions for assessment and treatment for drug and alcohol abuse, and in respect to your mental health. In November 2019 you were fined for offences of theft, failing to give your name to police and failing to answer bail.
Your criminal record reflects your personal history, in particular your declining mental health. It is notable that you did not appear before the courts until your late 20’s and then not again until your mid 30’s. Your offending has, to date, been low level, and you have not previously been sentenced to a term of imprisonment. Dr Zimmerman reported:[2]
'Mr O’Doherty noted in a perplexed manner that his offending seems to have escalated over recent times. “I just got addicted to stealing over the last few years”. He thought that this may have resulted from boredom and the culture of the friends that he associated with'.
Mental Health
[2] Exhibit D4, paragraph [46]
You were assessed by Dr Zimmerman for the purposes of your plea hearing. At the time of the interview you were expressing unusual beliefs about yourself, but you were not acutely psychotic.[3] You reported having a poor memory and presented as thoughtful, taking time to process questions before answering. When assessed by Dr Zimmerman you were not taking any medication, as you had told the psychiatric nurse in custody that 'everything was under control' and you were seen for review only a few times.[4]
[3] Exhibit D4, paragraph [9]
[4] Exhibit D4, paragraph [57]
You have thought about suicide but told Dr Zimmerman that you wanted to keep living for your family.[5] You accepted that you have a diagnosis of schizoaffective disorder, and described various symptoms including auditory hallucinations, and a belief that you have special powers such as psychic powers.[6] You reported that you did not like how some of the drugs prescribed to you in the past made you feel, and you did not believe that they had made a difference to your mental state.[7]
[5] Exhibit D4, paragraph [9]
[6] Exhibit D4, paragraph [9], [27]-[29]
[7] Exhibit D4, paragraph [30]-[31]
You were first admitted as a psychiatric patient in early 2015, when you were found in a house in a psychotic state.[8] You had been using drugs, including amphetamines and heroin. You were diagnosed as suffering from schizoaffective disorder. You absconded from the unit in which were treated and were brought back to it and given medication to which your symptoms responded well. Upon release you ceased taking your medication, and then had to be re-admitted in December 2015. You were admitted again in late 2017 for a month after you had ceased taking your medication again. In 2018 and in March 2019 you were again admitted as you had ceased complying with your medication. Again you absconded each time you were admitted. Following the March 2019 admission you were placed on an involuntary treatment order. It was noted at the time that your illness was putting your relationship with your family under strain.[9]
[8] Exhibit D4, paragraph [25], [34]
[9] Exhibit D4, paragraph [34]-[36]
You were again admitted for approximately two weeks in May/June 2019. You had been evicted from your share house, had been drinking, and had been using intravenous drugs. Again you absconded from the ward, and had to be returned by police. When you were discharged your mental state was stable, but you were noted to have little insight into your drug use and mental illness.
It is very concerning, in respect to your prospects for rehabilitation, that you have a repeated history of ceasing to take the medication prescribed to treat your mental illness.
Substance Abuse
You commenced drinking alcohol as a teenager but denied being a big drinker. You started using cannabis in your 20’s, and have tried drugs such as MDMA and GHB. You were addicted to heroin in your 30’s, but report that you were able to cease using that drug by going on a Suboxone program. You say that the use of heroin the day before this offence was the first time you had used that drug in some time. You told Dr Zimmerman that after coming of heroin, you transitioned to injecting methylamphetamine, but you denied using that drug for more than two years. Dr Zimmerman noted:[10]
'I believe that his substance misuse has been both a result of and an aggravating factor for his mental illness. Mr O’Doherty meets criteria for past dependence on opioids and stimulants, reportedly currently in remission. He remains at risk of future substance misuse if his illness relapses'.
[10] Exhibit D4, paragraph [67]

Offence Gravity

Whilst attempting to commit an armed robbery is a serious offence there are a number of factors to take into account in assessing the gravity of your conduct.
-First, you did everything necessary to commit the offence – the only reason you failed to obtain any money was due to the response of the complainant;
-Secondly, you were armed with a weapon that is particularly nasty – whilst not as dangerous as a firearm, the threat presented by a blood filled syringe is not only of immediate injury, but it presents the risk of blood borne disease being transmitted;
-Thirdly, this whole incident occurred in a very short time – approximately one minute;
-Fourthly, whilst you had the weapon and made a threat to stab the store attendant, he was protected by the counter and the wires, and clearly did not feel sufficiently threatened to give you any money. He said that your tone of voice was low, and it is apparent from the CCTV that your behaviour did not excite concern in any of the other people in the store; and
-Fifthly, this was clearly a poorly thought out plan of action on your part, with no attempt to disguise yourself, and you left a beer bottle on the counter which could have had your DNA on it.
All in all I consider this offence to be at the lower end of the range of gravity.

Verdins

The formal diagnosis of your mental illness is schizoaffective disorder. How this impacts on sentencing requires looking beyond the diagnosis to its effect upon you.
In respect to the commission of the offence, Dr Zimmerman said:[11]
'Mr O’Doherty’s motivation for offending appears an impulsive decision to obtain a relatively small amount of money in the context of being left without cash or a travel card. Cognitive deficits associated with major psychotic disorders include frontal lobe functions including problems with planning, judgement and impulse control. It is likely that such deficits will have impacted on his offending behaviour although his sleeplessness and substance use the previous day will have further aggravated these difficulties.
Mr O’Doherty expressed an acceptance that the behaviour that constituted the offending was wrong. While apparently bewildered by his uncharacteristic behaviour, he was able to explain that threatening behaviour is frightening and was “wrong” and “not nice”'.
[11] Exhibit D4, paragraph [68](b)
You told Dr Zimmerman that you had been 'feeling fine' in the days before this offence[12] but she noted that you had told your lawyer that you been '"brainwashed and hypnotised" at a friend’s house a few days beforehand and [were] concerned that music and the ticking at a pedestrian crossing can brainwash people'.[13]
[12] Exhibit D4, paragraph [55]
[13] Exhibit D4, paragraph [49]
Based upon Dr Zimmerman’s opinion, I accept that your mental illness had some effect upon your ability to exercise appropriate judgement and to make calm and rational choices. There were other factors at work, as well, in you making the decision to carry out an armed robbery, as Dr Zimmerman has noted. As discussed in the plea hearing, this aspect of the impact of your mental health upon the commission of the offence gives rise to a small degree of mitigation.
Regarding the effect of your mental state upon your experience of custody,
Dr Zimmerman said:[14]
'I note that the impact of a custodial sentence will impact more heavily on
Mr O’Doherty as a result of his schizoaffective disorder. His illness and sense of “difference” makes him vulnerable to being taking advantage of, something which is already occurring with detrimental effects for Mr O’Doherty. His ongoing untreated symptoms of psychosis place him at risk of misinterpreting communications and creates an increased risk of him being targeted. Even if treatment were re-instituted in the prison, there is no capacity to enforce medication against a patient’s will and little prospect of transfer to
[14] Exhibit D4, paragraph [68](a)
Thomas Embling Hospital with the current chronic lack of availability of beds there, meaning Mr O’Doherty is likely to remain untreated for as long as he is incarcerated'.
In view of this opinion, I accept that your experience of custody has been and would continue to be more difficult than a person without your mental health issues, and that this is a factor that carries some weight in mitigation.
In view of your presentation to Dr Zimmerman, I do not think there is a basis to conclude that this period of incarceration has had a significant adverse effect on your mental health. Although you are not receiving medication, this was your choice, and it does not appear that your symptoms have significantly worsened since you were remanded.
Your mental health also has a bearing on the type of sentence to be imposed. It appears that your declining mental health, and your desire not to be medicated are the main cause of your offending. I intend to impose a sentence that includes a community corrections order in order to encourage and require you to take steps to address your mental health and take your medication.
I accept your mental health condition is sufficiently severe and long term to reduce the weight to be given to general deterrence, but you are sufficiently insightful about your offending being wrong, and the consequences of that, that specific deterrence still has a role.

Plea of Guilty & Remorse

Your sister’s reference says that you appear to genuinely regret your actions.
Dr Zimmerman noted:[15]
'He said that when he reflects on the offending, he feels surprised because it was out of character and “it was wrong”. He told me that it was, “not a nice thing to do” and that it is not nice being threatened. “I feel a bit silly and remorseful”'.
[15] Exhibit D4, paragraph [56]
You wrote a letter addressed to me. You say in that that you realise what you did was very wrong, and promise not to steal or commit an offence like this one again. You have written of the positive steps you have taken whilst on remand, and the plans you have for your life and your anticipation of spending quality time with your son and grandchildren.
I accept that you understand what you did was wrong, and that you are sorry for it.
Your plea of guilty is also mitigating for practical reasons. It was an early plea and avoided the need for a committal hearing and a trial. Your plea and the facilitation of the administration of justice carries particularly strong weight in mitigation in light of the limitations upon the operation of the court due to the COVID-19 restrictions.
The COVID-19 restrictions add to the burden of imprisonment for several reasons including lack of face to face visits, concern for the health of family and friends in the community, and inability to regulate your own exposure to others. This also has a mitigating effect on your sentence, as you have spent more than eight months on remand subject to these issues.

Prospects of Rehabilitation

Your prospects of rehabilitation are tied to your mental health. Your life before your illness started to really take hold was normal, with a good family network, and your jobs. If you can comply with the treatment provided to you, and keep clear of illegal drugs, you have reasonable prospects for rehabilitation. Your history of refusing to comply with your medication is a concern, however. Even though you are motivated now to comply with your treatment, this compliance is a life-long requirement. I will be making an order that you must comply with for a year, but after that it is up to you to keep on the right track.

Other Sentencing Considerations

In sentencing you, I must have regard to a range of different factors. I give less weight to general deterrence due to your mental health. Specific deterrence remains a factor, as does protection of the community, denunciation and just punishment. Your rehabilitation is also important.
Both the prosecution and your lawyer submitted that a sentence which combined a term of imprisonment with a community correction order would be within the range of sentences open to me to impose. I had you assessed for a community correction order focussed on addressing your substance abuse and mental health. Your lawyer had raised the possibility of you taking part in a program called HiROADS which could assist you in maintaining appropriate treatment. The community corrections order assessment report noted that you were on a community corrections order at the time of this offence, which you had not complied with in any way. You were assessed as being at high risk of reoffending, but nevertheless were found to be suitable for a community corrections order.

Taking all the matters I have gone through above into account, I have decided to impose a combination sentence upon you.
On Charge 1, attempted armed robbery, you are sentenced to a term of imprisonment of eight months’, to be followed by a community corrections order for the period of 12 months. The conditions of that order are that you undergo:
-Supervision
-assessment and treatment regarding drug abuse
-assessment and treatment regarding alcohol abuse
-assessment and treatment regarding your mental health
-that you engaged in other treatment and rehabilitation programs as directed, including participation in the HiROADS program or similar program
-that you engaged in programs addressing your offending behaviour.
Could you just take Mr O'Doherty off mute please. Thank you.
OFFENDER: I couldn't hear.
HER HONOUR: Mr O'Doherty, what was the last thing you heard?
OFFENDER: You asked me a question and I just missed that last bit.
HER HONOUR: All right, the question that I am asking you is I have gone through the terms of the order, so 12 months with the conditions and I am asking you, do you consent to the making of that order?
OFFENDER: Yes, Your Honour.
HER HONOUR: You will be required upon your release to make telephone contact with Pakenham Community Correction within two working days of your release . And the document that you will have before you are released will have the phone number that you need to call to make that contact, do you understand?
OFFENDER: Yes.
HER HONOUR: Now, Mr O'Doherty, I need to tell you that the order, community corrections order, can be breached if you do not comply with it. That is if you breach and of the conditions on the order or reoffended during its operation. If you breach the order than you will come back before me on a contravention hearing and I would have to consider whether to re-sentence you on the charge of attempted armed robbery. You would also face an additional penalty for breaching the community corrections order.
Thanks, Carmel, if we could just mute him again because of the background noise. Thank you.
Pursuant to s.6AAA Sentencing Act 1991 (Vic), I declare that had you not pleaded guilty, you would have been sentenced to a total effective sentence of two years, with a non-parole period of 14 months.
Pursuant to s.18(4) Sentencing Act 1991 (Vic), I declare that you have served 245 (that is eight months one day) days of pre-sentence detention, including today, and I direct that this figure be entered into the records of the court.
I will also make the disposal order as sought by the prosecution.
Ms Sargent, is there anything else?
MS SARGENT: No, Your Honour.
HER HONOUR: Ms Low, anything else?
MS LOW: No, Your Honour.
HER HONOUR: We will adjourn the court.

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[2020] VCC 1382

8 September 2020