Director of Public Prosecutions v Olsen
[2016] VCC 1391
•14 September 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00800
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| STEVEN OLSEN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2016 | |
DATE OF SENTENCE: | 14 September 2016 | |
CASE MAY BE CITED AS: | DPP v Olsen | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1391 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Make threat to inflict serious injury and attempted armed robbery – significant prior criminal history – immediate custodial sentence imposed
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APPEARANCES: | Counsel | Solicitors | |
| For the Director of Public Prosecutions | Ms C.J. Duckett (Plea) Mr R. Casey (Sentence) |
| |
| For the Accused | Mr M. Cookson (Plea) Mr M. Hume (Sentence) | Emma Turnbull Lawyers Pty Ltd |
HER HONOUR:
1 Steven Olsen, you have pleaded guilty to two charges, one of make threat to inflict serious injury, and one charge of attempted armed robbery.
2 The charges are serious and that is reflected in the maximum penalty that is prescribed by law, and that is five years' imprisonment for the make threat to inflict serious injury charge, and 20 years' imprisonment in respect to the attempted armed robbery.
3 In addition you admitted your criminal record. You have an extensive prior criminal history with convictions recorded in Victoria and South Australia. Of relevance you have prior convictions for violence against a person including commit theft using force, trespass in residence, commit an assault, various assaults against police, armed robbery, intentionally cause injury and recklessly cause injury.
4 Over the years you have received a variety of dispositions from the courts from fines through to community based orders, suspended sentence and gaol terms.
5
Your current offending relates to an incident that occurred on Saturday,
21 November 2015 at about 8 pm. The victim in this matter, Monib Modhavi was not known to you. He was travelling with his three year old daughter on the No.11 tram that was heading north along Brunswick Street. At the time they were on their way home having attended the Spanish festival in Fitzroy. You boarded the tram carrying a carton of orange juice and a six pack of beer. You stumbled in front of Modhavi after boarding. He asked you if you were all okay, to which you responded, "I'm okay, you okay? Do you want to go me, I'll pull scissors and stick 'em in your neck." That constitutes the circumstances of Charge 1, make threat to inflict serious injury.
6 You then sat in a seat that became available one or two metres away from Modhavi and his daughter. You began rummaging through your pockets and produced a pair of silver scissors approximately 20 centimetres in length. You put the blade between your knuckles and clenched your fist. You stood up and started moving towards the victim who said to you, “Calm down, I'm with my daughter." You then said, "Give me five bucks" which he ignored. That constitutes the circumstances of Charge 2, attempted armed robbery.
7 When the tram reached the stop at the intersection of Brunswick Street and Freeman Street, you approached the victim again coming up to his face at which time he put up his hands. Modhavi and a few other tram travellers pushed you off the tram and you proceeded to go to the west side of the road. The victim and his daughter also got off at that stop and ran home.
8 You were arrested on 10 December 2015 and when interviewed you made no admissions. You told police you could not recall that particular incident.
9 The victim was shown a photo board on 21 December 2015 at which time he identified you as the person who had approached him on the tram and threatened him.
10 You were charged and remanded in custody and have remained in custody since that date.
11 Your matter was the subject of a contested committal hearing on 10 May 2016 and Modhavi was examined and cross-examined.
12 The incident has had a profound effect on Modhavi and that is set out in his Victim Impact Statement that was read to the court by the prosecutor. He was very upset about you taunting him during the tram ride without any provocation and in particular, in the presence of his young daughter. He was concerned about her wellbeing and how she would be affected by your behaviour. She was frightened and upset and could not understand your actions.
13 He has shown great insight in his Victim Impact Statement. He writes that he told his young daughter the reason why you did this was because of the bad things that have happened in your life and because you are angry about them. He did not condone your actions in any way but tried to understand them.
14 Mr Olsen, your actions have impacted on his ability to be able to enjoy taking tram rides with his young daughter and he is now more cautious and suspicious in public. His empathy for drug-affected people has been tested. He says that you have damaged his mind and that of his daughter.
15 Mr Olsen, the objective features of your offending are serious in that you threatened an innocent man without provocation in the presence of his young daughter whilst he was going about his business travelling on public transport. In sentencing you there is a need to denounce your behaviour and to emphasise both general and specific deterrence.
16
By way of personal history and background. I note you are 32 and you were that age at the time of the offending. On your behalf it was conceded by
Mr Cookson at the plea hearing that the only appropriate disposition was an immediate term of imprisonment incorporating a parole period. Mr Cookson sought a longer than normal parole period to enable you to return to the community fully supported in the terms that have been recommended in reports that were filed on your behalf.
17
Those reports were from Dr Aaron Cunningham, consultant psychologist, and Ms Jane Lofthouse, neuropsychologist. Their reports dated 5 July 2016 and
29 August 2016 respectively were tendered and I have taken those reports and their contents into account in your favour.
18
Following your remand you were admitted to Metropolitan Assessment Prison, (MAP), on 12 December 2015. You were then admitted to the Acute Assessment Unit, (AAU), at MAP, under the care of Dr Douglas Bell on
21 December 2015. You remained at that unit until you were transferred to the Metropolitan Remand Centre, (MRC), on 20 May 2016.
19 Mr Olsen, you have a documented history of depression over many years. You come from a very disadvantaged and tragic background. Your mother suicided in 1997 when you were aged only 13. Your father died subsequently in 2008. Both of your parents had issues with substance abuse. You personally have had a history of heavy drug use and abuse of alcohol. When you were admitted to the AAU at MAP, the history you provided was that you had been using ice heavily following your latest release from prison in Port Augusta in early 2015.
20 It is noted that you had a history of a three month psychiatric admission in South Australia during a previous period of incarceration for treatment for depression, along with strong thoughts of suicide and you reported a history of two previous serious attempts at suicide prior to your present admission.
21 When admitted to the AAU you were diagnosed with a psychotic illness characterised by derogatory and persecutory auditory hallucinations including commands for you to kill yourself. You were experiencing persecutory delusions involving a number of persons whom you believed were an imminent threat to your safety. You also had features of depressed mood and depressive cognitions of hopelessness and despair and self recrimination.
22 Dr Bell assed you as presenting with first episode psychosis likely to be related to extensive substance abuse on a background of chronic depression and developmental problems. You were treated with antipsychotic medication and mood stabilising agents. You underwent psychological treatment to address issues of grief and loss and your difficulties in coping with painful memories. You had daily supportive contact with nursing staff and engagement in individual and group activities within the unit.
23 Following your transfer to the MRC there has been a marked improvement noted but not a complete resolution of your symptoms. You continue to report auditory hallucinations of much diminished intensity and frequency. And you have persisting apprehension regarding the possibility of reprisal from other prisoners. At the time of your discharge from the AAU you were noted to be clearly anxious and traumatised but you were no longer showing signs of any active depressive illness.
24 Dr Bell considered that you will remain for the foreseeable future a man who is vulnerable to recurrence of depression, given both your family background and history of mood disorder, and also your longer term risk of suicide when confronted with circumstances that you find overwhelming, especially associated with deterioration in your mental health. He considered that that would be substantially reduced by you availing yourself of mental health services available within the prison.
25
Dr Cunningham, the forensic psychologist assessed you on two days, 3 and
28 June 2016. He considered that you present with a diagnosis of major depressive disorder and substance induced psychotic disorder. He considered that you are predisposed to those conditions developing because of your instability in your childhood years and early developmental years. He noted that you have a long history of drug dependence and his view was the recent period of depression and psychosis was precipitated by a number of factors, namely the end of a romantic relationship, the fact that you relocated to Victoria, your ongoing homelessness and difficulty sourcing support. He also noted you were heavily abusing drugs at the time of the offending.
26 He considered from a psychological perspective that in the context of your mental illness, gaol will be more onerous for you relative to an individual without such conditions. He recommended psychological, psychiatric and drug and alcohol rehabilitation in the community and Outreach management through community based mental health organisations.
27 Ms Lofthouse in her report confirmed your intellectual ability appears to be within the mild low average range to moderate level borderline range. The deficits were not consistent with you having a generalised developmental disorder such as intellectual disability. She thought that you showed significant deficits that were inconsistent with your predicted pre-morbid intellectual functioning and she considered that likely to be related to an acquired brain injury.
28 She said the deficits included significantly slowed information processing, difficulty dealing with multiple concepts, reduced planning skills, reduced use of flexible thinking, and restricted abstract reasoning skills. Those deficits are often noted in the presence of a brain injury related to chronic drug and alcohol use. Slowed information processing is also noted in the presence of psychiatric symptoms, especially depression and this she considered could also be a factor in your manner of processing.
29 She noted two events in 2008 that you reported where you said you received significant blows to the back of your head. You denied any significant periods of loss of consciousness after those events and indicated that you had only received basic medical care, with no ongoing or noted brain related symptoms. She concludes, "Although a mild traumatic brain injury cannot be discounted based on your accounts of these assaults, it is probably not a significant contributing factor."
30 Overall she considered that some of your intellectual deficits would be sufficient to impinge on your daily functioning and would have been likely to have been present at the time of the offending, coupled with your drug and alcohol use, and they all contributed in some way to the offending. In addition you indicated to her that you were intoxicated at the time of this offending and that is likely to have played a significant part in your inappropriate and criminal behaviour in her opinion.
31 She agrees that the nature of your psychiatric disability coupled with your intellectual deficits mean that it is likely a term of imprisonment will impinge on your wellbeing to a greater degree in comparison to persons who do not suffer from those conditions. She said your presentation is complex and marked by significant factors that have contributed to your criminal offending, and they are likely to increase your risk of re-offending. She made a number of recommendations in her report to reduce the risk of re-offending including stabilising your lifestyle within the community, to address your chronic homelessness and also to support you in respect to your significant psychiatric issues and to deal with your drug and alcohol use problems. She recommended professional assistance through the provision of intensive case management which is reflective of what was said by Dr Cunningham in his reports.
32 As discussed with your counsel during the plea hearing, I have taken into account and accept that you have come from a greatly disadvantaged background, particularly in your formative years. The role of an offender's disadvantaged background such as yours is a mitigating circumstance and that is well recognised and accepted by the law. The law recognises that the effects of profound deprivation and disadvantage such as what you suffered during your young years do not diminish over time, and frequently plays a role in serious offences committed by such persons.[1] I have taken that into account.
[1]Fernando v R (1992) 76 Crim R 58, [62] (Wood J); R v Fuller-Cust (2002) 6 VR 496, 510 [78]-[80] (Eames JA); Bugmy v R (2013) 249 CLR 571, 592; Munday v Western Australia (2013) 249 CLR 600.
33
However I do not consider that your psychiatric condition is connected to the offending in a way that I can reduce your moral culpability or moderate general or specific deterrence. And I repeat what I said to Mr Cookson, I do not consider the first four limbs of Verdins have been enlivened. I make that finding on the basis of the expressed opinions of both Dr Cunningham and
Ms Lofthouse. I am not satisfied that there is a connection between your psychiatric conditions and your moral culpability or the need to emphasise general or specific deterrence. I do not consider that there is a realistic connection with the offending, or that it has caused or contributed to the offending or can be causally linked to the offending.
34 I find that the offending was committed whilst you were intoxicated but you were aware what you were doing was wrong. I am however satisfied and accept that limbs 5 and 6 of Verdins have been enlivened, and have taken that into account in your favour. That is, because of your psychiatric condition, prison is more onerous and may exacerbate your condition.
35 I have formulated a sentence having regard to my assessment of the gravity of the offending. The offending was serious and committed in circumstances that would have aroused great fear in the victim who was travelling on the tram with his young daughter. He was entitled to feel safe on public transport.
36 It is important in those circumstances that both general and specific deterrence be emphasised.
37 I accept that the offending is not at the high end of the scale for this sort of offending when regard is had to the fact that you were acting alone, the offending was opportunistic and situational rather than planned, you were not disguised, you did not persist with your threat of harm when the $5 was not produced, and the weapon you brandished was a pair of scissors, a common household item. It is important that you did not use the scissors to cause physical harm to the victim.
38 I accept as I said earlier that you are a person who has had a difficult and complex disadvantaged background. You also have complex psychiatric issues. At the time of the offending you were homelessness and you were not being cared for by any mental health authorities, and I have taken all of that into account in a general sense.
39 Subsequently, following the withdrawal from drugs, in particular ice, and appropriate psychiatric treatment in prison, your situation is now regularised. You are now compliant and taking your antipsychotic and antidepressant medication such that your depressive illness is now at bay. Your condition has generally improved markedly, albeit you still have some auditory hallucinations ongoing.
40 In your favour I have taken into account your plea of guilty. I note the stage it was entered, that is following contested committal mention, and following the cross-examination of the accused, but I nonetheless accept that there is still utility in your plea. You spared the State the cost and inconvenience of a trial and in particular you spared the victim in this case the inconvenience of further trauma of having to come to court to give evidence on your trial. You have demonstrated a willingness to facilitate justice and therefore your sentence will be discounted accordingly.
41
Insofar as your prospects for rehabilitation are concerned, I do remain cautiously optimistic. In the past you have not engaged very well with attempts at rehabilitation. You have contravened a number of community based dispositions. Your ongoing criminality has been inextricably linked to your abuse of drugs and alcohol. You will need to continue psychiatric treatment and abstain from drugs and alcohol upon your eventual release to make the most of your rehabilitation prospects and to diminish your risk of
re-offending.
42 It is encouraging that you have been stabilised whilst in prison with appropriate management and that you are doing well currently. I recommend that to further enhance your prospects that the correctional authorities do utilise the reports that have been tendered at the plea hearing. They do provide useful guidance for future management.
43 It is imperative that you be provided with stable accommodation and comprehensive support in the manner that is set out in those reports. That will diminish the prospects of you re-offending and also offer the best protection for the community.
44 What is different currently also is that you have re-established your relationship with your aunt who lives in Queensland. She contacted you because of the unfortunate passing of your grandmother and since that time you have been in regular contact with her over the telephone. In the past she says that she had contact with you from when you were a baby until you were about ten, but she lost contact when she moved interstate. In her letter that she wrote to the court she says that she has seen a remarkable improvement in your attitude and you have expressed to her a willingness to change and get off drugs over the last couple of months.
45 Mr Olsen, if you continue to hold that view and to work towards maintaining total abstinence when you return to the community, your prospects for rehabilitation will be greatly improved and your risk of re-offending will also be greatly improved.
46 In sentencing you I must impose just punishment. I consider that a term of imprisonment to be immediately served is the only appropriate disposition in all the circumstances.
47 In respect to the charges, the formal court orders are as follows.
48 Charge 1, make threat to inflict serious injury, convicted and sentenced to six month's imprisonment.
49 Charge 2, attempted armed robbery, convicted and sentenced to two years' imprisonment.
50 I make the following order for cumulation. I direct that three months of the sentence imposed in Charge 1 be cumulative upon the sentence imposed on Charge 2. That makes a total effective sentence of two years and three months. I fix a non-parole period of 15 months.
51 I make a declaration pursuant to s6AAA but for your plea of guilty I would have imposed a sentence of four years' imprisonment to serve three years.
52 And I declare pursuant to s18 of the Sentencing Act 1991 Victoria, that you have already served pre-sentence detention of 279 days which is to be administratively deducted from the sentence.
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HER HONOUR: So that concludes your matter.
OFFENDER: Thank you Your Honour.
HER HONOUR: Thank you.
MR CASEY: As Your Honour pleases.
MR HUME: As Your Honour pleases.
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