Director of Public Prosecutions v Peterson

[2020] VCC 52

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-19-01306

DIRECTOR OF PUBLIC PROSECUTIONS

v

JONATHON PETERSON

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JUDGE:	HER HONOUR JUDGE DAWES
WHERE HELD:	Bendigo
DATE OF HEARING:	30 January 2020
DATE OF SENTENCE:	5 February 2020
CASE MAY BE CITED AS:	DPP v Peterson
MEDIUM NEUTRAL CITATION:	[2020] VCC 52

REASONS FOR SENTENCE
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Subject: Attempted armed robbery, intentionally causing injury
Catchwords:
Legislation Cited:
Cases Cited: R v Verdins (2007) 16 VR 269; Bugmy v The Queen (2013) 249 CLR 571
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Holmes	John Cain, Solicitor for Public Prosecutions
For the Accused	Ms E. Millar	Victoria Legal Aid

HER HONOUR: 

1Jonathon Peterson, you have pleaded guilty to one charge of attempted armed robbery and to one charge of intentionally causing injury.

2On 29 December 2018, you were at home in the evening with your partner. 
She asked you to go to get some tobacco.  You left the house, walking to a nearby hotel and found some discarded cigarettes.  You then walked back towards a local service station.

3At approximately the same time, the complainant had left his home to wander through the neighbourhood, playing Pokémon Go on his mobile phone. 
At around 11 o'clock, the complainant was near the same service station when he walked past you down an alleyway.  You called out to him asking if he had a spare cigarette.  He replied that he did not.  You then asked if he had $5. 
He said that he did not have anything with him other than his phone. 
The complainant then turned and began to walk away.  You called out,
'Hey mate, hang on a sec,' and pulled out a small knife with a silver blade, which you pointed at him.  You said 'Give us what you got.'  The complainant asked you if you were serious and you said that you were.  The complainant put his phone into his pocket and you suddenly lunged at him.  The complainant felt some impact to his face and chest as if he was being punched with a closed fist.  The complainant fought back, hitting you once to the face before running to the service station to get help.

4He soon realised that he was covered in blood.  The attendant at the service station called for an ambulance.  When it arrived, it immediately took the complainant to hospital.  Police attended soon after and commenced their investigation.

5The complainant was admitted to the Bendigo Hospital emergency department at approximately 11.30 pm.  He had two stab wounds to the left side of his neck and one stab wound to the left shoulder.  Fortunately, no acute or major soft tissue injury was identified in his neck or chest.  The wounds were sutured and dressed and he was discharged from hospital on 31 December 2018.

6After stabbing the complainant, you disposed of the knife.  At around 11.40 pm, you were yelling as you returned home and caught the attention of a nearby resident.  When she asked what was going on, you said 'Everyone thinks I'm drug crazed.  I just had to stab someone for a cigarette.'  At that time, the neighbour's mother came out and had a conversation with you where you said 'My girlfriend needed a cigarette and I just stabbed some cunt to get one for her.'

7At approximately 12.40 pm on 30 December 2018, the police executed a search warrant at your home address in Long Gully.  You were arrested and conveyed to the Bendigo police station where a record of interview was conducted, in the presence of an independent third person.  You admitted that you had gone out looking for cigarettes at around the time of the offending.  You denied interacting with anyone or that you were involved in the attempted armed robbery or assault.  In the course of their investigation, the police had located the discarded knife.  You said that you had not handled a pocket knife in years.  When you were shown a picture of it, you said that you had never seen it and that none of your DNA or fingerprints would be on it.

8In the course of the execution of the search warrant, fresh blood was located inside and outside your house and on a pair of your shoes.  You told the police that the blood was yours as you had smashed a car window nearby.

9Testing done during the investigation revealed that the blood in the house and on your shoes was the complainant’s.  Your DNA and the complainant's was also located on the knife.

10A victim impact statement was provided and read to the court.  The complainant described being emotionally distraught and distressed by this experience. 
It has challenged his perception of safety in his local area. He is fearful of going out at night and has withdrawn from things he used to enjoy.  The injuries have affected his capacity to work and he still suffers from pain in his shoulder. 
His physical and mental health have declined since this incident. 
The complainant states, 'The crime itself was an incredibly traumatic thing to experience, but it is the impact it has had on my life since the attack that is affecting me the most.  My life has changed.  Everything I enjoyed has been taken away and it is really difficult to pick up the pieces and try and live a normal life again.'

11To have been confronted by an unknown man, who demanded at knife point that he hand over his property and then to be stabbed, must have been a terrifying experience.  Your conduct was threatening, intimidating and violent and has had a significant impact on the complainant.  I take the content of the victim impact statement into account.

12The offences of attempted armed robbery and intentionally cause injury are serious.  This was an opportunistic, unsophisticated offence that was of brief duration.  The complainant was not known to you, so the selection of him as your victim was a random one.  He was vulnerable, walking alone on the street late at night.  Although it appears that this was not a premeditated offence, you have not provided an explanation for carrying a knife.  You stabbed the complainant three times to the neck and shoulder area.  He suffered injury each time and it is fortunate that those injuries were not more serious. 
Your explanation for your offending was to find cigarettes for your partner. 
You say that you were desperate to do so as she had asked you earlier in the evening.

13Your counsel submitted that your offending could be categorised towards the lower to mid end of seriousness.  The prosecution have no dispute with that categorisation of the attempted armed robbery, notwithstanding the fact that you have not explained why you were in possession of a knife.  However, the prosecution submission is that the offence of intentionally causing injury is towards the higher end of objective seriousness.

14The range of offences that fall within the category of intentionally cause injury is extensive.  In my view, in all the circumstances, this is a serious example of this offence.  It was a violent, unprovoked attack where you stabbed the unarmed complainant three times.

15You have a lengthy and relevant criminal history.  This is not the first time you have produced or used a knife in the course of your offending.  In 2015, you pleaded guilty in the County Court to a number of offences including armed robbery.  On 29 June 2015, you were convicted and sentenced to a term of imprisonment of 15 months followed by a three year community corrections order.  I have been provided with and read the sentence imposed by His Honour Judge M. Bourke.  You had a knife in your possession on that occasion, although you had not premeditated its use.  Prior to the incident, you produced the knife and it was used by a co-offender in the armed robbery.

16As part of that hearing in the County Court, you also pleaded guilty to a charge of making a threat to kill.  In that matter, you were at home arguing with your brother.  You threatened to stab him.  You took a knife from the kitchen bench and threatened him again with it.

17You have been found guilty of offences of dishonesty and violence in the Children's Court and in the adult jurisdiction.  Since the age of 16, you have spent much time in Youth Detention and adult custody with limited periods of stability residing in the community.  Your most recent sentence of imprisonment was imposed in February 2018.  You were released from custody approximately six months before the current incident occurred.

18It is accepted by the prosecution that your plea of guilty was entered at an early stage.  Although this matter was booked in for a contested committal, it resolved prior to that hearing.  Your plea has a significant utilitarian benefit. 
You have saved the court and the community the time and expense of running a trial.  You have spared the complainant from giving evidence in court.  In those circumstances, you have facilitated the efficient administration of justice and are entitled to a benefit for that.  I take that into account.

19It has been submitted that your plea of guilty is consistent with remorse. 
At the request of your solicitor, consultant psychiatrist, Dr Nina Zimmerman prepared a report for court dated 13 December 2019.  In your discussion with Dr Zimmerman, you articulated empathy for the complainant and regret for your actions, expressing remorse.  The prosecution agree that your plea of guilty is consistent with remorse.  I accept that submission.

20A number of sentencing principles were raised by your counsel and accepted by the prosecution as being relevant and applicable in your case. 
You committed these offences at the age of 24 years and you are now 25 years old.  You are a youthful offender.  Rehabilitation remains a relevant sentencing consideration, notwithstanding your criminal history.

21You are an Aboriginal man.  Your mother's family are both from the Ladji Ladji community in the Mildura Ouyen region and from the Barkindji community, an area located on the border of New South Wales and Victoria.

22Your mother died when you were approximately six months old.  You are unsure whether she was killed in a car accident or intentionally killed.  You do not know the identity of your father.  You have an older half-sister on your mother's side and a twin brother.  The uncertainty surrounding the identity of your father, the loss of your mother and a difficult relationship with other family members resulted in a distinct lack of suitable and stable role models throughout your childhood.  You have never had a mother or a father to care for you and guide you.

23Until the age of 13, both you and your brother lived with your aunt and her partner.  They already had five children and you felt as if you were unwanted and unloved in that environment.  Eventually, you were asked to leave the family and you felt an acute sense of rejection.

24You were physically abused by some of your uncles and had a tense, dysfunctional relationship with your family members.  For a short while, you and your brother moved in to live with a man that you regarded as your father, although it is not clear whether he is in fact your biological father.  You had a good relationship with him for a time.

25At around the age of 14 years, you resided with another aunt with whom you had a close relationship.  She provided you with support and guidance. 
You were using amphetamine and cannabis at that young age and were unable to remain living at her premises, although you maintained your good relationship with her.  She died from cancer in 2016.

26You have also lived with your sister on occasion, although you have had limited contact with her over the past seven years.  She still resides in the Mildura area.  In around 2015, due to your ongoing family problems, you relocated from Mildura to Bendigo and have lived here since that time.

27You and your brother previously had a very close relationship.  Despite him being the subject of the threat to kill charge that proceeded in 2015, you managed to repair your relationship with him.  You have served time together in custody at the Hopkins Correctional Facility in 2017 and 2018.  You have not had any contact with him since then.

28You have two daughters with whom you have little contact.  You were 16 years of age when your first child was born. 

29You have a limited education, leaving school prior to completing Year 8.  You struggle with language and literacy although your reading and writing improved when in Youth Detention.

30Dr Zimmerman suggests that you may have an acquired brain injury due to being born prematurely or to substance abuse in your key developmental years.  No neuropsychological assessment has been undertaken however.

31You have a limited history of employment, working for a short time as a seasonal fruit picker in 2016 and 2017 and as a factor worker for approximately two months in 2016.  At the time of your remand, you were unemployed and in receipt of Centrelink payments.

32You have been in custody since your arrest over 13 months ago.  During that time, you have been employed as a billet and in a carers role for three hours a day, seven days a week.  You enjoy working and will continue to do so. 
You have undertaken educational courses, although you are unable to access treatment and rehabilitation courses until you become a sentenced prisoner. 
I am told that you have provided negative drug screens whilst in custody.

33At the time of this offending, you were in a relationship.  You assume that relationship is now over, as you have not had any contact with your partner since you have been in custody.  You are estranged from your family and have not received any visitors. 

34You have served your time on remand in protection.  You have previously been assaulted when incarcerated, although you have not had similar difficulties during this remand period.

35In 2014, you converted to Islam.  You continue to practice your religion and take comfort in your beliefs.

36You began using drugs and alcohol at a very early age.  I am told that you were sniffing petrol daily by the age of 13.  Your memory of your teenage years has been impacted by this behaviour.  At around the same time, you smoked cannabis daily and commenced drinking alcohol at around the age of 14.

37In a Children's Court Clinic report prepared by psychologist Graeme Brewer, dated 13 August 2010, he states that your significant substance abuse appears to have been at its worst during periods of intense upheaval, after you were ousted from various family homes.

38Your drug use continued throughout your teenage years with use of methylamphetamine and heroin commencing at around the age of 16. 
You developed suicidal ideation at that time.  Fortunately, this has not been ongoing.  I am told that your use of methylamphetamine and heroin increased after the death of your aunt in 2016, when you were 22 years of age.  You have also abused prescription medication and LSD.  You have had very limited periods of abstinence from drug use whilst in the community.  You ceased using heroin when you were 21 years old, spasmodically taking methadone since that time.  You are currently on methadone in custody.  I am told that at the time of this incident, you used LSD, methylamphetamine and cannabis.  You described yourself as “tripping”.

39In Dr Zimmerman's opinion, you were suffering from schizophrenia at the time of your offending.  It was undiagnosed and untreated and has played a part in this incident, in combination with your drug use. 

40It appears that over the years, you have presented with symptoms of mental illness, although the diagnoses have varied.  You have had limited mental health treatment in the community, save for two brief admissions to psychiatric units in Mildura.  Dr Zimmerman has had access to your records from Justice Health.  She noted that when reviewed about one month after your arrest, you were psychotic with disorganised thoughts, paranoia, misinterpreting and anger.  Dr Zimmerman is of the opinion that:

'The most appropriate diagnosis is one of disorganised schizophrenia with episodes precipitated and perpetuated by substance misuse and non-compliance with treatment.'

41In her view, this diagnosis is applicable to your state of mind at the time when this incident occurred.  Whilst in custody, you have been prescribed
10 milligrams daily of the antipsychotic drug Olanzapine, as well as antidepressants.  You have access to a psychiatrist and are reviewed monthly by a psychiatric nurse.  You are currently compliant with your medication.

42In Dr Zimmerman's opinion, the varying diagnoses that have been made of your illness in the past has made it difficult for you to engage with appropriate mental health services.  In light of the nature of schizophrenia, compliance with treatment is required in order to reduce the risk of a recurrence of your illness.  Substance misuse and lack of compliance with antipsychotic medication, as well as lack of engagement with services will increase your chance of reoffending.  Dr Zimmerman believes that both your drug use on the day of this offence and lack of antipsychotic treatment would have destabilised your underlying psychotic illness.  She states:

'It is likely that the combination of his drug use and its effect on his illness will have made Mr Peterson more disinhibited, less able to think through the consequences of his behaviour and to have impaired his judgment.'

43Your counsel submits that all sentencing principles in R v Verdins[1] are enlivened by your diagnosis of schizophrenia at the time of offending.  In the view of Dr Zimmerman, the combination of your drug use and its effect on your illness will have reduced your capacity for impulse control and consequential thinking and will have impaired your judgment.

[1] (2007) 16 VR 269.

44The prosecutor described the reports from Dr Zimmerman from 2015 and 2019 as compelling evidence that support your counsel's submissions, providing a significant level of insight into your circumstances and your offending.

45The prosecution accept that your moral culpability is reduced but not eliminated.  Your psychotic symptoms have consisted of thought disorder and paranoia which are directly linked to your offending behaviour.  However, symptoms of your mental illness were exacerbated by your drug use at the time and for this reason, I must moderate the sentencing impact of your reduced moral culpability.

46It was further submitted by your counsel that there should be moderation in applying the principles of general and specific deterrence.  The prosecution accept that submission.  Both members of counsel submit however, that these principles are still relevant and should not be eliminated entirely. 
Again, I consider that there should be moderation of the impact of the principles of deterrence.  In my view however, I should temper moderation to reflect the fact that at least part of your unstable mental state at the time of offending was the product of your illicit drug use.

47Your mental illness increases the chance of conflict with officers and other inmates, increasing the burden of imprisonment.  It is also submitted by your counsel and accepted by the prosecution that the burden of imprisonment will be more onerous for you than for those who do not suffer from chronic paranoid thinking associated with schizophrenia.  I accept that you will encounter an increased level of hardship whilst in custody.

48Dr Zimmerman's opinion is that further time in custody increases the risk of your becoming institutionalised in light of your history of detention and incarceration.  In your discussion with the psychiatrist, you indicated that at this time in your life, you are unable to visualise a future for yourself outside of the custodial system.

49Your counsel submitted that the principles outlined in the decision of

[2] (2013) 249 CLR 571.

Bugmy v The Queen[2] are also applicable in your case.  In his report, Mr Brewer considered your circumstances as a child and concluded that you suffered acute early deprivation.  In Dr Zimmerman's opinion, your “perceived rejection by family members in the context of alleged misbehaviour appears to have had a significant and lasting impact on you”.  Your childhood was dysfunctional and reflects a background of considerable social deprivation and disadvantage.  Violence, transience and grief throughout you childhood has had an ongoing effect on your lifestyle which has not diminished.

50You have not received any counselling or treatment to assist you to deal with or overcome the ongoing effects of this considerable social deprivation. 
The prosecution accept your counsel's submission that this is a mitigating factor in your plea.  I accept that your moral culpability in this regard is also reduced.

51Given the gravity of your offending and your relevant criminal history, I am satisfied that a term of imprisonment is required.  You have been on remand for 402 days, spending time at the Metropolitan Remand Centre and now at Port Phillip Prison.  You counsel's submission is that a longer parole period than usual should be a part of any sentence imposed.  This would provide you with the support you need upon your release from custody, in order to access and encourage compliance with medication and treatment for mental health as well as your drug abuse issues.

52Your prospects of rehabilitation present a complex picture.  Your successful reintegration into the community requires the involvement of a significant level of support.  I accept that this is the best way to ensure the protection of the community and to encourage your rehabilitation.  Clearly, your capacity to comply with psychiatric and mental health treatment, as well as remaining drug free, are critical factors in your success.  You have not had appropriate support of this kind made available to you in the past.  Your mental health has improved whilst in custody now that you are in receipt of appropriate treatment, medication and are drug free, save for therapeutic doses of methadone.

53It is in your own interests to continue on this path when you are released. 
If you do not, your future prospects are likely to be bleak.

54I take into account the maximum penalties for each offence and current sentencing practices.  The principles of protection of the community and denunciation remain relevant sentencing considerations here.  The principle of totality also needs to be considered.  I have taken care not to doubly punish you for the offences.

55Given that you have committed two offences which are founded on the same facts and in effect, form part of the one course of conduct, I intend to impose an aggregate sentence.

56Balancing all of these factors as best I can, you are convicted and sentenced to an aggregate sentence of four years and six months' imprisonment.  I fix a non-parole period of two years and eight months.

57I enter in the records of the court that 402 days have been served by way of pre-sentence detention.

58I make an order for disposal of the knife as requested.  The order is not objected to.

59The declaration I make under s.6AAA is had the matter not proceeded as a plea of guilty, I would have imposed a sentence of six years with a minimum of four years.

60Is there anything further?

61MS HOLMES:  No, Your Honour.

62MS MILLAR:  No, Your Honour.

63HER HONOUR:  All right, thank you.  Ms Millar, would you like to have a quick word with Mr Peterson before he is excused?

64MS MILLAR:  I can go out the back.  That will not be a problem.

65HER HONOUR:  All right.

66MS MILLAR:  Thank you, Your Honour.

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