Director of Public Prosecutions v Pickett
[2023] VCC 1993
•2 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02360
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TASMAN PICKETT |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 October 2023 | |
DATE OF SENTENCE: | 2 November 2023 | |
CASE MAY BE CITED AS: | DPP v Pickett | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1993 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCE
Catchwords: Guilty plea – Armed robbery with firearm – Related summary offences – Category 2 offence – Mandatory sentencing regime requiring custodial sentence unless exceptions established – Whether community correction order appropriate – Whether exceptions in s5(2H)(c)(ii) and (e) Sentencing Act 1999 established – Combination of factors – Youth – Difficult childhood – Long-standing mental health issues – Vulnerability – Circumstances of offending – Firearm not capable of firing bullets or inflicting serious injury – Sole purpose of offending to obtain prescription medications – Strict bail conditions – Rehabilitation – Strong supports – Remorse – Exceptions established
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Control of Weapons Act 1990; Mental Health Act 2014; Disability Act 2006; Firearms Act 1996
Cases Cited:DPP v Doherty [2002] VSCA 213; R v Roberts (1994) 73 A Crim R 306; R v Maddocks (unreported) NSWCCA 25 November 1993; DPP v Lednar [2010] VSCA 46; Worboyes v R [2021] VSCA 169; R v Madex [2020] VSC 145; Brown v R [2020] VSCA 60; Wyka v R [2020] VSCA 104; R v Verdins (2007) 16 VR 269; Azzopardi v R (2011) 35 VR 43; R v Mills [1998] 4 VR 235; DPP v Lombardo [2022] VSCA 204; Fariah v R [2021] VSCA 213; R v Wright [1998] VSCA 84; R v Ung [2002] VSCA 101; R v Huynh [2004] VSCA 156
Sentence: Armed Robbery: three year community correction order with conviction – Related Summary Offences: convicted and fined $500 on each charge
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Burnett | Office of Public Prosecutions |
| For the Accused | Mr M. McGrath | Sales & Parsons |
HER HONOUR:
1Tasman Pickett you are before me to be sentenced in respect of one charge of armed robbery, contrary to s75A of the Crimes Act 1958, which charge is contained in Indictment No. N11876175.
2You pleaded guilty to the charge when arraigned before me on 10 October 2023.
3The maximum applicable penalty for the charge of armed robbery is 25 years’ imprisonment.
4Because the offence of armed robbery is a Category 2 offence under s3(1) of the Sentencing Act 1991, and you had with you a firearm as defined at the time of the offence, the Court must make a custodial order (other than a sentence of imprisonment in addition to making a community correction order) unless any of the criteria set out in s5(2H)(a) – (e) apply. I shall refer to this in further detail later.
5You also consented to have two related summary charges dealt with in this Court, namely:
(a) One charge of being a non-prohibited person in possession of an imitation firearm without an exemption under s8B or an approval under s8C of the Control of Weapons Act 1990, contrary to s5AB(1) of the Control of WeaponsAct (Summary Charge 2); and
(b) One charge of possessing a prohibited weapon without an exemption under s8B or an approval under s8C of the Control of Weapons Act, namely a samurai sword, contrary to s5AA of that Act (Summary Charge 3).
6You pleaded guilty to these related summary charges.
7The maximum applicable penalty for each of the related summary charges is 240 penalty units or imprisonment for two years.
Circumstances of offending
Charge 1 – Armed robbery
8The circumstances of offending are well set out in the Summary of Prosecution Opening upon Plea tendered as Exhibit A. A copy of Exhibit A will be attached to these reasons for sentence as ‘Annexure A’.
9On 22 July 2022 at 6.35 pm, you booked an Uber in your own name. You were collected from an address in Keilor and driven to the Taylors Lakes Pharmacy. At 7:12 pm you were dropped off out the front of the pharmacy in full view of CCTV cameras. After exiting the vehicle, you affixed a black mask to your face and entered the pharmacy.
10Once inside the pharmacy, you walked up to the prescription medication counter, where you reached inside your puffer jacket and produced a silver firearm, which you pointed at one of the members of staff.
11The firearm you had in your possession was an airsoft pistol, capable of discharging a 6-millimetre plastic sphere by compressed gas stored within the device. Whilst I accept that this kind of firearm was not capable of causing significant damage and the prospects of any person being seriously harmed were low, the staff members who you threatened did not know this. I should add that although it was not a weapon capable of discharging bullets, for the purpose of sentencing it is defined as a firearm as I shall later describe.
12Whilst pointing the firearm at the staff member, you shouted aggressively and demanded “OxyNorm” and “Benzos”. When you became aware of the presence of two other staff members, you pointed the firearm at them too and ordered them to “get on the ground”, which they did.
13After staff told you that the pharmacist was the only person who could access those medications which were stored in a vault, you pointed the firearm at the pharmacist and demanded that she open the vault and retrieve the medication. The pharmacist opened the vault, removed various boxes of Targin, OxyContin, OxyNorm and Endone, and handed them to you. You dropped a number of these boxes and demanded that the pharmacist pick them up for you.
14You shouted “Don’t fucking tell anyone, don’t fucking tell anyone” and walked towards the exit. You dropped a number of the boxes and picked them up again before exiting the store with the following items in your possession:
(a) Targin – 238 tablets;
(b) OxyNorm 10 milligrams – 100 capsules;
(c) OxyNorm 5 milligrams – 36 capsules;
(d) OxyNorm 20 milligrams – 58 tablets;
(e) OxyContin 15 milligrams – 28 tablets;
(f) OxyContin 10 milligrams – 56 tablets; and
(g) Endone 5 milligrams – 3 tablets.
15You ran back to your Uber with the boxes of medication and told your driver to “hurry up, hurry up”. The driver felt scared and was unsure what was happening.
16When you returned home that night, you consumed many of the medications that you had stolen during the armed robbery, using the remainder over the next week or so.[1]
[1]Exhibit 2, paragraph [45]
17Footage recovered from the CCTV cameras inside the pharmacy was played to the Court and tendered as Exhibit B.
Summary Charge 2 – possess imitation firearm without approval; Summary Charge 3 – possess prohibited weapon without approval
18On 30 August 2022, police executed a search warrant at your address and seized the following items:
(a) A black ‘Agency Glock 18’ gel blaster (Related Summary Offence – Charge 2 – Possess imitation firearm without exemption / approval); and
(b) A samurai sword (Related Summary Offence – Charge 3 – possess prohibited weapon without approval).
19Your counsel submitted that you had purchased the imitation firearm legally at a carnival in Queensland, and that the samurai sword had been given to you as a gift.
Arrest and Interview
20Following your arrest and the execution of the search warrant at your home, you were taken to Sunshine Police Station where you were interviewed in relation to the offences. You responded to questions asked of you with the answer “no comment”.
21You were granted bail on strict conditions, including a $50,000 surety to be paid by your parents. Your parents were interstate at the time and had to travel back to Melbourne to satisfy their surety obligations. As a result, you were kept in the Melbourne Custody Centre overnight.
Gravity of Offending
22It is trite to say that the crime of armed robbery is a serious offence. So much is evident from the maximum applicable penalty. It is a crime that is prevalent, as was said in Director of Public Prosecutions v Doherty:[2]
“Armed robbery is a prevalent crime in the community and courts have a considerable responsibility to send a clear message to the public that an armed robbery, whether committed on a ‘soft’ target or a ‘substantial’ target such as a bank or place where cash money is likely to be found, is likely to be visited with a stern and fitting custodial sentence.”[3]
[2][2002] VSCA 213
[3]Director of Public Prosecutions v Doherty [2002] VSCA 213 at [41]
23In R v Roberts, Lewis & McVean[4] Hunt CJ cited with approval the observations made by Wood J in R v Maddocks:[5]
“[I]t is only in the most exceptional circumstances that anything other than a non-custodial sentence should be imposed for armed robbery. Necessarily, there will be cases which constitute an exception but they will be few and far between.”
[4](1994) 73 A Crim R 306
[5]Unreported NSWCCA 25 November 1993 at 308 - 309
24Principles of general deterrence, denunciation and condemnation, and protection of the community are usually the pre-eminent sentencing considerations in cases such as this.
25How a weapon is used during an armed robbery is relevant to the assessment of the gravity of the offence. As mentioned, your weapon was, technically, deemed to be a firearm for present purposes, which you brandished but did not fire. Even so, as mentioned, your victims were unaware that your weapon was an airsoft pistol and did not know whether you would fire it.
26A pharmacy is a soft target, and that is a matter of concern.[6] It must also be noted however that you selected a soft target, not because you were interested in stealing money, but rather because you were desperate to source prescription medication, as I shall later explain. To be clear, apart from the medications that you stole, you demanded no money and took nothing else.
[6]Director of Public Prosecutions v Lednar [2010] VSCA 46
27As to the summary offence of possession of the imitation firearm, this is not the same weapon used in the armed robbery.
Impact of your offending
28No victim impact statements were tendered; however, your counsel, Mr McGrath, quite properly conceded that this would have been a terrifying experience for the members of staff who were doing no more than performing their work duties at their place of employment when you committed the armed robbery.
Plea in Mitigation
29Your counsel conceded the gravity of your offending; however, submitted that there are compelling reasons to take the exceptional course of releasing you on a community correction order. I now turn to the matters advanced in mitigation of penalty on your behalf.
Personal History
30You are currently 20 years of age, about to turn 21.
31You were born in Melbourne in 2002 and are the middle child of three children born to your parents. You have two sisters. For many years your family has run a travelling show business which has meant that you spent much of your childhood travelling the East Coast of Australia during the summer periods. In the off-season, your family maintained a home in Keilor.
32As a child, you witnessed your parents’ unhappiness with each other, and they often argued, sometimes ending their disputes with violence. Although you were not subject to this violence, your parents were strict disciplinarians. That said, they were very supportive of you.
33You had a disrupted education. You attended local primary and secondary schools, as well as boarding schools for Years 7 to 11. You also intermittently received education through the Queensland School for Travelling Show Children and the National School for Travelling Show Children.
34Your behaviour deteriorated through secondary school and you were suspended on a number of occasions. You disliked boarding school and were expelled at one point for fighting.
35During Year 11 you stayed in the family home in Keilor with an au pair while your family was travelling with their business. In 2019, you left school halfway through Year 12.
36During the COVID-19 period your parents’ business was put on hold, although they were able to travel to Queensland when restrictions were temporarily lifted. There they commenced a business of refurbishing caravans for sale.
37You joined your parents in Queensland where you helped in their business for a period of time. You eventually came to Melbourne and stayed in the family home at Keilor. This was an isolating time for you, and you abused substances to a significant degree.
38You continue to enjoy the support of your parents, your partner, relatives and friends, many of whom were present in court to support you. I note many of them are here again today.
Guilty plea
39You indicated your intention to plead guilty at the committal mention, a very early stage. A guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount. In assessing the weight to be given to your guilty plea, I take into account the following factors:
(a) the timing of your plea;
(b) you are entitled to a statutory discount because of your plea;
(c) you have avoided the cost of a trial and have spared witnesses the stress and inconvenience of giving evidence, both at committal and upon your trial;
(d) there is social utility involved in your guilty plea; and
(e) by taking this course, I accept that you have facilitated the course of justice.
40Dealing with the question of the social utility inherent in your guilty plea, I note that additional weight must be given to this factor because of the impact that COVID‑19 has had on the criminal justice system.[7]
[7] Worboyes v The Queen [2021] VSCA 169, particularly at paragraphs [34]-[39]
Relevance of COVID-19 over and above social utility
41In addition to the extra weight that your guilty plea must attract because of COVID‑19, I also take account of the potential impact that COVID-19 might have upon the service of a sentence of imprisonment, including:
(i) you may face a higher risk of contracting the disease whilst in custody;[8]
(ii) there is an increased likelihood of periods of quarantine or isolation; and
(iii) the pandemic may cause additional stress and concern for prisoners and their families, as it does for every member of the community.[9]
[8] The Queen v Madex [2020] VSC 145 at paragraphs [51]-[52]
[9] Brown v The Queen [2020] VSCA 60 at paragraph [48]
42Although there is no direct evidence before me as to the effect of any of these factors upon you, I am prepared to assume that in the current climate, they are matters to be taken into account as possibilities in your case.[10] I say this notwithstanding the fact that many, if not all, of the COVID-19 restrictions seem to have eased or been revoked, because it cannot be said that the pandemic has been eliminated in the community. Accordingly, it is possible that the service of a sentence of imprisonment may carry the risks and burdens to which I have just referred.
[10] Wyka v The Queen; Gardiner v The Queen [2020] VSCA 104
Application to have the matter heard in the Drug Court
43In view of your lengthy history of drug and medication abuse and your vulnerability should you be imprisoned, application was made on your behalf to have your case dealt with in the Drug and Alcohol Treatment Court. Your counsel submits that you would have met the criteria enabling you to have your case determined there.
44Unfortunately, through no fault on your part, because of the limited spaces available, you were placed on a “holding list” that positioned you fifth on the waiting list. Once your plea was listed for hearing in this Court, you no longer became eligible for a place in Drug Court. In fact, I caused enquiries to be made to ascertain whether a place could be offered to you; however, since your plea had commenced, it was confirmed that your name had been removed from the waiting list and you were no longer eligible.
Mental health issues
45Associate Professor Daniel Sullivan, consultant psychiatrist and adult psychiatrist, wrote a report dated 4 September 2023 which was tendered as Exhibit 2. He also gave viva voce evidence at the plea hearing consistent with his report.
46Associate Professor Sullivan was provided with a number of medical and other reports, which, in addition to his assessment of you, informed his expert opinion.
47You have a documented history of mental health problems dating back as early as 2016 when you were 14 years of age. At that time your school performance was affected by your experience of low moods, outbursts and even suicidal ideation. A paediatrician, Dr Alicia Quach, diagnosed you as suffering from complex psychosocial issues, intermittent anger outbursts, and Attention Deficit Hyperactivity Disorder (ADHD). She prescribed Ritalin to manage your ADHD symptoms and impulse control.
48In 2017, at age 15 you were prescribed Concerta for your ADHD and were managing your emotions with the help of a psychologist.
49Through 2018 you continued to see a paediatrician, Dr Trusha Brys, for the ongoing management of your ADHD and also for depression.
50In May 2019, Dr Brys noted that you were also being co-managed by a psychiatrist, Dr Begic, and that at this time you were prescribed Concerta for your ADHD and fluoxetine for depression.
51Despite all of these mental health challenges, you were described as polite, caring, empathetic and intelligent.
52Unfortunately, your struggles led you to substance abuse including use of cocaine, MDMA, nitrous oxide, and daily cannabis use.
53By mid-2020 you had moved to Queensland to join your parents. You engaged with the Logan Child and Youth Mental Health Services whilst also continuing to seek medication management from Dr Thomas, your psychiatrist.
54In the period May to October 2020 you were twice admitted to the Western Health Emergency Department for psychiatric episodes. You reported having auditory hallucinations, suffering paranoia and suffering the effects of significant substance abuse. You were admitted for assessment and management for drug-induced psychosis. During this period, you were living away from your parents. You were then living with your partner and sister in Keilor.
55In 2020 you commenced seeing Dr Naveen Thomas, psychiatrist, and were taking prescription medication, Seroquel, which had negative side-effects on you. There were a number of admissions to the Sunshine Hospital Psychiatric Unit due to your drug psychosis.
56In November 2021, when you were aged 19 years, you attended your general practitioner, Dr Nitin Mathur, reporting episodes of feeling detached and incoherent, denying that substance abuse was the cause. By early 2022, however, Dr Thomas reported that you were doing well with no evidence of psychotic symptoms or risk issues.
57You then had problems with employment, and by June 2022 you had resumed substance abuse including cannabis, codeine and benzodiazepines. At this time you attempted rehabilitation but did not complete treatment.
58As of July 2022, you were trapped in a cycle of substance abuse including cannabis, codeine, and alcohol.
Substance Use History
59You have a severe substance-use disorder, as noted in Associate Professor Sullivan’s report.[11]
[11]Exhibit 2
60You first drank alcohol at age 10 and began drinking more regularly at the age of 13. Prior to your apprehension you were drinking eight to 10 drinks in a session, although you have since ceased drinking heavily. You denied having any problems with alcohol when assessed by Associate Professor Sullivan.
61You reported smoking cigarettes from the age of 13 and vaping from the age of 16. You used cannabis from age 14 to 19 because of its relaxing effect, and were smoking at most a one quarter ounce per day. You have since stopped smoking because you developed psychosis. You used ecstasy regularly on weekends from the age of 16.
62You reported trying amphetamine on one occasion and cocaine approximately ten times when you were aged 17. You also tried hallucinogens DMT and 2C‑B on one occasion each, LSD twice, and magic mushrooms once. You have also tried ketamine six times.
63Most notably, you reported to Associate Professor Sullivan that when you were 16 you inhaled 300 to 400 nitrous oxide bulbs per day over a one-month period. You experienced neurological side-effects including numbness and tingling, which was related to a vitamin B12 depletion which causes subacute combined degeneration of the spinal cord. You also reported inhaling deodorant and paint when in the acute stage of withdrawal in an inpatient residential rehabilitation program.
64You also tried a number of benzodiazepines from age 15, including Valium, Rivotril, and Xanax, and used these in binge doses of approximately five to 10 times the recommended daily maximum. You also have taken oxycodone in doses of up to 240 milligrams and acknowledged a dependency on that drug. You abused other pharmaceutical opioids around age 17 and were purchasing pharmaceutical drugs on the street or through the “dark web”. You acknowledged that you were addicted to these drugs by the time you were aged approximately 15 years.
65You have previously tried long-acting injectable forms of buprenorphine to control your addition, but you did not feel that it helped, and were instead maintained on oral forms of buprenorphine. You abused it once by injecting it.
66You have undergone a number of rehabilitation attempts with varying success. Relevantly, at the time of offending you had recently left a rehabilitation program at Noosa Confidential and then immediately after entered into the Raymond Hader Clinic to address your substance-abuse problems, although you were discharged just over one week later because of your “unacceptable behaviour”.[12] Since being released on bail you have participated in many programs, including drug rehabilitation, which have proved to be particularly beneficial for you. You have not used any substances since being on bail, as is evidenced by your drug screens.[13]
[12]Exhibit 2, paragraph [55(b)]
[13]Exhibit 7. Further screens were tendered this day, confirming abstinence from illicit or unprescribed medications. These were added to exhibit 7
Medical and Psychiatric History
67You were diagnosed with ADHD at age 13 and were prescribed various medications to treat this, including Ritalin/Concerta, Catapres, phenytoin, and Vyvanse. You took these medications without abusing them; however, the medications were stopped when it was thought that they were contributing to the psychosis you experienced. Your psychiatrist wanted to trial you on a non‑stimulant ADHD medication (atomoxetine).
68Your drug-induced psychosis included delusional beliefs that your dog was an alien, that you were under supervision, and that you were the second coming of Jesus Christ. You also experienced auditory hallucinations of your own voice, ideas of reference, and believed that various events around you bore personal significance. These episodes led to your admission as an inpatient at mental health units.
69At age 14 you were diagnosed with depression and were treated with a number of antidepressants including Prozac, Lexapro, Avanza and currently Valdoxan. Under this treatment your mood is “currently good” with a baseline of 5/10 (with 10 being excellent and 0 being poor mood). You have also had suicidal thoughts in the past, which you have acted on by taking overdoses.
70Currently you are taking the following medication to treat your various psychiatric and substance-use symptoms:
(a) Zyprexa (olanzapine), an antipsychotic medication;
(b) Topamax (topiramate), an anti-epileptic drug that can also be used as a mood stabiliser;
(c) Valdoxan (agomelatine), an antidepressant;
(d) Melatonin, to induce sleep; and
(e) Buprenorphine, a prescription opioid substitute.
Verdins[14] factors
[14]The Queen v Verdins; The Queen v Buckley; The Queen v Vo (2007) 16 VR 269
71A report prepared by Dr Naveen Thomas, consultant psychiatrist, dated 22 September 2023, was tendered as Exhibit 3.
72Dr Thomas has been your treating psychiatrist since March 2020. He notes that in addition to his treatment of you, you have also availed yourself of inpatient and outpatient care from recognised public mental health institutions.
73Dr Thomas reported:
“Over the past three years, Mr Pickett has availed treatment from both private institutions and public mental health entities. Furthermore, he has been under the care of Orygen Youth Mental Health Services. It’s also noteworthy that Mr Pickett has had instances of admissions to emergency mental health facilities as well as acute psychiatric services. Presently, he maintains compliance with his prescribed regimen, inclusive of monthly consultations, bi-weekly Urine Drug Screening, and regular appointments with his Suboxone prescriber. His current pharmaceutical prescriptions include Olanzapine 15mg at night (as an antipsychotic), Topiramate 50mg at night (an antiepileptic), Melatonin 2mg at night (a sleep aid), Agomelatine 50mg at night (an antidepressant), and a daily dose of Suboxone 16mg as part of an opioid replacement therapy. These medications collectively address his psychosis, impulsivity, depression, and opioid dependence.
...
During my most recent evaluation of Mr Pickett on 11th September 2023, I can attest that he currently exhibits abstinence from substances, inclusive of amphetamines, opioids, and cannabis. The Urine Drug Screen (UDS) conducted on 7th September 2023 corroborates this, revealing negative results for all tested substances, including Benzodiazepines. Mr Pickett is demonstrably motivated to maintain this sobriety. He is under a regimen of Suboxone, administered at 16mg daily, and remains consistent in his appointments with the associated prescriber. His mood is notably stable, and he exhibits no manifestations of hallucinations, delusions, anger, or irritability. Although he reports satisfactory sleep patterns, he continues to grapple with occasional nightmares. On the therapeutic front, he is diligent in his sessions and is currently prescribed Olanzapine 15mg, Topiramate 50mg, and Agomelatine 50mg nocte, tailored to address drug-induced psychosis, impulsivity, and depression, respectively, alongside Circadin (Melatonin) 2mg at night. He refrains from alcohol consumption, presents no discernible risks, and maintains regularity with mandated therapist visits, police bail checks, and interactions with his youth justice worker. Furthermore, he enjoys a stable relationship with his girlfriend.
…
Mr Pickett consistently attends his scheduled appointments and exhibits adherence to the prescribed management plan, which encompasses pharmacological treatment and routine Urine Drug Screening. At present, he remains abstinent from all forms of illicit substances. Previously, there were instances of positive readings for benzodiazepines in Urine Drug Screening; however, these findings are congruent with the Diazepam prescription Mr Pickett received from his General Practitioner during that period.
…
... He expresses profound remorse for his actions and possesses a clear understanding of the trauma his deeds may have inflicted upon the pharmacist.
…
The prognosis for Mr Pickett appears to be favourable, contingent upon his continued compliance with the current treatment regimen. Additionally, sustained supervision and therapeutic interventions from various specialists, akin to what he is currently receiving, are deemed essential for his ongoing well-being.
…
Participation in legal proceedings inherently introduces elements of unpredictability and stress. Given Mr Pickett’s mental health vulnerabilities, such factors could significantly exacerbate his condition. Further, incarceration could seriously jeopardize his mental well-being. The associated challenges of confinement, combined with potential isolation, are of particular concern for his psychological state, especially in light of his extensive psychiatric history, which includes Psychosis, Major Depressive Disorder, and Attention Deficit Hyperactivity Disorder.”[15]
[15]Exhibit 3 pages 2 - 5
74Associate Professor Sullivan expressed the following opinions and recommendations:
“[67]Mr Pickett has a severe substance use disorder, which has variously involved nicotine, alcohol, cannabis, stimulants, inhalants, benzodiazepines, and opiates. He has previously attempted inpatient rehabilitation stays with varying success, but subsequent relapse. Mr Pickett has, however, responded well to bail conditions, with stringent monitoring and ongoing counselling combined with pharmacotherapy, including an opioid blocker.
[68]Mr Pickett was diagnosed in childhood with attention deficit hyperactivity disorder. He reports some attenuation of symptoms. Previous treatment with stimulants was initially described as positive, but more recently has been accompanied by psychosis or abuse of medication. Although he reports mild ongoing symptoms, these do not appear strongly associated with clinically significant impairment. It is likely that the risks of ongoing treatment with stimulants outweigh the benefits.
[69]Mr Pickett has experienced psychotic episodes induced by the use of methamphetamine and cannabis. These have required involuntary hospital admission and treatment with antipsychotic medication. Currently he is on a moderate dose of a potent antipsychotic medication and reports complete resolution of symptoms. He is at risk of further episodes should he relapse into substance use. The appropriate diagnosis is of past recurrent substance-induced psychotic episodes.
[70]Mr Pickett reports features of anxiety and depression, and when younger had significant problems with emotional regulation, manifest in intermittent suicidality, angry outbursts, and unstable mood. Given his substance use at the time, it is difficult to determine whether this reflected underlying mood disorder, emotional dysregulation, or the acute and chronic effects of high level substance use.
[71]He reported subjective anxiety during our interview, but this did not appear to impede his capacity to provide clear and comprehensive details about his life history. I note that he is prescribed antidepressant and mood stabilising medication and reports benefit from these. Although he may have an underlying anxiety or mood disorder, this would appear currently well-controlled on current medication. I consider the most appropriate diagnosis is recurrent depressive disorder, with anxious distress, currently in substantial remission.
[72]I am not convinced that there is strong evidence for borderline personality disorder or other personality disorder diagnosis. These features occurred during a fragile developmental stage, and during a period of high-level substance use. With current abstinence, he reports attenuation of emotional dysregulation and increased stability of mood. My clinical impression and the collateral information did not suggest prominent and persistent traits of personality disorder. Furthermore, it does not appear that Mr Pickett would have met a diagnosis of conduct disorder in childhood.
[73]At the time of the offence Mr Pickett had been engaging in high levels of substance use, and judging by his presentation to the general practitioner earlier that day, was in withdrawal from benzodiazepines and was craving these. He was abusing non-prescribed alprazolam, a potent short-acting benzodiazepine which is consequently highly addictive. Although adverse childhood experiences and mood disorder may have predisposed him to substance use, this was not directly causally associated with the offences, but served to disinhibit Mr Pickett, and impair his judgement and ability to think clearly and make calm and rational choices.
[74]I do not consider that any other mental disorder was associated with the offending.
[75]I consider that due to his history of significant mood disorder and poor emotional regulation, incarceration will weigh more heavily on Mr Pickett. Incarceration will reduce his capacity to use coping strategies to maintain stable mood and he is at markedly increased risk of deteriorated mental state as a consequence.
[76]Mr Pickett has made exemplary progress on bail, and it is noted that he has little previous contact with the criminal justice system. He is well-engaged with clinicians and appears motivated to maintain abstinence from substance use and improve his mental health and wellbeing.
[77]He requires ongoing drug and alcohol counselling and support, and is advised to continue buprenorphine until he has been abstinent without correctional oversight for some time, and feels able to maintain abstinence.
[78]Mr Pickett would benefit from psychological and wellbeing based initiatives to improve his mental health and functioning, and to provide him with vocational skills and opportunities which may enhance prospects of future employment.
[79]If community disposition is available, it is clear that Mr Pickett has benefited from bail conditions, and this has provided an external coercive framework, which has enabled him to address his substance use problems effectively for the first time in his life.
[80]In the event of a custodial disposition, his medication should be continued. He will require psychiatric review, and should receive continuing attention to substance use, as he will be at increased risk of relapse in a custodial setting. He should continue on opioid substitution therapy.
[81]I do consider that Mr Pickett will be highly vulnerable in adult custody due to his very youthful appearance, relatively small stature, and lack of previous exposure to the criminal justice system.”
75As mentioned, in his oral evidence, Associate Professor Sullivan confirmed the contents of his report. He testified that, if imprisoned, you would have access to your medications; however, access to other forms of treatment cannot be guaranteed.
76I accept the evidence of both Dr Thomas and Associate Professor Sullivan. In short, I accept that your judgment was impaired at the time of offending, but not by reason of a mental health condition. I also accept that you would be vulnerable in prison by reason of your youth and youthful appearance. Your mental health conditions would make prison more onerous for you than it would for another offender unburdened with these problems. I also accept Dr Thomas’ opinion that your mental health conditions may be exacerbated should you be imprisoned.
Prior Criminal History
77It is to your credit that despite all of your problems, apart from receiving a caution in the Parramatta Children’s Court, it appears that you have never been in trouble with the law. Certainly you have no prior convictions and fall to be sentenced as a person of prior good character.
Reasons for Offending
78I accept that your reason for offending was because of a decline in your mental health and your increased overuse of prescription medications and other substances.
79The day before you committed the armed robbery, you were prescribed diazepam 5 milligrams (Antenex tablets x10) by your general practitioner. The next day, you attempted to obtain a further prescription from a different doctor who declined your request.
80You told your drug and alcohol counsellor, Ms Karly Doyle, that after exhausting your prescribed supply, you became “really desperate”.[16]
[16]Exhibit 4
81As mentioned earlier, when you committed the armed robbery, the only thing you stole was prescription medication for your personal use. When you returned home you began ingesting these medications immediately.
References tendered in support
82The following reference letters were tendered on your behalf:
(a) Letter of Justine and Tasman Pickett (your parents) dated 3 October 2023;
(b) Letter of Emily Pickett (your grandmother) dated 3 October 2023;
(c) Letter of Dekoda Bell-Pickett (your sister) dated 3 October 2023;
(d) Letter of Saara Reid (your partner) dated 3 October 2023;
(e) Letter of Nicole Reid (your partner’s mother) dated 4 October 2023; and
(f) Letter of Greg Webster (a family friend) dated 3 October 2023.
83In their letter to the Court, your parents, Justine and Tasman Pickett, wrote:[17]
“Since the offence Tasman has spoken to us many times about how much regret, shame and remorse he feels about his actions. He often speaks of the staff members at the pharmacy and gets really upset with himself for how he may have affected their lives. ... He beats himself up everyday wishing he could take back what he did.
...
Tasman has attended 3 rehabilitation clinics by his own volition. They have not assisted, and we noticed that they focused on prescribing more medication and when Tasman got agitated and reacted from it, they made him leave. At the time of the offending, Tasman was so heavily drug affected that his actions were of a complete incompetent unintelligent person. This is not how I would describe our son – even on a bad day. Since August 2022 I have observed Tasman improve immensely. Particularly since he started the opioid replacement therapy in March this year, I now feel like I can sleep at night and am again comfortable leaving him at home to go on the road for work. His father and I are so proud of his progress and dedication with sticking to the treatment and strict bail conditions despite how onerous it has been. We speak every day sometimes a few times and I’m constantly impressed at how motivated he is now even just by the little things like how he’s keeping the house so clean, cooking his own meals & especially that he’s regularly washing his own laundry. It may seem strange, but these are all things that he couldn’t manage before, not because he was lazy but because he was in such a bad place mentally for so long. It’s been very difficult to watch someone you love slip away and no matter how much effort we’ve put in or how many times we’ve reached out for help - we felt like our hands were tied. It’s taken years, but I truly believe Tasman now has the support network he’s always needed. I know Tasman is committed to maintaining & participating in this treatment. He was the one who suggested it originally. It’s a shame it’s taken this long to find the right Doctors, it’s been a tireless process.”
[17]Exhibit 8
84In her letter to the Court your grandmother, Emily Pickett, wrote:[18]
“Tasman was living at my property when the offence occurred. ... Unfortunately, his condition got worse, and I was away in New Zealand attending a funeral at the time, I wish I had taken Tasman with me to New Zealand as he has lot more family over there too and I often think that things may have turned out differently if I had. ... When Tasman speaks about the offence he always gets upset as he’s told me he’s very ashamed of what he did, and I can see the regret and remorse he feels. ... I’ve seen a huge improvement not only since he started on the new Opioid replacement treatment, but since his family has returned and he has resumed working around them all. Tasman is much happier in himself, looks healthier and has gained some self-confidence back.”
[18]Exhibit 9
85In an additional letter dated 30 October 2023, tendered this day as Exhibit 16, your grandmother wrote of your continuing assistance to her since her last letter.
86In her letter, your older sister, Dekoda Bell-Pickett, wrote:[19]
“I drove from home from Old [scil. Qld] to be with him during the last COVID lockdown but he was already in a terrible mental state & getting support was impossible then. I tried to be there for him & help him through it, his girlfriend Saara was there as often as she could be but it was a very difficult time and conditions were so strict it was stressful for everyone. Tasman took a turn for the worse & I had to call 000 where he was then hospitalised with psychosis. Nobody could even enter the hospital to visit him.
Mum & Dad drove straight home from Qld. His addiction got worse after this and he reached out for help a few times, but eventually would end up getting released early from each rehab facility. At the time of the offence he was living at our Grandma’s property as he’d recently been discharged from a treatment program, shortly after he got worse again and couldn’t make a good decision if he wanted to. Then he put himself back into rehab only to be discharged again 2 weeks later.
…
I can honestly say that since he started the new opioid replacement medication, he’s made huge improvements and we are all so relieved and proud of him. He talks to me a lot and he tells me how much regret he feels about what he did & how humiliating it is for him. Tasman feels a lot of remorse for the people who worked at the pharmacy, he has said to me a few times he wishes he could take it back. He wants so much to get better and I know he will continue to push through with this treatment because it’s already working for him, we see it every day. He’s doing things that he hasn’t done in years and laughing again and most of all, he looks & sounds like my brother again. I felt like I lost him for a long time, but I feel now that he’s back.”
[19]Exhibit 10
87Your girlfriend of nearly four years, Saara Reid, observed:[20]
“Tasman struggled greatly with his mental health during our long Covid-19 lockdowns. It became a part of his every day routine to forget and push down the battle he was fighting within himself, and sadly, struggled with addiction in result of that It became a lifestyle drat I would not wish upon anybody. We were both very young at the time where I saw his addiction start to consume his life
...
Since the difficult addiction period and the offending, he has had ongoing tremendous support from family and friends who have helped him get back on his feet. Tasman attends all of his drug counselling appointments; medical appointments and he has abided by his bail conditions perfectly.
...
Since Tasman has been undergoing new psychological and medical treatments after the offending, I can truly say that I have never seen him thrive like I have now. I have spent the most time with him over anybody in the last 4 years and the emotion and vulnerability that he has shown since opening up to me recently, shows that he is extremely remorseful and sorry that he allowed this offending to happen. His true nature has bear drown immensely and I am so proud of how far he has pushed himself to become a better man, not just for his family and I, but for himself as well.”
[20]Exhibit 11
88In her letter to the Court, your girlfriend’s mother, Nicole Reid, wrote:[21]
“Tasman has always shown great remorse during emotional conversations where he reflects on the regret of his actions.
...
Since the offence Tasman has abided by the restrictions in place and I have noticed his personal wellbeing has progressed significantly and his self-confidence has improved.
Tas visits more regularly, is eager to go on outings and help around the house since being arrested and undergoing treatment.
I truly believe Tasman will continue to thrive and in time put this behind him as a mistake with lessons learned.”
[21]Exhibit 12
89Finally, in his letter, Greg Webster, a close family friend of over 25 years, wrote:[22]
“I did notice his personal challenges impact him, particularly during his time of the offending. I saw that it affected his decision-making and behaviour. I saw it affect his family life and relationship with his friends.
...
I am aware of Tasman seeking help and treatment and I believe it has provided clarity to his decision-making as well as providing significant improvement in his behaviour and well-being. I am confident that he will continue to improve and has all the support around him to ensure it happens. Tasman has spoken of the offence in my company with his parents and I have witnessed true remorse and regret when he speaks of it. I know he feels ashamed of what he did.”
[22]Exhibit 13
90It is evident from these references that you enjoy the support of your friends and family and have done so throughout your life. It is also evident that your mental health and substance-use issues have been affecting you for a number of years. No doubt this was exacerbated by the COVID-19 lockdowns, and, despite your friends and family doing their best to support you, you were not in a state to benefit from rehabilitation measures presented to address your mental health and substance-abuse problems that underpin this offending.
91These references shed light on the attempts made by you and your parents to obtain the support that you needed. From an early age you were under the care of doctors and psychiatrists who, at times, prescribed medications that only made things worse for you, mentally. During COVID-19 you were hospitalised with drug-induced psychosis, and your parents wrote that you were turned away when seeking help for this. You also attended three rehabilitation clinics on your own volition; however, they did not assist, and instead prescribed additional medication that also had an adverse reaction upon you. You were asked to leave these rehabilitation clinics early, and did not receive the support that you sought and required.
92What stands out is that the reference letters all note the marked change in you since you have availed yourself of the bail supports offered to you, including drug counselling and opioid-replacement therapy. It is clear that you have made significant progress in your rehabilitation since the offending and continue to do so. I commend your efforts and commitment to treatment and rehabilitation.
93The reference letters all note the extreme remorse that you have expressed for your actions. You have taken responsibility for what you have done, and clearly feel shame and regret for the choices you have made. You have also demonstrated victim empathy, acknowledging the impact that your offending has had on your victims. I accept that you wish you could take back the terrible thing that you have done.
Delay
94It has now been over 15 months since you committed the armed robbery. In that time you have stayed out of further trouble, and you have participated enthusiastically and diligently in all of the programs and treatments set in place to promote your rehabilitation and address your mental health and substance-abuse issues.
95In short, you have used the period of delay wisely.
Prospects for rehabilitation
Bail Progress Report dated 6 October 2023[23]
[23]Exhibit 14
96You were released on bail with strict conditions, which included reporting conditions three times a week, a residence condition, curfew, a condition that you abstain from using drugs of dependence, and to obey all lawful directions of Youth Justice.
97A Supervised Bail Progress Report dated 6 October 2023 was tendered as Exhibit 14. The report states:
“PROGRESS ON SUPERVISED BAIL
On 30 August 2022, Mr Pickett appeared before the Melbourne Magistrates’ Court, in relation to matters of Informant D’Agostino. On this day, Mr Pickett was granted bail of his own undertaking to give him the opportunity to engage in a Youth Justice Bail Suitability assessment, to return to court on 29 September 2022.
On 29 September 2022, he was granted Supervised Bail with Youth Justice. Mr Pickett appeared before the Court, where his Supervised Bail was extended with the same conditions on 22 November, 13 December 2022 and 23 June 2023. These matters return before the Court on 10 October 2023 for sentencing.
Since his last Court appearance, Mr Pickett has attended 7 of 7 scheduled Youth Justice appointments fortnightly.
Throughout the current bail period, Mr Pickett has continued to comply with the expectations required by Youth Justice, maintained consistent contact with his Youth Justice Case Manager and continued to engage in meaningful discussions. Mr Pickett remains polite and forthcoming throughout discussions held in scheduled Youth Justice appointments.
During the current bail period, Mr Pickett maintains he has been following all bail conditions and has not been in involved in further police contact. Youth Justice have not received any indication or reports from Victoria Police of Mr Pickett failing to comply with bail conditions.
...
SUMMARY
Mr Pickett appears before the County Court in relation to matters of Informant D’Agostino in which he is currently subject to Supervised Bail. Since his last Court appearance, Mr Pickett has continued to comply with the requirements and interventions brought forward by Youth Justice. Mr Pickett remains on fortnightly supervision appointments with Youth Justice due to ongoing positive compliance. Mr Pickett has successfully attended 7 of 7 scheduled appointments facilitated by Youth Justice and continues to comply with bail conditions.
Mr Pickett engaged in employment from 18 September 2023 to 1 October 2023 at the Melbourne Show with his families carnival business. Currently, Mr Pickett is focusing on establishing a clothing brand. Mr Pickett continues to access private mental heath and AOD support through support through Mr McKay, and private AOD support through Dr Ghadi, Ms Doyle and Dr Thomas.
Youth Justice respectfully recommends Mr Pickett no longer requires the assistance of the Youth Justice Supervised Bail Service due to ongoing compliance, access to private mental health and AOD supports, as well as a supportive family.”
(Sic)
Ms Karly Doyle
98A report from Ms Karly Doyle, forensic clinician and mental health social worker of Ontrack Counselling and Consulting, dated 28 September 2023, was tendered as Exhibit 4. Ms Doyle confirmed that you have been open in your sessions with her, that you have insight into the reasons for your offending, that you have expressed remorse and shame for what you have done, and that you have made excellent progress under your bail conditions. Ms Doyle reported:
“I can confirm that Mr Pickett’s attendance has been commendable. During our time together, he engaged well, whilst presenting with a positive demeanour and demonstrating insight and self-reflection. Mr Pickett welcomed treatment and at no point did he attempt to minimise his actions and/or behaviour regarding his substance use or the current matters before the Court. Mr Pickett expressed a commitment to treatment, in order to continue to make personal gains and better understand himself and his behaviours.
...
Mr Pickett acknowledged the immense detrimental impact of his substance use and he described being incredibly embarrassed and ashamed of his actions and behaviour. He was able to identify the negative impacts of substance use on his day to day life, mental health, relationships, legal status and employment prospects. He explained that he was working hard in attempts to regain the trust of his family and he did not wish to cause them any further pain or embarrassment. He reported a commitment to abstinence and I believe that he has been undergoing regular supervised urine drug screens through Melbourne Pathology in Gladstone Park.
Mr Pickett had struggled with mental health issues for many years. He noted that he had been diagnosed with ADHD, in addition to depression and he had also experienced episodes of psychosis. He noted that he had engaged in treatment through Orygen Youth Health and further, he had also been admitted into the Sunshine Hospital’s psychiatric unit on two occasions. During our time together, Mr Pickett noted that he regularly attended appointments with his specialists and further, that he took all medications as directed. He believed that the opiate replacement therapy prescribed by Dr Gadi assisted with cravings and urges, whilst he felt stable on medications prescribed by psychiatrist, Dr Thomas.
Mr Pickett presented with many supports and protective factors. He described sharing supportive relationships with his immediate family, consisting of his parents and two sisters. He was also supported by his partner, whom he described as a positive and loving influence. He had stable accommodation in Keilor, where he lived with his parents and sisters. Mr Pickett presented with strong employment prospects and he had worked in the carnival industry for many years with his family. Over the last 14 months, he had been committed to creating positive routines, complying with all legal obligations and maintaining positive mental health. Looking to the future, Mr Pickett stated that he wished to engage in further study, achieve financial independence whilst progressing his career and further strengthening family bonds.
Mr Pickett has expressed a commitment to our sessions and I welcome the opportunity to continue to work with him.”
99Ms Doyle gave evidence before me. She confirmed the contents of her report and stressed that you have expressed shame, embarrassment and regret, noting the impact that your offending has had and will continue to have on your family.
100Ms Doyle testified that you are scared of going to jail. Should you be released on a community correction order, Ms Doyle would continue to work with you.
101Ms Doyle wrote an additional report dated 31 October, tendered this day as Exhibit 15. The report confirms your ongoing participation in rehabilitation sessions since her last report.
Mr Bradley McKay
102A report from Mr Bradley McKay, counsellor of Titan Counselling Consultancy, dated 23 July 2023, was tendered as Exhibit 5. The report notes that you attended eight sessions of counselling. Mr McKay stated that your treatment:
“... centred around solution focused therapy, which had the aim of working towards identifying healthy coping strategies for Tasman’s stress and anger responses. The counselling incorporated Cognitive Behavioural Therapy (CBT) which targeted Tasman’s maladaptive thinking patterns. In addition to the CBT, motivational interviewing was used which aimed at increasing Tasman’s desire for change and to create more positive behaviours independently.
Tasman maintained engagement throughout the treatment over the eight sessions. He consistently attended the scheduled appointments on time and was an active participant in each session. He showed a desire to work collaboratively to build towards his goals.
From my observations based on the sessions completed, Tasman has shown competency to complete the assigned work and be an active participant in the therapeutic process. He demonstrated a willingness to work toward his goals, however I had made the recommendation that he would benefit more from targeted specialised drug and alcohol support program/counselling.
On the recent session of the 10/07/23 Tasman had advised me that he had acquired an AOD counsellor which was one of the goals we had previously set. As such I have worked with Tasman to organise a handover with his new AOD counsellor to maintain consistency in his therapeutic work and ensure a smooth transition.”
Your sworn evidence before the Court
103You gave sworn evidence before me. I agree with Associate Professor Sullivan’s opinion that you appear very young and are of slight build.
104You frankly conceded the gravity of your offending. You stated that you wished you could apologise, but you could not do so because there was a condition of your bail that prevented you from making contact with the victims of your crime.
105You said that what you did was disgusting, terrifying for the victims, and could lead to them suffering from nightmares. You said “I’m truly sorry, it’s not who I really am.”
106You confirmed that you have been compliant with your medications and all treatment requirements, including attendances at your psychiatrist. You appreciated that you might be sent to prison; however, if offered the opportunity of a community correction order you would comply with all conditions imposed.
107You disclosed that drugs became a problem for you when you are aged about 16 years. You outlined all the different forms of illicit substances and prescription medications that you have abused.
108You referred to your previous thoughts of suicide and the many attempts you have made at rehabilitation, even before this offending.
109With the assistance of healthcare professionals and because of your compliance with the terms of your strict bail conditions, at present you feel that you are now the best you have ever been. It is your hope to start a family and to one day have your own business.
Remorse
110Based on all of the evidence before me, I am satisfied that you are truly remorseful for what you have done. Moreover, you have gained insight into the reasons for your offending, and you are committed to regaining your mental health and abstaining from illicit drugs and only using prescribed medications in accordance with doctors’ directions.
111I am satisfied that your prospects for rehabilitation are very good.
Youth
112At the time of offending you were aged 19 years and eight months. You are still considered to be a young offender, because as at today, the day of sentence, you are under the age of 21 years.[24]
[24]See definition of “young offender” s3(1) Sentencing Act 1991
113As a young offender, your rehabilitation is an important sentencing consideration.[25]
[25]R v Mills [1998] 4 VR 235; Azzopardi v The Queen (2011) 35 VR 43 at [34] – [36]
114In Azzopardi v The Queen[26] the Court of Appeal observed:
[26](2011) 35 VR 43 at [34] – [37]
“Sentencing principles concerning youth
34 There are a number of considerations which underlie the general primacy of an offender’s youth as a sentencing consideration. First, young offenders being immature are therefore “more prone to ill‑considered or rash decisions”. They “may lack the degree of insight, judgment and self-control that is possessed by an adult”. They may not fully appreciate the nature, seriousness and consequences of their criminal conduct. As Vincent JA explained in Director of Public Prosecutions v SJK and GAS:
In the case of young people, to some extent, the law incorporates an acknowledgment of aspects of immaturity. By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and real consequences of the offending actions. However, it does not follow that this is always the situation or that, as teenagers, offenders cannot be held appropriately accountable for their conduct in engaging in serious criminal activity.
35 Secondly, courts “recognise the potential for young offenders to be redeemed and rehabilitated”. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders, “is one of the great objectives of the criminal law”. The added emphasis for the purposes of sentencing on realisation of a young offender’s potential to be rehabilitated is further justified because of the community’s interest in such rehabilitation, not only at a theoretical level, but because the effective rehabilitation of a young offender protects the community from further offending. As stated in R v Lam:
A primary objective of the criminal justice system is to achieve crime prevention to protect the public. The rehabilitation of an offender should not be seen as a consideration inimical to that objective. Crime prevention to protect the public and the rehabilitation of the offender are interlinked objectives. In sentencing there is thus a broad public interest in taking into account the youth of the offender.
36 Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community. As Fox J stated in R v Dixon:
The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals …
When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.
37 It is helpful to briefly examine how these considerations are affected where the crimes have been particularly serious or persistent. In the case of R v Mills, this court stated the following general propositions about sentencing youthful offenders as correct:
i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii. A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s 5(4) of the Sentencing Act.)
In addition, Batt JA observed:
… to say of a violent crime that it requires a sentence effecting the purpose of general and specific deterrence is not to show that the case is other than the “usual” for the purpose of the above propositions.”
115The Court of Appeal has also emphasised that application of the principles enunciated in Mills will depend on the circumstances of each case.[27] Sometimes the primacy of rehabilitation of a youthful offender must “take a back seat” to other sentencing considerations,[28] such as where the offence is extremely serious and is the kind of crime where youthful offending is prevalent. Similarly, the importance of youth may be of less relevance when there is little evidence of remorse and when there are no reasonable prospects of rehabilitation.[29] Where, however, “there remains a realistic prospect of a lenient sentencing disposition facilitating the processes of rehabilitation, the youth of the offender is likely to remain of first importance.”[30]
[27]Azzopardi, supra [38] – [40]
[28]R v Wright [1998] VSCA 84, [6]; R v Ung [2002] VSCA 101
[29]Azzopardi, supra at [38]
[30]Azzopardi, supra at [38] citing with approval the observations of Nettle JA (as his Honour then was) in R v Huynh [2004] VSCA 156
116After examining a number of authorities on the relevance of youth as a sentencing consideration, in Azzopardi the Court of Appeal concluded:
“Conclusion
44 The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.”[31]
[31]Azzopardi, supra at [44], citations omitted
Mandatory Provisions and Relevant Authorities
117Because you committed the armed robbery whilst in possession of a firearm, you fall to be sentenced in accordance with the mandatory sentencing provisions contained in the Sentencing Act 1991.
118Sections 5(2H), 5(2HA), 5(2HB) and 5(2HC) of the Sentencing Act relevantly provide:
“(2H)In sentencing an offender for a category 2 offence, a court must make an order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless—
…
(c)the offender proves on the balance of probabilities that—
(i)subject to subsection (2HA), at the time of the commission of the offence, he or she had impaired mental functioning that is causally linked to the commission of the offence and substantially and materially reduces the offender’s culpability; or
(ii)the offender has impaired mental functioning that would result in the offender being subject to substantially and materially greater than the ordinary burden or risks of imprisonment; or
…
(e)there are exceptional and compelling circumstances that are exceptional and rare and that justify not making an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
(2HA)Subsection (2H)(c)(i) does not apply to impaired mental functioning caused substantially by self‑induced intoxication.
(2HB)In subsections (2GA), (2GC), (2H) and (2HA)—
impaired mental functioning has the same meaning as in section 10A;
self-induced intoxication has the same meaning as in section 322T(5) and (6) of the Crimes Act 1958.
(2HC)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court—
(a)must regard general deterrence and denunciation of the offender’s conduct as having greater importance than the other purposes set out in section 5(1); and
(b)must give less weight to the personal circumstances of the offender than to other matters such as the nature and gravity of the offence; and
(c)must not have regard to—
(i)the offender’s previous good character (other than an absence of previous convictions or findings of guilt); or
(ii)an early guilty plea; or
(iii)prospects of rehabilitation; or
(iv)parity with other sentences.”
119Section 5(2I) provides:
“(2I)In determining whether there are substantial and compelling circumstances under subsection (2H)(e), the court must have regard to—
(a)the Parliament’s intention that in sentencing an offender for a category 2 offence only an order under Division 2 of Part 3 (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) should ordinarily be made; and
(b)whether the cumulative impact of the circumstances of the case would justify a departure from such a sentence.
120Sections 5(3) and 5(4) provide:
“(3)Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed.
(4) Subject to subsections (2G), (2GA) and (2H), a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.”
121As the Court of Appeal observed in Director of Public Prosecutions v Lombardo:[32]
“[20]These provisions qualify the sentencing principles of proportionality and parsimony, which ordinarily require that a court not impose a sentence more severe than is necessary to achieve the purposes for which the sentence is imposed, and not impose a sentence of confinement unless those purposes cannot be achieved without doing so.”[33]
[32][2022] VSCA 204
[33]Director of Public Prosecutions v Lombardo [2022] VSCA 204 at [20]
122Section 10A defines “impaired mental functioning:”
“impaired mental functioning means—
(a)a mental illness within the meaning of the Mental Health Act 2014; or
(b)an intellectual disability within the meaning of the Disability Act 2006; or
(c)an acquired brain injury; or
(d)an autism spectrum disorder; or
(e)a neurological impairment, including but not limited to dementia;”
123Mental illness is defined in s4 of the Mental Health Act 2014:
“4 What is mental illness?
(1) Subject to subsection (2), mental illness is a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory.
(2) A person is not to be considered to have mental illness by reason only of any one or more of the following—
…
(h)that the person engages in immoral conduct;
(i)that the person engages in illegal conduct;
(j)that the person engages in antisocial behaviour;
(k)that the person is intellectually disabled;
(l)that the person uses drugs or consumes alcohol;
…
(o)that the person has previously been treated for mental illness.
(3) Subsection (2)(l) does not prevent the serious temporary or permanent physiological, biochemical or psychological effects of using drugs or consuming alcohol from being regarded as an indication that a person has a mental illness.”
124Intellectual disability is defined in s3 of the Disability Act 2006:
“intellectual disability, in relation to a person over the age of 5 years, means the concurrent existence of—
(a)significant sub-average general intellectual functioning; and
(b)significant defects in adaptive behaviour—
each of which became manifest before the age of 18 years;”
125Self-induced intoxication is defined in s322T(5) and (6) of the Crimes Act:
“(5)For the purposes of this section, intoxication is self-induced unless it came about—
(a)involuntarily; or
(b)because of fraud, sudden or extraordinary emergency, accident, reasonable mistake, duress or force; or
(c)from the use of a drug for which a prescription is required and that was used in accordance with the directions of the person who prescribed it; or
(d)from the use of a drug for which no prescription is required and that was used for a purpose, and in accordance with the dosage level, recommended by the manufacturer.
(6) Despite subsection (5), intoxication is self-induced in the circumstances referred to in subsection (5)(c) or (d) if the person using the drug knew, or had reason to believe, when the person took the drug that the drug would significantly impair the person’s judgment or control.”
126Category 2 offences are defined in s3(1) of the Sentencing Act. Your case falls within that definition under sub-paragraph (da)(i) because at the time of committing the armed robbery you had with you a firearm.
127I should note that the weapon referred to in Summary Charge 2 is not the weapon that was used in the armed robbery and is described as an imitation firearm. Your counsel correctly conceded that the weapon you used in the armed robbery, although not capable of discharging bullets or likely to cause any significant physical injury, falls within the definition of firearm.
128Section 75A(1) of the Crimes Act provides:
“(1)A person is guilty of armed robbery if he commits any robbery and at the time has with him a firearm, imitation firearm, offensive weapon, explosive or imitation explosive within the meaning assigned to those terms for the purposes of section 77(1).”
129Relevantly, section 77(1A) contains the definitions of the weapons referred to in s75A:
“(1A)For the purposes of subsection (1)—
…
firearm has the same meaning as in the Firearms Act 1996;
…”
130Section 3 of the Firearms Act 1996 relevantly defines firearm as follows:
“firearm means any device, whether or not assembled or in parts—
(a)which is designed or adapted, or is capable of being modified, to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means; and
(b)whether or not operable or complete or temporarily or permanently inoperable or incomplete—
…”
131The weapon you used in the armed robbery clearly falls within the definition of “firearm” as that term is defined in the Firearms Act.
Sentencing submissions
Defence submissions
132Mr McGrath urged the Court to find that your case is somewhat unusual and that in all the circumstances the Court should release you on a community correction order, with strict conditions tailored to both punish and rehabilitate you. In this way, not only would you benefit, but so would the community.
133With regard to the mandatory sentencing provisions relevant to the charge on the Indictment, Mr McGrath submitted that if the Court accepts the evidence supporting the combination of factors he identified, the Court should find that the statutory exceptions upon which he relied have been satisfied.
134In particular, Mr McGrath submitted that the Court should be satisfied on the balance of probabilities that you have impaired mental functioning that would result in you being subject to substantially and materially greater than ordinary burden or risks of imprisonment.
135In the alternative, Mr McGrath submitted that there are substantial and compelling circumstances that are exceptional and rare that justify not making an order under Division 2 of Part 3 of the Sentencing Act (that is not a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44).
136Should neither of these exceptions be established, Mr McGrath submitted that it would be open to sentence you to be detained in a Youth Justice Centre.
Prosecution submissions
137Ms Burnett submitted that a term of imprisonment to be served immediately is the only appropriate response to your offending. She did however concede that it would be open to have you assessed for a Youth Justice Centre Order. In this regard I had you assessed for your suitability for such an order.
138In a report dated 24 October 2022 (scil. 2023), you were assessed as a suitable candidate for a Youth Justice Centre Order.
139I note that Ms Kylie Attard, Case Manager, Youth Justice, the author of the report, observed:
“Youth Justice has assessed that Mr Pickett meets some of the suitability criteria specified in the Act. Specifically, was to Pickett’s ‘prospects for rehabilitation’ are assessed as more than reasonable; informed by his appropriate conduct on Supervised Bail, his positive attitude and orientation toward his future desistance from offending. While Mr Pickett is not assessed as ‘particularly immature’, he is assessed as highly likely to be subjected to undesirable influences in an adult prison.
Mr Pickett demonstrates reasonable prospects for rehabilitation and has taken responsibility for his offending behaviour. Youth Justice assess custody would be to Mr Pickett’s detriment given he would be highly impressionable and vulnerable in an adult [I think there are some typographical errors in the report itself] customer ideal environmental due to his age, level of immaturity, and a particularly long-standing mental health issues and identified substance use disorder.
…
Mr Pickett appears to have demonstrated genuine remorse for his offending behaviour, expressing some insight as to the adverse impact this offence would have had psychologically on the victim. Mr Pickett has endured significant adversities throughout his developing years, that underpinned his poor choices in life. Mr Pickett during his developing years’ experience significant mental health issues as stipulated in the material previously provided to the Court including report authored by Professor Danny Sullivan dated 4 September 2023, report authored by Dr Naveen Thomas dated 22 September 2023 and report authored by Ms Karly Doyle dated 28 September 2023.”[34]
(Sic)
[34]Youth Justice Centre Order Suitability Report prepared by Kylie Attard, Case Manager, Youth Justice.
140Addressing Mr McGrath’s submission that the combination of factors advanced on your behalf satisfy the statutory exceptions allowing the Court to impose a sentence other than a term of imprisonment, Ms Burnett submitted that these factors are insufficient to support such a finding.
141Ms Burnett accepted that some of the limbs of Verdins apply; however, “this should be sensibly moderated in the circumstances given the overlay of a significant history of drug use by [you] and drug use at the time of the offending.”[35]
[35]Exhibit C - Submissions on Behalf of the Prosecution upon Plea dated 9 October 2023, [16]
142Ms Burnett referred to the inherent gravity of the offence of armed robbery, noting:
(a) you threatened the victims and brandished the firearm at them;
(b) the pharmacy was a “soft target” and the victims were simply going about their work as employees working there;
(c) the offending occurred over some minutes while one of the victims tried to open the vault; and
(d) your offending must have been a frightening incident for the employees while they were working at night.
143Ms Burnett submitted that in these circumstances the relevant sentencing principles must focus on general deterrence, specific deterrence, denunciation, just punishment, protection of the community, and on your rehabilitation.
Has any exception to the mandatory sentencing provisions been established?
144It must be noted that Mr McGrath did not rely on the exception provided by s5(2H)(c)(i). In other words, he did not submit that at the time of committing the offence you had impaired mental functioning that was causally linked to the commission of the offence. Instead, he relied on s5(2H)(c)(ii) and (e), submitting that you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment, and in addition or in the alternative, that there are substantial and compelling circumstances that are exceptional and rare that justify releasing you on a community correction order.
145Addressing s5(2H)(c)(ii), there is uncontradicted and undisputed evidence before me as to your documented, long-standing history of mental health issues, dating back to when you were aged 13 years when you were diagnosed with ADHD.
146Associate Professor Sullivan diagnosed you as suffering from a severe substance-abuse disorder, recurrent substance-induced psychotic episodes (currently in remission), and recurrent depressive disorder, with anxious distress (currently in substantial remission). In his expert opinion, Associate Professor Sullivan opined that due to your history of significant mood disorder and poor emotional regulation, incarceration will weigh more heavily on you. Incarceration will reduce your capacity to use coping strategies to maintain stable mood, and you are at markedly increased risk of deteriorated mental state as a consequence.
147As Dr Thomas put it:
“Given Mr Pickett's mental health vulnerabilities, such factors could significantly exacerbate his condition. Further, incarceration could seriously jeopardize his mental well-being. The associated challenges of confinement, combined with potential isolation, are of particular concern for his psychological state, especially in light of his extensive psychiatric history, which includes Psychosis, Major Depressive Disorder, and Attention Deficit Hyperactivity Disorder.”[36]
[36]Exhibit 3 pages 2 - 5
148I accept this compelling evidence and am satisfied on the balance of probabilities that imprisonment will weigh extremely heavily upon you, and that your impaired mental functioning would result in you being subject to substantially and materially greater than the ordinary burden or risks of imprisonment.
149Turning to s5(2H)(e) and whether the “substantial and compelling circumstances that are exceptional and rare” test has been satisfied, your counsel submits that a number of factors combine to answer that question in the affirmative.
150In Lombardo, the Court of Appeal observed that there are two preliminary steps that must be considered when determining whether the exception provided in s5(2H)(e) is made out:
“[66]First, the court must identify whether there are ‘substantial and compelling circumstances’. In that context, ‘substantial and compelling’ means that the circumstances are weighty and forceful or powerful. The issue is whether the circumstances are substantial and compelling so as to justify not imposing a custodial sentence. That is the criterion by which the substance and compulsive force of the circumstances are to be assessed.
[67] The second critical step, if the circumstances are substantial and compelling in the sense described above, asks whether they are also ‘exceptional and rare’. In our view, this is to be regarded as a composite phrase imposing a single test, rather than as two discrete tests. ...
...
[69] In construing the phrase ‘exceptional and rare’, it is relevant that, in the context of deciding whether circumstances are ‘substantial and compelling’, Parliament has stated its intention that imprisonment should ‘ordinarily’ be imposed for a category 2 offence: s 5(2I)(a). This statement of intention is expressed in moderate terms, suggesting that the ‘exceptional and rare’ requirement has a meaning closer to ‘out of the ordinary’.
[70] On the other hand, the expression ‘out of the ordinary’, while capable of describing something that is ‘exceptional’, as well as something that is ‘rare’, does not fully capture the force of the phrase ‘exceptional and rare’. Both the expression ‘exceptional and rare’ and the legislative object that imprisonment should ‘ordinarily’ be imposed are, however, consistent with earlier case law, such as Hudgson, which described provisions such as the present as requiring circumstances of a kind ‘wholly outside “run of the mill” factors typical of’ the relevant kind of offending.
[71] Accordingly, in our view that language properly captures the meaning of the phrase ‘exceptional and rare’ in this context. It refers to circumstances that are wholly outside the ordinary factors typical of the relevant offence, in this case dangerous driving causing death.
[72] Applying the two steps of the mandated analysis calls for the sentencing judge to make an ‘evaluative judgment’ once the underlying facts have been established, and unaffected by notions of burden of proof. It is possible that a set of circumstances may engage the exception in combination, even where the constituent circumstances are mainly, or even wholly, ‘relatively common’.
...
Application — substantial and compelling circumstances
[75] In making the assessment as to substantial and compelling circumstances, the Act imposes a number of further conditions. First, the judge must regard general deterrence and denunciation of the offender’s conduct as more important than other sentencing purposes in s 5(1) of the [Sentencing] Act ...
[76] Next, the judge must also give less weight to the offender’s personal circumstances than to the nature and gravity of the offence: ...
[77] Thirdly, the judge must not have regard to the matters in s 5(2HC)(c), which include the offender’s previous good character (other than an absence of convictions), any early guilty plea and prospects of rehabilitation.
[78] Fourthly, the judge must have regard to Parliament’s intention that in sentencing an offender for a category 2 offence, only an order for a custodial sentence ‘should ordinarily be made’: s 5(2I)(a). We have already referred to this requirement in the context of the ‘exceptional and rare’ criterion.
[79] Finally, the judge must have regard to whether the cumulative impact of the circumstances of the case would justify a departure from a custodial sentence: s 5(2I)(b). This last requirement appears to do no more than restate the task under s 5(2HC)(e) itself. It confirms, however, that it is the cumulative effect of the relevant circumstances which is significant.”[37]
[37]Director of Public Prosecutions v Lombardo, supra at [66] – [79], citations omitted
151It is not disputed that a combination of factors might be sufficient to satisfy both elements of the test. As was said in Fariah v The Queen:[38]
“[25]... Every case will necessarily depend on its particular facts. Circumstances which individually are relatively common may in combination enliven the exception in s 5(2H)(e). Indeed, in our view, [and it was in that case] the applicant’s appalling childhood experiences, coupled with his youth and other factors relied upon, were sufficient in combination to engage s 5(2H)(e).”[39]
[38][2021] VSCA 213
[39]Fariah v The Queen [2021] VSCA 213 at [25] cited with approval in Lombardo, supra at [72]
152The combination of factors I consider to be relevant in your case are:
(a) Your youth – both at the time of offending and as at the date of sentence;
(b) Your difficult childhood;
(c) Your documented long-standing history of mental health problems, commencing with a diagnosis of ADHD when you were aged 13, and including a number of admissions to mental health institutions, and the profound impact this has had on your life;
(d) Your vulnerability if imprisoned, both as to the prospects of a decline in your mental health and as to the imprisonment weighing more heavily on you;
(e) The decline in your mental health and escalation of your use of prescription medications, both as prescribed and outside prescribed medications and doses, immediately before your offending;
(f) Your desperate attempt to obtain prescription medications after you had been rejected further prescriptions immediately before offending;
(g) The weapon you used to commit the armed robbery is technically defined as a firearm, but it was in effect an item that was only capable of firing plastic pellets and was unlikely to inflict any substantial injury if fired;
(h) The armed robbery was not committed for the purposes of obtaining cash. You stole only what you thought you required to satisfy your need for medication;
(i) You have complied with stringent bail conditions, which included a condition that you participate in treatment aimed at enhancing your rehabilitation;
(j) You have demonstrated a genuine commitment to your rehabilitation, embracing all opportunities for treatment and rehabilitation. In this regard the exhibits referred to speak glowingly of your dedication to treatment and rehabilitation, and testify to the immense progress that you have made in this regard;
(k) You have no prior convictions;
(l) You have strong family supports, as evidenced by the many references tendered on your behalf and by the attendance of your family and friends in Court both at plea hearing and today;
(m) You have employment;
(n) You have acknowledged your guilt and have accepted responsibility for your actions; and
(o) You gave evidence before me as outlined earlier. In doing so, you exposed yourself to cross-examination. I am satisfied that the evidence you gave was truthful. In particular, I was impressed with your expressions of remorse, and with the obvious signs that you have moved successfully towards your rehabilitation.
153Although the tests set out in s5(2H)(c) and (e) are hard to satisfy, they are not impossible to achieve.
154I consider that these circumstances are weighty and powerful and satisfy the “substantial and compelling” element of the test.
155I am also satisfied that the combination of circumstances is out of the ordinary and is not “run of the mill”.
156After careful consideration of all matters, and applying the two steps referred to in Lombardo, I am satisfied that this combination of factors enables the Court to find that there are substantial and compelling circumstances that are exceptional and rare that justify not making a custodial order in your case.
Sentences to be imposed
157I take into account all of the matters personal to you to which I have referred. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this. I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
158I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. I also take into account the delay and rehabilitation in the period of delay.
159You are a young offender, and the opportunity to promote your rehabilitation is a matter upon which I place weight. This is because your rehabilitation will not only benefit you, but it will also serve to protect the community.
160Your counsel has urged me to make a community correction order. I may only do so if:
(a) you have been convicted or found guilty of an offence punishable by more than five penalty units; and
(b) the Court has received a presentence report and has had regard to any recommendations, information or matters identified in the report; and
(c) you consent to the order.
161As you know, I have sought and received a presentence report. The report indicates that you are considered a suitable candidate for a community correction order. The report also contains certain information and a number of recommendations.
162I propose making such an order but I can only do so if you consent to my taking such a course, as I said. So that you are in a position to make an informed decision about whether you will give your consent, I will tell you something about the course I propose.
163First, the length of the order will be three years.
164The order will commence today, 2 November 2023.
165Every community correction order, including the one I propose in this case, contains seven mandatory conditions. They are:
(i) you must not commit, whether inside or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(ii) you must comply with any obligation or requirement prescribed by the regulations;
(iii) you must report to, and receive visits from, the Secretary during the period of the order;
(iv) you must report to the Community Corrections Centre specified in the order, in this case Sunshine Community Correction Centre, 499 Ballarat Road, Sunshine, Victoria, within two clear working days after the order comes into force, namely within two clear working days of today;
(v) you must notify the Secretary of any change of address or employment within two clear working days after the change;
(vi) you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(vii) you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order. Any such directions may be given to you either orally or in writing.
166I am also required to attach at least one condition in accordance with s47 of the Sentencing Act 1991. In attaching these conditions I bear in mind:
(a) the principle of proportionality;
(b) the purpose for which a sentence may be imposed as set out in s5 of the Sentencing Act 1991; and
(c) the purpose of a community correction order as set out in s36 of the Act – namely: to provide a community-based sentence for a wide range of offending behaviours while having regard to and addressing your circumstances.
167These are the proposed additional conditions:
(i) The Court requires you to perform 200 hours of unpaid community work during the next 12 months. The purpose for attaching this work condition is to adequately punish you in the community.
(ii) The Court requires you to undergo treatment and rehabilitation which I shall soon specify and as directed by the Secretary unless otherwise directed by the Court. In attaching this treatment and rehabilitation condition I have regard to:
1.the need to address the underlying causes of your offending; and
2.the recommendations, information and matters identified in the presentence report concerning your treatment and rehabilitation
(iii) Under s48CA of the Sentencing Act I determine that 75 hours satisfactorily completed for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.
168The treatment and rehabilitation specified by the Court is as follows:
·assessment and treatment (including testing) for drug abuse or dependency;
·assessment and treatment (including testing) for alcohol abuse or dependency;
·assessment and treatment (including testing) at a residential facility for:
§withdrawal from or rehabilitation for alcohol abuse or dependency or;
§withdrawal from or rehabilitation for drug abuse or dependency;
·medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility;
·mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility;
·any program that addresses factors related to your offending behaviour;
·any other treatment and rehabilitation that the regional manager considers necessary and that is specified in this order that may include employment, educational, cultural and personal development programs that are consistent with the purpose of the treatment and rehabilitation condition.
(iv) You will be required to be under the supervision of, and be monitored and managed as directed by the Secretary for the period of 12 months. I propose to attach this supervision condition for the purpose of ensuring your compliance with the order.
169In relation to the charge of armed robbery on the Indictment, my proposal is to record a conviction and make a community correction order containing all of the conditions that I have just mentioned.
170You must understand that if you breach any of the conditions of this order you may be charged with the offence of contravening a community correction order. That offence carries a maximum penalty of 3 months’ imprisonment. There may be other consequences. If you are found guilty of the breach, in addition to the penalty imposed for that offence, the Court might vary or cancel the order or re-sentence you in respect of the offences before me today. That might mean you will be sent to prison as a result. Do you understand?
171OFFENDER: Yes, Your Honour.
172HER HONOUR: Mr McGrath, do you want a moment to talk to your client and make sure he understands all of the conditions?
173MR McGRATH: Yes, thank you, Your Honour.
174HER HONOUR: Before I ask for his consent.
175MR McGRATH: Yes. If I could be excused from the Bar table, Your Honour?
176HER HONOUR: Yes, of course.
177MR McGRATH: Yes.
178HER HONOUR: Sorry to interrupt, Mr McGrath. Would it assist if I print out the draft order now, so that you can go through those conditions one by one?
179MR McGRATH: Yes, Your Honour. That would be useful.
180HER HONOUR: Thank you. And a copy for the prosecutor to make sure the draft order is as I have said. While you have got copies of the draft of the order, I shall just re-read the conditions so that you can just check that the draft order accords with what I propose.
181MR McGRATH: Yes, Your Honour.
182HER HONOUR: So in addition to the mandatory conditions, the court requires the offender to perform 200 hours of unpaid community work during the next 12 months.
183The court requires the offender to undergo treatment and rehabilitation, as directed. The treatment and rehabilitation specified by the court is assessment and treatment, including testing for drug abuse or dependency; assessment and treatment, including testing for alcohol abuse or dependency; assessment and treatment, including testing at a residential facility for withdrawal from or rehabilitation for alcohol abuse or dependency or withdrawal from or rehabilitation for drug abuse or dependency; medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility; mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility; any program that addresses factors related to offending behaviour; any other treatment and rehabilitation that the Regional Manager considers necessary that is specified in this order, that may include employment, educational, cultural and personal development programs that are consistent with the purpose of the treatment and rehabilitation condition; supervision by the Secretary for 12 months. I said 75 hours satisfactorily completed for treatment and rehabilitation are to be counted as hours as unpaid community work for the purposes of the unpaid community work condition.
184MR McGRATH: Yes, Your Honour. I’ll just have a moment to speak to Mr Pickett.
185HER HONOUR: I also want to make sure that there are programs designed to reduce re-offending, but I think that is covered by a program that addresses factors related to your offending behaviour.
186MR McGRATH: Yes, Mr Pickett can sign that if this document? If that’s suitable?
187HER HONOUR: Yes. We’ll give you all the copies. He needs to sign all copies.
188MR McGRATH: Yes.
189HER HONOUR: Does the order reflect what I intend?
190MR McGRATH: Yes, Your Honour. Yes, it does.
191HER HONOUR: Thank you, thank you.
192MS BURNETT: Your Honour, just one matter. I note in terms of the supervision, it is for a period of 12 months.
193HER HONOUR: Yes.
194MS BURNETT: Ultimately it’s a matter for Community Corrections, but it may impede compliance with the other conditions if the supervision’s not in place by Community Corrections for that three year period.
195HER HONOUR: Mr McGrath, do you wish to be heard on that? And I believe I’ve got someone who’s online who can answer that question, too.
196MR McGRATH: Yes. Ms Attard is on the link at the moment, Your Honour. In our submission the assessments and for all the matters under the treatment and rehabilitation, I would expect would take place in the first year, that is the assessments and the treatment component. So in my submission it wouldn’t require supervision beyond the 12 months, but if Ms Attard from Corrections believes it’s preferable that that supervision period be extended slightly to, for whatever reason, then I wouldn’t argue against the recommendations of Corrections.
197HER HONOUR: Thank you. Now are we able to speak to Ms Attard. Ms Attard, can you hear me?
198MS ATTARD: Yes, Your Honour.
199HER HONOUR: Are you able to answer that question, whether or not the work that needs to be done to promote rehabilitation will be impeded in any way if the supervision period is only for 12 months?
200MS ATTARD: Unfortunately given that Youth Justice is a separate program to the Community Corrections program, I need to ask my line management to speak to Community Corrections to get that answer for you, Your Honour.
201HER HONOUR: Thank you very much. Will that take long?
202MS ATTARD: I’d say maybe about two minutes.
203HER HONOUR: Okay, if you don’t mind, thank you.
204MR McGRATH: Your Honour, there’s only one minor matter, in the grand scheme of things it’s probably the least significant part, but early on in the sentence and it might have been me mishearing it, Your Honour referred to the summary charge of the possession of the imitation weapon as Mr Pickett being a non-prohibited person. I think Your Honour may have said prohibited person.
205HER HONOUR: I’m sorry. I would have written non-prohibited person.
206MR McGRATH: I understand that, Your Honour.
207HER HONOUR: I apologise if - - -
208MR McGRATH: It was about two hours ago.
209HER HONOUR: I’ve been reading for over two hours.
210MR McGRATH: Yes, it’s not a criticism.
211HER HONOUR: I still have to impose the sentences on the summary charges.
212MR McGRATH: Yes, certainly.
213HER HONOUR: I’m not finished yet and there are ancillary orders to be made too.
214MR McGRATH: Yes, I just thought I’d raise it during the break.
215HER HONOUR: Thank you.
216MR McGRATH: Yes.
217HER HONOUR: How long ago do you think I said this?
218MR McGRATH: About two hours.
219HER HONOUR: Two hours ago? All right.
220MR McGRATH: Yes. Just at the start, Your Honour, I think.
221HER HONOUR: At the start.
222MR McGRATH: Right towards the start.
223HER HONOUR: Yes, in paragraph 5 of my reasons for sentence it does say ‘one charge of being a non-prohibited person’. Anything else?
224MR McGRATH: No, Your Honour.
225HER HONOUR: Mr Pickett can step out of the dock and sit behind his counsel now.
226MR McGRATH: Your Honour, I believe my instructor’s just receiving or a call has been attempted to be made to my instructor from Ms Attard.
227HER HONOUR: All right, thank you.
228MR McGRATH: So I can’t explain why that would be, but that’s why he’s just stepping outside. Ms Attard has just rejoined the link, Your Honour.
229HER HONOUR: Thank you very much.
230MS ATTARD: Yes, Your Honour, so I have spoken to my line management who advise me that given we are Youth Justice we can’t kind of make any recommendations around Community Corrections. So what they have done, they have sent me a contact number for Mr Tegan to speak to Community Corrections management which can give you guys the answer needed for the supervision.
231HER HONOUR: Thank you very much. Thanks for doing that.
232MS ATTARD: No worries.
233HER HONOUR: I do not think it is necessary to make the period of supervision longer than the 12 months. The fact is, if there are any breaches the matter will be brought back to court and I’ll be supervising - - -
234MR McGRATH: Yes.
235HER HONOUR: - - - and the mercy that’s been given today is not likely to be repeated for a breach.
236MR McGRATH: Yes, Your Honour. I think that message is being received loud and clear.
237HER HONOUR: Very well. Are the orders signed? And Mr Pickett, if you would just stand in front of the microphone, next to your counsel there, I just wish to confirm that you understand the terms of the order I have made, you understand the consequences of breaching the order, and you consent to the order being made.
238OFFENDER: Yes, Your Honour.
239HER HONOUR: All right. And you understand any breach will be brought back before me and I will be quite cross, understood?
240OFFENDER: Yes, Your Honour.
241HER HONOUR: Okay.
242MR McGRATH: Mr Pickett has signed those orders, Your Honour.
243HER HONOUR: Thank you. There is a copy for him, I will sign. There’s a signature required on the second page as well.
244MR McGRATH: Apologies, Your Honour. I’ll get Mr Pickett to do that now.
245HER HONOUR: When Mr Pickett has signed, he can keep one of the stapled copies.
246MR McGRATH: Yes, Your Honour.
247HER HONOUR: One of the stapled copies then goes to the prosecution and we will take the one that’s not stapled, so it can be scanned into the court system.
248MR McGRATH: Yes, Your Honour.
249HER HONOUR: Thank you very much. All right, so that is your signature on both pages of the document?
250OFFENDER: Yes, Your Honour.
251HER HONOUR: Please say so in front of the microphone.
252OFFENDER: Yes, Your Honour.
253HER HONOUR: Thank you very much.
254In respect of the related summary charges, on Summary Charge 2, charge of being a non-prohibited person in possession of an imitation firearm without an exemption under s8B or an approval under s8C of the Control of Weapons Act 1990, contrary to s5AB(1) of the Control of Weapons Act, summary Charge 2, you are convicted and fined $500.00.
255On Summary Charge 3 of possessing a prohibited weapon without an exemption under s8B or an approval under s8C of the Control of Weapons Act, namely a samurai sword, contrary to s5AA of that Act, summary Charge 3, you are convicted and fined $500.00.
Ancillary orders
256Application has been made by the Prosecution for two forfeiture orders. One such order relates to the magazine found in the pharmacy; the other relates to the items seized at your home and that are the subject of the two related summary offences.
257I propose making both of those orders. I will sign those in a moment.
Statement and direction under s6AAA Sentencing Act
258I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offences but for the plea of guilty. Therefore, pursuant to s6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea the sentences I would have imposed are follows:
259On Charge 1 on the Indictment, you would have been convicted and sentenced to 3 years’ imprisonment. I would have directed that you serve a minimum of 2 years before becoming eligible for parole.
260You would have been fined in respect of the related summary offences to a total of $1,500.00.
261I direct pursuant to s6AAA that the sentences that would have been imposed but for the plea of guilty be noted in the court records.
262I will now sign the forfeiture orders.
263Ms Attard, thank you very much for your attendance today, that was a great help. Is there anything else?
264MR McGRATH: No, Your Honour.
265MS BURNETT: No, thank you, Your Honour.
266HER HONOUR: Thank you. Please adjourn the court.
- - -
ANNEXURE A
IN THE COUNTY COURT OF VICTORIA Court Reference: CR-22-02360
AT MELBOURNE Indictment No: N11876175 CRIMINAL JURISDICTION
IN THE MATTER OF Section 182 of the Criminal Procedure Act 2009
THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
TASMAN PICKETT
SUMMARY OF PROSECUTION OPENING UPON PLEA
| Dateof document: | 16 June 2023 |
| Filedonbehalfof: | The Director of Public Prosecutions |
| Prepared by: ABBEY HOGAN Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | Solicitor’s code: XXXX Direct: (03) Reference: Ms. M. Moss |
1. The Brimbank Divisional Response Unit commenced an investigation in relation to an Armed Robbery at the Taylors Lakes Pharmacy at Shop 6, 3 Melton Highway, Taylors Lakes (“the Pharmacy”) on Friday 22 July 2022.
2. Tasman PICKETT (“the Accused”) (born November 2002) was nineteen years old at the time of the offending. He was residing at XXX XXXXX XXXX, XXXXX with his mother Justine PICKETT, his father Tasman PICKETT and his sister Dekoda BELL-PICKETT.
3. The victims are:
a. Isaiah LUARCA (“LUARCA”);
b. Way SAW (“SAW”); and
c. Jericho DADIS (“DADIS”).
4. The victims are employees of the Pharmacy and were on duty at the time of the offending.
5. Witness, Zheng James YU (“YU”), is employed as an Uber driver at ride share service, Uber Technologies. YU is the registered owner of a silver 2022 Mazda CX- 30, registration XXXXX X, which he utilises as a ride share vehicle.
Circumstances of offending
6. At approximately 7.12p.m. on 22 July 2022, the Accused entered the Pharmacy. The Accused walked to the prescription medication counter where he was greeted by LUARCA.12
7. The Accused reached inside his puffer jacket with his left hand and produced a silver firearm, pointing it at LUARCA. DADIS and SAW were located near the dispensary at the time and witnessed the Accused’s actions.3456 LUARCA initially panicked but calmed down. The Accused shouted aggressively and demanded “Oxynorm” and “Benzos”.
8. LUARCA lead the Accused to the dispensary whereby the Accused became aware of the presence of SAW and DADIS. The Accused pointed the firearm at SAW and DADIS and demanded they, “Get on the ground”, and “Get your hands on the floor”. SAW and DADIS complied and lay on the floor.789
9. LUARCA told the Accused that he could not access the vault as only the pharmacist, SAW, could open it. The Accused pointed the firearm at SAW and demanded she open it and retrieve the drugs.101112
10. SAW opened the vault and removed various boxes of Targin, Oxycontin, Oxynorm and Endone. SAW handed the boxes to the Accused who was still brandishing the
1 Statement of LUARCA, paragraph 3.
2 Exhibit 3-5, CCTV.
3 Statement of LUARCA, paragraph 4
4 Statement of SAW, paragraph 4 & 5.
5 Statement of DADIS, paragraphs 3-10.
6 Exhibit 3, CCTV Footage, the Pharmacy.
7 Statement of DADIS, paragraphs 8,11,13 and 14.
8 Statement of LUARCA, paragraphs 5-7.
9 Statement of SAW, paragraph 9.
10 Statement of LUARCA, paragraphs 9-11.
11 Statement of SAW, paragraphs 13-14.
12 Statement of DADIS, paragraphs 19-21.
firearm. The Accused dropped various boxes that were handed to him and demanded that SAW pick up the boxes.131415 (Charge 1- Armed Robbery).
11. DADIS heard the Accused shouting, “Don’t fucking tell anyone, don’t fucking tell anyone”. As the Accused walked towards the exit of the Pharmacy, LUARCA witnessed the Accused drop various boxes and pick them up again before leaving.1617
12. The Accused exited the Pharmacy and LUARCA activated the emergency button in the dispensary to call triple zero at approximately 7.19 p.m.1819
13. At approximately 7.25p.m. police attended the scene and a crime scene was established.
14. Police located a silver magazine on the floor near the dispensary area.20 The item was later examined and found to be a metal magazine for a 6-millimetre calibre airsoft pistol.
Investigation
15. The Accused stole the following items from the Pharmacy:
a. Targin 5mg/2.5mg – 238 tablets;
b. Oxynorm 10mg – 100 capsules;
c. Oxynorm 5mg – 36 capsules;
d. Oxycontin 20mg – 58 tablets;
e. Oxycontin 15mg – 28 tablets;
f. Oxycontin 10mg – 56 tablets; and
g. Endone 5mg – 3 tablets.
16. On the 28 July 2022, SAW attended the Sunshine Police Station and a facial composite
13 Statement of SAW, paragraphs 15-16.
14 Statement of LUARCA, paragraphs 11-12.
15 Statement of DADIS, paragraphs 23-25.
16 Ibid, paragraphs 28-30.
17 Statement of LUARCA, paragraph 27.
18 Ibid, paragraph 23.
19 Statement of DADIS, paragraph 33.
20 Statement of LSC Sherer, paragraphs 6 and 8.
image of the Accused was compiled.21
17. CCTV footage from the Pharmacy depicts the following:
a. At 19:12:33 hours the Accused enters the Pharmacy wearing a black ‘North Face’ puffer vest with a white 'North Face' motif on the front left upper breast area and on the rear right shoulder, a black hooded jumper with the hood pulled over his head, black trousers, beanie and face mask, black and white ‘Nike’ shoes while carrying a silver firearm;
b. The Accused holding a smart phone in his right hand with the screen illuminated, the background of the smartphone is distinctive in the footage;
c. The Accused dropping the firearm at the entry / exit of the Pharmacy before picking it up with his right hand and leaving the Pharmacy; and
d. At 19:14:05 hours the Accused exits the Pharmacy.22
18.CCTV footage from Taylors Lakes Shopping Centre depicts the following:
a. At 19:12:08 hours on 22 July 2022 the Mazda CX-30, driven by Uber driver YU, arrives in and parks in front of the Pharmacy;
b. YU remains inside the vehicle and the Accused exits the vehicle from the front passenger seat before affixing a black mask to his face; and
c. The Accused enters the Pharmacy and is observed to exit a few minutes later in possession of various boxes23
19.Information received from Uber Technologies on 25 August 2022 revealed the following details about the trip booked on 22 July 2022 with Uber driver YU in vehicle XXXXX X:
a. The rider name utilised to book the rideshare is ‘Tasman Pickett’ with the associated email ‘XXXXX [email protected] and rider phone number of XXXXX XXXXX , registered to the Accused’s mother;
b. The request timestamp for the booking is 22-Jul-2022 18:35:31 hours and the pick up timestamp is 18:48:17 hours;
c. The pickup location in the vicinity of XXXXX XXXXX X, Keilor, an Uber stop location at 19:12:18 hours at 3 Melton Highway, Taylors Lakes and the trip completion location in the vicinity of XXXXX XXXXX , Keilor.
21 Exhibit 12, Facial Composite Image, No. 25721.
22 Exhibit 3, CCTV footage of the Pharmacy.
23 Exhibit 4, CCTV footage Centre Management
20. Telstra call charge records for telecommunications service number XXXX XXX XXX revealed the following calls which were made during the Uber trip with YU:
a. At 18:59:18 the Accused's phone called the Pharmacy on XXXX XXXX and the call duration was 25 seconds; and
b. At 19:03:01 AEST the Accused's phone called the Pharmacy on 9390 9496 and the call duration was 41 seconds.24
21. Uber driver YU told police that after he stopped at the Pharmacy, he noticed the Accused running back to his car with boxes of medication. The Accused told YU to “Hurry up, hurry up” after he got back into the car. YU was a little scared but was unsure about what was happening at the time.
Arrest and Interview
22. On 30 August 2022 at approximately 7.00 a.m. investigators executed a search warrant at the Accused’s address at XXXXX XXXXX X, Keilor. The Accused was arrested in his bedroom.25
23. Police located the following items:
c. Apple iPhone 11 displaying the same display screen saver depicted in CCTV from the Pharmacy with the Uber application installed; 48
d. Black ‘Agency Glock 18’ gel blaster (Related Summary Offence- Charge 2- Possess imitation firearm without exemption/approval);
e. Samurai sword; (Related Summary Offence- Charge 3- Possess prohibited weapon without approval); and
f. ‘Alhua’ CCTV hard drive.26
24. On the 30 August 2022 investigators executed a further search warrant at XXXXX XXXXX XX, Keilor but no items of interest were located or seized.27
25. The Accused was later conveyed to the Sunshine Police Station for interview and made no comment.
24 Exhibit 17, Telstra CCR’s XXXX XXX XXX.
25 Exhibit 18, Search Warrant at XXXXX XXXXX XXX, Keilor
26 Exhibits 20-23.
27 Exhibit 24, Search Warrant at XXXXX XXXXX XXX, Keilor.
Chronology
| Date | Event |
| 22 July 2022 & 30 August 2022 | Offending |
| 30 August 2022 | Filing Hearing- Bail granted |
| 22 November 2022 | Committal Mention- adjourned for Defence to obtain further medical material |
| 13 December 2022 | Committal Mention- matter resolved- Accused committed & guilty pleas entered on all charges |
| 7 June 2023 | County Court Mention- Defence application to adjourn Plea |
| 123 June 2023 | County Court Plea listed |
Maximum Penalties
| Armed Robbery | 25 years imprisonment |
| Possess imitation firearm without exemption/approval | 240 penalty units or imprisonment for 2 years |
| Possess prohibited weapon without approval | 240 penalty units or imprisonment for 2 years |
Mandatory Provisions – Sentencing Act 1991
26. The offence of Armed Robbery is a Category 2 offence under section 3(1) of the Sentencing Act 1991 if the offender has with him a firearm at the time of the offence. In sentencing an offender for a Category 2 offence, a court must make a custodial order under Division 2 of Part 3 (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) unless any of the criteria under section 5(2H)(a)-(e) apply.
Timing of Plea
27. The Prosecution accepts that the plea of guilty was entered at an early stage.
Criminal History
28. A Criminal History will be filed with the Court.
Pre-Sentence Detention
29. There is no Pre-Sentence Detention.
Victim Impact Statements
30. To be confirmed.
Ancillary Orders
31. Application will be made for a Disposal Order- magazine.
S.6AAA of the Sentencing Act 1991
32. The Court is reminded of the obligations under this section.
Natalie Burnett
Counsel for the Prosecution
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