Director of Public Prosecutions v Pitman
[2023] VCC 1583
•1 September 2023
*
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00913
Indictment No. N12622720
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DALE PITMAN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2023 | |
DATE OF SENTENCE: | 1 September 2023 | |
CASE MAY BE CITED AS: | DPP v PITMAN | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1583 | |
REASONS FOR SENTENCE
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Catchwords: Intentionally Causing Injury; attempted armed robbery and armed robbery; criminal damage. summary matter; commit indictable offence on bail; 32 years of age at time of sentence. Relevant prior criminal history. Early plea, Complex mental health position including. Full Scale IQ of 53
Cases: Worboyes v The Queen [2021] VSCA 169. R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (‘Verdins’), Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S. Tamburro | Office of Public Prosecutions |
| For the Accused | Ms S. Gillahan | Victoria Legal Aid |
HIS HONOUR:
1Dale Pitman, on Tuesday of this week (29 August 2023), you pleaded guilty to intentionally causing injury, attempted armed robbery and armed robbery, as well as one charge of criminal damage. All of these offences occurred whilst you were on bail and so you have also pleaded guilty to the additional summary offence of committing an indictable offence whilst on bail.
2The maximum penalties are correctly set out in the opening and I will not restate them.
3You are now 32 years of age. You have a prior criminal history of some relevance to my task.
Facts
4On Tuesday of this week, the prosecutor Mr Tamburro opened this matter to the court by reading into the transcript the written summary that was dated 2 August 2023.
5That document was marked as Exhibit A on the plea.
6Though dated 2 August, it was filed on 24 August with some amendments made from the earlier filed version bearing the same date.
7Ms Gillahan who appears on your behalf told me that this was an agreed summary.
8There is no point in my restating all of those agreed facts. I will provide only a very brief summary of your offending so that anyone accessing these reasons will have a better understanding of the nature of the crimes you have committed and the reasons for my ultimate sentence. This was serious offending. You really were a one man crime spree on this night, intruding very unpleasantly into the lives of a number of totally innocent victims.
9The summary discloses that you were on bail at the time of these events on the 5 December 2022. That was for a charge of theft from shop. You had been bailed on 25 October 2022 and were due to appear in court in January of this year.
10At about 8:30pm on Monday 5 December, you engaged in a nasty and totally unprovoked attack on Peter McGinley in Southbank. He had left his workplace at about 8:30pm and was walking along Sturt Street just minding his own business. He only got about 50 metres when he heard a metallic thud and felt a blow to his head. He was dazed. He turned around. You were holding a red metal pole and struck him two or three more times. He was bleeding. He tried to get away. In fact, you ran off but then returned, running at him and striking him to the head two more times, saying as you did so, 'come on, come on'. He was offering up his phone to try to get you to leave him alone. You took it and left him. The phone was later recovered. I am dealing with you for intentionally causing injury not robbery or armed robbery or even theft. This attack was without any apparent motive.
11Poor Mr McGinley was assisted by a passer-by who saw him sitting on the grass bleeding from the head. An ambulance was called, and he was carted off to hospital by ambulance and had five head wounds requiring stitching as well as a laceration and bruises to various parts of his body. He was discharged from hospital the following day at around midday. There were some photographs in the depositions of his appearance out on the street after you had struck him. He was not in a good state. He was lying down on the nature strip, covered by a blanket and bleeding heavily from the head. There were some later photos showing the location of the wounds once they had been cleaned up and sutured. He obviously had his head shaved by then. There were also some photographs taken, it would seem, at the hospital. This was a serious physical attack with a weapon. It came completely out of the blue. You struck him repeatedly to the head with a metal pole for no reason. He had done nothing at all to attract your attention. You are very fortunate that he was not far more seriously injured.
12Within minutes of dealing with him in this way, you then bobbed up at the 7–Eleven in Southbank. That was at around 8:47pm. You asked the attendant, Mr Nagarandala, for a pack of cigarettes but when the time came to pay, you pulled out a sharp stick and demanded them. The summary describes the way you moved closer and used the stick, banging it and yelling 'give me a fucking pack of cigarettes'. He would not. This was the attempted armed robbery. There was footage of the event as well as some still photos from that footage. That footage is marked as Exhibit C.
13Nicole Rizzo had ducked in to the 7–Eleven to get some food. It is clear from her impact statement that her partner was in the car parked outside. How unlucky was she to be there as you carried out the attempted armed robbery, for you were unsuccessful at the counter and you then turned your attention to her, approaching her and demanding that she give you a cigarette. She told you she did not have one. Whilst she did not have a cigarette, she did have a $100 note in her hand. It was in her hand for the imminent purchase of some food and you then approached her yelling, ‘give me the fucking money’. She stepped away from you and held onto her money and you approached her again saying 'I’ll fucking stab you, give me the money'. She let go of it and you took it. She was frightened by your conduct. Who wouldn’t be? The footage shows the way you had moved towards her and the way you were presenting the sharpened stick up in the air. It was really scary stuff.
14You left with that money. A short time later, police responding to the Triple 0 calls saw you at a nearby tram stop. At this stage you were holding two metal rods. You were arrested after a pretty forlorn effort to run from the police.
15Later that night in the cells you were given the custody phone so that you could speak to a lawyer at the Victorian Aboriginal Legal Service. At 10.54 pm you smashed that phone against the cell wall and then threw it into the toilet. Hence the criminal damage charge (Charge 4).
16Unsurprisingly, you were unfit for interview.
17You have been in custody since your arrest.
18The agreed summary sets out the chronology of the matter before the court.
19So much then for my brief summary of the summary. I will sentence pursuant to the more detailed agreed statement which was marked as Exhibit A on the plea. Also the photographs within the depositional material and that CCTV footage that I have mentioned. That footage shows how threatening a proposition you were in the 7–Eleven. The attendant was behind the counter and, to a degree at least, was secure. The customer, Ms Rizzo, was just completely exposed. The crime upon her has had pretty dire impact and I will turn to that in a moment. Also to the impact felt by Mr McGinley, who was just walking along the street when repeatedly struck to the head for no reason. In the course of these reasons, I will be going into a level of detail about your background and your mental health. All the things said on your behalf about you, but this is not all about you. I am sentencing you for these crimes committed upon these victims. Your victims. Your crimes. Crimes that have left behind a trail of serious impacts.
Victim impact material
20The 7–Eleven attendant has chosen not to make an impact statement. That was his right. Mr McGinley has made one and nothing within it is in any way surprising. Obviously enough for Mr McGinley, being bashed around the head in this fashion was a frightening and bewildering experience. He wound up in hospital overnight and he sported a number of wounds. His impact statement was read aloud and I act on it. He will never forget this night. He has not felt the same since the incident. He feels uneasy walking outside alone and he avoids doing so after dark. He has had to change the way he lives as he does not own a car. He has heightened anxiety and does not feel as resilient as he once was. He is hypervigilant when he is outside and he will routinely assess his surrounds and people around him for any risk. He says, correctly, that life will go on, it will, but he doubts if his sense of unease will really ever fully disappear.
21Turning to the incident in the 7–Eleven, as I mentioned, the shop attendant was to a degree protected behind the counter or screen and, probably, the shop attendant had some level of training about what to do when responding to this sort of event. Ms Rizzo had no such luxury being behind the counter. She was on the other side of the counter, the side where you were. She was a customer. She has made an impact statement disclosing how significantly she has been impacted by your crime. The impact statement was read aloud in her case as well, so I see no need to repeat it in great detail in my reasons. I have read each of the impact statements since the day of the plea. She has struggled to understand how an event lasting such a short time has had such a large impact on her life, but it has. She came into the 7–Eleven just as a matter of chance. She had been almost the whole way back at the hotel where she was staying but decided that she and her partner needed some food. Her life altered as a result of that completely innocent decision, for it brought her into your sphere and that was a very unpleasant place to be indeed. She has felt great anxiety and anger. She has struggled to leave her home. She had to take time off work. Your crime has had serious impact upon her employment and ultimately she lost her job. That was a very foreign experience for her. She feels that she has lost her independence. Her mental health has taken a large hit to the extent that she was suicidal. She has sought counselling and that at least has been beneficial but there is no ‘magic pill’ there. Your crime upon her has had a very large impact indeed and I take that into account. So too the impact of your crime upon Mr McGinley. That too has been sizeable. It is no comfort to Ms Rizzo or to Mr McGinley to learn well after the event that the person committing the armed robbery or committing the physical assault has an IQ of 53 or an unenviable developmental background as a child. You were the assailant. You were the offender. You were the person who has brought about these impacts and I must and do take into account the impact of your crimes, and I do.
In mitigation
22I turn then to consider the very thorough plea in mitigation conducted on your behalf by Ms Gillahan. She filed a written outline of submissions dated 25 August as well as a large bundle of materials dealing with your complex mental health predicament. I will list some of that material. Her submissions do that in detail. Amongst that material there was a very detailed report from a neuropsychologist Martin Jackson and two reports from a psychiatrist Dr Danny Sullivan. There was a NDIS plan and other documents dealing with plans for the future including one from the Department of Families, Fairness and Housing and one from a support co-ordinator Daniel Peeney of Lancaster Consulting. There was a large bundle of VCAT materials. There was some duplication in all of this. There was also an inpatient assessment order dated 6 December 2022 spelling out your level of functioning a short time after these crimes were committed.
23There was a large range of materials and if I may observe, rarely would the Court be in possession of such a level of information about a person soon to be sentenced. I have read and have regard to that material and the submissions made in relation to it. Again, as with the impact statements, I have read all this material again since the plea. I am not going to work my way chapter and verse through that material in my reasons. My reasons will be long enough as is. There is no need to work my way through this material in great detail here. Your counsel endorsed that abbreviated approach for reasons that surely will be obvious enough.
24Ms Gillahan, either by reference to that material or in her oral or written submissions to me, placed before the Court information as to your personal background. So detail about your family and your educational, mental health, criminal and illegal drug use history.
25She made some submissions about the objective gravity of the offending as well as to the relevant sentencing purposes in play here and the reductions or moderation required in this case. Unusually, she was not making any real submission as to you having prospects of rehabilitation. She made some submissions as to the tight time frame involved here and the need to give weight to the principle of totality of sentence.
26In the very comprehensive plea in mitigation conducted on your behalf, she relied mainly upon the following matters in mitigation:
·Your early guilty plea in the course of the global pandemic;
·Your background of some disadvantage; (Bugmy[1])
·The application of some of the principles from Verdins[2] (1st to 5th limbs);
[1] Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (‘Bugmy’)
[2] R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 ('Verdins')
27She conceded that prison was warranted here but she was arguing that a straight sentence might be open to the court. Failing that, a prison term with a non-parole period.
Prosecution
28The prosecutor had prepared some detailed written sentencing submissions. They were dated 25 August and they were in no way controversial. They were marked as Exhibit D on the plea. Again, I just see no utility in slavishly repeating all that was raised in the prosecutor’s written or oral submissions. The Crown accepted that there were some complex mental health issues here and a level of disadvantage in your early life. They accepted that the principles from Verdins would have a role to play in my task. So too the principles from Bugmy. However, the factors enlivening these Verdins principles made rehabilitation a very difficult process and they argued that there was a heightened need to reflect community protection in this case. That there were poor prospects of rehabilitation and a high enough risk of reoffence. The prosecutor in his submissions took me to a number of portions from the various reports that spelt out these matters and reminded the Court of the impact in this case to those victims, as well as the objective factors of seriousness in this case. The Director of Public Prosecutions was calling for a head sentence with a non-parole period.
Background
29Before dealing with these matters, I will turn briefly to your background. Briefly as I have no reason not to act on what I have been told.
30You are 32 years of age. I was told you are a Yorta Yorta man and the eldest of three children. Your counsel told me that your biological father was emotionally and physically violent towards you and you frequently witnessed your father physically assaulting your mother. Your parents separated when you were about five or six and your mother re-partnered when you were about 10 years of age. You were then sexually abused by your stepfather.
31There were many moves of home, mostly around country areas down in Gippsland. You were in fact removed from the family home by the Department of Health and Human Services, as they were then, when you were about 14 years of age. You were placed into a boys’ home. On the educational front you attended preschool and you had to repeat kindergarten. You needed speech and occupational therapy. You did attend three different mainstream primary schools but you had an integration aide at each. You attended the Baringa Special School and South Gippsland Special School and you did not finish primary school, leaving during Grade 6.
32You have never engaged in paid employment. You have received the Disability Support Pension and your money has been managed by the State Trustees.
33Homelessness has been pretty much a chronic condition for you. That has been the position virtually since you left the boys' home over 15 years ago. You mention in some of the written material that you have not seen your mother and one of your brothers for a long time. Each of them lived interstate. It does not appear that there is any great family support on offer for you. I am though told your mother has made some enquiries of your solicitor and she is obviously still interested in what is becoming of you.
34An application has been made to appoint an administrator for you but that is on hold for the moment pending the outcome of this matter.
35There is apparently now a higher level of supported accommodation and assistance available than has existed previously (see the Written Outline paragraphs 28, 59-62). You are approved under the NDIS and there is funding for specialist disability accommodation and a care team as described in paragraph 61 of those written submissions. I note that you have had supported residential services in the past and been evicted due to your misbehaviour (see paragraph 27). Your counsel said that those places had lower staffing ratios than the proposed new arrangement.
36You have a raft of serious mental health issues. Where to start? Well, a serious hypoxic brain injury at birth is as good a place as any to start. It has blighted your life. It has had lifelong serious impacts and as a result of that birth injury, you function at a very low level, as the expert materials makes plain. That is the primary matter of concern and you have had that moderate intellectual disability always. You have had all sorts of mental health admissions over the years with a number of those connected to illegal drug use and the development, it would seem, of a drug induced psychosis from time to time. Drugs have been very problematic, though you do not recognise that. Both Dr Sullivan and Mr Jackson speak of the role that illegal drugs have in causing further deterioration in your level of functioning and in your behaviour, that and also non-compliance with your prescribed medications. You told Dr Sullivan that you have no inclination to stop using illegal drugs. As though your life was not complicated enough without adding illegal drugs into the mix but that is your attitude and it really seems quite unlikely to change.
37Over the years, you have been diagnosed with many other mental health conditions including ADHD, conduct disorder, bipolar affective disorder, schizoaffective disorder, and autism, to name but a few. Your moral culpability is obviously very low. That much is plain. However, Dr Sullivan, who thinks you also have an antisocial personality disorder on top of the moderate intellectual disability and the schizoaffective disorder, makes it plain that you understand that assaulting someone or stealing from them is wrong. You told Dr Sullivan that you were intoxicated by drugs at the time of this offending. Mr Jackson did not speak to you about this offending. His report was an older one predating these events, though no less relevant given the static nature of your complex mental health issues, with the primary issue being the hypoxic brain injury at birth.
38You really have no capacity to function independently in the community and you very much live in the moment with no capacity to plan and to organise, and minimal capacity to learn from your mistakes. You have no capacity to control your mood or the way you are feeling (see paragraph 33). Your behavioural issues are primarily caused by your brain injury. There is a role played by your personality disorder, the schizoaffective disorder and drug use. You have lived a strange and unsatisfying existence, roaming the streets with your sleeping bag. Mr Jackson said in his report of 2020 that you were unable to identify any leisure pursuits. When he asked you what you did with your time you told him 'I use drugs, I have sexual intercourse and I eat'. If that was all you did, I suppose it would be a simple enough existence. Unfortunately though, you also offend.
39Let me turn to your court history. I was told about some outstanding matters that are listed for consolidated plea in the Magistrates' Court in early November of this year. Matters of theft from shop and an assault. I will not have regard to them.
40You have a prior criminal history with some matters of obvious relevance. I will not conduct a full audit of that history in my reasons. There is just no point. In fact the criminal history is not as long as one might expect given your mental health issues, your disadvantaged background and also your homelessness which has been present for so many years. There are though prior appearances for dishonesty, drug, weapons, and Bail Act offences. Also violence offences, threats, physical assaults, a sexual offence, and an attempted robbery. That last offence, the attempted robbery, related to a demand made of a woman on a tram and you received a 10-month term of imprisonment back in January 2021. Your prior criminal history is really a bit of a mixed bag.
41You have been sent to prison on a number of occasions.
42You do not fall to be sentenced a second time for any of these past matters. You received those past sentences and served them. These matters do not aggravate the matters that I am dealing with, but I must make judgements about your prospects of rehabilitation and the extent of the need to deter you and to protect the community from you and your risk of reoffence. It is obvious that community protection is a matter which looms large here given the nature of the offending.
Guilty plea
43I turn to the matters that have been raised on your behalf and I will abbreviate my reasons to a degree. There is really no challenge to many of the matters raised in mitigation. The first of those is your guilty plea. You have taken responsibility for your crimes by pleading guilty at what I will treat as the earliest stage. You have facilitated the course of justice.
44As a result of your plea, the time, the cost, and the effort of a hearing in the Magistrates' Court or a trial up in this Court has been avoided. Witnesses have not been required to give evidence. Giving evidence can be a stressful experience. No doubt it would have been a stressful experience for Ms Rizzo and for Mr McGinley to be called as a witness and to have to relive these events and then be questioned about them. Giving evidence, I am sure, would have been stressful for each of them. So too probably for the other victim, the attendant at the 7–Eleven. All have been spared that experience by your stance in pleading guilty.
45So you have facilitated the course of justice in these various ways and you must be rewarded for doing so. That is the law.
46Your guilty plea is worthy of extra weight for the many reasons set out in the Court of Appeal decision of Worboyes.[3] A large backlog of cases has arisen in the course of the global pandemic and that is so despite the fact that we have now sailed out of the pandemic itself. The backlog remains and your case was never part of that backlog. It settled swiftly. So I take these various matters into account in mitigation.
[3] Worboyes v The Queen [2021] VSCA 169
Remorse
47Your counsel was not arguing that there was any remorse here over and above that which might be implied from your guilty plea. She told me that it was really a matter of you not having the capacity to feel remorse or empathy.
48Other than what might be implied from your guilty plea, there is no remorse on display in this case.
Rehabilitation
49Let me turn to your prospects of rehabilitation. You have virtually no capacity to mend your ways or learn from your mistakes. You have, at best, very limited insight into the seriousness of these acts and no particular remorse for them. You have no support from family. You are an isolated and very much damaged man, it seems to me. You cannot live independently but past efforts to house you in a structured setting have failed. You function at a very low level. You keep using drugs of dependence and that makes more difficult an already very difficult situation. You have a raft of serious mental health issues. You live in the moment and that moment is lived through the prism of someone with an IQ of 53. You have minimal prospects of rehabilitation and an obviously very high risk of reoffence. That is just the reality. As your counsel says of you, 'he has no capacity to be actively involved in rehabilitation’ (see paragraph 65 of the outline). Your counsel quotes Mr Jackson who says you have no capacity to learn new ways of doing things or of changing your behaviour. That pessimism is picked up in the opinion of Dr Sullivan. Your counsel submits it is not a matter of not wanting to be rehabilitated. It is rather just not having the capacity and that is owing to your cognitive deficits.
50You do have a large NDIS package. The hope is that the arrangements spoken of in paragraphs 59-62 of the outline and in the more recent letter from the Department of Families, Fairness and Housing might lead to some increased structure and routine which might possibly assist upon your ultimate release. There is no great cause for optimism, but I will not say there are no prospects at all. There is that tiny glimmer of hope represented by that, as of yet, untried and more structured setting. I conclude by saying that your prospects of rehabilitation are bleak, with a high risk of reoffence. That is conceded by your counsel.
COVID-19
51Your counsel placed no reliance at all on any impact of COVID-19 upon your burden as a prisoner. She made no submissions to me on this score. No doubt that is because you have only been held since 5 December of last year at a point where all the harsher restrictions had been relaxed.
52You might have been exposed to some lockdowns on occasions, but it is not a matter of any great weight. Visits for prisoners resumed in March of last year, several months before you arrived in prison. You don’t have any visitors in any event which is also a bit bleak to consider. As to what lies ahead in the future on the pandemic front for prisoners, that is impossible for the Court to know. There might be the odd quarantine. It really is impossible to know if there will be any ongoing significant impact and, if there were, the authorities would be empowered to take them into account. I am not free to speculate about that.
53I take into account the impact of the virus to this point in this very limited way. It is not a matter of any weight in my task.
Verdins
54Let me deal with the submissions as to the application of the principles from Verdins. For the benefit of your victims who are watching on using the Webex, that is a case from our Court of Appeal dealing with the impact upon the sentencing process of mental health conditions existing either at the time of the offence and/or at the time of sentence, or both. That is very much a simplified explanation, there is more to it, but it suffices for present purposes. I could spend the next hour setting out slabs from the various expert reports as well as the various submissions raised on your behalf relying on the first five principles from that case. There is no point. It is as plain as day that each of those five limbs are enlivened in this case. Whether under the rubric of Muldrock[4] or Verdins or Brown[5] it is academic. It amounts to the same thing. I accept your counsel’s submissions in this regard. You have very limited capacity for calm and rational decision making and judgement. I have the Mental Health Act assessment order made the day following the events, but it seems likely from Dr Sullivan’s opinion that this was largely related to illegal drug use or withdrawal from drugs.
[4] Muldrock v The Queen [2011] HCA 39 (5 October 2011); (2011) 244 CLR 120 ('Muldrock')
[5] Daylia Brown v The Queen [2020] VSCA 212; 62 VR 491
55I have your static low level of functioning. You have a significant cognitive deficit arising at birth which has, does and always will have a very large impact upon you. You are not someone exercising anything like optimum judgement. There is an impulsivity and impaired capacity to think clearly and to make calm and rational choices. An impaired judgement that is directly linked to your brain injury. You have nothing like the moral culpability of someone functioning at a higher level. Plainly your moral culpability is very sizeably reduced for the reasons advanced by your counsel. Plainly your cognitive impairments bear upon the nature of the sentences imposed, however you are not a person who can seriously be considered for any combination type disposition with release onto a community correction order. That sort of order is completely beyond you. Plainly there must be sizable moderation of the weight to be given to general and specific deterrence and again, plainly prison is more burdensome for one such as you. So I do not doubt any of the submissions made on your behalf that these five limbs from that case that I have mentioned are engaged.
56It is always though a matter of weight, and there is undoubtedly a component of your behaviour which can be put down to your use of illegal drugs. That is a ‘choice’ that you make but one which must be seen in light of your disadvantaged background, as well as your lack of capacity to make rational and sensible choices owing to the cognitive deficits which you always labour under. It is impossible to disentangle the disinhibiting effect of illegal drug use from the other matters legitimately raised on your behalf but the expert evidence leaves me in no doubt that even absent drug use, you function at such a low level as to be far less morally blameworthy. That is clear to me. Given the deficits in existence, you are plainly not the appropriate vehicle for the full weight to be given to general deterrence and specific deterrence is very much problematic. Your counsel argues it cannot be achieved. That you really cannot be deterred. That is a real problem as you keep offending. You have a prior criminal history which includes prior appearances for violence offences, threats, physical assaults and an attempted robbery.
57I do accept there are very major issues in achieving specific deterrence in your case. That principle is significantly moderated here.
58I do not accept, and nor for that matter did your counsel urge me to find, that general deterrence or specific deterrence can be entirely eliminated here. They really cannot be. I do accept there is a very sizeable reduction arising.
59But insofar as these mental health issues raise these significant mitigatory considerations, on the flip side of the coin, there is the ongoing danger that you represent. These conditions are static. Your counsel’s recognition that you can scarcely be deterred, if at all, and that you have almost no prospects of rehabilitation, must bring into sharp focus the need to give greater weight to community protection in this case. Community protection is of obvious importance here.
Bugmy
60I have mentioned already then the reduction in moral culpability arising from your cognitive and other deficits. I have also mentioned only in broad detail your personal background. An offender’s circumstances and experience during their childhood and formative years must be considered in sentencing, not just out of some historical curiosity, but because the effects of social disadvantage do not diminish with time. These things just leave their mark and are likely to have profound and lasting consequences. So taking lifelong damage that is the result of childhood exposure to violence, of abuse, or neglect into account when sentencing is really the mark of a humane society. It is also relevant in applying the fundamental principles and the sentencing purposes. I have not gone into the enormous detail of your background as is set out in the report of Mr Jackson. That report is about as comprehensive a report as one could ever hope to see. It was not just a matter of him acting on your self-report as some experts unfortunately do. Mr Jackson accessed many historical documents, contemporary documents speaking of issues in your very early life. I am not going to descend to all that detail in my reasons. I have already mentioned you are an Aboriginal man. It is clear to me that your early life was one of real disadvantage and that is over and above the large and obvious disadvantage flowing from your intellectual deficits arising at birth. There was a level of trauma and dysfunction in your early developmental life. There was little stability. There was exposure to violence, and sexual abuse and removal from your family and placement into a boys' home. There is nothing to envy in a background such as that which is detailed in that report and no surprise that there has been a faltering trajectory since, with drug abuse and homelessness the norm for you. All of this set amidst backdrop of a person with large cognitive deficits which would have greatly held you back anyway. You had no control over any of these things. I am prepared to accept the submissions made to me by your counsel that the principles from the case of Bugmy have application in the general sense, not the specific sense mentioned in the more recent cases of Hermann[6], Sabbatucci[7] and Newton[8].
[6] DPP v Herrmann [2021] VSCA 160
[7] Sabbatucci v The Queen [2021] VSCA 340; 98 MVR 256
[8] Newton (a pseudonym) v The King [2023] VSCA 22
61It is clear that there is reduction in your culpability over and above that which I have provided for in a Verdins/Muldrock fashion. You had no choice over the cards dealt to you as a child and then as a teen. You were dealt a very poor hand in life and you are deserving of at least some measure of compassion. The retributive aspects of sentencing are moderated, or softened, if you like, for the reasons that I have announced.
The Offences
62I have already summarised the offending and I will not repeat all that I said. Your counsel concedes the seriousness of the offending the subject of Charges 1 to 3 on the indictment. She conceded the objective gravity was high (see paragraph 5). Mr McGinley was an innocent and unsuspecting member of the public just going about his business in a public place. It was 8:30pm on a Monday night. He had no reason to expect any attack. He had done nothing at all to attract your attention. You struck him from behind with a metal pole to the head. There was no warning at all. There were then repeated blows. He required admission to hospital and treatment. This was no minor example of intentionally causing injury by any stretch of the imagination, though I accept it was unsophisticated and spontaneous enough. There was just no motive at all. That is itself quite disturbing. It was senseless and wanton violence, and you are very fortunate that you did not more seriously injure him, or worse. Whatever may be said of your disability, you intended to injure him and went about that very deliberately. You knew it was wrong and it is plain enough that drug intoxication had a role to play here and that cannot be greatly mitigatory.
63As for Mr Nagarandala, this is the 7–Eleven store attendant, well he was in his place of employment. You were armed, though again it seems clear it was a relatively unplanned and unsophisticated offence, committed with something found in advance of entry to the store and then used offensively when your request for cigarettes went unsatisfied. That attempt was quite brief. When your demand went unsatisfied, you just turned your attention to another person, this was Ms Rizzo.
64Attempted armed robbery and armed robbery are inherently serious offences. The armed robbery upon Ms Rizzo was no minor example at all. She was a customer. She was totally innocent and totally unprepared. She was totally exposed and she was approached by you, a man, in a threatening fashion. It was a serious offence. Of course it is a long way removed from the most serious examples that we see but it was no minor example of the offence by any stretch of the imagination. She had you right ‘in her face’. She was unprotected and exposed and she had you issuing a nasty demand enforced by the waving of the weapon. The impulsiveness on display is summed up by the progression of these events; a of demand for a cigarette, a demand made to the attendant and then a demand for a cigarette made of Ms Rizzo which then turned into an armed robbery moments later when you spied the cash. Plainly this was spontaneous offending. It was over reasonably briefly.
65Armed robberies on soft targets often enough are quite brief and often they do not involve much planning at all. Very often they are committed with a demand being made and property just handed over with no element of physical threat. Just a weapon presented, but not wielded in any sort of threatening fashion. That was not the nature of this armed robbery. You were completely unconcerned as to the presence of onlookers or witnesses or the existence of the CCTV. The attempt was committed whilst Ms Rizzo and others were in the shop. So too the armed robbery upon Ms Rizzo. You were very dangerously out of control on this evening.
66I do accept that the criminal damage was the least serious of the offences.
67In the space of under 20 minutes or so, you just moved from one victim to the next, leaving behind you a trail of impact that has been described in the impact statements placed before me. You are insightless as to the damage you cause at the time you are causing it and even many months later, you have great difficulty recognising it. You have virtually no empathy for your victims. You cannot, it would seem, learn from your mistakes. You are very unlikely to be rehabilitated and you cannot really be deterred. You are not inclined to abstain from illegal drugs either. This is all a very dangerous mix for one such as you who is actually prepared to seriously offend.
68As I mentioned, there is the reduction in culpability arising in a Verdins and Bugmy fashion.
69All of this offending occurred whilst you were on bail.
Purposes
70I have to consider a number of purposes of sentencing. One of those purposes is your rehabilitation. I must pay regard to your prospects of rehabilitation but I regret to say those prospects are bleak.
71I am required to punish you justly and proportionately.
72I must also denounce your conduct.
73I must give some weight to specific deterrence in this case. Specific deterrence relates to the need to deter you from offending in the future. It is not altogether eliminated. It is however significantly reduced owing to my findings as to the application of the principles from Verdins.
74Then there is the need to adequately reflect general deterrence. General deterrence relates to the need to deter others. It ordinarily would loom large in the setting of wanton public violence and soft target armed robberies or attempted armed robberies. However, as I have said earlier, you are plainly not the appropriate vehicle for the full weight to be given to this purpose. Indeed, it is significantly reduced for the reasons I announced earlier. It is however not eliminated and I must still seek to deter others from offending in the way that you did.
75I come then to community protection. Community protection is of obvious importance here given the seriousness of your offending and the difficulties in deterring you or in your being rehabilitated. You presented a real danger to completely innocent members of the public on this night and have no real capacity to empathise or to learn from your experiences. You act in the moment impulsively and without really weighing up the seriousness of the consequences, either to you, or to anyone else. You are a real danger. The factors which engage the principles from Verdins spell out your heightened danger and high risk of offence in the future. I must protect the community from you. That surely is obvious. However, I am not entitled to pass a disproportionate sentence in the name of community protection. I must still pass proportionate and just sentences. It is just that real weight has to be given to community protection in this sentencing exercise.
76I must have regard to maximum penalties.
77I must also have regard to current sentencing practices and the impact of your crimes. The impact has been large here. You have really very significantly altered Mr McGinley’s outlook on life in this city. As for Ms Rizzo, the impacts have been very serious indeed.
78Current sentencing practices are not a single controlling factor. It is just one of the things I need to look at.
79I have looked at the online statistics for these crimes. Also the Sentencing Advisory Council Snapshot No. 265 for intentionally causing injury and 261 for armed robbery.
80Statistics have inherent limitations. Sentencing is not a mathematical task. All of the many details which would explain the reasons for a particular sentence are omitted from the data.
81I have looked at some instances of sentences for these offences as set out in the JCV case summaries.
82The fact is though that no amount of looking at other cases or at the statistics will ever provide the answer to my task. There is no such thing as an identical offence or offender. Even if one could find an identical case, committed by an identical offender, there is no such thing as one correct sentence. I have to exercise my sentencing discretion in your case. I know the details of your crimes. I know your personal circumstances. I am awake to the matters both in mitigation and aggravation in your case and I exercise my sentencing discretion in that setting.
Totality
83I have taken a last look at the orders that I intend to make and I have done that to guard against a crushing outcome and to ensure that the total effect of my sentences is commensurate with your overall criminality here. I have a very tight set of offences. If I put aside the silly smashing and throwing of the phone at around 10:50 pm, the other three offences all occurred within about 20 minutes of each other. However of those three offences, each had a different victim. The conduct of Charge 1, intentionally causing injury had no relationship to what took place in the 7-Eleven. None. It was a totally different victim and a totally different setting. Different conduct by you. A different intent harboured by you. A different impact felt by that victim, Mr McGinley. Then I have the relationship between the conduct within the 7-Eleven. So tightly related obviously, but with two separate victims; the store attendant and with the sizeable impact caused to the customer, Ms Rizzo.
84I have these 4 separate offences all with separate elements and all occurring while you were on bail. I have concluded that there must be a level of concurrency given the tight episodic nature of these events. There must however also be cumulation to adequately recognise the different serious offences and impact. Attempted armed robbery is an inherently serious offence. I believe it is open to order less cumulation for the sentence imposed on the attempted armed robbery. In a way the attempted armed robbery morphed into the more serious completed offence that targeted Ms Rizzo.
85I have considered which of Charges 1 and 3 is deserving of the greater or ‘base’ sentence. Reasonable minds really might differ on this score. The intentionally causing injury has a far lower maximum penalty but involved the completely unprovoked use of a weapon and repeated strikes to the head of an unsuspecting victim in a public place at night, causing injury and hospitalisation overnight. The armed robbery has a much higher maximum penalty but it involved no actual physical force. However, it involved you wielding a weapon in very close quarters and yelling out your demand and reenforcing your demand by issuing the nasty threat and moving towards the stunned Ms Rizzo. Each of those two offences has had sizable impact, with Ms Rizzo’s impact being larger by a decent measure. Ultimately I have reached the view that Charge 3 the armed robbery will command the base sentence but as I say, reasonable minds might easily differ on that score. In relation to Charge 1 the intentionally causing injury then, there must be meaningful cumulation to reflect the quite separate and serious crime committed upon Mr McGinley. He is not some meaningless statistic. It was a serious crime committed upon him and it must be quite separately marked out.
86Prison is a disposition of last resort. Your counsel concedes there is no other option here given the seriousness of this offending. I do not accept her submission that it is open to me to pass a sentence or sentences such that I am not required by law to fix a non-parole period. Your counsel was, in making that submission, implying that all up here, a sentence of under two years duration was open to the Court. I do not accept that such an outcome is open to me in the sound exercise of my discretion. Such an outcome would give inadequate weight to the various purposes of sentencing and would not adequately reflect the serious nature of these separate crimes or their impact.
87I must pass appropriate sentences. I must then order an appropriate level of cumulation. This will all lead to a sentence of imprisonment of a dimension where I am required by law to fix a non-parole period. Other than in a few rare circumstances set out in s11 of the Sentencing Act, when a sentence of 2 years or more is imposed, I am required by law to fix a non-parole period. I must not speculate as to whether you will be paroled or not. In fact, I must not even consider that issue. The Adult Parole Board will determine whether you will be paroled or not. It has nothing to do with me.
88I will however provide my reasons to them.
89I will in fact provide a decent gap between the head sentence and the non-parole period, a gap perhaps more in keeping with a youthful offender or a person with good rehabilitative prospects, which you most certainly do not have. It is plain enough to me that the only glimmer of hope flows from the new NDIS care team and the supported accommodation arrangement which may be put in place. So those things referred to in the Lancaster Consulting letter as well as the arrangements that might be made by the Disability Justice Coordinator, with referrals for treatment as discussed in the letter of the 28 August 2023. You need structure at almost every turn. Without it, rehabilitation is a completely forlorn hope. It is clear enough from where I sit today, that a structured release from prison would have real advantages for you but also ultimately for the community. As I say though, it will be entirely in the discretion of the Adult Parole Board as to whether you can be released on parole.
Disposal order
90There is an application for a disposal order pursuant to the provisions of s78 of the Confiscations Act. I am satisfied that the conditions for the making of that order are made out here. I have signed that order. I order that the material referred to in the schedule be forfeited to the State and be handled and dealt with in the manner contemplated by the signed order.
Indictment
91I will pass sentence in a moment. Before passing sentence, I want to make one thing very clear. I do not want the sentences that I will soon pronounce cited back to me or to any other Judge as being indicative of the sort of sentences generally on offer for offences of the level of objective seriousness as represented by Charge 1, the intentionally causing injury upon Mr McGinley and Charge 3, the armed robbery committed upon Ms Rizzo. They are not. I have fixed upon terms of imprisonment which though substantial enough, are significantly reduced owing to the constellation of mitigatory matters that I have elaborated on. (Verdins/Muldrock/Bugmy) But for those matters, you would undoubtedly have received far larger individual sentences and a head sentence well in excess of the head sentence that I will soon pronounce.
92I will now sentence you.
Sentence
93On Charge 1, the charge of intentionally causing injury, you are convicted and sentenced to 2 years 3 months' imprisonment.
94On Charge 2, the attempted armed robbery, you are convicted and sentenced to 20 months' imprisonment.
95On Charges 3, the armed robbery upon Ms Rizzo, you are convicted and sentenced to 2 and a half years' imprisonment. That will be the base sentence
96On Charge 4, criminal damage I convict and sentence you to 7 days' imprisonment.
Summary offence
97On the summary offence, you are convicted and sentenced to 7 days imprisonment. I have treated the fact of your being on bail as a matter of aggravation and so to avoid any double punishment, that sentence will be served concurrently with all other sentences. It follows that I otherwise order under s16(3C).
Cumulation
98The base sentence is therefore the 2 and a half years imposed on Charge 3, the armed robbery committed upon Ms Rizzo.
99I direct that:
· 12 months of the sentence imposed on Charge 1; and
· 4 months of the sentence imposed on Charge 2
is to be served cumulatively upon the base sentence and upon each other.
100The 7-day sentence on the summary matter will be served concurrently with all other sentences. So too the 7 days imposed on the criminal damage charge.
Total effective sentence
101Those orders for cumulation result in a total effective sentence of 46 months or 3 years 10 months' imprisonment.
Non-parole period
102I fix a period of 2 years during which you will not be eligible for release on parole.
Section 18 pre-sentence detention
103You have served already 270 days of this sentence by way of the pre-sentence detention and that s18 declaration is entered into the records of the court.
Section 6AAA.
104I have taken into account your guilty plea and have reduced your sentence accordingly. If you had pleaded not guilty and been found guilty of these offences following a trial before a jury, I would have convicted and sentenced you to 6 years' imprisonment. I would have fixed a non‑parole period of 4 years.
105Let me just see if there is anything else I need to attend to? From your perspective, Mr Tamburro, anything else I need to deal with?
106MR TAMBURRO: Nothing further, thank you, Your Honour.
107HIS HONOUR: Ms Gillahan, from your perspective?
108MS GILLAHAN: No, Your Honour.
109HIS HONOUR: You will be arranging, I am assuming, a conference with your client in due course?
110MS GILLAHAN: There's one booked this afternoon.
111HIS HONOUR: This afternoon?
112MS GILLAHAN: Yes.
113HIS HONOUR: Okay, all right. And I will revise these reasons, once I get them back from VGRS and make them available to the parties. Well there is nothing else I need to deal with then, so thanks each of you for your assistance.
114MR TAMBURRO: As the court pleases, thank you, Your Honour.
115HIS HONOUR: Just unmute Mr Pitman please. So Mr Pitman, there's been a conference that's been - I'm sorry firstly to have taken so long to get to that end point.
116OFFENDER: It's okay.
117HIS HONOUR: Ms Gillahan, has organised a conference to have a chat with you this afternoon about what's happened and your rights in relation to this, all right, so they'll - - -
118OFFENDER: (Indistinct words)
119HIS HONOUR: So they'll be in touch with you. So that completes the matter then.
120OFFENDER: Thank you, Your Honour.
121HIS HONOUR: All right, we'll disconnect the link then, thank you.
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