Director of Public Prosecutions v Puot
[2021] VCC 1005
•22 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 20-01404
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WIAA JEEK PUOT |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 May 2021 | |
DATE OF SENTENCE: | 22 July 2021 | |
CASE MAY BE CITED AS: | DPP v PUOT | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1005 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed robbery – attempted armed robbery – attempted aggravated armed robbery – attempted aggravated car-jacking – causing injury intentionally - common assault – attempted theft – cannabis dependence syndrome – cannabis induced psychotic disorder – command auditory hallucinations – no previous psychosis before commission of offences - moral culpability reduced by psychotic state – genuine remorse – previous prosocial conduct within the community – no criminal history – no history of antisocial attitudes – first time in custody
Legislation Cited: Crimes Act 1958 ss 75A, 321M, 79A, 18, 74
Cases Cited: R v Martin [2007] 20 VR 14, DPP v Arvanitidis [2008] VSCA 189, Marks v R [2019] VSCA 253 Sanyasi v The Queen [2019] VSCA 227, Worboyes v The Queen [2021] VSCA 169, DPP v Dalgliesh (2017) 262 CLR 428
Sentence: Total effective sentence of 36 months imprisonment with the a non-parole period of 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | Office of Public Prosecutions |
| For the Accused | Ms D. Price | Galbally & Parker |
| Ms R. Parker | ||
| (For Sentence) |
HIS HONOUR:
1Wiaa Jeek Puot, you have pleaded guilty to the following charges:
2Charge 1, that at Abbotsford on 6 February 2020 you robbed Owen Smith of certain money and at the time had with you an offensive weapon, namely a hammer. This is the offence of armed robbery and carries a maximum penalty of 25 years' imprisonment.
3Charge 2, that at Richmond on 10 February 2020 you attempted to rob Blare Norton of certain money and at the time had with you an offensive weapon, namely a hammer. This is the offence of attempted armed robbery and carries a maximum penalty of 20 years' imprisonment.
4Charge 3, that at Melbourne on 10 February 2020 you attempted to steal a vehicle belonging to John Costanzo and at the time of doing so, and in order to do so, had with you an offensive weapon and sought to put John Costanzo in fear that he would then and there be subject to force. This is the offence of attempted aggravated carjacking and carries a maximum penalty of 20 years' imprisonment.
5Charge 4, that at Melbourne on 10 February 2020 without lawful excuse you intentionally caused injury to John Costanzo. This offence carries a maximum penalty of 10 years' imprisonment.
6Charge 5, that at Melbourne on 10 February 2020 you assaulted Konstantinos Kyrchanidis. This offence carries a maximum penalty of five years' imprisonment.
7Charge 6, that at Carlton on 11 February 2020 you attempted to steal a motor vehicle belonging to Zhi Hui Lee. This offence carries a maximum penalty of five years' imprisonment.
8Charge 7, that at Carlton on 11 February 2020 you intentionally caused injury to Zhi Hui Lee. This offence carries a maximum penalty of 10 years' imprisonment.
9Charge 8, that at Carlton on 11 February 2020 you assaulted Gary Dickson. This offence carries a maximum penalty of five years' imprisonment.
10Charge 9, that at Docklands on 12 February 2020, without lawful excuse you intentionally caused injury to Stefan Boskovic. This offence carries a maximum penalty of 10 years' imprisonment. By reason of the operation of s10AA of the Sentencing Act 1991 I must impose a minimum term of six months unless I find that a special reason exists under s10A. It was not argued that a special reason existed in this case.
Circumstances of the offending
11The circumstances of your offending are set out in the summary of prosecution opening. This is an agreed summary and forms the factual basis on which you fall to be sentenced.
12On 6 February 2021, Owen Smith was working at the BWS liquor store at the Hive shopping centre in Abbotsford. At about 8.40 pm you entered the store, looked around briefly and then left. Approximately one minute later you returned holding a hammer and struck a monitor on the front counter, causing it to smash. You then demanded that Mr Smith open the cash register shouting 'Give me the money'. Mr Smith opened the cash register. You reached over and took between $500 and $800. You then left the store. This conduct forms the basis of Charge 1.
13On 10 February 2020, Blair Norton was working at a McDonald's store in Richmond. At approximately 2.25 pm that day you entered the store, ordered a meal and ate it in the outdoor area. Soon after finishing your meal you entered the area behind the counter where staff were serving customers and demanded the cash register be opened. You pulled a hammer out of your pants and smashed the screen of the register. Upon seeing what was in the register you said, 'Is that all?' You then demanded staff open another register which held approximately $30 in cash. You grabbed some notes and threw them onto the ground and then ran away. This conduct forms the basis of Charge 2.
14Later that day, at approximately 4.40 pm, John Costanzo was seated in his car in Little Lonsdale Street, Melbourne. You opened the driver's side door and said 'Get out of the fucking car'. You then struck Mr Constanzo with a hammer to the right arm and leg. He attempted to shield the blows with his forearm.
15You pulled Mr Costanzo out of his vehicle and continued swinging the hammer at him, causing him to fall backwards. You then stood over Mr Costanzo and continued swinging the hammer at his head before getting into the driver's seat of the car and attempting to drive away. Mr Costanzo ran back to the car and you jumped out and again hit him with the hammer. Mr Costanzo fell backwards and you stood over him for a second time and continued to hit him with the hammer. This conduct forms the basis of Charge 4.
16Konstantinos Kyrchanidis, who was witnessing what was happening, intervened to protect Mr Costanzo and you set upon him. This conduct forms the basis of Charge 5.
17You ran back to the car, got into the car and again attempted to drive away but you could not put the car into gear. Mr Costanzo ran to the car and opened the door. You then jumped out of the car and ran away when someone yelled that the police had been called. You knocked over a child as you ran away. This conduct forms the basis of Charge 3.
18Footage of the offending against Mr Costanzo was captured on a mobile phone. Police recovered your fingerprints from the driver's side door of the car. As a result of your actions, Mr Costanzo suffered cuts, abrasions, bruising and swelling to his head, arms and left knee. He required antibiotics to avoid infection.
19At approximately 6.45 am on 11 February 2020 Ms Zhi Hui Lee parked her car at the intersection of Cardigan and Elgin Streets, Carlton. She got out of the car, leaving the keys inside. You ran towards Ms Lee and got into the driver's seat of her car. Ms Lee opened the door and attempted to remove you from the car. You pushed her away and got out of the car. This conduct forms the basis of Charge 6.
20You then pulled out a hammer and used the claw end to hit Ms Lee several times in the head. She suffered three deep scalp wounds and significant bleeding. You shoved Ms Lee to the ground and she struck her face on the road surface, which caused swelling and bruising to her face. This conduct forms the basis of Charge 7.
21You got into the driver's seat. Ms Lee got up and attempted to pull you out of the car. Ms Lee screamed for her friend Josh, who ran to the car and attempted to subdue and remove you from the car. A witness, Gary Dickson, heard the commotion and ran over to help. Mr Dickson and Josh dragged you out of the car and you wrestled with them. You bit Mr Dickson on the forearm. This conduct gives rise to Charge 8. You were able to break free of them and ran away.
22On 11 February 2020 police executed a search warrant at your home in Richmond. You were not present during the search. Police located several items of your clothing that were depicted in the recordings made of the incidents the subject of Charges 1, 2, 4 and 5.
23The following day, in an attempt to locate you, police attended your girlfriend's home at Avondale Heights. You immediately fled to the rear of the house and backyard when police knocked on the door. You were arrested by police officers positioned at the rear of the property and taken to the Melbourne West police station.
24You were interviewed by Detectives Najmeddine and Stefan Boskovic. You answered 'no comment' to all their questions. You allowed the officers to take your fingerprints but declined to give a forensic sample. At 2.24 pm you were seen on CCTV walking into the interview room within the secure custody area of the police station. Detective Najmeddine had left the custody area and you were alone with Detective Boskovic. Without warning you picked up a metal chair and threw it at Detective Boskovic, striking him to the left side of his head and causing him to stumble backwards. You then charged towards him and punched him in the face three times with your right fist and once with your left fist, causing him to fall to the ground. Detective Boskovic attempted to defend himself and screamed for you to stop attacking him; however, you refused and punched him a further three times in the head with your right fist and once with your left fist as he lay on the ground.
25When Detective Boskovic managed to stand up you punched him in the head seven more times with a combination of your left and right fists. You also head‑butted him four times directly to the front of his face and kneed him once in the face. Detective Boskovic attempted to activate the duress alarm but you dragged him to the ground, causing the back of his neck to strike the metal leg of an upturned chair. Detective Boskovic stumbled out of the interview room, where you chased and punched him a further three times to the head as he attempted to defend himself. You ripped off his police identification lanyard and punched him to the head, causing him to fall to the ground. You eventually ran towards a security door with the lanyard to try and escape. Detective Boskovic stood in your way and you again punched him in the head. Detective Boskovic attempted to retrieve his lanyard, which at this point was on the floor. There was a further struggle with you attempting to obtain his lanyard. You were unsuccessful.
26At around this point Detective Boskovic managed to run to the doorway and call for help. You rushed at him from behind. You punched him to the ground and kicked him to the head several times. All this conduct forms the basis of Charge 9.
27In response to Detective Boskovic's call for help, two police officers entered the room. Initially you shaped up to them but then raised your hands and lay face down on the ground with your hands behind your back. The assault on Detective Boskovic lasted two minutes and three seconds.
28Detective Boskovic was taken to hospital and underwent numerous scans before being discharged. He suffered the following injuries:
(a) extensive facial bruising;
(b) numerous cuts, scratches and contusions to his face and upper body;
(c) lacerations to the inside of his lower lip;
(d) swelling and blackening of his left eye;
(e) cuts and bruising to his right eye;
(f) chipped upper and lower front teeth; and
(g) numerous stress fractures to upper and lower front teeth;
29He continues to suffer ongoing pain in his left shoulder and ongoing and prolonged sensitivity of the upper and lower front teeth due to stress fractures.
Victim Impact Statements
30I have had regard to the victim impact statements of Detective Boskovic and Zhi Lee tendered at the plea hearing. The impact of your offending has had significant and lasting effects upon those two victims. Impact statements were not provided in respect of the other victims, but I have no doubt your conduct towards them left them terrified.
31Detective Boskovic did not wish for his statement to be read out in open court. Out of respect for his wish I will not read out the detail of his statement, which well articulates the terrible impact your conduct has had on him and his family. It is clear to me that your sustained assault upon him not only left him with physical injuries but has also impacted on him emotionally and psychologically. The effects of your assault upon him and his family continue.
32Ms Lee speaks of the impact your offending has had on her level of confidence, trust and feelings of safety in the community. She suffers anxiety attacks in certain situations and has become highly reliant on friends and family for anything that needs to be done outdoors, such as shopping for groceries. She experiences constant nightmares where she relives the ordeal of what you did.
33Ms Lee required 11 stitches to close the wounds to her head. She suffers pain to her head region whenever light force is applied.
34Ms Lee states that if the hammer had gone an inch further than what it did she may not have been in a position to even make her impact statement. As was properly acknowledged by your counsel, it is fortunate that your attack upon Ms Lee did not result in more serious injuries to her. However, to be clear, you are to be sentenced for what occurred and not what might have been the case.
35Photographs of the injuries sustained by Ms Lee, Mr Costanzo and Detective Boskovic appear in the depositions. I have also viewed recordings of your offending at the BWS store, the McDonalds store and against Mr Costanzo and Detective Boskovic.
Background and Personal Circumstances
36I turn now to your background and personal circumstances, Mr Puot. You were born in Nairobi, Kenya in December 1995. You are now 25 years of age. Your parents fled South Sudan and were living in refugee camps in Nairobi at the time of your birth. Your father then worked in construction and your mother as a nurse. You are the second youngest of seven siblings. Your family came to Australia in 2000 as refugees when you were four years of age. In October 2017 your eldest sister died from a rare blood disorder. Not long thereafter your grandmother died.
37Your older brother is employed as a construction worker. An older sister is a lawyer working for the National Disability Insurance Scheme. Another sister is a qualified biomedical scientist and is employed as a clinical trials manager. Another sister is an accountant and works as a human resources manager. Your younger sister is in secondary school.
38In 2004, just before the birth of your younger sister, your parents separated. You remained living with your mother and sisters until approximately August 2019, when you went to live with your father. Up until then you had occasional visits only with your father. You instruct that he provided little support to the family following his and your mother's separation.
39In Australia your mother obtained further qualifications that enabled her to work as a disability support worker. She needed to work to support you and your siblings. You were largely cared for by your older sisters. In December 2017 your mother suffered a workplace injury and has not been able to return to work. Your mother and two of your sisters attended court for the plea hearing, as did your father. It would appear that you have a good relationship with your family members, who remain strongly supportive of you.
40In 2014 you completed Year 12 at St John's Regional College in Dandenong. In 2015 you commenced a Bachelor of Laws degree course at Victoria University. Whilst studying at college and at university you held a number of part-time jobs in order to provide some financial assistance to your family. This included work at McDonald’s restaurants, in a men's wear store between July 2017 and December 2018 and in May 2019 you commenced a six-month internship with the National Australia Bank. You worked on a full-time basis in the menswear store and at the National Australia Bank whilst continuing to study law at evening classes. Regrettably for you the internship was not extended beyond November 2019.
41Throughout your teenage years up to 2016 you were a very keen basketballer and had hopes of playing professionally in the NBA in the United States. Those hopes came to an end when in 2016 you suffered a back injury during a basketball training session.
42At university you were politically active and in late 2019 you became president of the Victoria University Labor Club. Your interest in politics extended beyond the university and involved you assisting the Labor Party during a federal election campaign in tasks such as handing out leaflets at polling stations.
43You were also involved with the 'Burn City Movement', which fostered young persons to record in a studio you and others had leased, and play music at various functions. You assisted in the organisation of the Harmony Festival in Dandenong, an event featuring music, live performances and dance, designed to bring different cultural communities together. In September 2019 you managed successfully to obtain funding through the Dandenong Youth and Student Advocacy Service to run a program for young persons to learn song writing, music production and recording.
44You also successfully applied to join the Greater Dandenong Young and Emerging Community Leaders Program run by Victoria Police, Leadership Victoria, the City of Greater Dandenong and the Department of Justice. The program involved you attending regular seminars on a variety of topics and you toured civil centres and the Victoria Police headquarters the between June and October 2019. As part of that program you met with senior police, whom you say made a considerable positive impression upon you.
45I was informed that you do not have any prior convictions.
46With that background it is difficult to understand how you came to commit the offences for which I am to sentence you.
47Ms Price, who appeared on your behalf, told me that your life began to unravel in late 2019.
48At that time, in addition to the pro-social activities I just described, you were working full time and studying in the evenings. Ms Price submitted that at some point all of your activities became too much for you. She submitted that your academic performance dropped, your work performance at the NAB declined, you were increasingly absent from work and your friends and colleagues at the Burn City Movement no longer delegated tasks to you. Your contract with the NAB was not renewed in November 2019. It was submitted that towards the latter part of 2019 you were increasingly relying on cannabis and, as will be explained, your use of cannabis ultimately led to serious mental health issues.
49A psychiatric report prepared by Dr David Thomas, consultant psychiatrist, dated 18 July 2020 was tendered on your behalf. I shall refer to the report in some detail as Ms Price placed great reliance upon the opinions of Dr Thomas.
50Dr Thomas assessed you on 21 May 2020 at the Thomas Embling Hospital and at the Ravenhall Correction Centre on 19 June 2020.
51You told Dr Thomas that you first experimented with cannabis around the age of 13 or 14. By the age of 19 or 20 you were smoking cannabis frequently, sometimes consuming two to three grams over the course of a weekend. Your consumption increased following your back injury in 2016. Prior to your arrest and incarceration you were smoking an average of two grams of cannabis a day.
52You told Dr Thomas you smoked cannabis regularly following your back injury as you found it helped with the pain you were suffering. You said you received poor pain relief from opiate-based analgesics and you considered cannabis the lesser of two evils. Your disability and growing dependence on cannabis contributed to the decline in your academic performance, missing classes and failing some subjects.
53In August 2019 you left your mother's home to go and live with your father. In November 2019 your six-month internship with the bank ended and, as I have already mentioned, it was not renewed despite your wishes. In early December 2019 your partners in the music business appointed someone else to run the business in place of you. You considered this to be the ‘last straw’ following all the other problems you were experiencing. You told Dr Thomas you had a lot of free time and your alcohol and cannabis consumption increased significantly during that period.
54You also told him that in late 2019 both your father and his girlfriend had become concerned about your cannabis use. They must have sensed something was wrong, as they asked you why you kept looking around, looking over your shoulder. You described to Dr Thomas feeling paranoid and not able to trust anyone. You said that you 'sometimes felt like [you] had to do something extra, like damage something' and at other times you had impulses 'to do something like smash windows'.
55When interviewed by Dr Thomas on 21 May 2020 you discussed the assault on Detective Boskovic. You described hearing voices in the days leading up to the assault, which caused you distress. The voices were often commanding in nature and you felt you were on a 'mission'. You said - 'I felt like I had superpowers ... Like I could escape from there. I felt like if I didn't escape, I was failing the mission. I felt like escaping was the right thing to do'.
56You were again interviewed by Dr Thomas on 19 June 2020. You told him that sometime in January 2020 you were involved in an incident at a 7‑Eleven petrol station in which you tried to steal petrol. When the attendant came out to the forecourt to take a picture of you, you jumped out of the car and assaulted him. You said that at the time of your offending you believed you had a special role to play and had to 'protest against the world'. You told Dr Thomas that you had been thinking a lot about your offending, trying to understand why you acted in that way. You identified a number of antecedent stressors including the loss of the high-profile job with the NAB, mounting financial pressure following your loss of income, the increase in cannabis use, the fallout with your friends and partners in the music enterprise and a growing feeling of isolation, distrust and resentment at 'the system'.
57You described increased anger at losing your bank job and at Centrelink's decision to withhold payments until the commencement of the university year in February 2020. You also described a growing belief that people were out to bring you down. You said these feelings became worse as your cannabis consumption increased towards the end of the year.[1] You told Dr Thomas that as your financial circumstances got worse, you grew angrier and very frustrated. You said you had nothing to do but smoke. The voices got worse, telling you to show anger. You said you felt compelled to do something like rob a store. You saw the robbery of the BWS store and the attempted robbery of the McDonald's store as tests that you had to pass. You described a similar mindset in relation to the attempted carjacking and the offending Detective Boskovic.
[1] Dr Thomas said end of '2020' in his report but must have been referring to the end of 2019.
58You told Dr Thomas that after you moved to your father's place in 2019 you felt people were watching you as though you were a high-profile target. You could not explain why you were a target or identify who was targeting you. You felt there was a lot of animosity towards you. You also felt that your family was in danger and you had to protect them.
59Dr Thomas spoke to your treating psychiatrist at Thomas Embling, Dr Balakrishnan. Dr Balakrishnan reported that on your admission to hospital you were floridly psychotic, irritable, agitated and aggressive. You were given a course of rapid tranquilisation with antipsychotics between 28 and 30 April 2020. You were ultimately placed on olanzapine and responded well to that drug. Dr Balakrishnan confirmed a diagnosis of drug-induced psychosis.
60Dr Thomas also spoke to your sisters Diana and Nyamach. They explained you returned to live with your mother and sisters in December 2019. Your sisters reported that your family first became aware that you had mental health difficulties just before Christmas 2019 when you told them you had been smoking a lot of cannabis and needed help. They were shocked by your admission to drug use. They arranged for you to see a psychologist in January. You saw a psychologist on one occasion only, but there is no evidence of what occurred on that occasion. Because you told your sisters the cannabis helped with your back pain, they paid for you to have sessions with a chiropractor and to attend yoga and hydrotherapy sessions. They also arranged for you to see a neurosurgeon. A course of steroid injections were planned for February 2020 but did not take place because of your arrest.
61Your sister Nyamach noted that prior to your disclosure in December you had become 'super-paranoid'. She explained that you felt people were looking for you and were watching you continuously. You would stay up all night and she would often see you peering out the window. In January 2020 you moved back to live with your father. You were apparently preoccupied that you had to return to his home to protect the family. Your sisters stated they were shocked to learn of your offences and that you had never before been violent.
62Dr Thomas was of the opinion that your back injury, ensuing inability to pursue your sporting dreams, low mood, mounting financial pressure and multiple bereavements all appear to have had a cumulative, negative impact upon your mental health. This resulted in an increase in cannabis use, a loss of motivation and a decline in your academic performance, which resulted in further worsening of mood and depression. Your cannabis intake increased significantly in the aftermath of the loss of your job with the NAB. This sustained period of heavy cannabis use is associated with the emergence of paranoid and persecutory delusion.
63Dr Thomas considers you appear to have retained a degree of insight into your mental health difficulties when in December 2019 you approached your sisters for assistance with drug use. He states that before professional help could be accessed you appear to have acted upon your delusional beliefs and left the family home to reside with your father, whom you believed you had a duty to protect from malign adversarial forces.
64Dr Thomas is of the opinion that your history of persistent consumption of cannabis, regular cravings for cannabis, increased tolerance leading to increased cannabis use, difficulties controlling your substance use, prioritising cannabis use over your basic needs and obligations is consistent with a diagnosis of cannabis dependence syndrome. Your heavy cannabis use, he said, appears to have resulted in the development of an acute psychosis characterised primarily by a delusional mood, command auditory hallucinations, persecutory and paranoid delusions, irritability and psychomotor agitation, as well as a degree of perplexity or confusion. The psychotic presentation, he said, was stable over time and was not simply the result of cannabis intoxication or withdrawal. He is satisfied that your symptoms meet the criteria for a diagnosis of cannabis induced psychotic disorder. He notes that the symptoms have resolved following treatment with antipsychotic medication.
65It is his opinion that during the period between November 2019 and February 2020 when you committed the violent offences you had developed a psychotic disorder. Your offences were in large part driven by your paranoid psychosis. Dr Thomas believes you did not understand that your conduct in committing the offences was wrong.
66Exhibit D3 is a bundle of references tendered on your behalf. I shall refer briefly to some of those references.
67Sarah Williams of the Footprints Collective has worked closely with you since approximately 2018. She was present at court during the plea hearing. Ms Williams writes of your involvement with the Burn City Movement and the support you have provided younger persons in your local area. She speaks highly of the professionalism and passion you showed in supporting your South Sudanese community and local young persons. Ms Williams is also aware of the fact you were part of the Victoria Police's Young Leaders Program. She states you had an outstanding reputation with the senior police involved in the program and you consulted with the Police Commissioner in ways to assist younger persons in your community. Ms Williams has remained in contact with you and, through your discussions, states that you are very remorseful for your conduct. She will continue to offer her support upon your release.
68Mr Kwajakwan has known you for over 10 years and is a close friend. He trained with you in basketball and speaks of your aspirations to play professional basketball. He states you were a growing leader in the community as well as a law-abiding citizen who motivated others to do well. Mr Tut, a co-founder of the Burn City Movement, has known you for over 15 years and speaks of the work you have done together on community benefit concerts. He states you are passionate about youth within your community, a natural leader, good communicator and a moral, decent person. News of what you did came as a huge shock to him and members of the community.
69Your mother provided a reference. She has been communicating with you on a weekly basis during your incarceration. She writes of your distress, shame and remorse for your conduct. She further writes that you have taken full responsibility for your actions. Your mother states that in late 2019 you made the family aware you were struggling to stay on track at work and university. Your mother firmly believes your offending is a one-off event and that you're entire family is dedicated to supporting you upon your release. I have also received references from your sisters Suzan and Nyamach, from Ifeoluwapo Tokun, Aleza Puot, Alexander Grey, your former supervisor at the NAB. Buok Duach, who also worked with you at the NAB, writes of your struggles during your internship juggling your many other commitments. All referees speak highly of you, of your intellect, of your desire to achieve and of your prosocial attitudes. They were all shocked by your uncharacteristic behaviour.
Sentencing Considerations
70The objective circumstances of your offending, particularly in respect of Charges 3, 4, 7 and 9, are serious. As conceded by your counsel, you committed a series of terrifying and violent offences in February 2020. Innocent persons were injured and, as is clear from the victim statements tendered in respect of Ms Lee and Detective Boskovic, your conduct has had a profound and lasting impact upon them. The use of a hammer must have terrified each of the victims where it was used. You struck Mr Costanzo and Ms Lee's heads with the hammer. The assault on Detective Boskovic involved many punches, kicks and headbutts at times when he was defenceless on the ground. It was a sustained violent assault lasting some two minutes and three seconds. It only ended when other officers came to the rescue.
71The maximum penalties in respect to the charges, particularly those of armed robbery, attempted armed robbery, attempted aggravated carjacking, bespeak the seriousness with which Parliament views these crimes.
72I accept the unchallenged opinion of Dr Thomas that your violent offending was in large part driven by your paranoid psychosis. I accept also his opinion that because of your psychosis you did not understand that your conduct was wrong when you committed each of the offences. In issue between the parties is whether that psychosis is relevant to issues of your moral culpability, the kind of sentence to be imposed, general and specific deterrence.
73Both counsel referred to the cases of R v Martin,[2] DPP v Arvanitidis,[3] Marks v R[4] and Sanyasi v The Queen.[5] I have had regard to each of those cases.
[2] [2007] 20 VR 14
[3] [2008] VSCA 189
[4] [2019] VSCA 253
[5] [2019] VSCA 227
74Ms Price submitted that your psychotic state is relevant and significantly mitigates your moral culpability. Furthermore, it also operates to mitigate the need for general and specific deterrence. Ms Price relied upon your then psychotic state, as well as other considerations including your good response to treatment, your prospects for rehabilitation, lack of prior convictions, strong family support and your hitherto excellent character in support of a submission that any non-parole period I impose should be shorter than what would otherwise be appropriate.
75Ms Price submitted that I may have regard to your drug-induced psychosis, as you lacked the foresight your cannabis consumption was leading to the development of a psychosis. She submitted that at the relevant time you were profoundly unwell without insight into your condition.
76Mr Brown, who appeared on behalf of the Director, submitted that the extent to which your moral culpability is reduced by reason of you suffering a cannabis‑induced psychosis depended on whether you had foreknowledge that smoking cannabis would cause you to become delusional and paranoid and the degree of that foreknowledge. He submitted that there is evidence that you had such foreknowledge. He relied on what you disclosed to your family members in late December 2019 and matters contained in Dr Thomas' report.
77No issue was taken with respect to Dr Thomas' conclusions as to your mental state at the time of your offending.
78In Martin the Court stated at paragraph [20]
'Cases can be imagined where the offender's psychotic state is drug-induced but is nevertheless treated as lessening the offender's culpability. For example, the offender might have had no awareness - because of a lack of prior knowledge or experience - that the ingestion of a particular drug might trigger a psychotic reaction. In such a case, the resultant impairment of mental capacity might be regarded as involuntary, notwithstanding that the taking of the drug was a voluntary act'.
79And at paragraph [30]
'The critical question will be what the probable consequences of the ingestion of the particular drug by the particular offender were, and whether the offender foresaw those consequences'.
80In Arvanitidis Redlich JA stated at [34]
'To lose the benefit of Tsiaras and Verdins, it was not necessary that the respondent have foreknowledge that the psychotic symptoms would cause him to behave in the precise manner in which he offended or make him generally dangerous or violent. If the respondent was aware that, by taking the drug, his judgment would be so affected that he would behave irrationally or that it would affect his ability to exercise control, his self-induced mental state would not constitute a mitigating circumstance. It was for the respondent to establish on the balance of probabilities that he did not know that the drug would have such effects. This he failed to do. The respondent's foreknowledge regarding the potential for paranoia, persecutory delusions and other forms of disorganised thought was sufficient to preclude the operation of the principle stated in Tsiaras and Verdins'.
81Whilst you, Mr Puot, are criminally liable for your offending, I find on balance that your moral culpability was significantly reduced by reason of the psychotic state you were in at the time you committed each of the offences. I do not consider you were aware of the probable consequences of you using cannabis or that you foresaw those consequences. Despite some level of awareness just before Christmas 2019 that you had been smoking a lot of cannabis and needed help, that in my opinion falls short of establishing that you knew there was 'a real risk that [you] will lose control over [your] actions'[6] should you continue to use cannabis.
[6] Sanyasi v The Queen [2019] VSCA 227
82The evidence suggests that you were quite unwell with paranoid thoughts towards the end of 2019. I accept as probable that at the relevant time you were profoundly unwell without much insight into your condition. In my opinion, your ability to think rationally was significantly compromised with the emergence of your psychotic symptoms in late 2019. I am also very mindful of the fact you had never before experienced psychosis let alone its consequences, including command auditory hallucinations and criminal offending. You had never before behaved in the way you did in committing the offences charged. I consider that without you having suffered a psychotic episode before the commission of these offences you would not have foreseen the consequences of your drug use.
83Given my conclusion, the need for general deterrence must also be moderated.
84Dr Thomas considers you have already made a good recovery following a period of compulsory treatment at Thomas Embling Hospital and that improvement had been maintained following your transfer back to prison. Dr Thomas noted you had a good degree of insight into your mental health difficulties and the links between your cannabis use, mental ill health and your offending. During the assessment you did not seek to avoid responsibility for your actions and you demonstrated genuine remorse for your actions and empathy for the plight of your victims.
85Dr Thomas was of the opinion that you lacked many of the common internal and environmental risk factors associated with violent recidivism and you have many protective factors that reduce the risk of your reoffending. I accept that opinion. Accordingly, the weight to be attached to specific deterrence will also be moderated.
86Your pleas of guilty, particularly at this time of the COVID-19 pandemic and its impact upon trial listings, are matters of significant utilitarian benefit to the court and the community. This consideration was recently affirmed in Worboyes v The Queen,[7] where the court stated:
'We consider that - all other things being equal - a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence'.[8]
[7] [2021] VSCA 169
[8] Ibid [39]
87Furthermore, your pleas of guilty have spared witnesses the trauma of having to give evidence at trial and relive their terrible experiences. Your pleas of guilty have facilitated the course of justice.
88I accept also that you are genuinely remorseful for your conduct. This remorse is well borne out in your character references and your discussions with Dr Thomas. It is consistent with your pro-social conduct within the community before you fell into the grips of psychosis. Provided you maintain your treatment as directed by medical professionals and abstain from the use of illicit drugs, I consider your prospects of rehabilitation to be very good and the risk of you reoffending to be low. You will no doubt be supported and encouraged in your efforts to rehabilitate by your family and friends. It is important in this regard also that you have no history of anti-social attitudes or negative peer associations.
89I have regard also to the fact that this is your first experience of gaol and you have been on remand during the COVID-19 pandemic. You have been subject to the restrictions imposed at various times within the gaol of lockdowns and personal visits from friends and family. You told Dr Thomas that you struggled with the 23‑hour lockdown regime.
90I have considered current sentencing practice in determining the appropriate sentences to impose in your case. However, as was made clear in Dalgleish,[9] current sentencing practice is one of a number of factors to which I am to have regard under s5(2) of the Sentencing Act 1991. Current sentencing practice is not a controlling factor. Furthermore, there is no case on all fours with your case when all objective and subjective circumstances are considered.
[9] DPP v Dalgliesh [2017] HCA 41; (2017) 262 CLR 428
91Yours is an unusual case and I appreciate that my findings may bring little comfort to the innocent victims of your offending. However, the principles of law that I must apply are well established and the sentence to be imposed will, in my opinion, best serve the protection of the community. I shall now proceed to sentence.
Sentence
92On Charge 1, armed robbery, you are convicted and sentenced to nine months' imprisonment.
On Charge 2, attempted armed robbery, you are convicted and sentenced to six months' imprisonment.
On Charge 3, attempted aggravated carjacking, you are convicted and sentenced to nine months' imprisonment.
On Charge 4, causing injury intentionally to John Costanzo, you are convicted and sentenced to nine months' imprisonment.
On Charge 5, common assault on Konstantinos Kyrchanidis, you are convicted and sentenced to three months' imprisonment.
On Charge 6, attempt to steal motor car, you are convicted and sentenced to three months' imprisonment.
On Charge 7, causing injury intentionally to Ms Lee, you are convicted and sentenced to 12 months' imprisonment.
On Charge 8, common assault on Gary Dickson, you are convicted and sentenced to three months' imprisonment.
On Charge 9, causing injury intentionally to Stefan Boskovic, you are convicted and sentenced to 12 months' imprisonment.
93The sentence imposed on Charge 7 is the base sentence. Having regard to the principle of totality I direct that four months of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 2, five months of the sentence imposed on Charge 3, four months of the sentence imposed on Charge 4, one month of the sentence imposed on Charge 5, one month of the sentence imposed on Charge 6, one month of the sentence imposed on Charge 8 and six months of the sentence imposed on Charge 9 be served cumulatively on the base sentence and on each other.
94This makes, as I understand it, a total effective sentence of 36 months' imprisonment.
95The non-parole period you will be required to serve is the minimum period that I consider justice requires you must serve, having regard to all of the circumstances of your case. The non-parole period must adequately reflect the gravity of your offending and the purposes set out in the Sentencing Act. I accept, having regard to my findings and to the arguments advanced by your counsel, it is appropriate to set a relatively low non-parole period. I direct that the minimum term you must serve before you become eligible for parole is one of 18 months' imprisonment.
96Pursuant to s18 Sentencing Act I declare the period of detention already served in respect of these offences is reckoned at 525 days not including today.
97Mr Puot, had it not been for your pleas of guilty, the sentence I would otherwise have imposed is one of 48 months with a minimum term of 32 months.
98HIS HONOUR: I make the disposal order sought.
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