Director of Public Prosecutions v Quinlivan
[2020] VCC 770
•3 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01567
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACK FRANCIS QUINLIVAN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 May 2020, 3 June 2020 | |
DATE OF SENTENCE: | 3 June 2020 | |
CASE MAY BE CITED AS: | DPP v Quinlivan | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 770 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: 1 charge of Armed Robbery and 1 charge of possess cannabis – Summary charges of committing an indictable offence whilst on bail and contravening a conduct condition of bail – offender with complex mental health, substance abuse and personality issues together with physical issues relating to back injury and amputation of lower right leg
Legislation Cited:
Cases Cited:
Sentence: Total Effective Sentence: 4 years and 1 month’s imprisonment with a non-parole period of 2 years and 1 month
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D Karamicov | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr D Sala | Emma Turnbull Lawyers |
HER HONOUR:
1 Jack Francis Quinlivan, you have pleaded guilty to one charge of armed robbery which carries a maximum penalty of 25 years’ imprisonment and one charge of possessing a drug of dependence, cannabis, which carries a maximum penalty of 1 year’s imprisonment or a fine not exceeding 30 penalty units. In addition, you have consented to two summary offences being transferred to the County Court and have pleaded guilty to those offences. They are one charge of committing an indictable offence whilst on bail, which carries a maximum penalty of 3 months’ imprisonment, and contravening certain conduct conditions of a grant of bail, which also carries a maximum penalty of 3 months’ imprisonment.
2 The circumstances of your offending are summarised in the prosecution opening upon plea (Exhibit “A”). On 13 May 2019, you booked a taxi and directed the taxi driver to take you to Eastland Shopping Centre, where you arrived at approximately 10.59am. You asked the taxi driver to wait for you and he agreed to do so. You then went to Holdsworth Bros. Jewellers on Level 2 of the shopping centre. You were using crutches as you had had the lower part of your right leg amputated below the knee some three months earlier.
3 In the jewellery shop you were served by Ms Tan. At that stage, the only other person in the store was another shop attendant, Ms Fitzgerald. You told Ms Tan that you were looking for a princess cut ring. She showed you one such ring valued at $6,000 and you then inquired about emerald rings. She then produced two emerald rings for you to view. You then asked to look at more princess cut diamond rings and Ms Tan produced another such ring valued at $4,250, which you told her was within your budget as you had $5,000 to spend. You and Ms Tan then negotiated the price of the ring. Ms Tan was prepared to sell it to you for $4,000 and you counter-offered $3,800, following which Ms Tan told you that she was prepared to sell it for $3,825, with which you agreed.
4 Subsequent to the agreement, you asked to see an emerald ring located in the cabinet behind you, which was valued at $7,500. At that stage, two customers entered the shop and Ms Fitzgerald attended to them. You asked Ms Tan if there were any other emerald rings she could show you and she left one emerald ring and one diamond ring on the viewing desk while she went to the opposite side of the store to retrieve two further emerald rings. You then took the two rings which had been left on the viewing desk. Upon noticing the absence of the rings, Ms Tan and Ms Fitzgerald asked you where they were. You announced that you were there to rob and told them to take out all their expensive items. You told Ms Tan that you had a hammer and not to do anything silly or to press the button and told her to open a cabinet which had gold jewellery in it. You became annoyed with her and told her to do it fast as you had a revolver and would shoot her, but if she did it fast you would not hurt her. You were seated at the counter and, in your lap, Ms Tan observed that you had a claw hammer, approximately 30 centimetres long with a brown handle. You told Ms Tan that you would smash the window of the cabinet if she did not open it for you.
5 Meanwhile, Ms Fitzgerald told the two customers in the store to leave and get security. Ms Tan then observed a maintenance worker, Mr Larsen, at the front entrance of the shop and she and Ms Fitzgerald ran out that entrance. Ms Fitzgerald and Mr Larsen pulled down the plastic shutter at the shop entrance to try and lock you inside. You approached the shutter and began striking it with your crutches and then tried to prise it open with one of your crutches. You told Mr Larsen, “I have a revolver and I will use it”. Mr Larsen then observed you reaching into the waist band of your pants with your right hand, so he released the shutter enabling you to leave the shop. You then returned to the taxi and told the driver, Mr Sandhu, to drive quickly as a few people were chasing you. You also mentioned that you had a gun and weapon with you. When the taxi driver dropped you off, he noted that you had possession of a brown wooden handled hammer.
6 You stole four rings, with a total value of $19,240. Two of the rings were subsequently recovered from two different Cash Converters stores where they were apparently deposited by a friend to whom you had given them.
7 You were arrested two days after the armed robbery and taken to Ringwood Police Station. A search revealed you to have in your possession a small zip lock bag containing cannabis. This was located in a knot in the right leg of your tracksuit pants (Charge 2).
8 A forensic medical officer deemed you unfit for interview and you were charged and remanded in custody.
9 At the time of the armed robbery, you were on bail for an offence of aggravated burglary which had been committed in July 2017. The commission of the armed robbery for which I must sentence you, whilst on bail, is the basis of Summary Charge 4. In addition, you were found to be in breach of one of your bail conditions in that you were not residing at the address stipulated in such conditions. This is the basis of Summary Charge 5.
10 You are presently aged 28 years, having been born on 27 May 1992. You come before the Court with a number of prior convictions of a dishonest and antisocial nature, which include a conviction on 18 March 2013 for recklessly causing injury, for which you were sentenced to a Community Correction Order, which you breached. Also, on 9 May 2014 you were convicted of attempted burglary, criminal damage and resisting police, for which you were, again, placed on a Community Correction Order, which you breached. In addition, only one month prior to the offending for which I must sentence you, you had appeared before Heidelberg Magistrates’ Court on 12 April 2019 for theft of a motor vehicle and reckless conduct endangering serious injury, for which, yet again, you were placed on a Community Correction Order, which you have breached by reason of the offending.
11 I have previously referred to you having been on bail for an aggravated burglary committed in July 2017. You pleaded guilty to that offence in the County Court earlier this year. On 25 March 2020, you were sentenced for that crime to 6 months’ imprisonment with a period of 151 days pre‑sentence detention reckoned as already served.
12 In a plea on your behalf, Mr Sala stated that you are from a background of significant disadvantage. Apparently your mother was a drug addict and she abandoned you during infancy. You and your sister were placed in the care of the Department of Human Services for a couple of years, during which your father became your primary carer. However, apparently your father was a drug dealer who was addicted to alcohol, cannabis and amphetamine. You were exposed to drugs and alcohol at a young age and your father used to take out his anger upon you. You, in turn, became dependent upon alcohol and drugs and have a history of anger outbursts. You struggled at school, both academically and with discipline, and were apparently suspended from school for fighting with peers and talking back to teachers at about Year 9 level.
13 Mr Sala stated that you had begun work as a bricklayer, but in 2010 you attempted suicide by jumping from a power pole. This resulted in you suffering a low back injury which you personally told the Court resulted in a period of 9 months’ hospitalisation at the Austin Hospital, however, you did not pursue any outpatient follow up treatment. Mr Sala stated that, following the back injury, you had some gait issues with your right foot which developed cysts on it. He stated that you did not look after your health and developed septicaemia, which necessitated you undergoing an amputation of your right lower leg beneath the knee in February 2019. No hospital records were provided to the Court, but Mr Sala conceded that, as was the case with your gait problems following the back injury, you did not attend for follow up after the amputation. Instead, you sought to treat the pain you were suffering by using drugs and alcohol.
14 Mr Sala stated that, since your spinal injury, you have had problems with urinary incontinence and, following the amputation, you continue to suffer problems with phantom leg pain. You have also suffered a lengthy history of depression. Whilst in custody, you have been prescribed Lexapro (30 milligrams) for depression and Oxybutynin for your urinary incontinence.
15 A brief letter from a general practitioner, Dr Hamid Hosseini, from Everwell Medical Centre in Nunawading dated 18 May 2010, was tendered as Exhibit “5”. This letter stated that you had been a patient of that clinic since January 2018 and had been undergoing pain management, but when I asked about the nature of the medication prescribed, I was told that it was non-prescription painkillers. The report noted a spinal fracture in 2010, bladder instability, anxiety/depression, osteoarthritis of the lumbar spine and pain management from 4 January 2018; ADHD on 20 November 2018; and right leg amputation below the knee in September (sic) 2019. Dr Hosseini stated of you:
“He has multiple medical conditions which requires (sic) multidisciplinary approach with the involvement of GP, specialists, psychologist, physiotherapists, psychiatrists, rehabilitation centres, social worker and family support. His multiple trauma during childhood as a child and raising (sic) in an environment with lots of neglects and having ADHD are his underline (sic) of his current mental health.”
He noted you had been reasonably cooperative with his management during the last two years, but makes no reference to you having been referred for the multidisciplinary treatment which he considered that you required.
16 Tendered as Exhibit “1” on the plea was a report from Ms Jennifer Sankaran, psychologist, dated 22 November 2019. She assessed you as having grown up in a chaotic home environment characterised by criminality, substance abuse, physical and sexual abuse and neglect and, as a result, you developed an insecure attachment style, chronic anxiety and depression. She stated that the availability of drugs at home and lack of prosocial role models led to poor moral and ethical values. She noted that you suffer from borderline and antisocial personality features characterised by emotional dysregulation, self-harming tendency and lack of empathy. You suffer a chronic feeling of dejection and limited coping skills and are prone to lose your temper, particularly in stressful situations. She thought your mental health issues became exacerbated after your back injury and your high level of impulsivity and low frustration tolerance encourage you to use drugs to cope with your emotional problems.
17 She considered you had limited capacity to effectively solve problems and to act with good judgment. She assessed you as satisfying the diagnostic criteria for severe Stimulant Use Disorders (alcohol, cannabis, opioid and benzodiazepine), which are in early remission whilst in custody. In addition, she considered that you satisfy the diagnostic criteria for a Borderline Personality Disorder. She noted that you suffer “a raft of rising antisocial personality features that narrowly fall short of the DSM-5 diagnostic criteria for antisocial personality disorder.” She also considered that you satisfy the diagnostic criteria for Persistent Depressive Disorder and Post-traumatic Stress Disorder (which you relate to your attempted suicide that resulted in your back injury).
18 Ms Sankaran considered that “there is a clear connection between [your] depression, Post-traumatic Stress Disorder, Borderline Personality Disorder and self-medicating with substances and [your] offending.” She stated that these disorders and your physical disabilities, including phantom limb pain, would make your time in custody more onerous than for other inmates. In addition, incarceration was highly likely to aggravate your psychological conditions.
19 Subsequent to the plea hearing on 19 May 2020, a supplementary report from Ms Sankaran dated 27 May 2020 was tendered as Exhibit “4”. She confirmed that the matters which caused her to conclude that you meet the criteria for Borderline Personality Disorder were: your affective instability and emotional dysregulation due to a marked reactivity of mood; chronic feelings of emptiness; unstable self-image; recurrent suicidal thoughts; attempts and self-harming behaviours; high impulsivity which causes you to engage in self-damaging activities including chronic polysubstance abuse and other reckless and risky behaviours; problems controlling your anger due to low frustration tolerance which sometimes culminates in physical altercations; and a pattern of unstable and intense interpersonal relationships. I here interpolate that, in the light of these matters and your known criminal history and refusal to engage in rehabilitative dispositions, I find it very difficult to accept the expressed view of your sister, Hanna Lee Quinlivan, in a reference dated 19 May 2020. Her expressed view is that you have “always been a productive and well-mannered young man, with never ending strength in his determination to correct wrongs and for self-improvement.” This is seriously at odds with much of the material before the court.
20 Ms Sankaran stated that dialectical behaviour therapy (“DBT”) is the most effective evidence-based cognitive behavioural treatment for Borderline Personality Disorder, particularly self-harming behaviours, which involves a comprehensive program of individual and group-based therapy. She considered you might also benefit from trauma-focussed therapy to deal with your childhood trauma related to physical and sexual abuse that perpetuates your borderline personality features, and also mentalisation based therapy and schema therapy.
21 She stated that the general prognosis of Borderline Personality Disorder is much more promising than Antisocial Personality Disorder and the prognosis is improved with the willingness of the client to engage in a long term intervention process and to test and practise his newly learned skills. She noted that borderline personal disorders tend to “burn out” so that often those with them begin to see improvement in their functioning by the time they are 35 to 40 years old, with limited interventions.
22 However she noted that your antisocial personality features are intermingled with your emotional dysregulation and impulsivity which are the core features of Borderline Personality Disorder. The antisocial features of your personality which she noted were: your failure to conform to social norms with respect to lawful behaviours; being deceitful and manipulative as indicated by repeated lying; a pattern of impulsivity or failure to plan ahead; reckless disregard for the safety of self or others; and a significant level of irritability and aggressiveness.
23 She stated that cognitive behaviour therapy (“CBT”) is the best approach to treating antisocial personality features but she noted that your reckless and impulsive behaviours are exacerbated with drugs and that motivational enhancement therapy and relapse prevention programs are recommended to manage your chronic drug abuse and associated criminal activities. She also considered that you would benefit from interventions including stable housing, vocational rehabilitation or disability support to rebuild your life in the community. She considered that you needed a comprehensive intervention program to address your personality issues but it was equally important to address your diagnosis of Substance Use disorder, Post-traumatic Stress Disorder, Persistent Depressive Disorder and phantom pain symptom, including referral to a pain specialist.
24 It is trite to say that the borderline and antisocial personality traits, multiple psychological disorders and physical problems present a complex picture. However, I also note that Ms Sankaran noted that your profile indicated a tendency to devalue yourself by overrepresenting emotional and personal difficulties which indicate a “cry for help” from an individual experiencing extreme distress and emotional turmoil.[1] She stated that she had no way of confirming your historical details and the possibility of exaggeration, minimisation or confabulation cannot be immediately ignored.[2]
[1]Page 2 of Exhibit “1”
[2]Page 3 of Exhibit “1”
25 In this regard, I note that you told Ms Sankaran that you had no recollection of the events of the armed robbery. However, you were able to give her very specific details that you were affected by .5 grams of heroin, 3 grams of cannabis, .2 grams of ice and approximately 10 tablets of Xanax and four tablets of Endone.[3] In addition, although the armed robbery was committed in an unsophisticated way in that you were not disguised and you were on crutches, it is plain that there was some premeditation of this crime. You called a taxi and directed the driver to take you to the Eastland Shopping Centre and went forthwith to the jewellery shop, whilst armed with a hammer. At the jewellery shop, there is no suggestion that you were other than lucid in describing the types of rings in which you were interested and negotiating a price for one with Ms Tan. You also asked the taxi driver to wait for you, which he did, and you navigated your way back to the waiting taxi promptly and without any apparent confusion.[4] This enabled you to have available to you the means for making a hasty exit after committing the armed robbery. The matters to which I have just referred show a degree of consequential thinking which, in my view, is not consistent with a person substantially affected by the cocktail of drugs which you described to Ms Sankaran or with the description of your sister that you were in a “psychosis-like mania”,[5] although I accept that it had been a very difficult time for you following the amputation procedure.
[3]Page 5 of Exhibit “1”
[4]Erik Larsen, in his statement to police, dated 24 May 2019 at p. 3 stated: “I opened the shutter so that he could get out. He got away pretty quickly on his crutches…he exited the shopping centre via the Level 2 west entry. He went right out the entrance, used the pedestrian crossing and did a right into the first lane of parking and then another right where I saw him get into the front passenger seat of a yellow coloured taxi.”
[5]Exhibit “8”
26 The law acknowledges that a dysfunctional and disadvantaged background like yours can have long lasting effects. I accept Ms Sankaran’s opinion that your chaotic home environment characterised by criminality, substance abuse, physical and sexual abuse and neglect caused you to develop an insecure attachment style, chronic anxiety and depression. However, it is far from clear as to what the respective contributions of your Persistent Depressive Disorder and Post-traumatic Stress Disorder, severe long-term substance abuse and Borderline Personality Disorder and anti-social personality traits make to your offending. You have repeatedly been given opportunities by courts to address both your mental health and substance abuse issues. As far back as 2011, you were given a disposition by way of a without conviction adjournment on condition that you cooperate in relation to medication and psychiatric treatment. No material has been presented to the Court that you did engage in any significant way with medical or psychiatric treatment. Indeed, your counsel acknowledged that you neglected your own health, both subsequent to the back injury and even after you had an infected foot which led to the catastrophic consequence of the amputation of the lower half of your right leg. In the Magistrates’ Court you were given Community Correction Orders on three occasions (18 March 2013, 9 May 2014 and 12 April 2019), each of which you breached. Each of those three Community Correction Orders gave you the opportunity to obtain assistance for your substance abuse and dependency and mental health issues but you simply did not take advantage of it. As I have already mentioned, the armed robbery for which I must sentence you was committed only one month after you had last been given such an opportunity.
27 The Court was told that you have abstained from illicit drug taking whilst in custody and, if that is so, it is to your credit. This was supported by some drug screens and drug testing result summaries tendered as Exhibit “6”. In addition, you have completed courses in custody: a healthy lifestyle plan program, a “Take Stock A and B” programs and a “Family, Friends and Community” program (Exhibit “7”). In the context of a very long term substance abuse problem, abstinence for one year, albeit in a controlled environment like a prison, is significant, as is your undertaking of rehabilitative programs. However, these are very early steps in rehabilitation.
28 In sentencing you I take into account as part of your personal circumstances that you do suffer a complex combination of psychological and physical problems and I accept that serving a period in custody with those problems is likely to be more onerous for you than for a prisoner in normal health. I specifically note that, to date, you have not been permitted to use crutches in custody. However, an affidavit from Ms Jennifer Ann Hosking, Acting Assistant Commissioner of the Sentence Management Division of Corrections Victoria, dated but unsworn 2 June 2020 (Exhibit “B”), indicates that consideration of your using crutches may take place following a recent physiotherapy appointment on 1 June 2020.[6] Nevertheless, up until now, you have been confined to a wheelchair in order to navigate your way about the prison. I accept your counsel’s submission that this not only places restrictions on your movement within the prison but, also, makes you stand out as someone with a vulnerability of whom other prisoners may take advantage which would likely heighten your level of anxiety. I also take into account as a mitigating factor that there is a serious risk of imprisonment having a significant adverse effect upon your mental health.
[6]Exhibit “B” at [71]
29 I acknowledge, also, that from August 2019 to February 2020, you have required medical appointments in relation to prosthesis review and orthotics and, more recently, for a kidney infection.[7] I accept that your physical and mental health issues provide particular difficulties for you, many of which are referred to in the document appended to your letter of apology (Exhibit “5”). You continue to have ongoing one-to-one counselling with Caraniche, as well as an ongoing appointment with a psychiatrist.[8] Although this is far from the all-embracing, multi-disciplinary treatment recommended by Ms Sankaran, at least you are engaging with the treatment available in custody, which is more than you did whilst in the community.
[7]Ibid [14] – [20] and [41]
[8]Ibid at [72]
30 I refer specifically to Exhibit “B” and take into account that there has been an extra burden placed on prisoners during the COVID-19 pandemic at most prisons. This has included less out of cell time in order to facilitate social distancing and the suspension of contact visits to prisons, as well as the reduction of a number of rehabilitative programs. I take this extra burden into account in your case, although I note that from 8 April 2020, you have been housed at Marngoneet in a mainstream unit where you have a carer employed to assist your daily needs and assistance from nearby prisoners when necessary. You have a cell that caters for a recently provided new wheelchair and non-slip shower mat and a shower chair.[9] At the moment, there is no limitation on out of cell hours and all mainstream prisoners continue to receive 12 hours out of their cell each day. Visits via Skype are also being provided. However, I do take into account that, although there are no positive cases of COVID-19 in the prison population at present, the future is uncertain.
[9]Ibid at [36] – [39]
31 You are to be given credit for your early pleas of guilty and I find that they have substantial utilitarian value, particularly by saving your primary victim, Ms Tan, or any of the other people who witnessed your terrifying behaviour from giving evidence. Mr Sala submitted that I should find your pleas of guilty to be remorseful, given that it was recorded in the psychological report that you “expressed regret for your actions and said, ‘I am sorry. I accept the punishment, hoping I can one day redeem and be a positive role model. Maybe my story can change someone’s life.’”[10] He also relied upon a reference from your partner, Ms Rachael Angelotti, who has known you for five years, and who stated: “I can attest first handed to Jacks [sic] strong regret, remorse and his acknowledgment of the areas within himself that he has been working on and wishes to continue to work on, that lead him on the path to committing this crime.” (Exhibit “2”) Also, in Exhibit “5”, you apologised for your “foolish actions” and your “wish to apologise to all those involved.”
[10]Exhibit “1”, p. 5
32 Whilst I accept that you may have some remorse, the above statements statements appear to focus more on the impact upon you and wishing to reform yourself, rather than articulating the terrifying impact that your behaviour must have had particularly on Ms Tan. In this regard I note that Ms Sankaran stated that you “have minimal insight into [your] offending behaviour and general psychological functioning.”[11] She noted that your borderline and antisocial personality features were characterised by, amongst other things, a lack of empathy. It may be that the expressions of regret to which I have referred are as much remorse as someone like you with a Borderline Personality Disorder can manage. Nevertheless, you are entitled to a meaningful discount upon the sentence which otherwise would have been imposed, particularly for the acknowledgment of your legal responsibility and preparedness to facilitate the course of justice.
[11]Page 3 of Exhibit “1”
33 Mr Quinlivan, you should be in no doubt as to the seriousness of the offence of armed robbery. It was a brazen offence, committed in broad daylight, in circumstances where you convinced the two female shop attendants that you were interested in purchasing a ring. Ms Tan told the police that, prior to making the threats, you spoke calmly and lightly and she believed that you were genuine about wanting to buy a ring.[12] Ms Fitzgerald told police that you said you’d come in to a lot of money and stated to Ms Tan “I hope you’ll look after me because I will buy some other stuff.”[13] I have previously referred to the evidence which indicates a degree of preplanning. Every person in the community should be entitled to engage in their employment without fear of being terrorised by an armed robbery, as these two women were. Not only were you armed with a hammer, but you caused your victims to believe that you also had a revolver, which you would use if Ms Tan did not promptly address your demands. Ms Tan told police that you really scared and worried her and afterwards she was shaking.[14] Ms Fitzgerald told police that she felt scared and nervous and panicked and it caused her a great deal of stress.[15] They were not your only victims. There were two customers, as well as Mr Larsen to whom you repeated the threat to use a revolver whilst making it appear that you had one in the waist band of your trousers. Although you did not have a gun, your victims were not to know this. Mr Larsen stated that you were really agitated as you were striking the shutter with one of your crutches trying to force it open and, when you threatened to use your revolver and you reached into your pants, he assessed the danger as too much and let you go.[16]
[12]Statement of Ms Tan, dated 13 May 2019 at p. 2-3
[13]Statement of Ms Fitzgerald, dated 13 May 2019 at p. 1
[14]Statement of Ms Tan, dated 13 May 2019 at p. 3
[15]Statement of Ms Fitzgerald, dated 13 May 2019 at p. 3
[16]Statement of Erik Larsen, dated 25 May 2019, p. 2
34 Armed robbery is a prevalent offence and in sentencing for it the Courts must denounce your conduct and place emphasis upon general deterrence as well as protection of the community. In your case, given that this offending was committed whilst you were on bail and also subject to a Community Correction Order and that you have been given multiple rehabilitative dispositions by the Courts in the past, I also consider that there is a need to place emphasis upon specific deterrence.
35 The fact that your counsel states that you have been free of illicit substances since you were taken into custody on 15 May 2019 is, as I have said, in your favour. However, given that you have been abusing both alcohol and illicit drugs for approximately a decade, it will take far more than abstinence for a year to address your very significant problems. Whilst I do take into account your deprived upbringing which courts acknowledge can continue to compromise your ability to develop normally and learn from experience, there are a number of competing sentencing considerations, which include protecting the community from violent and dishonest offending and sending a message to those who might be minded to commit such offending that they will be appropriately punished.
36 Your partner, Ms Rachael Angelotti, in her reference (Exhibit “2”) states that notwithstanding that she was supportive of you, you claimed that you did not want to be a burden and so became homeless and were sleeping in a park on 27 February 2019 at a point where your foot had become seriously infected and resulted in the surgery for amputating your lower leg the following day. She described you leaving the hospital on the night after you had the procedure because your depression and drug addiction had caused you to spiral down to become so careless. She stated that you had no will to live and committed the armed robbery “in an act of desperation and a cry for help”. I must say that I find such an extraordinary “cry for help” a somewhat simplistic explanation, given your history of committing dishonest offences related to your long-term substance abuse. Unfortunately, your mental health issues, various personality factors and long-term substance abuse have now become so intertwined that it would be very challenging to tease out which aspect is causally responsible for your behaviour. However, where courts have repeatedly tried to give dispositions which will assist you and you have repeatedly failed to engage with measures designed to help yourself, there is a limit to what further consideration can be given to you.
37 Ms Sankaran’s views about your emotional dysregulation, lack of empathy and minimal insight into your offending, behavioural and general psychological functioning are very worrying. She considers your condition to be “severe” and to require structured, long-term, multi-disciplined treatment by way of a weekly intensive session for a minimum of a few months. She states that this requires your commitment to the process and noted that you are “likely to present with a number of challenges in terms of your safe management in the community.”[17]
[17]Exhibit “1”, page 6
38 Your counsel has acknowledged that you have a number of matters pending in the Magistrates’ Court. These apparently relate to three different alleged episodes of dishonesty or other offences or breaches, said to have been committed on various dates in 2019. The last pending offence was allegedly committed on 13 May 2019, that is, on the evening of the day that you committed the armed robbery for which I must sentence you. Obviously, it is no part of my role to deal with you for any of these offences. I am mindful that you have only just turned 25 years of age. It would be wrong of this court to condemn you as having no prospects of rehabilitation, but I am far from optimistic about those prospects in the light of your many entrenched psychological and personality issues and your repeated refusal to engage in rehabilitative dispositions made by courts in the past.
39 In all of the circumstances, I find that there is no sentence appropriate other than a term of imprisonment. However, I consider that notwithstanding the lack of optimism I have about your prospects of rehabilitation, the complexity of your mental health and personality issues, together with the ongoing physical issues associated with your partially amputated right leg, lower back injury and urinary incontinence, will mean that very significant guidance and support will be required once you are released back into the community. For this reason I propose to set a non-parole period which is lower than your prospects of rehabilitation might otherwise indicate to be appropriate.
40 On Charge 1, armed robbery, you are convicted and sentenced to be imprisoned for a period of 4 years.
41 On Charge 2, possession of a drug of dependence, you are convicted and discharged.
42 On Summary Charge 4, committing an indictable offence whilst on bail, you are convicted and sentenced to be imprisoned for a period of 2 months.
43 On Summary Charge 5, contravening a condition of bail, you are convicted and sentenced to be imprisoned for a period of 1 month.
44 The base sentence is that of 4 years’ imprisonment imposed on Charge 1. I direct that 1 month of the sentence imposed on Summary Charge 4 be served cumulatively upon the base sentence. Save for such cumulation, the sentences imposed this day are to be served concurrently.
45 The total effective sentence is thus 4 years and 1 month’s imprisonment.
46 I direct that you serve a period of imprisonment of 2 years and 1 month before becoming eligible for parole.
47 Mr Quinlivan, you need to be very aware that the decision as to whether you are granted parole is for the Adult Parole Board, not for me. I note from the affidavit of Ms Hosking that your behaviour in custody has not always been ideal and has resulted in some management consequences. If you make a habit of bad behaviour in custody, that is likely to impact on the decision on whether you are granted parole. However, as I have said, that is entirely a matter for the Adult Parole Board.
48 I declare a period of 369 days pre‑sentence detention as time reckoned as already served under the sentences imposed this day.
49 Pursuant to s6AAA Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 6 years with a non-parole period of 4 years.
50 As Charge 2, possession of a drug of dependence is a Schedule 1 offence pursuant to the Confiscation Act 1997, pursuant to s78(1) of the Act, I direct the forfeiture to the State of one zip lock bag containing cannabis and I further direct that it be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
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