Director of Public Prosecutions v Rastrick
[2017] VCC 1824
•1 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-00635
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGELO RASTRICK |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2017; 13 October 2017 | |
DATE OF SENTENCE: | 1 December 2017 | |
CASE MAY BE CITED AS: | DPP v Rastrick | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1824 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed robbery – Plea of guilty – whether causal or real
connection with intellectual disability and offending – general deterrence – remorseful offender – youthful offender – significant rehabilitation
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Verdins & Ors (2007) 16 VR 269; Bowen v R [2011] VSCA
67; O’Connor v R [2014] VSCA 108; R v O’Neill (2015) 47 VR 395; Harman (pseudonym) v R [2017] VSCA 169; Muldrock v R (2011) 244 CLR 120
Sentence: Community Corrections Order imposed for 30 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Weavers | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms N. Valos | Valos Black & Associates |
HIS HONOUR:
1 Angelo Rastrick, you have pleaded guilty to one charge of armed robbery. The maximum penalty for that offence is 25 years’ imprisonment.
2
The circumstances giving rise to your offending were that, at approximately
4.50 am on 15 March 2016, you, together with two other males, went to the United Service Station at 821 Melton Highway in Hillside. The only person in that store at the time was the console operator, Mohammed Haque. The lock to the door of the store was not working properly. Mr Haque had placed a metal rod through the handles of the door to secure it. When Mr Haque saw you and your co-offenders approaching, he ran back behind the counter, towards the “staff only” area at the back of the store. The metal rod securing the door was dislodged and once inside the store, one of the other co-offenders picked up that metal pole.
3
At the time, you were wearing black pants, a black hooded jumper and the hood over your head, with a black baseball cap. You disguised yourself by tying
a green bandana around your face. You carried a small “Hart” brand hatchet, a photo of which comprises Exhibit “B”. Your co-offenders were similarly disguised. Gloves were also worn. Once inside the store, you and the others chased Mr Haque into the “staff only” area of the store, where he locked himself in the toilet cubicle.
4
Ms Andrews, who appeared on behalf of the Director, tendered CCTV footage
(Exhibit “C”) from within the store, which graphically shows your violent actions. In the footage you can be seen attempting to kick in the door of the toilet cubicle and strike at its handle with the hatchet.
5 Shortly afterwards, you moved to the service counter, where the cash register was taken and you and the other co-offender filled a bag with cigarette packets. A plastic tray of cigarettes was also taken. On leaving the store, you and the others climbed an adjacent fence and jumped into a vacant block. The hatchet, the metal pole, the plastic tray and multiple packets of cigarettes were later found by investigators in that vacant block.
6 In all, $615 in cash and $5,900 worth of cigarettes were stolen. Approximately half the stolen cigarettes were recovered in the vacant block and returned. The cash register and tray were discovered the following morning in a burnt-out vehicle in the vicinity of the service station.
7 As part of their investigations, police obtained CCTV footage from Bunnings Warehouse in Melton, which showed you purchasing a small “Hart” brand hatchet at about 4.40 pm on 14 March 2016, that is, about 12 hours before the commission of this offence.
8 DNA analysis of a biological sample taken from the handle of the “Hart” hatchet located in the vacant block, provided “extremely strong support” for the proposition that you were a contributor to that biological material.
9
Eleven days after this offence, you were arrested at the house of a friend. At the time, police located a baseball cap, which appeared to have been worn by you at the time of purchasing the hatchet, together with gloves which bore
a strong similarity with those worn by the offenders at the time of the armed robbery. In a record of interview with police, you denied involvement.
10 The summary of prosecution opening (Exhibit “A”) more fully describes the circumstances of your offending and I will annex it to these reasons. Mr Patton, who appeared on your behalf, took no issue with that prosecution summary.
Gravity of offending
11
There can be no doubt as to the seriousness of this type of offending and of this offence in particular. Although no victim impact statement was tendered,
I readily infer that any person in the position of Mr Haque, would very likely be scarred by the experience. He was alone in this store in the very early hours of the morning and as such, was in a very vulnerable position. You and your
co-offenders callously exploited that vulnerability.
12
I have carefully reviewed the CCTV footage. It shows Mr Haque reacting to your entry, vainly attempting to shut the staff area door, then running to the toilet cubicle and locking the door, which you kicked and struck with the hatchet. That part of the offence occurs over a period of about 15 seconds. During those seconds, Mr Haque was subjected to what would have undoubtedly been
a terrifying experience.
Personal circumstances
13 I will now turn to your personal circumstances. You were born on 29 November 1997 and you were 18 years of age at the time of the offence.
14 Significantly, you have an intellectual disability. A certificate under the Disability Act 2006, dated 21 April 2015, was tendered on your behalf (Exhibit 5). The certificate confirms that you have “significant sub-average general intellectual functioning and significant deficits in adaptive behaviour”.
15 It appears that the basis of this declaration was derived from a psychological assessment, which you undertook in 2009. That report was not available on the plea.
16 Your disability had a significant effect on your personal upbringing. You are one of ten children, however you were sent to live with your paternal grandparents, Agasa and Pepe Cialatu, when you were four years of age. This was apparently due to your high needs.
17 Thereafter, you commenced your schooling at mainstream primary schools, where you experienced a lot of learning difficulties and where you were bullied because of your obvious intellectual deficits. You struggled with concentration, memory and basic concepts. You were seen as being different from other children. You were understandably unhappy and lonely.
18 Finally, by Year 7, you were sent to a special school in St Albans. You attended that school for one-and-a-half years and when your grandmother moved to Melton, you then attended a special school in that area. During this time, you returned to live with your parents for a short time, but because your siblings taunted you about your differences and the fact that you attended a special school, you went back to live with your grandparents.
19 You left school, having completed Year 8. You have since worked reasonably consistently in a meat processing factory and as a labourer, before your father was able to organise employment for you in an excavation business, once you had been granted bail. You have been employed since you were about 18 and a half and have generally worked six days per week.
20 You are able to function at a reasonable level within the community because you can perform basic living tasks and have relatively good verbal communication skills. However, your capacity to process multiple pieces of information and more complex tasks is limited. When faced with situations beyond your capacity, you quickly become overwhelmed. You require the assistance of your girlfriend or members of your family to often help you.
21 Your grandparents have provided a moving reference, detailing the difficulties you experienced when you went to live with your father in approximately 2009. They describe how you attended Sunvale Primary School, but were soon transferred to a specialist school in St Albans and that you were diagnosed with attention deficit hyperactivity disorder (“ADHD”). Your grandparents remain close and supportive of you, as their attendance in court demonstrated.
22 I am told you do not use illegal drugs and have no issues with substance abuse or addiction, save that you have, at times, engaged in binge drinking. I note there appears to be no nexus between your offending and the abuse of alcohol or any other substance.
23 You have some relevant prior matters for robberies of mobile phones from other young people, arising in July 2011 when you were 13 and in July 2014, when you were 16.
24
At the time of the commission of this offence, you were living in a tent in your parents' backyard with your girlfriend, Nalordius Stanley. You were unemployed and effectively homeless. Mr Patton explained that you approached acquaintances to try to borrow money, but instead, you were persuaded to engage in this offence. You were said to be desperate at the time. It was also suggested that your intellectual disability was a factor to be taken into account in explaining your decision to involve yourself in this offending.
I will return to that contention in a moment.
25 After your arrest on 26 March 2016, you were remanded in custody for 16 days. You were granted bail, on condition that you resided with your aunt and uncle, Ada and Saifoloi Samuelu. You have continued to reside with them since that time. Both Ada and Saifoloi Samuelu, have provided references of 31 July 2017, which confirm that you have made some very positive changes in your life. In particular, you have maintained full-time employment; you have remained in a stable relationship with your girlfriend; you have joined a gym; you attend church with your aunt and uncle; you have complied with all of your bail conditions; and it is not alleged that you have committed any further offences, other than a driving matter. Your aunt and uncle have indicated that they will continue to provide their support for you. On the strength of all the references tendered on your behalf, I am well satisfied of your remorse for this offending.
26 Your current employer, Lou Bevilacqua, confirmed in his reference, that you had been employed by Pescatore Constructions in a full-time capacity since 9 November 2016, working five days per week between the hours of 7 am and 4 pm. You work for Mr Bevilacqua as a labourer and was said by him to be reliable and trustworthy.
27 Your bail was supervised by Ms Donna Ascher, a senior court advice officer at the Sunshine Magistrates’ Court. Ms Ascher provided a report of 28 February 2017, at the time your bail was varied, in which she confirms your stable employment and accommodation. Ms Ascher states:
“Angelo’s life is very stable, as he is employed full-time, often working extensive hours, seven days a week; in a long term relationship; attends the gym on a daily basis, either before or after work; he is financially comfortable; and he has no substance abuse issues; and has extensive family supports to provide guidance.”
28 Ms Ascher recommended the removal of the supervision component of the youth justice condition on your bail, on the basis of your positive progress.
29
On your plea, Mr Patton called oral evidence from Ms Suzanne Pengelly,
a disability justice case manager, employed by the Department of Health and Human Services, Disability Services. Ms Pengelly had been working with you for over 12 months. By reason of the fact that you had been able to maintain and secure employment; that you were extensively supported by your family; that you had stable accommodation; and no apparent substance abuse problems, she explained that her engagement with you had been relatively limited. In her assessment, you now did not require the level of support that many others with your disability would, because of the progress you had made and what she called your high level of motivation to continue moving forward.
30 A further helpful reference was also provided by your girlfriend, Ms Stanley, who sets out the difficulties you and she encountered at around the time of the offence, the effect the remand period had on you, and the significant gains that have since been made.
31 You pleaded guilty to this offence at committal proceedings on 29 March 2017. One other person was initially charged with this offence, however, that charge has now been withdrawn. Accordingly, you were the only person to be dealt with for this offending.
Further reports
32 On the plea, an issue arose as to the relevance of your intellectual disability and whether or not the principles in R v Verdins & Ors (2007) 16 VR 269, 275-6 [27]-[30] were engaged. Apart from the statement of eligibility provided by the Department of Health and Human Services, there was very little information that assisted in resolving the issue.
33 The matter was adjourned to enable the provision of further material and on its return, I was provided with the following reports:
·First, an extended pre-sentence assessment from the Sunshine office of Community Corrections, 19 September 2017.
·Second, a client overview report and justice plan from the Department of Health and Human Services, 6 October 2017.
·Third, a youth justice centre order suitability report, 2 October 2017.
·Fourth, a neuropsychological report, of Dr Loretta Evans, 9 October 2017.
34
Dr Evans’ report, in particular, has been very helpful in understanding with
a much greater degree of detail, the nature of your intellectual disability. You now have a full-scale intelligence quotient of 74. Dr Evans opines that you demonstrate symptoms consistent with a diagnosis of intellectual disability. Specifically, the deficits you displayed related to both intellectual and adaptive functioning. You have:
(a)Intellectual deficits in reasoning, problem solving, planning, abstract thinking, judgement, academic learning and experiential learning;
(b)Adaptive deficits in communication, social skills, and personal independence; and,
(c)These symptoms were evident in childhood and were present in multiple settings and interfered with your academic and social functioning.
35 In addition, it was Dr Evans’ opinion that your current cognitive profile reflects global deficits in attention. Your history demonstrates symptoms that are suspicious of a diagnosis of ADHD on a background of likely borderline intellectual functioning. There were times when you impressed Dr Evans as somewhat childlike during her assessment of you.
Submissions by the parties
36 As to submissions by the parties, in his submissions as to sentence, Mr Patton emphasised three matters on your behalf.
37 The first was your youth, the second was your intellectual disability and the third was the fact that you appear to have completely turned your life around.
38 As to your youth, you were 18 at the time of the commission of this offence and you have just turned 20. He argued, consistent with well-recognised sentencing principles, that your rehabilitation should be a central purpose in the formation of sentence.
39 Mr Patton emphasised the changes that you had made to your life since April of 2016, when you were granted bail in respect of this matter. He suggested your prospects for rehabilitation should be seen as being very good, because you have been able to essentially remain offence-free; you have maintained full-time employment; a stable relationship; and a stable home environment. It would not be in your interests, but more importantly it would not be in the interests of the community, he contended, to interrupt the very real progress you have made by sending you back into custody.
40 After the further reports were obtained, Mr Patton argued that the principles in Verdins’ case were applicable to your situation. In the predicament that you found yourself, just before you committed this offence, it was said that you were desperate, vulnerable, and easily exploited.
41 In that situation, your limited ability to reason and make rational decisions and to weigh up the consequences of your actions, was likely to have been operative when you decided to become involved in this offending. This helped to explain your offending, it was submitted, and constituted a realistic connection between the offending and your intellectual impairment.
42 Mr Patton particularly relied on Dr Evans' report and her opinion as to the interaction of your disability with the offending. The following passages from her report were said to be supportive:
“Whilst Mr Rastrick is well able to understand the wrongfulness of his actions, his insight, together with his limited ability to reason, or anticipate future consequences, is considered borderline. Hence, it is considered that his cognitive functioning and inability to fully appreciate the short and long-term impact of his actions, is a potential contributing factor to his offending behaviour”.
43 Dr Evans suggested that your poor non-verbal reasoning skills made you “potentially vulnerable and easily exploitable”. She thought you were:
"Highly impulsive and consequently will tend to act based on emotion rather than rational thought, meaning that under situations of stress, he demonstrates the potential to revert back to well learned, automatic responses (that is, defensive or maladaptive behaviours).”
44 As to an assessment and opinion of your moral culpability in light of your intellectual disability, Dr Evans stated:
“Mr Rastrick’s level of cognition indicates he is able to appreciate the impact and wrongfulness of his actions at a basic level and in this regard, he has consistently stated his remorse. However, his capacity for reasoning is simplistic and when combined with deficits in impulsivity, fragmentation to thinking and a degree of learned helplessness, his capacity to fully appreciate consequences, to weigh up the pros and cons of particular decisions, or to consider the impact of his actions from multiple perspectives, is limited. Hence, it is considered that his cognitive functioning is a potential contributing factor to his offending behaviour.”
45 Finally it was submitted that custody was likely to be more onerous on you, having regard to Dr Evans' opinion that your level of cognitive functioning indicates that you are:
“Likely to be easily led, tending to follow others. Therefore, the possibility of bullying, exploitation or exposure to negative influences, whilst incarcerated, is potentially high. Furthermore, given his ability to inhibit his thoughts or actions is poor, the likelihood of reactive behaviours is also considered high, which may be an additional negative consequence of his imprisonment.”
46
In her submissions on behalf of the Crown, Ms Andrews set out what she submitted were the aggravating features of this offence. First, the offence involved a degree of pre-planning. Second, you and your co-offenders went to some trouble to ensure that you were heavily disguised. Third, in carrying out the armed robbery, you pursued Mr Haque into the toilet cubicle and attempted to kick the door in and break the handle with the hatchet. Those actions must have been terrifying. Fourth, Mr Haque was a vulnerable target. Fifth, this offence was committed whilst you were subject to a bond to be of good behaviour imposed at the Sunshine Children’s Court on 27 August 2015. I note that one of the offences for which you were placed on that bond involved
a charge of robbery, where you stole a mobile phone from a victim, after pushing that person several times and threatening to stab him, although no weapon was produced.
47 Ms Andrews emphasised, in her submissions, the prevalence of this serious offence. She submitted that, whilst it could not be said that you were the mastermind of this planned armed robbery, it was clear that you had armed yourself with a hatchet and had subjected the victim to a terrifying ordeal, by pursuing him and attempting to break down the door behind which he was hiding. Whilst acknowledging your youth and intellectual disability, she submitted that the offence was too serious to be dealt with by a community correction order alone. General and specific deterrence and protection of the community demanded the imposition of a custodial sentence. In the circumstances, however, it was submitted that a youth justice centre order would not be inappropriate.
48 Ms Andrews also pointed to your prior history which, whilst not as extensive as some, included two appearances, involving a total of four robberies, dealt with in the Children’s Court. This offending, she argued, marked an escalation in your criminality.
49 As to the application of the Verdins’ principles, Ms Andrews argued that those principles did not dictate the automatic mitigation of a sentence, simply because the offender suffered from a mental illness or intellectual impairment. What was required, she argued, was careful scrutiny and assessment based on cogent evidence of the relationship between the alleged impaired mental functioning and the offending.
50 As to such an assessment here, Ms Andrews referred to what was said by Chief Justice Warren in Bowen v R [2011] VSCA 67 to the effect that impaired mental functioning that only forms the background to the commission of the offences in question, cannot engage the Verdins’ principles in reducing moral culpability. It was submitted that Dr Evans’ opinions provided such background only and failed to provide the cogent evidence necessary to establish the requisite connection. You were quite capable, it was said, of appreciating the wrongfulness of your actions.
51 Ms Andrews emphasised that there was a particular aspect of this offending that was not impulsive or spontaneous, in that you had purchased the weapon used in this armed robbery some 12 hours before the commission of the offence. In these circumstances, it was submitted that there could be no link between that aspect of your disability, which featured impulsivity in the commission of the crime.
52 Dr Evans could only speak in her opinion of the potential for some of the features of your intellectual impairment to have contributed to your offending. Accordingly, Ms Andrews argued that Dr Evans' assessment in this respect, was necessarily speculative.
53 Finally, it was submitted that, whilst the prosecution took issue with the assertion that your intellectual disability reduced your moral culpability, it was conceded that it was still open to the court to find that the third and fourth principles set out in Verdins may nevertheless be engaged, such as to moderate both general and specific deterrence. It was conceded that it was open to moderate the effect of those sentencing purposes, if the court was satisfied that, given the nature and severity of the impairment, you were not an appropriate vehicle for deterrence
Analysis
54 I accept that all of the matters detailed by Ms Andrews aggravate this offence. Of particular concern is the nature of the weapon you carried and the manner in which it was used, so as to terrify Mr Haque.
55 As to the way in which the principles set out in Verdins might apply, three cases in particular have provided helpful guidance: O’Connor v R [2014] VSCA 108, R v O’Neill (2015) 47 VR 395, and Harman (pseudonym) v R [2017] VSCA 169.
56 O’Connor concerned an intellectually impaired offender with a full-scale IQ of 75. Maxwell P accepted that the Verdins’ principles may be engaged where the offender has an intellectual impairment, but whether that was so, would depend on what the evidence showed about the offender. Specific evidence from an expert would be required in respect of:
(a) The nature of the impairment of the offender's mental functioning;
(b)How the impairment affected, or was likely to have affected the offender at the time of the offending; and/or
(c)How the impairment was affecting the offender at the time of sentence, or was likely to have affected him or her in the future.
57 The offending in O’Connor, which involved a serious aggravated burglary with accompanying assaults, committed under the influence of ice, was “not shown to have been relevantly connected, causally or otherwise, with the appellant’s intellectual impairment”.
58 In O’Neill, the Court of Appeal summarised the scope and limitations of the Verdins’ principles:
“First, the principles are enlivened only where the offender suffers from an impairment of mental functioning. Whether there should be any moderation of general deterrence, and if so its degree, will depend upon the nature and severity of the impairment of mental functioning
Second, in order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant’s moral culpability or the need for general and specific deterrence. If the mental impairment existed at the time of the offending, it must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked’ to the offending.
Third, to show the necessary connection to the offending and to so enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender’s ability to appreciate the wrongfulness of the conduct, or obscured the offender’s intent to commit the offence, or impaired the offender’s ability to make calm and rational choices or to think clearly at the time of the offence.
Fourth, the fifth and sixth limbs of Verdins may operate where the existing impairment will make prison more onerous, or where prison may exacerbate the mental condition, if the expert evidence establishes the significance of the impairment to the imposition of a prison sentence.
Fifth, cogent evidence, normally in the form of an expert opinion, is necessary to establish the existence of the mental impairment, either at the time of the offence, or at sentence, or both, and the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.
Sixth, the assessment by the sentencing judge must be undertaken with rigour, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal.
Seventh, an existing mental impairment at the time of sentence may require appropriate moderation of general deterrence, if it is determined that by virtue of that mental impairment the offender is not an appropriate vehicle for general deterrence. Whether that is so ‘depends upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.’”
59 Of particular relevance to this case is the requirement, that to show the necessary connection, the offender must establish that the condition in question affected his ability to appreciate the wrongfulness of his conduct, or obscured his intent to commit the offence, or impaired his ability to make calm and rational choices, or to think clearly at the time of the offence.
60 In referring to those matters in Harman, Ashley JA stated at [65]:
"…it is surely true that mental impairment or intellectual deficit may be productive of subtle abnormalities, affecting perception and conduct. For that reason, cogent expert evidence of the existence of such subtle changes (if unchallenged, or, if subjected to challenge, tested) is likely to be of real assistance in cases where Verdins is invoked. To be satisfied, by recourse to observed circumstances or statements, that a person knows right from wrong, does not necessarily mean that the quality and extent of that knowledge is not superficial and less morally blameworthy than might otherwise be the case. It may be said that a childlike awareness of wrongdoing, though expressed by an adult, remains
a childlike awareness. A child who is told not to take a biscuit from
a biscuit jar, may well know that to take a biscuit is wrong. But that is not the knowledge of an adult of ordinary intelligence, unaffected by a mental impairment, who knows that it is wrong to steal a motor car.”
61 Ashley JA also, in Harman, affirmed the principle referred to in O’Neill and left open by the Crown in its submissions in this case, that the presence of mental impairment at the time of sentence, although causally unrelated to the offending, may nonetheless call for moderation of general deterrence as
a sentencing consideration.
62 Trying to apply the rigour required by the authorities, in my view it cannot be said that your intellectual disability and attentional deficits was causative of your offending.
63 Even so, your deficits and limitations, as explained by Dr Evans, are substantial and they have been an integral part of your make-up, all of your life. They are not easily put to one side, to be characterised as simply background to your offending. Nor is it speculative to postulate that your impairment was part of your thinking when you involved yourself in this crime. You are easily manipulated and you do not make decisions as rationally as most people would. In my view, it was likely these features of your impairment were operative at the relevant time.
64 As was pointed out in Muldrock v R (2011) 244 CLR 120 at 137 [50], labels such as ‘mild’ or ‘moderate’ or, in your case, ‘borderline’ intellectual disability, should not obscure the fact that persons such as yourself will often find life’s complexities overwhelming.
65
It follows that, whether your disabilities have a contributory or realistic connection with your offending, such as to engage the Verdins’ principles, is
a difficult question. To borrow from a different context, the question might be put as whether the link between the impairment and the offending is sufficiently tangible to fall properly and sensibly within the meaning of the term ‘realistic connection’.
66 Ultimately, I have concluded that such connection, as exists, is not sufficiently direct or tangible to make out the sort of connection required. Your disability was likely to have been part of your thinking in involving yourself in this offending, but that decision is somewhat remote from the events inside the service station. However childlike your reasoning, ultimately there could be no doubt that when you wielded that hatchet, such as to terrify Mr Haque, you well appreciated the wrongfulness of your actions. Accordingly, the blameworthiness of your offending should not be reduced by your disabilities.
67 If I am wrong about the existence of the requisite connection, I would nonetheless take the view that in these circumstances, the Verdins principles would not operate to significantly reduce your moral culpability for this offending.
68
That said, as was made clear in O’Neill, even though an intellectual impairment is not causally or realistically connected to offending, the fact of the impairment at the time of sentence may call for a moderation of general and specific deterrence, depending on the circumstances. In my view, Dr Evans’ opinion provides a firm factual foundation for the conclusion that you have been blighted by a complex intellectual impairment all of your life and that has had a profound effect on your upbringing and remains so. Put simply, you are, in so many respects, quite different from a person of average intellect, and therefore not
a particularly suitable vehicle for emphasis on general, or even specific, deterrence.
69 That is all the more so because your youth requires emphasis on the sentencing purpose of rehabilitation. That is an additional reason for less emphasis on general deterrence. I find also that, for the reasons advanced by Dr Evans, being placed in custody would be likely more burdensome for you.
70 Beyond those considerations, what I find most persuasive about your circumstances, is the fact that in the 19 or so months since you were released from custody, you have completely turned your life around. For much of your life it seems you were put in the too hard basket and you appeared to be set on a trajectory of increasingly serious recidivism. That cycle has been broken by what I regard as an extraordinary transformation. With your disabilities and background, making the changes you have, is a very significant achievement. You have done it with the support of your aunt and uncle and your partner and I am told, that support will continue.
71 Mindful of the position of the Crown, you were assessed for suitability as to being placed in custody in a youth justice centre. You were assessed as suitable for such an order, however, the report stated as follows:
“The writer has assessed that Angelo’s prospects for rehabilitation are very good, as demonstrated by his supervised bail. He is a young person of only 19 years of age, who has significant supports in the community. Angelo’s positive presentation, his display of regret and remorse for his actions, together with his attitude towards the offending, should be noted. Furthermore, the writer assesses that any custodial sentence would have a crushing effect on the significant gains Angelo has made in the community”.
72 The Department of Health and Human Services provided a ‘client overview report’ setting out your involvement with the Department since you were issued with a statement of intellectual disability under the Disability Act 2006, in April 2015. The report is in glowing terms. It concludes as follows:
“Since April 2016, Mr Rastrick has maintained contact with the department on a voluntary basis. Mr Rastrick has demonstrated responsibility and initiative to achieve his personal goals. This has included securing
full-time employment with Pescatore Constructions, obtaining his driver’s licence and excavation licence. Mr Rastrick has identified three factors to assist him to lead and offence-free lifestyle, which include participating in pro-social activities, being surrounded by supportive family and friends and maintaining employment.
Mr Rastrick has expressed a willingness to engage with the Department to implement his justice plan and presents with a high level of motivation to maintain an offence-free lifestyle and continue to make positive changes to his life”
73 A justice plan has also been provided by the Department of Health and Human Services, which proposes case management and treatment.
74 Finally, an extended pre-sentence report was provided by the Office of Corrections. It was also very favourable. It assessed you as suitable to undertake a community corrections order, with particular conditions as to Office of Corrections supervision, offending behaviour programs, judicial monitoring and a justice plan, directed to dealing with your intellectual disability.
75 In formulating the appropriate sentence, I cannot lose sight of the violence you directed to Mr Haque. On the other hand, s.5(4) of the Sentencing Act 1991 directs that I should not order your confinement, unless the purposes for which the sentence is imposed cannot be achieved through a disposition that does not involve placing you in custody. I am persuaded that in this quite exceptional situation there is an alternative which involves you remaining in the community, but only under strict supervision, not only from Office of Correction, not only from the Department of Health and Human Services, but from this Court as well.
76 Accordingly, with your consent you will be placed on a community corrections order, with conviction, for a period of 30 months, with a justice plan and the other conditions to which I have referred, those being, supervision by the Office of Corrections, offending behaviour programs, together with the justice plan and judicial monitoring. Pursuant to the judicial monitoring condition, you will be required to appear before me on 1 May 2018.
77 It must be made very clear to you, Mr Rastrick, that if you breach this order, you will be brought back before me and you will be liable to be re-sentenced for the original offence of armed robbery.
78 The order that I propose will now be provided to counsel. Excuse me, just for a moment.
79 Ms Valos, would you mind approaching Mr Rastrick, perhaps explaining this to him and ask him whether or not he consents to undertake the order.
80 MS VALOS: Thank you, Your Honour. Thank you, Your Honour.
81 HIS HONOUR: You have explained that to Mr Rastrick.
82 MS VALOS: I have explained and I will re-explain it to him.
83 HIS HONOUR: And, Mr Rastrick, Ms Valos has explained this to you.
84 OFFENDER: Yes.
85 HIS HONOUR: Once we finish here now, I would expect that it would be explained to you again, so that it is very clear for you what your obligations are. You understand that you will have to come back before me next May to assess how you are progressing on this order.
86 OFFENDER: Yes, Your Honour, I understand.
87 HIS HONOUR: And you also understand, as I have already said, that if you do not comply with this order, that if you breach it in any way, you will be brought back before me for re-sentencing.
88 OFFENDER: Sure.
89 HIS HONOUR: You follow that, do you not? I have signed that order. Copies can be made for the parties, Mr Day, thank you. Are there any other matters arising on sentence?
90
MR WEAVERS: Not on sentence, Your Honour, but there is the actual ancillary orders sought by the Crown. One is the disposal order and one is
a compensation order. I have copies for Your Honour, if required.
91 HIS HONOUR: Yes. Is there any objection to - - -
92 MS VALOS: No, Your Honour.
93 HIS HONOUR: - - - either of those orders? May I see them please.
94 You can be seated for a moment, Mr Rastrick.
95 This compensation order is in the sum of $3,565. Your client understands that, Ms Valos?
96 MS VALOS: Yes, he does, Your Honour.
97 HIS HONOUR: And there is no objection to it?
98 MS VALOS: No.
99 HIS HONOUR: I have signed those orders, Mr Weavers, and they will now be provided back to you.
100 MR WEAVERS: Thank you, Your Honour.
101 HIS HONOUR: Unless there is anything else, I will stand down.
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