Director of Public Prosecutions v Reynolds
[2024] VCC 559
•30 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01686
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM REYNOLDS |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2024 | |
DATE OF SENTENCE: | 30 April 2024 | |
CASE MAY BE CITED AS: | DPP v Reynolds | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 559 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Attempted armed robbery, commit an indictable offence whilst on bail
Legislation Cited: Sentencing Act 1991 (Vic); Bail Act 1977 (Vic)
Cases Cited:R vVerdins & Ors (2007) 16 VR 269
Sentence: Convicted and placed on a community corrections order for a period of two years – Summary Charge: convicted and fined the amount of $100 – Section 6AAA: If not for your pleas of guilty, TES eight months in combination with a 30-month corrections order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms. N. Simpson | Office of Public Prosecutions |
| For the Accused | Ms. J. Clark | Greg Thomas Barristers & Solicitors |
HER HONOUR:
1William Reynolds, you have pleaded guilty on indictment to a single charge of attempted armed robbery. You have also entered a guilty plea to a related summary offence of committing an indictable offence whilst on bail.
2
In sentencing you for your crimes I am obliged to consider the maximum penalty for each offence. The maximum penalty for attempted armed robbery is
20 years' imprisonment and the maximum penalty for the bail offence is three months' imprisonment.
3The circumstances of your offending are set out in a document entitled 'Prosecution Opening for Plea' dated 10 April 2024. This is an agreed document and represents your acceptance of each of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
The offending
4Turning now to the offending, at about 5.50 am on 10 May 2023 Gzim Ameti attended his work to clean Woolworths, Gladstone Road, Dandenong.
5Mr Ameti went to retrieve keys for the shopping centre from a lockbox in the bike storage room. As he did so he was approached by you, holding a brown brick and demanding money. After retrieving the key, Mr Ameti walked towards the front entrance with you following him. He said to you, 'I don't have any money'.
6You told Mr Ameti that you would hit him with the brick if he did not give you money. You said, 'Give me your car keys or I'll smash your car with the brick'. It is these facts which form the basis for the charge of attempted armed robbery, which is particularised as an attempt to rob Mr Ameti of keys and money.
7Mr Ameti refused to give you the keys and went inside the centre. You followed him inside, yelled something to Mr Ameti and then left, heading towards the Princes Highway.
8The entire incident was captured on CCTV. Police attended the scene and you were later identified on that footage.
9Police attended your accommodation at approximately 8.50 am on 10 May 2023. Relevant clothing was identified, as was a backpack containing bricks. You were not present at that time but were arrested later that morning. You were deemed unfit to participate in an interview with police.
10You were subject to a bail order at the time of the attempted armed robbery. This fact is the subject of Summary Charge 2, commit indictable offence whilst on bail.
Offence gravity and victim impact
11Turning now to offence gravity and victim impact, you were 23 years of age at the time of your offending and are now aged 24 years.
12The summary charge of committing an indictable offence on bail represents an inability to comply with court orders for which you do have a relevant history.
13In terms of the attempted armed robbery, there is no victim impact statement. This does not equate with the victim being unaffected by your offending. Your presence was aggressive, demanding, disturbing and probably frightening. The CCTV footage was played to the court. At one point you can be seen communicating with Mr Ameti whilst holding a brick in a raised hand.
14You were somewhat persistent before you finally gave up.
15I accept the submission that your offending is unsophisticated. It would appear to be opportunistic in the sense that you attended the shopping centre with a backpack and at least one brick and Mr Ameti would appear to be the first person who you came across. The weapon you carried, the brick, did have capacity to cause serious harm if used and was clearly designed to intimidate your victim. You did not seek to use it in any other way and left of your own accord, having been unsuccessful with your demands.
Personal circumstances
16I am somewhat familiar with your personal circumstances, having sentenced you on two previous occasions.
17You had on any view of it an extremely difficult upbringing with a mother who, though reportedly caring and loving, suffered from a significant mental illness. You have had little or no contact with your father, who left when you were very young.
18In 2012 you spent an eight-month placement in foster care due to your mother's health.
19Your mother died in 2017 after some time in a palliative care facility. This left you without any other family support and at a fairly young age.
20You attended primary schools in East Brighton and Mordialloc. You part‑completed a Year 9 education at Mordialloc High School. You did briefly commence a carpentry apprenticeship but do not otherwise have an employment history.
21You commenced cannabis use at the age of 13 and methamphetamine use when aged approximately 16 years.
22You received a diagnosis of schizophrenia at aged approximately 16 to 17 years of age. You had an in-patient psychiatric admission around that time and were commenced on depot antipsychotic medication. You have had multiple in-patient psychiatric admissions since.
23At the time of your offending you were residing at Harriet Manor, which I understand is supported accommodation and in close proximity to the shopping centre where you committed your offences. At the time of your offending you had used methamphetamine, cannabis and alcohol.
24Considerable materials have been tendered on your behalf in this plea hearing and have been read by me. They will not all be referenced in these reasons for sentence. Documents filed largely trace your mental health history.
25You have a long-standing diagnosis of schizophrenia. As referred to earlier, you were assessed as being unfit for interview at the time of your arrest on 10 May 2023 and on reception into the prison system I am told you presented with 'obvious signs of active psychosis'. You spent one month in the Acute Assessment Unit of the Melbourne Assessment Prison following your remand, where you responded to antipsychotic medication.
26In a report dated 3 September 2023, Dr Adam Deacon, psychiatrist, opines that:
'Whilst he was able to maintain a level of understanding that his conduct was wrong, his mental illness schizophrenia was markedly destabilised and this context, his capacity to think calmly and rationally and exercise reasonable judgment, was likely to have been impaired. He reported that he heard voices to obtain cigarettes. Auditory hallucinations appear to have had a role in driving him to offend.'
27In Dr Deacon's opinion your -
'Active psychiatric state can be considered to relate to the direct effect of methamphetamine combined with the destabilising effect of methamphetamine on [your] underlying schizophrenia condition'.
28It is somewhat difficult to determine what role your established psychiatric illness played in your offending versus the contribution made by your drug use at the relevant time, but there would appear to be some basis to form the view that your recognised psychiatric illness was present in the background such that some limited weight of limbs 1 through to 4 of the decision in R v Verdins & Ors[1] have some application.
[1] (2007) 16 VR 269.
Prior criminal history
29Your prior criminal history is part of your personal circumstances.
30Your criminal history commenced at the Melbourne Children's Court on 17 July 2014, when you were placed on probation for a period of 12 months for offences involving theft from a shop, three charges of criminal damage by fire and three charges of light fire on day of acute fire danger.
31On 21 January 2015 you appeared at the Moorabbin Children's Court for charges of intentionally damage property and without authority enter a private place. On that occasion you were placed on an adjourned undertaking until 15 July 2015.
32On 28 October 2015 you appeared at the Moorabbin Children's Court for charges of burglary and theft. You were placed on an adjourned undertaking for a period of 12 months.
33On 6 September 2017 you appeared at the Moorabbin Children's Court for a range of offending which included offences of dishonesty, offences against the Bail Act and minor driving offences. You were detained in a Youth Justice centre for a period of six months.
34On 31 July 2018 you appeared before me for a charge of arson and a charge of burglary. You were convicted and placed on a community corrections order for a period of 22 months with treatment conditions.
35On 10 August 2018 you appeared at the Moorabbin Magistrates' Court for offences against the Bail Act and theft. You were placed on an adjourned undertaking until 9 August 2019.
36
On 14 June 2019 you appeared before me for breaching the corrections order I had imposed upon you on 31 July 2018 and in relation to an additional charge of arson. You were convicted and detained in a Youth Justice centre for a total of
19 months.
37On 16 December 2019 you appeared at the Moorabbin Magistrates' Court for charges of riot, prohibited person carry imitation firearm and two charges of assault with a weapon. You received an additional 12 months in a Youth Justice centre.
38You are not to be punished for your criminal history a second time. It is relevant to the weight to attach in sentencing to the principles of specific deterrence, denunciation and protection of the community. It would appear that you have a limited history for violence and there have been occasions during which you have complied with society's expectations. I have little doubt that these periods are those in which you are compliant with mental health treatment and were engaged in either limited drug usage or completely abstinent.
39Your criminal history is also a means with which to assess your prospects for rehabilitation, to which I now turn.
Prospects for rehabilitation
40As a direct consequence for your offending you spent some 90 days in adult custody before being released on bail on 8 August 2023.
41I accept that there would have been a degree of both sanction and hopefully deterrence in that experience.
42I am told that you have abided by bail conditions in the period between your release and your plea hearing held 29 April 2024 and your sentencing on 30 April 2024.
43From your release on bail in August of 2023 you have resided at an address in Craigieburn operated by Cornerstone Community Services Pty Ltd as a registered NDIS property.
44In an undated letter Elvis Nwachukwu, and I apologise for the pronunciation, director of Cornerstone, describes you as gentle and easy-going and as someone who strives to meet your own needs and has a strong sense of self-worth. Cornerstone supports you with personal hygiene, transportation, accommodation, social interactions, self-care and self-management. You are reportedly content with the accommodation they offer and have expressed an interest in finding work.
45Dr Deacon confirmed in his most recent report that you accept your diagnosis of schizophrenia and are reportedly compliant with prescribed antipsychotic medication. You are case managed with the Northern Mental Health Service. You told Dr Deacon that you intend to remain abstinent from illicit drug usage.
46You are in receipt of a disability support pension and also services provided by the National Disability Insurance Scheme.
47As I said to you in 2018:
'If there is one thing that I'm right about today, it is the impact on you of your drug usage upon your mental health. This in turn impacts on the community because when you are unwell you present a risk of reoffending; when you are using drugs you present a risk of reoffending. You need to start doing the maths and to understand that drug use does not make life better. It does not make life better for those around you, in fact clearly tends to make things a bit worse, if not a lot worse. The same can perhaps be said of your need to comply with mental health treatment. Non‑compliance puts you and therefore the community at risk'.
48I hope you are now starting to do the maths.
49I accept Dr Deacon's opinion that your future prospects will largely be contingent on your capacity to abstain from illicit drugs and to consistently comply with taking prescribed antipsychotic medication and utilising mental health and community supports.
50I accept that your willingness to accept your diagnosis, work with an area mental health service, NDIS support and current stability in accommodation is a considerable step forward for you.
Sentencing submissions
51Sentencing submissions made on your behalf are that the court should consider imposing a community corrections order, having had regard to your pre-sentence detention of 90 days, or alternatively place you on a deferral of sentence.
52The Crown submitted all relevant sentencing considerations can be reflected in the imposition of a combination sentence, that is a term of imprisonment in combination with a community corrections order.
53In order to better informed I had you assessed as to your suitability for a community corrections order.
54
A report from the Mental Health Advice and Response Service (‘MHARS’) authored by Gregory Lane, psychiatric nurse, dated 29 April 2024 was obtained as part of the assessment process. Mr Lane's report confirms nine individual registrations with Victorian area mental health services since 2005 and
10 psychiatric inpatient admissions since 2015. Your last admission was in early 2022. Mr Lane recommended that a mental health condition be part of any community corrections order.
55The assessment outcome report provided by Corrections Victoria assesses you as suitable for a corrections order.
56I am not of the view that the objective gravity of your offending, coupled with your plea of guilty, relative youth and current relative stability, is demanding of a term of imprisonment. Section 5(4) of the Sentencing Act reminds me that a court must not impose a sentence that involves the confinement of an offender unless it considers that the purpose or purposes for which the sentence imposed cannot be achieved by a sentence that does not involve the confinement of the offender. I have, however, taken into account that you spent 90 days in custody on remand in relation to your offending of 10 May 2023.
57Now, Ms Clark and Ms Simpson, just checking with each of you whether there are any matters you need to bring to my attention.
58MS CLARK: I don't believe so, Your Honour.
59MS SIMPSON: No, Your Honour.
Sentencing
60I make the ancillary orders sought for scheduled items.
61The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
62I must also balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.
63I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of totality and proportionality.
64Section 16(3C) of the Sentencing Act requires that every term of imprisonment imposed on a person for an offence committed whilst released on bail must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term. I do not intend to impose a term of imprisonment for the summary offence of committing an indictable offence whilst on bail. For that offence you are convicted and fined the amount of $100.
65In relation to the single charge on the indictment, that of attempted armed robbery, you are convicted and placed on a community corrections order for a period of two years. During that time you are:
(a) to be supervised by the Office of Corrections;
(b) undergo treatment and rehabilitation for drug use;
(c) undergo treatment and rehabilitation for your mental health; and
(d) to be assessed for programs to reduce offending.
66Initially you will be judicially monitored by me so that I can supervise your progress on that order and ensure intended assistance is being implemented. You are required to appear before me for judicial monitoring at 10 am on 29 July 2024.
67As referred to earlier, in making this order I have taken into account the 90 days you spent in custody. In all the circumstances I decline to make community work part of the corrections order I have just imposed. I see significant punishment in the 90 days served in addition with the period of time this order will literally hang over your head.
68In addition to the conditions that I have imposed there are standard conditions. The first and foremost of those is you must not commit any other offences during the 24-month period which could be punished by imprisonment. You must report within two working days to your nearest corrections office, which I understand to be in Coolaroo. You are also required to advise your corrections office of any change of address of where you are living or working and must do so within two clear working days of any change. It is a term of all community corrections order that you must submit to visits as directed and obey all the instructions and directions of a corrections officer. You are not able to leave the State of Victoria without the prior permission of your supervising corrections office.
69In my view this order presents you with a chance to change your life in a positive fashion, should you choose to take up that opportunity and the supports that I intend be made available. The order can be breached if you do not comply with it in terms of the conditions or reoffend with an offence punishable by imprisonment whilst its in place. If you do so, as you well know, you will have to appear before me for contravening the order and I may have to resentence you on the original charge, as well as a separate charge of contravening a corrections order.
70Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty you would have sentenced to a total effective sentence of eight months' imprisonment in combination with a 30-month corrections order. I can only place you on this order with your consent.
71Ms Clark, I might ask for your assistance in relation to that. I will have you provided with a copy of the order and you can take Mr Reynolds through it. I can disappear while that takes place if that is to be preferred.
72MS CLARK: I'm content for it to - it shouldn't take very long.
73HER HONOUR: All right.
74MS CLARK: I'm in Your Honour's hands as to how you would best approach that. I'm content to take a copy of the order and speak to Mr Reynolds in the dock while Your Honour remains in court.
75HER HONOUR: All right.
76MS CLARK: Shall I get Mr Reynolds to sign the order?
77HER HONOUR: That would be good if you could, Ms Clark.
78MS CLARK: Yes.
79HER HONOUR: If he's happy to do so.
80MS CLARK: Yes, he is.
81HER HONOUR: Thank you. All right, thank you to you, Ms Clark and Ms Simpson, for your assistance. Very much appreciated. Mr Reynolds, I'll see you in July. I will get a report from the Office of Corrections. No need to stamp it, thank you. And it will update me on how you're going but also how they're going, all right?
82OFFENDER: Yeah.
83HER HONOUR: We'll see where things go from there. Thank you. I'll close the court till 10.30 am tomorrow.
84MS CLARK: As Your Honour pleases.
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