Director of Public Prosecutions v Richards

[2021] VCC 1796

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-01615

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK RICHARDS

---

JUDGE:	HIS HONOUR JUDGE WISCHUSEN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 November 2021
CASE MAY BE CITED AS:	DPP v Richards
MEDIUM NEUTRAL CITATION:	[2021] VCC 1796

REASONS FOR SENTENCE
---

Subject:

Catchwords:              

Legislation Cited:      

Cases Cited:

Sentence:                  

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr E. Dober	Office of Public Prosecutions
For the Accused	Mr A. Paull

HIS HONOUR:

1Mark Heath Richards, you have pleaded guilty to one charge of attempted armed robbery and to one charge of committing an indictable offence whilst on bail.

2The maximum penalty for attempted armed robbery is 20 years' imprisonment.

3The maximum penalty for committing an indictable offence whilst on bail is three months' imprisonment.

4The circumstances in which these offences occurred are set out in the summary of prosecution opening upon plea, Exhibit 1.  Through your counsel you accepted the accuracy of the opening.

5On 28 February 2021, you were arrested and found to be in possession of a knife, a box cutter and a screwdriver.  You were charged in relation to those matters and released on bail to appear at the Geelong Magistrates' Court on 3 May 2021.

6On 8 April 2021, whilst on that bail, you and an associate had a brief exchange with the victim of your offending at a 7‑Eleven service station in Corio.  The victim, David Cairns, was known to your associate and to David Cairns you said, 'Want to swap my jumper for snow?'  To which he replied, 'Piss off, you junkie'.

7About 15 minutes later, Cairns was leaving the nearby Coles supermarket with his shopping and was walking towards the carpark when the two of you, now riding pushbikes, confronted him.  You both dismounted and approached him, brandishing 10-centimetre-long knives.  Your associate yelled, 'Give me your wallet or I'm going to fucking stab you', and you joined in by calling Cairns a 'dog'.

8Next, your associate threw a cup of coffee at Cairns, who responded with his own.  Then you lunged at Cairns and tried to kick him.  This did not go well, because he grabbed your leg, causing you to fall to the ground.  Your associate then attempted to stab Cairns and kicked him several times in the leg.  Cairns managed to fend this off and managed to land a punch on your associate's chin, and then backed away.  The two of you then returned to your bikes and rode away, shouting abuse.  These are the circumstances that give rise to Charge 1, attempted armed robbery, and Charge 2, committing an indictable offence whilst on bail.

9Cairns has declined to make a victim impact statement.

10You were arrested on 21 April 2021 and participated in a record of interview.  In it you made partial admissions as to your presence at the scene and explained that your memory of these events was not good because of drug use.[1]  You explained that the motivation for the attack was a debt, though you denied involvement in the fight and denied the possession of a weapon.

[1] Specifically methamphetamine, pills and cannabis

11In relation to these charges you indicated your intention to plead guilty at the first committal mention and as such it is a plea at the earliest opportunity.  You are now 45 years of age.

12You have admitted your lengthy, and, in a number of respects relevant criminal history, which amongst other things shows that you have been incarcerated on perhaps 13 prior occasions.

13You have been remanded in relation to these charges for 196 days.

14Mark Richards, I state to you that I have taken into account all the matters raised on your behalf in the course of the plea in mitigation of penalty.[2]  The matters raised on your behalf included the following.

[2] Your counsel spoke to written submissions dated 22 September and 3 November 2021

15Your plea of guilty, entered at the earliest opportunity, has saved the community the cost and the victim the stress of a committal and of a trial. I also take your plea to be evidence of your remorse for this offending. You are entitled to have these matters taken into account in mitigation of penalty and in these times of pandemic even greater weight is to be given to such a plea,[3] and I have done so.

[3] Worboyes, Tyler v The Queen [2021] VSCA 169

16I have taken into account your background and personal circumstances.  It was not in dispute that your upbringing took place in circumstances of significant deprivation and abuse.  This is set out in considerable detail in the three reports bearing upon your mental state, which became Exhibits 2, 3 and 4 on the plea.  For most of your childhood your mother was ill.  Your father had little to do with your upbringing.  Your mother's partners were physically abusive towards you during your childhood, at times beating you to the point of incontinence.  At the age of eight you became a ward of the state, suffering physical and sexual abuse in state-run institutions.

17Your schooling ended at the age of 13, due at least in part to behavioural problems.  You then began a lifetime of substance abuse and consistent court appearances.

18Your employment history has been patchy.  You have had episodes of work building wall frames, driving timber trucks and operating a forklift.  Years ago now you ceased work to care for your mother, which you did until her death in 2015 from a heart attack.

19After your mother's death you became homeless, thereafter finding irregular accommodation with friends and living on the streets.  Your use of methylamphetamine and heroin, both of them administered by injection, persisted, as did your offending, accompanied by repeat but usually quite short periods of imprisonment.

20It is not easy to reach a concluded view about the history of your mental health.  The reports that are in evidence refer to earlier reports and to treatment which is not detailed.  What is noticeable is that in 2017 Dr Turnbull wrote that much of your behaviour was explicable by advanced states of drug intoxication and at that time Dr Turnbull thought you suffered from 'some ongoing mild mixed anxiety depressive disorder and that is largely propelled by his long-term drug use'.

21Some two years later Dr Kate Roberts, a forensic psychiatrist, noted that:

'Substance abuse has been central to his life since his teens but it appears that he has additionally isolated himself from others and struggled socially in the context of anxiety and depression'. 

22Dr Roberts thought that illicit substance use was instrumental in your ongoing offending and that you described symptoms of depression and anxiety which she thought had likely been present for some time.  Although she noted that you gave a history of having been earlier diagnosed with anxiety, depression, agoraphobia and borderline personality disorder, there had not been much engagement with health care professionals.  She noted that the absence of stable accommodation presented a difficulty for your rehabilitation prospects.

23Most recently you were interviewed by Gina Cidoni.  Ms Cidoni is a psychologist.  On the basis of her interview and the administration of a number of tests, Ms Cidoni diagnosed a major depressive disorder with anxiety, a post-traumatic stress disorder, a substance-use disorder and a borderline personality disorder.  It is not easy to reconcile her conclusions and diagnoses with those expressed in the earlier psychiatric reports.

24In relation to the matters raised by the reports filed, your counsel submitted, and so much was conceded by counsel for the Director, that your upbringing compromised your maturation and so the principles outlined in Bugmy[4] had application here.  As to Verdins[5] principles, these were not much pressed,[6] as it was accepted that your behaviour on the day that these offences were committed was significantly explained by your intoxication with illicit substances, rather than by underlying psychological problems.

[4] [2013] HCA 37.

[5] [2007] VSCA 102.

[6] Beyond a submission that a modest reduction in the weight to be given to general deterrence on account of the diagnosis of borderline personality disorder.

25It was nevertheless submitted that because of your persisting mental state problems,[7] your time in prison will be more onerous for you, especially as you have neither family nor friends and so no social contact outside of the prison population.  That your time in prison would be more difficult than usual (and you have already experienced this whilst on remand) because in these times of pandemic, there have been frequent periods of lockdown and the absence of work and educational opportunities.  I accept both of these submissions and have taken them into account.

[7] As to this, Exhibit 5 set out a range of psychological health services available in custody in Victoria.

26As to your prospects of rehabilitation, having regard to your mature age, lack of family and social supports and persisting addiction it was frankly submitted that your prospects could not be regarded as great, perhaps even bleak, but that they should not be regarded as extinguished.  It was put that if housing could be found for you at a location distant from your usual criminal associates your prospects of rehabilitation would be improved.

27As to the gravity of this offending, it was conceded that this is objectively serious offending as it was carried out in company, it was carried out whilst on bail, with the use of knives, and it involved actual assaults on the intended victim of the armed robbery.  Nevertheless, it was submitted that this should be characterised as a street-level offence without much premeditation and concerned a victim who was known to your associate.  Furthermore the victim was apparently robust and able to fend off the two of you without any evidence of lasting harm.  Properly, it was conceded that the attack upon him must nevertheless have caused great fear.

28It was conceded that specific deterrence and denunciation were important sentencing considerations in your case and that having regard to the fact that numerus short terms of imprisonment, not carrying periods of supervision and rehabilitation whilst on parole, have led to almost immediate reoffending, that I should fix a longer than usual period of eligibility for parole to allow for some prospect of rehabilitation under supervision.

29Counsel for the Director submitted that general and specific deterrence and protection of the community were important considerations here and that, having regard to your history, rehabilitation (save to the extent that it always aids in community protection if achieved) was not much a factor.  Counsel referred to a number of cases which had similar features and to statistics published by the Sentencing Advisory Council.[8]  The Director submitted that a term of imprisonment with a non-parole period was warranted here.

[8] Exhibit 6.

30Against the matters to be taken into account in mitigation of penalty must be balanced the fact that this was a brazen attempted armed robbery carried out by two assailants each brandishing knives and each of them assaulting or attempting to assault the intended victim, who was simply going about his own business.  Only the fortitude of the victim in the face of this attack, and perhaps a degree of luck, avoided any injury of significance being sustained.

31That attempted armed robbery is regarded as a serious offence is reflected in the maximum penalty of 20 years' imprisonment set by Parliament.  Having regard to the circumstances of the offending and having regard to your extensive criminal history, specific deterrence is to be given considerable weight in the sentencing consideration.  General deterrence and protection of the community must also be given weight, as must the need to manifest the community's denunciation of your conduct and to otherwise impose just punishment.

32Mark Heath Richards, I state to you that I have taken into account all the matters raised on your behalf in mitigation of penalty and all relevant sentencing principles in arriving at the sentence I am about to impose.

33On charge 1, attempted armed robbery, you are convicted and sentenced to a term of imprisonment of three years.  On charge 2, committing an indictable offence whilst on bail, you are convicted and sentenced to a term of imprisonment of two months.  I direct that one month of the term of imprisonment on Charge 2 be served cumulatively upon the sentence imposed upon Charge 1, making a total effective sentence of three years and one month.

34The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist.  For that reason, it is not fixed automatically.  All relevant factors and sentencing principles are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement and, in turn, rehabilitation under conditional supervision.  In all the circumstances I direct that you serve a minimum term of 22 months before becoming eligible for parole.

35As prescribed by s18(4) of the Sentencing Act, I declare that the period of time you have spent in custody is 196 days not including today, which is to be reckoned as time already served under this sentence and I direct that this fact be entered in the records of the court.

36Pursuant to s6AAA I state that had you been found guilty of these offences after a trial I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years.

37Are there any other orders sought?

38MR DOBER:  No, Your Honour.

39HIS HONOUR:  Very well.  Adjourn the court, please, Mr Bell.

40OFFENDER:  Can I speak to my lawyer at all?

41HIS HONOUR:  Yes, after I leave the meeting we can probably arrange for you to do that whilst this link is up.  Can you organise that, please, Antony?

42ASSOCIATE:  Yes, Your Honour.

43HIS HONOUR:  If you'd just adjourn the court, Mr Bell, and keep the link open. 

- - -