Director of Public Prosecutions v Richards
[2020] VCC 1832
•20 November 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00246
CR-20-00455
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA RICHARDS |
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JUDGE: | HIS HONOUR JUDGE C J RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 August, 9 October, 9 November 2020 | |
DATE OF SENTENCE: | 20 November 2020 | |
CASE MAY BE CITED AS: | DPP v Richards | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1832 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: contravention of a community correction order - armed robbery – theft - lengthy prior criminal history – institutionalisation - full‑scale IQ of 73 – National Disability Insurance Scheme – family support – early guilty plea – COVID-19 – remorse – guarded prospects of rehabilitation
Legislation Cited: Mental Health Act 2014 - Sentencing Act 1991
Sentence: community correction order for a period of three years with conditions – 6AAA: community correction order in similar terms, but for a duration of four years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Zammit | Office of Public Prosecutions |
| For the Accused | Mr D. De Witt | Greg Thomas Barrister and Solicitor |
HIS HONOUR:
1 On 21 August 2020, Joshua Richards, you came before me and pleaded guilty to the contravention of a community correction order imposed on you on 17 May 2018 in respect to the offence of armed robbery committed outside a 7‑Eleven store on the Nepean Highway, Mornington, at 4.45 am on 12 June 2017.
2 You also pleaded guilty to the charges contained in Indictment K12852696, being armed robbery (Charge 1) and theft (Charge 2). The maximum penalty for armed robbery is 25 years’ imprisonment, while the maximum penalty for theft is 10 years’ imprisonment. In addition, you pleaded guilty to two related summary offences, being Charge 1, resist an emergency worker on duty, and Charge 5, commit an indictable offence whilst on bail. The maximum penalty for these offences are six months’ imprisonment and three months’ imprisonment respectively.
3 In respect to contravention of the conditions of a community correction order, the maximum penalty is three months’ imprisonment, and a number of options are open to me in respect to the order made on 17 May 2018 including resentencing you for your original offending.
4 On the day that you committed the offences contained within the indictment, being the 2 November 2019, you were arrested and remanded in custody, and remain so.
5 You admitted your lengthy prior criminal history, which for present purposes commenced on or about 31 March 2011 when you were aged 14. You are presently aged 23 years. You have prior convictions for contravening community-based dispositions, violent offending including armed robbery, resisting emergency workers whilst on duty, bail offences, and dishonesty and weapon offences. You have been subject to many and varied sentencing dispositions, including without conviction being placed on probation, youth supervision orders, youth attendance orders, detention in a youth justice centre, and terms of imprisonment, as well as terms of imprisonment combined with community correction orders which you have breached.
6 In respect to the offences contained within the indictment, tendered as Exhibit A and read aloud in court was the agreed summary of prosecution opening for plea.
7 In summary, at 1.50 pm on Saturday, 2 November 2019, you walked into a bottle shop in Mount Eliza, selected a bottle of spirits, and went to walk out of the shop. The owner of the premises, Mr Luo, observed your conduct and said to you “Hey, you didn’t pay.” Mr Luo pursued you, and you turned towards him and pulled out a metal chain from your pocket and swung it towards your victim (Charge 1, armed robbery).
8 Your victim pursued you out of the shop and picked up a sign from the front of the shop and chased you, saying “Hey, just put the bottle down.” You threw the bottle away where it landed on a grassed area and you walked off.
9 You walked a short distance and entered an IGA liquor store, selected another bottle of spirits, and walked out of the store (Charge 2, theft).
10 At about 3.34 pm police received information regarding you being abusive on a bus heading towards Mount Eliza from Frankston. The police were informed that you appeared to be alcohol-affected and that you had threatened to stab some of the passengers on the bus. At about 4.45 pm, police received further information regarding you causing trouble at a bus stop in Mount Eliza. Police attended the bus stop and found you sitting at the bus stop heavily intoxicated with your head slumped forward and a bottle of alcohol beside you. As police approached you, you stood up and began swinging the chain, with a padlock attached to the end of it, at the police. You were instructed to drop the chain; however, you initially refused to do so, but after several demands you dropped the chain (related summary offence, resist an emergency worker).
11 You were arrested and handcuffed. Police searched a backpack that you had been wearing and found a knife. A search of the surrounding area found another knife at the bus stop shelter where you had been sitting.
12 At the time of the commission of the offences you were on bail (related summary offence, commit an indictable offence whilst on bail).
13 You were taken to the Frankston Police Station however, an interview with you was not conducted because of your state of drunkenness.
14 In respect to the contravention of a community correction order, you breached the conditions of that order by:
· failing to attend for supervision on two occasions
· failing to attend for alcohol assessment and treatment on one occasion
· failing to attend for drug assessment and treatment on three occasions
· failing to attend for mental health assessment and treatment on two occasions
· failing to report for supervision on four occasions, and
· committing an offence whilst on the community correction order, namely theft committed on 4 September 2019.
15 Mr Richards, you are 23 years of age and were born in Frankston. You are the youngest of four children. Your upbringing was characterised by family violence perpetrated on you by your mother. In addition, you were exposed in your early childhood to your mother’s alcohol and drug abuse.
16 At eight years of age you were moved to foster care, and at 10 years of age transitioned into residential care by the Department of Human Services. When you were aged between 10 and 11 years and housed in residential care you were sexually abused by a boy several years older than you.
17 When you were aged about 11 years you spent some time living with your father; however, he was in and out of custody during his time. When you were 12 years of age, your father was electrocuted while stealing copper wire. I was informed that your mental health declined as a result of your father’s death. After your father died, you spent periods living between your uncle’s house and your mother’s house. Your uncle was a polysubstance abuser and schizophrenic.
18 As a result of your upbringing and influences on you by those who were meant to care for you, you attempted suicide for the first time when aged 13 years.
19 You attended multiple primary schools and were educated to Year 10 VCAL level. You struggled at school because of attention and behavioural issues. You were bullied and isolated within your school communities. It is safe to say you that you have been marked by your upbringing.
20 You have given varying accounts of your alcohol abuse, from suggesting that you commenced drinking when you were seven years of age; however, since the age of 13 you have consumed alcohol daily when out of custody. Principally you consume cask wine. It was put on your behalf that your drinking increased significantly following your father’s death. It was also put that you last consumed alcohol on 2 November 2019, the day of your arrest.
21 You commenced to use cannabis when you were 10 years of age, and progressed to the use of methyl-amphetamine when you were 14 years old. By the time you were 18 years old you used ice daily, and abstinence from this drug will remain an ongoing issue for you upon your release from custody. While in prison you were prescribed 60 mls of methadone daily to assist you with your addiction to methyl-amphetamine. You have been abstinent from drugs whilst in custody, as is evidenced by Exhibit 5, a series of urine analyses.
22 Mr Richards, you received your first custodial order from the Children’s Court when aged 15 years. Since turning 18 you have spent the best part of four years in custody. Whilst in prison you have completed a number of certificates, including your white card, stop/go signs, first aid, food handling, and occupational health and safety. You have only ever worked in a prison setting. That work included cleaning, gardening, woodwork and sorting various metal objects. Of the 500 or so days that you have resided in the community since becoming an adult, nearly 300 of those days have been subject to a community correction order. Since turning 18 years of age, the longest period that you have spent in the community is something in the order of nine months. You reported to Gina Cidoni, psychologist, that you wanted to commit crimes in order to return to custody where you feel more stable. If you are not already institutionalised you very soon will be.
23 Tendered on your behalf were seven reports, being:
· a report of Dr Nicholas Owens, psychiatrist, dated 5 August 2020, Exhibit 3
· a report of Anna McLaren, neuro-psychologist, dated 4 May 2020, Exhibit 4
· a report from Peninsula Health, printed 26 September 2019, Exhibit 6
· Mental Health Advice and Response Service from Forensicare dated 22 June 2020, Exhibit 7, and
· two reports from Gina Cidoni, psychologist, dated 25 September 2020 and 3 October 2020 respectively, Exhibit 8.
24 Dr Nicholas Owens noted that your childhood was characterised by exposure to physical and sexual abuse of which you were both the direct victim as well as a witness to such abuse. He opines that there was a clear worsening of your mental health following the death of your father. Dr Owens noted that your presentation is complicated by the combination of psychiatric, neuropsychological and psychological issues. Further, Dr Owens noted that these issues underlie the problems that you experience, being impulsivity, short temper, striking immaturity, and a pervading sense of despair.
25 Dr Owens opined that, on balance, your likely diagnosis is one of borderline and anti-social personality disorder against a background of borderline intellectual impairment and polysubstance abuse. Further, Dr Owens noted that there is a real possibility that you suffer from ADHD and post-traumatic stress disorder.
26 You were assessed by Ms Anna McLaren, neuro-psychologist, and have a full‑scale IQ of 73, which is within the borderline range. It is to be noted that your cognitive functioning varies between and within the cognitive domains assessed by Ms McLaren. However, upon assessment you were within the borderline range in respect of verbal intellectual functioning, verbal intellectual skills, and processing speed. You have been tested by neuro-psychologists on a number of occasions, and Ms McLaren noted that your declining performance upon assessment can be attributed to your substance abuse. The contents of Exhibits 6, 7 and 8 are consistent with the findings of Ms McLaren.
27 Mr Mark Popplewell is the author of Exhibit 9 and was called to give evidence on your behalf. Mr Popplewell is a youth and family worker employed by Pivot, a program funded as part of the Department of Justice and Regulation’s youth crime prevention strategies. You were referred to Pivot in February 2019 by Community Corrections in Frankston. Since being referred to the Pivot program you engaged with it on 40 separate occasions to address your education, prospects of employment, harm minimisation, and your substance abuse. In addition, you received assistance in developing independent living skills such as attending Centrelink, the bank, and weekly shopping.
28 Mr Popplewell is available to support you for approximately three months should you be released upon a community correction order within the foreseeable future.
29 Tendered as Exhibit 2 were two references, being from Nicole Austin, dated 10 August 2020, and your sister Kaitlyn Richards, dated 18 August 2020. Of particular relevance is the reference from your sister, who wrote that she was able to provide you with accommodation in her home in Safety Beach and that her husband was able to provide you with casual work in his plastering business.
30 On the return date of the part-heard plea, being 9 November, I was informed by Mr De Witt solicitor, who appeared on your behalf, that, owing to family pressures within your sister’s home, she was unable to provide you with accommodation, but that you had available to you a flat allocated to you by the Department of Human Services in Main Street, Mornington. Further, I was advised that your sister maintains her support of you. Her support includes providing you with accommodation on the day of your release and, together with Mr Popplewell, establishing you in your flat in Mornington. Further, both your sister and Mr Popplewell will assist you in attending appointments set for you by officers of the Department of Justice.
31 At the end of the initial plea I had you assessed for suitability for a community correction order, and by a report dated 27 October 2020 you have been found suitable for a such an order with conditions.
32 On the return date of your part-heard plea, tendered as Exhibit 13 was a letter, undated, under the hand of Mr Tom Mithen from Lancaster Consulting relating to the services available to you through that organisation pursuant to the National Disability Insurance Scheme. Tendered as Exhibit 14 was a letter dated 15 October 2020 from the National Disability Insurance Scheme noting your eligibility under that scheme and a plan developed for you pursuant to that scheme. Accordingly, you will have the support of Mr Popplewell for a period of approximately three months, the continuing support of your sister, stable accommodation, support from the National Disability Insurance Scheme, and therapeutic services provided to you pursuant to a community correction order.
33 As at 9 November 2020 you had spent 373 days on remand in respect to the offences the subject of the indictment. A considerable portion of those days were spent subject to the strictures placed on prisoners due to the COVID-19 pandemic. By reference to your comprehensive prison history, which was Exhibit 12 on the plea, I can find no time by way of pre-sentence detention attributable to the contravention proceedings.
34 Mr De Witt submitted on your behalf that a community correction order with conditions is the appropriate sentence in all of the circumstances of your case. He emphasised that it was a characteristic of your contraventions of the community correction order that some of your “unacceptable absences” occurred in close proximity to you being hospitalised, both as a voluntary and involuntary patient, owing to your deteriorating mental health and suicidal ideation. Further, Mr De Witt correctly characterised the offending the subject of the indictment as unsophisticated and opportunistic. In addition, Mr De Witt emphasised that before the offending you had been hospitalised as an involuntary patient under the Mental Health Act in September after police found you walking around the streets with a knife to your neck, asking police to shoot you.
35 You suffer from a combination of psychological and psychiatric conditions, together with an intellectual disability. Overlaid upon these conditions and disabilities is a history of childhood trauma, institutionalisation and drug abuse.
36 You entered your plea early in these proceedings and are entitled to the benefits that flow to you from that plea; namely, that it is some evidence of your remorse, and that it has utilitarian benefits. I note that you expressed your remorse to psychologist Gina Cidoni, neuropsychologist Anna McLaren, and psychiatrist Dr Nicholas Owens. At the committal hearing you apologised directly to your victim, Mr Luo, and that apology was accepted. I am satisfied that, in so far as you can be remorseful, you are. Whilst your prospects for rehabilitation can at best be described as guarded, you now have significant supports in place to assist you upon your release into the community.
As such, I find it is appropriate in all the circumstances to release you on a community correction order with conditions.
37 Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, in respect to the contravention of the community correction order I cancel the order and make no further order in respect to the offence with respect to which the order was originally made. In respect to the offence of contravention of a community correction order, I convict and discharge you.
38 In respect to the charges of armed robbery and theft contained on Indictment K12852696 and the related summary offences I convict you and release you on a community correction order for a period of three years with conditions, namely:
· you undergo treatment and rehabilitation in respect to your drug abuse
· you undergo treatment and rehabilitation in respect of alcohol abuse
· you undergo treatment and rehabilitation in respect of your mental health
· you undergo treatment and rehabilitation, in particular that you undergo programs designed to reduce your risk of reoffending, and
· you be subject to the supervision of the Secretary of the Department or his nominee.
39 Are you prepared to enter into such a community corrections order?
40 OFFENDER: Yes, Your Honour.
41 HIS HONOUR: Thank you very much.
42 There is one matter I need to check with counsel. I do not need to declare the pre-sentence detention.
43 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have placed you on a community correction order in similar terms, but for a duration of four years.
44 Is there anything arising out of that sentence? Mr De Witt?
45 MR DE WITT: No, Your Honour.
46 HIS HONOUR: Ms Zammit?
47 MS ZAMMIT: No, Your Honour. It is clear from Your Honour's sentence that Your Honour does not intend to impose any term of imprisonment in relation to any offence.
48 HIS HONOUR: No.
49 MS ZAMMIT: Yes, Your Honour.
50 HIS HONOUR: There was an application for a disposal order which I have made.
51 HIS HONOUR: Thank you very much indeed. Now, before you are released from that room and taken through the process of discharge from prison, you need to understand, Mr Richards, that you have been placed on a community corrections order for three years. Now, presently, the community corrections people are not having any physical contact with the people that they supervise, namely you.
52 OFFENDER: Yes.
53 HIS HONOUR: In the normal course, you would be expected to go to the Frankston Community Corrections Centre on the ground floor of 431 Nepean Highway, Frankston. You will have that on your document. You need to contact them by phone and the phone number is also on that document and you need to make that contact within two days of today.
54 OFFENDER: Yes, Your Honour.
55 HIS HONOUR: So what will happen is you will be released, you will go to your sister's residence and then make contact with the Frankston Community Corrections Services. Now if there is any problem about any of that, this matter will be brought back to me through the good offices of Mr De Witt and I will fix it for you. Do you understand?
56 OFFENDER: Yes, Your Honour..
57 HIS HONOUR: So long as you have made an effort to make contact with that organisation and I am satisfied that you have done that, there will be no trouble, do you understand?
58 OFFENDER: Yes, Your Honour.
59 HIS HONOUR: All right. Now, the conditions of this order are that you be subject to the supervision of a Community Corrections officer for a period of three years. That you undergo assessment and treatment, including testing for drug abuse or dependency as directed by the regional manager. You undergo assessment and treatment, including testing for alcohol abuse or dependency as directed by the regional manager. You must undergo any mental health assessment and treatment that may include psychological, neuro-psychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager. You must participate in programs and or courses that address factors related to the offending as directed by the regional manager.
60 Now, Mr Richards, what I want you to do is to make contact with your sister today, go and stay and her place today which is the arrangement, together with her and Mr Popplewell, make contact with the Office of Corrections in Frankston, and then go about using the NDIS, the services of Mr Popplewell, your sister's support and suck dry every service that the Corrections people can give you to help you feel better and not commit any further offences, all right?
61 OFFENDER: Yes, Your Honour..
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