Director of Public Prosecutions v Riley

[2021] VCC 1202

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00973

Indictment No: M10321510

DIRECTOR OF PUBLIC PROSECUTIONS

v

Mason RILEY

---

JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June; 28 June 2021, 2 July 2021
DATE OF SENTENCE:	20 August 2021
CASE MAY BE CITED AS:	DPP v Riley
MEDIUM NEUTRAL CITATION:	[2021] VCC 1202

REASONS FOR SENTENCE

---

Subject: attempted armed robbery. 2 Bail Act offences; 19 years of age at time. 20 as at sentence. Early guilty plea; co-operation; remorse; no criminal history; Covid 19. Unsuitable for CCO.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sprague	Office of Public Prosecutions
For the Accused	Mr J. Murphy	VLA

HIS HONOUR:

1Mason Riley, you pleaded guilty on 21 June this year to a single charge of attempted armed robbery.  In addition, you pleaded guilty to two related summary offences, namely committing an indictable offence (that is the attempted armed robbery) whilst on bail and contravening a conduct condition of bail.  The plea was conducted on Monday 21 June, as well as on Monday
28 June.  That was owing to the unavailability of an expert report on that first date.  That was regrettable, but when I reflect on the speed at which this matter has been dealt with, it really was no one's fault at all.  On 28 June following the further plea that was conducted, I called for a CCO assessment report, and adjourned the case to 2 July for sentence.  You were judged to be unsuitable for a CCO.  On 2 July, I called for a Youth Justice assessment and I adjourned the case to today's date (20 August 2021).  I should mark that Assessment report as an exhibit, it will be Exhibit E on the proceedings, even though of course it is not a prosecution exhibit.  I am sorry it has taken so long to finalise your matter.  I have been actively exploring all of the sentencing options here.  That is my duty to do that.

2The maximum penalties are correctly set out in the prosecution summary.

3You were born on 31 March 2001, and you were only 19 years of age at the time of the offence in February of this year.  You are 20 years old now, and you have no prior criminal history.  You were on bail at the time.  At the time of the plea, I was told there was some other matters outstanding, two of which you were pleading guilty to, some drug matters, and an assault which you were contesting.  As I understand it, those matters in fact have all been dealt with in the Magistrates' Court.  By way of disposition, there was a dismissal without conviction which was recorded.

4The matter was opened to me on 21 June by the prosecutor Mr Sprague in accordance with what was a written plea opening dated 24 May 2021.  Your counsel, Mr Murphy, informed the court it was an agreed summary and as a result, it was marked as Exhibit A.  That document therefore contains the agreed facts and they are actually quite simple.  There is no point in my setting out in these sentencing remarks all of those agreed facts.  The document does that and I will simply sentence in accordance with it.  There was also the CCTV footage and the stills marked as part of the exhibits.

5For those reasons, I will say something only very briefly about the facts.  Your victim was a complete stranger to you.  He was minding his own business, depositing money into his account and he was doing that at the ANZ bank ATM on the corner of Swanston and Little Bourke streets in the CBD.  It was 8.40 pm on Monday 15 February this year.  He commenced his transaction and you entered the ATM area, approached him at the ATM and demanded that he give you the $50 or you would stab him.  You were holding out a syringe which you had uncapped and you were pointing it at the victim.  He understandably felt threatened and concerned for his safety, and he exited the sliding doors to escape.  He was in such a hurry he left his shopping bag behind.  You followed him out closely, still pointing the syringe.  Your victim called 000, police attended and they were flagged down by him and he pointed you out.  You fled from police and there was a bit of a chase.  Ultimately you lay on the ground and you were arrested but by that stage, you had got rid of the syringe.  You were taken to Melbourne West Police station. You were on bail at the time for a charge of possession of a drug of dependence.

6It must be said, you were very cooperative in the police interview, and you made detailed admissions.  Some of those are set out in the agreed opening.  I see no need to set them out in these, my sentencing remarks.  You said that initially you thought the victim was someone who had been part of a group who had taken some money from you but by the time you were attempting to rob him, you knew that was not so.  You knew that a syringe was something feared by people and you agreed your victim was frightened.  You told police you were not adversely affected by drugs on the day and that you got rid of the needle as you were aware of its evidentiary significance.  You said that you wanted the money to buy drugs.  There was an unmistakable oddness to some of your answers in the interview, no doubt a product of the serious mental illness that plagues you.

7You were granted bail a couple of months later, on 14 April, with a condition that you reside with your mother.  She reported that by 17 April you had failed to stay at that address, and had been breaching your curfew conditions, hence the contravene conduct condition that is before me.

8You were arrested again, this time on 29 April 2021 at Flinders Street Railway Station and you were remanded in custody.  You have been in custody since.  The summary sets out the chronology.  It also sets out the details of those matters that had previously been outstanding.  As I say, they have all now been dealt with.

9So, there were two periods of pre-sentence detention here, the first between your initial arrest on 15 February and the grant of bail on 14 April.  The second, when you had been re-arrested on 29 April to today's date.  It was 112 days after the first plea date.  It has risen since.  It stands at a total of 172 days.

10So much then for my short summary of the summary.  I will sentence in accordance with a more detailed document.

Victim Impact

11There is a victim impact statement, which was read aloud by the prosecutor.  It contains nothing surprising, or in any way controversial.  Of course, your victim has been impacted by your crime.  It was a frightening event.  These sorts of crimes are.  This crime has hit him hard.  He fears a repetition of such conduct and is reluctant to leave his home.  Your crime has changed the way that he lives.  I take into account the impact of your crime, as I must.

In Mitigation

12Now, Mr Murphy has conducted the excellent plea on your behalf.  He relied upon a written outline dated 16 June, together with other written material, such as a Forensicare background report, a VCAT order, some Mental Health Tribunal orders, as well as a very informative report from Dr McInerney.  That report was provided after the initial plea, and as a result, there have been some supplementary submissions focusing on the mental health issues. 

13He placed before me details of your family and personal background, including your educational and employment history and your mental health issues.  He made submissions as to the relative gravity of the offending and as to your plans for the future, and your prospects of rehabilitation.

14In mitigation, he relied upon:

·Your cooperation with the police and early guilty plea in the midst of the global pandemic;

·The presence of some remorse;

·Your youth and absence of any criminal history;

·The impacts of COVID-19 upon your custodial experience;

·The impact of your mental illness, and the application of some of the principles from the case of Verdins[1] (limbs 1-4) 

[1] [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)

15He referred me to a number of cases demonstrating  he said that a combination type order was open for this sort of offending.  He was not urging me to consider detention in a Youth Justice facility.  That struck me as being unusual, but presumably was on your instructions.  You wanted the certainty of release provided by a combination type order.  The problem is, I have had you assessed and you were judged to be unsuitable.  On that last date, 2 July, I made it clear that I was still considering the availability of a combination type order.  I was. 
I stressed that I needed to have some confidence in your preparedness to take your medication.  It was fundamental to any prospect of a Community Corrections Order being in any way workable.  I left it then in your court to take some steps in that respect, and your counsel has told me that he reinforced that request.  The Youth Justice assessment report spells out the continued failure to take any medication since.  It is as plain as day, to me at least, that I would be setting you up to fail, by admitting you to a Community Corrections Order.  It would also in my judgment, completely fail to protect the community.  As I have said the plea has straddled a number of dates.  On each occasion, including today, your counsel has persisted with the submission that the court should contemplate a combination type order.  In light of the materials before me, including the notation in the Youth Justice assessment report of some need for robust structure, and in light of your continued failure to take any medication, your counsel I think reluctantly accepts there are some real issues in terms of potential compliance thrown up by your mental health issues.  Nonetheless, he persists in the submission that the combination type order was open.

Prosecution

16Mr Sprague on behalf of the Director of Public Prosecutions did not challenge the availability of a combination type sentence in that it was at least open and that was the stance that was being taken by the Director throughout.  There have been written plea submissions filed that were quite uncontroversial ones from the Crown.  I do not see any need to set them out.  They took me to some of the matters of seriousness here.  There are also some supplementary submissions filed dealing with the Verdins issue, following that report from Dr McInerney.   Ultimately, though they stand by their submission that it is at least open to consider a combination type order, there is a recognition also as to some of the issues thrown up by your mental illness.   Of course, I am not bound by any of the submissions made by counsel.  What I have got to do is exercise my own sentencing discretion.  I do not ignore any submission that has been made, but again here, I have got to have regard to a number of purposes of sentencing.

Background

17I will turn briefly to your background.  It is set out in quite some detail, in the written outline, as well as in the report of Dr McInerney.  Also in the oral submissions I learnt a lot more about you.  Finally, there is the Youth Justice assessment report, and that is if I may say so, a very informative report including as to your background and current presentation. 

18I see no need to set all of this material out.  Your background is described as quite good and supportive.  Very briefly then, you are 20 years of age, born on
31 March of 2001.  You were raised by your parents in Bendigo and Ballarat.  Your parents separated when you were about 15 or 16.  You reached Year 11 at school and after school you lived between your parents' houses, before moving down to your grandmother's in Morwell for a period.  There is a quite limited work history as a kitchenhand at McDonald's when you were 16.

19You undoubtedly have some serious mental health issues.  They started when you were about 18 years of age.  You have been subject to a number of acute admissions from 2019 to 2020 and also subject to an in-patient treatment order, and a CTO under the Mental Health Act 2014. Those two orders spanned a large period of 2020. A further reflection of these issues is an order made under the Guardianship Act which was made owing to your lack of capacity. 
Dr McInerney's report goes into far greater detail as to your mental health issues, and of course, it is highly relevant to my task.  You have poor insight into what is a serious illness.  You do not necessarily adhere to your medication regime.  You have chosen in the past to take illegal drugs which complicates an already complicated setting.

20On that score, I was told you had been using drugs since you were about 14, starting with cannabis, then LSD, then moving onto Ice.

21At the time of the offending you had moved to Melbourne.  You were living on the streets; you were supporting yourself with limited Centrelink payments.  You had been ejected from a variety of supported accommodation owing to your drug use.  The chaotic lifestyle that you were leading is spoken of in
Dr McInerney's report.

22You were using drugs and you were living rough.  The written submissions from your counsel claim that you were under the influence of drugs on the day of the offence.  In your police interview you said you were not under the influence at all, that you had used a tiny amount of Ice and that it had had no effect on you.  It is hard to know which is the true position.  It does not actually matter a great deal, as drug use is not in any way mitigatory.

23Whilst in custody, you have been subject to a period of quarantine.  You have had limited access to in-person visits and programs during the lockdown.  I note that for whatever reason, you will not put various family members on your visitors list, which no doubt adds to the isolation.  There is still an oddness to your presentation as is very clear from the expert report.  Also, from the Youth Justice assessment report, where you were aggressive and threatening to the assessment officer in one of the four sessions, such that the session had to be terminated.  That was less than a month ago.  It is to your credit though, that at least you went on then to apologise at the next session and engaged appropriately.

24You had expressed to counsel the hope of living up in Maryborough upon your release to live with friends who were drug users in the past.  Well, that placement was obviously fraught with risk and not in any way realistic.  Alternatively you said that you could live at your grandmother's house, but I was told that that was not a long-term solution.  I was told and still am told that there is some support available from a support worker at the 'Front Yard' organisation.  They have assisted you in the past.  I was told also that there was the possibility of some assistance from Jesuit Social Services or Restart but there is no certainty at all as to any residential placement open to you upon your release.  As is plain from the discussions earlier today, we are no further advanced now than we were as at the date of the first listing.

25You want to get your driver's license, as I understand it.  You want to explore work options in the future.  I hope that you can.  You have no prior criminal history, though the handful of matters that I have mentioned that have been dealt with.

26As I have mentioned, you were on bail at the time of the attempted armed robbery, and then subsequently breached the terms of bail which had been granted on 14 April.

27I turn then to consider the various other matters raised by your counsel in his excellent plea.

Guilty Plea

28The first of those is your guilty plea.  It was the earliest of pleas, with a cooperative stance taken earlier still with the police.  So, there was no committal conducted.  No trial.  No delay.  In fact, it almost moved too swiftly which was why the plea had to be adjourned part-heard on that first date.

29So, you have pleaded guilty at the earliest of opportunities.  That is significant.  It is to your credit.  The community has been saved the time, the cost and the effort associated with the conduct of the committal or a trial.

30In these ways, you have facilitated the course of justice.  You have taken this early responsibility for your offending by pleading guilty and you have done that in the midst of the disrupted operations of this court arising from the response to the COVID-19 virus.  We have a very large backlog of trials that has developed.  The trial in your case would have formed part of that backlog.  Your early guilty plea is worthy of extra weight in such a setting for the reasons set out in the decision of Worboyes.[2]  I take these various matters into account in mitigation.

[2] [2021] VSCA 169

Remorse

31I turn now then to the issue of remorse.  Your interview was hardly full of remorse but my sense is that that is a product of your illness.  The expert report speaks of that issue as well.  There was an oddness to some of your statements, to the police, as you said that it was ‘quite funny’ that your victim was afraid (see Questions 26-27).  Likewise, there is a lack of insight on display in the Youth Justice assessment report.  You told the author that the victim should have just given you the money.  I really cannot find much evidence of remorse in the materials.  I do not accept the suggestion that I can infer remorse from the fact that you did not follow through with the offence and pursue the victim.  You did for a short distance in any event.  I am though prepared to treat your guilty plea as indicative of some remorse in this case and I take that into account in your favour.

Rehabilitation

32I turn now to your prospects of rehabilitation.  Your youth and rehabilitation are very much linked.  I will return to discuss the principles relating to the sentencing of youthful offenders in one moment.  Treatment of your mental health condition, and abstinence from illegal drugs and a stable residence are also directly connected up to your future prospects. 

33You have no prior criminal history.  No past Court orders in the lead into the offending.  So, you are not a person who, for instance, has ignored a Community Corrections Order or failed on other forms of court sentencing orders.  You have not had any such orders.  As I have said, I was told of the existence of what were described as other allegations and the undertaking of bail that you breached.  I have mentioned that those matters have now all been dealt with.  But other than that, you come before the court as someone with no criminal history at all.  I treat you as a youthful first offender, and that is obviously important.  When I look at this offence, there is - and I am speaking of the attempted armed robbery, there is a complete lack of sophistication in the offending.  It was a quite opportunistic offence and one which at least you did not escalate when it unravelled.

34You have some support in the community.  I am sure you have burnt many bridges over the last couple of years.  Your parents are still supportive of you but they are just not able at this stage to offer you accommodation.  You did yourself no favours by breaching your bail conditions as comprehensively and quickly as you did.  Your mum obviously went into bat for you.  She gave evidence in support of your bail application and you then ignored those conditions.  So of course that raises a concern as to your ability to comply with court orders.  Your counsel has conceded as much.  You had earlier been ejected from supported accommodation as you were using drugs.  The chaotic lifestyle spoken of in the report is a major problem should it surface again.  It is, I am sure to some extent, a product of your serious mental illness which is an enduring one, your non-compliance with prescribed medication and also your use of illegal drugs.  These things all cast a significant shadow over your ongoing rehabilitation.  You are plainly not in optimum condition even now after some months in prison.  A Youth Justice assessment report speaks of the limited engagement and insight and your ongoing refusal to take medication and a denial of any mental health concerns, together with your fragmented attention.  That report comments on your rehabilitative prospects, and your suitability for Youth Justice detention.  The CCO assessment report speaks of the many obstacles to compliance with such an order as that.

35As I have said, you have no employment history of any significance.  You have had these long-term issues with illegal drugs and the sizeable mental health issues which will not go away.

36You are now in prison for the first time. That is never easy.

37It has been a bad time to have been there, with COVID-19 restrictions, quarantine, and isolation.

38All of this, I am sure, will have some role in deterring you in the future, as will the sentence that I will soon impose.

39You are still young, and I will mention in a moment, the way in which youth is treated by the courts.  It is undoubtedly important in my exercise.

40Given your age and the absence of prior criminal history, I am prepared to find that you have reasonable prospects of rehabilitation, if you can abstain from illegal drug use.  It is a big if.  You need a lot of things to fall into place.  You need stable accommodation, you need to abstain from illegal drugs and you need to comply with the advice of those treating your mental health issues.  All of those things have been very much problematic.  Do all of those things, and of course there is some light ahead for you.  But as I have said, your life is tough enough without throwing into the mix the corrosive influence of illegal drugs.  You have enough issues dealing with your serious mental health issues.  If you keep using illegal drugs and you continue to refuse to take the prescribed medication, and if you mix with those who are using illegal drugs, your prospects into the future will be very limited indeed.  Of course, it should not be forgotten that although you have had serious mental health issues, other than this offending, you have not turned to any serious crime at all.  You made some efforts on the CTO.  There was some engagement there.  You still have this support from your parents, who have joined each of the hearings to observe, no doubt because they love you and they are worried about you.  You are in my view a long way removed from being a lost cause.  I am prepared to find that you have quite realistic prospects of rehabilitation.  Taking your necessary prescribed medication is critical and yet you fail to understand that.  That is not your fault.  But I cannot ignore that that this the present reality.  I hope it changes in the future.

Youth

41As I have said a moment ago, youth and rehabilitation are very closely linked.  You were only 19 at the time of the offending, and only 20 now.  You have got no prior criminal history.  So as I have said, you are a youthful first offender.  This is your first experience of prison.  It is an isolating experience.

42Your counsel relies on your youth.

43The principles which apply to the sentencing of youthful offenders are set out in cases such as Mills[3] and Azzopardi[4] and are very well known and I see no utility in repeating them all.

[3]R v Mills [1998] 4 VR 235

[4] Azzopardi v The Queen [2011] VSCA 372

44The law usually treats youth as a matter of importance, as it should.  Young people are more prone to making mistakes or to acting without deeply thinking through the consequences of their actions.  Young people are clearly less mature.  For these and many other reasons, they are generally judged to be less culpable, and the benchmark for sending a youthful first offender to prison is understandably a high one.  Your offence, as I have said, was quite impulsive.

45When dealing with a youthful offender, more weight is devoted to rehabilitation, and less weight is usually given to aspects of punishment and deterrence.

46The law also recognises the potential corruption of a youthful offender.  Those sorts of corruptions may occur in the prison setting.  As that may be damaging to rehabilitation, it is never a step taken lightly or without some sense of regret. 

47I spoke of the link between youth and rehabilitation.  The law also recognises the fact that young or youthful offenders are more able to be actually reclaimed and rehabilitated.  They are less set in their ways.  Whether it understands it or not, the community does actually have a sizeable interest in rehabilitation of any offender, but more so a youthful offender.  At the end of the day, the community does not need to be protected from someone who is actually rehabilitated. 

48So, you are a youthful first offender.  Of course, that is a matter of real significance to my task.  The weight to be given to youth and rehabilitation varies from case to case.  It does not just automatically apply the same way in every case.  Generally speaking, the more serious an offence, the less weight will be given to youth and rehabilitation.  That is because more weight is devoted to some of the other purposes of sentencing.  I will not lose sight of your youth.  It is a very important consideration here.  As I have said, there are quite realistic prospects of rehabilitation, but this was, as is conceded, serious enough offending here.

Verdins

49I have mentioned the report of Dr McInerney.  I do not intent to descend to the full detail of that report.  It was relied upon as attracting the first four limbs of the case of Verdins that you heard mentioned.  I do no doubt that for one moment.  As is clear from the report, your serious mental illness is further complicated by illegal drug use.  You are relatively insightless and you were refusing permission for the expert to talk to the prison authorities or to your parents.  I understand that you have since relented in terms of Dr McInerney communicating with the prison authorities.  However, you still refused to take medication.

50The fact is at the time of this offence you were hardly exercising appropriate judgment.  You have chronically impaired judgment.  I accept the nexus spoken of in the written submissions and therefore accept that your moral culpability can be reduced.  It is conceded that your mental health condition does not completely explain this offence.  It was committed by someone who wanted to obtain money for drugs, which is after all a pretty common motivation, and by a person who, according to Dr McInerney, was to some extent under the influence of drugs at the time.  Well, that sort of matter is not mitigatory.

51So, I see no need to set out all of your counsel's written submissions on this Verdins topic.  I accept them.  I accept that the second limb applies, though your illness and your attitude to it presents very serious challenges to any compliance with a Community Corrections Order.

52I accept also that the third and fourth limbs apply; the fifth and sixth limbs are not relied upon as paradoxically you are perhaps in a better state in prison than out in the community.  You are doing reasonably well in prison, though you are quite isolated.  I moderate specific and general deterrence, but in neither case is it eliminated.  You still knew that what you were doing was quite wrong and illegal.  You ran from the police.  You spoke with insight in the course of the interview about the needle and the use of it and why you had thrown it away.  You understood the evidentiary significance of it, and that people were afraid of such a weapon as that.

53But I do accept the Verdins submissions made on your behalf.  However, the matters giving rise to these Verdins discounts undoubtedly gives rise to an increased risk of reoffence.  They cast a significant shadow over your future prospects.  I take into account the report in the ways urged upon me by Mr Murphy.

COVID-19

54Your counsel, in his written submissions, relied upon the mitigatory value arising from the impact of the COVID-19 pandemic upon your custodial experience (see paragraphs [25]-[27]).

55It is your first time in custody, and that is not easy at the best of times.  It has not been the best of times.  I do accept that the COVID-19 virus and the response by those running the prisons has increased your prison burden.  Prison has been a more stressful environment.  Social distancing is not easy there.  No doubt there is worry about catching the virus in a setting such as that.  Unlike someone in the community, there is no level of autonomy.  You have been subject to a quarantine period.  Also, limitations to visiting and courses during the lockdown.  As to visiting, as I said, for whatever reason, you did not put various relatives onto your visitor's log.

56As to what lies ahead on the pandemic front, well, it is impossible for me to know.  The impacts of the virus upon prisoners in fact had been lessening, with visits and courses getting back underway earlier this year.  We have been experiencing ups and downs as the events of the last few months make plain enough.  We had a circuit breaker lockdown in February and then the temporary suspension of prison visits.  We have had the issues since on occasions, including further lockdowns.  We are currently in lockdown in the community.  Whilst we had been travelling pretty well in the community, it is not that difficult to see how restrictions may spring up again as they have recently.  Our lockdown has recently been extended for a further fortnight.  The Delta strain is worrying most governments in this country as infections grow.  So, there will be some ongoing anxiety amongst prisoners as to how they will fare.  I take that into account.  I cannot know if any limitations will be prolonged, or if once lifted, whether they may start up again down the track and I am not free to speculate about that sort of matter.  I do take into account the impact of the virus in the ways urged upon by your counsel.

General Remarks

57I make now some general remarks about your offending and the sentencing task that I have to perform.

58I must have regard to the gravity of the offences before the court.  Well, of course, the attempted armed robbery is by far the most serious of the offences.  It is punishable by a 20-year maximum term of imprisonment.  Your counsel concedes that it is a serious offence.  It was an attempted armed robbery upon a person just going about his own business on a Monday night, in the CBD.  Someone using a bank in a public place.  Whether your counsel likes the term or not, your victim was in fact a soft target in that he was someone who had no reason at all to expect that he would be victim to such a crime.  It was obviously a frightening event for your victim.  That was your desire in producing the syringe.  You knew that most people are afraid of such an item as that.

59The Court of Appeal has said it is not particularly useful searching for an adjective to describe which particular band of seriousness conduct falls into, for instance, high, mid, or low-level offending.  See the case of Weybury[5].

[5][2018] VSCA 120

60Those terms are to an extent subjective which is why they are not of any great value.  They mean different things to different people.  It is better that I just focus on your crime and what you actually did, than make an assessment of its seriousness.

61But of course, I have to consider the nature and the gravity of the offence.  Your counsel pointed to the lack of physical force, the absence of injury, short duration, no suggestion of any significant premeditation and lack of sophistication.  Well, those things would apply to the vast majority of soft target armed robberies or attempted armed robberies.  But they certainly apply to your offending, there is no question about that.

62Soft target armed robberies, or attempts, are almost always relatively unsophisticated, often enough opportunistic, and lacking in any significant planning.  They are almost always of brief duration.  Often enough, there is no actual violence or injury.  There is a demand, which is either complied with or not.

63You should not misunderstand your Counsel's submissions as implying that your offending was not serious.  That is not what Mr Murphy was saying at all.  Rather, he was pointing to the absence of features that sometimes do exist.  Well, I accept his submissions in that respect.  But of course I am sentencing you for what you have done, not for what you might have done.

64The fact that your crime was incomplete, is not of itself mitigatory.  I am dealing with you for an attempt.  That comes with a lesser penalty.  I accept though, that you did not push ahead and escalate the offending once it ran off the rails, as it did pretty swiftly.  Perhaps a more seasoned offender might have.  It was, when I assessed it, a pretty hopeless crime committed by a barefooted young homeless man, and one labouring under the effects of a serious mental illness and looking for money for drugs.

65There was obviously not much planning here.  You focussed your attention on the man who had gone to the ATM area and then entered, and as you did so, you were removing the cap from the syringe.  It is a most unpleasant weapon and was designed to instil fear, including fear in the mind of the victim of the potential diseases that may be inflicted.

66You may think the needles were clean.  Maybe they were.  You may not be the best judge of that in any event.  But of course, your victim has no idea about those sorts of things.

67Plainly, you were labouring under the effects of the mental illness that I have spoken about at length.

68I do accept that this was a relatively low-level example of attempted armed robbery but plainly not at the very lowest of levels, given the location and the nature of the weapon.  So, I treat it as a relatively low-level example of a serious offence.  The fact is, as was conceded by your counsel, attempted armed robbery is an inherently serious offence.  You were on bail at the time of this one.

69It was still serious offending and was obviously a frightening event for your victim as his impact statement makes clear.  It has had a sizeable impact.

70The absence of the aggravating features listed by your counsel is not actually a matter in mitigation.  It does not alter the actual facts that I have to sentence upon.  Often enough, there is very little distinction in terms of the conduct between an attempt and a concluded offence.

71Very often, a demand is made as it was here.  But it was then complied with, without more.  It is common enough for both attempts and for completed armed robbery offences, for there to be no direct physical force at all.  I do not and will not lose sight of the fact that here, I am dealing with attempted armed robbery.  There is the lesser maximum penalty at play because this was an attempt.

Current Sentencing Practices

72I take into account current sentencing practices as I am required to.

73I have considered the Sentencing Advisory Council online data for attempted armed robbery.  I have looked at that more up to date material, as the relevant Sentencing Advisory Council snapshot for attempted armed robbery (Snapshot No. 36) is so very dated.  It is of no use looking at that.

74The online data discloses that in the period covered by the statistics (I am talking of a period from 1 July 2015 to 30 June 2020), the most common sentence where imprisonment was selected for the crime of attempted armed robbery was between two and three years (21.5%), with the next most common sentence (25.3%) falling in-between one and two years.

75I have also looked at the Judicial College of Victoria new Sentencing Manual for instances of sentences imposed for attempted armed robbery.  I have looked at the cases listed in your counsel's supplementary submissions as well as the original submissions.  They did not greatly assist me. 

76The statistical material that I have mentioned has got obvious and inherent limitations.  Statistics tell me nothing about the crime, or the offender.  They tell me nothing about the sorts of matters that a court has regard to in reaching a particular sentence.

77Other cases also have limitations.  They are not precedents.  There is never one correct sentence.  The outcomes in those other cases are always driven by the individual features which existed both in mitigation and aggravation.  Things which will be unique to that other case.  Things which are unique to your case.

78What I have to do is to pass an appropriate sentence in your case and the answer to that task will not be provided by looking at statistics or other cases.

79It is no part of my job to pass a sentence because it has been the most common or the average sentence employed in the past, no more than it is to pass a sentence because another judge in another case has passed such a sentence.  My obligation is to impose a sentence appropriate to the individual features of this case.  Your case.  Your offences.  Your background.  A background which involves no history at all before the courts and the serious mental illness that you labour under, one where you are judged to be presently unsuitable for a Community Corrections Order. 

80As I have said though, this was serious enough offending, as is conceded by your counsel.  Attempted armed robbery is a serious criminal offence punishable by a maximum term of 20 years' imprisonment.  As I have said, this is an act which falls nowhere near the most serious examples of such an offence.  In fact it falls at a relatively low level in my judgment.

Purposes

81I have to consider a number of purposes of sentencing.  Rehabilitation is one such purpose and of course I do not ignore it.  It is of real importance given your age and your lack of criminal history.

I am required to punish you justly and proportionally.  Punishment is a relevant sentencing purpose, but there can and should be in my view, some moderation owing to your youth.

82It is not my function to use prison or for that matter, a Youth Justice facility as some warehouse to hold you until there is some structure in your life.  What I have got to do is pass a proportionate sentence.

83I must denounce your conduct.  Of course, that is important.

84Community protection and specific deterrence have less weight owing to your youth and your lack of criminal history.  Plainly they would be given more weight if you were older or more criminally experienced.  Or if you were someone who had breached court order after court order.  But you are not such a person as that.  Rehabilitation is given greater weight, and therefore less weight is devoted to these other purposes as well as to punishment.

85Your mental health issues also lead to some sensible moderation of specific and general deterrence.  I am not free to ignore either purpose but you are certainly not an appropriate vehicle for the full weight to given to general and specific deterrence.  I accept the submission made in that respect by your counsel.  It is though conceded that your mental health issues do raise some of these concerns as to your future prospects.

Totality

86I take into account the principle of totality of sentence.

87I have to consider whether the effect of the sentence is just and appropriate and commensurate with your overall criminality.

88I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you.  The most serious offence by far is the attempted armed robbery.  The Bail Act offences are far less serious.  I have the s16(3C) provision stipulating cumulation unless otherwise directed.  I do otherwise direct here.  At the end of the day, I have treated the fact of being on bail as a matter of aggravation and in such a setting as that, it seems to me that to do that whilst at the same time pronouncing cumulation would be quite unfair to you.  It would represent a form of double punishment.

89I must not confine any person unless the purposes for which sentence is imposed cannot be achieved by a lesser disposition, one not involving confinement.

90Sending any person to prison is a matter of last resort for any court.  Setting a youngish first offender to prison is never a step taken lightly or without a sense of regret.  Confinement is a disposition of last resort, and confinement also embraces detention at a Youth Justice facility.  Your counsel was not suggesting that a standalone CCO was open here.  He conceded that confinement was warranted. He conceded that a term of imprisonment was warranted but urged me to impose that in combination with a CCO.  To give you the certainty of ultimate release in such a way.  He was not and still is not urging me to consider detention in a Youth Justice facility.

91Well, I agree with the proposition that a standalone CCO is not available to me.   Confinement is undoubtedly warranted here.  Confinement can include Youth Justice for one of your age.  But for the potential availability of a combination type order, I would have immediately on the first plea date called for a Youth Justice assessment.  I called instead on the date of the second plea hearing, for a CCO assessment.  That found you to be unsuitable for such an order.  You were judged to be a high risk of further offence.  That report spoke of the many impediments to compliance with such an order.  The associated psychiatric nurse's report was not that much more positive actually, though at least suggested that your mental health condition could be managed by Corrections, subject to it not deteriorating.  Now, that assessment, that you are not suitable for a CCO does not bind me and on occasions I have admitted offenders to such orders in the face of a report finding unsuitability.  But here I also called for the Youth Justice assessment report.  I did that once I had seen the CCO report.  As I mentioned earlier in these reasons, I spelled out to you and your counsel on 2 July the need to see some efforts taken by you to persuade me to put you on a CCO.  I said that I might have you reassessed if you had shown a preparedness to go onto your medication, and your counsel confirms earlier today that he spoke to you about this and reinforced that request.

92Well, regrettably I have not seen those positive signs that I had hoped that I would see.  I am not going to cite or quote at length from the report, other than to say at page 8 when dealing with your prospects of rehabilitation, the assessment officer had this to say,

'Evidently, robust planning and supports will have to be put in place for
Mr Riley's transition into the community in order to be successful and reduce the likelihood of further offending and improve this trajectory'.

93Well, when I read the materials, including the Youth Justice assessment report and the Community Corrections assessment report, I believe it would be foolish for me to place you on a combination type order.  Your counsel was arguing in favour of such a disposition.  Of course, I cannot combine Youth Justice detention within a CCO.

94In the course of the plea, on the earlier plea dates and indeed again today, I had asked your counsel on an occasion directly about this Youth Justice detention disposition as an option.  It seemed to me that it would have some advantages both for you and also for the community.  Your counsel was instructed specifically not to pursue such an outcome and that stance seems to have persisted.  As I have said at one stage during the plea, it struck me as being in some ways a short-sighted stance driven by your sense that you may emerge immediately from prison and your desire to do so.  You would not have anyway.  There would have been further time in prison and then release onto such an order, but one which in my view, when I look at your present position, you would have had no hope of complying with.  There is no accommodation to speak of, a serious mental illness of which you have poor insight, long-term issues with illegal drug use, and on occasions, non-adherence to your prescribed medication.  It is a recipe for breach of such an order, as was mooted.  I seriously doubt that you would have any prospect of succeeding on such an order.

95I have received the assessment report.  I have mentioned already the fact that you are judged to be unsuitable for a CCO.  The Youth Justice report on the other hand, assesses you as being suitable for detention in a Youth Justice facility.  It accepts that there are issues with your presentation but the author is not suggesting that you cannot be managed in such a facility as that.  I have explored as I hope I have made plain, the availability of a CCO in combination with a prison term.  If I had any confidence in your ability to comply with a CCO, I would admit you to such an order to take effect at the end of a prison term.  But having done what I have done to explore the availability of such a disposition as that, a combination type order, I do not think it is a sensible or for that matter an available option here.  You would be merely set up to breach it and it would not protect the community at all.  The breach may very well bring you back before me at a point after your 21st birthday by which point, detention in a Youth Justice facility would be lost for all time as an option.  My judgment is that Youth Justice is the way to go today. I cannot speculate as to whether you would be admitted to Youth Parole.

96It seems to be accepted by your counsel that the Youth Parole Board would be in a superior position to set up the robust sort of structures and plans spoken of in the Youth Justice assessment report.  I believe that the only available disposition for me in the circumstances is to have you detained in a Youth Justice facility.  So that is what I am going to do.

Sentence

97On the charge of attempted armed robbery, I convict and sentence you to
12 months' detention in a Youth Justice Centre.  On the two Bail Act offences, you are convicted and sentenced to an aggregate of two days detention in a Youth Justice facility.  That aggregate term of two days will be served concurrently with the 12 months, making a total effective sentence of 12 months' detention in a Youth Justice facility.

Section 18

98You have already spent a period of 172 days in custody. You have done that in an adult prison. Of course, I have had regard to that in reaching the sentence. So, that has being served by way of pre-sentence detention, and that period is to be declared as having been served pursuant to this sentence. So, I make that declaration under s35 of the Sentencing Act.

Section 6AAA

99Finally, I have told you that I have taken into account your guilty plea.  I have.  If you had pleaded not guilty and been found guilty of these offences by a jury, I would have convicted and sentenced you to two and a half years' detention in a Youth Justice Centre.

100Let me just see if there are any other matters.  Mr Sprague, any matters from you?

101MR SPRAGUE:  No, Your Honour.

102HIS HONOUR:  There are no ancillary orders are there?

103MR SPRAGUE:  No, none sought, Your Honour.

104HIS HONOUR:  Mr Murphy, any matters from you at all?

105MR MURPHY:  No, Your Honour.  Nothing arising.

106HIS HONOUR:  So, you understand, it is a total effective sentence of 12 months' detention and I am assuming you will organise a separate form of conference to speak to your client about what has happened here today and his rights in relation to it?

107MR MURPHY:  That is right, Your Honour.

108HIS HONOUR:  All right.

109OFFENDER:  So, it's only four more months.  Only four more months.

110HIS HONOUR:  Mr Riley, I have given you that total effective sentence of
12 months.  You have already served 172 days of that.  You get credit for that.  Mr Murphy, is going to organise to have a chat with you to discuss what has occurred here today, what it all means, and your rights in relation to it, all right?

111OFFENDER:  All right, yeah.  No, that's all ‑ ‑ ‑

112HIS HONOUR:  He will be in contact with you pretty shortly, I think.  What, within the next day or two, Mr Murphy?

113MR MURPHY:  Yes, Your Honour.  We will endeavour to, thank you.

114HIS HONOUR:  All right, well that completes the matter then.  So, what I will do is - I think what I will do is I will stay online with my staff and I will have various other people exited from the meeting, all right.  Yes, thank you.

---