Director of Public Prosecutions v Robertson
[2013] VCC 1223
•16 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WAYLON ROBERTSON |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 13 August 2013 | |
DATE OF SENTENCE: | 16 August 2013 | |
CASE MAY BE CITED AS: | DPP v Robertson | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1223 | |
REASONS FOR SENTENCE
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Subject: Plea – sentencing
Catchwords: Aggravated burglary - intentionally cause injury - breach Family Violence Intervention Order
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence: 2 years' imprisonment, minimum term 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr A. J. Lavery | Victoria Legal Aid |
HIS HONOUR:
1 Mr Robertson, you have pleaded guilty to two charges of aggravated burglary and one charge of intentionally causing injury. You have also pleaded guilty to one uplifted summary charge of breach of a Family Violence Intervention Order.
§ Aggravated burglary carries a maximum penalty of 25 years' imprisonment;
§ Intentionally causing injury carries a maximum penalty of 10 years' imprisonment;
§ Breach of a Family Violence Intervention Order carries a maximum penalty of 2 years' imprisonment.
2 The circumstances of your offending are as follows.
3 At approximately 3.00 pm on Wednesday 27 March 2013 you invited your neighbour, Mr David Seddon, to your unit for a drink. You are the occupant of Unit 1, Mr Seddon is the occupier of Unit 3 and Ms Sharon McLennan is the occupier of Unit 2 in a group of units in Albury Street, Wendouree, Ballarat.
4 Mr Seddon attended at your unit for approximately 15 minutes before leaving the unit and returning to his own. During the time that he was in your unit you showed him a gold-coloured crucifix.
5 Shortly after, you attended at Mr Seddon's unit in an aggressive manner, yelling and screaming at him, accusing him of stealing the gold-coloured crucifix. You then said "I will break your fucking window and door". Mr Seddon, concerned for his safety, decided to run out of the rear of his unit and then rang “000”.
6 You were armed with a large 40-centimetre-long bladed knife and used the knife to smash a front window of Mr Seddon's unit before climbing into the unit through the window. You remained inside the unit for a short period before climbing back out through the window.
7 You then attended at the front of Unit 2, which was occupied by Ms McLennan. You said "I'm coming to get you, Sharon" and "One of youse tell me the truth or one of youse are gonna go".
8 You then began smashing the front wooden door of Unit 2 with the knife whilst trying to open the door with the handle. You then said "I'm coming round the back" and with that ran around to the rear of Unit 2.
9 You then forced open the unlocked rear door of Unit 2 and went inside. Ms McLennan, fearful for her life, thought you were going to kill her and ran out through the front door with you chasing her from behind in possession of the knife.
10 As Ms McLennan ran along the driveway you struck her across the right shoulder with the knife on at least two occasions, resulting in minor lacerations and a small amount of bleeding. Ms McLennan continued to run along the footpath and stopped beside an adjacent property. When she turned around you threw the knife at her, narrowly missing her. The knife landed on the footpath and broke into several pieces.
11 Ms McLennan walked across to the other side of the street away from you whilst you walked up to where the knife lay and picked up the blade. You then threw the knife over an adjacent fence, went back inside Unit 2 and began searching the rooms before going back inside your own unit, putting a back pack on and then calmly walking out of the driveway and around to a nearby pizza shop.
12 The police were called by numerous concerned residents and shortly after you returned to your unit and were identified as you walked along the footpath. You were arrested without incident and taken to the Ballarat police station.
13 You were subsequently interviewed by police and made admissions about having the knife, going to Mr Seddon's unit to ask him about the crucifix, smashing Mr Seddon's window and attacking Ms McLennan with the knife with the intention to scare her and strike her, including wounding her and throwing the knife at her.
14 You also said that there had a been a history, over a few years, of altercations and arguments with Ms McLennan. You acknowledged there was an intervention order against you in relation to her and you said that you just "bottled up" and "everything just erupted".
15 In fact, on 24 January 2013 a Personal Safety Intervention Order had been granted at the Ballarat Magistrates' Court for a period of five years. In this order you were listed as the respondent and Ms McLennan as the affected person. The conditions of this order included that you were prohibited from stalking, harassing, assaulting or damaging the property of Ms McLennan or from going to or remaining within the boundaries of her unit.
16 The reason you offered for the offending was as follows:
"I think part of the reason, her, and that chain. That necklace, that gold chain being going missing. That triggered it, and just the drink. And her in general, I suppose it got to me".
17 A victim impact statement has been received from each of your victims. In them each has described the very understandable anxiety and distress they have experienced as a result of your conduct. Mr Seddon has described nightmares, hyper-vigilance and ruminations about leaving the neighbourhood. Ms McLennan has described her physical injuries and psychological reaction including continuing fear, post-traumatic stress, nightmares, depression and anxiety. Her home no longer feels a safe haven for her.
18 You are currently aged 25 years old having been born on 9 October 1987 and were also that age at the time of the offences.
19 You were raised in Ballarat as an only child. Your father died in 1998 but your mother remains in contact and was present in support at your plea hearing and, I note, today. You get on reasonably well with your de facto step-father and two younger half-brothers but have not been involved in any enduring close personal relationship.
20 You were educated to Year 11 and studied towards the Victorian Certificate of Applied Learning. You have a very limited work history because of your illness, to which I will refer shortly.
21 You have a short history of some prior criminal offending which includes assault police in 2008, shop theft in 2010 and threat to inflict serious injury in 2011. There were also offences for carrying a dangerous article and possess a dangerous article in public in 2008 and 2011. Each of the matters before the Magistrates' Court was adjourned with the condition to comply with lawful directions of Ballarat Health Services. In two of the three of those matters those adjournments were without conviction.
22 You have remained in custody since your arrest on 27 March this year. That was initially in the Melbourne Assessment Prison, however, because of your mental state you were transferred to the Thomas Embling Hospital on 16 May 2013.
23 You have a history of psychotic illness and have been given a diagnosis of schizo-affective disorder in the past. You also have a history of alcohol abuse and you have previously been admitted as an inpatient at the Ballarat Hospital in 2008.
24 When you initially presented at Thomas Embling in May this year you were thought-disordered and tangential, disorganised and responding to internal stimuli at times . You were commenced on Olanzapine oral medication at up to 30 milligrams per day.
25 Dr Yasaman Adli, psychiatric registrar, reports that your mental state is gradually improving. The last consultant psychiatrist review on 27 June 2013 indicated “marked improvement in mental state but symptoms are not fully resolved”.
26 Dr Adli reports that you still occasionally hear your neighbour's voice, have a vague sense of thought interference from time to time but have said that the medication you are receiving has helped you relax and feel calmer. Dr Adli further reports that you preferably need to be on injectable medication to ensure your compliance but so far you have refused to be commenced on any such process. You require a well-constructed discharge plan due to your past history of poor engagement with mental health services, a history of excessive drinking and recent history of assault when unwell. It is proposed that you will be discharged as an involuntary patient and preferably on an injectable medication as you remain a high risk of non-adherence to medication and a high risk of relapse of psychotic illness.
27 Dr Lester Walton, consultant psychiatrist, has also reported on your condition. After interviewing you and having perused your psychiatric file, Dr Walton is satisfied that you are properly diagnosed as suffering from a schizo-affective disorder. Dr Walton considers that it is likely that you were in the grip of a degree of paranoia at the time of offending, that it is highly likely that you tended to misperceive the actions of your neighbours and there was a degree of mood disturbance at the time, making it much more likely that you would behave inappropriately and in an aggressive fashion.
28 In Dr Walton's opinion you do have the benefit, however, of suffering from a medication-responsive illness, and that control of your illness by appropriate medication will very significantly lower the risk of repeat offending. It appeared from Dr Walton's observations that whilst medicated you can be quite well.
29 A short report was tendered concerning your admission to Ballarat Mental Health Services in 2008 and 2010-2011. It is recorded that you were last admitted to the Adult Acute Unit in August 2010 for a period of four weeks for schizo-affective disorder. You were prescribed psychiatric medications, however ceased these prior to being discharged in late 2011. The report also notes that you were referred to the Ballarat Mental Health Services on 1 March this year by your mother due to her concerns that you were relapsing and displaying paranoia.
30 You were seen on 6 March 2013 by a visit from a colleague from Ballarat Mental Health Services, however you would not open the door to speak with her. The note also records that you were treated also for schizo-affective disorder from 2008.
31 You were reviewed again by that same service the day following the day of the current offending. On that occasion there was nothing remarkable about your mental state, you were able to concentrate and respond appropriately throughout the interview and did not voice any delusional ideation. You did not appear to be responding to hallucinations and denied experiencing the same. Your mood was within normal range and was not elevated or irritable. You did not demonstrate any form of thought disorder and your speech was logical and connected. You demonstrated insight into your illness and did not appear to be intoxicated and were not found to be exhibiting any acute symptoms of schizo-affective disorder or any other mental illness.
32 Your behaviour on the occasion of these offences, Mr Robertson, can only be regarded as very serious offending. As has been indicated in the victim impact statements the emotional consequences can be devastating and long lasting. Citizens are entitled to feel safe in their homes and that violation falls to be strongly denounced. Your culpability is exacerbated by the fact that there were two victims, you moved from one break-in to another to the absolute terror of the victims who both fled in very real fear.
33 The principles of denunciation and general as well as specific deterrence remain relevant in the sentencing process. In mitigation I take into account the matters urged upon me by your counsel, Mr Lavery, including:
§ your pleas of guilty and the early stage at which they were entered,
§ your lack of any very serious prior offending, and the responses of the courts on those occasions of those prior offences,
§ the support you continue to have from your mother,
§ your cooperation with the police investigation,
§ your remorse exhibited beyond the plea of guilty by your express letter of apology to Ms McLennan, and
§ most particularly, your unfortunate mental illness.
34 I accept that it is highly likely that because of your illness you misperceived the actions of your neighbours and that the degree of mood disturbance made it much more likely that your conduct was more the product of irrational impulsivity rather than a reasoned decision to engage in criminal activity. It is therefore appropriate that the emphasis on principles of denunciation and general deterrence be sensibly moderated.
35 Your illness will also mean that a given sentence will weigh more heavily upon you than upon an offender in normal health.
36 It appears quite clear that when medicated you can be quite calm and act appropriately. It is very important in the future that you maintain the program of medication which you have been prescribed and listen very carefully and adopt the suggestions, in my view, of the health professionals that direct that you have injectable medications. If you refuse that process it is more likely that you are going to find yourself back in court again for offences that have occurred at a time of mental illness.
37 Mr Robertson, would you please now stand.
38 On Charge 1 of aggravated burglary you are convicted and sentenced to one year’s imprisonment.
39 On Charge 2 of aggravated burglary you are convicted and sentenced also to one year’s imprisonment.
40 On Charge 3 of intentionally causing injury you are convicted and sentenced to nine months' imprisonment.
41 On the transferred summary charge of breach of a family violence intervention order you are convicted and sentenced to six months' imprisonment.
42 Charge 1 is the base sentence.
43 I direct that six months of the sentence imposed on Charge 2 and three months of each of the sentences imposed on Charge 3 and on the summary charge be served cumulatively on the sentence imposed on Charge 1 and upon each other.
44 The total effective sentence is two years’ imprisonment.
45 I direct that you serve a minimum period of nine months’ imprisonment before being eligible for parole.
46 Pursuant to s.18(4) of the Sentencing Act 1991 I declare that the period of 142 days, not including today, be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
47 Pursuant to s.6AAA of the Sentencing Act 1991 but for your pleas of guilty the total effective sentence over all charges that would have been imposed is three years' imprisonment with a minimum period of 18 months to be served before eligibility for parole.
48 At the plea hearing the Crown sought a disposal order as to the - that was the knife, was it not?
49 MR O'DOHERTY: The knife, yes.
50 HIS HONOUR: Yes the knife, to which you have consented and I have made that order today.
51 The Crown also sought an order for the taking of a forensic sample to which you again consented and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is by consent and the making of the order is in the public interest.
52 I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Robertson?
53 OFFENDER: Yes.
54 HIS HONOUR: All right thank you. You may be seated, Mr Robertson. It is very important, I must emphasise, that you keep on your medication program. If you do not your illness is likely to take you into trouble again. Any other matters from either counsel?
55 MR O'DOHERTY: No, Your Honour.
56 MR LAVERY: No, Your Honour.
57 HIS HONOUR: All right I will just leave the Bench whilst the matters for the next plea is prepared.
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