Director of Public Prosecutions v Robertson
[2023] VCC 250
•21 February 2023
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Ref. CR-21-02624
Indictment No. M11584273
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYCOB ANTHONY ROBERTSON |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Bendigo | |
DATE OF PLEA HEARING: | 14 October 2022 and 27 January 2023 | |
DATE OF SENTENCE: | 21 February 2023 | |
CASE MAY BE CITED AS: | DPP v Robertson | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 250 | |
REASONS FOR SENTENCE
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Subject:Criminal Law - Sentence
Catchwords: Guilty plea - theft – resist emergency worker on duty – recklessly cause
injury to emergency worker on duty – two charges of possessing a drug of dependence – summary charge of possess prohibited weapon without exemption or approval – whether limbs 3, 4 and 5 of Verdins apply – relevant and significant priors – offender’s youth – Covid-19 considerationsLegislation Cited: Crimes Act 1958, s 18; s 31(1); s 74(1); Drugs, Poisons and Controlled Substances Act 1981; Control of Weapons Act 1990, s 5AB(1); Sentencing Act 1991, s 73(1), s 10AA(4)
Cases Cited: R v Verdins & Ors (2007) 16 VR 269; Worboyes v R [2021] VSCA 169
Sentence: 19 months imprisonment with a new minimum non-parole period of nine months
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Z. Menon | Solicitor for the Office of Public Prosecutions |
| For the Offender | Mr R. Morgan | Peter Baker & Associates |
HIS HONOUR:
1Jaycob Andrew Robertson, you were born in February 1999 and at the time of offending you were 22 years old. You were unemployed when you were arrested, and you had no fixed address. You had previously lived in the Morwell area.
2
There are three victims in this matter: Dion Jowett, Ryan Douthie and
Anthony Dzioba. Dion Jowett and Ryan Douthie are Protective Services Officers attached to the Bendigo Police Station. Mr Dzioba is a bus driver and lives in the Bendigo area.
3Between 9.00pm on Tuesday, 27 July and 6.00am on Wednesday, 28 July 2021, you stole Anthony Dizoba's black Nike sports bag, containing gym equipment and personal items, from his Kia Sportage wagon, which was parked in Mayo Court, Golden Square. These items were found in your possession when you were arrested.
4At about 6.00am on 28 July 2021, Mr Dzioba noticed the front doors of his car were open and the sports bag was missing. He reported the theft to police at around 7.00am. The stolen property was found in your possession when you were arrested later that day. This is the basis of Charge 1 – Theft.
5At 10.00am that same day, Officers Jowett and Douthie were on foot patrol at the Bendigo Railway Station. At approximately 10.10am, they observed you smoking a cigarette on the footpath outside the main entrance to the Station. This is a 'No Smoking' area.
6Officers Jowett and Douthie activated their Body Worn Cameras and approached to tell you that you were smoking in a prohibited area and to move down the street. You walked down the road to finish your cigarette, returning several minutes later.
7When you returned, Officers Jowett and Douthie reactivated their Body Worn Cameras and requested your name and address. You appeared nervous and were reluctant to provide your details. You picked up a black Nike sports bag nearby and began searching the bag, appearing to be looking for identification.
8Eventually, you gave your name. Officer Douthie conducted a search on the police LEAP system confirming your identity and that you were wanted for arrest in relation to an outstanding matter. Officer Jowett confirmed the active warrant.
9Officer Douthie advised you that you were to be arrested because you were wanted by police. You tried to flee, and a scuffle followed. This is the basis of Charge 2 – Resist emergency worker on duty.
10Officer Douthie grabbed you while you were trying to escape, but you broke free.
11Officer Jowett then grabbed you and fell to the ground, landing on his back at your feet. You stomped on his face with your left foot, causing his head to hit the ground. When you stomped on his head, you said 'fuck off you dog'. The force of the stomp stunned Jowett, bruising his face and splitting his lip. This is the basis of Charge 3 – Recklessly cause injury to an emergency worker on duty.
12Officer Douthie then tackled you to the ground and placed you in handcuffs with the assistance of Jowett. You were moved to a nearby bench where you attempted to get up and escape. This incident was captured on CCTV and police cameras.
13Officer Jowett was taken to the emergency department at Bendigo Health Care Group where he was assessed by a doctor and diagnosed with concussion, a mild haematoma overlying his right maxilla bone and superficial abrasions to the knees.
14At approximately 10.15am, police arrived at the train station to take you to the Bendigo Police Station. You were searched and a red-handled flick knife was found in your front left pocket. This is the basis of Summary Charge 8 – Possess a prohibited weapon without excuse.
15A search of the Nike sports bag revealed that the bag belonged to Mr Dzioba and contained the items that you stole from him.
16You were taken to the Bendigo Police Station before being taken to the Bendigo Hospital for an injury to your head. A search at the police station revealed you were in possession of a strip of 'Suboxone' a prescription medication.
This is the basis of Charge 4 – Possess a drug of dependence.17You declined to be interviewed and were remanded in custody.
18On 30 July 2021, you were observed on CCTV behaving suspiciously in the holding cell. You were seen removing an item from your underpants before dropping the item and concealing it in your underpants. Police attended the cell and conducted a search of you, locating a clear snap-lock bag containing a substance believed to be methylamphetamine, which was seized.
This is the basis of Charge 5 – Possess a drug of dependence.
Maximum penalties
19The maximum penalties for your offending are:
· Theft – 10 years' imprisonment.
· Resist emergency worker on duty – five years' imprisonment.
· Recklessly cause injury – five years’ imprisonment but additionally, s 10AA(4) of the Sentencing Act 1991 requires a term of imprisonment of not less than six months be imposed for reckless injury where the victim is an emergency worker on duty, unless a special reason exists.
· Possession of a drug of dependence – one year imprisonment.
· Possess prohibited weapon without exemption or approval – two years’ imprisonment.
Pre-sentence detention
20You were remanded in custody for these matters back in July 2021, but you were later bailed by Bendigo Magistrates' Court on 15 September 2021. So, there is a period of pre-sentence detention between 28 July and 15 September of that year. In respect of these matters, I revoked your bail on 14 October 2022, when the matter first came before me which means the total pre-sentence detention in this matter is 155 days. You have also in that period been remanded on other matter in the Magistrates' Court which occurred, as I understand it, on 16 May 2022. Those matters were dealt with in the Magistrates' Court on 27 January 2023 and you received a sentence of 12 months with a minimum sentence of six months with a total of 149 days pre-sentence detention.
21Victim Impact Statements have not been provided but I have no doubt that for Officer Jowett, to be lying on the ground and to be subject to an assault involving a stomping on his head, this would have been a disturbing experience for him and the injuries inflicted were not insignificant, including a concussion.
Criminal history
22You do have a significant criminal history now, particularly for someone of your age, dating back to 2015 in the Children's Court. Your history includes prior convictions for thefts, assault, resisting a police officer, recklessly exposing a police officer to risk by driving, and a range of drug offences as well. You have been sentenced to periods of imprisonment previously in 2019 and 2020 and you have previously been placed on community correction orders which you breached.
23Although you are still a relatively young man, your offending in recent times has been similar and persistent, indicating you have made no serious attempt to rehabilitate over the last seven years.
24Of course, I do not punish you again for your previous offences but the need to deter you from further offending is elevated given your history and the persistence of your behaviour and the failure of community-based penalties designed to promote your rehabilitation. As well, your criminal history is relevant to the assessment of your prospects of rehabilitation.
Gravity
25The offending in this case exemplifies that you have no regard for the law or the impact of your behaviour on other members of the community including the police and emergency service officers, whose job it is to enforce the criminal law for the community. The recklessly cause injury is plainly the most serious of the offences in this case.
26Officer Jowett was performing his duty when he went to arrest you. He was simply doing his job. Because you resisted, he found himself vulnerable and helpless on the ground and you took the opportunity to stomp on his head with sufficient force to inflict a concussion. Your motivation was simply to get away from the officers who were lawfully seeking to execute a warrant on you. You accept by your plea you had an awareness that an injury was the probable outcome at the time you stomped on Officer Jowett's head. To stomp on a person's head in any circumstances in my opinion is a serious assault. It could have easily resulted in more serious injuries than those described in the opening which were significant enough. It is true that this was not a protracted assault and it was a reaction to the circumstances, but in my opinion that does not significantly reduce the objective gravity of the incident. The incident ended not because you stopped fighting but because you were overpowered. Furthermore, assault offences are often brief. The duration of assault does not necessarily equate with the damage inflicted.
27Ultimately, I do not accept the submission that this is an example of reckless injury at the lower end of the spectrum. This is an example of reckless injury that must be dealt with on indictment. The great bulk of those offences are dealt with in the Magistrates' Court. Having regard to the status of the victim as an emergency service worker and the particulars of the assault, namely a stomp to the head, I regard this as an example of recklessly causing injury more in the middle range of the spectrum for such an offence.
28In an offence such as this on an emergency service worker – denunciation, general deterrence and just punishment must be emphasised. Emergency service workers must be able to perform their duties on behalf of the community free of this type of behaviour. The provision for a sentence of six months in the absence of a special reason reflects the seriousness with which parliament has regarded this offence. In this case it has not been argued that a special reason exists.
29Mr Robertson, the theft offence here is not at the upper end but it shows your disregard for other people's property and is a continuation of what I regard as your drug-fuelled criminality. It merits a prison sentence with some cumulation to reflect the separate criminality involved from the other incident.
30In respect of the drug offences, they are consistent with your ongoing substance abuse issues. It seems you had these drugs for personal use. I must say the possession of the drugs in the prison seems a brazen instance of it.
31Your possession of a flick knife, a prohibited weapon, is concerning given your propensity for aggressive behaviour. I do not accept your explanation of the possession of the knife as set out in the defence submissions, which is that a friend gave it to you. There is no evidence of this. It is an explanation based only on your instructions. I do not regard that explanation as consistent with the explanation in the psychological report that you found it. In the end, I am not prepared to act on that explanation. I do not know how you came to be in possession of the knife, but I repeat that it is concerning for someone like you to be in possession of a prohibited weapon.
Personal circumstances
32
You were born and raised in Morwell with your mother, stepfather and two sisters. Your biological parents had separated when you were aged around three. You say you were the subject of physical abuse from your stepfather and other partners of your mother. You had no relationship with your biological father until he
re-entered your life when you were 12 years old.
33You left the family home when you were around 17 years old and moved in with your former partner in Traralgon for approximately four months. You and your partner were transient at that time. This relationship involved mutual drug use. Your second relationship of significance was with a woman named Chelsea and you were together for three months in 2022. When that relationship broke up, you reverted to drug use and criminality.
34You went to primary school in Morwell. You report you were bullied at school. You then went to Trafalgar High School, which you left in Year 9. You attended the Blackwood Centre for Adolescent Development, a behavioural school, for a period of six months until you were expelled. You then returned to Trafalgar High School. You dropped out of school ultimately at the end of Year 9. The evidence suggests you were a poor student with difficulties reading and writing.
35You worked for your stepfather mowing lawns from the age of 19. This work was casual and has been the only significant employment you have held. You have otherwise relied on Centrelink.
36You have no major health problems, but in December 2021, you were stabbed in the ribs and in the side of the head in Morwell, with a screwdriver. You were admitted to The Alfred Hospital for two days, but you left prematurely. You say that you have trauma symptoms arising from that incident, which include flashbacks and hypervigilance.
37At the age of four, you were diagnosed with attention-deficit hyperactivity disorder by a Dr Charlie Hamilton. You were prescribed medication, including Ritalin and other medications.
38You have a background of abusing illicit drugs since you were 14 years old. You started using cannabis and ice, and by the age of 16 you were using these drugs every day. You have also used GHB and heroin occasionally. Methylamphetamine has been the drug you have abused the most and is the most linked to your criminal history. You do report that you stopped using drugs for a month in 2022, when you were with your partner Chelsea, and you were trying to stay clean, but as I have said you relapsed when the relationship broke down. Other than that, you have only been able to stop using drugs when you have been in prison.
39You are currently on the Buprenorphine program in prison, and you have also attended Narcotics Anonymous meetings for the past few months. I was provided a Narcotics Anonymous certificate, which I take into account. I am also told you have had a job in the prison at Ravenhall. You are an industrial billet, which involves cleaning.
40In the psychological report, which was tendered from Ms Gina Cidoni dated 26 January 2023, your verbal reasoning abilities are assessed as being in the borderline range, but your ability to sustain attention, concentrate and exert mental control is in the low-average range. No overall IQ figure was provided.
41Ms Cidoni assessed you as suffering from attention-deficit hyperactivity disorder and post-traumatic stress disorder stemming from your difficult upbringing. She says in her report these conditions combined, affect your ability to make reasoned judgements and your impulse control. Based on the report, Mr Morgan submitted that principle three from the case of Verdins applies and I should moderate general deterrence. He submitted correctly that there does not necessarily need to be a causal connection between the offending and the impairment for a moderation of general deterrence.
42I do not consider there is a sufficient causal connection or a realistic connection between the psychological disorders and the offending in this case, given other matters, such as your ongoing drug use and having regard to the circumstances of the offence, which simply involved you not being prepared to accept the arrest which was lawful, seeking to flee and using excessive violence in that incident. I do not accept that there is a realistic connection between your psychological conditions and that incident.
43Principle three of Verdins provides though that general deterrence may be moderated or eliminated depending on the nature and severity of the offender's symptoms. Now, I said that I do not regard there to be a sufficient realistic connection between the impairment and the offending in this case. However, that is not the end of the enquiry.
44For general deterrence to be moderated there must be an evidentiary basis and a proper and informed consideration of how the impairment either materially diminished your capacity to reason appropriately about the wrongfulness of the conduct at the time or how your condition might make the full application of general deterrence repugnant to the humanitarian considerations that guide proper sentencing. I am not satisfied that attention-deficit hyperactivity disorder and post-traumatic stress disorder, as described in this material, invoke principle three such that I should moderate general deterrence based on your psychological conditions.
45However, those matters and your background remain significant matters for me to consider in the assessment of all the sentencing principles in this case and I do not ignore your background or your psychological conditions in fixing sentence.
46Additionally, based on paragraph 89 of the psychological report, Mr Morgan submitted that limbs five and six apply. In that paragraph Ms Cidoni said:
Given his poor mental health I expect he will deteriorate significantly. It would be very burdensome and behaviours associated with his mental illness can be misinterpreted as deliberate non-compliance. His trauma symptoms would encourage an easily heightened state of arousal that might become unmanageable.
47Ms Cidoni also said your vulnerabilities increase the risk that you 'might be taken advantage of in custody'. It seems to me limb five of Verdins applies. It is not clear to me that that passage meets the test in limb six; that there would be a serious risk of a significant adverse deterioration in your psychological conditions. But I take into account the entirety of what is said as impacting the burden of your imprisonment and I apply limb five of Verdins in mitigation; that is, that your psychological conditions increase the burden of your imprisonment.
Guilty plea
48You have pleaded guilty in this matter at the second committal mention hearing. I regard this as a plea at the earliest available opportunity. It has taken a long time for this matter to come before me. There were delays in obtaining a psychological report and you changed solicitors. So, you have had this matter hanging over your head for a long time as well and I take that into account.
49I accept your plea has heightened utilitarian value in the current circumstances where this court faces a backlog of trials in the wake of the pandemic, and I apply the principle enunciated in the decision of Worboyes.[1]
[1][2021] VSCA 169
50I also accept that your plea indicates a willingness to facilitate the course of justice and is indicative of some level of remorse. Although it is difficult to gauge exactly the extent of true remorse for this offending.
51I also take into account the effect of the pandemic on prison life over the time you have been on remand and potentially into the future as well. I am told and I accept there have been lockdowns whilst you have been in prison and that courses only recently recommenced. I therefore accept that the burden of your imprisonment has been affected by the restricted conditions that have prevailed in the prison system and I take this into account in mitigation and I also take into account the potential of further lockdowns.
52You are still a relatively young man. You are now 23 years old and you were only 22 when you committed these offences. You do have a significant criminal record, but a number of those offences were Children's Court matters. Whilst your criminal history is very discouraging and there are several factors which will make your rehabilitation difficult, you have at least been doing what you can whilst you have been on remand over the last year and there seems to be some insight into your behaviour.
53I have taken into account the risk assessment in the psychological report for future violent offending, which is said to be moderate. You are still relatively young offender so your rehabilitation remains a significant sentencing objective even though in the end I can only take a guarded view of your prospects of rehabilitation.
54In fixing the sentences in this matter, I have applied the totality principle, which requires that the overall sentence must be just and proportionate to the total criminality of your offending. The application of that principle requires significant concurrency and only modest cumulation between the charges.
55Further, you are currently serving another sentence imposed in the Magistrates' Court committed in a similar timeframe to these offences. Because of the different periods of pre-sentence detention attributed separately in respect of my sentence and the Magistrates’ Court sentence and the time that has passed now since the imposition of the Magistrates' Court sentence, a period of effective cumulation has already taken place even if I impose a concurrent sentence, which is what I have decided to do.
56In sentencing for these matters, I cannot ignore that you have been in custody now since May of last year. Further, I must set a new overall non-parole period in respect of both sentence and I intend to do that.
57In sentencing you, as I said earlier, I take the view that general deterrence and denunciation of this nasty assault and the other offences must be given prominence. As well, specific deterrence, that is, the need to send you a message that further offending will result in punitive consequences, is an important principle. Just punishment also has a role to play.
58In considering your rehabilitation I fix what I regard as a significant non-parole period in the context of this case.
Sentence
59On Charge 1, theft, you are convicted and sentenced to four months' imprisonment.
60Charge 2, resist emergency worker on duty – six months.
61Charge 3, reckless cause injury to emergency worker on duty – 16 months.
62Charge 4, possession of a drug – five days.
63Charge 5, possession of drug, that is the offence in the prison – one month.
64Summary Charge 8, possession of a prohibited weapon – three months.
65Now, the base sentence is Charge 3. I order the following periods of cumulation: two months on the charge of theft is cumulative on the base sentence; one month of the sentence on Summary Charge 8 is cumulative on the base sentence which makes a total effective sentence of 19 months.
66I fix a new overall non-parole period of nine months, which commences today, and I declare 155 days of pre-sentence detention, which will be administratively deducted from the sentence that I have imposed today.
67Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that but for you pleading guilty I would have imposed a sentence of 26 months with a minimum of 18 months.
68HIS HONOUR: I think that means the head sentence finishes, once you take off the pre-sentence detention, around April next year and the non-parole period is nine months from today minus the pre-sentence detention. It all equates out to an overall sentence across the two sentences of somewhere around two years or slightly more.
69HIS HONOUR: So, I've imposed total concurrency because he has had effective cumulation the way pre-sentence detention has worked out and the time period that has elapsed since the sentence in the Magistrates' Court.
70And just finally, I've taken the view that Charge 2 largely arose out of the same set of circumstances as Charge 3 and that is why I have imposed no cumulation with respect to that.
71As regards to the drug offences, they are for personal use and I do not regard them as justifying cumulation.
72I will make forfeiture and disposal orders that are applied for by the prosecution, unless there is some objection to that.
73HIS HONOUR: All right. Mr Robertson, did you follow all that?
74MR ROBERTSON: Yes.
75HIS HONOUR: All right.
76OFFENDER: Yeah. Can I state one thing, Your Honour?
77HIS HONOUR: Look, I've sentenced now, Mr Robertson.
78OFFENDER: Yeah. No. It's not to do with any of that. It's just about when I got stabbed it wasn't with a screwdriver. It was a mini machete. I just wanted you to know that.
79HIS HONOUR: All right. Thank you for that. I accept that. I think I was told screwdriver. I don't know where I got that from. I assume it's been a subject that was discussed but I accept what you say but I indicate that would not have been material to the figures that I imposed.
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