Director of Public Prosecutions v Robertson-Smith
[2023] VCC 2084
•13 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
Case No. CR-23-01134
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB ROBERTSON-SMITH |
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JUDGE: | HER HONOUR JUDGE ELLIS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 October 2023, 10 November 2023 |
DATE OF SENTENCE: | 13 November 2023 |
CASE MAY BE CITED AS: | DPP v Robertson-Smith |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2084 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: One charge of armed robbery – one charge of intentionally damaging property- plea of guilty – application of Verdins – Renzella time
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: R v Mills [1998] 4 VR 235; R vVerdins (2007) 16 VR 269; Azzopardi v R (2011) 35 VR 43; Worboyes v The Queen [2021] VSCA 169; Bugmy v The Queen (2013) 249 CLR 571; R v Renzella [1997] 2 VR 88
Sentence: 41 days' imprisonment, to be followed by a community correction order of 18 months
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Ms L. Gurry | Office of Public Prosecutions |
For the Offender | Ms A. Liang | Giorgianni & Liang |
HER HONOUR:
1Jacob Robertson-Smith you have pleaded guilty to:
·one charge of armed robbery contrary to s 75A of the Crimes Act1958 (Vic) which carries a maximum penalty of 25 years' imprisonment or 3000 penalty units; and
·one charge of intentionally damaging property contrary to s 197 of the Crimes Act1958 (Vic), which carries a maximum penalty of 10 years' imprisonment or 1,200 penalty units.
2At the time of the offending, you were aged 21 years. Your victim, Callum Murray, was a 22-year-old male who was not known to you.
3On Saturday 19 November 2022 you were out with friends but became separated from them. You lost your wallet, your mobile phone was out of charge and you were unable to access any money. In the early hours of 20 November you took a train to Balaclava Station and at 2.40 am walked down the station ramp into Carlisle Street. After attending a 7-Eleven store you crossed the railway tracks from platform 2 to platform 1. You kicked a vending machine on the platform and then kicked automatic glass doors at the entrance to the waiting room, which caused damage to the doors so that they ceased functioning correctly. The cost to repair the automatic doors was $660.
4At 2.47 am you left platform 1 via the ramp. At this time Mr Murray was walking up to platform 1, returning from a friend's house to get the train home. As he was climbing the stairs you confronted him and produced a flick knife in your right hand which you held up to Mr Murray's throat, whilst using your left hand to hold the victim's neck. The knife was approximately 100 to 150 millimetres in length with a black handle.
5You said to the victim, 'Give me your phone, give me your wallet'. Mr Murray said he did not have anything on him to which you said, 'Do you want a knife in you?' and 'I'll fucking kill you, cunt.' Fearing for his safety Mr Murray pulled his wallet containing a bank card from his pocket which you then grabbed with the same hand in which you were holding the knife.
6You continued to hold Mr Murray's throat with your left hand and demanded his phone. The victim said you did not need to do this. You then made a further threat to kill Mr Murray before leaving down the stairwell and along the railway line. The victim alerted Protective Services Officers who at that time were inspecting the damaged automatic doors.
7CCTV from Balaclava Railway Station showed that the offender had distinct tattoos behind his left ear, covering his right leg and on his right arm. There was then some publicity on the Victoria Police Eyewatch pages on Facebook in an effort to identify you. In response, an anonymous person contacted Crime Stoppers and nominated you as the offender.
8On 9 February 2023 you contacted police and identified yourself as the offender. You were arrested on 21 February this year at your home in Frankston.
9When interviewed by police you made admissions, stating that you had been for a night out, including to a few nightclubs, when you lost your identification and could not get in anywhere. You said you needed your wallet so that you could get home and that Mr Murray was probably the first person you had seen in Balaclava in about 45 minutes.
10You told police that you were not going to ‘pussyfoot’ around the subject and pretend it was not you, admitting that you committed the offending. You said that you stole the victim’s wallet, that you used a knife which you put to his neck. You told police you did not remember much, just that you did it. You said you were already angry because your mates had left you and you think you had just blacked out which is something that has happened previously. You said that when you are in a fit of rage, after the fact you are shocked when you realise the things that you have done.
11You told police that you did not remember kicking the glass station doors, only that you remember robbing the victim. You said you were out of it because you had been on ketamine and that it was 'honestly a real blurry night,' adding that you had little patched memories of things that happened. You have since told psychologist Ms Gina Cidoni that you used cannabis, methamphetamine and GHB at the time. You acknowledged that the victim probably felt scared, and he would have been shocked.
12As to why you were carrying the knife, you said that you would rather be caught having a knife than not to have one and get stabbed. You said the knife was not to hurt anyone, but it was more of a protection thing. You said you did not go out intending to rob people and this is consistent with what you have told
Ms Cidoni, that carrying the knife was related to a perceived need for self- protection.13You entered a plea of guilty to this offending at the earliest opportunity, being at a committal mention on 22 June this year. Your plea hearing took place on 3 October this year and again on 10 November. Your counsel had asked for the matter to be adjourned to allow for a psychological report to be obtained.
14No victim impact statement has been prepared however, it is not a stretch to say that this must have been frightening for the victim, and having his wallet stolen was no doubt as upsetting as it would have been inconvenient.
15You have admitted a prior appearance from May 2020 for dishonesty offences for which you received an adjourned undertaking.
Nature and Gravity of Offending
16The offence of armed robbery is a serious one and this is reflected in the maximum penalty applicable for this offence. Your offending here was objectively serious. It took place in the early hours of the morning on a dark outdoor stairwell attached to a train station. The victim was a soft target. He was alone and simply returning from a night out when you confronted him in a location from which it was not easy for him to escape. You used a flick knife which you held to his throat in conjunction with using force with your hand. You made verbal threats as to the knife being used to kill the victim, albeit this is not the subject of a charge and forms part of the circumstances of the offending. It must have been incredibly frightening for Mr Murray to experience this, and I consider your moral culpability to be high.
17At the time of the offending, you were substance affected. Anything could have gone wrong. It is fortunate that no one was seriously injured, including yourself. People should be free to go about having a night out without fear of being accosted by offenders who are drug affected and armed with a knife stealing their personal property. Having said that, I accept that your offending was opportunistic and that you acted alone. I also accept that the offending itself was relatively brief, lasting only a few minutes.
18In terms of the property damaged, this was a glass door at the entrance to a train station used frequently by commuters. I accept that the offending was spontaneous and appears to have occurred in a burst of anger, based on what you have told the police about becoming angry generally. You have also told police that you have no recollection of damaging this property, but you accept that you did so by your plea of guilty.
Youth
19You are currently 22 years of age. You are not a young offender pursuant to s 3(1) of the Sentencing Act1991 (Vic), however, you are a youthful offender. Accordingly, the need to have regard to your rehabilitation assumes primacy in the sentencing process.[1]
[1]R v Mills [1998] 4 VR 235.
20As Redlich JA recognised in Azzopardi v R at [34]-[35], young offenders ‘may lack the degree of insight, judgment and self-control that is possessed by an adult’.[2] They may not fully appreciate the nature, seriousness and consequences of their criminal conduct.
[2] (2011) 35 VR 43 [34]-[35] (Redlich JA).
21As His Honour went on to say, courts ‘recognise the potential for young offenders to be redeemed and rehabilitated’. This potential exists because young offenders are typically still in a stage of mental and emotional development and may be more open to influences designed to positively change their behaviour than adults who have established patterns of anti-social behaviour. No doubt because of this potential, it has been stated that the rehabilitation of young offenders ‘is one of the great objectives of the criminal law’.
22As was emphasised in that case, rehabilitation of a young offender is in the community’s interests. Having said that, the courts are also less tolerant of young people committing violent offences.
23As was discussed in Azzopardi v R, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation, given potential exposure to corrupting influences.
Relevant Sentencing Factors
24I must have regard to your age and prospects of rehabilitation. I must also have regard to other sentencing objectives including general and specific deterrence, denunciation, just punishment and protection of the community. Other people must understand that robbing another member of the public of their personal property, whilst armed, as in your case, armed with a knife, which has the potential to cause significant harm if misused, will not be tolerated. The sentence that I impose must also deter you from behaving in such a way in the future. I am going to come back to this shortly when I deal with the submissions made regarding the way in which I should take into account your mental health issues.
Personal circumstances
25You were born in April 2001, and you were raised by your mother in the Frankston area. Your mother was only 16 years old when she had you. She worked long hours trying to support both of you but the emotional support that she could provide was limited. She separated from your father when you were young. He was physically abusive to you. You have no relationship with him, and you have struggled with feelings of abandonment. Your father has had several periods of incarceration and he has been a long-term drug user. You yourself saw him use heroin.
26Your mother has since had two more children with other partners, and your half siblings are aged nineteen and eight years respectively. You are said to love your siblings and wish to be a good role model for them.
27You went to live with an uncle when you were 13 and then your grandmother when you were 17 in order to give your mother some respite. You suffered abuse at the hands of an older cousin when you were six and this continued on several occasions over a few months. You reported this to family, but it was swept under the rug, which left you feeling disappointed and unprotected by your family.
28You attended local schools. You were asked to leave one secondary school in year 7, and you transferred to another. There were periods of truancy and you engaged in some behavioural programs for a limited period. You left school partway through year 10. You reported struggling with dyslexia. You were reportedly diagnosed with attention deficit hyperactivity disorder at a young age but your mother did not wish for you to be medicated. This highly likely impacted your schooling.
29After leaving school you worked in various jobs, including concreting, furniture removal and in cafés and fast food. More recently you were working as a bricklayer, and you completed an apprenticeship. This involved working in schools however, as a result of being charged with this offending you lost your Working With Children check.
30Since your incarceration you have worked as a kitchen billet. You have also engaged in training programs in custody.
31You began using cannabis at the age of 12 or 13 which continued daily. You began using MDMA at age 15 and abused prescription medication for five years. You also began using methamphetamine at the age of 15 and smoked it daily up until your arrest. You have also been using GHB and on occasions this has resulted in treatment by paramedics. You have expressed a strong desire to stop using drugs and you have been on waitlists for rehabilitation programs.
32It seems that you have used drugs as a coping mechanism. In the opinion of Ms Gina Cidoni, your early trauma, including your childhood exposure to adversity and the challenging and often unstable environment in which you were raised, coupled with the abuse that you have suffered, can lead to the development of maladaptive coping mechanisms such as substance abuse. These childhood experiences are said to have likely interacted with genetic and environmental factors to form antisocial traits including impulsivity and aggression.
33You are currently in a relationship with a 27-year-old woman whom you have been seeing for approximately a year. She has prepared a reference for you in which she describes you as a loving, caring, generous and compassionate person. You purportedly took pride in your job as a bricklayer. She describes the love that you have for your siblings and your desire to be a father figure to them. You are described as hardworking with a heart of gold.
34Your mother also speaks in her reference of your caring and kind-hearted nature when sober. She too notes that you are a hard worker. But she recognises the destructive nature that drugs has on your behaviour. She also notes the angst that you have experienced growing up and the absence of your father in your life. I take into account these references.
Psychological report
35Gina Cidoni assessed you on 4 November this year. She considers that you endorsed severe levels of psychological distress.
36Further, Ms Cidoni opines that you have the following clinical diagnosis in line with the DSM-5:
·Attention Deficit Hyperactivity Disorder (you scored in the highest percentile in the adult ADHD scale);
·Post-Traumatic Stress Disorder; and
·Substance Use Disorder (you are said to have a severe substance use problem).
37The interaction between these three diagnosed disorders is said to be complex and has a significant impact on your day-to-day life. Your ADHD contributes to difficulties in maintaining focus giving rise to impulsivity and disorganisation. This makes it difficult to manage your substance abuse disorder, which often drives your impulsivity. Ms Cidoni considers that your PTSD may have led to initial substance use as a coping mechanism when confronted with emotional distress.
38Therefore, it is difficult to disentangle your drug use from your mental health. You were by your own account substance affected when you committed this offending and it has clearly been a relentless cycle and one which only you can break by accepting appropriate help and supports.
39Your counsel submits that in light of the diagnosed mental health issues, limbs 2, 4, 5 and 6 of R vVerdins[3] are enlivened. Specifically, Ms Liang submits that your impaired mental functioning should have a bearing on the kind of sentence to be imposed and the conditions in which it should be served. Further, it was submitted that specific deterrence should be moderated. The prosecution takes issue with the submission that limb 4 of Verdins is enlivened.
[3] (2007) 16 VR 269.
40As discussed with your counsel, the difficulty that I have with the submission of limb 4 being enlivened is that whilst your ADHD and your PTSD play a role in your substance use, you clearly have some insight into the way in which your drug abuse impacts your behaviour. You acknowledged to police the role that ketamine played in your ability to recall events clearly; and you also acknowledged that when you have succumbed to fits of rage, you do not know what you are doing until after the fact. You must have appreciated that drug use would likely only exacerbate any feelings of rage. Drugs in those circumstances is a dangerous combination and, as I said before, it is frankly fortunate that no one has been hurt, including yourself, when you have been affected by drugs in this way, other than the way in which Mr Murray was affected by your offending.
41Having said that, I am prepared to moderate the significance of specific deterrence to a limited degree. But your drug use does not in any way excuse your behaviour. It only sheds light on why a person, described as otherwise caring and compassionate when sober, might behave in this way.
42Ms Cidoni is of the opinion that imprisonment can have a profound effect given your clinical diagnosis and history. Your conditions are said to pose significant challenges in the prison environment. In light of this, I am prepared to find that imprisonment may weigh more heavily upon you than a person in normal health.
43Your counsel submits that limb 5 of Verdins is enlivened as there is a serious risk that imprisonment will have a significantly adverse impact on your mental health. That may be the inference that can be drawn, although Ms Cidoni does not directly address this issue. However, she does note that access to consistent mental health and substance abuse care will be challenging within the prison system. I accept that this may pose a serious risk that this will substantially impact your mental health. I also note Ms Cidoni’s concerns that given your diagnosed conditions, your age, impulsivity, and immaturity make you more impressionable and susceptible to negative influences. Ultimately if this is the case, this would have the effect of diminishing your prospects of rehabilitation. It is, as I have said, in the community’s interests that you be rehabilitated as much as possible.
Childhood Deprivation
44Your troubled upbringing and exposure to violence and abuse during your formative years is a significant factor. It provides the context through which your mental health must be viewed and it explains your recourse to illicit drugs, which is relevant to your involvement in this offending. Whilst I do not consider that your childhood exposure to violence reaches the level required to enliven the principles established in Bugmy v The Queen,[4] it is nonetheless relevant. As the High Court said in Bugmy, the effects of social disadvantage do not diminish over time. Your childhood and the trauma that you experienced provides the prism through which your offending must be viewed. I take the circumstances of your upbringing into account.
[4](2013) 249 CLR 571.
Remorse
45I accept that you are remorseful for this offending. You have co-operated with police, handing yourself in and making admissions. You appear to have some insight into the way that the victim may have been feeling, having told
Ms Cidoni that it must have caused distress to Mr Murray.
Plea of guilty
46You entered a plea of guilty at the earliest opportunity. You have accepted responsibility for your conduct, and again this is consistent with your co‑operation with police. You have spared the victim from having to give evidence and your plea is of considerable utilitarian value. You have spared the community the significant expense of a trial and your plea demonstrates a willingness to facilitate the course of justice. It is also evidence of remorse.
47In the context of COVID-19 and the backlog associated with the pandemic, pleas of guilty have attracted an appreciable discount in sentence, in accordance with the principles set out in Worboyes v The Queen. [5] Whilst that backlog has now in effect been reduced to a pre-COVID standard, your decision to plead guilty should be considered in light of that backlog. You entered a guilty plea in June this year, prior to the court undertaking an assessment of the backlog of trials. By pleading guilty this has ensured a reduction in trial work and accordingly I propose taking into account that your plea of guilty occurred during the pandemic, albeit that the weight attached to this is no longer as great as it was earlier this year.
[5][2021] VSCA 169.
Time in custody
48You were bailed for this offending after your arrest. However, you committed further dishonesty-related offences whilst on bail, and you were remanded in custody on 13 September this year for that offending. Your bail on this offending was revoked on 3 October and you have therefore spent 41 days in custody. You have since been sentenced for the further dishonesty offending to a 12-month community correction order with a number of conditions attached. The period spent prior to bail being revoked for this offending was not taken into account as pre-sentence detention for that other offending. I take into account the fact that you have been in custody since 13 September for other offending which is not attributable to pre-sentence detention, and I take it into account pursuant to the principles set out in R v Renzella.[6]
[6] [1997] 2 VR 88.
Prospects of rehabilitation
49Having regard to your age, co-operation with police, your demonstration of insight as to the impact on your victim, your early plea of guilty, your limited prior criminal history and the fact that you have supports from both your mother and partner, and your desire to be a good role model to your siblings, I consider that you have good prospects of rehabilitation. However, this is contingent upon your preparedness to accept supports and to engage in appropriate treatment. Ms Cidoni considers that you are a medium risk of re-offending based on the Violence Risk Appraisal Guide. She recommends comprehensive substance abuse treatment, ongoing mental health support, cognitive based behavioural therapy, education upon release, and community-based programs with a strong focus on relapse prevention strategies.
CCO assessment
50Your counsel has submitted that a community correction order or a combination sentence encompassing time already served would be an appropriate disposition. The prosecution submits that a combination sentence or a community correction order alone would be within range.
51You have been assessed by Corrections as suitable for a community correction order. You have not previously been subject to a community correction orders. You are considered by Corrections to be a high risk of reoffending, but it appears that this assessment is based on your self-report of ongoing drug use since you were 13. Corrections recommend a number of conditions be put in place, including a condition for offence specific programmes to permit assessment and participation in forensic intervention services. To that end a community correction order of at least 18 months' duration is recommended.
52According to a mental health assessment you have denied any risk of mental illness or risks associated with mental health concerns. However, I take into account the matters raised in Ms Cidoni's report. It is recommended that you would benefit from counselling regarding substance use to reduce your risk of re-offending.
53I have considered the matter carefully. Ultimately, I am prepared to place you on a community correction order, in combination with a period of imprisonment. I consider that this will appropriately reflect the facts that I have already set out, including your age, personal circumstances, your mental health, whilst also taking into account the gravity of the offending and your culpability for this offending whilst having regard to the basic sentencing principles. I have had regard to current sentencing practices. The reality is, Mr Robertson-Smith, you are at a crossroads in your life. Now often people come before the courts and their barrister says, 'My client's at a crossroad, now is the opportunity' and it happens all the time. This is really the crossroad in your life because if you continue down the path of using drugs and not controlling your anger, not doing anything, not taking any steps to manage your emotions, if you do not engage in counselling and treatment you will find yourself back before the courts again and again and you will find yourself in custody again and again. I am sure that is not the life that you really want for yourself. You have opportunities to work as a bricklayer. According to the character references you were very good at what you were doing, and you took a lot of pride in that. I would encourage you to try to get yourself back to work. This is really your opportunity to make the most of supports available to you and to rehabilitate yourself, and you have indicated that you want to be a positive role model to your half siblings. This is your opportunity to do that. People make mistakes. People's lives can begin on a particular path, but they are not defined by that. So I am going to give you an opportunity to rehabilitate yourself and in effect what I am now going to do is I am not going to impose any further period of custody but I am going to impose a sentence which is a combination sentence which takes into account the time that you have already served. Can you stand up please, Mr Robertson-Smith.
Sentence
54On the charge of armed robbery and intentionally damaging property, you are convicted and sentenced to 41 days' imprisonment, to be followed by a community correction order.
55As I have said, you have already spent 41 days in custody which I declare as pre-sentence detention.
56The duration of the community correction order, which will commence immediately, will be for a period of 18 months.
57There are going to be a number of conditions attached to the order.
·You are to be under the supervision of Corrections for a period of 18 months.
·You must undergo treatment and rehabilitation for drug and alcohol use.
·You must undergo treatment and rehabilitation with respect to your mental health.
·You must undergo treatment and rehabilitation to address your risk of re‑offending.
·I have not made an order that you undertake unpaid community work. I have given that careful consideration and unanimously the reason I have not imposed unpaid community work is to ensure that your time spent on the order is focused on your rehabilitation and hopefully that will allow you to get back into the community and to undertake paid employment.
58There are also a number of core conditions attached to a community correction order.
·You must not commit any other offence that is punishable by imprisonment during the 18-month period.
·You must comply with any and all obligations and requirements prescribed.
·You must report to and receive visits from Corrections during the period of the order.
·You must report to the nearest Community Correction Centre, which I believe is in Frankston, within two clear working days from today. I suggest you do that as soon as you are released from custody.
·You must let a Community Corrections Officer know within two working days of a change of address or employment.
·You must not leave Victoria without first getting permission.
·You must obey all lawful instructions and directions from Corrections.
59In a moment you are going to be asked to sign a document indicating that you understand the conditions as I have just read out and that you agree to comply with the conditions of the order. I am just going to explain to you what will happen if you do not do comply with the conditions of the order. If you commit any offences during the 18-month period, you will likely be brought back before the court on a breach. If you do not comply with the conditions, if you decide that you were not going to participate in the rehabilitation programs or the drug and alcohol programs or any of the programs as directed by Corrections, it is likely that Corrections will breach you for the breach of the CCO and it is very likely that you will find yourself brought back before me on a breach proceeding. Now if that happens I would need to resentence you for this offending. I cannot imagine I would be giving you any further opportunities to undertake a community correction order. If that happens it is likely I am going to send you back to gaol. I am sure that is the last thing that you want.
60The other thing that might happen if you were to breach the order, it is likely that there would be a penalty for breaching the order in and of itself, so it is very important that you follow the directions of Corrections and that you engage in this community correction order. This is really your opportunity to start making steps to change your life. There will be times when it is challenging, there will be times when you probably cannot be bothered, but you have to do it. It is really in your best interest that you do it because I am sure you do not want to come back here again.
61You are going to be asked to sign that document in a moment and I will allow your counsel to approach you to assist you in doing that.
PSD
62I note that pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that 41 days' pre- sentence detention as time served be deducted from the sentence that I have imposed.
Section 6AAA
63Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), I indicate that but for your plea of guilty, so had you not pleaded guilty but if you were found guilty following a trial, I would have sentenced you to 15 months' imprisonment with a non-parole period of nine months.
64I also make the order for compensation in the sum of $660 for the damage to the property of Metro Trains which is by consent.
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