Director of Public Prosecutions v Robinson

[2016] VCC 1898

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00216

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN GEORGE ROBINSON

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 November 2016
CASE MAY BE CITED AS:	DPP v Robinson
MEDIUM NEUTRAL CITATION:	[2016] VCC 1898

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough
For the Accused	Mr A. Pyne

HIS HONOUR:

1Benjamin George Robinson, you have pleaded guilty to two indictments.  One charging you with causing serious injury recklessly on 18 September 2014 and the other indictment charging you with two offences of common assault on 3 April 2013 and 23 August 2014 respectively.

2You have admitted prior court appearances and convictions.

3The prosecution tendered and relied upon two summaries of prosecution opening covering the offending, the subject of the indictment.  I am not going to read those, but they do raise some real concerns for future public protection, and it is therefore necessary for the court to give proper consideration to that sentencing principle.

4Turning to matters personal to you, you are now 43 years of age and you have a psychiatric history which is set out in reports, both from Foreniscare and other psychiatrists, which show that presently, and perhaps indefinitely, you will require significant psychiatric intervention. 

5The Verdins' principles apply in your case to reduce your moral culpability and to reduce, both the significance and importance to be given to individual deterrence and general deterrence.  A term of imprisonment would weigh much more heavily upon you than upon somebody who did not have your mental impairments.  A sustained period of imprisonment is likely to be detrimental to your psychiatric health.

6Your situation does pose a significant problem for the court in that, whilst the court is sympathetic to your mental impairments and is concerned to ensure that you receive appropriate treatment to the extent that the court has any control over that, the court is also concerned to ensure that whatever framework is put in place, that it offers a sufficient measure of protection to the public in the event that you were to be in the community and to suffer from further symptoms of your mental impairments including psychotic episodes that might lead to further incidents of violence.

7The court has sought over a number of months to identify a pathway forward which meets all sentencing considerations adequately.  It is unfortunate that you do not have permanent accommodation.  It is unfortunate that it is unlikely that such accommodation will be identified for you until at or about, or after, you are able to be in the community without the restrictions of any orders under the Mental Health Act.

8However, it seems to me, that the time has come to bring to an end, at least the formal custodial part of your sentence, and to shift the responsibilities for your welfare and that of the community to those administering the Mental Health Act and those administering a community correction order.

9There will, of course, be overlap between the various orders upon you. But I think the best the court can do is to impose a sentence of imprisonment equivalent to the period you have already served with a community correction order.   I am going to say, for a period of three years which will offer you a measure of support and formal responsibility passing to the Department of Community Corrections to oversee the administration of your future treatment and to ensure that you comply with the terms of the order which in itself offers some degree of protection for the community.

10What I have in mind is to make an order which follows the recommendations in the community correction order assessment outcome report, that you be the subject of treatment and rehabilitation for drug and alcohol abuse, for mental health issues and for programs to reduce the risk of re-offending as well under the supervision of the Department of Corrections for the period of the order.

11The order will be for a period of three years.  It will be necessary for you to comply with the terms of the order. That will mean turning up for appointments, complying with lawful directions given to you by the officers from the Department of Corrections that manage your order, and importantly, not committing any offence punishable by imprisonment.

12You should realise that if you fail to comply with the terms of the order in any way, you could be brought back before the court in breach of the order which would mean that, just for the breach alone, you could be up for a term of imprisonment of three months.  But you would also be liable to be re-sentenced for these offences and that might mean the court imposing a further period in custody.

13If you commit further offences punishable by imprisonment, obviously, you would be liable for punishment for any such offence that you committed, but you would also be liable to be brought back and re-sentenced for these matters in the same way that I have outlined.

14It is not always easy to comply with the terms of a community correction order and I am sure it will not be, necessarily, easy for you to do so but I cannot impose an order of that nature unless you consent to it.  Can I receive the consent from you, Mr Pyne?  Is he in a position, really, to give informed consent to me or am I able to accept that from you?

15MR PYNE:  Your Honour, my learned friends are suggesting to me that the consent needs to be from him and I think that is right.

16HIS HONOUR:  Yes, all right.  You are happy that I seek that consent from him?

17MR PYNE:  Yes, yes.

18HIS HONOUR:  Mr Robinson, are you willing to be placed on a community correction order in the terms that I have outlined?

19ACCUSED:  Yes, sir.

20HIS HONOUR:  Yes, all right, thank you. 

21Therefore the orders that I make are in respect of the indictment E13145223.1, the offence of causing serious injury recklessly, I convict you and sentence you to imprisonment for a period of 741 days.

22For the indictment charging you with two offences of common assault, I convict you and sentence you to imprisonment for a period of 90 days on each charge. 

23All of the sentences will run concurrently making a total effective sentence of 741 days. 

24MR GOODENOUGH:  Your Honour, could I, with respect, draw Your Honour's attention to each of s.11 and s.44 of the Sentencing Act, 741 days is just beyond the two years.

25HIS HONOUR:  Is it.

26MR GOODENOUGH:  Which is 730 days is two years.

27HIS HONOUR:  I think we will say 729 days to be on the safe side.

28MR GOODENOUGH:  Yes.

29HIS HONOUR:  Seven hundred and twenty-nine days and there is nothing wrong with the sentences and 90 days for the two common assaults; is there?

30MR GOODENOUGH:  No, Your Honour.

31HIS HONOUR:  So 90 days for each of the common assaults.  All of those offences to run concurrently. 

32I declare 741 days as time to be reckoned as served on the sentence that I have imposed which will mean that you are not going to be required to serve any further term of imprisonment.  Obviously, there will be some formalities within the prison system for you to be released. 

33I understand that it will mean that you will be taken by ambulance to hospital. 

34MR GOODENOUGH:  The only matter, Your Honour, there was an application under s.464ZF.

35HIS HONOUR:  Yes.  Is that opposed?

36MR PYNE:  No, Your Honour.

37HIS HONOUR:  I grant the application under s.464ZF which will be for the provision of a forensic sample.  Now, the order - did you provide me with ‑ ‑ ‑

38MR GOODENOUGH:  Yes, I understand it was provided previously.

39HIS HONOUR:  Well, I have probably got it here actually, if I bothered to look.

40MR GOODENOUGH;  If not, my instructor can re-draft and forward it to Your Honour's associate.

41HIS HONOUR:  Yes, it will be necessary, I think, to have one that is for him whilst not in custody now.  The one I have got here seems to be - no, no, I have got one for not in custody but he will have to report to a police station that is the only thing.

42MR GOODENOUGH:  Yes.  Melbourne North Police Station is just across the road from the hospital, Your Honour.

43HIS HONOUR:  North Melbourne Police Station, yes.

44MR PYNE:  Melbourne North, not ‑ ‑ ‑

45HIS HONOUR:  Melbourne North.

46MR PYNE:  ‑ ‑ ‑ North Melbourne, Your Honour.

47HIS HONOUR:  Sorry, not North Melbourne, yes, all right.  I have only got one copy of the order here.  They need to be originals, do they not? 

48MR GOODENOUGH:  Ordinarily, three copies are provided to the court and they turn into originals, Your Honour.

49HIS HONOUR:  Yes, I am sorry, I have just written on this.

50MR GOODENOUGH:  Yes.

51HIS HONOUR:  I have not signed it yet but it can be copied and I then I can - that is all right.

52MR GOODENOUGH:  If it is convenient to Your Honour my instructor will forward proper fresh copies to Your Honour to ‑ ‑ ‑

53HIS HONOUR:  Which will have the bits and pieces written into them?

54MR GOODENOUGH:  Yes, Your Honour.

55HIS HONOUR:  Yes, all right, well, if that is satisfactory, then I will do it that way and I will sign them once I receive them. 

56So the community correction order will require him to report to - which community correction office; was it?

57MR PYNE:  I believe it would be Carlton.

58HIS HONOUR:  Carlton?

59MR PYNE:  Yes.

60HIS HONOUR:  Very well, Carlton, yes.  Any other orders I need make?  Yes, I need to impose a sentence, but for, do I not? 

61But for your pleas of guilty, I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years. 

62MR GOODENOUGH:  As the court pleases.

63MR PYNE:  As the court pleases.

64MR GOODENOUGH:  The only other practical matter, of course, Your Honour is that Mr Robinson needs to sign the corrections order.

65HIS HONOUR:  Yes, he does.  We can do that, straight to the prison, now can we not?  Yes, all right, once he has signed it, then I will countersign it, and it will be in place. 

66MR GOODENOUGH:  If it please the court.

67HIS HONOUR:  And it will be sent to the prison pronto.

68MR PYNE:  If the court pleases.

69HIS HONOUR:  Yes.  You just check it though before it goes, Mr Pyne, would you?

70MR PYNE:  Yes, I will.

71HIS HONOUR:  Make sure that you are happy with it.

72MR PYNE:  I will, Your Honour.

73HIS HONOUR:  To the extent you need to; do you want to discuss it with your client?  I will leave the court so you can do so on the video-link if you would like to?

74MR PYNE:  I might leave that.  We will follow that up with my instructor.  I think that will be more effective.

75HIS HONOUR:  Yes, all right, that is fine.  Thank you for your assistance, both of you.

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