Director of Public Prosecutions v Robinson
[2022] VCC 2127
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-00029
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMIE ROBINSON |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 June 2022, 22 & 30 August, 9 September 2022 | |
DATE OF SENTENCE: | 9 September 2022 | |
CASE MAY BE CITED AS: | DPP v Robinson | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2127 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords: Plea of guilty – robbery – sexual exposure in a public place – aggressive and drug-fuelled offending – no causal link between diagnosed PTSD and offending – considerable delay through no fault of offender – demonstrated motivation by offender to remain drug free and to turn his life around
Legislation Cited: Crimes Act 1958; Summary Offences Act 1966; Sentencing Act 1991
Cases Cited:R v. Verdins (2007) 16 VR 269; DPP v. O’Neill [2015] VSCA 325; The Queen v. Merrett (2007) 14 VR 392.
Sentence: Two-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D.J. Plummer | Office of Public Prosecutions Victoria |
| For the Accused | Mr M.P. Kozlowski | KPW Lawyers |
HER HONOUR:
1Mr Robinson, you have pleaded guilty to one charge of robbery contrary to s75 of the Crimes Act 1958. The maximum penalty for the offence of robbery is 15 years' imprisonment.
2You have also pleaded guilty to a related summary offence of sexual exposure in a public place. The maximum penalty for this offence pursuant to s19 of the Summary Offences Act 1966 is two years' imprisonment.
3You were born in March 1986 and were 32 years of age at the time of your offending. Your victim, Zachary Collins[1], was aged 42 and was not known to you prior to the offending.
[1]A pseudonym.
Circumstances of offending
4The circumstances of your offending are detailed in the Summary of Prosecution Opening for Plea dated 21 June 2022 which is the agreed basis upon which you are to be sentenced.
5On 1 December 2018, after spending the night out with friends in Collingwood, Mr Collins drove his car to a park in East Melbourne. He accessed the online dating application, 'Grindr', matching with your profile in the vicinity of East Melbourne. Having linked with you and exchanged phone numbers, the two of you agreed to meet at Southern Cross Station. You then got into Mr Collins’ car.
6At your request, Mr Collins drove you to an ATM near Richmond, and then drove back to the park in East Melbourne where he had accessed the Grindr app earlier that evening. The two of you then sat in the car and talked.
7After going to the toilet in the park, you asked Mr Collins to drive you to Parliament Station so you could catch the train home. When Mr Collins arrived near the station, you asked to go to Craigieburn instead. Mr Collins assumed that you were inviting him to your home for sex so he agreed to drive you there.
8Mr Collins then began to drive towards Craigieburn, along the Tullamarine Freeway and onto the Western Ring Road. As Mr Collins passed under the Sydney Road bridge you became angry, asking him, 'Where are you going? I told you four times we're going to Broadmeadows.' Mr Collins tried to make light of the situation, however, you became more demanding and aggressive.
9Mr Collins took the Craigieburn Road exit from the Western Ring Road and was planning to drive back towards Broadmeadows. At the intersection before the traffic lights, you punched Mr Collins’ left cheek twice with a clenched fist. Mr Collins was shocked and felt pain to the right side of his face and head. He continued driving the car so he could find somewhere for you to get out of the car.
10Mr Collins then turned onto the Hume Highway. At this point you took his mobile phone and told him to remove the pass code. Mr Collins endeavoured to do so while still driving, which took some time. In anger, you demanded he give you his wallet and drive to an ATM to withdraw money. Mr Collins told you that he did not have any ATM cards. You told him to give you the contents of his glove box and Mr Collins handed you his Ray-Ban sunglasses. It is in the context of having assaulted Mr Collins that you stole his mobile phone, wallet and Ray-Ban sunglasses. This is the subject of the charge of robbery.
11Mr Collins ultimately drove you to Glenroy Railway Station where he noticed a police booth. You yelled at him to drive you back to Broadmeadows. As he began to, you asked, 'Do you want to give me a head job?' Mr Collins said, 'No, not under these circumstances.' You responded by yelling, 'I should rape you' and began to take off your pants. Mr Collins did not answer for fearing of enraging you.
12As Mr Collins drove towards Broadmeadows Railway Station, you directed him to stop at some shops behind the station. You then exposed your penis and began to masturbate. This is the conduct that constitutes the summary charge of sexual exposure in a public place.
13While you were masturbating, Mr Collins describes you 'ranting'. saying words to the effect that 'you were in power'. You then demanded that he give you a head job. At this point, Mr Collins undid his seat belt and ran from the car, yelling for help. He ran to a nearby shop, locked the door and called Triple 0.
14Police attended at the scene and examined Mr Collins’ Toyota Camry. You were linked to DNA and fingerprints found in the car when these items were subsequently analysed by forensic officers.
15You were arrested and interviewed by police on 6 June 2019. You gave a no comment interview, in accordance with your rights.
Procedural history
16The procedural history of this matter has been protracted. The offending occurred on 1 December 2018, but you were not charged until 18 June 2019. A contested committal was conducted in the Magistrates' Court on 13 January 2020 and the complainant was cross-examined. You were committed to stand trial and the matter was listed for an initial directions hearing in January 2020. A final directions hearing was further adjourned in January 2021 due to the prosecution seeking an extension of time to file additional material. Thereafter, the case could not progress due to the impact of COVID-19 on jury trials. The matter was ultimately listed for trial on 31 January 2022 but resolved 10 days prior on the basis of a plea to the charges now before this court. More serious charges were withdrawn.
17Although the initial delay of six months to being charged can be attributed to the time associated with obtaining forensic evidence, the delay following your committal hearing has been considerable, and through no fault of yours. I accept that having these charges hanging over your head for an extensive period has been a form of punishment in itself and warrants a moderation in sentence.
Personal circumstances
18I turn now to your personal circumstances. You are now 36 years old. For the past three years, you have been in a stable relationship with your partner, with whom you have a 13-month-old child and are expecting your second child early next year.
19You were born in Victoria and you are one of four siblings. Your early childhood experiences were difficult. You were born deaf and underwent 31 separate operations during your childhood, which severely impacted on your school attendance and opportunities to form friendships. You were bullied at school due to your ongoing hearing problems and would avoid school or become involved in fights. Although you had a positive relationship with your parents, you did not feel supported by them at this time. Behavioural problems at school led to you being suspended on four occasions and you were ultimately expelled during Year 9. I have taken your difficult experience in childhood and early adolescence into account in my sentence.
20You began drinking heavily between the ages of 14 and 18 years but have remained abstinent from alcohol since that time. Your drug abuse issues have been more prolonged. You began using cannabis daily, in addition to amphetamine and ecstasy from the age of 14 until you were 26 years old. From your late 20s, you were abusing GHB and methylamphetamine. By the age of 28, you were using 0.5 grams of methylamphetamine intravenously on a regular basis.
21Your drug use led to periods of instability in your life. You lived with a friend from the age of 14 to 18. You were homeless at various periods in 2017 and 2018 when you were living on the streets or couch surfing. You moved in with a number of different partners at other times but you have never owned a home. You completed a plastering apprenticeship between 2005 and 2009, but your employment history has been erratic due to your ongoing drug use. Until recently, you had worked approximately 10 years of your life in various roles including as a plasterer, an abattoir worker and a traffic controller.
22You have five children from three different partners. Your eldest daughter, aged 16, was born from a six-month relationship from high school. You had limited contact with her until approximately 12 months ago, when she returned to your care after absconding from her mother's home. Two other daughters, aged 15 and 11, were born out of an eight-year relationship which ended in 2013 due to mutual drug abuse. You remain in contact with both daughters from that relationship. You also have a five-year-old son from a brief relationship but you have never met that son who now resides in Queensland.
23You have lived in Wangaratta most of your life. Your prior criminal history comprises matters from Victoria and New South Wales. Your Victorian prior history spans from 2006 to 2017 and includes prior convictions for cannabis and amphetamine use, driving offences and contravening a family violence intervention order. Notably, however, you have no prior convictions for the offence of robbery or any other confrontational dishonesty offences, nor do you have any priors for sexual offending. Your criminal history is mostly related to your long-standing addiction to drugs.
24In 2009, you received a wholly suspended sentence of 18 months' imprisonment for trafficking in methylamphetamine. In 2013, you were fined and placed on supervisory orders in New South Wales for drug-related offending; and in 2014, you received a 12-month suspended sentence for a stalking offence. In 2016, you were sentenced in Victoria to 18 months' imprisonment followed by a 12-month community correction order for trafficking and possessing methylamphetamine and trafficking in oxycodone. This is your most serious prior conviction.
Mental health
25You were assessed by psychologist, Ms Sandra Cokorilo, on 9 June 2022, and her two reports dated 17 June 2022 and 19 August 2022 were tendered on your plea.
26In her first report, Ms Cokorilo outlines your personal background and having undertaken psychometric testing, diagnosed you with mild depression, anxiety and a dependent personality disorder. In that report, Ms Cokorilo assessed you as suffering some but not all the symptoms that would meet the criteria for a diagnosed post-traumatic stress disorder.[2] However, she noted that symptoms of PTSD can fluctuate from time to time.
[2]Exhibit 1, [64]-[67] – under the PTSD Checklist for DSM -5 (PCL-5).
27In her supplementary report dated 19 August 2022, Ms Cokorilo states you reported an earlier diagnosis of PTSD from 2020 relating to an experience of being sexually abused when you were 16 years old. Ms Cokorilo does not state who made this diagnosis.
28As to the offending in December 2018, you reported to Ms Cokorilo that you were drug-affected and homeless at the time. I accept that was the case. You stated you contacted the victim via the Grindr app with the intention of purchasing drugs from him. Ms Cokorilo states you reported feeling 'anxious, paranoid and stressed' when you met the victim and found the situation 'confronting' as you did not know what was happening when, on your account, the victim demanded sexual favours of you. You said you did not recall stealing the victim's phone or wallet given your state of drug-related intoxication.
29In that first report, Ms Cokorilo also raised concerns regarding your level of cognitive functioning.
30You were subsequently assessed by clinical neuropsychologist, Ms Nicole Skea, on 15 August 2022 and her report dated 22 August 2022 was tendered at your adjourned plea hearing. Following testing, Ms Skea assessed you as functioning towards 'the low end of normal limits' in most areas of your intellectual and cognitive functioning. However, she confirmed that you are not intellectually disabled. Ms Skea expressed the opinion that the 'weakness in your cognition' is best explained by your limited engagement in learning at school, combined with your history of harmful substance abuse. Ms Skea's assessment of part of the reason for your poor level of cognitive function is another reason why your difficult childhood experiences are relevant to the sentence I impose.
Matters relevant in mitigation
31On your behalf, a number of matters were relied upon in mitigation of your sentence.
32First and foremost is your guilty plea. Although it was not an early plea, in pleading guilty prior to trial, you saved the court and the community the time and cost of a trial. Significantly, given the nature of the charges, your plea meant the victim did not have to relive these events when giving evidence. There is utility in your plea – a utility that is heightened at this time when there is a delay in trials in the wake of the pandemic. By your plea, you acknowledge responsibility for your offending. It is also an indication of remorse. I note you also expressed remorse for your offending during your assessment with Ms Cokorilo.[3]
[3]Exhibit 1, [83].
33Secondly, I have already referred to the considerable delay associated with these proceedings through no fault of yours. The delay of over three years since being charged is an inordinate one. In addition to the impact of that delay on you personally to which I have already referred, a substantial period of delay may also provide evidence of progress towards rehabilitation.
34Following this offence, but prior to being charged, in June 2019, you were charged with separate offending arising from a family violence incident that occurred on 24 February 2019. On 2 September 2019, you were sentenced to 190 days’ imprisonment followed by a 12-month community correction order, including a condition to undertake drug treatment. This term of imprisonment had a salutary effect on you. Having served the 190 days, it appears you took up the opportunity afforded by the treatment component of the community correction order. You have shown demonstrable progress in your rehabilitation since that time.
35Most significantly, since that sentence you have maintained abstinence from all drug use. Drug urine screens undertaken by you in March, May and June 2022 were clear of all drugs. Following your release from custody, you returned to live with your parents. They provided stable accommodation to you and your partner, and your 13-month-old son.
36You have been in this relationship for the past three years and your partner remains supportive of you, as she attests in her letter to the court dated 20 June 2022. You also have the full support of your parents. You have now secured independent housing, continuing to live with your partner and your young son. You are both expecting another child in January 2023. You successfully completed the community correction order and significantly, have not offended since that sentence was imposed and you have no pending matters.
37In your assessment with Ms Cokorilo, you describe your positive relationship with your partner, your son and your ongoing drug abstinence as 'the best thing that has happened' to you. With the assistance of your father, you have secured and maintained employment as a traffic controller with Australian Traffic Control. You have had this role since August 2020 and have recently been promoted to the role of crew leader. With this promotion, you are required to drive a vehicle and I am informed you are randomly drug tested on a regular basis for that job.
38The real progress you have made in your rehabilitation is perhaps best illustrated by the reference provided by your father, Ray Robinson, dated 20 June 2022 in which he states:
'I am writing this letter in full support of my son, Jamie Robinson. Prior to 2020, my son had a drug problem which we as parents were working tirelessly to offer our help in combating…we were successful in getting Jamie home to offer our help and assistance…he has been living with us since June 2020. He has completely turned his life around.
Jamie is now off drugs, [has] put on weight, he is a family man paying his way in society with a good job and really looking to the future. He has made new friends with this job, has not missed a day's work in all the time employed by ATC, and is a real family man now. He has made giant steps to get to this position in life.'
39I am satisfied that over a period of three years since being charged with these offences, you have demonstrated genuine motivation to remain drug free and to turn your life around, supported by your partner and parents. You have stable accommodation. You have maintained employment and were recently given additional responsibility as a crew leader. Despite your concerning criminal history, the progress you have made in your rehabilitation over this period enables me to conclude that your future prospects can be viewed positively.
40On your behalf, it was submitted that your mental health condition at the time of your offending engaged the principles set out in the authority of Verdins[4], including by reducing your moral culpability for this offending and the need for the sentence to operate as a specific and general deterrent. This aspect of your plea was challenged by the prosecution.
[4]R v. Verdins (2007)16 VR 269.
41The principles in Verdins are enlivened only where an offender suffers from an impairment of mental functioning. In this case, reliance was placed on a connection between your offending and your previously diagnosed PTSD. The question of whether there should be any moderation of general and specific deterrence, and if so, its degree, will depend upon my finding as to the nature and severity of any impairment of mental functioning and its connection to the offending.
42For principles 1 to 4 to have application to the sentencing task, there must be 'some realistic connection' between the impairment and the offending or for it to have 'caused or have contributed' to the offending.[5] The accused must establish that the mental impairment affected their ability to appreciate the wrongfulness of their conduct, or otherwise to have impaired their ability to make calm or rational choices or to think clearly at the time of the offence.[6] The authorities make it clear that any consideration of the principles in Verdins must be undertaken with rigour.[7]
[5]DPP v O'Neill [2015] VSCA 325 at 25, [74].
[6]Ibid at 26, [75].
[7]Ibid, at 26 [78].
43In this case, Ms Cokorilo's findings support a conclusion that you have a history of recurrent episodes of depression, anxiety and that you have a dependent personality disorder. Ms Cokorilo expressed the opinion, based your report of an earlier diagnosis, that you have a history of PTSD but at the time of your assessment you did not meet the diagnostic criteria for that diagnosis. She does state, however, that symptoms of PTSD can fluctuate.
44In her second report, Ms Cokorilo referred to two assessment tools, one of which is the MCMI-V, and concluded that based on this assessment tool, you do suffer from clinically significant symptoms of PTSD that would warrant the diagnosis of this disorder.[8] However, her assessment of any connection between that disorder and your offending was, in her words, based on your account of being 'confronted, anxious and fearful' when the victim requested sexual favours of you. She says that this may have triggered your PTSD. In her report, she states:[9]
'His self-account is considered in relation to his history of PTSD which arose specifically in response to his own experience of sexual victimisation. In that context, the circumstances of the event which led to the offending could have triggered Mr Robinson's PTSD but through association with aspects of his historical trauma.' (emphasis added)
[8]Exhibit 5 – at [20].
[9]Exhibit 5 – at [17].
45Whilst I accept Ms Cokorilo's assessment that a diagnosis of PTSD, combined with depression and anxiety, is associated with difficulties in emotional regulation, I do not consider the evidence is sufficiently cogent to establish a causal link with the offending. First, although I accept that it is likely the victim intended to meet with you for a sexual purpose, the circumstances leading up to your offending defy any conclusion that you were 'confused, anxious of fearful' in your encounter with the victim. To the contrary, it is clear that you were the aggressor throughout the incident and it was the victim who was repeatedly seeking to placate you. There is insufficient evidence upon which I could assess that any impaired mental functioning operated to reduce your moral culpability for this offending.
46Secondly, any assessment of the role played by your history of depression, anxiety and PTSD is further complicated by your long-standing history of drug abuse. Your amphetamine-induced intoxicated state on the night was, in my view, the most significant factor contributing to your offending behaviour. The role drugs played in your offending was acknowledged in the report of Ms Cokorilo.[10]
[10]Exhibit 1 – at [82]-[83].
47Although I do not consider your mental health operated to mitigate your moral culpability for this offending, I have had regard to the matters raised by Ms Cokorilo in her report in mitigation of sentence more broadly. Most notably, Ms Cokorilo opines that your abstinence from illicit drugs has resulted in an improvement of your mental health. She assesses your depression is now in full remission and that some, but not all, of your symptoms of PTSD have resolved. These factors remain relevant to my assessment of your prospects of rehabilitation, to which I return shortly.
Other Relevant Sentencing Considerations
48I accept the submission of the prosecution that there were aspects of this robbery that make it more serious. It could not be described as a low level example of this type of offence. The aggravating features include the fact that the victim was alone in a car with you at night. That you were verbally and physically aggressive towards him, culminating in him being robbed after you punched him twice to the face with force. This occurred despite the endeavours of the victim to placate you throughout the incident.
49Against a history of drug-related offending, this was another instance of drug-fuelled offending by you. Your prior history, whilst not aggravating this offence, raises the question of the need for the sentence to deter you specifically for the protection of the community.
50Although no victim impact statement was filed, this must have been a frightening ordeal for the victim. I note however there is no suggestion he was physically injured by your conduct. The sexual offending by exposing your penis and masturbating in the presence of the victim was bizarre behaviour, but I accept it was understood by the victim to be an attempt by you to placate him. It is not the usual form of sexual offending the courts deal with.
51Having regard to the objective seriousness of your offending, the sentence I impose must denounce your conduct and operate to deter others from similar offending. However, given the positive and demonstrable progress in your rehabilitation, most notably your abstinence from all forms of drug use for a lengthy period, I accept that the need for the sentence to deter you specifically, whilst not extinguished, is no longer a prominent consideration in the sentence I impose. In reaching this conclusion, I have clearly given weight to the fact that since being charged in June 2019 you have not reoffended; that you have the ongoing support of your partner and family; that you have maintained secure employment since August 2020; and have demonstrated a motivation to turn your life around.
52On your behalf, Mr Kozlowski submitted the relevant sentencing considerations could be met by the imposition of a lengthy community correction order. In contrast, the prosecution submitted that the seriousness of the offending, combined with your past criminal history, warranted the imposition of some form of custodial term, however, the prosecution did not oppose a community correction order as a component of such a sentence.
53You were assessed for a community correction order following your plea and found suitable for such an order. The author of that report noted your abstinence from drug use over the past 18 months and reports that you are motivated to engage in further drug treatment and says you demonstrated insight into the benefit of further drug counselling to maintain abstinence.
54It is well established that a community correction order is a punitive sentencing option that may be appropriate, even for relatively serious offences. A CCO can be imposed to rehabilitate and punish simultaneously. As an intrinsically punitive sentence, depending on the length, the nature and extent of conditions to be imposed, a community correction order is capable of provided substantial general deterrence. These principles were clearly set out by the Court of Appeal in the authority of Boulton.[11] Contravention of any condition of a CCO is itself an offence and also carries with it the prospect that an offender will be re-sentenced on the original offence.
[11]Boulton v. The Queen [2014] VSCA 342.
55I also have regard to s5(4C) of the Sentencing Act 1991, which provides that a court must not impose a sentence that involves the confinement of an offender unless it considers that the purpose or purposes for which a sentence is imposed cannot be met by a CCO.
56To be clear, had I been unable to find your prospects of rehabilitation had demonstrably improved since this offending in 2018, I would have found that the need for specific deterrence warranted some form of custodial sentence. Here however, the augmented mitigatory effect of your guilty plea at this time, in addition to the punitive effect of the inordinate delay in this case, coupled with your demonstrated progress towards your rehabilitation are factors that enable me to conclude that the relevant sentencing considerations can now be met by the imposition of a lengthy CCO.
57I consider that such a sentence balances the punitive aspects of the sentence with the need to promote and support your ongoing rehabilitation under supervision. I have fashioned the conditions of the order and its duration to best achieve this outcome, noting that community protection is enhanced when the long-term rehabilitation of offenders is achieved.
58As stated by former Maxwell P in The Queen v Merrett[12], there referring to the Court of Criminal Appeal of Western Australia in Duncan v The Queen:
'[W]here, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail as to possibly destroy the results of that rehabilitation.'
[12]The Queen v Merrett (2007) 14 VR 392 at [35].
Sentence
59Mr Robinson, if you could please stand. Balancing these matters whilst having regard to the maximum penalty for each offence, you are convicted of Charge 1 – robbery and Summary Charge 1 - sexual exposure in a public place and sentenced to a two-year community correction order subject to the following conditions:
· you are to be supervised for the duration of the order;
· you are to complete 180 hours of unpaid community work over the term of the order;
· you are to be assessed for drug and alcohol treatment and if assessed as suitable, you are to complete all drug and alcohol treatment and counselling programs as recommended;
· you are to be assessed for mental health treatment and if assessed as suitable, you are to complete all mental health treatment and counselling programs as recommended; and
· you are to be assessed for and complete all programs recommended by Corrections that are directed to reduce your risk of future offending.
60I intend, at least initially, that your compliance with the community correction order be subject to judicial monitoring before me, in line with the recommendation made by Corrections. I direct that you appear before me for judicial monitoring on 1 February 2023 at 9.15 am.
61Pursuant to s48CA of the Sentencing Act 1991, I direct that 60 hours of treatment be available to be counted as hours of unpaid community work given the focus of this order in promoting your continued rehabilitation.
62In addition to the conditions I have imposed, there are standard conditions. First and foremost, you must not commit any other offences punishable by imprisonment during the two-year order. You must report within two working days to the nearest Community Corrections office. You are required to advise your supervising Corrections officer of any change of address where you are living and working and you must do so within two clear working days. It is a term of all CCOs that you must submit to visits as directed and you must obey all instructions and directions of your Corrections officer. You are not able to leave the State of Victoria without prior permission of your supervising Corrections officer.
63In my view, this order presents you with a further and likely final chance to continue to change your life in a positive fashion, provided you take up the opportunity and the supports that will be made available under the order. The order can be breached if you do not comply with either the conditions of the order or if you re-offend whilst it is in place. If you do, you will have to come back before me for breaching the order. I may have to re-sentence you for this offending, and I may have to sentence you for breaching the order.
64Finally, pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, the sentence I would otherwise have imposed is a term of 12 months' imprisonment with an 18-month CCO to follow.
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