Director of Public Prosecutions v Rogan
[2017] VCC 589
•15 May 2017
j
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-16-02236
Ind No: G12614651
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Lenny Frank ROGAN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 March 2017, 5 May 2017 | |
DATE OF SENTENCE: | 15 May 2017 | |
CASE MAY BE CITED AS: | DPP v Rogan | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 589 | |
REASONS FOR SENTENCE
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Catchwords: Attempted armed robbery
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms J. Croxford | Office of Public Prosecutions |
| For the Accused | Ms A. Burchill | James Dowsley and Associates |
HIS HONOUR:
1Lenny Frank Rogan, you have pleaded guilty to one charge of attempted armed robbery. It is punishable by a 20 year maximum term of imprisonment.
2You are 29 years old and have admitted a criminal history, which has some relevance to my task.
Facts
3The details of your offending are set out in Exhibit A, the written summary of prosecution opening, dated 4 March 2017. Your counsel, Ms Burchill, told me that this was an agreed statement of facts. I will sentence in accordance with that agreed statement. In those circumstances, I really do not see any need to fully restate the facts, though I will still say something briefly about them.
4
You confronted your 36 year old male victim as he was waiting for a bus at
a bus stop in Hastings. It was broad daylight, just past 4 pm in the afternoon and in a public place. You asked him if he knew what time the bus was coming. He told you. You then sat back down. You came over again and asked if he had any cigarettes. He did not and told you that. You asked him again. You sat down again. You got up and stood behind him and said in an aggressive tone, “What’s in the fucking bag, cunt?” He was on the phone at the time and turned to face you and then saw you pull out a knife, unfold it and point it at him. You demanded that he "give you the fucking bag". He hung up his phone and stepped back away from you. You held the knife up saying, “Give me the fucking bag or I’ll stab you.” Some nearby workers came towards this unpleasant scene. Your victim told you he was ringing the police and you then walked off. By the time police arrested you a short time later, you had disposed of the knife.
5You were arrested at 4.47 pm and made admissions. You were co-operative and told police where you had disposed of the knife and a subsequent search found it. You were behaving very oddly indeed in the interview conducted that night. You have been in custody since arrest on 21 September 2016.
6You pleaded guilty at a time which I will treat as the earliest stage.
Victim impact
7There is a victim impact statement which I have read and I take it into account. This was clearly a frightening incident and one which has had a number of differing impacts upon your victim. Your victim no longer feels safe on public transport. He feels less confident in public areas and has had some difficulty sleeping. He worries as to his loved ones when they are out in public. Your crime has deeply affected him and I take into account that impact.
Submissions in mitigation
8
Ms Burchill, who appeared for you on the plea, conducted an excellent plea on your behalf. She had prepared written submissions of a very high calibre. She had backed up both the written and oral submissions with a very thorough and painstaking preparation of the case, with reference to many cases and authorities. She left no stone unturned on your behalf and she exhibited
a degree of passion and persistence in her oral presentation, qualities which are not to be scoffed at. She raised a number of matters in mitigation, relying primarily upon:
· Your early guilty plea;
· The admissions that you made and your level of co-operation;
· The presence of at least some remorse;
· The intrusion of your mental illness into this offending and the opinion of Dr Danny Sullivan in this regard;
· Though you had a prior criminal history of some relevance, this was your first appearance in this court and your longest period in custody.
9
She conceded the offence was serious, though made submissions as to where it would fall on the spectrum of seriousness. Initially when you were before me on 20 March, she argued that you could be released on a community corrections order, in combination with a term of imprisonment. Your counsel encouraged me to call for a pre-sentence report. By the time that report had been prepared and you came back before me on 5 May, the defence submission as to disposition had totally altered. Ms Burchill, at that stage abandoned any suggestion of it being open to the court to admit you to
a community corrections order and argued instead that a term of imprisonment was inevitable and one requiring the fixing of a non-parole period.
Crown Submissions
10
Ms Croxford, on behalf of the Director of Public Prosecutions, had on 20 March, conceded on behalf of the Director, that it would be open to admit you to
a community corrections order, in combination with a term of imprisonment. She too had altered that submission by the time of the resumed hearing and submitted on behalf of the Director that your counsel’s submission as to a prison term and a non-parole period was the appropriate disposition in this case.
11
I am not bound by any of the submissions as to penalty. I have to pass sentence, not your counsel, not the Director and not the Office of Corrections. I do not ignore any of the submissions of counsel. No doubt the alteration in the submissions of both counsel followed on from the receipt of the
pre-sentence report and what was contained within that document. For
a variety of reasons, you were judged to be unsuitable for a further community corrections order. Well again, that determination does not bind me.
12
Additionally though there were obvious serious accommodation issues raised in that report, which had been discussed on the plea on both occasions that the matter has been before me. You have nowhere at all to go. That was the position in March and it is still the position. That may well be so and it is sad that it is, but prison is not to be used to house you. My sentence must be proportionate to the gravity of your crime. However there was undoubtedly
a recognition by your counsel that releasing a person such as you on a fourth community corrections order without any structure, would be only to set you up for certain failure on such an order.
13
The fact is that the transcript on the 20 March would disclose that even as
I called for the pre-sentence report, I was very seriously questioning then my ability to ultimately release you on a community corrections order, in combination with a prison term, given the nature of the crime, your past lack of compliance with three such orders and the limits available to me in terms of prison with an upper ceiling of 364 days if used in combination.
Background
14
I turn now then to your background and I am going to turn to it quite briefly before returning to these matters in mitigation. I will go to it only briefly, as
I really have no reason to doubt the personal background that has been placed before me. It is contained in the report of Dr Sullivan. It was also the subject of oral submissions to me by your counsel.
15You are 29 years of age, born on 13 February 1988. You were one of five children and your parents separated when you were young. You left school at a young age and then worked in a range of jobs.
16It is clear enough that you have had a lengthy psychiatric history with admissions dating back to the age of 17 and recurrent admissions since, often in the context of ceasing medication and in the context of your using illegal drugs.
17You have had community treatment orders and were on the disability support pension because of your mental illness and you have been since the age of 19 or 20. That you suffer from a serious mental illness is then beyond dispute, as far as I am concerned. The precise extent of the link between your illness and the offending and the weight to be given to your illness, well they are far less clear. That is because of your concurrent use of drugs in a five day binge and also because of aspects of the offending that are not really discussed in great detail in the report of Dr Sullivan. I will return to those matters shortly.
18
Returning though to your background, you have a criminal record. You have some dishonesty and violent past offending, though not of this level of seriousness. This offending represents a worrying escalation. Your record before the courts is long enough and it displays past failures to comply with
a suspended sentence and two community corrections orders. In fact your third community corrections order, a two year community corrections order, expired only days before the offence for which I must pass sentence and I am told that you are admitting the breach by offence of that order as well. That is listed towards the end of May. Undoubtedly your criminal history has some relevance to my task, as the courts have extended opportunities to you in the past. You have not taken them. I do note however that the pre-sentence report author suggests that you had been more compliant on the most recent community corrections order.
19However you are judged not to be suitable for any further such disposition at this stage and that is easily understandable. You seemingly did not engage greatly in the assessment process when the author of that report visited you on three occasions and you demonstrated to her some limited insight and little by way of remorse. However I must factor in your illness and the way that may disadvantage you in that style of assessment process. You would, I suspect, be suspicious of, or guarded with fresh faces making enquires of you about your offending. It is probably a product of your condition and I do note that you seemingly engaged quite well with the forensic nurse who is referred to in that report. Still I cannot ignore the report or the evidence given before me by its author, Ms Martin.
Psychiatric material
20I have referred already to the report of a psychiatrist, Dr Sullivan. That was Exhibit 2 on the plea. He sets out your background in great detail. As I have already said, it is beyond dispute that you have a significant psychiatric illness. Clearly enough I have to give some weight to that factor, irrespective of whether there is to be any reduction in your moral culpability for this offending. The question though is the extent of the weight to give and the extent to which there is actually any reduction in your moral culpability. The Crown argue that minimal weight should be given in all the circumstances of the case. Your counsel, Ms Burchill, says more than minimal weight should be given, whilst conceding that there is a complex interplay of drug use and illness here.
21Did your illness operate at the time of the offence and if so how? If so, should it lead to a reduction in your moral culpability for the offending and if so, what level of reduction? Well these question are not so easily answered by the court. Dr Sullivan says you were and are suffering from paranoid schizophrenia. Also a personality disorder. You were medication compliant under your community treatment order, but regrettably you were also significantly under the influence of methamphetamine at the time of the offending. Quite aside from the disinhibiting nature of that drug, you had taken it in a dose which would likely have negated the benefits of your anti-psychotic medication. In your interview you spoke of a five day period of drug use and two days without sleep.
22Dr Sullivan acts on your conference account of being delusional. He focusses on your descriptions in the police interview and to him in conference of delusional conduct, auditory hallucinations and persecutory ideation. He states that the attempted ‘assault’, they are his words, appeared to be associated with your having a delusional interpretation of the situation and the victim. Well I need to look at your actual conduct. Had you stepped up and stabbed this complete stranger without any announcement, and we are all very thankful you did not, that would be a startling and strange crime with all the hallmarks of some heavily clouded judgment or compromised cognitive ability, or if you were ranting or raving at the scene and making no sense at all. But that is not what happened here. You were trying to rob this man at knife point.
23
It is not that uncommon for victims to be approached and engaged on some pretext, asked for the time or asked for a cigarette. Well you approached him and asked questions as to the arrival time of the bus and whether he had
a cigarette. You did not just launch forth into some senseless and unprovoked attack. Nothing you said at the scene was senseless. In fact your conduct was directed at stealing. You said, "What’s in the Fucking bag?" Then out came the knife and the demand was ramped up to "give me the fucking bag" and then “give me the fucking bag or I will stab you”. On the face of your conduct at least, there is not a hint of delusion there. In discussions with the author of the
pre-sentence report, Ms Martin, who saw you for the first time on 6 April of this year, you said that you saw a "real suspect" looking guy at the bus stop and pulled a knife on him, “Because you wanted his stuff”.
24You left the scene once mention of the police was made and the other bystanders came in your direction. You disposed of the knife. None of this on its face strikes me as delusional at all. Objectively viewed, it is a quite mundane example of an attempted armed robbery. However it was clearly an offence committed by a man with a serious psychiatric illness. You are and were at the time a paranoid schizophrenic and it strikes me as being naïve to think that this had no role to play at all in this offending. It is surely naïve to think that the man behaving in the way you were in the police interview, was calm and rational and thinking clearly just a couple of hours earlier.
25
The fact is you had been admitted to the Flynn Unit down in Gippsland for
a very lengthy period from December 2013 to February 2015, having killed the family pet. You had been discharged onto a community treatment order and had been deteriorating since June 2016. I was told that you had subsequently broken up with your girlfriend and that you had argued with your father and been asked to leave his home. Undoubtedly you have a long and documented history of psychiatric illness, there is just no doubt about that. It is the link or connection between your condition and the offence which is far less easy for me to determine.
26Dr Sullivan himself acknowledges the impact of methamphetamine use here and the difficulties in reaching conclusions as to levels of contribution. He says:
“Mr Rogan was under the influence of methamphetamine, although he reports compliance with depot medication. It is likely that methamphetamine in the dose taken would have negated the benefits of antipsychotic medication and indeed he reported auditory hallucinations and persecutory ideation.”
27As to the connection with your offending he said:
“There was a likely causal association with the schizophrenia exacerbated by methamphetamine use. The effect of these conditions was to disinhibit him, impair his capacity to think clearly and make calm and rational choices and diminish his judgement. It is not simple to parse out relative contributions
or the degree of causal association with each of the methamphetamine use and schizophrenia.”
28Well as he says, it is not so simple. Dr Sullivan speaks of the effect of conditions, plural, with one condition being the use of a drug of dependence such as ice, which itself has a disinhibiting effect.
29Would you have offended absent the illness? I cannot know. Would you have offended absent the existence of any mental illness, but in circumstances where you had used the ice in the way you describe? Again, I do not know. Did the drug use negate the benefits of your medication? That seems likely, though you may very well not have understood that to be the position. Is the criminal conduct to be put down to disinhibition produced by the taking of drugs or by drugs negating the benefits of the antipsychotic medication, or neither, or both? I believe it is likely to be a bit of each actually. Was the illness the only driver for offending? I am certainly not convinced of that on the balance of probabilities.
30I do not believe it is clear cut at all here. You knew what you were doing, you knew that it was wrong and I am not convinced that your illness was the sole driver for the offending. There are some puzzles in this case. Why, if driven by delusional interpretations of the situation, would a delusional person abandon the so-called attack? Why would a delusional person dispose of the knife? Why would a delusional person be endeavouring to steal property? None of this really is explained to me. However, for me to conclude that the illness had no application, well it would be to ignore the nature of your illness, the long and documented history of it, as well as the way in which you were behaving not that long after in the police interview on the same day. You were more than hinting then as to there being some delusional drive when you were speaking of a voice in your answer at Question 156.
31
The issue of the claimed reduction in your moral culpability is far from simple.
I cannot ignore the disinhibiting role that your voluntary drug use on its own may well have had. That fact exists independent of your illness and also no doubt had a role in negating the effect of your medication. Now none of those matters in any way aggravates your position. I raise them simply as illustrating that it is not as simple a position as a man suffering from a mental illness which cannot be controlled experiencing delusional thoughts. In all the circumstances, I am prepared to find that there is some reduction in your moral culpability, as I do accept that there was a level of disordered thought on the day.
32I am also prepared to give some weight to the other four Verdins factors relied upon. So I make allowance for the five Verdins factors and I certainly give them more than the minimal weight spoken of by the prosecutor, as your counsel suggests I should. Your counsel conceded that you can be deterred. General deterrence and specific deterrence, though sensibly moderated here, are still factors of some significance. Self-evidently someone with your condition would find prison more difficult.
33The condition giving rise to these Verdins allowances though, also leads to an increased risk and consequently to a greater focus being placed on community protection in this case. You are a long-term user of drugs. You choose to use illegal drugs. Your psychiatric condition, your long-term use of illegal drugs and your preparedness in the past to carry weapons, well this is all highly problematic. Dr Sullivan speaks of these issues in paragraph 43 of his report. I obviously must give some weight to the need to protect the community.
Guilty Plea
34
I turn then to some of the other matters raised in mitigation. The first of those is your guilty plea. I accept that your plea of guilty has a strong utilitarian value. It was entered at what I will treat as the earliest opportunity. Witnesses, including your direct victim here, have been spared the experience of coming to court to give evidence. He has been spared the unpleasant experience of reliving the event in this court or in the lower court for that matter. The community has been spared the time, the cost and the effort of a contested hearing and that is a matter of some significance. In these ways you have taken legal responsibility for your offending and you have facilitated the course of justice. I will be passing a lesser sentence upon you because of your guilty plea and the early stage that it was entered here. I also take into account, as I have been asked to, the extent of your co-operation with the police. You were
co-operative and that is the position, whether you were behaving oddly or not. You made some admissions to the police and you did tell them where you had disposed of the knife and I take those matters into account.
Remorse
35Your counsel argues that I should find that you have some remorse for your offending. You have pleaded guilty and you have done so at the earliest stage. The author of the pre-sentence report could elicit from you no expression of remorse for your victim in open ended questions. As I have said though, I am sure you would have been quite guarded in your dealings with her. Your note of apology that is before me and marked as Exhibit 3, is not greatly comforting to me, but it is better than nothing and any shortcomings are no doubt a product of your illness and your lack of insight. I believe you are probably remorseful to a limited extent and I take the existence of that remorse into account in mitigation.
Rehabilitation
36I turn now then to your prospects of rehabilitation. Your counsel submitted that you had some prospects of rehabilitation which would rise to good prospects with the right level of care and supervision. I do not accept that you currently have good prospects of rehabilitation. It is hard not to be guarded in this case. You have been given many chances by the courts in the past and you have not taken them. This serious offending involves an escalation and one that took place just days after finishing a community corrections order, a community corrections order that you admit that you have breached by earlier offending in its currency. That will all be dealt with on 29 May in the Magistrates' Court. That will be the third community corrections order that you have breached. You have breached a suspended sentence on two occasions.
37You have had a community treatment order and have been medication compliant, so that is quite encouraging.
38You have very little by way of other supports in the community. That is both sad and worrying. Something must be done for you, as you dearly need structure and support and somewhere to live. Possibly Brunswick Lodge, which is referred to in the pre-sentence report, may be an answer for you, but it is not presently available.
39You are a long-term user of drugs and of course they complicate the picture, as they almost always do, but more so in your case, given their undoubted impact on the effectiveness of your anti-psychotic medication.
40
Your offending and lack of appropriate response to court orders must though be seen in the light of your undoubted serious mental illness. You have been in custody already for a significant time. This will all serve to deter you to
a degree. I am prepared to find that you do have realistic or reasonable prospects of rehabilitation. I assess them as being reasonable if and only if you maintain your prescribed medication and you totally desist in taking illegal drugs. It is a big “if” for you. That is far from assured, given your lengthy drug use in the face even of your belief that such use is productive of serious psychosis. That it what you believe, even though it is incorrect.
41
A serious psychiatric illness, which you have and an addiction to illegal drugs is a dangerous enough mix. Throw in your undoubted preparedness to carry weapons, as disclosed in your criminal history and in your discussions with
Dr Sullivan and your stated preparedness to use them if required and you are a risk of committing further crimes of violence, there is no doubt about that. You are judged by Ms Martin, the author of the pre-sentence report, as having little insight and as demonstrating a high risk of re-offence. You clearly need to be deterred and you can be, but I am not prepared to write you off, I do think that in the right setting, you do have reasonable prospects of rehabilitation.
Currentsentencing practice and Offence gravity
42I take into account, as I must, current sentencing practices. I have been taken to a range of other sentences imposed by judges in this court. I have looked at, amongst other things, the Sentencing Advisory Council’s snapshot for attempted armed robbery, that is Snapshot No.36, but that is very aged data indeed that dates back to 2002/03 to 2006/07. The average sentences where prison was selected back in that time frame ranged from one year, ten months to two years, four months. However as I say, they are very dated figures and they do not assist me at all as to current sentencing practice.
43I have looked at the snapshot for the completed offence of armed robbery, that is Snapshot No.186 of 2016. It still has some relevance, though of course, they were completed offences and with a higher maximum. I have looked at cases on the Judicial College Victoria sentencing manual site, though bear constantly in mind that you are to be sentenced for the offence of attempted armed robbery. The fact is though, that there are very many attempts that are not that dissimilar to the completed offence, in terms of seriousness of the physical conduct. All that is lacking is property being handed over or obtained.
44Very many completed offences involve less extravagant demands than those offered by you, or less menacing use of a weapon. Your attempt went about as far along the spectrum as an attempt could, it just did not realise any property. You made demands, you menaced with the knife. At least it stopped shy of direct physical force. So whilst of course you fall to be sentenced for the crime of attempted armed robbery, which has a lesser maximum penalty, it is still undoubtedly a serious crime.
45Current sentencing practice is one of a large range of matters that I must pay regard to. That is because consistency of sentencing is a fundamental objective of the criminal law. But there is never one correct sentence.
46
Such statistical material, as I have referred to, has clear and inherent limitations, as the Court of Appeal have often made plain. Nor can the outcome in other cases be decisive as to the actual sentence required in your case. Other sentencing decisions are not precedents. Every case is very different and so too every offender. For instance in your case, you have had three community corrections orders. You have breached them all, though I do note that your compliance was better on the last order. You have breached it by offence.
47I must pass an appropriate sentence in this case, in your case. Those cases to which I was taken were instances of other judges sentencing other offenders for other offences and in cases where counsel in those cases had been urging that the accused be admitted to a community corrections order, or at least one in combination with a term of imprisonment. Your counsel does not urge that course here. She does not suggest that a combination-type order is even open to the court. She has conceded the inevitability of a term of imprisonment and one of 12 months or more, requiring the fixing of a non-parole period.
48So those other cases to which I was taken are immediately different, even without descending to the facts of them. I see no need to descend to the full facts of those other sentencing decisions. That is all they are. I have read them all. It is apparent that there are a host of differences in each direction and those other cases do not establish a sentencing practice. The case of Teriyaki, for instance, to which counsel addressed most of her submissions, involved a 21 year old with an IQ of 56, who was living in supported accommodation under the auspices of disability services. Many of the other cases involved the imposition by a judge of combination-type sentence, the very style of order which your counsel concedes is not open in your case. So I must say, I am not greatly assisted by that material as to what other judges have done.
49Your counsel was not suggesting that this instance of attempted armed robbery was a minor example of the offence. It clearly is not. I do accept that it was quite spontaneous and opportunistic. It was relatively brief. There was no detailed planning at all. There was obviously some disinhibition posed by your mental illness and probably some by your drug use as well. Often enough with soft target robberies and armed robberies and attempts, there is a level of spontaneity and little by way of planning. I am prepared to find that your offence falls towards the lower end of offence seriousness, but it is still a serious crime. It is certainly not at the lowest end, though is well removed from the high range examples of the offence.
50The fact is, it occurred in a public place, broad daylight. It was committed upon a totally innocent victim who was just going about his business, before being confronted by you, with you making demands for the property and then backing them up with the production of the knife. It was a dangerous and frightening offence. Dangerous, for how can you ever know how an offence such as that will unfold? How can you know how your victim will respond to your acts and how you might then respond? You possessed a real weapon, not an imitation weapon. It was a serious crime. This offence has had significant impact. Well I must pay regard to the nature and the gravity of the offence before the court. All of this talk of level of offence seriousness can be easily misunderstood. This was, on any view of it, serious offending.
Sentencing considerations
51
I have taken into account all of the submissions made and the exhibits that have been placed before me. Also the evidence led from the author of the
pre-sentence report and the cross-examination of that author. Sentencing is always a complicated task and more so in the case of an offender with a serious mental illness, which you have. There are a variety of matters which must be taken into account by the court. I must take into account the maximum penalty, 20 years’ imprisonment. I must pay regard to current sentencing practices and to the impact of your crime, but there are a host of other matters that I have to take into account.
52Your prospects of rehabilitation are, of course, a relevant purpose for me to consider and I do not ignore them. As I say, I think they are reasonable, subject to your continued compliance with your medication regime and total abstinence from illegal drugs. You have struggled in the past in each of those areas it would seem. However, your rehabilitation is not the only matter that I have to focus upon. If it was, then sentencing would be actually quite easy.
53
You must be punished for your serious crime, though justly and proportionately. However your having nowhere to go does not and cannot justify my passing
a longer sentence upon you as some response to or cure for homelessness. As I say, I am obliged to pass a proportionate sentence and that is what I shall do. It must fit the crime. This court must also denounce your conduct and I do. This really was a serious invasion upon this man who was just going about life in a public place in broad daylight, waiting for a bus. It was frightening conduct. Community protection is also of some weight here, that is very obvious.
54
Despite some moderation owing to your mental illness, I must still give some weight to specific deterrence, that is, the need to deter you from future offending. That is still a relevant consideration, given the nature of your crime and your many past appearances before the courts. You must be deterred.
I am told that the time you have spent in prison has had a salutary effect upon you. It is clear then that you can be deterred. You must be dissuaded from ever committing such a crime as this ever again.
55This court must also seek to deter or dissuade other people who might be minded to commit this type of serious offence. Hardly a week goes by in this town without a soft target armed robbery or attempted armed robbery taking place. The need for general deterrence is usually a very sizeable sentencing purpose. Again though, there is some moderation applied to this purpose, owing to your condition, but I must still give it some weight. General deterrence is far from eliminated in this case.
Boulton
56Your counsel had initially argued that it was open and indeed desirable to place you on a community corrections order, in combination with a term of imprisonment. As I have said, that submission was explicitly abandoned on the last hearing date. She then conceded the inevitability of an immediate prison term and one requiring the fixing of a non-parole period.
57Notwithstanding that submission, of course I must reach my own view as to sentence. Sending any person to prison is always a matter of last resort for any court. I must not confine any person, unless the purposes for which sentence is imposed cannot be achieved by a community corrections order. You heard the case of Boulton discussed in the early stages of the plea. At the time of Boulton, the court had at its disposal the ability to impose a term of up to two years' imprisonment, in conjunction with a very lengthy community corrections order. That has changed. Now there is a limit of up to 12 months' imprisonment and that legislative alteration applies to my task in your case.
58The Court of Appeal in later cases after Boulton, saw fit to remind judicial officers that community corrections order dispositions are not to be used as some "get out of gaol free card", to be used for every offender and every crime.
59Section 5(4C) of the Sentencing Act prohibits the imposition of a sentence of confinement, unless the court concludes that the purposes of sentence cannot be achieved by a community corrections order, to which specified conditions are attached. A judge therefore obviously has to pay careful attention to the purposes for which sentence is to be imposed and then consider whether they can actually be achieved by a community corrections order, either a stand-alone one or if not, a community corrections order imposed in combination with a prison term of up to 12 months.
60
Your counsel concedes that a stand-alone community corrections order, or even one in combination with a term of imprisonment, is simply not open in this case and I agree. She had initially argued in favour of release from prison upon such an order and was clearly suggesting that there would be some clear benefits to a combination-type disposition. The question is not whether I can see some advantages or benefits in a combined order, one almost always can. The question really was whether it is open to me in the sound exercise of my sentencing discretion to release you on such an order, in combination with
a prison term. I do not believe it is and your counsel concedes that it is not so open.
61
You are judged to be unsuitable for such an order and presently compliance with a community corrections order would be just a forlorn hope in your case. Leaving aside the present unsuitability for such an order, your crime is too serious, in my view. Such an order would not, in my view at least, give adequate weight to the need to denounce, to punish or to deter. Soft target armed robbery and attempted armed robberies are all too common offences in this day and age. They are serious and dangerous offences and must be strongly denounced by the court. The need for general deterrence is clear, even in
a setting where I moderate that principle to a degree. You have received such orders in the past. You have breached two and the one you have not breached expired only days before this offending and hence did not deter you from this serious offending. As I have said, the breach of that order is also conceded, but is yet to be dealt with.
62I am going to impose a head sentence and then fix a non-parole period and in each instance I will take into account the various matters in mitigation, including of course your mental illness. My non-parole period will pay strong regard indeed to the increased burden of imprisonment posed by your mental illness. Now of course I must proceed on the basis that you are going to serve every day of the head sentence I will pronounce. I am not allowed to and cannot make judgements about what the Adult Parole Board may do in your case, but it is clear to me, and it is clear to Dr Sullivan, that you need a high level of support, structure and supervision upon your ultimate release from prison, whenever that may be.
63I will just deal with the ancillary orders in this case.
Disposal
64Application was made for a disposal order under the provisions of s.78 of the Confiscation Act and that is for the disposal of the pocket knife. There was no issue taken with that order. I have signed the disposal order and I am satisfied that the property referred to in the schedule was used in connection with the commission of the offence and that it is appropriate that it be subject to this disposal order and that it be treated in the manner described in the order itself, which I have signed.
464ZF
65There is also an application for a forensic sample. Again, that order is not opposed. Let me just check that. Ms Burchill, is that the position or not, the 464?
66MS BURCHILL: It is not - that's correct, Your Honour, that's not opposed.
67HIS HONOUR: Yes, thank you. All right.
68Pursuant to s.464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth. That is what I am authorising. I am not authorising a blood test and that the scraping of your mouth be done in accordance with the provisions of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database.
69I am satisfied that it is appropriate to make this order, owing to the seriousness of your offending, the prior convictions that you have, the fact that the order is not opposed and that I judge it to be in the public interest.
70So, Mr Rogan, this is a requirement that you make yourself available for the taking of a swab from your mouth. It is not a difficult or invasive thing. The authorities can use reasonable force, they should not need to, it is not a difficult matter. You will be asked to run a swab around the inside of your mouth and they can use reasonable force to do that, but in any event, I am not, at this point, authorising a blood sample. No doubt, if they encountered any difficulties I would have the authorities back before me applying for a blood sample, but it should not pose any problems for you, giving that swab.
71I have signed that order as well.
Sentence
72Mr Rogan, can you stand up please, just very briefly. I am sorry to have spent so long dealing with these sentencing remarks.
73
For the crime of attempted armed robbery, I convict and sentence you to
22 months' imprisonment.
74However, I fix a non-parole period of ten months. So that is the period during which you will not be eligible for release on parole.
Section 18
75You have already spent 236 days in custody, so you get credit for that, by way of the pre-sentence detention, so that has already been served under that sentence.
6AAA
76Had you been found guilty of this offence following a trial before a jury, I would have sentenced you to a term of imprisonment of three years and nine months. I would have fixed a non-parole period of two and a half years in those circumstances, but of course, you pleaded guilty and I have given you what
I have given you.77So that statement is to be noted in the records of the court, pursuant to s. 6AAA.
78Grab a seat for a moment. I will just see if there is anything I have overlooked or anything else I need to do.
79Any matters that I have overlooked at all?
80MS SCHULTZ: No, nothing further, Your Honour.
81Very well. Ms Burchill?
82MS BURCHILL: No, Your Honour.
83HIS HONOUR: No. Are there any other matters, or any custody sort of management issues that I need - he is in custody, he has come in custody, they know all about him presumably, so - - -
84MS BURCHILL: He is and there is a forensic nurse who's closely working with him at the moment.
85HIS HONOUR: Do they - it seems to me, I mean, there is no harm in them having Dr Sullivan's report. In fact, it is probably of great use to them, I think, for the Adult Parole Board to have that. Do you agree with that or not?
86MS BURCHILL: Yes.
87HIS HONOUR: All right. Well I will ensure that that is provided to the Adult Parole Board and - yes, all right. Will you go down and see Mr Rogan downstairs?
88MS BURCHILL: I will.
89HIS HONOUR: Yes, all right.
90Well that completes the matter, Mr Rogan, so Ms Burchill will come down and have a chat to you downstairs, all right?
91OFFENDER: All right.
92HIS HONOUR: Yes. I will just sign that formal order. I have signed that order. I have got a plea on at 11 o'clock, so I will come back on the Bench in about ten minutes.
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