Director of Public Prosecutions v Roy
[2022] VCC 1836
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00228
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMRICK ROY |
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JUDGE: | HIS HONOUR JUDGE CARMODY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 October 2022 |
DATE OF SENTENCE: | 21 October 2022 |
CASE MAY BE CITED AS: | DPP v Roy |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1836 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Recklessly cause serious injury – robbery – common law assault – Verdins – all six limbs apply
Cases cited: Worboyes v The Crown [2021] VSCA 169; Byast v The Crown [2021] VSCA 344; R v Verdins [2007] VSCA 102; 16 VR 240
Legislation cited: Mental Health Act 2014
Sentence: Convicted and sentenced to five years’ imprisonment with a non-parole period of three years’ and six months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. White | Director of Public Prosecution |
For the Accused | Ms D. Lamovie | Victoria Legal Aid |
HIS HONOUR:
1Amrick Roy, on 14 October 2022 at the County Court in Melbourne, you pleaded guilty to the following charges on Indictment No.M10571028:
·Charge 1, common law assault of Simeon Roukakis. This charge has a maximum penalty of five years' imprisonment;
·Charges 2 and 3, common law assault of two separate unknown victims. Both of these charges have a maximum penalty of five years' imprisonment;
·Charge 4, recklessly cause serious injury to Penelope Katsavos. This charge has a maximum penalty of 15 years' imprisonment; and
·Charge 5, robbery of a personal shopping trolley from
Penelope Katsavos. This charge has a maximum penalty of
15 years' imprisonment.
2You have admitted your prior criminal history. It is short. On 12 February 2019 at the Ringwood Magistrates' Court, without conviction, you were fined an aggregate fine of $750 for possessing synthetic cannabinoid and careless driving. On 18 March 2021, you were arrested for the offences before this court. You have been in custody since your arrest, which totals to 582 days.
Circumstances of your offending
3The prosecutor filed a Summary of Prosecution Opening dated 19 September 2022. It was Exhibit “A”. The summary was read into the record of the court. You are 27 years old, soon to be 28. At the time of this offending on 13 March 2021 you were 26 years old.
4The background of the offending was that you attended Revolver nightclub on
Chapel Street, Prahran on the evening of 12 March 2021. You attended the nightclub with a friend from your former workplace. After drinking alcohol and subsequently becoming involved in an altercation with an unknown patron of the nightclub, you were escorted from the nightclub by security personnel, onto Chapel Street in the early hours of 13 March 2021.
Charge 1, Common Law assault on Simeon Roukakis
5As you were escorted from the Revolver nightclub your first victim,
Simeon Roukakis, was waiting in line outside the Nike store located nearby
at 267 Chapel Street, Prahran. Mr Roukakis was waiting for the store to open to purchase a limited release of shoes from Nike. He walked to a bin a short distance along Chatham Street. He noticed that you were on Chatham Street and you were yelling and screaming. You then approached Mr Roukakis and shoved him to the ground, using both hands. Mr Roukakis subsequently fell over and he hit his head. You have then continued yelling and screaming at Mr Roukakis and you further assaulted him by punching him in the head and scratching his face. That is a common law assault of Mr Roukakis.
6Mr Roukakis' friends had approached and pulled you away from Mr Roukakis. You were led away from the scene by two other unknown people. You have then stayed in the area. Later on Mr Roukakis and his friends saw you and had a conversation with you on the corner of Chatham Street and Cato Street in Prahran.
Charges 2 and 3, Common Law assault on unknown victims
7At 5.05 am you have then left Chatham Street and walked north along
Chapel Street. You have then sat down on a bench outside the Liquorland on Chapel Street. You got up and started pushing the glass doors at the front of the Liquorland store several times before running south-bound, along
Chapel Street.
8You have then assaulted an unknown male person, who was outside the Bonds Outlet on Chapel Street. This was all captured on CCTV. You ran up, jumping through the air and the phrase used is, 'clotheslined', this unknown person by swinging your arm, causing him to hit the roadway. You then get on top of this person and repeatedly punched his head and scratching his face before running off to the north of Chapel Street. This entire incident was unprovoked, leaving your victim dazed. An unknown person came and helped the victim and the victim subsequently left the area in a taxi. That was
Charge 2.
9A short time later, another person who was working as a litter collector in
Prahran Square, together with a security guard, you have then run through the
Prahran Square and deliberately crashed into the cleaner's bin, causing it to topple over and the rubbish to fall out on the ground. You then began punching the victim and throwing punches at him. The victim cleaner tried to defend himself and pushed you back. You have then, both of you, have then ended up on the ground and you continued with the scuffle. The cleaner broke free and got away from you. That was a completely unprovoked event. That was
Charge 3 on the indictment.
Charge 4, Recklessly cause serious injury
10You have then, at the hour of 6 am, on 13 March 2021, Ms Penny or
Penelope Katsavos was attending at the Greek Orthodox Church located on
Barry Street, South Yarra. She was born in 1943. Ms Katsavos had celebrated her 78th birthday in the weeks before this event. Ms Katsavos was opening the church and had her personal shopping trolley. She had with her an iPhone, some food and there was $900 in cash inside her trolley. She was at the front steps of the church, outside the front door, and was unlocking that door. Her trolley was about half a metre behind her.
11You have walked up to Ms Katsavos and commenced yelling and screaming at her. As she turned around you have grabbed her trolley. Ms Katsavos has also grabbed hold of the trolley, fearful for her belongings and the contents of the trolley. You have continued yelling and screaming and tried to pull the trolley away from her. You punched Ms Katsavos to the right side of her face. She subsequently fell down and hit her head on the concrete steps and lost consciousness. You then stole her trolley and left the area. You left her unconscious on the ground at the church steps.
12Ms Katsavos was unconscious on the stairs until located later on that morning by a Stonnington Council worker at approximately 6.30 am. She was conveyed to the Alfred Hospital and her injuries included:
·bleeding to parts of her brain;
·a bruised right eye;
·swelling on the right side of her face and neck;
·a broken left wrist;
·a fractured pelvis requiring significant orthopaedic follow-up treatment;
·chipped dentures;
·a laceration to the lip; and
·significant facial and neck bruising.
13The police investigators tracked your movements in the Prahran area by CCTV. Ms Katsavos' trolley was located by the police on Garden Street in South Yarra. No property had been taken from the trolley.
14At 1 pm on 18 March 2021, police investigators attended at an address in Box Hill where you lived. Your registered vehicle, a dark Toyota Camry, was located, parked in the street outside. The police gained entry to your premises via the front door after one of your co-house tenants opened it. You were located in the bedroom by the police. During your arrest the police identified clothing worn by you in the series of assaults I have just outlined.
15On a body worn camera in relation to Ms Katsavos' assault you stated to the policewoman, 'She hit me first'. You were conveyed then to the
Prahran police station for interview. You acknowledged that you were in the area at the time but stated you could not remember the incidents and then you answered, 'No comment'. Of course it is your right to make a no comment record of interview.
16In this case Ms Katsavos filed a victim impact statement. It was read out in court. Despite what you did to her on 13 March 2021 and the severe consequences for her and her family, she exhibits grace and wisdom when she says as follows:
‘Amrick Roy, I forgive you for what you have done to me. No sentence you are given will change the life sentence you have given me. My only hope is that somehow you will learn how to be a better person and that you find a way to make this world a better place before your time on earth is up. I will continue to walk through life, this life, with love and strength.’
17As a result of the physical injuries you caused Ms Katsavos she has lost her independence, her ability to look after her sick husband, leading her to have him placed in a nursing home. Her joy and involvement from voluntary work at her church where you attacked her, the ability to have her grandchildren stay at her home, she has six of them and enjoyed them immensely. She needs a walking frame to get around because of a fracture to her hip, she cannot do the
Greek cooking, as she describes it because of her fractured left wrist, because she cannot lift the heavy pots. She has suffered financially because of the placing of her husband within a nursing home and needing to pay for own home care now. Ms Katsavos now has a daily struggle with sadness, loneliness, pain and lost opportunity to live out the final chapters of her life, in a happy family orientated manner. You have taken this from her.
Personal circumstances
18You are now 27. At the time of the offending you were 26. You were born in Canberra, and spent your early years going to school there. You report being bullied and raped by other boys at your primary school. This offending was not reported to authorities and disclosed only in your adult life.
19Your father works in IT. Your mother works in administrative roles. You have an older sister who has a law degree but works as a manager. You describe your parents as loving but your father as a strict disciplinarian who resorted to physical violence on occasions.
20Your family moved to the UAE due to your father's work in IT. Your family then returned to live in Melbourne in 2004. You completed your primary education at Glen Waverley Primary School. You commenced your secondary education at Glen Waverley Secondary College. You completed Year 7, 8 and 9 there.
21Your parents then moved you to Haileybury College in Year 10, no doubt to improve your educational opportunities and to change what your father calls, 'some bad company', in his reference. You completed Year 12 at Haileybury College. You achieved an ATAR score of 85.
22You enrolled in arts commerce at Deakin University. You passed your first year but then took two years off from university. At age 24 you returned to Deakin University. This time you enrolled in science. You did well in this course and moved to live on the campus itself. You were suspended from residence on campus due to conflict with other students.
23You have lived in share house accommodation and supported yourself financially by working at Woolworths. You have worked at Woolworths from age 17 until 2020 when the pandemic pressures meant you had trouble with your manager. You thought you were being passed over for promotion despite your loyal service of almost nine years. You remained unemployed up until the time of the offending.
24You have been using cannabis since you were 15 years of age. You started using synthetic cannabis at 19. Dr Zimmerman has assessed you as having a cannabis use disorder. You have also used other illicit substances in the context of clubbing and drinking alcohol. It is to be noted you gave a history to
Dr Zimmerman that in the week leading up to the offending you had sustained use of synthetic cannabis and on the night itself you drank an excessive amount of alcohol prior to being rejected from the Revolver nightclub.
25You first saw a psychiatrist when you were 19 years old. In 2018 you reported to Eastern Health that you were hearing voices. In 2020 whilst living with your parents you were placed on a voluntary treatment order under the
Mental Health Act and prescribed paliperidone.
26Dr Zimmerman in her evidence and the two reports she submitted to court, states that you were aware of the nature and quality of your acts constituting the offending against Mr Roukakis. Her opinion was that you knew what you were doing and it was wrong. There was no mental impairment defence for this charge.
27Because you told Dr Zimmerman you had no memory of assaulting Ms Katsavos, she was unable to give an opinion about your mental state at the time of that offence. Dr Zimmerman's opinion was that your paranoid schizophrenia was untreated at the time of your offending. However, she notes a history of heavy alcohol intake by you in the nightclub following a week of heavy synthetic cannabis use.
28I accept Dr Zimmerman's opinion that your untreated psychiatrist condition or psychosis had a realistic connection to your offending. However, the ingestion of synthetic cannabis and alcohol also were factors contributing to your offending. The proper application of your mental health as a mitigatory factor is to allow some reduction in your overall sentence of imprisonment.
Sentence Considerations
29The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances. I am also required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible that you as an offender are rehabilitated and reintegrated into society.
30I am also required to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly but not exhaustively to the kinds of sentence imposed in comparable cases and the statistics for those sentences at the time. I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed they are from one another.
31You have pleaded guilty to these charges. Your plea was indicated at a relatively early stage as it turns out. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence in the legal process set up to protect the community.
32Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice in the community. I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your part.
33I also accept that the plea of guilty in the circumstances of COVID-19 pandemic has a substantial utilitarian value. I note that the backlog of jury trials is yet to be resolved in this State. You have not sought to delay the finalisation of this prosecution by conducting a trial on an unknown future date. In addition, it is relevant to take into account the impact of the lockdown restrictions which have been imposed as a result of COVID-19 pandemic that has been applicable to you and, indeed, all prisoners in the State of Victoria, and may continue for an uncertain time in the future.
34As a result of those restrictions you have had limited opportunity and contact visits with your family. There is also a risk of having to spend more time in your cells generally than otherwise would be the case in ordinary prison time. These further restrictions will make your time in custody more onerous than ordinary prison conditions. Your imprisonment and the COVID-19 restrictions also means that you have limited opportunities, as I have said before, to engage in courses and your rehabilitation.
35I am also required to take into account the pronouncements of the
Court of Appeal in the case of Worboyes v The Crown, reported at
[2021] VSCA 169 at 39. I will read it:
‘For these reasons we consider, all other things being equal, a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time, although a sentencing judge need not quantify the extent of any discount, he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.’
36Your counsel has submitted that all six limbs of Verdins' case has application to your sentencing process. I accept that given Dr Zimmerman's opinion that you now are diagnosed with schizophrenia and you are taking prescribed medications for that condition, that limbs 5 and 6 of Verdins' case do have application in your case. In other words, the existence of your mental health condition will mean the sentence imposed on you will weigh more heavily upon you than a prisoner of normal mental health. There is also the risk that imprisonment will have the potential to adversely affect your mental health.
37In considering whether your moral culpability for the offending is reduced due to your mental health diagnosis of schizophrenia a number of factors become relevant. In your history to Dr Zimmerman you report having no memory of the events constituting the offending against Ms Katsavos, which were
Charges 4 and 5. However, on the day of your arrest on 18 March 2021 you stated effectively, 'She hit me first'. This clearly indicates that five days after your offending you knew who the police were talking about. In
Dr Zimmerman evidence, she stated that one explanation for the difference in your memory of Ms Katsavos offences may be a result of your overwhelming shame of your behaviour and you now choose not to remember your attack on an old and vulnerable woman.
38In late 2020 you were placed on a compulsory treatment order for your schizophrenia and by late January 2021 you had chosen to cease your treatment for schizophrenia. You have informed Dr Zimmerman that after your grandmother died you increased your use of synthetic cannabis. In the week prior to the offending in this case you reported heavy use of synthetic cannabis. On the night of the offending you also consumed significant amounts of alcohol in the Revolver nightclub before you offended. In short, you voluntarily withdrew from the effective treatment of your mental health condition, engaged in significant use of synthetic cannabis and consumed a large amount of alcohol prior to the offending.
39In the case Byast v The Crown reported at [2021] VSCA 344 the Court of Appeal stated as follows:
As to the appellant's mental state the Verdins principles rest on the notion that an impairment of mental functioning may so distort a person's decision making or affect their ability to exercise appropriate self-control, that the resulting criminal conduct to that extent is to be regarded as involuntary. Where that is established a sentencing court may view the offender's moral culpability and the need for specific and general deterrence as reduced. The position is different, however, if the person who has received effective treatment for the relevant condition but chooses to desist from that treatment and/or take illicit substances, resulting in the reactivation of the condition, in those circumstances the resulting criminal conduct may be regarded as the result of a person's voluntary choices and not as involuntary consequences of their condition.
40I accept that your underlying mental health condition of schizophrenia had some effect on your offending. However, the self-administration of drugs and alcohol and the withdrawal from the treatment are the major contributors to your offending on this occasion. Consequently I take into account your known mental health condition and I accept some allowance for a reduction in your moral culpability is appropriate. Further, the sentencing principles of general and specific deterrence are also to be moderated to some degree due to your mental health diagnosis.
41Your offending is objectively serious. The maximum terms of imprisonment for each of these offences set down by parliament is a clear demonstration of the seriousness with which the community views offences of personal violence. The indicators of the level of seriousness in this series of offences are as follows:
(1)Ms Katsavos was an elderly woman, alone at a church door, going about her charitable duties for others when you attacked her;
(2)the impact of your behaviour on Ms Katsavos was set out in her victim impact statement, which I have not repeated entirely;
(3)this incident started because you wanted to take her trolley. After you took the trolley you pushed it around the streets of
South Yarra and then dumped it untouched;
(4)you left her on the footpath, unconscious and helpless after your cowardly assault;
(5)this offending occurred after you had assaulted three more able bodied, younger men;
(6)your assaults on Mr Rukakis and the two unknown victims were unprovoked and gratuitous;
(7)your assaults were interrupted by other rescuers so the level of injury to the three men was controlled by the interrupters, not you desisting from your attack;
(8)you have assaulted one of the victims even when he was accompanied by a security guard. This is an example of your brazen offending.
42I assess your prospects of rehabilitation as guarded. In your history to
Dr Zimmerman you give a history of many examples where you describe yourself as the victim of other persons, other people's racism, bullying and disrespect to you. You have a diagnosed mental health condition which in the past you have just disengaged from treatment which would have assisted you. You, however, continue to have a strong support from your family despite your treatment of them. I note your letter of remorse and statements of shame to
Dr Zimmerman.
43The amount of cumulation of the sentences in this total sentence is moderated to give effect and force to the principle of totality in sentencing. Your overall criminality is serious and the only appropriate sentence is a total effective sentence with a non-parole period.
44Finally, the principles of general and specific deterrence, denunciation of your actions and just punishment and the protection of the community dictate that the only appropriate sentence here is a total effective sentence with a
non-parole period.
45Would you stand, please, Mr Roy:
on Charge 1, common law assault of Mr Rukakis, you are convicted and sentenced to nine months' imprisonment;
on Charge 2, common law assault of an unknown person, you are convicted and sentenced to nine months' imprisonment;
on Charge 3, common laws assault of an unknown person, you are convicted and sentenced to nine months' imprisonment;
on Charge 4, recklessly cause serious injury to Ms Katsavos, you are convicted and sentenced to three years and nine months' imprisonment. That is the base sentence;
and on Charge 5, robbery of her shopping trolley, you are convicted and sentenced to one year's imprisonment.
46The cumulation of the sentences is as follows: the base sentence is for
Charge 4, three years and nine months and cumulated. Each of the charges, of Charge 1, three months of that sentence is to be cumulated;
Charge 2, three months of that sentence is to be cumulated; Charge 3, three months of that sentence is to be cumulated; and Charge 5, six months of that sentence is to be cumulated.
47On my calculation, and I ask counsel to check this, that is a total effective sentence of five years' imprisonment. I fix a non-parole period or three years and six months.
48But for your plea of guilty I would have sentenced you to seven years and
six months' imprisonment with a non-parole period of five years.
49I declare that you have served 582 days' pre-sentence detention in respect to these sentences, and I have signed the forfeiture orders.
50MR WHITE: Your Honour, for my part I agree with the total effective sentence of five years on a quick back of the napkin calculation.
51HIS HONOUR: Thank you. Ms Lamovie, do you agree with that?
52MS LAMOVIE: Yes, I agree with that.
53HIS HONOUR: Yes. Thanks.
54MR WHITE: Sorry, Your Honour, I think both counsel would appreciate you repeating the 6AAA indication as we were writing it down, so - - -
55HIS HONOUR: Sorry. Section 6AAA, which is that is but for your plea of guilty,
Mr Roy, I would have sentenced you to a total of seven years and six months' imprisonment with a non-parole period of five years.
56MR WHITE: Thank you, Your Honour.
57HIS HONOUR: Thanks, Officer, if you can remove the prisoner. Thanks, counsel, for your assistance.
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