Director of Public Prosecutions v Ryan-Roach

[2022] VCC 67

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR 21-00958

DIRECTOR OF PUBLIC PROSECUTIONS

v

CALEB RYAN-ROACH

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JUDGE:	HIS HONOUR JUDGE D. SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	20 January 2022
DATE OF SENTENCE:	03 February 2022
CASE MAY BE CITED AS:	DPP v Ryan-Roach
MEDIUM NEUTRAL CITATION:	[2022] VCC 67

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Robbery, Commit indictable offence whilst on bail

Legislation Cited:      Sentencing Act 1991

Cases Cited:Bugmy v R (2013) 249 CLR 571; R v Verdins & Ors (2007) 16 VR 269; Worboyes v R [2021] VSCA 169

Sentence:                  246 days’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T. Crouch	Solicitor for the Office of Public Prosecutions
For the Accused	Ms E. Millar	Victoria Legal Aid

HIS HONOUR:

Introduction

1Caleb Ryan-Roach, you have pleaded guilty to one charge of robbery, which carries a maximum penalty of 15 years' imprisonment, and one related summary offence of committing an indictable offence whilst on bail, which carries a maximum penalty of three months' imprisonment.

2You have also admitted your criminal record.

Circumstances of the Offending

3The circumstances of your offending were set out in the Summary of Prosecution Opening for Plea dated 16 December 2021; Exhibit 1 at your plea hearing.  Your offending can be briefly summarised.

4On 4 September 2020 you were aged 22.  At about 6:30 am you entered the Coles Express in Station Road, Melton South.  At the time your victim, Daniel Calleja, an employee of Coles Express, was working at the register.  At the time you had blood on your knuckles and you were carrying a 1.5 litre glass bottle.  After entering the store you went to a hat stand, where you tried on a dark coloured beanie and some sunglasses.  You then approached the register counter wearing a dark coloured beanie and a pair of sunglasses and asked Mr Calleja to purchase a packet of cigarettes and a lighter.  The total cost of these items, including the beanie and sunglasses, came to $160.  You removed a black wallet from your pocket and looked through it for a short time before stating 'don’t worry about it', and you commenced exiting the store as Mr Calleja put the items to the side.  Before exiting, however, you muttered, 'Next time I'll just come back and rob you'.

5Approximately 30 seconds later you re-entered the store and walked at a fast pace towards the counter, saying to Mr Calleja, 'I'm having a bad day.  I'm suicidal, I've got a knife on me.  If you don’t give me the cigarettes and lighter I'll jump the counter'.  Mr Calleja believed that you had a knife on you and pushed the cigarettes and lighter towards you, at which point you took the items and left the store.  The total value of the items stolen was $38.15.  Your conduct in this regard forms the basis of the charge on the indictment; robbery.

6After briefly stopping at one of the petrol bowsers outside and attempting to remove some petrol from the hose into the bottle that you were holding, you left the area.

7At the time of this offending you were on three counts of bail.  I understand at least some of these matters, which are of a dishonesty nature, are listed at Sunshine Magistrates' Court on 23 March 2022.  Your conduct in committing the robbery while subject to bail forms the basis of the related summary offence to which you have now pleaded guilty; committing an offence whilst on bail.

8You were subsequently located, arrested by police and searched, where a cigarette lighter and a pack of cigarettes were found on you.  It seems concerns were held by Victoria Police as to your fitness for interview, given the possible ingestion of petrol.  You were ultimately assessed by a forensic medical officer as being fit for interview with the use of an independent third person.  In that subsequent police interview, you made admissions to the offending.

9The procedural chronology of these proceedings is set out in the Summary of Prosecution Opening for Plea document.  You were remanded in custody on
4 September 2020 and remained in custody until being granted bail during a submissions only committal hearing at the Magistrates' Court on 7 May 2021, by which time you had been in custody for 246 days.  Whilst you were originally charged - and it seems committed on the more serious charge of armed robbery - the matter ultimately resolved to the charge of robbery.  As the chronology makes clear, since June of 2021 I have monitored your progress in the Court Integrated Services Program (‘CISP’); one of the primary conditions of your bail.

Impact on Victim

10The Sentencing Act1991 requires me to have regard to the impact of your offending on any victim when formulating a sentence in your case.  In that respect, I have had regard to the Victim Impact Statement of Mr Calleja made on 5 January 2022, tendered at your plea hearing and marked Exhibit 2.  It is clear from that statement that Mr Calleja has suffered considerably as a result of your offending.  Since the incident, he has struggled with his mental health and has participated in counselling in that regard.  He has developed a bitterness towards a lot of the customers he interacts with on a daily basis at work, especially males.  He does not like the way the incident has changed his personality.  He is reluctant to leave the house and attend any places that have large crowds, where he is unfamiliar with, or where he would have to socialise with unknown people.  Along with his wife he has kept the incident from their two young daughters, who have their own vulnerabilities.  It is clear that the court process itself has caused anxiety to
Mr Calleja, which has necessitated further counselling.

11Your conduct on the morning of 4 September 2020 has had significant adverse consequences for Mr Calleja, who was simply going about his work; a place where he was entitled to feel safe.  Victim Impact Statements are an important means through which victims of crime can meaningfully participate in the sentencing process by informing the Court of the often serious and long-lasting consequences of offending upon them.

Nature and Gravity of the Offending

12The seriousness of your offending is of course reflected in the statutory maximum penalty for the crime of robbery; 15 years' imprisonment.  By its very nature, this offence involves at least the threat of violence and I am satisfied that your conduct had a menacing aspect to it, given your demeanour and words spoken to Mr Calleja.  Given the time of day and the role of Mr Calleja he was, in my view, a soft target.  However, I accept that the incident was of a relatively short duration.  You were on your own.  I accept that in all likelihood your offending was spontaneous and unplanned, and it is likely that your decision to rob Mr Calleja of the cigarettes and lighter, having initially attempted to pay for these items, was a spur of the moment decision.  It seems to me that your conduct can be viewed as unsophisticated and rudimentary.  In all the circumstances, in my view your conduct represents a low to mid-level example of the crime of robbery; exacerbated though due to the fact that you were then subject to multiple grants of bail.

Personal Circumstances

13Your personal circumstances were set out in some detail in the report of forensic psychiatrist Dr Nina Zimmerman dated 30 September 2021, Exhibit B at your plea hearing, and in your counsel’s Outline of Defence Plea Submissions dated
17 January 2022; Exhibit A.  I accept that you have had a most difficult and unfortunate upbringing.  You are now aged 24.  Your biological father, who you only met on a few occasions, died of a heroin overdose when you were aged seven.  From then you were raised by your mother and your stepfather; both of whom used illicit substances when you were growing up.  You were, it seems, also exposed to significant family violence by your stepfather towards your mother which, on occasion, resulted in your mother being hospitalised and your stepfather imprisoned.  As a result you were regularly placed in residential care and foster care, sometimes with extended family members.  You found some of your foster placements traumatic.

14Sadly, your mother, who had significant mental health issues, committed suicide when you were aged 10, resulting in you being placed in the care of your stepfather for a period and enduring physical violence as a result.  Your progress since then has continued to be difficult and traumatic for you.  You have been exposed to physical and sexual violence and, on your 15th birthday, you were introduced to methamphetamines for the first time at the hands of your stepfather.

15You are one of nine children, and you are particularly close to your brother, Xenon, who is four years older than you.

16Following a fairly limited education, you have worked as a concreter with your brother, Xenon, from the age of 17, and at times you have lived with your brother.

17You have a problematic history with regards to substance use, having used methamphetamines, cannabis, heroin, GHB, MDMA, crack cocaine and mushrooms in the past.

18You have a history of mental health difficulties and interventions with regard to psychiatric issues; the details of which were set out in the report of Dr Zimmerman and again in your counsel’s written submissions.  Suffice to say, you have had instances of admissions to hospitals dating from 2019 in the context of what has been referred to as a drug-induced psychosis.  You have previously been placed on a temporary treatment order due to your mental health challenges in 2020.  Significantly, you had a psychiatric admission in the period June to July 2020, just a few months before your offending.

19You informed Dr Zimmerman that you had been homeless for about a year as at the time of the offending and, unsurprisingly, had encountered significant instability in your life.  You had been ingesting alcohol, sporadic heroin and excessive quantities of ice, together with cannabis, at the time of your offending, and you have reported that your memory of the offending is very incomplete.  You reported that at the time you were feeling suicidal as the night before all your possessions had been burned and you had salvaged only a few personal items.

20According to Dr Zimmerman, you meet the diagnostic criteria for stimulant use disorder with regard to substances that have been features of your life since your mid-teens.  You also satisfy the criteria for a diagnosis of past drug-induced psychosis, likely currently in remission.  Due to your history of significant trauma whilst you do not currently meet the criteria for a diagnosis of post-traumatic stress disorder you are at risk of developing post-traumatic symptoms at times of increased stress.  According to Dr Zimmerman, at the time of your offending you were using stimulants, cannabis and alcohol as recently as the night prior to the offending.  You were likely affected by stimulants at the time of the offending and likely intoxicated with alcohol.  Further, you were likely in an emotionally dysregulated state at the time of the offending due to your recent circumstances.  According to Dr Zimmerman, there is no evidence of any link between any psychotic beliefs and your offending.

Sentencing Factors

21The Sentencing Act1991 requires me to have regard to various factors when formulating an appropriate sentence in your case.  I have already referred to the nature and gravity of your offending and the impact on your victim.

22I am satisfied, in all the circumstances, that your offending was not the product of calm, rational decision-making.  Rather, it occurred in the context of your chaotic life circumstances, recent hospitalisations with regard to mental health difficulties and in the midst of significant drug use on your part.  All of this occurs in the context of your difficult upbringing, marked by deprivation and trauma, such that pursuant to the well-known Bugmy principles your moral culpability for the offending is reduced.[1]

[1]Bugmy v R (2013) 249 CLR 571.

23You are entitled to a significant discount by virtue of your plea of guilty.  In that regard I note that you were initially charged with armed robbery and an offer to plead to robbery was rejected at the committal case conference stage, before the matter ultimately resolved in the County Court.  Indeed, had this matter resolved earlier, it could have been dealt with in the summary jurisdiction.  I accept that in all the circumstances you are entitled to a sentencing benefit for a plea of guilty at the earliest opportunity, given the manner in which this matter resolved.

24Particularly in the current circumstances, where the COVID-19 pandemic has caused unprecedented challenges and delays to the administration of criminal justice in this jurisdiction, pursuant to the decision of Worboyes[2] your plea of guilty in the current circumstances has a very significant utilitarian benefit, warranting a clear and demonstrable discount with regard to sentencing.

[2]        Worboyes v R [2021] VSCA 169.

25Furthermore, given your articulations to Dr Zimmerman with regard to feeling sorry for your victim,[3] I am satisfied that in combination with your plea of guilty there is evidence of remorse on your part, warranting a further sentencing discount.

[3]Psychiatric Report of Dr Nina Zimmerman at [113].

26You are now aged 24 and at the time of your offending you were 22.  The sentencing principles with regard to youthful offenders therefore apply, emphasising the importance of rehabilitation as one of the important sentencing purposes.

27Whilst you have a criminal history, meaning that the sentencing purpose of specific deterrence has some prominence in the sentencing exercise, I accept that it is a relatively limited, albeit relevant history, and that your most serious prior matter relates to a Children’s Court appearance.  Nevertheless, any sentence I impose must seek to deter you from future offending.  Your criminal history also has some bearing with regard to an assessment as to your prospects of rehabilitation, which I will turn to shortly.

28

You have spent your time in custody prior to being bailed in May 2021 in the context of the COVID-19 pandemic.  The impacts on the custodial system are now well-known, with significant restrictions on freedom of movement, access to employment, programs and other therapeutic activities, and heavily restricted access to visits, together with the anxieties of all prisoners with regard to

COVID-19 entering the custodial system, given the compromised demographic.

29I was informed that you were initially placed at the Broadmeadows cells for some days before being moved to Ravenhall Correctional Centre, where you endured a two-week quarantine period due to COVID-19, during which time you self-harmed.  You then moved to Fulham Correctional Centre before returning to Ravenhall.  In some respects you progressed well, in that you were able to detox from drugs and remain abstinent.  You obtained appropriate medical and mental health medication and supports, attended some drug and alcohol classes and improved your physical fitness by going to the gym when such activities were permitted.  You also obtained some employment as a groundskeeper and obtained your White Card.  In many respects, you made the most of your time in custody.

30However, according to Dr Zimmerman you nevertheless experienced challenges, including the re-emergence of experiences relating to trauma and struggling with the COVID-19 lockdown periods due to your lack of internal skills to self-manage stress.  According to Dr Zimmerman, ‘a return to the custodial environment will again be associated with stress that Mr Ryan-Roach will struggle to cope with in the initial period’.[4]

[4] Ibid at [192].

31In these circumstances, I am satisfied that a further mitigatory allowance is warranted pursuant to Verdins’[5] principle 5, as your condition at the date of sentencing, or its foreseeable reoccurrence, may mean that a term of imprisonment would weigh more heavily on you than it would on a person who does not suffer from that condition.

[5]        R v Verdins & Ors (2007) 16 VR 269.

32Since being bailed some eight months ago, in May 2021, you have not re-offended; a matter standing to your credit.  You have also largely complied with stringent bail conditions, which have included your ongoing participation in the CISP program.  As I earlier mentioned, I have been monitoring your progress on CISP bail since June of last year.  Whilst it cannot be said that you have embraced the rigours of CISP, I have nevertheless noted your positive endeavours in the context of your very difficult background and the difficulties associated with COVID-19 and its impact on face to face programs.  In particular, employment is clearly important to you, and I note that until Christmas of last year you were largely working with your brother, Xenon, and it was clear to me in the regular CISP Review Hearings that this was a significant stabilising and motivating factor for you.

33At your plea hearing I was informed that you were imminently due to start a trial working for a textile factory in Melton, which would essentially involve full-time work.  I was informed that you have remained abstinent whilst on bail with regard to illicit substances, though you have clearly not embraced or meaningfully engaged with any of the therapeutic services available through the CISP program, nor have you progressed significantly with regard to any mental health interventions.  This is consistent with the sentiments of Dr Zimmerman, who indicates that you have expressed a strong disinclination to engage in psychological counselling.[6]

[6]Psychiatric Report of Dr Nina Zimmerman at [194].

34At your plea hearing on 20 January 2022 your counsel provided me with an update as to your recent and current circumstances.  I was informed that you have stability of accommodation at your rental property in Melton South, where you plan to take over the lease imminently.  You are currently in receipt of benefits, including rent assistance, to assist you with regard to your obligations in that regard.  I was informed that you have pro-social peers who are not drug users and you have been focusing on your health.  You have, it seems, the ongoing support of at least your brother, Xenon.

35At your plea hearing, given the lack of objective material with regard to your recent and current circumstances - particularly given your inability to meaningfully engage with CISP with regard to your mental health issues - a mental health assessment with the Forensicare Mental Health Advice and Response Service (‘MHARS’) program was organised.  Mr Gregory Lane, registered nurse with the MHARS program, assessed you on 25 January 2022 and reviewed the relevant public health database for any recent mental health admissions and contacts.  Mr Lane’s report is a positive one. You apparently presented as sober, coherent, stable in terms of your mood, relaxed and motivated.  There were no psychotic symptoms observed by Mr Lane or reported by you.  Your current life circumstances appear stable.  According to Mr Lane, ‘he appeared to be emotionally and mentally stable and has identified realistic pro-social life goals’.[7]  According to Mr Lane, you should be able to maintain your stable mental state.  The report of Mr Lane does assuage any concerns that I would otherwise have regarding your short-term stability in the community, notwithstanding your reluctance to embrace the CISP program.

[7]        MHARS Report of Gregory Lane at pg.3.

36

Nevertheless, an assessment as to your rehabilitative prospects is challenging, to say the least, however the fact remains that you are still a relatively young man with a relatively limited, albeit concerning, criminal history.  You clearly have significant challenges, given your traumatic history and mental health and

drug-related issues, however after serving a significant period on remand you have, for eight months, remained abstinent, it seems, offence-free and relatively stable.  Clearly though, for whatever reason, you are unwilling or unable to embrace some of the important specialist interventions recommended by

Dr Zimmerman.  Notwithstanding the positive report of Mr Lane, your rehabilitative prospects therefore are somewhat speculative in my view.

37The nature of your offending requires me to reflect the important sentencing purpose of general deterrence in any penalty I impose.  Others must be deterred from contemplating such serious and concerning criminality.  I have already referred to specific deterrence and facilitating rehabilitation.  Ultimately, any penalty I impose must reflect the sentencing purpose of just punishment and, in that regard, it is a matter of considerable significance, in my view, that you have already served 246 days in prison with regard to your offending.  There is a need, in my view, not to artificially inflate a sentence simply to facilitate your rehabilitation through a Community Correction Order, given your substantial period already served in jail.  In any event, it is unrealistic to expect that you would comply with a Community Correction Order, given your psychological issues and general personality style.  For these reasons I will not be imposing such an Order in your case.

Sentence to be Imposed

38Mr Ryan-Roach, in relation to the charges you are sentenced as follows.

39On the charge of robbery you are convicted and sentenced to 246 days' imprisonment.

40On the related summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to seven days' imprisonment to be served concurrently, or at the same time, with the 246 days' imprisonment imposed in relation to the robbery charge.

41Pursuant to s18(4) of the Sentencing Act1991 I declare a period of 246 days has been served by way of pre-sentence detention and I order that this period be deducted administratively.  That means, Mr Ryan-Roach, that you have served already the sentence of imprisonment and there is no further penalty required.

42Pursuant to s6AAA of the Sentencing Act1991, I declare that had you pleaded not guilty but been found guilty in relation to these charges, I would have imposed a total effective sentence of 15 months' imprisonment with a non-parole period of nine months. 

43Mr Crouch, there are no ancillary orders?

44MR CROUCH:  No, Your Honour.  No ancillary orders sought.

45HIS HONOUR:  Yes, thanks.  Mr Crouch, anything I've missed or any ambiguities with regard to the sentence?

46MR CROUCH:  No, Your Honour.  That completes the matter in my view.

47HIS HONOUR:  Yes, thanks.  Thanks, Ms Millar.  Anything from you?

48MS MILLAR:  No, Your Honour.

49HIS HONOUR:  All right, thanks.  Mr Ryan-Roach, I trust that all makes sense to you.  What that effectively means is that in relation to these offences - the robbery and the related offending on bail charge - I have sentenced you to a term of imprisonment but you've already served it - you served it on remand before being placed on bail.  In recognition of that and the progress you've made on bail - and all the other matters I've just referred to - this matter is now finalised, so you have no further obligations after today.  You are no longer on bail, you're no longer on CISP bail.  This matter is now complete.  Do you understand? 

50OFFENDER:  Yes, Your Honour.  I understand.

51HIS HONOUR:  Thanks Mr Swindon.

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