Director of Public Prosecutions v Sales
[2022] VCC 87
•4 February 2022
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00699
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTIAN SALES |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 4 February 2022 |
CASE MAY BE CITED AS: | DPP v Sales |
MEDIUM NEUTRAL CITATION: | [2022] VCC 87 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Cordy | |
For the Accused | Ms J. Swiney |
HIS HONOUR:
1Christian Sales, you are to be sentenced for one charge of armed robbery and one charge of possession of the drug of dependence cannabis. The applicable maximum sentences are 25 years' imprisonment for armed robbery and given a small quantity of cannabis, a fine of 50 penalty units or, if that has been increased, a modest fine; or what I see as a modest fine. You are also to be sentenced for the summary offences of possessing a prohibited weapon (a maximum sentence of two years' imprisonment) and possessing cartridge ammunition without a permit (a maximum fine of
40 penalty units).2You pleaded guilty before me on 25 August 2021. When interviewed by police on 13 October 2020, you made some admissions but denied important parts of your offending. There was a committal hearing in April 2021 and you were committed to trial in this court. The matter resolved to a plea in July 2021. The issue in contest had been whether you physically applied the weapon, the taser, to your victim. The tendered Crown summary accepts non-contact, albeit intimidating use of it.
3You receive the benefit of your plea of guilty and that level of cooperation in the investigation and proceeding. Your plea has facilitated the interests of justice, accepts responsibility and expresses remorse. The timing of your plea should also be considered in the context of your mental health, to which I shall return. There is the additional benefit to your plea that arises in the circumstances of the impact of the COVID-19 pandemic and its restrictions upon the criminal justice system.
4At your plea hearing, which ran on 25 August, 19 November 2021 and
1 February 2022, Mr Cordy for the Crown tendered a written Crown opening. Mr Davis, who appeared for you on 19 November, tendered the letter and psychiatric report of Dr Dominica Baetens, dated 29 July 2019 and
27 September 2021; two letters by general practitioner Dr Robert Carson; the letter and reports of Dr Steven Bovalino and Dr Salia Chaudry of Maryborough Mental Health and Bendigo Health.5I have also been provided with the Forensicare psychiatric report of Dr Christina Rizkallah, dated 17 November 2021. I had requested this report on 25 August 2021.
6On 19 November I then requested a Community Corrections suitability report. I have received that report, an extended pre-sentence assessment report by Darren Pianta, dated 25 January 2022.
7Ms Swiney, who appeared for you on 25 August 2021 and 1 February 2022, provided a written outline of plea submissions.
8The circumstances of your offending are set out in the tendered Crown opening which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put and tendered on your behalf and not challenged by the Crown.
9The background to your offences, committed on 12 October 2020, is your established mental health condition, bipolar affective disorder. Over time, you have been hospitalised, including at least one involuntary admission under the Mental Health Act. There have been psychotic, symptomatic relapses associated with non-compliance with treatment, alcohol abuse and substance use. In the months of 2020 leading to the offending, you became non-compliant. You were drinking and, it seemed likely, using drugs. I accept that there was a re-emergence of manic and psychotic symptoms characterised as put by Forensicare psychiatrist Dr Rizkallah, by irritability, impulsivity, driven behaviour, and persecutory ideas. This is reflected in your offending behaviour
10Your victim, Mason Taylor, had for about one month been selling you protein bars. There were elements of the compulsive about your purchase and use of them. Taylor would deliver to your home and on 11 October went there. You were not at home. Your mother was. On 12 October, you offended when he returned. You seem to have been motivated by the perception that he had insulted or disrespected your mother on the 11th, that he was overcharging you, and a suspicious reaction to him asking about your son.
11You were aggressive; you made allegations and threats. Mr Taylor describes you as speaking almost in gibberish much of the time. You prevented him from leaving. You had possession of a knife, and a torch-like taser. Threatening him with the taser, you demanded his stock of protein bars. You threw almost
fake-like jabs, making light contact with his face. Taylor avoided another blow. He removed all of the protein bars from his car. You forced him to go into the home and apologise to your embarrassed mother, holding the taser toward his back. You had activated the taser, close but without contact. As he left, you did so again.12Taylor went to the police. When they attended your home, on the following morning of the 13th, the protein bar boxes were still where he had placed them on your front fence. They are valued at $280. A search of your bedroom, which had been that of your deceased brother, revealed a small amount of cannabis, three shotgun shells and the taser. These are the subject of Charge 3, possession of a drug of dependence, and the two summary offences.
13You are a 43-year-old man and were aged just short of 42 at the time of offending. You live, as then, with your mother and stepfather in Maryborough.
14You grew up in the Bendigo area. That early life was impacted by substantial trauma and deprivation. You were placed in foster care at four or five, your mother suffering mental illness. You were sexually assaulted in foster care. Schooling was not successful, featuring social and learning difficulties, and a diagnosis of ADHD in early teenage years. You were bullied at school.
15After school, you have worked at a chicken farm for several years, in security, and when you moved to Western Australia for a number of years in the construction industry.
16You have had one significant relationship, now over. You maintain a cooperative relationship directed at caring for your four-year-old son.
17Your adult life has suffered the tragedy and death of another child soon after birth. That was in 2018. There was also the loss of a close brother in 2016. You have not worked for a number of years.
18Your criminal record reflects that background. There were a number of Children's Court appearances and, when young in the adult system, a period of youth justice detention. Between 1996, when 17, and 2019 there is an extensive record of appearances. I bear in mind duplication, given return to court for example in respect of breaching community orders and also appeal of sentences made in the Magistrates' Court. Driving and to some extent drug offences pre-dominate. Closer analysis shows alcohol and violent offending, albeit when young in the period 1996 to 2002. You were aged 17 to 22 years. The next court appearance was in September 2017. Consistent with this, it was put to me that you were offence-free during a long period of working and living with your deceased brother in Western Australia. I find that his death and that of your newborn child had a large impact upon you.
19You have been diagnosed with the psychotic condition, bipolar disorder, effectively since age 28. I had earlier described the relapse and development of its symptoms in the time leading to this offending. The Verdins principles are relevant and applicable to your sentence.
20The objectively viewed circumstances of this offending are serious and, on their face, require substantial punishment; and that by way of imprisonment. They raise sentencing considerations of moral culpability, deterrence, denunciation, and the need for proportionate punishment. However, ‑ ‑ ‑
21MR CORDY: Your Honour, if I could - Your Honour, if I could just interrupt for a moment. I've just received a message from Ms Swiney that she has dropped out a moment ago. So, perhaps if we establish that she is back.
22MS SWINEY: That message was somewhat late sent to Mr Cordy. That was much earlier in the proceedings. Your Honour, we have no difficulty at the moment.
23HIS HONOUR: That is all right. You have been online throughout, and your client has been hearing me.
24MS SWINEY: Yes, Your Honour, and I have checked that. I muted myself and I checked that he could still hear.
25HIS HONOUR: All right. Well, I will just go back a little bit, I think. The objectively viewed circumstances of this offending are serious and, on their face, require substantial punishment; and that by way of imprisonment. They raise sentencing considerations of moral culpability, deterrence, denunciation, and the need for proportionate punishment.
26However, there are important moderating factors which persuade me that you should not be imprisoned beyond the period you have already spent in remand custody. Upon arrest on 13 October 2020, you were remanded until receiving bail on
21 December 2020. There should be a sentence of that period, but followed by a Community Corrections order.27The matters that persuade me of this particularly include the following.
I.Your plea of guilty and cooperation in the proceedings. I also accept that you feel genuine remorse.
II.Your personal history and circumstances at the time of offending.
III.Related to that and of particular importance are the sentencing principles stated in the R v Verdins and associated cases. The expert evidence consistently shows that your mental illness likely had significant effect upon you at and during your offending. Your moral culpability is moderated. Deterrence and other adverse sentencing purposes are also lessened in relevance. The evidence of your mental health decline when in remand both supports the likely impact of symptoms upon you and the offending and the hardship, fact, and risk of deterioration of your condition in prison.
IV.Further, there is the fact that you have addressed your mental health and apparently complied with treatment since being granted bail. There is no allegation of further offending. Your life has appeared to have stabilised. You are engaged in treatment and support with Maryborough Mental Health. Given the foundation of your mental health condition and past lapses, rehabilitation is not guaranteed. However, it should not be discounted with continuing support and treatment.
28I note this part of the final remarks of Forensicare psychiatrist Dr Rizkallah, it is quite long. I quote,
'Based on the available information, Mr Sales' risk of violence appeared to be proximally related to untreated bipolar disorder with the presence of manic and psychotic symptoms and substance use and distantly related to discharge from community mental health services. In order to mitigate Mr Sales' future risk of violence, it is imperative that he remain engaged with his treating team, compliant with anti-psychotic and mood stabilising medication, and abstinent from substance and alcohol use. Should he disengage from treatment but come non-compliant with medication and experience relapse or bipolar disorder and substance use, his risk of violence will significantly increase'.
'As such, should Mr Sales be sentenced to a Community Corrections order, it is recommended that he remains engaged with his community treating team, and compliant with anti-psychotic and mood stabilising medication. While he is currently abstinent from substances, given his extensive substance use history, he remains at risk of further relapse and it is recommended that he engages with either his community treating team, or a specialist drug and alcohol service, with a focus on relapse prevention. Considering the cumulative losses Mr Sales has experienced over the last five years, it is strongly recommended that he engages with a psychologist to address his unresolved grief and develop healthy coping strategies. He would also benefit from re-engaging in gainful employment and community programs, with a view to re-establishing a sense of purpose and pro-social connections'.
29As stated, I have decided to impose a short sentence, that already served in remand, combined with a Community Corrections order. The Crown does not argue against this. That Community Corrections order contains both punitive and rehabilitative conditions. The report of Darren Pianta finds you suitable for such an order.
30Mr Sales, I sentence you as follows:
·On Charge 1, 70 days' imprisonment
·On Charge 2, you are convicted and fined $100
·On the summary offences, possess prohibited weapon, imprisonment of 14 days
·Possess cartridge ammunition, convicted and fined $100
31I make no orders for cumulation. Therefore, that is a total effective sentence of 70 days.
32I declare under s18 of the Sentencing Act 70 days of that sentence already served. I also impose a Community Corrections order; it is of two and a half years duration. The usual terms apply.
33The additional conditions are that you be under supervision, that there be judicial monitoring, that there be assessment and treatment for drug abuse and dependence, that there be assessment and treatment for alcohol abuse and dependence, that there be mental health assessment and treatment. That there be specific offending behaviour programs, that is under s48B(3)(f), and that you perform unpaid community work of 300 hours, 100 hours of the program work I have stated can be set off against that.
34Now, the judicial monitoring date should be perhaps three months from now. Does that place it in the time that I am at the Mildura sitting? Whilst that is happening, I state this; that under s6AAA, had you not pleaded guilty, I would have imposed a sentence of two years with a minimum term of 12 months.
35Mr Cordy, are there any other of those ‑ ‑ ‑
36MR CORDY: Yes, disposal. Disposal order, Your Honour. Your Honour's associate should have it.
37HIS HONOUR: Yes, that will be the various things taken.
38MR CORDY: Yes, the ammunition, the taser, and the drugs and so on. Yes, so there is - there were ‑ ‑ ‑
39HIS HONOUR: They are all under the same disposal order. My recollection is that there is no challenge to that, so I will sign that order. What else is there?
40MR CORDY: Just a clarification, Your Honour. So, the two and a half year CCO, does that just apply to Charge 1 or is it for ‑ ‑ ‑
41HIS HONOUR: No, you make a good point. I think it is only available in relation to matters where the maximum penalty is a fine beyond a certain sum. Can you tell me what that is?
42MR CORDY: I cannot, Your Honour.
43HIS HONOUR: I can ‑ ‑ ‑
44MR CORDY: I would have thought, Your Honour, that given the seriousness of Charge 1, armed robbery, and the sentence imposed on that, that that would be the charge that Your Honour would attach the CCO to.
45HIS HONOUR: You could do that, or you could impose it - stated to be imposed on the armed robbery and the prohibited weapon.
46MR CORDY: Yes, Your Honour.
47HIS HONOUR: I will do that, I think. So, I will restate it. I do not think I need to - look, I will restate the lot.
·On Charge 1, 70 days' imprisonment
·On Charge 2, convicted and fined $100
·On the summary offences, possessing a prohibited weapon, 14 days' imprisonment
·Possessing cartridge ammunition, convicted and fined $100.
48No orders for cumulation, therefore a total effective sentence of 70 days.
I declare 70 days under s18. I also impose on Charge 1 armed robbery, and the summary offence possess a prohibited weapon a Community Corrections order.49I have already stated the terms and conditions of that.
50MR CORDY: As Your Honour pleases.
51HIS HONOUR: Look, thank you for that, Mr Cordy. Yes, did somebody say something then? No. Yes, go on. He lives in Maryborough, so it is Bendigo I presume, the Corrections centre, is it not?
52MS SWINEY: Yes, that is right.
53HIS HONOUR: Yes. All right. Well, I am just getting the document printed out now. I need to formally put it to Mr Sales.
54MS SWINEY: All right, I will make sure he is reading that.
55HIS HONOUR: Yes, he has got to tell me that he agrees to it. Understands and agrees to it. How are we going to achieve that? He tells you and then you tell me?
56MS SWINEY: It should work, Your Honour. He can speak directly to Your Honour.
57HIS HONOUR: Can you hear me, Mr Sales?
58OFFENDER: Yes, Your Honour.
59HIS HONOUR: I am going to have to read out to you what these terms and conditions mean, and then I am going to ask for your response. 4 May is the judicial monitoring date, yes. Thank you. I am not away then?
60ASSOCIATE: No.
61MS SWINEY: Your Honour, I just explained to Mr Sales what the judicial monitoring means and what Your Honour is doing about organising the date.
62HIS HONOUR: Yes, it is 4 May. But I formally state that to him when I put the order that is coming through soon. Thank you. Well, it says here the Mildura County Court.
63ASSOCIATE: Where?
64HIS HONOUR: On the document you gave me. So, it should be stated as the - well, should it be stated as the Bendigo County Court or the Melbourne County Court?
65ASSOCIATE: How do I do that? Sorry. Melbourne. You tell me, I do not know.
66HIS HONOUR: Well, it is a formality I suppose. The judicial monitoring date says he has got to attend for review. I suppose it will be at the Melbourne County Court, certainly not Mildura. I will not be in Mildura then, will I?
67ASSOCIATE: No.
68HIS HONOUR: All right. We are just going to change it. All right, now Mr Sales, you can still hear me?
69OFFENDER: Yes, Your Honour.
70HIS HONOUR: Yes, all right. I am going to read out the Community Corrections order to you. On those two charges, I am imposing a 30 month, two-and-a-half-year Community Corrections order. Therefore, it runs from today to 3 August 2024. Now, the usual terms are these.
71That you do not commit another offence for which you could be imprisoned during that time. You must comply with the regulation that prohibits you attending any appointment, meeting, or work site affected by alcohol, or drugs, or in possession of illegal drugs. You must report to and receive visits from Community Corrections.
72You must report to the relevant Community Corrections Centre. It is Bendigo and the address is here for you on the document. You must do that within two working days of today. You must let Community Corrections know within two days of a change of address or job. You must not leave Victoria without getting their position. You must obey all of their lawful directions.
73The additional conditions are these. That you perform 300 hours of unpaid community work over that period, 100 hours of the program work, and I will come to that, can be set off against it. Further, that you be under supervision. You must undergo assessment and treatment for drug abuse. You must undergo assessment and treatment for alcohol abuse. You must undergo any mental health assessment and treatment that is directed. You must participate in programs specifically focussing on the offending that you have committed, as you are directed.
74Also, there is a condition that I judicially monitor you; that is, make sure that you are complying with the order. The first date for that is 4 May 2022. It says here at 10 o'clock at Melbourne County Court. If you are cooperating and complying with the order, you can attend that review remotely from either the Bendigo office or any other place that is arranged for you. If you are not complying, you will have to come in and see me in Melbourne.
75Now, do you understand the effect, and all those conditions?
76OFFENDER: Yes, Your Honour.
77HIS HONOUR: Do you agree to them?
78OFFENDER: Yes.
79HIS HONOUR: Right. Now I am going to sign that order, and what is the best way of getting it to him, for his signature, Ms Swiney?
80MS SWINEY: Your Honour, I have spoken to Maryborough police station yesterday, and if Your Honour's associate emails - I will find an email address for today, Mr Sales can go down to the police station and ‑ ‑ ‑
81HIS HONOUR: So, it should go to the police station. He will go there to sign it and you are going to - are you going to provide the email address?
82MS SWINEY: I am, yes, Your Honour.
83HIS HONOUR: All right, and you will do that by email to Ms Merrington at some stage. Good, all right.
84MS SWINEY: Yes, Your Honour.
85HIS HONOUR: All right. So, that is what can be done. I am about to adjourn. Mr Sales, the message I get, and I get it pretty strongly, that if you continue to comply with treatment and engage with the supports that are being placed there for you, particularly locally, you will probably be all right. But if you do not comply with treatment and you start drinking and using, it is really very likely that you will end up in gaol. So, that is the task for you, I think. All right.
86So, nothing else needs to be said or done.
87MS SWINEY: No, Your Honour.
88OFFENDER: I appreciate that, Your Honour.
89HIS HONOUR: Well, good luck with it, Mr Sales. All right, well we will turn everybody off now.
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