Director of Public Prosecutions v Samuel

[2023] VCC 92

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01584

DIRECTOR OF PUBLIC PROSECUTIONS

v

KATOA SAMUEL

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2023
DATE OF SENTENCE:	7 February 2023
CASE MAY BE CITED AS:	DPP v Samuel
MEDIUM NEUTRAL CITATION:	[2023] VCC 92

REASONS FOR SENTENCE
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Subject:Criminal law - Sentence

Catchwords:              Plea of guilty – armed robbery – theft – confrontational armed robbery on ‘soft target’ – unsophisticated offending however degree of planning involving possession of knife and disguise – diagnosis of schizophrenia - young offender supported by Youth Justice – no criminal history – nothing subsequent – compliance with strict conditions of bail and Community Treatment Order – very strong prospects of rehabilitation

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:R. v. Mills (1998) VR 235

Sentence:                  With conviction, community correction order made for 18 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms E. Hill	Office of Public Prosecutions
Victoria
For the Accused	Mr D.N. McGlone	Ajak & Associates

HER HONOUR:

1Katoa Samuel, you have pleaded guilty to a charge of armed robbery contrary to s 75A of the Crimes Act 1958 (‘the Act’), the maximum penalty for which is 25 years’ imprisonment, and to a charge of theft contrary to s 74 of the Act, the maximum penalty for which is 10 years’ imprisonment.

2You were born in February 2002 and were 19 years old at the time of the offending. You have no prior criminal history.

Circumstances of the offending

3On 10^th of November 2021, at approximately 12.16pm, you entered the Beer, Wine and Spirits (BWS) store located on Princes Highway, Hallam.  Upon entering the store, you activated a motion sensor which alerts staff to the presence of a customer.  At this time, 27-year-old Matthew Zupan was working at the BWS and was the only staff member on duty.

4At the time you entered the store you were wearing black clothing, including a black vest, and black and white Adidas shoes. You had disguised yourself by covering the lower half of your face with a green face mask.

5After entering the store, you walked directly behind the counter and into the staff service area.  As you did so, you had your right hand in the pocket of your pants. When you were approached by Mr Zupan, you asked if you could get some cash. Before Mr Zupan had time to reply, you removed a yellow handled kitchen knife from the pocket of your pants and brandished it in the direction of Mr Zupan.

6Mr Zupan described the knife as being thin “and looked like a slim kitchen knife approximately 30 centimetres in length.”[1]

[1]Exhibit A – Summary of Prosecution Opening for Plea dated 9 November 2022, at paragraph [7]

7Mr Zupan handed you cash from one register, placing it into a bag you were carrying in your left hand.  As he did so, you kept repeating to Mr Zupan to, “Hurry the fuck up”. You stood next to him as the money was placed into your bag.  Once the first register had been emptied by Mr Zupan, you checked to see if any cash remained, and lifted the black plastic tray to look beneath it. You and Mr Zupan then moved to a second register emptying it of its contents. Mr Zupan then showed you there was nothing under the black plastic tray of the second register. This is the conduct that gives rise to the charge of armed robbery (Charge 1).

8You immediately left the store, walking west on the Princes Highway.  In total, you were in the store for no more than 40 seconds.

9Mr Zupan closed the roller doors to the store, activated the IMC alarm and started recording the incident in the incident report book.  A manager from the adjacent pub went to see what was happening, as the alarm is connected to the pub.  Mr Zupan describes experiencing a feeling of adrenaline throughout this event.

10It is not known exactly how much money you stole, but it was estimated to be approximately $200 - $300.  The stolen money has not been recovered.

11At approx. 12.33pm that day, you were observed by police walking along Cornwall Street, Hallam carrying three parcels wrapped in black plastic.  Two of the parcels contained the names and addresses of the intended recipients, unconnected to you. The third parcel did not contain any recipient details. Two of the parcels contained diffusers/humidifiers.

12The police stopped you in front of your residence.  You told the police you found the parcels in an alley near some rubbish bins behind Coles and believing that they were going to be thrown out, you took them. You had no lawful entitlement to those items. Your conduct in taking these parcels gives rise to the charge of theft (Charge 2).

13At the time of your arrest, you were wearing the same black pants, and the black and white Adidas shoes worn during the armed robbery. You were searched and the police located a yellow handled knife in the pocket of your pants. I have viewed a photograph of this knife.

14The police executed a search warrant at your address later that day and located a black Nike vest in your laundry, the green material used as a face mask during the armed robbery and a black shirt with white logo on the left chest region next to the outside rubbish bin.

15When interviewed by the police, you denied committing the robbery and said it wasn’t you when you were shown the CCTV footage.

16You were arrested and remanded in custody for one day, before being granted bail, subject to Youth Justice supervision on 11 November 2021. Committal proceedings were adjourned in May 2022 and the matter resolved to a plea in August 2022. Your plea hearing then proceeded before me in January 2023.

Nature and Gravity of offending

17The seriousness of the offence of armed robbery is reflected in the maximum penalty of 25 years’ imprisonment. The prevalence of this type of confrontational armed robbery where businesses, often with sole employees, are perceived as an ‘soft target’, means that the sentence I impose must deter others from similar offending. This was brazen offending committed in broad daylight and must be denounced. Although no victim impact statement was provided, this must have been a frightening ordeal for the victim.

18However, as emphasised in submissions made on your behalf, yours was not sophisticated offending and other than holding the knife in the direction of the victim, you committed no other acts of violence towards him. You did not threaten the victim and, unlike more serious instances of the offence of armed robbery, you were not in company.  However, there was a degree of planning associated with your offending to the extent that you attended the store with a knife in your possession and with a mask to disguise your face to prevent detection.

Personal circumstances

19As stated, you were 19 years old at the time of this offence and have no criminal history. Your personal circumstances leading up to this offending, and subsequently, have bearing on your moral culpability for your conduct.

20You were born in New Zealand in February 2002.  You have two sisters, one older and one younger than you. In December 2012, your father came to Australia and secured employment as a forklift driver and found housing before the family joined him. Your mother has worked in retail in the past, but now focuses on caring for the family at home. The family live together and are supportive of one another.

21You attended Westall Secondary College, completing Year 11. You were a good student, enjoyed rugby, and had a positive experience of school.

22In 2017, you began an apprenticeship in bricklaying, which you enjoyed, and in 2019 you decided to resume Year 12, whilst maintaining your apprenticeship.

23However, the impact of COVID-19 significantly disturbed these arrangements. You ceased attending school, and then lost your job due to the impact of restrictions on the construction industry. Your family observed you become increasingly withdrawn and isolated, rarely leaving your room. You ceased socialising with friends and began to behave erratically. Your parents became concerned that you were talking to yourself and shouting at the television. They moved you into a bedroom next door to theirs to keep an eye on you.

24Following this offence, and whilst on bail, your youth justice case manager referred you for a mental health assessment after you disclosed ongoing auditory hallucinations. Following an assessment, you were referred to the Recovery and Prevention of Psychosis Team (‘RAPP Team’) at Monash Health, where you have been treated since April 2022. Following an involuntary psychiatric admission to Dandenong Hospital between 21 May 2022 – 7 June 2022, you were diagnosed with ‘First Episode Psychosis.[2] You have subsequently been diagnosed with schizophrenia by your consultant psychiatrist, Dr Abhijit Bidwai.[3]

[2]Exhibit 9 - Letter of Rachel Williamson, Mental Health Clinician, RAPP Team, Monash Health dated 25 January 2023

[3]Exhibit 9 - ibid

25You are now subject to a Community Treatment Order pursuant to the Mental Health Act 2014. That order was extended at a hearing of the Mental Review Board for a further 26 weeks, expiring on 11 June 2023. Under that order, you attend every two to three weeks upon the RAPP team for your monthly injection of an antipsychotic medication, Aripiprazole. You have been compliant with this treatment since the order commenced.

26On a positive note, Ms Rachel Williamson, your Mental Health Clinician with the RAPP team at Monash Health, has confirmed that your mental health has remained stable since you first engaged with treatment, and says you have not demonstrated any ‘early warning signs of relapse to psychosis’.[4]

[4]Exhibit 9 – ibid

Matters in mitigation of sentence

27In written submissions made on your behalf, that were helpfully expanded upon during your plea hearing, Mr McGlone raised the following matters that are relevant in mitigation of your sentence.

28The first is your plea of guilty. By pleading guilty prior to any evidence being called, you saved the victim the ordeal of reliving these events. Through your plea you also acknowledge responsibility for your offending. Your plea also saves the community the time and expense associated with a trial. There is significant utility in your plea, particularly at this time when there remains a backlog of trials impacted by the COVID-19 pandemic. You are entitled to, and will receive, a significant sentencing discount given your guilty plea to the charges.

29Secondly, your youth remains relevant to the sentence I impose. As a 19-year-old offender, with no prior criminal involvement, significant weight attaches to your youth. This is so for several reasons. The law accepts that youthful offenders are generally more immature and prone to impulsive decision-making. For a young offender, the desirability of the sentence operating to support and advance the rehabilitation of the young person assumes greater significance, and the benchmark for offending warranting adult imprisonment is higher for young offenders, particularly for a first-time offender.[5]

[5]R v Mills (1998) 4 VR 235

30The third matter that is relevant to your sentence is your mental health and diagnosed schizophrenia. No other psychological or psychiatric material was provided on your plea and there is no evidence before me of any connection between your diagnosed mental health condition and your offending. I am therefore unable to conclude that your declining mental health was causally connected to your offending to operate in mitigation of sentence in accordance with the principles enunciated in Verdins.[6]  However, from the chronology provided by your family, it is clear your offending occurred in the context of your deteriorating mental health leading to your initial psychosis diagnosis.

[6]R v Verdins (2007) 16 VR 269

31During the plea hearing, it was accepted that your declining mental health also occurred against a background of increased cannabis use. You commenced smoking cannabis in 2017, but this became a more substantial issue during lockdown and in the lead up to your offending. At the time of your first hospital admission in 2022, the medical notes reflect a history of ‘mental and behavioural disorder due to harmful cannabis use’ with an ‘unspecified non-organic psychosis’ at that time.[7]

[7]Exhibit 5 – MHARS Summary dated 25 January 2023

32These matters remain relevant in my assessment of your prospects of rehabilitation. You have been on strict conditions of bail, supported by Youth Justice, since 25 November 2021. You have complied with all bail conditions and have not offended since. Importantly, you have complied with the conditions of your Community Treatment Order as to treatment for your diagnosed schizophrenia. You have ongoing support available through the specialist, youth-focused RAPP Team at Monash Health.

33Significantly, your rehabilitation prospects are enhanced by the strong family support provided by your parents and siblings, with whom you continue to reside. In a letter written to the Court for the plea hearing, your parents confirm your compliance with mental health treatment and say that, since this incident, they have seen you focus on positive aspects of life, engaging in family functions and activities, assisting extended family and attending the gym.

34Through Youth Justice, you were referred to the Youth Support and Advocacy Service (YSAS) and have been allocated a case manager, Mr Andrew Smith, to assist you in finding employment through their PIVOT program. In Mr Smith’s letter to the Court dated 19 January 2023, he says you are pro-active in seeking to re-engage in employment. You have also secured assistance in that regard with another community organisation, ‘YConnect’. Most recently, and of your own initiative, you have secured casual employment in a warehouse and are being assisted to obtain your driver’s license to improve your prospects of obtaining another apprenticeship. These are all positive steps in your rehabilitation.

35In the assessment of Youth Justice, you present as a low risk of further offending. Given your strong family support and positive engagement with youth-specific specialist mental health treatment and compliance with strict bail conditions for over 12 months, I accept that assessment and consider you have very strong prospects of rehabilitation. Consequently, the need for the sentence to operate to deter you specifically assumes less significance.

36Ultimately, Mr McGlone submitted that a community correction order (‘CCO’) would meet all relevant sentencing considerations in this case. The prosecution agrees with this submission. Ms Hill, in her considered submissions, acknowledged that a CCO is an appropriate sentencing disposition, particularly giving weight to your youth, your guilty plea, the range of specialist mental health supports available to you in the community, coupled with strong family support. The prosecution accepts that you are a low risk to the community.

37You have been assessed as suitable for a CCO and have consented to the making of the order. I consider such an order will balance all relevant sentencing considerations, whilst promoting and cementing your ongoing rehabilitation. It will however be important to ensure that the conditions of the order also deal with your past cannabis abuse to reduce the risk of any relapse.

Sentence

38Balancing the matters to which I have referred, whilst having regard to the maximum penalty for the offence of armed robbery, on charges 1 and 2 you are convicted and sentenced to an 18-month community correction order, subject to the following conditions:

(a)   That you be supervised for the duration of the order;

(b)   That you undertake 140 hours of unpaid community work;

(c)   That you participate in ongoing mental health assessment treatment; and

(d)   That you be assessed for, and if found suitable, undergo treatment for drug-related issues, particularly for cannabis abuse.

39In order to prioritise your ongoing mental health treatment and for you to receive drug treatment and counselling to prevent any relapse into cannabis abuse, pursuant to s 48A of the Sentencing Act 1991, I direct that 60 hours of any treatment undertaken by you be credited against your outstanding hours of unpaid community work.

40The length of the community correction order I have imposed is designed to maintain your support in the community, thereby enhancing your prospects of rehabilitation and the community protection which will naturally follow. 

41In addition to the conditions that I have imposed, there are standard conditions of the community correction order.  First and foremost, you must not commit any other offences punishable by imprisonment during the life of the 18-month order.  You must report within two working days of today to your nearest community corrections office.  You are required to advise your supervising Corrections officer of any change of your residential or work address and you must do so within two clear working days. 

42It is a term of all community correction orders that you must submit to visits as directed, and you must obey all instructions and directions of your Corrections officer.  You are not able to leave the State of Victoria without the prior permission of your supervising Corrections officer. 

43You should be aware the order can be breached if you do not comply with either the conditions of the order or if you offend whilst it is in place.  If you do, you will return before me for breaching the order.  I may have to re-sentence you on these charges, and I may have to sentence you for breaching the order. 

44Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, the sentence I would otherwise have imposed is a term of 18 months’ imprisonment with a non-parole period of 10 months.

45Finally, I make the disposal and forfeiture order sought by the prosecution, noting they are not opposed.