Director of Public Prosecutions v Sayer

[2018] VCC 279

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-02194

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROWAN SAYER

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JUDGE:	HIS HONOUR JUDGE MISSO
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2018
DATE OF SENTENCE:	15 March 2018
CASE MAY BE CITED AS:	DPP v Sayer
MEDIUM NEUTRAL CITATION:	[2018] VCC 279

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – armed robbery – assaulting a police officer in the execution of his duty – mental impairment.

Legislation Cited:            Crimes Act 1958

Cases Cited:R v Verdins [2007] 16 VR 269

Sentence:Five years' imprisonment becoming eligible for parole after two years and six months. Pursuant to s.6AAA of the Crimes Act 1958 but for the early plea of guilty the sentence imposed would have been six years and six months' imprisonment with a minimum of four years before becoming eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Singh	Solicitor for the Office of Public Prosecutions
For the Accused	Ms K. Churchill	Emma Turnbull Lawyers

HIS HONOUR:

Introduction

1Rowan Sayer, you are before the court to be sentenced for a number of matters which I will set out in chronological order. 

Resentencing

2You were charged with one count of armed robbery and two counts of assaulting a police officer in the execution of his duty.  You pleaded guilty to those charges.

3The charge of armed robbery carries a maximum penalty of 25 years.  The charges of assaulting a police officer in the execution of his duty carries a maximum penalty of five years imprisonment.

4I heard a plea made on your behalf on 27 November 2015.  I sentenced you on 7 December 2015.  My sentencing remarks have been published.  I do not intend to refer to those sentencing remarks in any particular detail.  I convicted you and released you on a community corrections order for a period of three years with a number of conditions which included that you perform 250 hours of unpaid community work.

5You have been charged that without reasonable excuse you failed to comply with the conditions of the community correction order.  You have pleaded guilty to that charge. 

6A report from the relevant case manager reveals that you failed to meet the conditions of the community correction order, and in particular you failed to undertake any of the 250 hours of unpaid community work.      I am driven to describe what I have read in the report as amounting to an almost complete failure to meet the conditions of the community correction order. 

7Therefore, I will cancel the community correction order pursuant to s.83AS(1)(c) and proceed to resentence you for the original charges and for the charge of failure to comply with the conditions of the community correction order.

The present indictment

8You have pleaded guilty to three charges on a further indictment:

·a threat to kill,

·intentionally cause injury, and

·unlawful imprisonment. 

9Each of these charges carries a maximum penalty of ten years' imprisonment. 

Summary of the facts

10You agree that the summary of the prosecution plea opening represents a fair summary of your conduct which led to you facing these charges. I will now set out parts of the summary in order for my sentencing remarks to be properly understood. 

11The victim of your offending is your mother.  It was about 8.30 pm on Thursday 2 March 2017.  You went to the boot of your mother's car in the hope of finding a bottle of wine.  What you did find was a safety plan prepared by a medical practitioner who was concerned for your mother's safety. The safety plan recommended that your mother take the following steps:

·Ensure that her car keys were hidden.

·That all doors at her home were unlocked.

·That she not challenge you.

·That she remove herself from the house and find a safe place, I assume if she felt at risk,.

·That she carry a mobile phone when in the house.

·If she was unable to leave the house to secure herself in a room with a phone, that she call the police from outside the home or from a secured room, I assume if she felt at risk.

·That she carry a personal safety alarm.

12You became overwhelmed by what you read.  You obtained a knife and entered your mother's bedroom.  You accused her of not trusting you and betraying you by speaking to medical staff at the Austin Hospital where you were being treated.

13Your confrontation with your mother escalated:

·You pulled at her hair to see if she was carrying a monitor.

·You pulled the phone out of the wall.

·      You demanded your mother hand over her phone.

·      You leant over her and placed the knife against her throat. You ran it back and forth across her throat while blaming her for introducing you to the persons who allegedly raped you when you were a boy. You told her she was going to, and I quote, "Pay for it". 

·      You told her that she was going to die at your hands. 

·You then assaulted her savagely.  You pushed her down on the bed, you placed an arm across her throat, you struck her to the right side of her face.  You placed both hands around her neck and applied pressure to the extent that she could not breathe.  She thinks she passed out.

·You demanded your mother's car keys because you wanted to drive somewhere to obtain alcohol. 

·You dragged your mother downstairs by the hair, into the lounge room and you again told her that she was going to die while repeatedly holding the knife close to her throat.

·You had your mother drive you to three different bottle shops, all of which were closed.  You obtained fast food on the way home and while in the car you repeatedly poked the knife into one of her arms and into her face, accusing her that her slow driving was undertaken to attract the notice of police.

·When you arrived at your mother's home you told her that you were going to slit the cat's throat in front of her to demonstrate what it is to suffer. 

·You got out of the car.  It was shortly after that that she was able to escape.  She quickly drove off and went to a police station.

14The police attended your mother's home at around 11.45 am on 3 March 2017.  You eventually surrendered yourself to them.  You were taken to a police station where you were interviewed.  Although you made no comment in relation to the allegations that were put to you, you pleaded guilty to these charges at an early point in time.

The victim impact statement

15Your mother made a victim impact statement.  It is short but it expresses sadness for you and an undying mother's love for you. Despite the utterly terrifying experience and belief that she was facing her certain death at your hands.  She was present in court to provide you with support. She has also made serious efforts to try to contact you while you have been remanded in custody.  It is unfortunate to say the least that the authority responsible for your custody has refused to allow her to have contact with you.

16Your mother's victim impact statement refers to the serious impact it has had upon her physical health and I do not doubt her mental health.  She is unable to return to work which has exposed her to significant financial loss which has dramatically impacted upon her life, as one can easily imagine it would.

17I have looked at photographs of your mother which demonstrate severe bruising over the right side of your mother's face, the right side of her chest, her right upper arm, her left upper arm and her right lower leg.  Most of the bruising is a blackish blue demonstrating the force that must have been applied by you when you assaulted her.

The medical evidence

18I will briefly return to my earlier sentencing remarks to note that in paragraphs 34 to 49 I summarised the following evidence tendered on your plea:

·A report of the Austin Hospital dated 3 June 2015;

·A report of Associate Professor Carol, consultant psychiatrist, dated 18 August 2015;

·A report of Dr Brewer, consultant neuropsychologist, dated October 2015; and

·A report of Mr Simmons, psychologist, dated April 2015.

19In summary, it was the opinion of the providers of those reports that your history demonstrated that you had a chronic psychotic illness most likely best diagnosed as a schizoaffective disorder, serious substance abuse, including alcohol and illicit drugs and cognitive functioning consistent with a diagnosis of an acquired brain injury. Additionally it was considered that you had become dependent on alcohol and illicit drugs. 

20Counsel who represented you then persuaded me that I should apply a well-known authority of R v Verdins [2007] 16 VR 269. I was satisfied that you met each of the principles referred to by the Court of Appeal and it was that level of satisfaction that led me to sentence you by release on a community correction order. It was in all respects very lenient and designed to allow you to retain your liberty and see to your rehabilitation. It did not work.

21I will now turn to the medical reports you rely upon on this occasion.  Your counsel referred me to each of the reports which were tendered when I sentenced you.  Counsel then tendered the following additional medical reports, those of Dr Best, psychiatrist, dated 7 April 2017 and 25 November 2017.

22Dr Best obtained an extensive and complete history of your psychiatric problems.  She noted the previous diagnoses made of your psychiatric state of schizophrenia, borderline personality disorder, post-traumatic stress disorder and she added that she considers that you have an alcohol abuse disorder, a substance abuse disorder and you have an acquired brain injury which is secondary to your chronic psychosis and illicit drug use.

23You are currently on remand.  You are being treated under a regime of medication which appears to have brought you some stability and that is confirmed by Dr Best.  However, Dr Best considered that you would benefit from psycho-therapeutic treatment as well.

Sentencing submission

24Your counsel, in a very well structured and helpful written outline, submitted that you continue to satisfy each of the principles referred to in Verdins.  I unhesitatingly agree.  I do not want to unnecessarily repeat what I said when I sentenced you previously, but the extent of the ameliorating effect of the application of those principles was referred to by me in paragraphs 74 to 80. I should add that I am fortified in reaching the same conclusions because there is an additional diagnosis of an alcohol abuse disorder and a substance abuse disorder which adds to the complexity and seriousness of your psychiatric problems.

The sentence

Prior convictions

25You have a prior conviction relevant to the armed robbery charge of recklessly cause serious injury.  It was an assault on your mother which resulted in a bone injury to an arm.  You were dealt with in the Magistrates' Court on 2 October 2002.  You were released on a community based order for 12 months.

26The prior conviction in 2002 and the armed robbery and associated charges are relevant prior convictions to my sentencing of you on the charges of threat to kill, intentionally cause injury and unlawful imprisonment.

Armed robbery and others

27I will now turn to the armed robbery and the associated offences. 

28I remind you of what I said when I sentenced you.  The armed robbery was a frightening experience for your victims.  It had a serious effect upon the owner of the pizza restaurant.  Your target was undoubtedly a soft target.

29I accept that your moral culpability was reduced and that you were not a proper vehicle for a stern expression of the sentencing principles that would ordinarily be attracted by this level of criminal conduct.  Nonetheless, you are deserving of a sentence which emphasises specific deterrence, general deterrence, just punishment and denunciation of your criminal conduct.

Other charges

30I will now turn to the threat to kill, intentionally cause injury and unlawful imprisonment. 

31I accept that your behaviour after you discovered the safety plan in the boot of your mother's car appears to be consistent with bizarre behaviour and probably consistent with your tendency for psychotic episodes.

32Similarly, to my observations that I have already made about the sentencing purposes relevant to the armed robbery I accept that they apply equally to these charges.  However, because of your prior convictions relevant to the charges of threat to kill, intentionally cause injury and unlawful imprisonment there is another sentencing purpose which must be weighed into consideration and that is protection of the community. In that respect it is important to note that the target of your assault in 2002 was your mother.  She became your target again.  Her apprehension of you, if not fear of you, resulted in her obtaining the safety plan. 

33It is so very obvious that when you are non-compliant with your medication that you are at risk of falling into a pattern of behaviour resulting in serious criminal conduct of the very kind to which you are now before the Court.

34The threat to kill began not long after you entered your mother's bedroom and produced the knife, and from that time until your mother was able to escape the threat to kill persisted.  To describe it as terrifying is not to emphasise its gravity enough.

35The assault you occasioned on your mother with her in a prone position on the bed producing a knife, threatening to use it and then punching your mother repeatedly exposed her to the very real risk of lasting physical harm.  She is fortunate that she has not been left with any particular lasting physical harm.

36The false imprisonment is of itself a very serious offence.  Depriving your mother of her liberty by force must have added to the terror that she had experienced.  

37However, the false imprisonment must be considered as having common features with the other offences and I have taken that into account.

The sentence

38I have dealt sufficiently with your psychiatric history and the extent to which it ameliorates the relevant sentencing purposes.  I accept that you are remorseful.  I accept that you have reflected on the harm that you have caused your mother and have a sensible plan to establish a stable life and hopefully resume an at least decent relationship with your loving mother. It is clear enough to me that if you do not comply with your medication then the risk of you reoffending increases.  It is a difficult matter for me to calculate but at least I think it is fair to say that your prospects of rehabilitation must be described as guarded.

39I have paid due regard to the plea made on your behalf by your counsel and to the factors which I consider are relevant in sentencing you.  The sentence I now impose on you is proportionate to the gravity of your offending in the light of the objective circumstances of its occurrence.

40I now want you to stand. I will now sentence you in the following way:

·    On the count of armed robbery you are sentenced to two years and six months' imprisonment.  This is the head sentence. 

·    On each count of assaulting a police officer in the execution of his duty you are sentenced to three months' imprisonment to be served concurrently with the head sentence.

·    On the count of failure to comply with the conditions of the community correction order you are sentenced to one month's imprisonment to be served concurrently with the head sentence. 

·    On the count of threat to kill you are sentenced to two years' imprisonment with one year to be served cumulatively with the head sentence.

·    On the count of intentionally cause injury you are sentenced to 18 months' imprisonment with one year to be served cumulatively with the head sentence. 

·    On the count of false imprisonment you are sentenced to 12 months' imprisonment with six months to be served cumulatively with the head sentence.

41You are therefore sentenced to five years' imprisonment.  I will fix a minimum term before you will become eligible for parole of two years and six months.  I accept your counsel's submission that by reason of your psychiatric state that a longer parole period is called for, for the purpose of ensuring that you are given the benefit of an extended period of supervision in the hope that it will aid you in stabilising your condition and your attitude to remaining on medication.

42You were initially remanded in custody for 28 days relevant to the earlier charges and 377 days relevant to the later charges including today, making a total presentence detention of 406 days including today.  I order that the time spent in presentence detention be reckoned as part of the sentence.  I will have that noted in the records of the court.

43Pursuant to s.6AAA of the Crimes Act 1958 that if it had not been for your early plea of guilty I would have sentenced you to six years and six months' imprisonment with a minimum of four years before you would become eligible for parole. You can now be seated. Mr Singh, do you have the application for forfeiture of the pocket knife because I ‑ ‑ ‑

44MR SINGH:  Your Honour, I believe that has been eLodged.

45HIS HONOUR:  Ms Churchill, do you have anything to say about this?

46MS CHURCHILL:  No, Your Honour.

47HIS HONOUR:  I will now make that order.

48MR SINGH:  If Your Honour pleases.

49HIS HONOUR:  You can remove Mr Sayer, thank you.  Unless there is anything else I will now adjourn the court.

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