Director of Public Prosecutions v Sayer
[2015] VCC 1784
•7 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR 15-01045
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROWAN SAYER |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 November 2015 |
| DATE OF SENTENCE: | 7 December 2015 |
| CASE MAY BE CITED AS: | DPP v Sayer |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1784 |
REASONS FOR SENTENCE
---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; Boulton v The Queen [2014] VSCA 342.
Sentence:Community Corrections Order for a period of 3 years – 250 hours of unpaid community work; supervision; treatment and rehabilitation; judicial monitoring.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Pezzimenti | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr A. Lewin | Turnbull Lawyers |
HIS HONOUR:
1Rowan Sayer, you have been charged with one count of armed robbery contrary to s.75a of the Crimes Act 1958, which carries a maximum term of imprisonment of 25 years' and two counts of assaulting a police officer in the execution of his duty contrary to s.31 carrying a maximum penalty of five years' imprisonment.
2You agree that the summary of the prosecution opening represents a fair summary of your conduct which led you to being charged with armed robbery.
3I will now set out parts of the summary in order for my sentencing remarks to be properly understood. On 19 March 2015 you were in company with two friends. Your car ran out of petrol. You attempted to obtain some petrol from an acquaintance but were unsuccessful. You returned to your car.
4You became enraged and grabbed a crowbar and a Bart Simpson mask form the car. Your two friends fled because of their apparent concern about what you intended to do. You entered a pizza restaurant nearby. You were wearing the Bart Simpson and you were carrying the crowbar.
5You confronted the owner and three employees and said, "I need money, I need food. My kids haven't eaten in four days". You demanded money and food. You demanded that the owner and the three employees get down on their knees. They complied, no doubt, in fear of you.
6Another employee was in the kitchen. He emerged from the kitchen carrying a frypan. He grabbed you by the arm while holding the frypan above your head. He told you to get out of the restaurant.
7After some pushing and shoving you placed one of your hands at the top of your pants and intimated to that employee that you were reaching for a gun. You threatened that you would shoot him. He dropped the frypan, crouched down, and put his hands up.
8You pointed to the owner and demanded that she give you some money. She went to the till, removed $500, and gave it to you. One of the other employees told you that there was parts at the back of the restaurant which he would get for you. That is what he did.
9It was around that time that you said to the owner and the four employees, "I'm so sorry. I'm normally a good guy but I just wanted to feed my kids".
10One of the employees led you to believe that he would get you some more food. He ran out of the restaurant. He approached a member of the public asking him to telephone the police.
11Unbeknown to you another member of the public heard screaming coming from the restaurant. He observed you and the others in the restaurant. He observed you reaching into the band of your pants as if you were going to pull out a gun. He telephoned the police immediately.
12You went to the restaurant at about 10.10 pm and left at about 10.14 pm. As you left you warned the owner and the employees not to call the police or you would return. You threatened them further by telling them that you were member of the Hells Angels bikie gang.
13The member of the public who telephoned the police watched you after you left the restaurant. He followed you in his car. When First Constable Bromley and Constable Worrall arrived he pointed you out to them.
14The police officers approached you. You again put your hand behind your back and into the back of your pants. The police officers believed that you were in possession of a gun. They demanded that you put your hands on your head and that you lie on the ground.
15You responded aggressively and said, "no. I'm going to shoot you". You reached behind your back as if you were going to remove something from your pants and you then said, "shoot me or I'm going to shoot you".
16The police officers believed that you were about to draw a gun. They drew their guns. They challenged you by demanding that you not move and that you place your hands on your head and get onto the ground. You refused and you continued to threaten them.
17The police officers attempted to subdue you by using OC foam. The threat that you apparently posed required the attendance of a canine squad, the critical incident response team and a police helicopter. The area had to be cordoned off.
18The information conveyed to the police on the ground by the police officers in the helicopter was that there was a heat source in your hand behind your back. No doubt the police officers thought it was a gun.
19You were eventually subdued by the use of a police dog. You were taken to the Austin Hospital for treatment because you were complaining about the effects of the AC spray and minor injuries to one of your legs resulting from an attack by a police dog.
20After you were discharged from the Austin Hospital you were taken to a police station where a video recorded interview was conducted. You made full admissions. In the course of the record of interview you made a number of relevant statements to your plea. You had a mental snap. You had not been, "right in the head lately". You were frustrated because you had no money. You were hungry. You had gone off your medication and you had drunk too much alcohol. You were otherwise cooperative in every sense.
21You were remanded in custody from 19 March 2015. You were granted bail on 15 April 2015. You have spent 28 days' in pre-sentence custody. The owner of the restaurant made a victim impact statement. It is understandable that being confronted by a masked armed robber brandishing a crowbar and threatening to draw a firearm must have been terrifying.
22The pregnant threat of being subjected to violence at your hands cannot be underestimated. She is now very vigilant when at the restaurant on her own particularly at night when she closes the restaurant because of the fear that someone is watching her.
23She is suspicious of customers because of a fear that they might engage in conduct like your conduct. She ruminates over the events of that night. About what would have happened if her children were with her. It is thoughts like that which have resulted in her shaking and experiencing fear. She has suffered highs and lows and her mood is on edge and very fidgety and sometimes jumps if she has not seen someone coming into the restaurant who she then sees.
24Events of that kind cause her to shake with the need to take time to calm herself down. Neither of the police officers made a victim impact statement but it is inevitable that the confrontation with you and the prospect of you drawing a gun must have put them in some fear for their own safety and how they might have to react if you did draw a gun.
25Furthermore, the other staff employed at the restaurant have not provided victim impact statements. I think it is inevitable that they were terrified by your conduct. You not only brandished a crowbar in a threatening but you led them to believe that you were armed with a gun.
26You led them to believe that you would use the gun if they resisted your demands and let me remind you there were four of them and the owner of the restaurant kneeling on the ground at your mercy.
27You were born on 15 May 1981. You are now 34 years' of age. You are a single man. You are presently living in a boarding house accommodation. Your mother provided a reference dated 26 November 2015 which I received by email after the completion of the plea made by your counsel. A copy was provided to the prosecution and with one or two exceptions it has consented to have been tendered on the plea.
28You were the subject of serious sexual assaults when you were eight years of age, when you were nine years of age, and between the ages of 17 and 20 years of age. Your mother believes that those events have contributed significantly to your psychiatric condition.
29You were educated at a private school from a preparatory level to Year 11. You made a decision to leave school at that time because you wanted to spend time with your father who was then terminally ill with cancer. He died in February 1999. It was a traumatic event for you.
30You worked at an antique shop when you were 17 years of age. You worked there until you were about 24 years of age. It was the proprietor of the antique who sexually assaulted you when you were between 17 and 20 years of age.
31It would appear that you lived away from your family home from when you were about 17 years of age. You returned to the family home to live when you were about 24 years of age.
32You then engaged in a course of study at RMIT in property and real estate. You then worked for two antique shops until it would appear that your psychiatric condition overpowered you.
33Ms Hines Burke, a family friend, provided a reference dated 25 November 2015. She has recounted a part of your history when you were just a boy of the breakup of your parents' marriage and the lengthy and bitter divorce proceeding which followed. To her observation it was that together with the loss of your father which has had a profound effect on you as well as an impact on your psychiatric condition.
34I was referred to a number of a medical reports by your counsel. The first was a report of a consultant psychiatrist with Austin Health dated 3 June 2015. The report discloses that you have a long standing history of psychiatric illness. It may go back as far as January 2002 when you suffered carbon monoxide poisoning apparently. I am unable to determine whether it was a suicide attempt but whether it was or not you were treated at the northern hospital.
35Your first major admission was in August 2009. You had a psychotic episode which was diagnosed as a major depressive episode with psychotic features. The report demonstrates that the condition of major depression with psychotic features has persisted although most recent views of you in May 2015 demonstrated no psychotic phenomena.
36One of the features of your presentation on the occasions that you presented to Austin Health and to its acute psychiatric unit are episodes consistent with self-harm suicidal intent and a significant abuse of illicit drugs and alcohol.
37The history of your use of alcohol is staggering with you consuming up to 30 standard drinks in a session. As well as your abuse of opiates, cocaine, cannabis, chemical inhalants, and the excessive of benzodiazepines over and above what was prescribed.
38The most recent diagnosis of you is that you have features of schizophrenia, post-traumatic stress disorder related to the sexual assaults which were occasioned on you, major depressive disorder with psychosis and anxiety as well as a substance abuse disorder.
39You have also been diagnosed as having a borderline personality disorder with a history consistent with mixed Cluster B personality disorder. Your psychiatric condition has been described as a sever recurrent illness.
40When you are compliant with your medication regime your psychotic and depressive symptoms are better controlled. Your prospects of a sustained recovery is linked to your abstinence from illicit drugs and also alcohol.
41You were assessed by Associate Professor Carroll, consultant psychiatrist, on 18 August 2015. He was provided with a number of reports including the report of Austin Health. After examining you and reviewing the history of your psychiatric condition he concluded that you suffer from a chronic psychotic illness which is most likely best diagnosed as a schizoaffective disorder.
42He considered at the time he examined that you are moderately depressed and are suffering from ongoing mild psychotic symptoms that appear to be affecting your general functioning. He thought that you were suffering also from acquired brain injury.
43Although the report of Austin Health referred to your abuse of illicit drugs and alcohol you appear to have denied your use of some of those substances when you were examined by Associate Professor Carroll but you admitted to the use of other illicit drugs.
44You were referred to Dr Brewer, consultant neuropsychologist who examined you on 21 October 2015. He obtained a long history of events in your life which he appears to have considered to be relevant to the development of your psychiatric condition.
45After having you undergo a number of tests he found impairment across a number of aspects of general cognitive functioning. He concluded that you were suffering from a significant decline in cognitive functioning which met the criteria for a diagnosis of an acquired brain injury.
46The last report is from Mr Simmons, psychologist, who examined you on 2 and 10 April 2015. He obtained similar history, as did the other examiners, relevant to the development of your psychiatric condition. I have not found the opinion of Mr Simmons to be all that useful. I prefer and will rely upon the other reports.
47My overall impression is that you have a longstanding psychiatric condition which is probably severe and which requires appropriate medication for you to remain in control over that condition.
48You have not always been compliant with your medication regime and it would appear that when you have been non-compliant that your condition has been fully controlled resulting in serious levels of deterioration in your psychiatric condition.
49What also emerges from the history is that you have abused illicit drugs and alcohol and are now probably dependent on them. It would appear that you have made attempts in more recent times to abstain from the abuse of illicit drugs.
50You were assessed by a case manager with the Court Integrated Services Program on 8 April 2015. She provided a report dated 9 June 2015. It was through that program and the case manager that boarding house accommodation was found for you.
51It is noteworthy that you attended drug and alcohol counselling in April and May 2015. Your attendance dropped off which the case manager attributed to your non-compliance of your medication. Once you resumed taking your medication you appeared to be functioning relatively normally from her point of view.
52Your counsel submitted that I should release you on a community corrections order with a number of conditions. He referred me to all of the background matters which I have set out already. In addition he referred me to the R v Verdins [2007] 16 VR 269.
53Your counsel referred me to Verdins because he submitted I should moderate the sentence I would otherwise impose on you by applying the sentencing principles in that case.
54Verdins requires me to direct my attention to how your psychiatric condition is likely to have affected your mental functioning at the time of your offending and the lead up to it and is likely to affect you in the future.
55The evidence of Austin Health, Associate Professor Carroll and Mr Brewer leave me in no doubt that you have a major psychiatric condition and an acquired brain injury which have resulted in a serious impact of your mental functioning.
56That is abundantly clear from the account given in the report of Austin Health of the admissions to the acute psychiatric unit of its hospital between August 2009 and August 2002 on p.2 of that report.
57The Court Of Appeal summarised six principles which are relevant to sentencing an offender with your psychiatric condition. Before turning directly to each of those principles I need to resolve a factual dispute and that is whether your moral culpability relevant your offending if reduced by the contribution made to that offending by your psychiatric condition.
58Your counsel submitted that at the time when you armed yourself with a crowbar and disguised yourself with the Bart Simpson face mask that you were likely to have been labouring under the adverse consequences of your psychiatric condition. The prosecutor submitted that it was less likely to be so for reason which I will outline shortly.
59Your behaviour when you and your two friends discovered that you could not secure to re-fuel your car was unusual to say the least. You described a moment when you had a mental snap. There was nothing in your conduct up to that point which suggested that you had planned to undertake an armed robbery. I accept that you did have a mental snap.
60I find that it is likely that it was your psychiatric condition which caused the mental snap and led to behave in what I have so far described as an unusual matter, if not a bizarre matter.
61Informing the owner of the restaurant and her staff that you had four children and had not eaten for four days and describing yourself as "normally a good a guy" and that your motive was a desire to feed your children was either an attempt to justify what you were doing when in fact you were simply undertaking an armed robbery or was consistent with you delusion behaviour referred to in the report of Austin Health.
62I should add at this point as far as I am aware you are not married and do not have any children. The admissions referred to in the report of Austin Health demonstrate that you had expressed suicidal intent on at least two occasions, have admitted to committing serious crimes when you have not and in one instance you were described as having persecutory delusions when you were admitted to its hospital on 19 February 2014.
63Some of the admissions and what is contained in the history in the report of Austin Health point to your being non-compliant with medication and abusing illicit drugs in association then with a deterioration in your psychiatric condition.
64In the days preceding the armed robbery you had been non-compliant with your medication. You admitted in the record of interview that you had been consuming too much alcohol which was one of the substances which is mentioned in the medical histories as being a root cause of your inability to manage your psychiatric condition.
65The author of the report of Austin Health was asked whether the armed robbery was contributed to by your psychiatric condition. It is clear that the author was careful in giving at answer to be that your psychiatric condition may have contributed to some extent to your offending but what was emphasised was your drug and alcohol use as having played an important role in that offending.
66Furthermore, the author was not able to categorically state that you were no labouring under psychotic symptoms at the time of your offending and the other also observed that symptoms can fluctuate in the context of substance abuse.
67You told Associate Professor Carroll at the time of your offending you were severely intoxicated with methamphetamine and alcohol. On the basis of that history he considered that you would have been consequently disinhibited with impaired judgment due to substance intoxication which was a primary cause of your offending.
68The prosecution submitted that you were taken by the arresting police officers to a hospital to have treatment for an eye condition resulting from the introduction of OC spray into that eye.
69You made no complaint of any psychiatric symptoms at that time and were not observed by the treating medical practitioner at the hospital giving evidence of any apparent psychiatric symptoms.
70It was on that basis that it was submitted that it was therefore unlikely that your psychiatric condition contributed to your offending. However, you were taken there for the limited purpose of treatment for an eye injury and you were in custody.
71It would appear that no effort was made to have you assessed to determine whether there were other factors which led to your offending.
72I think it is likely that in fact your psychiatric condition did contribute to your offending. Your behaviour appears to have been consistent with the bizarre, irrational, and impulsive behaviour referred to in the histories contained in the report of Austin Health and Associate Professor Carroll.
73The finding I have made leads me to conclude that you satisfy the first principle referred to in Verdins. That is that your moral culpability in offending and the way you did is to be reduced by the extent to which your psychiatric condition contributed to your offending.
74I am also satisfied that you satisfy each of the other five principles referred to in Verdins. I will deal with them in the sequence in which they were set out by the Court Of Appeal.
75Next, your psychiatric condition must have a bearing on the kind of sentence that I must impose on you and the conditions attaching to the service of that sentence. In particular, you need treatment of what I think is a high level of supervision over your regime of medication and that you are compliant with any accompanying treatment such as counselling to limit the prospect of you falling back into the worst results of a deterioration in your psychiatric condition.
76A sentence for armed robbery must be stern. Particularly where the subject of the armed robbery is a soft target. It must have strong elements of specific deterrence and general deterrence.
77In your case I am not necessarily satisfied that specific deterrence and general deterrence should be eliminated from consideration but I am satisfied that they should each be given much reduced emphasis.
78The fact that I have made a finding that you have a psychiatric condition which is severe and that had contributed to your offending leads me conclude that the nature and severity of the symptoms of your psychiatric condition means that specific deterrence has lesser place in constructing a just sentence in your case.
79For the same reasons I think you are not a proper vehicle for stern expression of general deterrence. The author of the report of Austin Health and Associate Professor Carroll have both concluded that you are suffering from a severe recurrent psychiatric condition.
80Associate Professor Carroll and Mr Brewer believe that you are at significant risk of self-harm if you are imprisoned. It is evident that you have self-harmed in the past. The existence of your psychiatric condition and its dramatic impact upon your functioning leads me to conclude that a sentence of imprisonment will weigh very heavily on you and certainly more than a person in normal health and that it will have a significant adverse effect on the state of your mental health.
81In the course of synthesising the conventional sentencing considerations and the context of your personal circumstances and your psychiatric condition I have concluded that I should not sentence you to an immediate term of imprisonment.
82In arriving at that conclusion I have taken into account your early plea of guilty. What I consider to be genuine expressions of remorse made at the time you were interviewed by the police and subsequently and your prospects of rehabilitation, which I consider to be guarded but perhaps moderate.
83You have only one prior conviction. It was an assault on your mother which resulted in her bone injuries to an arm. You were dealt with in the Magistrates Court on 2 October 2002 on one count of recklessly cause serious injury and you were released on a community based order for 12 months' with a number of conditions. You had been as suitable to be released on a community corrections order with conditions.
84Although I have described your prospects of rehabilitation as perhaps being moderate my estimate of those prospects is based up what I have read in the report of Austin Health that compliance with a regime of medical treatment has seen your psychiatric condition brought under control and I infer that when it is under control that your behaviour is likewise controlled.
85However, I am cognisant of the fact that you have been charged with dangerous driving. It also sounds to me as more evidence of bizarre, irrational, and impulsive behaviour. You drove a car up to the glass door of a police station in January 2015. The description given to me was rather vague but I gather that you had caused some damage as a result of your driving.
86I do recognise that subsequent conduct may impinge upon a view about the prospects of rehabilitation but it needs to be put into some context given what I know of your psychiatric condition and how you have behaved when it is in a state of deterioration.
87In my view efforts should have been made to have that charge brought before me so that I could have dealt with you under one order.
88Since Boulton v The Queen [2014] VSCA 342 the sentencing landscape has no doubt changed significantly. The Court Of Appeal considered that a community corrections order is intrinsically punitive and depending upon the conditions imposed is capable of being highly punitive.
89A community corrections order can meet all of the purpose of a just sentence proportionate to the gravity of the crime when considered in the light of its objective circumstances and I would now ask you stand.
90On the count of armed robbery and the two counts of assaulting a police officer in the execution of his duty I will release you on a community corrections order for a period of three years'.
91The community corrections order will be subject to the following conditions and I want you to listen to this very carefully, that you be supervised, monitored, and managed as directed by the secretary to the Department of Justice.
92That you return to Austin Health within 14 days' of the making of this order and that you submit to any reasonable treatment regime to manage your psychiatric condition.
93That you enter into a treatment plan in accordance with the advice given to you relevant to the management of your psychiatric condition and you otherwise submit to any other reasonable medical treatment that you are advised to undergo in the management of that psychiatric condition.
94That you have any appropriate assessment and treatment for drug abuse or dependency. That you have any appropriate assessment and treatment for alcohol abuse or dependency.
95That you have any appropriate assessment at a residential facility if you are advised to do so for withdrawal from or rehabilitation for drug abuse or dependency and alcohol abuse or dependency.
96In addition to the last mentioned conditions you otherwise have any appropriate mental health assessment and treatment that may include psychological, neuropsychological, psychiatric, or treatment in a hospital or residential facility.
97That you attend any appropriate programs that address factors relating to your offending behaviour. That you undertake 250 of unpaid community work. That you be subject to judicial monitoring by the court.
98You must appear before me at 9.30 am on Friday 1 July 2016. You must provide to me evidence that you have complied with each of the conditions referred to above. I must now inform you of the other conditions which attach to a community corrections order. You must also listen to this very carefully.
99In addition to the conditions I have specifically imposed you must abide by the terms that apply to all community corrections orders. These are that you must not commit any other offences during the three year period the order is enforced being any offence for which you could be imprisoned even if a court would not choose to impose imprisonment.
100You must report to and receive visits from a community corrections order. You must report to the community corrections centre at Box Hill Community Correctional Services within two clear working days' of release.
101Also, you must not leave Victoria without first getting permission from a community corrections officer and you must inform the community corrections office of any change of address where you live or work within 48 hours of that occurring.
102Finally, you must obey all lawful instructions from and directions of community corrections officers. Do you understand the conditions I have imposed and the general terms that apply?
103OFFENDER: Yes, Your Honour.
104HIS HONOUR: Before you consent to the making of such an order you must understand that the contravention of any condition attached to the community corrections order except for a contravention of a direction by the secretary is itself an offence punishable by three months' imprisonment.
105Contravention of community corrections order also carries with it the prospect that you will be brought back before me and re-sentenced for the original offences. Do you consent in those circumstances to the imposition of such an order?
106OFFENDER: Yes, Your Honour.
107HIS HONOUR: You can sit down. Hold on, please. If it had not been for your early plea of guilty I would have sentenced you to 18 months' imprisonment with a community corrections order on the same terms except that I would not have imposed a condition of community work.
108Mr Latham you can now hand that to Mr Lewin. And, Mr Lewin, you can approach Mr Sayer and speak to him, please. While that is being done I will now make all of the other orders sought by the prosecution.
109MS PEZZIMENTI: Your Honour, the only order sought is a disposal order in relation to the crowbar and the mask.
110HIS HONOUR: Did you give that to me?
111MS PEZZIMENTI: I did on the last occasion, Your Honour.
112HIS HONOUR: No.
113MS PEZZIMENTI: I don't think I've got any updated ones.
114HIS HONOUR: Well, someone is ahead of me, Ms Pezzimenti. I have got it. I have signed it. You can now have it.
115MS PEZZIMENTI: Excellent. Thank you, Your Honour.
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