Director of Public Prosecutions v Scott

[2024] VCC 1464

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22 01815

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMMI SCOTT

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 September 2024
DATE OF SENTENCE:	17 September 2024
CASE MAY BE CITED AS:	DPP v Scott
MEDIUM NEUTRAL CITATION:	[2024] VCC 1464

REASONS FOR SENTENCE

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Subject:  Criminal Sentence

Catchwords:  Mental Health, Armed Robbery

Legislation Cited:   Sentencing Act 1991 (Vic), Mental Health Act 2014 (Vic)

Cases Cited:   R v Renzella [1997] 2 VR 88,

Sentence:   Community Corrections Order, Time served

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr F. Cameron	Office of Public Prosecutions
For the Accused	Ms A. Brennan

HIS HONOUR:

Introduction

1Mr Scott, after a short trial on 22 February this year you were found guilty of one charge of armed robbery, with a maximum penalty of 25 years' imprisonment.

2I am required to sentence you in accordance with the jury verdict. After the verdict, the matter was adjourned for plea on 16 May 2024. Subsequently, on
8 April 2024, the plea was adjourned to 16 September to obtain a psychiatric report.

Circumstances of the offence

3The complainant in this matter was an employee of a 7-Eleven store located on Fitzroy Street, St Kilda. The full circumstances of the offending are set out in the prosecution opening, which I have exhibited, and which was mirrored in the evidence at the trial.

4The evidence at the trial also consisted of evidence of the CCTV footage which showed the robbery being executed.

5You were leading an itinerant existence in St Kilda at the time in April 2022 and had been a previous customer at the store. At approximately 3:49 am on
26 April 2022 you met with the principal offender and an unidentified person near the intersection of Grey and Fitzroy Streets, St Kilda. The group then moved to the 7‑Eleven store.

6Subsequently, the principal offender was seen, along with the other identified person, looking through the window of the store at the attendant who had closed the store for cleaning. Those two persons then went to a nearby laneway and exchanged jumpers. Subsequently, the principal offender had knocked on the front door of the store but was advised that it was closed.

7A short time later a female customer with a dog approached the store and the attendant unlocked the front door to allow the female to enter.

8You observed the store door being opened and you and the principal offender entered the store and loitered near the rear of the store. You went to the Slurpee machine, and the principal offender followed the female in the queue at the counter.

9After the female left the store, you stood behind the principal offender as he went to the counter.  The principal offender then pulled out a silver handgun pointing it at the complainant and instructed him not to press the duress button, or move his hands, and not touch anything. He demanded the till including the $50 notes and two boxes of cigarettes. He was told 'make it quick'.

10During this interaction the principal offender pulled the slide of the handgun causing it to make a clicking sound. You were standing near the newspaper stand near the front door at this stage and you said to the complainant 'do as he says, you're the best,' before moving towards the exit looking through a newspaper while standing at the exit doorway.

11The attendant opened the register and gave the principal offender a number of $20 and $5 notes from the till and also handed him two cartons of cigarettes valued at $774.50.

12The principal offender exited the store with the cash and cigarettes followed by you, still holding the Slurpee that you had poured without attempting to pay for it. The two of you joined the unidentified person and the three of you turned into Jackson Street.

13At that point the attendant locked the door and activated the duress alarm and called Triple 0. CCTV footage shows the three of you walking down Jackson Street before you separated from the other two offenders, who walked in a south-westerly direction while you walked in a north easterly direction.

14Police arrived at about 6:35 am along with the assistant manager who then proceeded to review the CCTV footage.

15While the Assistant Manager was reviewing the footage, he identified you. He looked outside and at that point you were walking past the store, on the footpath. The police then arrested you. You were wearing some of the same clothes that you were wearing on the earlier CCTV footage.

16Subsequently, you were conveyed to the St Kilda police station. Investigators believe that you were affected by drugs and/or alcohol due to your erratic movement and incoherent speech. An opinion was obtained from the Institute of Forensic Medicine and you were found to be unfit to be interviewed by the police. You were remanded in custody and released on bail some months later.

17During the trial, CCTV footage was shown proving that you attended at that store at 3 am on that morning and purchased a coffee before leaving the store.

18The principal offender has not been identified nor has the third individual, who you and the principal offender met both before and after the robbery. It appears that you did not receive anything from the proceeds of the offence.

Assessing the seriousness of the offence

19No victim impact statement was filed by the complainant. It is clear from his evidence at the trial however, that the offending has had a significant impact on him, not surprisingly.

20You are charged as being complicit in the offence.  Your defence at the trial, which must have been rejected by the jury, was that you were unaware that the principal offender was in possession of a firearm and intended to use it in the course of an armed robbery.

21Having observed in the CCT footage the principal offender and the unidentified male, it is clear that the offending did not involve significant pre-planning and that your role was essentially to provide support and assistance to the principal offender.

22Further, unlike the principal offender, there was no attempt by you to avoid being identified, and while you instructed the attendant to comply with the demands of the principal offender, there was no violence or threats issued.  Further, as submitted on the plea, you could not have been involved in procuring the firearm.

23Considering the matter overall, and excluding your mental condition at the time, on an objective basis, your role in this offending can be properly characterised as below the mid-range of seriousness.

Prior convictions

24At the time of this offending you were just shy of being aged 26. You are now aged 28. Your criminal record is limited.

25On 17 November 2020, on a number of charges, including criminal damage, making a threat to kill, unlawful assault, threat to damage property, reckless conduct endangering serious injury, committing an indictable offence on bail, theft from a shop, using a drug of dependence, possessing a prohibited weapon without exemption, and a charge of possessing a drug of dependence being a prescription drug, you were placed, without conviction, on an adjourned undertaking for 12 months and directed to continue to engage in counselling with Headspace.

26Your next appearance was on 29 April 2021, where, on charges of intentionally damaging property, committing an indictable offence on bail, failing to comply with a direction, an indecent or obscene drawing in a public place, the matter was adjourned, without conviction, until 29 April 2022, directing that you continue to engage with Headspace.

27On 26 Fabry 2022 on charges of retention of stolen goods, stating a false name, committing an indictable offence whilst on bail and contravening a conduct condition of bail, with conviction you were fined $300.

28an aggravating feature of this offending is that it was committed while you were still under the adjournment imposed on 29 April 2021.

29Your prior criminal record however shows a late entry into the criminal justice system and it is clear from the dispositions that you require mental health assistance.

Your personal circumstances

30Your personal circumstances are set out in the plea submissions and also in the report of Dr Darjee, which I incorporate by reference.

31You grew up mostly in New South Wales. You have two older brothers, an older sister and a younger sister. You lost your father when you were aged 18.

32The family moved to Victoria when you were aged 16 and you had attended high schools in Victoria and New South Wales until Year 10. You started an apprenticeship as a chef in New South Wales and then sought to continue it in Victoria.

33Your mother has been under psychiatric care at various times. Also, your sister was taken into foster care at one stage.

34Between 2015 and 2018, you moved to Victoria with your mother and lived with an uncle in Seaford. You had psychiatric admissions in the previous years but in this period you were quite stable. You did some carpentry work but, after an argument, you left your uncle's property in 2018. You then couch surfed, doing cash in hand furniture removal jobs for a year or so. You were doing this until 2022.

35In 2020, you were living in Hastings when the pandemic hit. You then moved to Glen Iris to get away from drugs in Hastings and did some work in your brother's restaurant. You returned to Glen Iris in 2021, but moved out of the house and were homeless until the index offending. You were living on the streets and had been hanging around St Kilda for about three months before you were arrested, and were crashing between different places, drinking and not being compliant with your medication.

36Your psychiatric history is significant and you have had numerous admissions to psychiatric hospitals from the age of 15. You have been prescribed with various mood stabilisers.

37In the period prior to the offending, as set out in the chronology provided by your counsel, which I incorporate by reference, you had spent 11 days on remand in Port Phillip prison.

38On 10 April 2022, following your release, you presented at the Emergency Department of Frankston Hospital. You were admitted to the Psychiatric Ward until 12 April.

39You were re-presented by the police to the psychiatric ward on 14 April and admitted overnight, and you were then lost to the area mental health service due to your lack of stable accommodation and disengagement with your family. It was in these circumstances that you were then homeless in the Fitzroy Street area and became involved with the two principal offenders and then were complicit in the offending.

40A key issue on the plea, given that you have been found guilty of a category 2 offence, was whether you were in a position to prove on the balance of probabilities that, at the time of the commission of the offence, you had impaired mental functioning that was causally linked to the commission of the offence and substantially and materially reduced your culpability, such that a combination sentence could be available under s5(2H)(c)(i) of the Sentencing Act 1991 (Vic).

41Your counsel relied on a psychiatric report from a consultant forensic psychiatrist, Associate Professor Darjee, in support of her submission that you came within the relevant provision.

42Significantly, this very experienced examiner had available to him extensive records relating to your mental health, and in particular that you have had since you were a teenager, a well‑established diagnosis of bipolar affective disorder.

43Your counsel relied on the opinion of the examiner to support the submission that at the time of the offending you had impaired mental functioning. Impaired mental functioning is defined to include a mental illness within the meaning of the Mental Health Act 2014 (Vic).

44The learned Crown prosecutor did not dispute that you had a relevant mental illness at the time of the offending.

45The next issue is whether you met the second limb of s5(2H)(c)(i) of the Sentencing Act 1991 (Vic), that your underlying condition was causally linked to the commission of the offence and substantially and materially reduced your culpability.

46In a comprehensive report, Dr Darjee noted that you had an unstable mental state in the month before the index offence, with two admissions to hospital in the two or three weeks prior to the offence, and that you were found unfit to be interviewed immediately after the offence. Further, you were treated in custody in order to stabilise your condition by mental health nurses.

47In considering your condition at the time of the offence, it is also relevant to note your erratic behaviour as seen on the CCTV footage when you attended to purchase a coffee at 3 am. During the offending itself, you were acting erratically. Further, as noted, you were perceived by the investigating officers to be unfit to be interviewed when arrested by them a couple of hours after the offence.

48It follows from this, that I accept the submission of your counsel that, as opined by Dr Darjee, your impaired mental functioning at the time of the offence was causally linked to your commission of the offence and substantially and materially reduced your culpability.

49As Dr Darjee indicated in his report at paragraphs 53–55, which I incorporate by reference, and in particular at paragraph 53 he indicates:

In my view, he was hyper manic at the time of the offence [and he goes on] … his hypermania was clearly related to why he was involved with the offence.  He was overly friendly and therefore accompanied the two men he did not know and had just met.  The two other men clearly intended to commit a robbery given how they were prepared, with nothing to indicate that he understood what was happening, or had any awareness of what the principal offender was planning to do.  His hyper manic state significantly contributed to his lack of awareness in what was happening; him opening the door to let the principal perpetrator out; speaking to the clerk as he did; and him walking out without paying for his Slurpee.  Immediately after the offence the other two men ran away and had nothing to do with him.  In my view, he was genuinely oblivious to the fact that he was considered to have contributed to the robbery, thus he was still wandering about in the same area the next day, when he was apprehended. 

So in my view, his hyper manic state, due to his bipolar affective disorder, significantly impaired his judgment in understanding what was happening at the time.  In my view he did not, at the time, understand or know he was participating in a robbery or that he was helping someone else who was committing a robbery.  In his elevated disorganised and overly frantic state, he was just focused on going to the shop with people he had just met, getting a Slurpee, and being friendly and helpful to everyone.  This included the comments he made to the clerk that he did not want him to get hurt.

50Having considered this opinion and the submissions of your counsel, I have formed the conclusion that a combination sentence is the appropriate sentence in this case, where I am satisfied the provisions of s5(2H)(c)(i) of the Sentencing Act apply.

Sentencing considerations

51In sentencing you I have also taken into account in a general way the 35 days Renzella time,[1] as submitted by your counsel in relation to a period in custody in relation to other offending, earlier than pre-dated this offending.

[1][1997] 2 VR 88.

52I have taken into account in determining to order a community corrections order that you have successfully previously committed a community corrections order that was imposed in the Magistrate's Court on 14 June 2023, a 12 months order.

53In sentencing you, I have also noted you have good family support.  You have a reference from your brother who has been in court on the trial and on the plea, and he has provided employment for you.

54It is significant that he indicates in his report that during the COVID period, this caused instability in your employment, housing and mental health and at that time he had his own personal affairs to attend to, and was unable to provide the level of care and support that he had previously provided you, in circumstances where both of you had lost your father some years earlier.

55In addition to that, your counsel filed on the plea a supportive letter from a
Ms Lockyer who has been working with you in another employment that you have undertaken in garden maintenance.

56All those matters are relevant, along with the report of Dr Darjee and the mental health assessment that was undertaken by the Community Corrections Office and the Community Corrections assessment itself to lead to a conclusion that a combination sentence consisting of a sentence of imprisonment of 140 days in custody and a 12 months' community corrections order to commence upon today, which is effectively the day upon your release from custody, which is the sentence that I propose to impose.

57Could you please stand.

58The sentence of the court is that you are sentenced to a term of imprisonment of 140 days.

59I declare that you have served that sentence, and you are further sentenced to a 12 month community corrections order to commence this day.

60In addition to the standard provisions of a community corrections order, I order that:

a)You be under the supervision of the Community Corrections Office for
12 months and that in accordance with the assessment report, you undergo assessment and treatment for drug abuse and dependency as directed by the Regional Manager;

b)Assessment and treatment including testing for alcohol abuse or dependency, as directed;

c)You undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed;

d)That you participate in programs and courses that address factors relating to your offending, as directed by the Regional Manager.

61Your counsel has advised that she has discussed the terms of the community corrections order with you and I will ask that she has you sign the document, and you are required to attend at the Maroondah Ringwood Community Corrections order within two working days of today, and the address is set out in the community corrections order.

62I want to emphasise you have been on a community corrections order before.  You are under supervision.  You are on effectively a good behaviour bond.  You are not to commit an offence in the next 12 months and that you have got to engage with the community corrections order by undergoing appropriate courses for drug abuse or dependency, alcohol abuse or dependency, and psychological or psychiatric treatment, as directed, or other factors that might address your offending behaviour.

63The essential point about the report of Dr Darjee, who is a very experienced forensic examiner, is that your past has proved this, you were able to operate in the community despite your bipolar effective disorder, provided you were compliant with your medication.  And, you have been able to engage in productive work and so it is absolutely essential that you continue to – and you have been stable, you have been working as set out in the submission from your counsel, you have been working in recent times since your release on bail.  So you are able to be a functioning member of the community notwithstanding this long-standing entrenched bipolar effective disorder, which is probably lifelong but clearly with appropriate medication you can work as an operator, as a stable member of our community. 

64So it is essential you stay close to the community mental health people and your GP, if necessary, a mental health plan.  You keep off drugs and alcohol and you can put this particular offending in the past.  You are now 28, so you are not in short pants anymore, and you can go on to lead a productive life notwithstanding this long entrenched mental health illness that is no fault of your own, possibly caused by early use of cannabis.

65Any other matters I need to address, Mr Cameron?

66MR CAMERON:  There is also the disposal order.

67HIS HONOUR:  Yes.  I make the disposal order as sought by the prosecution. I have signed the community corrections order; you will get a copy of that.  I've signed the disposal order. I thank you for your assistance in the trial and the plea, Mr Cameron and Ms Brennan. 

68And Mr Scott, we don't want to see you in the system again. Anything else?

69MR CAMERON:  No, Your Honour.

70HIS HONOUR:  All right, adjourn the court, sine die.