Director of Public Prosecutions v Sheargold

[2017] VCC 1339

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00555

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRAIG SHEARGOLD

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July and 1 August 2017
DATE OF SENTENCE:	14 September 2017
CASE MAY BE CITED AS:	DPP v Sheargold
MEDIUM NEUTRAL CITATION:	[2017] VCC 1339

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Pleas of guilty – Armed robbery – Theft – Commit indictable offence while on bail – Extensive criminal record – Long standing mental illness Schizophrenia – Extremely deprived childhood background – History of homelessness – History of drug abuse

Sentence:Convicted and sentenced to combination of 14 months’ imprisonment together with 3 year Community Corrections Order with mandatory and additional conditions including treatment for drug and alcohol dependency and abuse, mental health assessment and treatment and program to address offending – Pre-sentence detention of 330 days – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Lenthall	Solicitor for Public Prosecutions
For the Accused	Ms A. Beech	Victoria Legal Aid

HER HONOUR: 

1Craig Sheargold, you have pleaded guilty to one charge of armed robbery and one charge of theft, as well as a summary offence of committing an indictable offence while on bail. 

2Armed Robbery has a maximum penalty of 25 years' imprisonment; theft has
a maximum penalty of ten years' imprisonment; and the summary offence has a maximum penalty of three months' imprisonment.  The maximum penalties reflect the seriousness with which Parliament regards each of the offences. 

3I was told that you were 37 years old at the time of the offending and you are now 38.

4On 23 September last year at 5 pm, you went to the Coles supermarket in Epsom Road, Flemington.  At the time, a person by the name of Mukesh Sharma was working in the store and noticed you. 


5You took some flavoured milk from one of the fridges and placed it inside
a freezer.  You then took a box of ice-creams from the freezer and walked in the direction of Mr Sharma.  You told him that there was milk in the freezer then walked towards the middle of the store.  You put the ice creams into your bag and left without paying. 


6Mr Sharma approached you and said, “I’m sorry mate, you haven’t paid for this.” You took the box of ice-creams from your bag and threw them into a newspaper stand.  Another staff member told you to relax.  You started screaming and swearing at the staff.  You walked away, but then returned, holding a can of drink, which you threw onto the floor of a patisserie inside the shopping centre. You left again but returned a few minutes later, still swearing.

7You approached the front service area of the store.  A Kendra Moloney was working in that area at the time.  As you approached her, you pulled
a black-handled, 30-centimetre long kitchen knife from your pocket.  You walked past Ms Moloney towards the freezer section and said, “I’m going to get my fucking ice creams.”  You did not threaten Ms Moloney directly.  You took an ice cream from the freezer and left.  Staff contacted police.  This gives rise to the charge of armed robbery and theft, as I understand it.   


8You were on bail at the time of the incident, Summary Charge 6 reflects the fact that you committed the indictable offences whilst on bail.4 


9The incident at Coles was captured on CCTV footage.


INVESTIGATION AND INTERVIEW

10Two days later at 6.50 pm, police arrested you at Flagstaff Railway Station.  You were apprehended by protective services officers, after you had climbed from the platform onto the railway pit and entered the tunnel. 


11You were taken to the Royal Melbourne Hospital for a mental health assessment and later identified as having committed the offences for which
I now sentence you.

12About two weeks later, on 12 October 2016, you were again arrested by police when you were found carrying a metal pole inside a satchel on Victoria Street, Richmond.  You were taken to the Richmond Police Station where it was confirmed that you were wanted for questioning in relation to the incident at the Coles in Flemington.

13You were not fit to be interviewed by police at this time.  You were charged and brought before the Melbourne Magistrates’ Court later that day for a filing hearing, where you were remanded in custody.

14Mr Sheargold, objectively, your offending is serious and is deserving of
a punishment which is just in all of the circumstances.  Your conduct must also be appropriately denounced in all of the relevant circumstances.  In your case, it is relevant that you were laboring under some significant mental health issues at the time that you offended, although this was complicated by drug use, as is sadly often the case.  I will return to this aspect a little later on.

15Even though you were mentally unwell at the time you committed the offences for which I now sentence you, at a time where you still knew and you now know that what you did was wrong.  Your actions were frightening, Mr Sheargold, which I am sure you appreciate.  The people who were working at the supermarket were entitled to feel safe and to work without feeling threatened by anyone.  It is most concerning that you saw fit to behave like this at all, but, as the learned prosecutor said, especially so at 5 o’clock on a Friday afternoon where one would think that the supermarket would be particularly busy.

16Ms Moloney did not make a victim impact statement.  However, in her statement to police she said, “He was extremely angry and I felt very scared, due to him holding the knife and how aggressive he was.”  As your barrister, Ms Beech, conceded on your behalf at the plea hearing, the impact on the victim of the armed robbery in particular was, no doubt, a significant one.

17You have an extensive criminal history which dates back to August 1996, with court appearances every year from that time, save for a gap of about three and a half years from May 2009 to the end of 2012.

18You have been to gaol on a number of occasions.  Your past offending mostly comprises dishonesty offences.  You do not have any prior convictions for armed robbery, however, but you do have some prior convictions for violence and weapons offences.  Your criminal history, mental health issues and history of drug abuse, gives me serious concerns about your prospects of rehabilitation and I must give fairly solid weight to the need to protect the community.

19In sentencing you, I have taken into account that your offending was unsophisticated and that you did not directly threaten the victim with the weapon.  I was not told about how you came to be in possession of a knife, however.  The pre-sentence report records that it was something that you carried, in order to protect yourself on the street, which unfortunately is also often the case.  In all the circumstances, I accept that your offending was spontaneous and the incident was brief.  I also accept that your offending, although serious, was fairly low level, insofar as armed robberies go.

20I was told that you stole the ice creams because you were hungry, as homeless people so often are.  However, this does not justify you behaving as you did.

21In your favour, your early plea of guilty in all of the circumstances entitles you to a significant discount in the sentence that you would otherwise receive.  In taking this course, you have saved the witnesses, especially the victim, the time and trauma of giving evidence and you have saved the community the time and expense of running contested proceedings.

22I also accept that at that time, you were laboring under an impairment of mental function, namely schizophrenia, which is well documented and of
a longstanding nature.  You have been admitted to mental health facilities on numerous occasions since 1999 and you were showing psychotic symptoms when seen by Associate Professor Carroll on 9 March this year.  You have also been prescribed various medications since your diagnosis and are currently taking 30mg of Olanzapine.  It also appears that you have some significant cognitive deficits which were the subject of a neuropsychological report in 2009.  Although, Ms Beech was unable to provide me with a copy of this report, other treaters have referred to these findings and I accept that such findings were made.

23You also have a history of drug abuse and were affected by ice at the time of your offending. This heightens your dangerousness, however I do not treat your drug abuse on the occasion in question as an aggravating, or a mitigating feature for that matter.

24I take into account and give full weight to your background, which is a very sad and deprived one.

25You were raised by your mother alone, following the tragic death of your father in a bushfire when you were only one year old.  Your mother later re-partnered and your step-father was a cruel man who was violent towards you and your mum.  He abused drugs and you were grossly neglected as a child.  At one stage, your mother left the household, then you were placed in foster care.  In fact, you were removed from the care of your mother and step-father on numerous occasions, then placed in permanent foster care when you were only 11.  When you were 13, you were cared for by your grandmother and
step-father, who was addicted to speed.  There was never enough food in the house and you were neglected emotionally and physically.  Your mother returned to the household when you were 15.  It was at this stage that your step-father introduced you to drugs, commencing with cannabis, then giving you speed and ice.

26You left home when you were 16 due to the violence and neglect and lived on the streets.  You have been homeless since then.  This coincides with the commencement of your criminal history.  You have had regular admissions to psychiatric facilities since your diagnosis in 1999.

27In your youth, you were supported by the Brosnan Centre and the God Squad. However, from 1999, you became enmeshed in a continuing cycle of imprisonment, hospitalisation and homelessness.  It seems that you have had a roof over your head for brief periods over the years when in the community, but these are only temporary measures for one reason or another.  It is very important that you have a permanent place to call your own, as this will help you in your rehabilitation and you now seem to appreciate this.

28You struggled at school, attending numerous schools in the Shepparton area and left in Year 7.  In the words of Ms Beech, your schooling was chaotic. Unfortunately, you are unable to read or write, which must have taken a further toll on your wellbeing over the years.

29In sentencing you, I have taken into account the report of Associate Professor Carrol.  It is clear that your mental health issues and deprived background are inextricably linked with your homelessness, substance abuse and need for sustenance.

30In all of the circumstances, I accept that your moral culpability is somewhat reduced because of your mental health issues which were present at the time of the offending, albeit that you were not actively psychotic at that time. 
I understand that you were not taking medication at that time and I accept that your judgment was impaired, as was your ability to make calm and rational decisions because of your mental health issues.  As I have previously said though, this is also somewhat complicated by your drug abuse.

31In your case, if not for your mental health issues and deprived background, strong weight would attach to general deterrence and specific deterrence, however, in view of these matters, I make a fairly substantial reduction in the weight that would otherwise attach to these principles.  Your mental health issues also have a bearing on the type of sentencing disposition that is appropriate in your case, which, as I understand it, was accepted by the Crown.

32On the other hand, you have been to gaol on other occasions and in your case, in view of your past performance, in respect of community-based orders and parole orders and whilst being on parole, incarceration may be the only disposition that can do justice to all the sentencing considerations. 

33Ms Beech submitted that the most appropriate sentence in your case is
a community corrections order, combined with a sentence of imprisonment.  The Crown accepts that this is within the range of appropriate sentences.  I was assisted by further submissions in respect of the term of imprisonment available to me, if I were to impose such a sentence.  I understood that the Crown submission which was originally made in relation to a combined disposition, was on the basis that time served would be seen as insufficient. 

34It is agreed by the parties that the maximum term of imprisonment available to me, in a matter such as yours, is 12 months or less, plus pre-sentence detention, in combination with a community corrections order, so long as the term of imprisonment yet to be served is up to 12 months' imprisonment.  I am most grateful for the helpful further submissions prepared by the learned prosecutor, Ms Lenthall and your counsel, Ms Beech. 

35In view of your mental health issues, the enduring effects of your deprived background, including your history of homelessness and your drug addiction,
I arranged for a detailed assessment to be conducted for your suitability for
a community corrections order.

36I have now received the report which does not recommend you for a community corrections order and according to the author, you expressed some reluctance to undergo such an order.  However, this report, or the context in which the report was prepared, was further explained to me this morning by Ms Beech and so it puts what you said at various stages to the Community Corrections Officer, in a more complete context.  I understand that you are actually willing to undergo such a disposition. 

37Certainly you have not had the best of track records with orders of this type in the past, although some time ago it is to be acknowledged.  This gives me some cause for concern as to whether I would be setting you up for failure to place you on another community corrections order.  I have to be mindful of the need to protect the community and it seems that in the past, although some time ago, any attempts to help you reform whilst in the community, have not been successful.  However, a community corrections order can be an effective tool to help ensure that you obtain the supports in the community that you will need, such as mental health treatment and drug rehabilitation. 

38In the end, I have arrived at a sentence which, in my view, does justice to all relevant sentencing principles and the weight which attaches to these.  It will involve you serving a further period in gaol before being released on
a community corrections order and it is my strong request, in fact you will see that I make some requirements in relation to the community corrections order itself, that during the next few months, before your release on the community corrections order, the relevant authorities do all they can to ensure that you have stable accommodation and appropriate treatment when you are released into the community. 

39In your case, it may well be, as your counsel submitted and you have instructed her, that a residential treatment facility is what is needed, although your mental health issues may complicate this, I do not know.  I would also expect proactive steps to be taken in respect of your mental health assessment and issues, to ensure that you are appropriately treated when transitioning into the community.  Indeed it may be that your mental health is such, at the time of your release, that some residential psychiatric care or psychiatric care of an intensive nature is also required. 

40I will arrange for a copy of my sentencing remarks to be sent to the appropriate officers in Corrections and Community Corrections, in a bid to ensure that any necessary steps which need to be taken, are taken in a timely fashion. 

41Would you please stand up, Mr Sheargold. 

42You are convicted of each of the offences on the indictment and of the summary matter. 

43You are sentenced to 14 months' imprisonment in respect of Charge 1 on the indictment and to 14 days' imprisonment in respect of Charge 2.

44You are sentenced to one month imprisonment in respect of the summary offence. 

45I direct that each of the sentences are to be served concurrently with each other, such that the total effective sentence is 14 months' imprisonment. 

46This gaol term is to be served in combination with a community corrections order, but I can only impose a community corrections order if you agree to this, so please listen carefully to what the order would involve. 

47The community corrections order would run for three years.  The conditions of the order would be, firstly there are mandatory conditions that attach to every community corrections order and they are:

·You must not commit another offence for which you could be imprisoned during the time that the order is in force;

·You must comply with any obligation or requirement prescribed by
Regulation 17 of the Sentencing Regulations 2011;

·You must report to and receive visits from the Secretary to the Department of Justice or his or her delegate;    

·You must report to the Community Corrections Centre nearest you, which I understand would be Carlton, hopefully, before 4 pm on the day after your release from gaol.  So just remember that.  I am sure you ---

48OFFENDER:  Yeah, I'll remember.

49HER HONOUR:  - - - are reminded, all right?

50OFFENDER:  Yeah, (indistinct words).

51HER HONOUR:  All right. 

·You must let a Community Corrections officer know within two clear working days of you changing your address or job;

·You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate;

·You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.

52Now, the conditions that will apply in addition to those are:

·Firstly, that you must be under the supervision of a Community Corrections officer for a period of three years;

·Next, you must undergo assessment and treatment, including testing for drug and alcohol abuse or dependency, as directed by the Regional Manager.  In this regard, I require all reasonable and timely steps to be undertaken by the Regional Manager, in conjunction with the relevant prison authorities, to have you assessed for suitability and if suitable, to undergo drug treatment in an appropriate residential facility, immediately upon your release from gaol.  If you are deemed to be unsuitable for such a residential drug program, I require Community Corrections to take all reasonable and timely steps to ensure that you are released from gaol into stable accommodation. 

·Further, you must undergo mental health assessment and treatment, including but not limited to mental health, psychological, neuropsychological and psychiatric treatment, if necessary in a hospital or a residential facility, as directed by the Regional Manager. 

·Further, you must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the Regional Manager.  In your case, it would be my recommendation, or it may be, I should say, that a one-on-one counselling arrangement would be appropriate.  I cannot do anything more than that, that is just my - - -

53OFFENDER:  Cool.

54HER HONOUR:  All right.

55Now, having heard all the proposed conditions, do you consent to the community corrections order that I propose?

56OFFENDER:  Yep.  I'm sorry, Your Honour. 

57HER HONOUR:  That is all right. 

58Now, I should tell you and I tell everyone this.

59OFFENDER:  Yeah.

60HER HONOUR:  That is you do not comply with all of the requirements of the community corrections order, then you will face breach proceedings before me.

61OFFENDER:  Yeah.

62HER HONOUR:  You will then be sentenced in relation to the breach and you will be re-sentenced in relations to the charges, in which case, you may well be sentenced to a period of imprisonment.  I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.  Do you understand that?

63OFFENDER:  I do, Your Honour.

64HER HONOUR:  All right.  Do you still consent to the order?

65OFFENDER:  I still consent to the order.

66HER HONOUR:  Thank you. 

67Therefore, in relation to each of the charges, including the summary matter, you are sentenced to a community corrections order in the terms that I have just set out, in addition to the period of imprisonment.

68If not for you pleas of guilty, I would have sentenced you to a total effective sentence of three years' imprisonment, with a non-parole period of two years. 

69I declare that you have already served 330 days by way of pre-sentence detention, which will be deducted from the sentence that I have imposed.  All right?  Just take a seat for a moment please, Mr Sheargold, I will just check with counsel. 

70Is there anything arising from those remarks that is problematic from your point of view?

71MS BEECH:  No, thank you, Your Honour.

72MS LENTHALL:  No, Your Honour.

73HER HONOUR:  All right.  Yes, thank you for your assistance.

74Ms Beech, did you want to have a word with Mr Sheargold?  Well at this stage I need to have him sign the community corrections order, I should say, - - -

75MS BEECH:  Yes, thank you.

76HER HONOUR:  - - - before he leaves, in any event.  So, you will have to perhaps explain that to him and there might need to be a caption inserted that, having explained that to him, ---

77MS BEECH:  Yes.

78HER HONOUR:  - - - if he has difficulty with reading and writing, that he has understood.

79MS BEECH:  Yes, absolutely.  Thank you, Your Honour.

80HER HONOUR:  He has indicated to me that he has, I have no difficulty with that.  All right, thank you.  So if you could hand the order to Ms Beech and she will approach Mr Sheargold with that, thank you. 

81MS BEECH:  Thank you, Your Honour, I've been through the terms of the order with Mr Sheargold. 

82HER HONOUR:  Thank you.

83MS BEECH:  And I'm confident he understands Your Honour's conditions.

84HER HONOUR:  All right.  Is he able to sign the document and any - - -

85MS BEECH:  Yes, he's signed the document.

86HER HONOUR:  Yes, thank you very much. 

87I will just indicate, I decided not to impose a monitoring condition as well, because I think he has got enough to deal with and I do not want to set him up for too much pressure when he is released, so that is why I did not go along with a monitoring condition, even though I did request an assessment, with
a view to perhaps putting one in place.

88MS BEECH:  Certainly, thank you, Your Honour.

89HER HONOUR:  All right, thank you.  Yes, if you could remove Mr Sheargold.

90OFFENDER:  Thank you, Your Honour.

91HER HONOUR:  Yes, now adjourn.

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