Director of Public Prosecutions v Slater

[2020] VCC 1058

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02384

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM SLATER

---

JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2020, 22 June 2020
DATE OF SENTENCE:	17 July 2020
CASE MAY BE CITED AS:	DPP v SLATER
MEDIUM NEUTRAL CITATION:	[2020] VCC 1058

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Croxford	Office of Public Prosecutions
For the Accused	Mr P. Gordon	Victorian Aboriginal Legal Service

HIS HONOUR:

1William Slater, you have pleaded guilty to one charge of armed robbery.  This offence carries the maximum penalty of 25 years imprisonment.  It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, Summary of Prosecution Opening - Plea.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now summarise.  At the time of this offending on 31 August 2019 you were unemployed and homeless.  At approximately 7.15 am you were seen in a shopping centre in Napier Street, Bendigo in what appeared to be a dishevelled and drug affected state.  You picked up a brick from a house fence and attempted to enter a hairdresser, but the shop was closed.

2At about 7.45 am you entered the Richardson Bakery armed with the brick.  The victim, Lee Richardson, and a customer were in the bakery.  The victim was behind the counter.  You held the brick at head height, walked up to the counter and slammed it onto the counter.  You said 'If you don't give me all of your money out of the till, I'll smash your face in and throw the brick through the front window'.  You then said 'Give me all the drugs too'.  The victim explained that he did not have any drugs, but would give you money.  He took out $10 and $20 notes and handed them to you.  You took some $5 notes out of the till.  You said 'What about under there?', reached over and lifted up the draw in the till. 

3You stepped backwards towards the front door with the brick in your right hand and said to the victim 'I know what's going to happen now, I'm warning you, I'll be back'.  You left the bakery with $85 in cash.  You staggered around the front of the bakery for a few minutes.  A bystander called 000.  A short time later police arrived at the scene.  You were located at a bus stop nearby.  You were arrested and searched.  You were found to be in possession of $85 in cash.  You were subsequently taken to Bendigo police station where you were interviewed.

4I state to you that I have taken into account the following matters in mitigation of sentence.  You have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial.  Witnesses have been spared the ordeal of giving evidence upon your trial.  You pleaded guilty at an early stage.  I accept on all the material before me that you are genuinely remorseful.  I have been told something of your personal circumstances and these matters are set out in detail in the defence submissions and expert reports tendered on your behalf.  You were born in Ballarat but grew up in St Albans.  You are 40 years of age, having been born on 10 July 1980. 

5You are an Aboriginal man with your Aboriginality coming from your biological mother.  You were removed from your mother when you were approximately six months of age as she was abusing alcohol.  Your adoptive family was also of Aboriginal descent.  Your adoptive mother died when you were about 10 years of age.  Your adoptive father was an alcoholic.  He died when you were in your mid-20s.  You had a grossly disadvantaged upbringing.  You have never been employed.  You have a long and extensive history of illicit drug use starting when you were only 10 years of age.  Your involvement in the criminal justice system started when you were only 16 years of age in the Children's Court.  You ran away from home and began living on the streets when you were about 17 years of age.  You have been in and out of custody throughout your adult life, commencing with detention in a youth training centre in February 2000 and sentences of imprisonment commencing in 2002.

6I accept the description of you contained in the submissions filed on your behalf in these terms. 

'In summary the submissions on this plea are:

a.The accused is an isolated vulnerable person with serious mental health conditions and a longstanding dependence on illicit substances.  He has experienced protracted periods of homelessness and he lacks basic supports in the community.  He requires significant assistance to secure housing, receive mental health and drug addiction treatment.

b.The accused experienced significant deprivation and disadvantage in his upbringing and this is relevant to sentence'.

7Having regard to your disadvantaged and deprived background I have had regard to the principles enunciated in Bugmy's case and I do seek to give full weight to your deprived background.  You have a long history of mental illness.  This is well described in the voluminous material tendered on your behalf.  There are two up to date reports from Dr Zimmerman, psychiatrist, dated
15 April 2020 and 17 June 2020.  Doctor Zimmerman has had access to material describing your extensive history of mental illness.  She described you as having a well-documented history of chronic psychotic illness with prominent affective symptoms.  She expresses the opinion that your illness is lifelong and will be characterised by relapses associated with poor engagement with services, non-compliance with antipsychotic medication and substance misuse.  She is of the opinion that you are best conceptualised as suffering from schizophrenia with prominent mood component. 

8You also meet the criteria for Opioid and stimulant dependence.  This was currently in remission in the context of your incarceration.  Your substance misuse has been present throughout your adult life.  It is at the severe end of the spectrum.  Dr Zimmerman has addressed the principles enunciated in Verdins case in some detail.  I accept Dr Zimmerman's opinions and in particular that your conduct was likely due to a combination of intoxication but also the effects of a chronic psychotic illness on the frontal lobe functioning.  On the material before me I am satisfied that all of the principles enunciated in Verdins case apply. 

9I should indicate that in addition to the psychiatric reports of Dr Zimmerman I was provided with detailed medical records and the detailed Corrections Victoria prison history.  I assess your prospects of rehabilitation as being cloudy.  Against these matters in mitigation, however, your actions were very serious indeed.  I accept that whilst this offending was brief, spontaneous, impulsive and highly irrational conduct, it was nevertheless an armed robbery and it was no doubt distressing for the victim.  There is no victim impact statement.

10You have admitted before me numerous prior convictions.  There are a very large number of court appearances between 10 July 1998 and 21 February 2019 involving convictions for a vast array of offences.  The nature of some of these prior convictions, such as offences of violence, burglary and theft, is highly relevant to my task of sentencing you today.  Since your arrest you have been remanded in custody.  There are 333 days of pre-sentence detention. 

11The circumstances in which you have been held in custody have been described at paragraphs 59 to 62 of the defence submission.  I have taken these matters into account.  As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence, although I have sensibly moderated the weight to be attached to each in accordance with Verdins principles.  Specific deterrence remains relevant having regard to your extensive prior criminal history.  General deterrence is also of considerable importance in a case such as this.  This type of offending must be discouraged.

12I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.  It was submitted on your behalf that I ought impose a combined sentence of imprisonment and a community corrections order.  It was hoped that you could move from prison to a residential rehabilitation program as recommended by
Dr Zimmerman.  I do commend your counsel and instructing solicitor for their endeavours in attempting to coordinate and obtain commitments from various agencies in respect of your rehabilitation treatment and residential placement.

13At the request of your counsel I obtained a report from ACSO, a confidential forensic drug and alcohol assessment report dated 12 June 2020 and I also obtained a community corrections order assessment outcome report.  It was the opinion of Anne Brotherton, the forensic AOD assessor that you would benefit from residential rehabilitation with a focus on some AOD psychoeducation relapse prevention, distress tolerance and some motivational interviewing around your stated desire to maintain your abstinence from drugs.

14The community corrections order assessment outcome report was prepared on 9 July 2020.  You were assessed as being unsuitable for a community corrections order.  The reasons for that opinion were: (1) your prior criminal history, which indicated that you had received ten community based dispositions in the past, three intensive correction orders that had been cancelled, three community based orders had been cancelled and three parole orders had been cancelled.  It is acknowledged that to your credit, you did successfully a four month parole order in 2005;

15(2) Your behaviour in custody was taken into account and the opinion was expressed that you posed a significant risk for occupational violence towards CCS staff.  No protective factors were identified during the assessment; (3)  It was noted that you had lived a transient lifestyle with no notable friendships or relationships in the community; and (4)  It was also noted that these matters, coupled with non-compliance towards medication to stabilise your mental health concerns may prevent you from being able to adequately comply with the requirements of a community based disposition.  As I have already stated, the ultimate conclusion is that you were deemed to be an unsuitable candidate for a community corrections order. 

16It was submitted on your behalf that I ought not accept the recommendation of the Community Corrections officer, but I ought nonetheless impose a combined sentence of imprisonment with a community corrections order.  I do not accept this submission.  I have had regard to the principles enunciated in Bolton's case and, in particular, the discussion concerning the appropriateness of community corrections orders.

17In my opinion the reasons for your unsuitability for a community corrections order are reasonable.  I am not satisfied there is a proper basis upon which I ought reject the recommendation.  In my opinion the recommendation of the assessing community corrections officer is an important consideration in determining appropriate disposition.  In all the circumstances, having regard to all relevant facts and appropriate sentencing principles, I sentence you as follows.

18One charge, Charge 1, armed robbery, convicted and sentenced to two years and six months imprisonment.  The non-parole period is the minimum term that justice requires you to serve, having regard to all the relevant circumstances that exist.  For that reason it cannot be fixed automatically.   All relevant factors and sentencing principles are to be taken into account.  I have to consider when you should be eligible for mitigation of confinement, and in turn, rehabilitation under conditional supervision.

19In all the circumstances, I direct that you serve a minimum term of 18 months imprisonment before becoming eligible for parole. As prescribed by s.18(4) of the Sentencing Act, I declare that the period of time you have spent in custody is 333 days, which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court. Pursuant to s.6AAA of the Sentencing Act, I state that the sentence of non-parole period I would have imposed, but for the plea of guilty is four years, with a non-parole period of two years and six months.  Ms Croxford, anything in terms of the formalities or the order that needs to be addressed?

20MS CROXFORD:  No, Your Honour.

21HIS HONOUR:  Mr Gordon, from your point of view?

22MR GORDON:  No, Your Honour.

23HIS HONOUR:  Thank you very much indeed.  I will adjourn and close the WebEx hearing.  Thank you.

24MR GORDON:  As Your Honour pleases.

25MS CROXFORD:  As the court pleases.

‑ ‑ ‑