Director of Public Prosecutions v Smith
[2020] VCC 820
•10 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00263
Indictment No.J12004930
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DUANE SMITH |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 2 June 2020 | |
DATE OF SENTENCE: | 10 June 2020 | |
CASE MAY BE CITED AS: | DPP v Smith | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 820 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms K. Hamill | Solicitor for the Office of Public Prosecutions |
| For the Offender | Ms M. Isobel | Michael J Gleeson & Associates |
HER HONOUR:
1 Duane Smith, you have pleaded guilty to one charge of attempted armed robbery. The maximum penalty for that offence is 20 years’ imprisonment.
2 You have also pleaded guilty to Summary Charge 2, committing an indictable offence on bail and have agreed to me sentencing on that offence. The maximum penalty applicable is 30 penalty units or three months’ imprisonment.
3 Your offending arises out of events which took place on 31 July 2018 and involved the victim of your offending Sridhar Ganta ('Ganta').
4 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I sentence you on the basis of the facts as summarised by the prosecution and discussed during the course of your plea hearing. It is sufficient for present purposes to say the facts in this case are most serious and disturbing, and you have a concerning and relevant criminal history to which I shall later refer.
5 I turn to a summary of your offending.
6 On the morning of your offending the 7-Eleven store’s owner, Ganta, and an employee, Raji Achanta ('Achanta'), were at the Beach Street, Frankston store. CCTV cameras captured your offending (Exhibit B). I found that footage of great assistance having viewed it at the conclusion of the plea hearing. That footage and the other material before me places your offending, in my opinion, at the low end of offence gravity relevant to Charge 1 and I shall refer to that footage again later in these sentencing remarks.
7 At 10.28 am you first entered the store. Achanta was behind the counter serving customers, Ganta restocking fridges.
8 You took an iced coffee from the fridge and concealed it down your pants. Ganta saw you walk from the fridge into the public area of the store. He approached you and asked you to pay for the drink. You denied you had anything and after that discussion Ganta walked off.
9 You removed the drink from your pants and put it at the bottom of a nearby shelf. Achanta saw this action by you on the CCTV monitors at the counter. You engaged in a brief verbal exchange with staff in which you swore multiple times before leaving the store.
10 There were a number of customers inside and outside the store at the time including students from a nearby TAFE trade school including Patrick Frisby ('Frisby'), James McBride and William Grant. They were standing under cover outside the store and saw you leave the store in an agitated state. The CCTV footage shows this store as fairly busy at the time of your offending.
11 A delivery man was also at the store at the time using a trolley to move boxes into the shop. That was also apparent on the CCTV footage.
12 You walked a short distance away from the store before returning a couple of minutes later. Ganta was still working on the floor of the store, Achanta at the till serving customers.
13 You stood in the doorway and prevented the automatic doors from closing. In your hands you had a box cutter (sometimes called a Stanley knife) which you initially held behind your back.
14 You spoke to Ganta repeatedly demanding money from the till, your voice raised as you repeated your demands. I note the description of you by Ganta, at the contested committal as being a 'nuisance'.
15 After a short time Ganta moved into the staff area behind the counter and told you to come into the store. You said you were staying at the door and that you had a knife, urging Ganta to give you money. During the course of the exchange you removed your hand from behind your back and gestured with the box cutter in your hand towards the counter area, remaining at the door as you did so.
16 CCTV footage showed Frisby walk away from his TAFE friends, and approach you from behind without you noticing and grabbing the knife from your hand. You spun around and said something which Frisby described as 'gibberish'. Frisby told you a number of times in a loud voice to 'fuck off', walking towards you until you left the area.
17 You walked along Beach Street towards Frankston Shopping Centre and entered a laundromat and you were observed walking in and out of the laundromat over a period of time.
18 Police were called and arrived a short time later. You were pointed out to them by onlookers and arrested at the laundromat.
19 You were taken to Frankston Police Station, although were not formally interviewed. Police received advice from a forensic medical officer not to interview you at that time.
20 At the time of this offending you were on two sets of bail, the first related to offences of burglary and theft, the second to offences of theft and handle/receive stolen goods (Summary Charge 2 – commit indictable offence on bail).
21 The prosecution case is that you committed the offence of attempted armed robbery when you were armed with the knife at the time you demanded money from the till from Ganta. That you intended to put Ganta in fear of the use of force by bringing out the knife from behind your back whilst making those demands in the context of an earlier exchange over the iced coffee moments prior. The CCTV footage provides a visual description of your offending.
22 Your offending resolved following a contested committal at which Ganta and the informant were cross-examined. Your plea of guilty was not early and involved cross-examination of Ganta.
23 Turning to your plea chronology, you were charged on 31 July 2018, with a filing hearing on 1 August 2018, then a contested committal on 8 February 2018. Thereafter an initial directions hearing on 11 February 2019, and a final directions hearing on 29 November 2019. On 5 December 2019 you were arraigned, the matter having resolved on 4 December 2019.
24 You have pleaded guilty to these two charges and you are entitled to have that taken into account in your favour when sentencing you and I do. By your pleas of guilty you have spared the time and cost of a trial and witnesses have been spared the need to give evidence at your trial. In particular the victims of your offending, although I do note Ganta was cross-examined at committal.
25 Your pleas of guilty were entered fairly late in the piece and the timing of your pleas of guilty can also be taken into account, and I do when sentencing you.
26 You have been in custody for this offending since your arrest on 31 July 2018.
27 You have admitted an extensive and relevant criminal history, including interstate priors. Your offending in the past has involved violence including on 15 November 2017 carrying a controlled weapon without an excuse and an appearance on 2 March 2017, including dishonesty offences, drunk and disorderly in a public place and going equipped to steal.
28 On 20 March 2014, you were before the court on dishonesty offences including theft from a shop and also robbery. Also, you have been dealt with amongst other offences for possessing a dangerous article in a public place on 19 February 2013 and then again on 22 May 2013. You appeared at Melbourne County Court on 27 August 2010 on a charge of attempted armed robbery and possessing a controlled weapon without excuse, for which you were sentenced to a term of imprisonment by me. My sentencing remarks at that time contain a summary of that offending. On 13 March 2009 amongst other offences, theft from a shop (5 charges), assault with a weapon, use a controlled weapon without excuse, carrying a controlled weapon without excuse and possessing a dangerous article in a public place.
29 In 2007, theft from a shop. On 7 September 2006, theft from a shop. On
27 September 2005, possessing a dangerous article amongst other charges. Numerous other dishonesty offences dealt with in various court appearances in Victoria since 1993, and dishonesty offences also interstate.
30 You have over the years had various terms of sentences imposed including suspended sentences, actual terms of imprisonment, Community-Based Orders (breached), an Intensive Corrections Order (breached).
31 There are no victim impact statements before me. But I understood the victims have been given the opportunity to make such statements and have not done so.
32 You counsel, Ms Isobel, provided a written outline of submissions for your plea hearing (Exhibit 1) and addressed them during the course of it.
33 Ms Isobel’s primary submission on sentence was that the time served of 521 days, was appropriate. Her secondary submission, without abandoning her primary submission, was that if I considered you should be further sentenced beyond 521 days, it should be in combination with a Community Correction Order with therapeutic conditions attached.
34 Ms Isobel submitted that any imprisonment beyond that which you had already served would, in her opinion, be manifestly excessive.
35
Turning to your personal circumstances, Ms Isobel referred to your complex psychiatric problems dating back to 2003 and admissions to mental health inpatient units over the years. I note the most recent reports tendered from
Dr Thomas, Consultant Psychiatrist, and also Ms Susan Carey, clinical neuropsychologist. At the time I sentenced you in 2010, there was material before me at that time from which I accepted principles in R v Verdins & Ors[1] relevant to general and specific deterrence were enlivened with limited moderation of your then sentence. I remain of that opinion as I discussed with counsel. At the time of that sentence your offending involved significant drug use, as I note does your offending before me, specifically heavy drug use at the time of this most recent offending.
[1](2007) 169 A Crim R 581 (‘Verdins’).
36 Briefly, in addressing the recent report of Dr Thomas, Ms Isobel referred to his confirmation of your history of Paranoid Schizophrenia and paranoid delusions. That you also had a long history of carrying weapons for your perceived safety.
37 Ms Isobel referred to his diagnosis of Antisocial Personality Disorder, characterised by your low frustration tolerance and tendency to engage in an 'impulsive discharge of aggression'.
38 I turn to the report before me from Dr David Thomas dated 30 May 2020, (Exhibit 3). Details were provided of your history and background, which I will not repeat, but have read. You described after the death of your 'grandmother' when you were 8 'everything went downhill for you'. You did, however, enjoy a close relationship with your grandfather until his death in 2003.
39 At the time of your grandmother’s death you became very disruptive at school and very angry.
40 At school you were often in trouble for swearing at teachers, disrupting classes, and mucking around, ultimately expelled at the end of Year 10, when you were 15.
41 You moved to Queensland for a time and worked with a firm building staircases and balustrades between 1996 and 2001. Towards the end of that time however, your drug and alcohol use became more problematic and you lost your job. You also, then, around that time, lost your licence for driving under the influence of drugs and alcohol.
42 You returned to Melbourne and since then, had been unsuccessful at sustained employment, most recently dependant on the Disability Support Pension.
43 You had a number of relationships before you were 21, none since.
44 Reference was made to the motor vehicle collision in which you were an unrestrained passenger in 1993. As a result, you were assessed by ARBIAS and diagnosed with an acquired brain injury and impairment of frontal lobe function. Scans taken, however, 12 to 15 years after the collision were reported as normal.
45 You described that at some stage after the collision you developed post-traumatic seizures and were prescribed Lyrica.
46 Turning to your psychiatric history, Dr Thomas noted your first recorded contact with mental health services in December 2003. At that time, you said you had a marked increase in your use of Ice in the months preceding that admission to Monash. In describing that to Dr Thomas you said, in part, 'I thought the neighbours were out to get me, kill me'. You were in hospital three to six months and were managed on Olanzapine.
47
Dr Thomas noted, as do I, four other admissions to mental health inpatient units (14 December 2003 to 13 January 2004; 18 March 2004 to
16 April 2004; 2 October 2009 to 9 October 2009 and 15 October 2017 to
18 October 2017). I note one of those admissions was shortly before your offending dealt with by me 2010.
48 Regarding this current offending, you said you had not taken your medication for over a week and had been on an 'ice bender' during that time. The night before this offending you used drugs at a friend’s place and on the day of it you took Methadone and also multiple tablets of Diazepam.
49 Further details were provided regarding your substance-use history, including consumption of alcohol on a regular basis around the age of 12 or 13, first being exposed to drug use from the age of 15 or 16, cannabis then was introduced to amphetamines and by age 17 dependent on alcohol, cannabis and methamphetamine ('Ice'). By age 19, dependent on heroin. You commenced Methadone in 2010 and said you used very little heroin since.
50 In your twenties you started abusing prescription drugs. Also, you had in the past also tried LSD, magic mushrooms, GHB and other prescribed opiate-based analgesics.
51 You confirmed that at the time of this offending you were abusing multiple prescribed and non-prescribed drugs, although denied urges to return to drug use.
52 Turning to your forensic history, Dr Thomas noted, as do I, you have received multiple custodial sentences over the years, and had spent a considerable amount of time in prison.
53 You were unsure why you carried out this offending. You were remorseful and acknowledged your behaviour was unlawful and inexcusable. You also acknowledged the likely adverse impact on your victim.
54 When you offended, you knew it was wrong, but when ahead anyway.
55 You acknowledged the key factors which would likely result in you engaging in criminal behaviour, included homelessness, drug use and not taking prescribed medication in appropriate doses. You were aware that not taking your prescribed medication would make you acutely mentally unwell.
56 You advised you had recently been accepted into the NDIS scheme and that was confirmed by Ms Isobel at your plea hearing and in evidence before me.
57 It was noted you do not have any family supports in the community and that causes me some concern.
58 Dr Thomas concluded your consumption of alcohol and drugs (prescribed and recreational) were consistent with a diagnosis of Substance Dependence Syndrome due to use of multiple psychoactive substances. That use at times resulted in discrete periods of acute psychosis, resolving on treatment with antipsychotic medication. Dr Thomas agreed with previous treating clinicians you met a diagnosis of Paranoid Schizophrenia, those symptoms well controlled on your current medication regime.
59
Your mental state at the time of this offending in his opinion, was affected by your homelessness, lack of money to meet your basic needs, heavy use of alcohol and methamphetamine throughout the night preceding this offending, your consumption of your daily dose of Methadone and of more than
75 milligrams of Diazepam less than an hour before the offence occurred.
60 You were able to articulate your reason for attempting to rob the store, being to obtain money for drugs, food and a hotel bed.
61 Dr Thomas was not convinced your offending behaviour was driven by your Paranoid Schizophrenic illness.
62 Dr Thomas concluded, as did Ms Carey, you needed long-term and management of your mental-health needs. In addition, assistance to maintain your abstinence from drugs and alcohol. I agree this would be essential to risk of re-offending. It will be a challenge for you.
63 I received after your plea hearing correspondence from Miranda Holt, Specialist Support Coordinator, Guidestar, dated 3 June 2020, who also gave evidence before me this morning. She confirmed you had been approved for an NDIS plan (May 2020 – May 2021). Supports offered to you were set out in her report, including assisting you to secure suitable accommodation, and for a psychologist.
64 I understand upon your release from prison, at least for the first month, there will be accommodation found for you in a motel or hotel and thereafter there will be attempts made to find other alternative accommodation for you.
65
I also received a letter from JesuDunsin Oluwasola, ACSO, dated
4 June 2020. You are a voluntary participant at the ReStart Program. She has created a re-integration plan to prepare for your release. ReStart, amongst other assistance, would provide you with that short term accommodation of up to a month.
66
I turn to the report of Susan Carey, clinical neuropsychologist, dated
27 May 2020 (Exhibit 2). She undertook a neuropsychological examination of you on 4 and 8 May 2020 when you were in custody. Details were provided in that report of your history and personal circumstances, which I have read but will not repeat.
67 You described a relatively normal upbringing free from abuse or neglect, although Peninsula Health medical records available to Ms Carey referred to a history of childhood trauma due to the deaths of your grandfather and uncle in 2002 and 2003 which coincided with deterioration of your psychiatric wellbeing.
68 You reported a history of homelessness since 2008 and did not have a current partner or any dependents.
69 You left school after completing Year 10, describing yourself as 'average academic level. You said you had briefly seen a psychiatrist when you were younger however did not know if you had been prescribed any medication.
70 You completed a shopfitter apprenticeship between 1990 and 1994 and had worked in a variety of low skilled jobs such as factory work, concreting, bricklaying and building staircases as I have previously referred. You had been employed for approximately 50 per cent of your adult life, last working in 2007, thereafter in receipt of a received a disability support pension.
71 You reported a number of drug-induced seizures over the years, approximately 10 head injuries with associated loss of consciousness. A motor vehicle accident in 1993 you described was your most significant head injury with you losing consciousness for a period of time and receiving a laceration to the right frontal region. CT scans of your brain in 2004 were normal, as were CT scans in 2015, 2017, and 2018. You described approximately 10 overdoses on heroin with and without prescription medications.
72 You described your substance use as regularly consuming six to ten alcoholic beverages each day throughout your adolescence and adult life until this recent incarceration. Material in 2009 from Alfred Health indicated a history of 12 to 18 cans of bourbon premix daily. You also smoked cannabis on a daily basis from your mid-teens until your recent incarceration. You also began occasional use of intravenous amphetamine and methamphetamine in your mid-teens, using regularly by your late teens. In 2003 you described typically using methamphetamine daily until your most recent incarceration.
73 You also began using heroin intravenously when you were 19, however ceased that drug use when you commenced Methadone in 2010 or 2011.
74 You also reported abusing prescription medication from the age of 19 until your recent incarceration. And your medical records Ms Carey noted also indicated a history of drug seeking behaviour at hospitals.
75 It appeared to Ms Carey you had never undertaken medically supervised detoxification or residential rehabilitation, although you said you had been on a high doses of Methadone for almost a decade. In the past you had undertaken AOD counselling with ACSO and Regen including nine months of weekly AOD counselling when you were 23 years of age.
76 Most recently you had completed a number of drug course in custody. You said your goal was to remain abstinent from heroin and methamphetamine/amphetamine when you return to the community. That in my opinion is commendable, time will tell if successful.
77 You reported previous diagnosis of paranoid schizophrenia and/or schizo-affective disorder, depression, anxiety and Post-Traumatic Stress Disorder. Forensicare medical health summary notes referred to a schizophrenia anxiety disorder and antisocial personality disorder as well as psychiatric admissions in 2019, 2004 and in late 2003 to early 2004.
78 Medical records indicated a history of multiple frequent presentations to the Emergency Department in a state of distress when substance-affected.
79 In custody, you had been seeing a psychiatric/psychological clinician monthly.
80 Your current medication in custody was 140ml Methadone, 30mg Olanzapine and 45mg Mirtazapine. In the community you had been prescribed medication in the past however you had a history of medication non-compliance when in the community.
81 In 2012 a report from Dr Hsieh referred to a previous neuropsychological assessment of you by Arbias in 2002 (that report not sighted by Ms Carey). Dr Hsieh wrote that the 2002 assessment having concluded your neuropsychological profile was not consistent with alcohol-related brain injury nor consistent with mood and anxiety issues related to your psychiatric condition. At the time of the subsequent neuropsychological assessment by Dr Hsieh in 2012, your psychological profile was well below expectations and marked by significant attentional difficulty. Dr Hsieh felt your ongoing substance use and deterioration in mental health contributed to your clinical picture. Dr Hsieh was unable to confirm whether you had an acquired brain injury in the context of your substantial acute factors of ongoing substance use and psychiatric illness.
82 Regarding the offence before me, you told Ms Carey you were “under the influence of a lot of drugs. I was not coping well: not much money, mental health not the best” and that you had been 'up' for the preceding five days on methamphetamine and had taken 'too much' Valium in addition to your usual Methadone. You said you had little memory of this offending. Regarding your offending behaviour, you said you felt bad for it.
'I have remorse … it was the wrong thing to do … it was against the law … I feel bad for them (the victims) because they were trying to own their own business. I feel for them and their friends and for their family. They would have been scared at the time. You have to have compassion'.
83 Turning to your current functioning in custody, Ms Carey concluded you did not have any pressing cognitive problems. You described your current mood as 'more hopeful' as you expected to be near the end of your time in custody.
84 In the opinion of Ms Carey, you had an acquired cognitive impairment and your three decade history of polysubstance abuse was a prominent contributor to your cognitive impairment. Your multiple head injuries and overdoses were likely to have exacerbated your cognitive problems, although to a lesser degree than your substance use. Again, I note your use of drugs overlaying your mental health issues. CT scans suggested you had not suffered any moderate or severe traumatic brain injury since 2002.
85 In the opinion of Ms Carey, you possibly also had cognitive impairment arising from your two-decade history of relatively untreated/unstable psychiatric conditions, which she considered included schizophrenia and anxiety-related disorders. In her opinion your underlying cognitive impairments and difficulties with adaptive functioning were likely exacerbated by your maladaptive personality traits including antisocial personality disorder. She suspected also borderline personality disorder traits.
86 Given your history, Ms Carey was unable to determine whether your substance abuse fundamentally caused your psychiatric condition or whether you had an underlying psychiatric condition that predisposed you to
self-medicate with alcohol and illicit substances.
87 In her opinion your psychiatric condition and cognitive impairment however did not preclude you from understanding the wrongfulness of your actions.
88 Further, you had a mildly reduced capacity for consequential decision making as a result of your underlying cognitive impairment exacerbated by substance use at the time of this offending.
89 Turning to your risk of reoffending, Ms Carey referred to your ongoing alcohol, illicit substance use and prescription medication abuse as placing you at a higher risk of further permanent cognitive impairment. She recommended AOD intervention in the future and other forms of treatment. As do I. You must address your use of illicit substance and excessive use of prescribed medication. In addition, you must take prescribed medication in prescribed quantities to enable you to address your underlying mental health issues. If not, it is likely you will continue your involvement with the criminal justice system and keep serving further and further sentences of imprisonment.
90 Ms Isobel urged some moderation of general and specific deterrence consistent with Verdins. I accept that submission, a conclusion reached by me in 2010 (see my sentencing remarks at that time) and the recent reports of Ms Carey and Dr Thomas. In particular however I also note the conclusion of Ms Carey in the previous few paragraphs referable to your excessive drug use and multiple drug use at the time of this offending.
91 Regarding your rehabilitation prospects, in my opinion, they are at best guarded. Much will depend upon your use/cessation of illicit drugs and inappropriately using prescription medication. It is not going to be easy for you to abstain totally from these drugs as your history involves many years of using same and in significant quantities. You need to undergo appropriate courses in AOD counselling for me to conclude your rehabilitation prospects are favourable. When sentencing you, however, I must seek to maximise your chances of rehabilitation as they may be.
92 Turning to sentencing, Ms Isobel referred to the principle of parsimony when sentencing you. The need for general and specific deterrence, albeit moderated, based on your mental health, I note consistent with my opinion relevant to your court appearance in 2010. Ms Isobel urged your time of imprisonment of 521 days to date at the time of the plea hearing for your offending would be a warning and deterrent to others.
93 Should I consider a further sentence be imposed, she urged the time already served, with a combined Community Correction Order with therapeutic conditions, as recommended by Dr Thomas and Ms Carey, should be considered.
94 Turning to the gravity of this offending, Ms Isobel urged yours was at the lower end of the spectrum of attempted armed robbery, I agree and that is supported in my opinion by CCTV I viewed of your offending. She urged there was a lack of significant planning or premeditation (other than, as I discussed with her, you returning to the premises). I agree. That you remained at the doorway of the 7-Eleven upon your return and did not enter the shop. That is apparent. That you had the boxcutter behind your back the majority of the time, only visible at your front for seconds. I agree consistent with the CCTV footage.
95 Further, Ms Isobel urged that you did not attempt to physically harm anyone in the shop. I agree. Ms Isobel also referred to the evidence of Ganta at the Magistrates’ Court on 8 February 2019 when he described you as 'more of a nuisance … than posing any fear', and that you were not acting in a frightening way. That was also consistent with the CCTV footage.
96 The CCTV footage Ms Isobel also submitted, showed customers coming in and out of the store, going about their business during your offending. That is so.
97 Turning to your pleas of guilty, you had accepted full responsibility for your offending and she said were deeply remorseful for it. She also submitted your pleas of guilty had significant utilitarian benefit and was indicative of remorse for your offending and I accept that is so.
98 Ms Isobel also referred to your expressions of remorse for your victims, as stated to both Ms Carey and Dr Thomas.
99 The prosecution filed written submissions on sentence (Exhibit C) and submitted specific deterrence, denunciation and punishment were important sentencing considerations. They are. The prosecution conceded your offending was unsophisticated, without a degree of planning or premeditation, apart from an initial altercation with staff, then returning a short time later to commit the offending. I agree.
100 Your offending involved 'soft targets', as often referred to in cases. I agree.
101 The prosecution submitted your offending was brazen, in the middle of the morning in a reasonably busy store, with customers present at the time of it. I agree, also apparent from the CCTV footage.
102 The prosecution referred to your long criminal history for offences including dishonesty, violence and weapon possession. I agree and am concerned also by your offending which occurred following my sentence of you in 2010; although I note not for offences of attempted armed robbery or indeed armed robbery. You have however continued to offend.
103 The prosecution noted you have also been sentenced to numerous community-based dispositions and suspended sentences of imprisonment, many contravened. I also note those, including court appearances since the sentence I imposed in August 2010.
104 The prosecution submitted, and I agree, specific deterrence has a role to play in sentencing you given your priors generally and specifically that dealt with in 2010.
105 The prosecution submitted that the principles in Verdins did not apply based on the material before the court, including the reports of Ms Carey and the most recent report from Dr Thomas. I discussed with Ms Hamill that I considered as I had in 2010 that Verdins has some application as described in my 2010 sentencing remarks. Overlaying your mental health issues however was your extensive drug use - - -
106 What's the problem? Can't hear you, Ms Hamill. If anyone can hear in any of these screens you've just got to wait, something's gone wrong with the system. We're just trying to fix it. I've probably got about 10 minutes to go, so you've just got to wait for a minute. I won't be long. How we going now? Can you hear anyone?
107 MS HAMILL: Got you back now.
108 HER HONOUR: All right, well if anything's been left out I'll endeavour to just quickly repeat the last sentence. There are of course written sentencing reasons which will hopefully fill in the gaps and at least it's been recorded anyway. All right, so you're ready?
109 The prosecution submitted that the principles in Verdins did not apply based on the material before the court, including the reports of Ms Carey and the most recent report from Dr Thomas. I discussed with Ms Hamill that I considered as I had in 2010 that Verdins has some application as described in my 2010 sentencing remarks. Overlaying your mental health issues however was your extensive drug use at the time of this offending. I conclude general and specific deterrence are moderated consistent with Verdins to a limited extent mindful again of your excessive drug use at the time of the offending.
110 I also accept your time in custody will be more difficult for you than more mentally able prisoners, consistent with general sentencing principles, not Verdins principles five and six.
111 The prosecution submitted, given your prior criminal history and long-term substance abuse issues, your prospects of rehabilitation should be assessed as guarded and I agree, at best guarded.
112 The prosecution referred to Berry v R[2] and McCarthy v R.[3] I have read and considered those cases. It is always difficult comparing cases factually as facts vary enormously case to case, as do all matters in mitigation and personal to an offender. Ultimately, I must determine the appropriate sentence based on all relevant sentencing considerations, assisted by, in particular, pronouncements by superior courts regarding a particular offence and penalties imposed in other cases, mindful of all matters personal to you and in mitigation of sentence.
[2][2019] VSCA 291.
[3][2018] VSCA 91.
113 The prosecution submitted the timing of your plea of guilty was late, resolving shortly after the first listing of the final directions hearing and after a contested committal, at which the victim, Ganta, was cross-examined. I agree. You have, however, pleaded guilty and that is a relevant consideration.
114 After your plea hearing I advised both counsel of my intention to have you assessed for a Community Corrections Order (CCO) to enable me to fully consider the submissions by both counsel referrable to sentence.
115 I received a report from Paul Sguerzi dated 5 June 2020 who assessed you as suitable for a Community Correction Order.
116 The author noted, as do I, previous contraventions by you of seven orders. You said you were willing to comply with another Community Correction Order if imposed. You reported accommodation issues and, as I discussed with counsel, that concerns me. You also, however, have transitional support, noted by Mr Sguerzi and in evidence given before me today by Ms Holt. I regard a lack of suitable accommodation as increasing your risk of re-offending. You concerningly reported no family support and limited pro-social peers to assist you in the community.
117 You told Mr Sguerzi you wanted to receive further drug, alcohol, and mental health treatment. I hope you maintain that intention.
118 Yours, in certain aspects, is a difficult sentencing exercise, given you previous failures to complete a significant number of Community Corrections Orders and your ongoing substantial drug use. A further complication is the time to date you have spent on remand. In my opinion it is very close (in time) to an appropriate non-parole period. There is of course no guarantee that you will be paroled at your earliest eligibility date and your prospects of obtaining parole could be hindered by your lack of suitable accommodation. If you walk from prison to being homeless, or walk from prison to a Community Correction Order being homeless, in my opinion your risk of re-offending increases dramatically.
119 Counsel for the prosecution submitted in summary, a combination disposition would reflect a decrease in sentence compared to your similar offending dealt with in 2010. I do not regard that as so, in particular given that your time spent on remand to date (approximately 18 months). It is likely if sentenced to a head sentence with a non-parole period you will serve longer in custody than I consider appropriate. There are also organisations (NDIS & ACSO) who can help you upon your release, which gives me guarded optimism.
120 Ultimately, I have determined that the appropriate disposition will include a Community Correction Order in addition to time in custody and your release from custody being imminent.
121 Before I ask if you to consent to such an Order being made, I have to tell you a bit about the Order, so you know what it means.
122 Now, I will just stop there. Mr Smith, can you hear me?
123 OFFENDER: Yes, I can Judge.
124 HER HONOUR: I am going to - ultimately you are going to be serving a little bit more time in jail. Then after that you are going to be on a Community Corrections Order. But I have to tell you about that Community Corrections Order. I know you have heard it many times before, but I have to tell you about this Order and then I will ask you if you consent to being on such an Order and you can either say yes or no. If you say yes we will keep going and if no we will also keep going, maybe in a different way. So you have got to listen, listen carefully, all right?
125 OFFENDER: Yes.
126 HER HONOUR: Can you hear me, Ms Isobel? Can you hear me, Ms Isobel?
127 MS ISOBEL: Yes, I can, thank you.
128 HER HONOUR: Right, the Order will be for two years with a conviction recorded.
129 The following core conditions apply to all Community Correction Orders and to this one.
·You must not commit, whether in or outside Victoria, during the period of the Order, an offence punishable by imprisonment.
·You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.
·You must report to the Community Correction Centre at Melbourne Justice Centre (50 Franklin St, Melbourne) within two clear days following your release from custody.
·You must notify the Secretary, or his or her nominee, that is CCS worker, of any change of address or employment within two clear working days after that change.
·You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.
·You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
130 I stop there. Ms Isobel, did you go through these likely conditions with him? Ms Isobel?
131 OFFENDER: Yes, someone has.
132 MS ISOBEL: (Indistinct.)
133 There are a number of other conditions which will be attached to this Order, and they apply to you:
· You have to perform 150 hours of unpaid community work over a period of two years as directed by the Regional Manager (s.48C). 50 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition (s.48CA). I hope this encourages your participation in treatment.
· You must be under the supervision of a community corrections officer for a period of two years.
·You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee for two years (s.48E).
· You must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the Regional Manager (s.48D(3)(a)).
· You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
·You must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility as directed by the Regional Manager.
· You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s.48D(3)(e)).
· You must attend for review of your progress (this is called judicial monitoring) and compliance or otherwise with the conditions of this Order and you have to come back before me on 20 October 2020 at 9.30 am (s.48K).
134 Now, I can only impose a Community Correction Order if you agree to such an Order being imposed. So, I need to tell you a bit more about it.
135 I should tell you that if contravene or breach this Order by committing further offences you can be charged, and a sentence of imprisonment is one of the options that can be imposed for that breach (s.83A(d)).
136 You can also be re-sentenced for the offences that are before me and one of the options available includes a term of imprisonment (s.83A(s)).
137 So you have got to be extra careful for the next two years. No committing any further offences that might incur a term of imprisonment, otherwise you are back before the court and you will be re-sentenced on these two charges that are before me. You will need to be extra careful.
138 I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer or worker if you like, as part of this Order, a substantial fine can be imposed (s.83A(e) and A(f)).
139 Now, Mr Smith, are you aware of all of that?
140 OFFENDER: Yes, I am, Judge.
141 Being aware of the conditions of the Order and what the ramifications or implications if you breach it, do you consent to the Order being made; yes or no?
142 OFFENDER: Yes, I'm prepared to do that.
143 I return to sentence.
144 As well as matters personal to you to which I have referred including your prospects of rehabilitation as I find them to be, I must also take into account the need for general deterrence which is of considerable importance in a case such as this. It has been repeatedly stated by the judges in this court and also decisions of the Court of Appeal in this State. The importance of general deterrence when sentencing for offences of attempted armed robbery involving soft targets.
145 There is also the need for specific deterrence when sentencing you, given your repeated offending involving similar type offending and dishonesty offences (theft). I must also consider the question of protection of members of the community and bear in mind the likelihood of your reoffending and this continues to cause me concern. This will continue to do so until I can be assured as best I can that you are going to abstain from illicit drugs in the future and/or abstain from misuse of prescription medication.
146 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
147 So I sentence you as follows.
148 I would like you to listen carefully to this, Ms Hamill, in particular to see if it accords with the maximum 12 months business and we will come to that in a minute.
149 On Charge 1, I sentence you to 17 months imprisonment.
150 On Summary Charge 2, I sentence you to 2 months' imprisonment.
151 Charge 1 is the base sentence and I direct that 21 days of Summary Charge 2 be served cumulatively upon Charge 1.
152 That results in a total effective sentence of 17 months and 21 days. You will then be subject to a Community Corrections Order for a period of 2 years. The conditions of that Order to which I have already referred.
153 Now, I will come back to all this.
154
Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 532 days in custody by way of pre‑sentence detention up to and including yesterday
9 June 2020 and direct that this be entered into the records of the court. On my calculations, and I have not done it to exact, that means you have got a further 6-7 days (approximately) in custody to do.
155 Now, pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to these offences and been found guilty of them, I would have sentenced you to a term of imprisonment of four and a half years or four years and six months with a non-parole period of three years.
156 The prosecution made application for disposal of the box cutter/Stanley knife used in your offending. Counsel who appeared on your behalf consented to the Order being made and I make the Order in the terms sought.
157 Now, first things first; does that sentence accord with the legislation in relation to combination dispositions, Ms Hamill? Even if you do not like it.
158 MS HAMILL: Yes, Your Honour.
159 HER HONOUR: All right. Do you agree, Ms Isobel, that that accords with the sentencing for combination dispositions?
160 MS ISOBEL: Yes, Your Honour.
161 HER HONOUR: All right, now do you both understand that sentence, which means - as I said, I stress I have not done the maths. But it is about an extra six or seven days in custody before - to hopefully have some accommodation sorted out. Now, is that your - so counsel do you understand that? What I am proposing?
162 MS ISOBEL: Yes, I do, Your Honour, thank you.
163 HER HONOUR: Right. Am I right with the PSD of 532 up to and including yesterday; is that correct?
164 MS HAMILL: By my calculations, Your Honour, yes.
165 HER HONOUR: Agree, Ms Hamill?
166 MS ISOBEL: I do.
167 HER HONOUR: Sorry, you agree, Ms Isobel?
168 MS ISOBEL: Yes, I do.
169 HER HONOUR: All right, now is there anything that either of you, that is you, Ms Hamill; you, Ms Isobel, are unsure about the sentence?
170 MS HAMILL: No, Your Honour, no.
171 HER HONOUR: Ms Isobel?
172 MS ISOBEL: No, Your Honour.
173 HER HONOUR: Now, Ms Holt, you are still there, just?
174 MS HOLT: Yeah, still here.
175 HER HONOUR: Great, well I hope you have heard about my comments about accommodation. I greatly appreciate your assistance. I have nearly finished, so if you just hang on minute. But you have got six or seven days, approximately it is, to see what you can do or the other author of the report, Regen or ReStart. But I greatly appreciate the assistance that you are able to give people in custody generally, not just Mr Smith, but he is obviously included in that. It is a difficult job and I am on the parole board, I know how hard it is to find suitable accommodation. So thank you very much for you effort.
176 MS HOLT: No worries, thank you.
177 HER HONOUR: Now, we have to work out how this is signed. I am being told my associate what the process will be - I have got 10 minutes left so just bear with me very quickly. What do we do, Madame Associate? Right. All right, Mr Smith, you have to sign this document.
178 OFFENDER: Yes.
179 HER HONOUR: So what happens is it will be forwarded to the prison, you have to sign it and then it comes back. If you do not sign it you will see me again. And, Ms Isobel, have you explained this process? Ms Isobel?
180 MS ISOBEL: No, Your Honour. No, Your Honour, sorry, I haven't.
181 HER HONOUR: Well, all right. As I have said, I do not know how you are going to explain it to him because you will not have time today. But this document is going to be forwarded to him in prison, he must sign it. You understand what document we are talking about, that is his consent to the Community Corrections Order.
182 MS ISOBEL: Yes.
183 HER HONOUR: It will also contain the conditions of the Order, you understand that?
184 MS ISOBEL: Yes.
185 HER HONOUR: Are you going to have a chance to speak to him?
186 MS ISOBEL: Yes.
187 HER HONOUR: Well, all right, sooner the better. So I do not think there is anything else we need to do; is there, Madame Associate? No, all right. Before we disconnect the link does anybody there have a question?
188 OFFENDER: Excuse me, Judge?
189 HER HONOUR: Yes?
190 OFFENDER: So when do I get released?
191 HER HONOUR: I said about six or seven days. Ask Ms Isobel, she will do the maths for you.
192 OFFENDER: Six or seven days, right.
193 HER HONOUR: Give or take, do not quote me. Speak to her, not me. She will do the maths.
194 OFFENDER: All right.
195 HER HONOUR: Anything further from anyone else, counsel? No? All right, we will disconnect the link. Thank you both, Thanks everybody, including you, Ms Holt. Greatly appreciate your effort.
196 MS HOLT: No worries, thank you.
197 HER HONOUR: Yes, we will disconnect the links, thanks a lot.
198 OFFENDER: All right, thank you.
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