Director of Public Prosecutions v Smith
[2018] VCC 1697
•17 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTIONCR 17-02139
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA SMITH |
---
| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | Plea 10-11 October 2018 |
| DATE OF SENTENCE: | 17 October 2018 |
| CASE MAY BE CITED AS: | DPP v Smith |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1697 |
REASONS FOR SENTENCE
---Subject: Sentencing
Catchwords: Plea of guilty (early); armed robbery of convenience store; youthful offender with no prior criminal history; recent diagnosis of Asperger’s Syndrome; serious physical health condition requiring medication; overuse of prescribed medication caused manic state contributing to offending; strong evidence that ASD likely to make imprisonment more onerous; “catastrophic” deterioration in mental health likely if imprisoned.
Legislation Cited: Sentencing Act 1999 (Vic) s. 6AAA.
Cases Cited: R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269
Sentence: CCO for 2 years with supervision and rehabilitation.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T Bolton | Office of Public Prosecutions |
| For the Accused | Ms K Blair | Mr M Brugman |
HER HONOUR:
1Joshua Luke Smith, you have pleaded guilty to a charge of armed robbery.
2The maximum penalty for armed robbery is 25 years' imprisonment, which, as the second-highest maximum sentence in this state, shows how very serious an offence it can be. However, in the particular and unusual circumstances of your case, I have decided that a sentence of imprisonment is not required. I intend to place you on a Community Correction Order. I will now explain my reasons.
3This offence occurred shortly after 7 am on Sunday 14 May last year. You drove your sister's car to a 7-Eleven store in South Geelong, having first covered the number plates with grey duct tape. You parked and entered the store, carrying an axe or tomahawk under your jacket.
4The only person present was an 18-year-old young man who was employed there, and who was the only staff member working there that morning. You waited at the counter for him to walk into the service area to attend to you, and when he did so, you produced the axe from under your jacket and said, "I'm gonna need all your money." The young man said, "That can't happen", and you replied, "It will happen." He opened the cash till and removed its entire contents, first the notes, and then the coins, placing them on the counter in front of you. The total was $214. While he was doing that, you were holding and turning the axe in your hands. You picked up the money and walked out of the store. The young man then telephoned his manager, and then his father.
5Although this young man has not made a victim impact statement, I take into account that he was 18 years old, working alone in the store that morning, and by the description of the offending and my observation of it on the CCTV footage, I have no doubt that this was a frightening experience for him at the time. Unfortunately, it is frequently the case that after such an experience, a person in his position has at least some ongoing emotional impact, including on the person's sense of security and confidence, particularly when working alone. There is no actual evidence of that in this case. It is to be hoped that if he is experiencing such emotional consequences, he can receive assistance in trying to deal with and hopefully to overcome them.
6After you left the store, you returned to the car you had driven there, and drove it out the entry, which the prosecution contends was a deliberate attempt by you to avoid CCTV cameras. In driving away, you went at almost double the speed limit through a set of traffic lights, and that caused a camera to photograph the car. Although the duct tape covered the rear registration plate, there was enough identification on the car for police to be able to trace it through the car dealership to your parents' home, as it was registered to your father. You and your sister were both living with your parents in Torquay at the time.
7A day or so after the robbery, your parents had found you in the shed, wrapped in a sheet and very distressed, saying you'd done something wrong. It does not appear that you knew what it was, or were able to recall what it was, at the time.
8Two days after the robbery, police attended at your parents' home. A search of your bedroom revealed a half-used roll of grey duct tape under your bed. Also found were a jacket and beanie matching those worn by the offender as shown in the CCTV footage of the offence.
9You were taken to Torquay police station for a recorded interview. In that, you said you had no memory of committing an armed robbery. You said that you did not recall being at the 7-Eleven, having a tomahawk, or walking into the store, or asking for money. You said you had no memory of covering the registration plates with duct tape. You said you did not recall anything from the day but had no intent to hurt anybody. You said you were currently on a type of steroid that had side effects such as major depression, and that they can cause what you called "roid rage." Although denying any recollection of the offending, when shown the CCTV stills taken from the 7-Eleven store, you identified yourself, your sister's car, your jacket, jeans and beanie.
10After the interview, you were charged, and the same day attended a filing hearing and were granted bail. At a committal mention in October last year, you pleaded guilty.
11By your plea of guilty, you have accepted responsibility for this offending. You are entitled to considerable leniency for entering an early plea of guilty before disputed hearings and saving the witnesses - in particular, in this case, the victim - from having to attend court and relive the events by giving evidence. In your case, I am prepared to infer considerable remorse from the fact of the plea of guilty. I also have other evidence of your remorse, including that you discussed with your parents that you are very sorry for the impact of this event on the young man who was working at the store. It has been discussed that you might write a letter to him, apologising, and at least your parents would like the opportunity for you to hand that to him. You have also discussed how sorry you are with your grandmother.
12Taking all these aspects of your plea of guilty into account, I have moderated your sentence accordingly. I will tell you, after I have imposed sentence, what it would have been had you not pleaded guilty.
13I turn next to your personal circumstances, because they are highly relevant to my assessment of your culpability for this offence, as well as highly relevant for all other sentencing considerations.
14In discussing your personal circumstances, I am conscious that a psychologist reports that you are uneasy when watched or talked about, and you feel self-conscious, and feel that others do not understand you. From my observations and impressions of you over the course of the hearing here last week, you seemed to become agitated when personal matters about you were discussed. I have no wish to cause you similar distress or agitation, and therefore, I am going to limit a number of the topics that have been raised with me in terms of what I repeat here. But it is important that these sentencing reasons do refer to some very personal matters, which I understand are sensitive for you. However, they are of great relevance in my deciding and explaining why I have decided on your sentence.
15You are now aged 26 and were 25 at the time of the offence. You have lived in Torquay since the age of nine, with your parents and siblings, in a stable, supportive and nurturing family with a large and supportive extended family. From an early age, you were noted to behave a little differently. You started speaking late, and had difficulties interacting with other people, including other children while you were at school.
16Through school, you had some difficulties and struggled to make friends. However, with support from your family, including extended family, you completed Year 12, and then proceeded to a university course in accounting. You completed that course, I am told, at least at the end, online. It is clearly to your credit, and those encouraging and supporting you, that you completed that course.
17Unfortunately, you have not been able to obtain employment using your qualification, or even other sustained employment. I am told that you spend much of your time at home on the internet, and sometimes locking yourself in your own room for protracted periods.
18At about age 20, you developed serious bowel symptoms which were diagnosed as Crohn's disease. This condition has, at times, debilitating symptoms which also prevent you from engaging in many activities, and has required considerable ongoing treatment, including hospitalisation on more than one occasion, for flare-ups. This condition also requires ongoing medication. You have been treated since about 2011 for it both by your general practitioner and a consulting gastroenterologist who had prescribed both daily Sulfasalazine - I do not think anyone has been able to pronounce that properly and I am not either. Also, for more serious flare-ups, you have been prescribed a steroid-based drug called prednisolone.
19Your father explained that you and your parents discussed at length the consequences of having to deal with this Crohn's condition, now and in the future, and they encouraged you to take charge of it. That meant that you had control of your medication. I also have been told it led you to try to research much more about the condition and its symptoms and treatment for it on the internet.
20In the week or so leading up to the day you committed the armed robbery, you had been suffering a flare-up of your Crohn's disease, and self-medicating with prednisolone for it. According to your parents, for at least a week before that date, they noticed that you were much more agitated and were behaving in unusual ways. You were not sleeping. You were observed by your father to be up at night, such as at 4 am trying to cook, or at 2 am coming back to the house from walking on the beach with wet socks. You took long drives and apparently drove to Adelaide and back listening to music.
21It seems that you had been to a Torquay pharmacy to have an older prescription for prednisolone filled. Then, instead of taking it according to the dosage prescribed, you drew up a plan based on what you had researched as treatment for Crohn's disease on the internet, involving higher initial doses tapering down. In doing this, you apparently took initially more than three times the prescribed dose, at least for the first few days. That seems to have destabilised your mental health to a very considerable degree, and led to a manic reaction - what you described to police as "roid rage."
22You also have been diagnosed with a syndrome involving heart rhythm abnormality which causes palpitations but only becomes symptomatic every few years or so.
23You have no prior history of offending, consistent with the references that describe this offending as out of character for you. I have read references from your grandmother, and a great uncle, as well as from your father, who also gave oral evidence. Obviously, they all love you dearly and are far from independent, but they have known you all of your life, and I give full weight to what they say as they all acknowledge and do not seek to minimise the seriousness of what you did in committing this offence.
24All of them describe this offending as being totally out of character for you. They variously describe you as kind and gentle, loving and quiet, and all confirm the strong family support around you, and appreciation for your good qualities - including your care and helpfulness towards others, such as your grandparents. All also describe the impact on you, both physically and emotionally, of the Crohn's condition after it was diagnosed, and how its severe symptoms debilitate you, and overall, how it has impeded your ability to engage as actively in activities, and as time went on, led to psychological consequences.
25Your general practitioner, Dr Phillips, has provided information on your various diagnoses and the history of your treatment for Crohn's disease. He confirms that at times you have required high doses of the steroid-based prednisolone to control the severe symptoms, and that it has been prescribed by your gastroenterologist. He sets out that one of the recognised side effects of prednisolone is that large doses can cause behavioural and personality changes, ranging from mood swings to psychotic episodes, which can include both manic and depressive states. He gives the opinion that the high doses of prednisolone taken by you led to serious behavioural and personality changes that were behind your offending.
26In preparation for facing court in this matter, in April of this year, you were assessed by a psychologist, Ms Gina Cidoni. She conducted psychological testing from which she concluded that your IQ, your intellectual functioning, falls in the average range with some functions higher. On personality profile testing, she assessed you as having a level of defensiveness and a tendency to under-report symptoms. Her testing also reflected that you had low mood, a loss of interest in activities, low energy, excessive worry and some hopelessness about the future. She also noted that you have feelings of worthlessness, restlessness, exhaustion, negative thoughts about yourself, and sleep disturbances.
27You are said to experience restlessness and agitation, and she assessed this as indicating a clinical picture involving higher distress associated with sleeping complaints. Your anxiety levels were elevated. You also reported being unable to complete tasks and feeling as if your mind goes blank. As I have already said, you told her you feel that others do not understand you, and you are uneasy when watched or talked about, and feel self-conscious with others. You were inclined to social withdrawal. She assessed you as in a range of low risk of further violent offending.
28Ms Cidoni was of the opinion that you presented with distinct traits of autism spectrum disorder, specifically, what is known as Asperger's syndrome. She describes the basis for this diagnosis and the likely manifestations of it. She expressed concern in you over-using your medication - that medication, of course, having been for the Crohn's disease, not for Asperger's syndrome. She was of the view that the overuse of the medication may explain your offending behaviour, as taking too much of the prescribed medication resulted in agitation and inability to sleep, and that may well have triggered a psychotic episode. It was her opinion that imprisonment for you could be disastrous, in view of your specific presentations. She recommended a psychiatric evaluation.
29You were then referred for an assessment to Associate Professor Andrew Carroll, a consultant forensic psychiatrist, in June of this year. Professor Carroll interviewed you and your parents, examined the details of the offending and other information provided to him, including your GP's letter and Ms Cidoni's report. He found your social manner markedly unusual, without any eye contact at all, and with a marked lack of reciprocity. He found your mood was generally reduced in reactivity, although in interview with him, you became close to tears when discussing this offending. You said you had significant anxiety in respect of court and the expectation of imprisonment. He found no evidence of any psychotic features when he examined you. He found no evidence of any enduring mental illness.
30He considered that you meet the criteria for autism spectrum disorder, and explained the reasons for that diagnosis that I will not repeat here. He found you have no associated intellectual disability, and felt that you would come under the rubric of what is known as Asperger's syndrome. This he describes as being an enduring disorder with a biological basis, and he noted that you had received no specialist support up to that stage for it.
31He also diagnosed that you had experienced a brief episode of steroid-induced mania, as a result of using high doses of steroids for an acute episode of Crohn's disease. He noted that manic episodes are very well recognised as a complication of steroid use, especially in high doses. He noted that you reported also taking benzodiazepines at the time of the alleged offending, and these would have further impaired your self-control and memory function.
32His opinion was that at the time of the offending, your mental state was severely disturbed by manic symptomatology, secondary to the steroid use, which would have made you unable to reason with a moderate degree of sense and composure with respect to the wrongfulness of your actions. He noted that they were grossly inconsistent - that is, your actions - with your usual law-abiding personality and behavioural patterns as described by your family. He felt your manic symptoms had the effect of rendering you unable to reason with sense and composure.
33Professor Carroll had been told of a brief episode in 2015 when you had a psychiatric admission to hospital for an apparent psychotic episode, also in the context of taking high dosage of steroids for your Crohn's symptoms. Notwithstanding that episode, he did not believe that you had a good awareness or understanding of the degree of risks to your mental health when taking high dosage of steroids. He also did not believe that you appreciated the risk that taking anti-anxiety medication was also further endangering your psychological stability.
34Further, while Professor Carroll did not consider that there was any direct link between your autism spectrum disorder and the alleged offending, it was his opinion that that condition rendered you exceptionally vulnerable should a term of imprisonment be imposed. Professor Carroll considered that you would be especially ill-equipped to cope with the level of interpersonal contact, and the sensory stimulation, such as noise, inherent in the prison context. His opinion was that placement within a prison would severely endanger your mental health, and place you at significant risk of what he called "catastrophic psychological deterioration."
35I turn now to the principles I have to consider in deciding your sentence.
36As part of my consideration of sentencing principles, I must assess both the objective seriousness of the offending, and from a subjective point of view, your role and culpability for it.
37There is no doubt that armed robbery is regarded as a very serious offence, as is reflected in the maximum penalty of 25 years' imprisonment. That penalty covers a large range of possible conduct, however, it always involves both intended dishonesty - that is, theft - and the threat of force with a weapon. Even when committed for minimal gain and without much sophistication, or with weapons other than firearms, instances of armed robbery can be very serious. When committed on what are commonly called "soft targets", such as persons working alone in stores where there is likely to be cash, and in particular, at times when there are not likely to be many people around. Such offences can be dangerous, cause significant harm, and are to be unequivocally condemned.
38I take into account that although you were holding and turning or twisting the axe or tomahawk in your hands, that being a weapon presumably capable of doing harm, at no stage did you raise it towards the young man. The CCTV footage shows that there was apparently conversation going on between you and him, and does not show that your manner was otherwise aggressive; that is, other than the fact that you were holding and turning an axe, and obviously demanding money from the till. This is not to excuse this behaviour at all, but I compare it with other possible and more frightening experiences some victims of such incidents go through.
39This was not a sophisticated, well-planned event, although I do take into account that you seem to have pre-planned it at least to the extent of covering the registration plates of the car in advance, and you seem to have had some awareness that there might be CCTV cameras as you drove out the entrance. It is said that you probably got the idea of covering the registration plates from watching a TV show. That does, as I say, indicate some degree of planning, but not with enormous sophistication.
40The objective seriousness of this incident calls for a sentence which conveys community denunciation and sends a message to others who might be tempted to do something similar that they can expect serious punishment. That is what lawyers call "general deterrence."
41In your case, however, the subjective factors going to your level of blameworthiness or culpability are particularly unusual. First, there is considerable persuasive evidence that you were acting at the time in a manic state as a result of excess use of steroid medication. Acting in such a state, if self-induced by taking drugs, in particular illicit drugs, when someone knows the likely effect on themselves, is never an excuse to offending behaviour - although it sometimes puts it into context. Although you had changed the dosage to higher than what had been prescribed, there does seem to be an explanation for that having occurred; namely, that you had researched your condition on the internet, and Dr Phillips confirms that there is information to that effect on the internet - that is, about raising initial dosages of steroid medication for severe Crohn's symptoms. Professor Carroll is of the view that you did not have a good awareness or understanding of the possible effect of taking those higher doses of the prednisolone. He is also of the opinion that it is likely that your reasoning and self-control were severely impaired by psychiatric symptoms secondary to the steroid-induced mania.
42As I have said, normally, reacting to the effect of substances on someone's mental state and committing an offence in that condition will not be an excuse. However, in light of the evidence outlined, I am satisfied that this is one of those relatively rare cases where you induced a psychotic reaction in yourself without being aware that that was likely or even a real possibility. I also take into account this was prescribed medication and not illicit medication.
43I am also satisfied that that condition then led to considerable impairment of your judgement and reasoning, and therefore, was crucially connected with why you committed the offence that you did.
44In my view, for these reasons, your culpability or blameworthiness should be seen to be significantly lower (although not totally eliminated[1]) than it would for someone who simply carried out an armed robbery of this type, even if they did so in a state of lack of judgement or self-control induced by taking illicit drugs.
[1]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269, “limb 1”.
45For the same reason, in this case, the application of the principle of general deterrence should be considerably moderated[2]. I do not consider that specific deterrence - that is, to send the message to you not to commit this or similar offending in the future - is required to play much role, because the consequences of this one offence have been brought home to you, and of course, to you through your family's reaction. I accept that you have learnt a very salutary lesson, and I very much doubt that you would engage in similar behaviour again.
[2] “Limb 3”.
46Further, and in my view, very importantly in this case, the opinions of both Ms Cidoni and Professor Carroll strongly support the view that you would experience imprisonment with very much more difficulty than a person not suffering an autism spectrum disorder, and indeed, both say that there would very likely be serious - Professor Carroll says "catastrophic" - consequences to your mental health[3].
[3]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 16 VR 269, “limbs 5 & 6”.
47Finally, I note that at age 26, you are still to be regarded as youthful, and, having no prior criminal history, I should regard your rehabilitation as an important sentencing purpose. There have clearly been many steps taken since this offending to try to minimise the risk that you could get into such a state again. This includes discussions with you the diagnosis of autism spectrum disorder which had not previously been made or discussed with you. I am told you have been accepting of this diagnosis. Hopefully, you will be willing to access support programs to assist you with the consequences and how to cope better with that condition.
48Further, your father outlined how you no longer have the immediate control of medication that is prescribed for you. Apparently, you have ceased used prednisolone altogether, and have tried to tackle the Crohn's disease symptoms with diet. Even though I am told those have been positive consequences, it does not mean that you will not need prescribed medication in the future. But there obviously needs to be care that you do not alter the dosages from what is prescribed.
49Taking all of these considerations into account, I have decided that notwithstanding the serious nature of the offence of armed robbery, you should be sentenced to a Community Correction Order without serving any immediate time in prison.
50I am conscious that the prosecution submitted that some immediate imprisonment ought to be imposed, but in my view, the evidence strongly suggests to the contrary - in particular, the evidence of what could be even more destabilising consequences, as confirmed by Professor Carroll and Ms Cidoni.
51I am satisfied that a Community Correction Order, in all of these circumstances - and they are unusual circumstances - would adequately address all sentencing purposes.
52I had you assessed for such an order, and you were found suitable. There was discussion of some other conditions and why it was recommended they not be imposed. In the unusual circumstances here, I am going to accept the advice of why not to impose them, and in particular, a mental health assessment condition.
53What I am going to impose, in addition to what was recommended, however, under the rubric of "other programs", are that some of what has been raised by your counsel today be pursued.
54Would you stand up now, please.
55Joshua Smith, you are convicted of the charge of armed robbery.
56You are going to be placed for that on a Community Correction Order to last for two years from today. The conditions I impose are that you be subject to supervision, that you be assessed and attend as directed for medical treatment, and that you be assessed for and attend as directed for other programs, in particular, which may assist in dealing with and supporting you through the more recent diagnosis of Asperger's syndrome, or autism spectrum disorder.
57Some of that was discussed in the report. Your counsel raised some suggestions, apparently researched by her instructing solicitor, and they should be made known to your family. If the community corrections officers do not think that any of the programs they find are suitable, they will not direct you to them. But I am going to place that other programs condition on the Order. So there is supervision, attending as they direct you for medical treatment, and attending programs that they might direct you to.
58In addition, all usual terms of a Community Corrections Order apply. I know they would have been explained to you, and you have agreed to comply, but I need to briefly summarise them to you.
59You must attend within two working days of today - that means, by Friday at 4 o'clock - for a first meeting at the community corrections office. The address will be on the order. It is the Geelong community corrections office. You must, while the order is continuing - that means for the two years - advise community corrections officers of any change in address of where you are living. If you have employment, you have to advise them of the address of your employment or any change in that.
60You must obey all lawful directions and instructions of community corrections officers, and attend when they tell you to, or accept visits from them. You must not leave the state of Victoria without prior permission of community corrections officers. And above all, you must not commit any other offence that could be punished by imprisonment. Now, any offence of dishonesty or violence would be that. I am hopeful that you will not commit any further offence, but you have to be aware that even if it seems a quite minimal or not very important offence, if it could be punished by imprisonment, that would be a breach of the order.
61And if, either by not complying with the other conditions, or by any further offending, if you were to breach the order, you could expect to be brought back in front of me, and it would be open to me to re-sentence you on this offence; that is, for the armed robbery. That would depend on all the circumstances - how you had breached the Order, how much you had complied with the order - but you have to be aware that those are the possible consequences.
62Do you understand these terms and conditions?
63OFFENDER: Yes.
64HER HONOUR: Do you agree to comply with the community corrections order?
65OFFENDER: Yes, Your Honour.
66HER HONOUR: All right. I need to state what the sentence would have been if you had not pleaded guilty, but been found guilty after a trial, and if all other circumstances had been the same. Owing to these various physical and mental health conditions, I would have imposed a much lower sentence than would ordinarily have been imposed for the charge of armed robbery, but I would have required some imprisonment to be served. I would imposed three months' imprisonment, followed by three years on a CCO, probably with more rigorous conditions on the CCO.
67All right. Now, you can take a seat while I just deal with - were there any - yes, there were ancillary orders. Yes.
68MS BLAIR: A couple, I think. There was an application ‑ ‑ ‑
69HER HONOUR: Ms Blair, is the forensic sample order opposed?
70MS BLAIR: Your Honour, it is not consented to. It is a first offence. I know it is serious, but unusual circumstances and no prior convictions. A matter for Your Honour.
71HER HONOUR: Yes. I do look closely - I do not automatically make these orders. But it is my view that the seriousness of an offence of armed robbery does require the making of such an order, and I will make it in this case. I limit it to what they call the scraping from the mouth, the oral - the pad, and I will explain that to Mr Smith.
72Mr Smith, this order allows the taking of what they call a forensic sample from you to allow your - or enable your DNA to be placed on the national database. I am making that order because of the serious nature of an armed robbery in this form of going into a convenience store with a weapon and robbing it. I limit to taking of a swab from inside your mouth. Sometimes it is ordered that it be by blood sample, but I will not extend it to that in this case. You will receive a copy of the order. You have to wait four weeks, and then you have a four-week period in which to go to a police station - and there will be a list of police stations, I hope, added to the order. No doubt, you know where Geelong or - there is probably - is there a Torquay police station? There probably is. Anyway.
73MS BLAIR: There is a list.
74HER HONOUR: There will be a list of the police stations. You go there to have this done. I must warn you that if you resist it being taken, police are authorised to use reasonable force to take it. But it is really like a cotton swab at the end of a stick. They often invite you to do that yourself. It is to take some cells from the inside of your cheek. And if you do not resist, it is not intrusive, and it should not require any force.
75All right. I will sign that order, and then I need to hear about the licence.
76MS BLAIR: Yes. I thought that the was last.
77HER HONOUR: Is there something I said wrongly about the waiting four weeks?
78MS BLAIR: No, no. That was that. I think it is 28 days.
79HER HONOUR: It is a complicated order. All right. In the production of the community correction order, of course, the computer rules. In the third of the conditions that I was intending to impose, it was not offending-specific programs or courses to address factors relating to the offending, but rather, programs to assist with rehabilitation, and specifically, the autism spectrum disorder. I will just see if I can find the relevant section, but the computer does not seem to have another box for that type. It is all right. There is such a box. It has been found, so I will just have that redone.
80Do you want to address me - I did not hear argument about the issue, or I think the prosecution opened that there was an order sought. I know it is discretionary in relation to Mr Smith's licence because he did use a car to commit the offence, although the offence was not a driving one.
81MS BOLTON: In fact, how it was put in the Crown opening at paragraph 16, Your Honour, is that he was travelling 139 kilometres in a 70 zone when he was leaving the 7-Eleven store.
82HER HONOUR: That was - as I understand it, that was going through the camera. The speed camera picked up the car as he left through an intersection.
83MS BOLTON: Exactly. That is right. Under s.89A, I think it is, maybe sub-s.4, it is discretionary. It used to be on the finding of a driving-related offence. However, now it is open to any offence, in fact. I mean, I was just having another look at it. The time frame in which Your Honour can cancel it is - or cancel or suspend, is discretionary. But I am instructed to make such an application under that section, Your Honour.
84HER HONOUR: Ms Blair, do you want to be heard on this?
85MS BLAIR: Your Honour ‑ ‑ ‑
86HER HONOUR: I will say first, I was very concerned hear the speed at which your client was driving, and even the extent to which he had been driving over those days, apparently, in a manic state. But I will hear you on this.
87MS BLAIR: Your Honour, I suppose it is not vigorously opposed. However, I just would ask that Your Honour note that he - Torquay is a little more isolated, I suppose, than metropolitan Melbourne and it is of assistance to have a license for a young person. But I hear what has been said, and I do not, as I say, strongly oppose it. And in any event, his use of the car has been limited by his parents as a result of all of this as well.
88HER HONOUR: All I would need to know is, I am assuming there is not a community corrections office in Torquay.
89MS BLAIR: No, there is not.
90HER HONOUR: Only in Geelong.
91MS BLAIR: Yes, that is right.
92HER HONOUR: There is a bus from Torquay to Geelong?
93MS BLAIR: There is.
94HER HONOUR: That would let him ‑ ‑ ‑
95MS BLAIR: There is a limited service and it is probably unlikely that that is something that Joshua will be ‑ ‑ ‑
96HER HONOUR: Travelling by bus might ‑ ‑ ‑
97MS BLAIR: Be challenging.
98HER HONOUR: ‑ ‑ ‑ not be his usual experience, I understand that.
99MS BLAIR: No. Yes.
100HER HONOUR: I am very concerned about the driving aspect of the offending and the lead-up to it, but I am also not inclined to put a hurdle in the way of engaging with the community corrections attendances. I know family members seem to assist Mr Smith a lot in getting where he needs to go - you do not have to stand for this.
101MS BOLTON: Sorry, I just realised I was still seated.
102HER HONOUR: Do you want to respond?
103MS BOLTON: No, look, the concern is obviously the speed being 60, almost 69 kilometres over the speed limit. But I mean, the concerns Your Honour has already raised, the fact that leading up to it, he drove all the way - I think it was Adelaide?
104HER HONOUR: Adelaide, I was told.
105MS BOLTON: Yes, and in that sort of manic state, they obviously are serious concerns for the prosecution and hence why I have been instructed, obviously, as to make such an application.
106HER HONOUR: I am not - as I said, unconcerned about that. But I am dealing with Mr Smith who is, from all presentation, not still taking steroids, has had a very salutary lesson of what they can induce in him, and hopefully, will not be driving again in any such state.
107MS BOLTON: I mean, I understand. I hear what Your Honour's saying.
108HER HONOUR: And as I say, I do not want to put an impediment to him complying with the CCO. Not that it is not possible to get to Geelong in other ways, but the length of time I would suspend it for is not really clear in my mind at the moment. I am as confident as I can be that he is not on any medication that would bring about such a manic state again.
109MS BOLTON: As I said, I am instructed to make the application. The application from Your Honour's perspective is discretionary in that sense. I have made the application, and I have done my job.
110HER HONOUR: Yes. I think, for reasons I have just expressed, ultimately, in my discretion, I am not going to make an order on the licence. But I want to make clear, Mr Smith, I am very concerned at how you were driving at the time. The speed is outrageous, highly dangerous and outrageous, and the fact that the days before you apparently were driving in a not very controlled way, just because you were not caught and charged with any such offences does not mean it is not very dangerous. But I will not make an order on the licence in these circumstances.
111MS BOLTON: We were just checking. If he had had been, he would have lost his license for 12 months immediately, if he had it.
112HER HONOUR: If he had been charged with that speed?
113MS BOLTON: At the time.
114HER HONOUR: Yes. Well, that is a ‑ ‑ ‑
115MS BOLTON: In any event, nobody knows.
116HER HONOUR: ‑ ‑ ‑ presumably, a speed camera issue and those matters get dealt with through other channels. All right. I have got this amended, and I will have a copy of the CCO shown to both counsel to check that it ‑ ‑ ‑
117COUNSEL: Thank you, Your Honour.
118HER HONOUR: ‑ ‑ ‑ embodies what I said I intended. All right. My associate is going to bring that to you - do you want to go to him, Ms Blair? Or your instructor, if you ‑ ‑ ‑
119MS BLAIR: Certainly. Yes.
120HER HONOUR: Mr Smith, this is the community correction order. Your counsel has checked it and you should have a look at it and see that you understand it, and then sign - I think it is the first dotted line for signature is for you. Now, I will sign that. I will sign it under my name instead of on that line where Mr Smith signed it. That will be copied. You will get a copy to take away, and there will be a copy for both sides' lawyers and one for the court. I think I have now covered all I need to in this matter. Mr Smith, you are now free to leave the dock, and if you comply with the CCO, I will not see you again.
121MS BLAIR: Your Honour, just one last matter. I had filed the application for a suppression order, and that is withdrawn.
122HER HONOUR: Yes.
123MS BLAIR: I do not have any further material that I can put before the court, so I would ask that it be struck out.
124HER HONOUR: All right. I think I made it apply till 5 o'clock tonight. It was identification. It was not any other details, and that was interim till 5 o'clock tonight. So I will not revoke it now. I will just let it expire. All right. Could we adjourn, please, till tomorrow morning, 10 am?
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