Director of Public Prosecutions v Smith

[2016] VCC 1973

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

AT GEELONG
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL SMITH

---

JUDGE:	HIS HONOUR JUDGE M.P. BOURKE
WHERE HELD:	Geelong
DATE OF HEARING:	19 December 2016
DATE OF SENTENCE:	16 December 2016
CASE MAY BE CITED AS:	DPP v Smith
MEDIUM NEUTRAL CITATION:	[2016] VCC 1973

REASONS FOR SENTENCE
---

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

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Hogan
For the Accused	Mr C. Pearson

Pages 1 - 14

 

HIS HONOUR:   

1Michael Terence Smith, you are to be sentenced for one charge of attempted armed robbery, one charge of making a threat to kill and also charges of assaulting and resisting a protective services officer.  The maximum sentences are 20 years' imprisonment for attempted armed robbery, 10 years' imprisonment for threatening to kill and 5 years' imprisonment for both the assault and resist offences.

2You pleaded guilty before this court on 23 September.  When interviewed by police on 23 March 2015 you made admissions.  Committal went by hand-up brief on 14 June of this year.  You entered a plea of guilty and the matter was listed for plea hearing in this court.

3You receive the benefit of your plea of guilty and the level of co-operation that short history of the proceeding shows. You have facilitated the interests of justice.  I accept that you are remorseful. 

4At your plea hearing, which ran on 20 October, Ms Hogan for the Crown tendered a written Crown opening.  Mr Pearson,  for you, tendered the Forensic psychological report of David Ball dated 18 October 2016.  He provided a written outline of plea submissions.   

5On 20 October, I requested the following under s.80 of the Sentencing Act:

6(1)  A declaration of your eligibility for disability client services.

7(2)  A justice plan.

8(3)  A report as to available services under disability client services.

9(4)  A report as to your suitability for a community corrections order.

10I have received those materials.

11The circumstances of offending are set out in the tendered Crown opening, which is Exhibit A.  Shortly before midnight on 23 March 2015 you boarded a Cranbourne bound train at Dandenong Station.  You were seen to behave irrationally and aggressively.  Protective service officers at Cranbourne were alerted.

12Soon after you attempted to rob a fellow passenger,  Jagreeb Singh.  You demanded his mobile phone, racially insulted him, threatened to kill him and then produced and swung a knife.  His mobile phone was knocked to the train floor.  He picked it up and put it in his pocket.  You continued your demand.  Upon the train's arrival at Cranbourne you threatened to kill him if he told protective services what had happened.  That is Charge 2, threaten to kill.

13Paragraph 7 of the Crown opening states as follows, I quote: 

Mr Singh was very scared and was worried that Mr Smith was going to hurt him.  He stated that, "I was really scared for my life."  He also stated that, "Now when I travel on the train I am very fearful that something will happen and I put all my things away in my bag.  I don't check my phone or listen to any songs on my mobile phone and have to watch out for people and now I sit far away from anyone'."

13Jagreeb Singh did report the matter to protective services.  On their approach, you ran.  Protective Services Officer, Navpreet Singh, caught you.  You resisted and for a brief time broke free.  Throughout the struggle which lasted about five minutes, you were racially and generally abusive.  You also spat in Navpreet Singh's face.  This is the assault charge.  You had been drinking alcohol and using prescription drugs.  It is not challenged that you were intoxicated.  You were also using methyl amphetamine daily at the time.  You stated to police and through Mr Pearson that you were affected by your father's illness.  He has cancer.

14You are a 28 year old man.  You live in Cranbourne and occasionally work cutting firewood.  You are one of five children.  You are close to your family who live in Warragal.  You are diagnosed with an intellectual disability and your life has been badly affected by that.  Schooling, although assisted, was not successful, academically or behaviourally.  There were difficulties with your family and there was child protection involvement during the teen age. You were removed from the family home at 14.  There were periods of homelessness. 

15You began abusing alcohol at 16.  You have also used cannabis and, in recent times, ice amphetamine.  You have, as on the day of offending, also misused prescription medication.

16You have had little employment.  Your criminal record filed with the indictment states a large number of prior convictions between 2005 and 2015.  They include offences of violence, drug offences and offences of dishonesty.  You have breached intervention orders.  There have been sentences of imprisonment and youth justice detention. 

17The report of forensic psychologist David Ball states the following:

"Mr Smith's social reasoning reflects his persisting dependent personality features and markedly dull intellect.  He operates on the assumption that he is not capable of taking care of himself and must find someone dependable who will support and protect him.  He feels inadequate and secure most of the time."  Sorry, I will  start that again.  "He feels inadequate and insecure most of the time and sees himself as being less effective or able than anyone else.  (Indistinct) Mr Smith feels vulnerable and threatened most of the time and responds with maladaptive behaviours such as substance abuse. 

Mr Smith's social reasoning is unsophisticated and he tends to reduce even complex problems to simplistic concrete terms.  As a result, he considers only a small number of options and rapidly forecloses on a solution without exploring either a comprehensive set of alternatives or given sufficient time, the implications of a course of action to come to mind.  Therefore, Mr Smith tends to be impulsive.  He often makes poor decisions and frequently chooses his course of action based on short term considerations rather than on their long term consequences.  He learns poorly and slowly from negative consequences and has a history of drug and alcohol abuse."

Mr Ball also states:

"I confirm that he must have been affected by his intellectual impairment and the dependent personality."  I'm sorry, "And independent features of his personality at the time of his offending. His intellectual impairment will not remit. His dependent personality features while not necessarily life-long remain operative and will require long term treatment and management."

You have been involved with Disability Client Services of the Department of Health and Human Services for some years.  You were declared eligible for such services in 2005.  Voluntary involvement has not been successful in any lasting way.  You have two children.  You do not see your four year old son but have a relationship with your daughter who is aged one.  You have an ongoing relationship with her mother.  You do not appear to live together.

18This was serious offending.  It was disruptive, frightening and dangerous.  You used a weapon.  It occurred in a public setting.  Objectively viewed, the circumstances make important sentencing considerations of moral culpability deterrence, denunciation and punishment.  However, this is a case in which it is conceded that the principle stated in R v Verdins and like cases are applicable.  Those just earlier stated considerations and sentencing purposes are moderated.  In my view, your intellectual disability also forms an important part of the broader personal context to your sentence.  It has impacted badly on your early life.  That has contributed to your dysfunction in adulthood.  There is room for legitimately felt sympathy.

19Other mitigating or moderating factors include your plea, co-operation, and remorse.  Mr Pearson points in his written submissions to delay.  The delay here is not explained, however, I accept that the period has been one of some anxiety for you.

20Mr Pearson advised of a matter, sorry, I will start that again.  Mr Pearson advised of a subsequent matter.  You spent 35 days on remand, charged with a weapon possession offence.  You were then convicted and discharged by the Magistrate's Court. 

21One cannot be optimistic about your prospects for rehabilitation.  It can be hoped that compulsory participation in assistance by Disability Client Services will give you structure and that you will mature in that setting.  I see a sentence consistent with that to be in the interests of the community and  its protection. 

22I have decided to impose a community corrections order with both punitive and rehabilitative conditions.  Such a sentence is not said by the Crown to be outside the proper range. 

23Stand up please.  I sentence you as follows - just before that, I think I need to correct one date, the interview, the police interview must have been on 24 March.  There were no summary charges, were there Ms Hogan?

24MS HOGAN:  No, Your Honour, no summary charges.

25HIS HONOUR:  I sentence you as follows:  On all charges I convict you and impose a community corrections order of two years' duration.  The usual terms apply.  The additional conditions are that you perform 200 hours of unpaid community work over that time.  That there be supervision, that there be assessment and treatment for drug abuse.  That there be assessment and treatment for alcohol abuse.  That you participate in programs to specifically address your offending and that you comply with programs and services provided under the Justice Plan filed with the Court.

26Now, that document is now going to be prepared.  One of the disadvantages of sentencing by video link is, of course, that the document has to be, in some way, conveyed to the people in Melbourne and he has got to sign it.  How we are going to achieve that?

27MR PEARSON:  Good question, Your Honour.  I'm just speaking with Your Honour's Tipstaff down here in Melbourne.

28HIS HONOUR:  Yes.  If there is a fax number at the court, we can do that.  I do not know whether there is.

29MR PEARSON:  I'm told by Your Honour's associate down here that there is a fax number but we just ‑ ‑ ‑

30HIS HONOUR:  All right, if you could, if you could just read that out when you get it.  My associate here will note it. 

31MR PEARSON:  Yes.  Would Your Honour just bear with me a moment while we ‑ ‑ ‑

32HIS HONOUR:  Yes.

33MR PEARSON:  Flurry of activity here at the moment.  Well, scarcely a flurry but it's happening.

34HIS HONOUR:  Yes, I got that.  All right.  Well, he lives in Cranbourne so it's Dandenong he has to go to; wouldn't he?

35MR PEARSON:  I'm told that, yes well, for the administration of the community corrections order it would be Dandendong, yes.

36HIS HONOUR:  Yes, thank you.  Now, are there other orders?  Whilst we're getting that fax number - are there other orders, Ms Hogan?

37MR PEARSON:  Sorry, Your Honour.  Sorry to cut across Your Honour.  Your Honour's tipstaff down here has got a fax number available now.

38HIS HONOUR:  If you read it out please?

39MR PEARSON:  8-6-3-6 6-7-2-3.  That is to the very, the court room that we're in at the moment, Your Honour.

40HIS HONOUR:  Just say that again so that my associate has got it?

41MR PEARSON:  8-6-3-6 6-7-2-3.

42HIS HONOUR:  All right.  Now, Mr Hogan, are there any other orders that I need to make?

43MS HOGAN:  Yes, there were disposal orders and a forensic sample order.  I think they were handed up at the plea but also they've been e-lodged so I'm not sure if Your Honour's associate can access them there to have them printed off to you.

44HIS HONOUR:  We will have a look at that.  I also need to make a declaration of s.6AAA do I not - oh, no, I don't ‑ ‑ ‑

45MS HOGAN:  No, you don't for a straight community corrections order.  It's not required under the Act.

46HIS HONOUR:  That's sensible.  So, there's a disposal order.

47MS HOGAN:  Yes.

48HIS HONOUR:  And a forfeiture?

49MS HOGAN:  No, forensic sample, Your Honour.

50HIS HONOUR:  Yes, and he hasn't had to undergo a forensic sample.

51MS HOGAN:  He's not on the database, Your Honour.

52HIS HONOUR:  I wonder where they send them.  They don't send them to the database; do they?

53MS HOGAN:  No, it is lodged on a database and my - the Crown instructor checks the database before we make that application.

54HIS HONOUR:  I'm trying to be - I'm trying to be funny.  I would say on about 12 occasions the last 12 occasions in which there has been such an application each one has had a large number of prior convictions and they, the person doesn't turn up on the database.  It's astonishing.

55MS HOGAN:  No, I apologise, Your Honour.  I have just been handed an email from my instructor.

56HIS HONOUR:  Yes.

57MS HOGAN:  Saying that they can confirm that Michael Smith is DNA profiled.  So, ignore that.

58HIS HONOUR:  Well.

59MS HOGAN:  Just the disposal order.

60HIS HONOUR:  Well, I'm very ‑ ‑ ‑

61MS HOGAN:  Sorry about that, Your Honour.

62HIS HONOUR:  Good, all right.  So, the disposal order, I will sign the disposal order when it is sent to me.  I don't think I need to say anything to him about that beyond the fact that it's a disposal order in respect of a knife and the other things taken off him.  Is that right?

63MS HOGAN:  Correct, that's right.

64MR PEARSON:  Not opposed, Your Honour.

65HIS HONOUR:  I will sign that in chambers and what we will do is if you could print out the corrections, the community corrections order and I will speak to Mr Smith about it.

66Mr Smith, you can come out of the dock and sit behind Mr Pearson for the moment, please.

67MR PEARSON:  Can Your Honour see Mr Smith now?

68HIS HONOUR:  Sorry?  Yes.  He can just be seated.  We are just waiting for the machine to produce the corrections order and I'll just have a look at it.

69MR PEARSON:  Thank you, Your Honour.

70HIS HONOUR:  Yes.  Just stand up, Mr Smith.  For the reasons that I read out to you, I am going to not, I am not going to send you to prison.  I am going to allow you to serve a community corrections order. 

71Now, it will last for two years.  That means it will end on 15 December of 2018.  In the short term.  You must attend at the Dandenong Community Correction Services Office in Walker Street, Dandenong within two days.  You need to do it on Monday or by Monday.

72OFFENDER:  I did it yesterday.

73HIS HONOUR:  Sorry?

74OFFENDER:  I went and signed in yesterday, ah, Wednesday.

75HIS HONOUR:  Don't worry about that.  You have got to go in there again. Mr Pearson will explain it to you.

76MR PEARSON:  I will do that, Your Honour.

77HIS HONOUR:  Yes, thank you.  Now the usual terms of these are to not commit another offence for which you could be imprisoned.  Now, don't be fooled by the phrase, "could be imprisoned."  You don't have to be sent to prison to come back before me for breaching this.  Most offences are offences you can be imprisoned for.  For example, being in possession of a small amount of methyl amphetamine is punishable, can, by imprisonment and that would breach the order. 

78OFFENDER:  Yes.

79HIS HONOUR:  You must comply with the regulation that says you can't go to any appointment or programme affected by alcohol or by drugs or in possession of any illegal drugs.  You must receive, report and receive visits from community corrections.  You must let Community Corrections know within two days of changing an address, your address or job.  You must not leave Victoria without getting their permission to do so.  You must obey all lawful instructions to you by them.  The additional conditions of these are: You must perform 200 hours of unpaid work over the two years as you're directed by Community Corrections. 

80You must be under the supervision of a Community Corrections Officer.  You must undergo assessment and treatment - I have just noticed that it was recommended that there be a condition about mental health and that's appropriate too, with apologies to you, Fran, could you add a mental health condition and print it out please?  That was my oversight. Just take a seat again, Mr Smith.

81OFFENDER:  Yes.

82HIS HONOUR:  Thank you.  I'll just start those additional - stand up please.

83We will start those additional conditions again.  200 hours of unpaid community work.  It should be under supervision and then, that you undergo, that there be assessment and treatment including testing, that is urine testing for drug use or dependency.  Assessment and treatment including testing for alcohol abuse or dependency.

84That you undergo mental health assessment and treatment as directed by community corrections.  That you participate in programs directed specifically at the nature of your offending as directed and, this is the important bit or one of the important bits, that you participate in the services provided by Disability Client Services in the Justice plan that has been sent to the court.  All right.  Do you follow that?

85OFFENDER:  Understood.

86HIS HONOUR:  Understood and do you agree to it?

87OFFENDER:  Yes.

88HIS HONOUR:  All right.  Well, we will send it up to Melbourne now and get you to sign it.

89OFFENDER:  Thank you.  Thank you.

90HIS HONOUR:  I don't know how long it will take.

91MR PEARSON:  I should perhaps indicate, Your Honour, that there is a, there is an officer from the Department of Health and Human Services present in court and I will make sure I speak with Mr Smith about the order after Your Honour, after the matter concludes.

92HIS HONOUR:  Thank you, Mr Pearson.  Thank you to that person for attending. 

93MR PEARSON:  As Your Honour pleases.

94(At this stage the court proceeded with another matter.)

95HIS HONOUR:  I am just signing the disposal order and that can be filed.  It's not in duplicate but I have signed the one I have got.  Has anything arrived up there?

96MS HOGAN:  No, Your Honour.

97MR PEARSON:  Not yet, Your Honour.

98HIS HONOUR:  What I will do is I will go out and start reading this material and can you call me when the fax has arrived up there?

99ASSOCIATE:  Yes.

100(Short adjournment.)

101HIS HONOUR:   I needed to come back to court when it arrived at that end.

102MR PEARSON:  Yes.

103HIS HONOUR:  On a strict view of it you could argue that he is supposed to sign in in front of me but he signed it in front of you two; hasn't he?

104MR PEARSON:  He has, indeed, Your Honour, yes.  He signed the document.  Look, I'll - if Your Honour trusts me to this extent.  I will take him outside and explain the conditions of the order to him.

105HIS HONOUR:  Well, I have already done that.  Mr Kissane, do we have to go through the process again, do you think?

106MR KISSANE:  Sorry, they're right there.  I'm very sorry.

107HIS HONOUR:  Ms Hogan, what do you say about this?

108MS HOGAN:  I haven't encountered this before, Your Honour where it hasn't been done via a video link.

109HIS HONOUR:  It has happened (indistinct) go on.

110MS HOGAN:  Yes.  I'm just - because of the Justice Plan being attached, perhaps it would be prudent if it is done in front of Your Honour. 

111HIS HONOUR:  All right.  Have you kept a copy up there?

112MR PEARSON:  Yes.

113HIS HONOUR:  Well, we'll get - I will get you to - I have explained it to him.  If he could sign it again, please.

114MR PEARSON:  Yes, thank you, Your Honour.

115HIS HONOUR:  Then it can be sent back to me.  I don't think I have got to sign it in front of him.

116MR PEARSON:  So, Your Honour, what I will do is, he has signed this order.  I will just cross his signature out and I will just ask him to come forward and sign it again.

117HIS HONOUR:  That can be sent back to me and I think I will just - I will just get rid of the copy I have got now in case there is any confusion.

118MR PEARSON:  So what I have done, Your Honour, I have crossed you the first signature of Mr Smith and I have initialled the crossing out, he's signed it a second time in front of Your Honour.

119HIS HONOUR:  And that can be sent down to me and as soon as I get it. 

120MR PEARSON:  Now I've got a fresh copy, Your Honour.  So, we will, that process was otiose.  So we will get Mr Smith to sign this copy again and then it's nice and clean, Your Honour.  It's just one signature in front of Your Honour.

121HIS HONOUR:  Lovely.  You send that to me.  I can destroy the other one and then I will sign it.  I have decided I don't have to do that in his presence but I will sign it as soon as it comes down here.  All right.

122Now, I have explained to him the meaning of the order.  I don't need to say anything else to him.  I am - you're going to speak to him about it and ‑ ‑ ‑

123MR PEARSON:  I will do that.

124HIS HONOUR:  Somebody from Disability Client Services is here.  I just want to say that - I just want to say this to you, Mr Smith, it's not over.  It's not over.  If you breach this order you will come back before me.  That means if you don't obey any of these conditions, you don't do what you must do, what both community corrections tell you to do and Disability Client Services, your case manager and your supervising officer, you come back before me and I have to look at it again and I - looking forward, I don't see how I could avoid sending you to gaol.

125OFFENDER:  Yes.

126HIS HONOUR:  Do you follow that?

127OFFENDER:  Yes.

128HIS HONOUR:  And you understand the importance of it?

129OFFENDER:  Yes.

130HIS HONOUR:  All right.  Well, good luck with it.  We will turn you off now.

131OFFENDER:  Thank you.

132MR PEARSON:  Thank you.

133HIS HONOUR:  Thank you Mr Pearson, thank you Ms Hogan.

‑ ‑ ‑