Director of Public Prosecutions v Smith-Proctor

[2023] VCC 1373

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-22-01991

DIRECTOR OF PUBLIC PROSECUTIONS

v

JERMAINE SMITH-PROCTOR

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JUDGE:	HER HONOUR JUDGE BLAIR
WHERE HELD:	Horsham (Plea), Melbourne (Sentence)
DATE OF HEARING:	15 February 2023
DATE OF SENTENCE:	3 August 2023
CASE MAY BE CITED AS:	DPP v Smith-Proctor
MEDIUM NEUTRAL CITATION:	[2023] VCC 1373

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Armed robbery – handle stolen goods – commit indictable offence on bail – deferred sentence – Aboriginal – young offender – substance abuse – mental health – difficult childhood – good prospects of rehabilitation – family support – early plea of guilty

Legislation Cited: ss 3,5 Sentencing Act 1991 (Vic)

Cases Cited:Akoka v The Queen [2017] VSCA 217 – Worboyes v The Queen [2021] VSCA 169 – R v Mills [1998] 4 VR 235 – Boulton v The Queen (2014) 46 VR 308 – Azzopardi v The Queen (2011) 35 VR 43 – Bugmy v The Queen (2013) 249 CLR 571 – R v Verdins & Ors (2007) 16 VR 269

Sentence:                  18-month Community Correction Order

s 6AAA – 9 months’ imprisonment, 18-month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. McKenry Mr R. Casey	Office of Public Prosecutions
For the Accused	Mr N. Howard	Victoria Legal Aid

HER HONOUR:

1Jermaine SMITH-PROCTOR, on 15 February 2023 you pleaded guilty on indictment N10447657 to one charge of armed robbery and one charge of handling stolen goods. In addition, you consented to this court hearing a summary related offence of commit indictable offence on bail and you pleaded guilty to that offence as well.

Circumstances of the offending

2The agreed factual basis of your offending is contained in the prosecution opening which was tendered on your plea and marked ‘Exhibit A’. What follows is a summary of that document.

3In the early hours of the morning on 5 March 2022, you entered a service station in Wendouree with another person. CCTV footage showed you wearing certain clothing. You were not wearing a facemask.

4You purchased a small bottle of Coca-Cola at the service counter from the victim, who was of the view that you were acting suspiciously. This caused him to note your appearance. After you left the store, the victim locked the doors.

5Later that morning at approximately 5am, you returned to the service station. You were alone and wearing the same clothes as well as a black cap with a silver reflective sticker on the visor, and a facemask or covering.

6You approached the service counter behind which the victim was standing. You spoke in an artificially low voice, and said, 'Smokes'. The victim responded, 'Which smokes would you like?' and you retrieved a large knife or machete from underneath your jumper, and again said, 'Smokes'. The knife was approximately the length of your victim’s forearm. (Charge 1 – Armed Robbery)

7The victim handed over around eight to ten packets of cigarettes from the drawer behind him. You demanded more. The victim got an additional eight to ten packets and put them on the counter. Whilst the victim was getting these additional packets you said something like 'I don’t want to hurt you, but if you don’t give me, I can do whatever I do'. The victim was very scared.

8You took all the cigarette packets from the counter and walked away. You dropped two of them on the ground as you left the store. The victim phoned his manager and then Triple 0.

Investigation & Interview

9Police attended the service station. The scene was photographed and the two unopened packets of cigarettes that you dropped were seized. A short time later, another employee attended the service station and assisted the police to access and view the CCTV footage from inside the store. Another unopened packet of cigarettes was located on the nature strip immediately east of the service station.

10At around 9am, the police attended your ordinary residential address. Your father, Michael CHIVERS, was present but you were not. Mr Chivers granted police entry. In your bedroom, police located four laptop computers which were marked with stickers reading 'Forest Street Primary School'. These were seized on the belief that they were stolen property. (Charge 2 – Handling Stolen Goods)

11Shortly after, the police attended the address of the person believed to be with you when you first entered the service station. An occupant of the address allowed the police to enter. You were located asleep in a bedroom of that residence. You were arrested and taken to the Ballarat Police Station.

12The clothes you were wearing in the early hours of the morning that were depicted in the CCTV were located and seized. Another two unopened packets of cigarettes were also located.

13At the Ballarat Police Station, you were interviewed and made some admissions. You told the police the following things; that you were remorseful for your actions; the weapon belonged to a person at an address in Wendouree and should be located there; that you purchased the laptop computers for $50 from a friend and you suspected they were stolen at the time you purchased them; you were on bail.

14In fact, on 27 December 2021 you signed an undertaking of bail, therefore, you were on bail at the time you committed the two offences before the court. (summary related offence - commit indictable offence on bail)

15The police confirmed the laptop computers had been stolen during a burglary at Forest Street Primary School on 12 February 2022. The police returned the four seized laptops to the Forest Street Primary School on 17 March 2022.

16The knife you used in the armed robbery was unable to be located.

Nature and gravity of offending

17The offence of armed robbery is inherently serious, as evidenced by the 25-year maximum penalty. Your offending occurred in the early morning and involved some planning in that you had attended the service station some hours before to assess your target. You also attempted to disguise your identity. The victim was alone and you threatened him with a large knife. I accept as he says in his statement that he was very frightened by your actions. This type of offending is prevalent and service stations are considered to be soft targets.

18Your counsel submitted that your offending lacked several features of aggravation, specifically, it was not protracted, nor sophisticated, there was not a great deal of planning, you did not take a bag, you acted alone, and the quantum of items stolen was low. I accept the categorisation of your offending as below mid-range.

Chronology

19At the time you first came before me you were on bail with respect to this matter. However, you had been remanded on several matters in the Magistrates’ Court and so you were in custody. I was told by your counsel that you had the opportunity of placement at Wiimpatja Healing Centre which is located on the Murray River in New South Wales about 110km from Mildura. Further, a bail application had been listed in the Magistrates’ Court on 27 February 2023 and a consolidated hearing was listed for 3 March 2023.

20Your counsel, Mr Howard, submitted I should vary your bail to allow you to take up the placement at Wiimpatja and that I should defer your sentence. Despite having some concerns about how you would cope I was persuaded to take this course. Ultimately, you were granted bail in the Magistrates’ Court with the condition that you attend Wiimpatja and that you comply with Youth Justice Supervised Bail. You returned before me on 28 February 2023 still in custody waiting to be released into the program at Wiimpatja. This occurred the following day on 1 March 2023.

21Whilst in Wiimpatja, you attended a review of deferral, on 5 April 2023. I received a report from Youth Justice that detailed you were making good progress at Wiimpatja and had been participating in programs and activities. I set a further review of deferral for 3 July 2023.

22On 8 June, your bail was varied to allow you to return home to live with your foster father, Michael Chivers. The review of deferral listed for 3 July 2023 was brought forward and occurred on 13 June so that I could assess how you had settled at home. All signs were positive and Youth Justice advised that they had made referrals for ongoing programs and re-engagement with professional relationships in the community.

23On 28 July 2023, the last time you were before me, there was another review of deferral. Youth Justice again provided a report on your progress, which was largely positive. In the circumstances I considered it was appropriate to finalise your matter and move to sentence.

24Mr Smith-Proctor, you have abided by your conditions of bail and very significantly you completed the 12-week program at Wiimpatja and stayed an extra week, making a total of 13 weeks inpatient treatment. In addition, you have kept appointments with Youth Justice and other service providers in relation to drug and alcohol treatment, employment and programs at BADAC. I take into account all you have achieved on the deferral of sentence.

25I must say I also congratulate you for that.  I was a bit concerned but you did very well, so well done.

26In particular, I take into account that the 13 weeks you have spent engaged in inpatient treatment necessarily had restrictive and punitive aspects in addition to its rehabilitative focus. Although this time does not represent or equate with pre-sentence detention, in my view it is time that should be taken into account as part of the instinctive synthesis of sentencing and also as a means to encourage others in your position to participate in such programs.[1] )

[1]        Akoka v The Queen [2017] VSCA 217.

Personal circumstances

27I now turn to your personal circumstances. You were born in October 2003, and you are currently 19 years old. At the time of the offending you were aged 18 and you were unemployed and lived with your foster father and biological younger brother. You are a First Nations man, your biological father being from the Dijimarra Aboriginal mob from the Warrnambool area.

28You have been raised by Cheryl and Michael Chivers, being in their foster care since you were four-and-a-half weeks old. When you were around four years old, Cheryl and Michael took in your biological younger brother who has an intellectual disability and therefore requires constant supervision. You have no contact with your biological parents.

29Cheryl died of breast cancer when you were 12 years old, which in some ways led to you using illicit substances and led you to neglect your education. Cheryl’s death has had a lasting and profound impact on you, and your family and your brother has remained mute since that time.

30You experienced difficulty at school and left Ballarat Secondary College on the first day of Year 9, thereafter attending Indie School where you also struggled.

31You began smoking cigarettes and cannabis at age 13 and began taking methamphetamines at age 15. Prior to being remanded, you were using GHB, and you have engaged in the use of ice, sometimes for a week straight. For several years, you have had an occasional drink of alcohol, but in 2022 you escalated to drinking heavily.

32You have a limited but relevant prior history that is confined to the Children’s Court.

33In terms of employment, you worked for a year in concreting at age 16, however, you lost this job after your first remand. Whilst in custody I was told you were working to gain your white card and a forklift licence and had work as a billet. Your goal was to get work in civil construction upon your release. As part of your bail supervision with Youth Justice you have had three appointments with an employment mentor with a view to developing practical skills to obtain a job, connect with education or training, find a job and connect with relevant local community services.

34When you were in custody, you engaged with several programs namely Alcoholics Anonymous, and Narcotics Anonymous. You have continued to work on your drug and alcohol issues both at Wiimpatja and in the community. However, at this stage I was advised that the referral to a specialist alcohol and other drug clinician at Uniting Care has been closed.

35In the past you indicated that you were curious about your Aboriginal heritage and culture and were keen to learn more. Your time at Wiimpatja would have brought you in contact with such heritage and culture. I note that you continue to be connected with BADAC albeit you have demonstrated limited cultural engagement. Given your history, the issues around your personal and cultural identity are complex. It may be that with time your continued exposure to such programs will assist you to further explore and resolve what have no doubt been confusing and distressing feelings.

36On a personal level you have two very supportive relationships, one with your partner that has lasted four years and the other with your foster father, Michael Chivers. Mr Chivers has been in attendance at each hearing and has written several letters to the court updating me as to your progress. He has high hopes you will turn your life around and that you will one day take over care for your younger brother.

Plea of guilty

37In terms of matters in mitigation, I accept your plea of guilty was entered at a very early stage in the proceedings.  Further, I accept that this is demonstrative of your remorse and your willingness to facilitate the course of justice. Importantly, it shows that you have accepted responsibility for your offending. There is also a significant utilitarian benefit in your plea of guilty, in that you have spared the victim the need to give evidence and you have spared the court the cost and time of a trial. 

38Further, your counsel submitted that a plea of guilty during the pandemic should attract a more pronounced amelioration of sentence than at another time, due to the enormous backlog in the cases before the courts.[2]  In the circumstances, I have given you a significant sentencing discount for your plea of guilty.

[2]Worboyes v The Queen [2021] VSCA 169.

39I accept that a further impact of the Covid-19 pandemic in your case was that your time in custody on remand was served in very difficult circumstances. Indeed, you found the conditions so difficult that you made serious plans to take your own life. Notwithstanding the difficulties you experienced, as I have mentioned, you did undertake programs, courses and work whilst in custody.

Mynard Report

40On 11 January 2023, you underwent a psychological assessment with psychologist, Alison Mynard, who detailed the assessment in her report dated 26 January 2023. The following information has been drawn from this report and was specifically relied upon by your counsel in his written submissions.  This is a quote from Ms Mynard's report;

'At the time of the offending (armed robbery) Jermaine was highly substance-affected by alcohol and ice. He had already escalated in his use in the prior months, however, he had also reached out to his biological father and felt rejected by him, and this led to even further deterioration of his functioning. These substances impaired his judgement, and caused him to act impulsively and recklessly, without thinking of consequences at all. The only consequences he had anticipated was obtaining cigarettes, which have been his coping mechanisms for anxiety for many years. He struggled to explain his reasoning for his behaviour, because he was so intoxicated at the time and cannot recall how his mind was working at the time.

In the writer’s opinion, Jermaine has suffered from depressive symptoms, anxiety and emerging borderline personality disorder traits for a long time and these issues were present at the time of the offending, leading to impaired judgment, lack of consequential thinking, and impaired reasoning skills. He has tried for many years to cope with his mental health issues by numbing himself with cigarettes, cannabis, alcohol, ice and GHB, however, this has exacerbated his mental health issues and resulted in drug induced psychosis and even more chaotic behaviour, leading to his offending.'[3]

[3] Psychological report of Alison Mynard dated 26 January 2023, [49]-[50].

41The application of the principles of Verdins in your case are complicated by your substance use and high level of intoxication. It appears from Ms Mynard’s opinion that your drug use had exacerbated your mental health issues leading to drug induced psychosis and even more chaotic behaviour. In the circumstances, I find it is likely that you were aware that you were prone to offend when you were so severely drug affected. As such I am of the view that Verdins has only limited application. I do, however, accept that you have, and had at the time of your offending, very real mental health issues and I take into account in a general way that these conditions would have been impacting upon you in the way described by Ms Mynard at the time of your offending and also now at the time of sentencing.

42Further, in light of Ms Mynard’s opinion that;

'Jermaine has found custody extremely onerous and had been suicidal, self-harmed and was withdrawn from others. He has found some work to keep him busy, but still remains low in his mood and very anxious. The writer anticipates that Jermaine will deteriorate in his mental health if he remains in custody…'[4]

I accept your counsel’s submission that Limbs 5 and 6 of Verdins are enlivened.

[4] Mynard report [51].

43Your counsel also relied upon the case of Bugmy and submitted it had application in your case. To support his submission Mr Howard referred to the report of Ms Mynard, in particular where she said the following;

' It is difficult to know if Mr Smith-Proctor had to withdraw from substances when he was born, or if he had been exposed to his mother’s drug and/or alcohol use when he was in utero, however, there is a high chance that this was the case…'[5]

'Jermaine does show strong traits of Borderline Personality Disorder traits, which have resulted from his underlying experiences of feeling abandoned and rejected by his biological family, his estrangement from his Aboriginal culture (despite his foster family’s efforts to help him remain connected). He also displays a pattern of instability of relationships, struggling with his identity and self-worth, self-harming behaviours, suicidality and threats of suicide, and intense emotions that can feel unbearable for him. He reported a range of fluctuating emotions including grief, anger, depression and anxiety.'[6]

[5] Mynard report [42].

[6] Mynard report [47].

44In my view your case does not fit squarely within the criteria that would give rise to the principles in Bugmy. Although, you were abandoned by your biological parents and this has had lasting consequences, you have not been exposed to the repeated violence, alcoholism and deprivation contemplated in the case of Bugmy. That is not to say that your removal and abandonment of your parents should be ignored. As I mentioned previously, I consider your history has given rise to very confusing and complex feelings and emotions that have been very difficult for you to deal with. Your experiences have very much shaped the person you are today. Your background is relevant, and I take it into account in a general way when considering the sentence I impose upon you.

45You have been fortunate to have consistent and loving care of the Chivers family. Whilst I do not find the mitigatory effects of Bugmy apply, given the care and support you have, protection of the community does not loom large as a sentencing consideration.

Youth

46At the age of 19, you fit the definition of a young offender within the meaning of s3 of the Sentencing Act. In my view, although your offending is serious, it is not so serious as to displace the principles that generally apply to the sentencing of young offenders. The youth of an offender should be a primary consideration for a sentencing court where that matter properly arises.[7] It arises in your case quite properly given that you were immature at only 18 years of age when you offended.

[7]R v Mills [1998] 4 VR 235

47In the case of Azzopardi, three considerations which underlie the general primacy afforded to an offender’s youth as a sentencing consideration were identified:

First, young offenders, being immature, are 'more prone to make ill-considered or rash decisions' In that respect, they 'may lack the degree of insight, judgment and self-control' possessed by a more mature adult. They may not 'fully appreciate the nature, seriousness and consequences of their criminal conduct'.

Secondly, the courts recognise the potential for young offenders to be redeemed and rehabilitated.

Thirdly, courts sentencing young offenders are cognisant that the effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, the offender’s prospects of successful rehabilitation. While in prison a youthful offender is likely to be exposed to corrupting influences which may entrench in that young person criminal behaviour, thereby defeating the very purpose for which punishment is imposed. Imprisonment for any substantial period carries with it the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community.[8]

[8]        Azzopardi v The Queen (2011) 35 VR 43, [34].

48I find that your age and circumstances at the time of your offending reduce your level of moral culpability somewhat and reduce the weight that the court must put on general deterrence.

Rehabilitation

49You have the ongoing support from Michael Chivers, as I have said, and your long-term partner. You have for the last six months complied with strict bail conditions and completed 13 weeks of inpatient treatment at Wiimpatja Healing Centre. You have largely been consistent with Youth Justice supervised bail. Whilst in custody you participated in programs, counselling and worked when you were able. These are all positive signs that you are committed to your rehabilitation and in the circumstances, I find that you have positive prospects in this regard, particularly if you can continue to engage in treatment for drug and alcohol issues and mental health counselling.

50In coming to this view, I have taken into account the formulation of Mr Greg Lane from the MHARS report received by the court. It was Mr Lane’s opinion that;

[You have] 'a complex history of childhood disruption, social exclusion, trauma, borderline personality traits, depression, and poly substance misuse. [You] presented today as an emotionally vulnerable and immature young man, subdued in [your] manner with limited insight displayed into the negative impact of [your] substance use on [your] life choices and mental state and the need to participate in psychological counselling.'[9]

[9]        MHARS report of Gregory Lane dated 2 August 2023, 3.

Sentencing considerations

51The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  Given your youth and background circumstances and limited prior history, general deterrence must give way to the promotion of your rehabilitation as the primary purpose of sentencing.  The weight to be given to specific deterrence must also be moderated in light of your experiences in custody and subsequent reformation.

52In your case, I regard protection of the community to be a relevant consideration, but I consider this is best achieved by supports and interventions to address any ongoing issues you have and to prevent any relapse.  In your case, this is what will reduce the risk of further offending. I take into account the sentencing guidelines referred to in s5 of the Sentencing Act where relevant to your case.  In particular, I have had regard to the sentencing landscape for the offending before me, particularly the armed robbery offence. 

53Ultimately, the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.  The principle of totality is also a very important consideration here.  I have had regard to the fact that you have spent an extended period of time – I am told it is in the order of three months - in adult custody on remand in relation to the matters you face in the Magistrates’ Court. I have also taken the principles of proportionality and parsimony into account in fixing the sentence I will now impose, that is, the punishment I impose must fit your crime and I must do no more than is necessary to punish you for your particular offending.

54I have had you assessed for a Community Correction Order ‘CCO’ and you have been assessed as suitable. In my view this is the appropriate sentence in your case. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen[10], that is, a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment, and I note the Court of Appeal particularly referred to the crime of armed robbery.

[10]        Boulton v The Queen (2014) 46 VR 308.

55The Court of Appeal there stated a CCO is likely to be a particularly important sentencing option in the case of a young offender where there may be a perceived conflict between the need to punish the offender and the importance both to the community and to the offender of rehabilitating the offender.  Since the CCO can be used to rehabilitate and punish simultaneously, the conflict is likely to be reduced.  Instead of needing to give less weight to denunciation or specific or general deterrence in order to promote the young offender's rehabilitation, the court will be able to fashion a CCO which adequately achieves all of those purposes at once.

56Mr Smith-Proctor, I intend to sentence you as follows:  In relation to the Charge 1 of armed robbery and Charge 2 of handling stolen goods, you are convicted and I order that you be placed on a Community Correction Order for a period of 18 months from today.  The conditions of this Community Correction Order include that you must submit for assessment and treatment for drug and alcohol abuse and you must submit for assessment and treatment for mental health issues, and you are also to attend for supervision. 

57In addition to the conditions that I have imposed, there are standard conditions that you must comply with.  First and foremost, you are not to commit another offence punishable by imprisonment for the period of the order which is 18 months.  You need to report within two working days to your nearest Corrections office which I understand is Ballarat Community Corrections Service and you are required to advise your sentencing Corrections office of any change of address of where you are living or working within two clear working days.  It is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer and you cannot leave the state of Victoria without prior permission.

58Mr Smith-Proctor, if you reoffend, you will breach the order.  If you do not comply with the conditions, you will breach the order.  If you do that you will come back before me and you might be re-sentenced in relation to the original charges.  I can only place you on a Correction order if you agree.  Do you understand what is involved in the order?

59OFFENDER:  Yes, I do.

60HER HONOUR:  And do you consent to such an order?

61OFFENDER:  Yeah.

62HER HONOUR:  Great.  So, in relation to the summary related offence of commit an indictable offence on bail you will be convicted and discharged.  That will appear on your prior history and will likely cause you some problems down the track if you re-offend. 

63Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty the sentence I would have imposed is a combination sentence of nine months' imprisonment and a Community Correction Order in the same terms as the one I have imposed today.

64There is also, as I understand it, a forfeiture or disposal – forfeiture, and I will make that order.

65COUNSEL:  As the court pleases.

66HER HONOUR:  Is there anything further, gentlemen?

67MR CASEY:  No, Your Honour.

68MR HOWARD:  No, Your Honour.

69HER HONOUR:  Jermaine, with the order, given that we're all remote, your verbal consent to the order and agreement to do it is enough, but we'll send the actual order through to Corrections and they may get you to sign it there.  Okay?

70OFFENDER:  No worries.

71HER HONOUR:  I just want to wish you all the best with the order and well done on the hard work that you've done, I know that it hasn't been easy and I know that you've got some significant issues and things that you've been dealing with.  So stick at it and I really hope you can make a go of the order and you don't have to appear back in court.  I know you've got the Magistrates’ Court matter to deal with but as far as the County Court is concerned it's over.  Okay?

72OFFENDER:  I appreciate it.

73HER HONOUR:  Good on you.  All right, so we'll stand down, thanks.

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