Director of Public Prosecutions v Sonnet

[2023] VCC 469

IN THE COUNTY COURT OF VICTORIA Revised
 Unrestricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-00403

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN SONNET

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	13 and 21 February 2023
DATE OF SENTENCE:	27 March 2023
CASE MAY BE CITED AS:	DPP v SONNET
MEDIUM NEUTRAL CITATION:	[2023] VCC 469

REASONS FOR SENTENCE
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Subject:   CRIMINAL LAW

Catchwords:  Sentence – attempted armed robbery – armed robbery – plea of guilty – Drug and Alcohol Treatment Court

Legislation Cited:                Sentencing Act 1991 (Vic)
Cases Cited:

Sentence:Drug and Alcohol Treatment Order, with a custodial period of 45 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	Office of Public Prosecutions
For the Accused	Ms E. Turnbull	Emma Turnbull Lawyers

HIS HONOUR:

1Sean Sonnet, you have pleaded guilty to:

·        One charge of attempted armed robbery (Charge 1), for which the maximum penalty is a term of imprisonment of 20 years; and

·        One charge of armed robbery (Charge 2), for which the maximum penalty is a term of imprisonment of 25 years.

2Tendered as Exhibit 1 on the Determination Hearing was a Summary of Prosecution Opening, which set out the agreed facts of your offending.  In brief, the circumstances of your offending were as follows.

3At approximately 12:00 PM on 9 January 2022, you entered a Dan Murphy's Liquor Store in Newcomb.  You wore a hooded jumper and a face cover with eyeholes.  You were carrying a white shopping bag with you.  You approached the register operator, Ms Andrea Sheedy, brandishing a knife and said, “Give us the fucking money”.  Ms Sheedy, fearing for her safety, grabbed some notes and shut the till.  A nearby customer, who had observed this exchange, intervened, and told your victim not to give you any money.  You then ran out of the store (Charge 1).

4The following day, on 10 January 2022, you entered the Aldi store in Newcomb. You approached a female register operator, Ms Melissa Stephenson, holding a similar knife.  Again, you demanded money from your victim.  Ms Stephenson was terrified, panic-stricken and struggled to unlock the register.  You said, “Stop fucking around I mean it”, and moved the knife closer to her stomach.  She managed to open the till, and you grabbed approximately $1,218 cash before leaving the store.  You, again, wore a mask which covered your face (Charge 2).

5On 11 January 2022, you were arrested wearing clothing similar to that described by witnesses and captured on CCTV during your offending. 

6You gave a no comment interview, as was your right.  Following your interview, you were charged and remanded. 

7The matter resolved prior to the first committal mention and proceeded by way of straight hand-up brief. It was adjourned into the Drug and Alcohol Treatment Court (DATC) on 7 November 2022 for Determination Hearing, which finally concluded on 21 February 2023.  Yours was a plea of guilty entered at the earliest opportunity.

8Exhibit 2 on the Determination Hearing was a Case Management Assessment Report authored by Xenia Clark, dated 24 January 2023.  Exhibit 3 was a Clinical Advisor Report authored by Amy Lopes, dated 5 January 2023.  Also tendered was a report from Dr Aaron Cunningham, psychologist, dated 6 June 2022 (Exhibit 5SS), a report of Patrick Newton, forensic psychologist, dated 14 March 2008 and prepared for an earlier court appearance (Exhibit 6SS), and a copy of your criminal record.  Together those reports set out your personal narrative, your substance abuse and forensic history, and your self-evident challenges.

9I turn now to your personal circumstances. 

10You were born in April 1969 and you are currently 54 years of age. You were aged 53 at the time of this offending and were residing in Wittington, Geelong. 

11You were born and raised in Keysborough, the youngest of a sibship of three.  You have one brother and one sister, with neither of whom you have contact.  You describe your childhood as being “normal and uneventful”. Your parents are separated, and you have not maintained a relationship with your father.  You reported to Ms Clarke (Exhibit 2) that you talk to your mother most days throughout the periods that you have spent in incarceration.

12You dropped out of secondary school in Year 9 and worked as a carpenter, before working in scaffolding.  You last worked in scaffolding in 2016 when you were on parole.  You report no employment history for many years.  You left home at the age of 19 and lived with your sister, before moving in with your then girlfriend.  This relationship lasted for several years, before your first period of incarceration.

13When you were aged 17 you were hit by a car whilst riding a motorbike and suffered various injuries, including head trauma.  Prior to this accident you describe yourself as being fit and playing sports regularly.  You were prescribed opiate based pain relief, upon which you quickly became dependent.  You describe this incident as being the catalyst for your drug dependency and subsequent offending. 

14You commenced drinking alcohol and smoking cannabis in high quantities as a teenager.  You were introduced to amphetamines and opiates in your 20s and you reported that you developed a severe dependency to heroin after experiencing withdrawal from the pain relief prescribed following your motorcycle accident.  Your use of heroin continued throughout your 20s.  You report using steroids and benzodiazepines on an opportunistic basis and, at the time of this offending, you report using ICE and drinking one bottle of whiskey a day. You describe ICE (that is methamphetamine) as your primary drug of concern.

15You have in the past received various forms of pharmacotherapy to manage your drug dependency. However, you report that, since your most recent period of incarceration, you have not received any pharmacotherapy and have remained drug free.

16You have a daughter, Hannah, who is now seven years old.  Your ex-partner Simone has, not surprisingly, limited your contact with Hannah when you are substance affected.  You have had no recent significant relationships.

17I note a past diagnosis of schizophrenia, for which you received depot antipsychotic medication.  Whether the origin of that episode was organic or drug induced is not clear and your current presentation is found not to be consistent with such a diagnosis.  You have also in the past suffered from anxiety, but state that you are “currently doing well, symptom-free and feel that your life has improved psychologically and emotionally over the past few years”.

18You have a highly relevant, and I must admit, highly concerning prior criminal record.  Following your first appearance in front of the courts in January 1989, you were first sentenced to a term of imprisonment in September 1990 for an offence of robbery.  Subsequent prison terms have been imposed for offending including trafficking, armed robbery, aggravated burglary, interpersonal violence, family violence, driving, firearms offending, and conspiracy to murder.  The longest term of imprisonment imposed was one of 10 and a half years in March 2012, following an appeal from an original term of 20 years.

19Since 1990, the longest period that you have spent in the community at any one time has been two years.  Through many of those years in custody you were in solitary confinement and that is a truly sobering consideration, Mr Sonnet.  Dr Cunningham (Exhibit 5SS) addressed the current impact of such a custodial history upon you.  He stated:

“Mr Sonnet's profile was not consistent with a mental illness.  In my opinion, his elevations in low positive emotionality and introversion are consistent with his long periods of isolation in custody.  His ability to engage socially and experience a range of emotions have been impaired by his isolation.”

20Further, your demonstrated inability to remain stable in the community were, in Dr Cunningham’s view, a result of your institutionalisation.

21Whilst you do not fall to be sentenced again for matters already dealt with by the courts Mr Sonnet, your prior criminal history impacts my assessment of the need for specific deterrent, your prospects of rehabilitation, your moral culpability and the need to protect the community.

22Ms Lopes (Exhibit 3) did not question your dependence on methamphetamine, rather her concern lay elsewhere.  Her belief was that:

“Given his lengthy history of incarceration, and the acknowledgement that Sean is likely institutionalised……. a gradual introduction to the community by way of a residential detox and rehab program, would be the most suitable option for him should he be placed on the order.”

23Such a recommendation was, of course, problematic given that you have no accommodation in the community.  Your past completion of a high intensity violence program also posed some concern to Ms Lopes.  Ultimately, she doubted the Court's capacity to manage your risk in the community.  Her conclusion was:

“I do not believe that Sean is suitable for a drug and alcohol treatment order given his repeated offending, his high risk of substance misuse and the limited treatment options available to him should he be placed upon a drug and alcohol treatment order.”

24Ms Clark (Exhibit 2) noted your frank and unadorned account of the index offending and your expressed motivation.  She clearly had her concerns citing a report of Dr Cunningham (Exhibit 5SS):

“Due to his offending behaviour and associations, Mr Sonnet has spent a considerable period of his incarceration history in solitary confinement leading to a significant erosion of independent living skills and challenges interpersonally.”

25She continues:

“Despite this, he reports a change in behaviour since 2016 and is currently serving his remand in mainstream prison population … A drug and alcohol treatment order requires the participant to engage in a long-term commitment to change through an intensive, supportive regime.  Mr Sonnet has professed a desire and a willingness to change.  Despite the challenges, there is nothing in Mr Sonnet's file, nor his interview, that precludes him from being suitable for a drug and alcohol treatment order. He may require additional support to cope with the intensive nature of a DATO – that is, a drug and alcohol treatment order - and being in the community.  However - this alone is not reason enough for me to view him as unsuitable.”

26It was, in my view, a measured observation and it was of great assistance to me.

27Now, the particular purposes of a Drug and Alcohol Treatment Order (DATO) are:[1]

(a)   to facilitate the rehabilitation of the offender participant by providing a judicially-supervised, therapeutically-oriented, integrated drug and alcohol treatment and supervision regime;

(b)   to take account of the offender participant's drug or alcohol dependency;

(c)   to reduce the level of criminal activity associated with drug or alcohol dependency; and

(d)   to reduce the offender participant's health risks associated with drug or alcohol dependency.

[1] Sentencing Act 1991 (Vic), s 18X(1).

28Ms Turnbull, on your behalf, submitted that, notwithstanding the serious offending and your evident challenges, such a disposition was an appropriate disposition having regard to your circumstances and the circumstances of this offending.

29Mr Harrison, Counsel on behalf of the Director, submitted that you were not a suitable candidate for a DATO, that the offending was too serious, and that, having regard to your criminal history, your lack of pro-social community ties and your admitted response to boredom, the self-evident risk that you present simply could not be managed on an Order.

30Mr Sonnet, as you well know, armed robbery is a serious offence, as is clear from the maximum penalty of 25 years’ imprisonment that Parliament has imposed, and 20 years’ imprisonment for the uncompleted attempt.  Both your victims were working their respective shifts.  Ms Sheedy was confronted by you brandishing a knife.  The following day, Ms Stephenson was also confronted by you brandishing a knife.  She was terrified and panic stricken, believing that you would hurt her.  You held the knife close to her stomach, until she managed to open the cash register.  While neither victim has provided a Victim Impact Statement, it must have been for each of them a terrifying experience, and especially so for Ms Stephenson.  You gave no thought to the impact of your actions upon your victim.  Rather, your actions were driven solely by the imperative of your own immediate needs.  As you told Ms Clark (Exhibit 2) in very simple terms:

“I decided I had no money so to get money I made a balaclava, got a bag, got a knife from the kitchen and walked into the shop.  The next morning I still had no money, so I decided I was going to get money and went back down in the same clothes, near the same place.”

31Whilst your offending was relatively unsophisticated, these were clearly, on your own account and objectively viewed, not spontaneous acts.  Those who work in such positions as your two victims are particularly vulnerable to attacks of this nature.  Such offending is easy to commit and it impacts not only upon the immediate victims, but also upon the community at large. Such offending engenders a sense of alarm amongst the community and undermines the community's sense of safety and well-being.  People must be entitled to go about their everyday business and employment without fear of being robbed or assaulted in such a manner, and the courts have made it quite clear that they will do everything they can to protect vulnerable workers such as your victims.

32Mr Sonnet, in sentencing you I must have regard to a range of different factors.  I must give effect to the principle of general deterrence, that is to deter others from behaving as you did, and to specific deterrence, that is to deter you from ever repeating such offending.  I must consider the need to protect the community.  I must express the community's denunciation of your conduct.  I must take into account the effect of your crimes upon your victims and the community. I must have regard to current sentencing practices and the statutory maximum penalties for the offences to which you have pleaded guilty.  I must ensure, in in so far as possible, that you are rehabilitated and reintegrated into society.  In short, I must try to balance your personal circumstances with the circumstances of your offending.  I must also pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.

33These sentencing purposes are all still enlivened in your case.  Specific deterrence and the need to protect the community from your continued offending loom large in this sentencing process.  However, if the Court is considering making a DATO, then your rehabilitation and protection of the community, which is to be achieved through your rehabilitation, have greater importance than those other sentencing purposes.[2]

[2] Sentencing Act 1991 (Vic), s 18X(2).

34On all the material in front of me, I am satisfied on the balance of probabilities that:

(a)   you have a polysubstance dependency, methylamphetamine being your professed drug of concern;

(b)   your dependency contributed to the commission of the offending in front of me;

(c)   otherwise it would be appropriate to impose an immediate sentence of imprisonment of no more than four years;

(d)   you are not charged with offending, nor are you subject to any order, that would make you ineligible for a DATO; and

(e)   that it is appropriate in all the circumstances to make such an Order.

35Your early plea of guilty brings with it the practical benefit of saving the community the time and expense of a trial, and your victims the undoubted trauma of having to give evidence.  It also, I accept, indicates a willingness to facilitate the course of justice. 

36Further, your plea demands particular recognition in the time of the COVID-19 pandemic.

37I have regard to the 400 plus days that you had spent on remand, and the particular circumstances and conditions of that remand during the COVID pandemic.  It is well known that further restrictions of liberty, interruptions of family visits, greater lockdowns, lack of agency, lack of opportunities for programs, and concerns both for one's own health and that of loved ones out in the community have all, unfortunately, been a part of everyday life in custody during the pandemic.

38With your institutionalised traits and consequent challenges in terms of living skills amongst others you require intensive support in the community.  Mr Harrison, Counsel on behalf of the Prosecution, submitted that you were too great a risk and that the Court simply could not manage that risk in the community. 

39You do present a risk, of that there can be no doubt.  However, I have come to the conclusion, after much thought, that to deny you the opportunity for an intensive, supervised multi-disciplinary order would be, in essence, to be placing too much emphasis upon your past, rather than a potential, possible future.

40On your last release from jail, you were placed in a unit in Geelong.  You told Dr Cunningham that these offences occurred due to stupidity and desperation to get money, which money you needed for cigarettes, amphetamines and living expenses.  In your own words “you were left to your own devices and got up to no good.”  Your immediate return to methamphetamine use on your last release from custody drove the index offending and, indeed, that has been your repeated history: you come out of custody and you begin to use immediately.

41You told Ms Clark (Exhibit 2):

“I have sort of used drugs all my life… but I didn’t start off that way.  I was heavy into sport but then I had the accident.  I was in hospital for ages.  I was addicted to morphine at 17 and on amphetamines within six months.  I graduated to heroin at 23.  I am nearly 54.  I have basically wasted my life in prison.  I don’t want to use anymore.  I am over it.  I want to live whatever years I have, maybe 10, if that.  I don’t want to be in prison.  I want to be good for my daughter.  I think a drug and alcohol treatment order would help me with forced supervision and support.  Help me before it’s too late.  The longest out of prison I have been free is two years. That is the best I have done in the last 27 years and out of 27 years I have done like 20 in solitary.  I don’t want this life but also I can’t do it alone.”

42Such comments demonstrate an awareness and an insight, Mr Sonnet, and I have determined to provide you with the opportunity that you seek to put those words into action.

43On Charges 1 and 2, you are convicted and placed upon a Drug and Alcohol Treatment Order (DATO).

44A DATO has two parts: the treatment and supervision part and the custodial part. The treatment and supervision part itself has two parts, which are as follows.

45The core conditions, which are that:

(a)   you must not commit, whether in or outside of Victoria, another offence punishable on conviction by imprisonment during the time the Order is in force;

(b)   you must attend Drug Court when required by the Court to do so; 

(c)   you must report to the Melbourne Drug Court House within two clear working days after the Order is imposed; 

(d)   you must report to and accept visits from members of the Drug Court;

(e)   you must undergo treatment for alcohol and drug dependency as specified in the Order or by the Drug Court;

(f)    you must give notice of any change of address, at least two clear working days before the change, to a specified Drug Court officer;

(g)   you are not to leave Victoria without the permission of the Drug Court; and

(h)   you are to obey all lawful instructions from the Drug Court Team. 

46The core conditions will operate for 45 months, or until further order.

47The program conditions, which are that: 

(a)   you must submit for drug and alcohol testing, as directed; 

(b)   you must submit to detoxification or other treatments specified in the Order, as directed;

(c)   you must attend vocational, educational and employment programs, as directed;

(d)   you must submit to medical, psychiatric and psychological treatment, as directed;

(e)   you must reside at an address directed by the Drug and Alcohol Treatment Court for the duration of the Order or until further Order; 

(f)    you are subject to a curfew that you must remain at an address directed by the Drug and Alcohol Treatment Court between the hours of 9:00 pm and 6:00 am, which is required until further order;

(g)   you are not to use a drug of dependence without lawful authorisation;

(h)   you are to abstain from alcohol;  and

(i)    you are to do or not do anything else that the Drug Courts consider necessary or appropriate concerning:

(j)    your drug and alcohol dependency; and

(k)   the personal factors that the Drug Court considers contributed to your criminal behaviour. 

48These program conditions will operate for two years, or until further order. 

49The custodial part of the DATO is the term of imprisonment that I would have imposed had I not placed you on a DATO, and it is a term of imprisonment of 45 months. That is made up as follows:

§On Charge 1, 23 months’ imprisonment;

§On Charge 2, 34 months’ imprisonment.

50I order that 11 months of the sentence on Charge 1 run cumulative to the sentence on Charge 2. This makes a total effective sentence of 3 years and 9 months (45 months).

51As to s 6AAA of the Sentencing Act 1991, the Court of Appeal has said it is an artificial exercise and it is particularly artificial when placing someone upon a DATO. Doing the best I can, had you not pleaded guilty you would have been sentenced to a total effective sentence of five years, with a non-parole of three years and nine months. 

52Pursuant to s 18(4), I declare that you have served 430 days of pre-sentence detention. That just sits there and only comes into play if your DATO is cancelled and then we are looking to how much of three years and nine months that I have imposed today you serve. 

53Mr Sonnet, do you consent to being placed upon a DATO?

54OFFENDER:  Yes.

55HIS HONOUR:  I thought that might be your answer. 

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