Director of Public Prosecutions v Stewart
[2014] VCC 972
•30 June 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR -14-00880
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OSSIE STEWART |
---
| JUDGE: | HIS HONOUR JUDGE SMALLWOOOD |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 30 June 2014 |
| CASE MAY BE CITED AS: | DPP v Stewart |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 972 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A Bhai | |
| For the Accused | Mr M Perry |
HIS HONOUR:
1Ossie Stewart, on Indictment No.C12054846, you have pleaded guilty to three charges of theft and one charge of attempted armed robbery. Those crimes carry maximum penalties of ten years and 20 years respectively.
2You also pleaded guilty to one uplifted charge of fail to appear.
3On Indictment No.D13171140, you have pleaded guilty to six charges of armed robbery and one charge of causing serious injury intentionally. Those crimes carry maximum penalties of 25 years and 20 years respectively.
4You are 30 years of age. You pleaded guilty at the earliest reasonable opportunity and indeed have endeavoured to facilitate the course of justice by negotiating a settlement. I accept that within your very limited capacity, you express remorse and you must, of course, get the utilitarian benefit of that plea of guilty. People with schizophrenia often have difficulty appropriately expressing remorse and I take that into account.
5You are no longer a young offender, but are not totally beyond rehabilitation. Insofar as your prior history is concerned, it is a disturbing one, but somewhat understandable in your personal circumstances. You have many prior convictions for dishonesty, you have assault police, various assaults, you have a robbery and weapons matters from the past.
6Significantly in 2003, which occurred in 2002, in the County Court at Melbourne, you were given three years, with a non-parole period of 18 months, for recklessly causing serious injury and armed robbery. I have had the advantage of reading His Honour's sentencing remarks from that plea hearing and it would seem that at that time, some now - in excess of ten years ago, you had not been diagnosed with the problems that it is now clearly apparent that you have.
7The first indictment. The situation was that on the afternoon of 24 June 2012, you entered a gymnasium in Dandenong. The victim had left his sport's bag on a bench in the change room. You stole the keys from that bag, left the change room, walked outside and stole a Commodore motor vehicle. You also stole a wallet, mobile phone and other items.
8You drove to a Bottlemart in East Bentleigh and at about 4.20 pm, you entered that Bottlemart. You had your hand under your jacket and pulled out a knife, which was a kitchen carving knife, approximately 12 inches long. The attendant, who was aged 54, was sitting behind the counter. You waved the knife at him and repeatedly said, "Give me the money." He said that your voice got more aggressive and he said your eyes were bulging out, that you repeatedly said, "Money, money." You were standing on the opposite side of the counter. To defend himself, Mr Sawyer, the victim, swung his barcode scanning gun towards your head, but the cord was too short. You then left through the front door and went out onto the footpath. You got into the stolen car and drove away.
9Later that night or earlier the following morning, you stole number plates from a car, which you then attached to the stolen car. Obviously you were mentally functioning to a certain degree, at least.
10On the following morning, you went to the Woolworths petrol station in Doveton and stole $50 worth of petrol.
11When interviewed by police, you were, they said, polite and co-operative and admitted the armed robbery and denied stealing the number plates, but that was about that. You said the reason was drugs, just drug habit, just needed the money. It was the old scene. There were no victim impact statements, but in the process of identifying you, the victim said, "I remember him. You don't forget the face of a man who tries to stab you." You are not charged with stabbing him, that is simply his perception, but it certainly brings out the terror, that offending of this nature causes.
12Again as I have indicated, your pleas of guilty were at an early stage. I was informed at the plea hearing that on 3 May 2013, you were sentenced to four months imprisonment on other matters. You had been arrested for warrant on this. Those other matters are not PSD for these matters, but I take them into account on a Renzella type basis.
13The situation then was that you were charged and brought on for trial. You were brought before the Koori Court and on 1 October 2013, you participated in a sentencing conversation where these matters were discussed with the Elders and you, at that point in time, had had accommodation organised for you. You were receiving regular visits from your mental health worker, and on the face of it at least, things seemed to be on the improve. After having heard that conversation, I had you assessed for a Community Corrections Order and you were found to be suitable for it. The matter was then adjourned to be heard again for sentence.
14What then occurred was that you were arrested and charged with other matters. Those other matters are the matters that you have pleaded guilty to today upon arraignment. You have been in custody ever since your arrest for those. That offending is frighteningly similar and frighteningly similar to the prior conviction you have for recklessly causing serious injury and armed robbery.
15On 27 September 2013, you reported to the Dandenong Police Station. At about 1.30 that afternoon, you went to a newsagency in Dandenong. You entered the newsagency. There was another customer present, so you left. About a minute later you walked past, walked in again and entered it through the slit curtains. There were no customers there. You closed the sliding door behind you and ran towards the counter of the store. You were holding a knife.
16The store attendant, a Ms Troung, ran towards the back of store. You jumped over the counter, opened the cash register and took the notes, approximately $400. She called out to the police, you did not say anything. She left the building through the side door, locking it behind her. You, after taking the notes from the till, ran out the front door. As you walked away, she was walking towards you saying, "I know you, I know your face." You kept walking. You were wearing the same clothes and sunglasses apparently, as you had had on when you reported to police in the morning. That is Charge 1 on that particular indictment.
17At about 9.40 that same evening, you entered Mulgrave Cellars on Wanda Street. Mr Abass Hussein was working behind the counter. There were no customers in the store. You walked towards the counter entrance. You were holding a knife approximately 30 centimetres in length. You grabbed him by the arm and pushed him away. You tried to open the till, said, "Where's the money?" and "Give me the money." You were unable to open the till and started to panic, "Where's the money?" Mr Hussein went back to the counter area. By that time you had opened the till. He tried to stop you from taking the money from the till and you stabbed him in the left upper chest. Initially, as is sometimes the case, he did not feel any pain.
18You then tried to push him away and in doing so, cut him with the knife, partially severing his right middle finger. He moved away. You said, "I'll stab you, don't come any closer." You took the notes, approximately $1,000 from the till and said, "I need more cash." He said, "I don't have any more cash, get out of the store", and you ran away. Mr Hussein was seriously hurt. He remained in hospital for 12 days. He suffered a moderate to large left pneumothorax and a collapsed left lung and the injury to his finger required surgical repair and ongoing physiotherapy. That offending was recorded on CCTV footage, as was most of the other offending and the court has had the opportunity of viewing it. That gives rise to the charge of intentionally causing serious injury and of armed robbery.
19The next matter was again that same evening. You went into a bottle shop at the Keysborough Hotel. A 19 year old girl was stacking the fridge. She saw you and said, "Hi, how's it going?" You told her you were looking for something. You walked into the spirit section and she followed. You then turned and walked around behind her. You had a knife, you held it towards her. You pushed her in the back and forced her towards the register. She opened the till and you took all the notes from the drawer. You then pushed her towards the second till, which she was unable to open. Another attendant saw what was happening and began walking towards the till. You notice her and ran from the store. That gives rise to another charge of armed robbery.
20As I have indicated, on 1 October you appeared in Koori Court. I take into account that all the offending that I have just referred to, occurred within the space of a couple of hours and accordingly, there will be significant concurrency in relation to it. I make it very clear though that the charge of intentionally causing, a serious one in these circumstances, is indeed a serious one.
21On 5 October, some four days after your appearance before myself and the Elders, you entered the Club Exeter in Ringwood. There were two customers in the store. You remained in the store for about ten minutes and then left. The two customers left and you went back into the store. The attendant was counting the money in the register. You ran behind the counter. You were holding a knife and pointed it towards her. She stepped away and you grabbed her and pulled her back towards the register. You demanded cash. You took the tray and approximately $250 from the register. You told her to open the drawers, which she did, showing you there was nothing there. You then ran from the store. That gives rise to Charge 5.
22Charge 6. Again that same evening, you walked into a drive-through bottle shop at the Old England Hotel in Heidelberg and there were two attendants there. You rushed behind the counter, having with you the kitchen knife and telling the attendants to, "Open the fucking till." The till had been cleared. One of them showed you the till, saying, "Look, it's empty." You asked where the money was, you were told it was at a different till. You then grabbed the other man's hoodie and marched him over to the second till. He could feel the knife against his ear. Both of them walked over to the second till, with their hands held up. The second till was opened and they stood back. You took the money from the till and ran. Again, there will be concurrency between that matter and the previous matter, that having occurred within an hour or so of each other.
23On 12 October 2013, about a week later, you entered the Tatts newsagency in Lynbrook Village, again holding a 20 to 30 centimetre knife. You went behind the counter where the owner was. You told him to, "Give me the money." You opened the register and grabbed $20 and $50 notes, put them down the front of your shirt. The proprietor tried to stop you and in doing so, received a small cut to his hand. You shrugged him off, thrust a knife towards him and said, "I'll stab you, cunt." He then stood back with his hands up. You continued to grab cash from the till and then ran out of the store. You were chased but got on a train. You were arrested and made certain admissions, but not to everything. When ultimately you did plead guilty and I have already accepted that that was at the first reasonable opportunity.
24There are two victim impact statements that have been supplied in relation to that last indictment. Each one of those clearly indicates the terror and ongoing psychological harm that offending such as yours causes.
25Obviously in these circumstances the offending, it having occurred in the past, and indeed whilst you were on bail for a similar offence, requires the application of general and specific deterrence, as well as denunciation, just punishment and in your particular situation, Mr Stewart, community protection. A very significant gaol sentence is inevitable.
26I then turn to the matters personal to you. As I have indicated, I do not propose to go through, word by word, what is in all that material. It has all been tendered, Exhibit 1, and I have taken it all into account. In the end, the situation where the principles or most of them outlined in Verdins, Blacklock and Bugmy, become of significance. You had long-term drug use. I do not find that that mitigates this offending, it simply provides a motive for it. You were able to clearly describe to myself and the Elders during the sentencing conversation on 1 October, what the consequences of your drug use were and what would occur from it, and you then went out and did it again, some three times.
27I have read, on your behalf, a report from Louise Newman, from Mental Health; Dr Lester Walton, a well-known psychiatrist I will refer to again shortly; Abass; and a Rosemary Jones as well, who is a housing support worker. At the time that we discussed this in Koori Court, you were receiving, as I have indicated I think, treatment for your mental health. Housing was in place and it looked like you were actually going somewhere. That all fell apart and as I have indicated, I think that during the course of that conversation, you were trying to indicate that you were not well, that you were hearing voice and it is just unfortunate that a different course was not taken. That would not have assisted the people who were the victims of the first three armed robberies, but it might have assisted the last three.
28You are an Aboriginal man and have suffered what is so common with Aboriginal people, you suffered the loss of a father at an early age. You were sexually abused. You received or have been subject to violence. You became a user of substances, both illicit and legal, at a very early age. When you came before the County Court judge back in 2003, your mental difficulties had not been recognised. His Honour sentenced you as essentially being anti-social, but the sentence was kept low because you were only 19 years of age. Since then you have continued to offend, though up until now, not to anywhere near the same degree. You have done numerous gaol sentences and I accept what is contained in that information that you are indeed institutionalised. That is very unfortunate but there is very little I can do about it.
29Most importantly in your particular situation, you, within your capacities, display remorse. Dr Walton has pointed out a number of things, (1) that you are finally being diagnosed as having schizophrenia. That bring into play Verdins. You have also now been assessed. You have an extremely low IQ. You have an acquired brain injury, which was not apparently noticeable back then, but it has probably been brought about by drug abuse and alcohol abuse over an extended period of time. You have become dependent upon institutions for providing you with medication, the stability and with some sort of sense of safety, I suppose.
30I do not know what the future holds for you, Mr Stewart. Clearly at 30 the prospects of a rehabilitation have not been completely extinguished, but each of the professionals who has examined you, has a fairly - I think Mr Perry said on your behalf, they avoided the word but "gloomy" prognosis to what is going to happen in the future. You clearly understood when we were talking to you what the risks were of committing offending such as this whilst on ice and you were saying that you were using drugs and apparently were on ice. Unless you can somehow turn this around and stop this sort of offending, you are either going to kill somebody or somebody is going to kill you.
31That is really a matter for you. I formed the impression that you were not altogether with us today. What happens in the future is a matter for the authorities. I can just simply beseech the authorities, despite the lack of resources, that you receive appropriate psychiatric, psychological support over the next years and then upon your ultimate release, that you are put into a situation where you do have housing and a sense of stability. Your mother was here at court for you today and Mr Perry tells me that she is supportive of you.
32After the offending had occurred, for example, in June 2012, in relation to Indictment 1, you were in the Dandenong Hospital psychiatric unit between December and 15 January 2013, again attracting a diagnosis of schizophrenia.
33Dr Walton, in one of his reports, points out, and again this is - I had not quite realised the significance of this at the time. When he examined you a week or so prior to - not even that, prior to the offending contained in the second indictment, he pointed out that your psychosis was oncoming and that you were deteriorating again. That came too late for the first three victims, but that is the situation that we are in.
34I do think that your moral culpability has to be reduced by a moderate degree. General deterrence has to be reduced significantly, I think and specific deterrence, well I suspect with you, they may be a waste of time, but have to play their part as well.
35
If you had committed this offending whilst not under the disadvantages of your background and your brain injury and your schizophrenia, you would have been receiving a very large sentence indeed. I do not think that anybody would dispute that. I have to take into account that I am sentencing a
30 year old man with your disabilities, that you are in all certainty, I think, already institutionalised and I have to take total regard for totality and endeavour not to impose a sentence that is crushing.
36I sometimes think that the need to take into account totality and circumstances such as yours, leaves one with sentences that do not quite reflect in their individual basis, the seriousness of the offending, but that is one of the problems that arises in circumstances such as this.
37In any event, taking all those matters into account, you are sentenced as follows, and Mr Perry will explain this to you afterwards. On the first Indictment C12054846, sentenced as follows:
Charge 1, six months and driver's licence suspended for six months.
Charge 2, two years and six months.
Charge 3, one month.
Charge 4, one month.
On the summary matter of fail to appear, one month.
38They are to be concurrent, which on that indictment, leaves a sentence of two years and six months.
39On the second Indictment - as I have indicated, I always find this a slightly unrealistic scenario, but you are sentenced as follows:
On Charge 1, three years.
On Charge 2, three years.
On Charge 3, that being the intentionally causing serious injury, four years.
On Charge 4, three years.
On Charge 5, three years.
On Charge 6, three years.
On Charge 7, three years.
40Charges 1 to 4 occur in the same period of time, as do Charges 5 to 6. Charge 7 is committed in isolation.
41I direct that six months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 2, six months of the sentence imposed on Charge 4, six months of the sentence imposed on Charge 5, six months of the sentence imposed on Charge 6 and 12 months of the sentence imposed on Charge 7, be served cumulatively upon each other and upon the sentence imposed on Charge 3.
42On that indictment, that gives an effective head sentence of seven years and six months.
43
I direct that nine months of the total effective sentence imposed on
Indictment 1, be served cumulatively upon that seven and a half years, which gives an effective overall head sentence of eight years and three months.
44I direct that you serve a minimum term of six years before becoming eligible for parole. And I direct that 251 days be reckoned as having been served as pre-sentence detention.
45Just so you understand what it would have cost you to have fought these matters out, Mr Stewart, pursuant to s.6AAA, I say that but for you plea of guilty to these matters, I would have given you 12 with a nine.
46Are there any other orders I have to make?
47COUNSEL: No, Your Honour.
48HIS HONOUR: All right.
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