Director of Public Prosecutions v Stewart
[2022] VCC 1410
•25 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-22-00618
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE STEWART |
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JUDGE: | HIS HONOUR JUDGE JOHNS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 August 2022 | |
DATE OF SENTENCE: | 25 August 2022 | |
CASE MAY BE CITED AS: | DPP v Stewart | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1410 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Armed robbery – Common law assault – Plea of guilty – Application of Verdins principles.
Legislation Cited: Sentencing Act 1991
Cases Cited: Bugmy v The Queen 249 CLR 571; R v Verdins [2007] 16 VR 269.
Sentence:Total effective sentence of 14 months imprisonment in combination with a community corrections order of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Coombes | Office of Public Prosecutions |
| For the Accused | Mr D. Carolan | James Dowsley & Associates |
HIS HONOUR:
1 Luke Anthony Stewart, you have pleaded guilty before me to one charge of armed robbery and one charge of common law assault. The maximum penalty for armed robbery is 25 years' imprisonment, the maximum penalty for common law assault is five years' imprisonment. You admitted a criminal record before me which discloses relevant prior convictions.
2 Circumstances of Offending
3 In relation to the circumstances of your offending, the summary of prosecution opening for plea was Exhibit A on your plea and forms part of these reasons for sentence.
Charge 1 – Armed robbery
4 The offending occurred in respect of both charges at Karingal Hub Shopping Centre in Frankston. The armed robbery was on 1 July and your victim was sitting in his car on his mobile phone and you walked past the car and noticed your victim on the phone. You then went into the shopping centre. You were observed to come out of the shopping centre. You put on a red full-face mask. You returned to your victim's car.
5 Your victim was still sitting in the car on his phone. You reached in the driver's side window whilst holding the knife to take the phone from your victim's hands. Your victim saw your hand holding the knife near his head. He kept hold of his phone. You tried to take it out of his grip. You said, 'Give me your fucking phone, give me your phone or I'll start stabbing you', whilst holding a blue-handled knife with a 4-inch blade. Your victim let go of the phone in fear and you then ran off with the phone, which has not been recovered.
Charge 2 – Common law assault
6 Five days later on 6 July around 9 pm your victims were in the shopping centre, the Karingal Hub Shopping Centre. You approached them and asked for cigarettes. They did not have any and you followed and you said something like, 'Nice shoes'. One of your victims was wearing Ugg boots. She responded, 'Comfort is the key', and laughed it off, walking away from you. You continued following them.
7 They then heard you say something else, turned around and saw you holding a knife. The knife had a dark blade and was approximately 20 centimetres long. You were holding it down near your hip facing towards the male victim. You were pointing the knife. Both victims exclaimed that you had a knife and they ran and reported what they had seen. Police were called and attended, but you were not located at that point in time. Both victims were terrified and scared to contemplate what might have been in mind with you having the knife and accosting them in the manner in which you did.
Investigation
8
You were arrested on 13 July and you made full admissions. You said in relation to the armed robbery that you believed your victim was a sex offender for some unknown reason, and told the police that you wanted to kill him,
'I fucking think I'm going to fucking kill this motherfucker when I walked into the shopping centre and I just snapped. I'm just - I want to go get him. I'm going to have to take his phone', and you admitted going straight up to him with the mask on, carrying the knife and ripping the phone from his hand.
9 In relation to the common assault, you recalled the shoes. You said they were wearing matching slippers, moccasins. You cracked up and you pulled your knife out, you do not know why, and you swung it around and they ran off. You were remanded in custody, which is where you have remained.
Objective Gravity of Offending
10 This was serious offending. The gravity of the offending was summarised in the prosecution's submission in relation to sentence, pointing out that being confronted by an offender such as yourself, with a full-face mask, brandishing a knife with a 4-inch blade would have been a terrifying and a frightening experience, and similarly your victims in relation to the common assault were terrified. It is a serious example of the offence of common law assault, to brandish a knife in that manner, simply to terrorise.
Personal Circumstances
11 Your counsel, in his excellent written submissions, set out your personal circumstances. You had a difficult early life. You grew up in Frankston. Your parents separated when you were around five, I was told. Your stepfather thereafter was physically abusive. During childhood and adolescence, you spent time living with each of your parents separately. You attended school to Year 10.
12 You suffer from schizophrenia, and this is well documented in the materials, and it is common ground between the parties that that diagnosis is well documented but also it is extremely relevant to the offending before me. You were diagnosed at around 19 years of age. At around that time you were living with your mother and you were asked to leave home following outbursts and you were homeless for a period of approximately two years, and I was told that you have had limited contact with your mother in recent years.
13 Whilst you were diagnosed at 19 with schizophrenia, you had very limited treatment or intervention until about the age of 25. At 24 you completed your apprenticeship as a roof tiler and worked as a roof tiler and that is very much to your credit. I accept the matters set out in your grandfather's letter, in his testimonial in relation to you and he is clearly proud of you achieving the qualification as a roof tiler.
14 I have also received the letter from your father which indicates his support for you as well. You have a relatively good working history and have demonstrated in the past that you can achieve stability in your life and engage in full time employment. I was told, and I accept, that in July last year your mental health declined significantly. You suffered from psychosis and hallucinations which contributed to the offending before me.
15 Ultimately your counsel urged that I find a number of mitigating factors in your favour, most of which were not controversial, typically the early plea which carries a substantial utilitarian benefit in the context of the COVID pandemic.
16 Significant reliance was placed, and appropriately so, on the findings in the reports of Dr Deacon which give rise to the application of R v Verdins (“Verdins”) principles.[1] The stability arising in relation to your mental health that is arising from the period in custody was relied upon in your favour, and that goes to prospects of rehabilitation.
[1]R v Verdins (“Verdins”) [2017] 16 VR 269.
17 Your disadvantaged background, including domestic abuse and homelessness, Mr Carolan was clear that it was not a Bugmy v The Queen (“Bugmy”)[2] submission but of course it approaches those sorts of considerations, and it is something which I assess in terms of your overall moral culpability, and of course the restrictions and hardships associated with the COVID-19 pandemic during which you have been incarcerated.
[2]Bugmy v The Queen (“Bugmy”) 249 CLR 571.
18 In particular the assessment of Dr Deacon is important in your case. Dr Deacon reviewed your justice health file and noted that you were diagnosed as acutely psychotic on 19 July last year, which is about two weeks after the alleged offending, and on 27 July.
19 In relation to the events in relation to Charge 1, Dr Deacon opined that in your psychotic state you misinterpreted your immediate environment. You were under the misapprehension that your victim was a paedophile and believed that the mobile telephone was being used in furtherance of such activity. You told Dr Deacon that you suffered food poisoning in July and you suffered hallucinations. Dr Deacon concluded that the period of offending before me coincided with a period of florid psychosis with manic features.
Other Factors in Mitigation
20 Whilst you were fit to stand trial, the matters did not amount to a defence of mental impairment. Your mental condition was clearly compromised. Your judgment was compromised and your capacity to think clearly and rationally was clearly compromised as a result of these psychiatric features and thus the application of the Verdins principles in relation to the nexus between that condition and the commission of the offences and its impact on my consideration of general deterrence, specific deterrence and moral culpability.
21 In relation to your mental state at the time of assessment, Dr Deacon concluded that you had benefited from psychiatric treatment in prison and your mental state had markedly settled, but you would require indefinite treatment in the community and should be referred to an area mental health service following release, and that you were compliant with oral medication.
22 Dr Deacon provided a subsequent report, providing opinion in relation to the application of Verdins principles. Your presentation was consistent with your previous presentation to Dr Deacon.
23 In relation to the charges before me, Dr Deacon opined that:
'There was a clear nexus between Mr Stewart's mental illness and the offences. It appears that his mental illness became progressively more unstable through the offending period in July 2021. Mr Stewart was actively psychotic at the time of the offences. He was also untreated'.
24 The prosecution conceded that limbs 1 to 4 of the Verdins principles had some application in your case due to the opinions of Dr Deacon. The prosecution baulked at the notion that hardship in custody stemming from your schizophrenic condition was a significant factor. I find that limbs 5 and 6 have some application, but minimal application in relation to your case.
25 I do find that the findings of Dr Deacon are important to my ultimate conclusion that a community corrections order that provides a better structure for ongoing mental health treatment and supports you to engage in the voluntary participation in the Forensicare community integration program is more appropriate than a head sentence and a non-parole period, in the expectation that a period of parole will provide similar or the same structure and support in relation to your mental health challenges.
26
Your counsel relied upon the fact that you made full admissions, and I will not restate the other matters in mitigation that were relied upon by your counsel, save to say that I accept those. Of course were it not for the application of Verdins in relation to my assessment of moral culpability and also to the extent that I am able to moderate general deterrence as a result of that connection between your psychiatric illness and your offending, you would be facing a lengthy term of imprisonment, an all over head sentence with a significant
non-parole period.
27 All those matters that I have referred to, but principally the consideration of Verdins principles, greatly mitigates your offending and as we discussed at the plea and as I have further raised this afternoon, the real consideration in your case was a head sentence and non-parole period that might place more weight on the notional general deterrence from a head sentence, notwithstanding that the non-parole period might be commensurate with a period after which I would be prepared to release you on a Community Corrections Order.
28 It is sometimes an interesting analysis between a sentence that has its weight on reflecting general deterrence that might be more deficient in terms of the support and comfort it can give the community in knowing that once out of custody you will be under the supervision of the court and subject to conditions aimed at protecting the community ultimately because they are aimed at rehabilitating you.
29 I formed the view that, as I indicated moments ago, both sentences were within range and with some concern, given your attitude during the assessment, a community corrections order that is comforted somewhat by the matters set out in the mental health advice and response service report, I have concluded that the appropriate sentence, having regard to general deterrence and specific deterrence, protection of the community and denunciation of your crimes, is a combination sentence and I will now sentence you as follows.
Sentence
30 Mr Stewart, in relation to Charge 1 you are sentenced to a 14-month sentence of imprisonment in combination with a two-year Community Corrections Order with treatment conditions.
31 The treatment conditions are drug treatment and rehabilitation, mental health treatment and rehabilitation. You will also be subject to supervision and judicial monitoring.
32 In relation to Charge 2, common law assault, you are sentenced to six months' imprisonment, to be served concurrently with the sentence imposed on Charge 1.
33 I declare, pursuant to s 18 of the Sentencing Act, that you have served 408 days of pre-sentence detention in relation to the matters before the court.
34 Pursuant to s 6AAA, were it not for your pleas of guilty I would have sentenced you to a total effective sentence of three years and nine months' imprisonment with a non-parole period of two years and nine months.
35 In relation to that community corrections order aspect of Charge 1, do you consent to the community corrections order, Mr Stewart?
36 OFFENDER: Yes, Your Honour.
37 HIS HONOUR: I must tell you that I haven't imposed community work. I understand that you have a desire to return to employment, and I think that would be a very protective and beneficial thing for you to be doing but at the same time I'm concerned that you engage fully in the treatment conditions, the drug treatment and rehabilitation and the mental health treatment and rehabilitation because for the next two years you will be under the supervision of Corrections and also of me, because I'm going to impose a judicial monitoring condition.
38 The first judicial monitoring session we'll have is in six months from today's date, and hopefully by that stage you will be well and truly engaged in those treatment conditions. If you don't engage, if you decide to prioritise other aspects of your life such as work or social activities, you'll be in breach and you'll be back before me for re-sentence. Of course if you commit further offences punishable by imprisonment you will also be back before me for re-sentence, so by no stretch is it a soft sentence.
39 It's a sentence that will be onerous for you once you're released, but you're capable of sticking to it and engage in those treatments. It's in your best interests that you do, and if you do so you'll complete the order and be able to put it all behind you. That order will be prepared. I'll sign it and it will be sent out to you. You have indicated your oral consent to it. That's all I'll say in relation to my reasons for sentence and directions to you.
40
Mr Stewart, I'm not sure when you'll be released onto that community corrections order because of things like emergency management days, and it's not a matter for me how those things are administratively calculated but a
14-month sentence, of which you have already served 408 days is the situation you're currently in and Mr Carolan can explain that to you further.
41 Are there any further orders sought, Ms Coombes? Is there disposal orders or anything?
42 MS COOMBES: No.
43 HIS HONOUR: No.
44 MS COOMBES: No, Your Honour. Your Honour, 14 months’ imprisonment - I think Your Honour might have said 14 months combination or something when you were declaring the sentence.
45 HIS HONOUR: Yes, it's a combination sentence. 14 months' imprisonment.
46 MS COOMBES: Yes. Thank you.
47 HIS HONOUR: And that's with a declaration of 408 days in combination with the two-year community corrections order.
48 MS COOMBES: Yes.
49 HIS HONOUR: We'll adjourn the court.
50 MS COOMBES: Yes. Thank you, Your Honour.
51 MR CAROLAN: Thank you.
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