Director of Public Prosecutions v Sudmeyer

[2013] VCC 1337

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00480

DIRECTOR OF PUBLIC PROSECUTIONS

v

CARL SUDMEYER

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 October 2013
CASE MAY BE CITED AS:	DPP v Sudmeyer
MEDIUM NEUTRAL CITATION:	[2013] VCC 1337

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr M. Roper	OPP
For the Accused	Ms K. Rowe	Lethbridges

HER HONOUR:

1Carl Sudmeyer, you have pleaded guilty to one charge of attempted armed robbery contrary to s.75A(1) and s.321M of the Crimes Act 1958, one charge of theft contrary to s.74 of the Crimes Act 1958 and one charge of robbery contrary to s.75 of the Crimes Act 1958.

2The maximum penalty for each of those offences are as follows.  Attempted robbery, 20 years' imprisonment, robbery, 15 years' imprisonment, and theft, ten years' imprisonment.  Mr Roper for the prosecution read out a summary of the case that was brought against you and you admitted the accuracy of that statement and I sentence you on the facts set out in that document. 

3The charges relate to three separate instances of offending.  You were aged 22 at the time.  The first instance of offending and the subject of Charge 1 occurred on Friday 2 November 2012 at about 11.45 am when you, in the company of Mr Paul, approached the victims who were with two of their friends at Caulfield Railway Station.  The victims and their friends were all aged around 18 and 19.  Mr Paul demanded cigarettes from them while you stood beside him.  When no cigarettes were produced for you, Mr Paul became verbally abusive, swearing at them and said, "You better have ciggies or we'll take your phones."  Mr Paul also demanded $5 for a taxi fare.  He then walked up to one of the friends and one of you said, "Do you want to fight?"  He also said that he could get his friends to come down and bash their whole group.  At this point, you took out an imitation handgun, pointed it at the group and said, "Could I have a smoke now?" and Mr Paul said, "Give us your phones and empty your pockets."  The group pleaded with you that they had no money and slowly began to back away from you both. 

4The two friends walked towards the station platform while the two victims walked towards a tram stop.  Both you and Mr Paul followed the victims, passing in front of them, blocking their paths and forcing them to stop.  Mr Paul pointed at Mr Dickerman's pocket and said, "Give us your phones, boys."  Mr Dickerman and Mr Hill refused and again backed away from you both.  Mr Paul then said to Mr Dickerman, "Does this guy want to fight me?  He's not looking at me."  Mr Dickerman then turned to Mr Paul and said, "No, I don't want any trouble."  At that point, Mr Dickerman noticed that you were still pointing the gun but he saw it flash and realised it was a fake.  Both you and Mr Paul eventually gave up your demands.

5The second instance of offending and the subject of Charge 2 occurred on Sunday 18 November 2012 at about 10.30pm when, again in the company of Mr Paul, you approached Martin Pavloski as he was waiting for a tram outside the South Melbourne Market.  Mr Paul asked him for a cigarette and when he replied that he did not smoke, you pulled the cord of the headphones through which he was listening to music and grabbed his iPhone.  Mr Pavloski asked for his phone back and approached you.  You then produced a yellow handled boxcutter with the blade extended and waved it around his face and body.  He slowly backed away and boarded a tram, leaving you both at the tram stop.

6The third instance of offending and the subject of Charge 3 also occurred on Sunday 18 November 2012 at about 11.00pm when you, still in the company of Mr Paul, approached Mr Defit Remi who was standing and smoking a cigarette outside his workplace, the Pizza e Birra restaurant on Fitzroy Street in St Kilda.  Mr Remi was texting on his Samsung Galaxy phone when you said, "That's a pretty nice phone you've got, buddy", grabbed the phone and placed your other hand at his throat.  Mr Paul was standing next to you and the victim and said aggressively words to the effect, "What are you going to do about it?"  Mr Paul then asked Mr Remi if he was going to call the police.  Mr Remi replied "Yes" and went inside, called triple zero and told his staff that his phone had been stolen. 

7You were then both chased down the street by some of the staff.  You were both arrested when police attended at Fitzroy Street shortly after this third incident.  When you saw the police approaching, you threw the boxcutter and phone into the rubbish bin.  They were both later found by the police.  You were both taken to St Kilda police for formal recorded interviews. 

8In your record of interview, you admitted being present with Mr Paul in Fitzroy Street during the third incident and to being in possession of a boxcutter.  You initially denied but then later admitted your involvement in the second incident at the tram stop outside the South Melbourne Market but you put the blame on Mr Paul.  You did not, however, name him.  You made full admissions to the first incident at Caulfield Station.  You said Mr Paul had provided you with the imitation pistol.  Your reasons for the offending at Caulfield Station were that you were trying to get a smoke and that Mr Paul asked you to prove yourself to him.  You told police where to find the imitation pistol and police then seized it under warrant from a locker at the Sacred Heart Mission in St Kilda.

9In the scheme of things, having regard to the wide range of conduct which will fall under the ambit of the serious offences with which you have been charged, I consider that your offending is at the lower end of the scale.

10I turn to your personal circumstances which were set out in the reports of Lee Navatoni and Dr Robert Bourke which were tendered on your behalf by your counsel, Ms Rowe.  You are the youngest of three siblings and were diagnosed at an early age with cerebral palsy, a speech impediment and an intellectual disability.  Your father left home when you were about two and you were raised by your mother, who had significant substance abuse problems, until the age of nine.  You struggled with learning difficulties throughout your school life and had a teaching aide throughout primary school.  You were diagnose with attention deficit hyperactivity disorder and medicated with Ritalin from the age of 14.  You were bullied at school because of your difficulties.

11You and your sister were put in different foster care placements while your older brother stayed with your mother.  You had trouble understanding why you were removed from your mother but you settled well with your foster family with whom you lived until you were 15.  Then, even though you had had little contact with your mother during these years, you were sent back to live with her.  You were angry and resentful about this. 

12You left school after completing Year 10.  You worked for six months at a bakery and 12 months at a petrol station.  You have been receiving a disability support pension for a number of years on the basis of your intellectual disability.

13You left home at 16.  After that you had unstable accommodation in boarding houses and crisis accommodation.  You engaged with the Sacred Heart Mission during this time.  At the time of the offending, you were living in a boarding house in St Albans but the tenants had changed and the house was dirty so you would go to the Sacred Heart Mission to eat and obtain support.

14Your substance abuse history indicates a period of heavy alcohol abuse from December 2012 to March 2013.  Daily use of cannabis from May 2011 to May 2012 and daily use of amphetamines from April 2012 to March 2013.  At the time of the offending, you were using methamphetamines. 

15Dr Bourke, a neuropsychologist, concluded that your full scale IQ is within a range consistent with a mild intellectual disability.  He notes that you had limited attentional abilities and extremely poor literacy which he assessed as being at a Grade 3 level.  He notes that you had limited verbal reasoning and were concrete in your thinking with further difficulties at the executive level.  You were able to learn and retain limited amounts of new information.  Dr Bourke concluded at p.4 of his report:

"Mr Sudmeyer's low level of intellectual cognitive functioning would be one factor among many others impacting on his offending behaviour.  His cognitive difficulties will limit his ability to plan, reason, exercise appropriate judgment, think abstractly and reflect on the likely consequences of his behaviours.  Mr Sudmeyer is also more likely than a person of average intellectual abilities to be influenced by others.  The acute impact of substance abuse is also likely to further impair his already limited cognitive functioning.  Due to his limited cognitive resources and problem solving abilities, it is expected that a term of imprisonment would weigh more heavily on him than a person of average intellectual abilities."

16In the light of your intellectual and cognitive difficulties, Dr Bourke noted that you would need the assistance of a consistent and trusted person to help you with attending treatment appointments, filling in forms, finding stable housing, coordinating engagement with services to provide support and helping with everyday tasks that require verbal reasoning, problem solving and literacy skills.  You will need information explained to you slowly, clearly and in simple language.  You will need to avoid being presented with large amounts of complex verbal information. 

17Dr Bourke also stressed that you are vulnerable to future brain impairment and for this reason must avoid substance abuse in the future.  Dr Bourke stated that you will function in a highly structured routine, supportive and predictable environment and should be encouraged to engage in regular work-like activity involving simple, repetitive and manual type activities.  He indicated that an unstable home environment would worsen your cognitive difficulties.

18You have a number of prior convictions, both in Victoria and interstate.  You were convicted of armed robbery in March 2010 and sentenced at Geelong to a community based order.  You were convicted of shop steal, theft and burglary in August 2010 at Geelong and were sentenced to a further community based order.  A justice plan was attached to that order. 

19In October 2010, you came before the County Court regarding the breach of your CBO for the armed robbery.  Your CBO was cancelled and a fresh CBO was imposed and a justice plan was attached to the order. 

20On your behalf, Ms Rowe conceded that your offending history is limited but serious.  She noted that in the past, as in this case, you offended in company, usually in the company of someone with greater cognitive faculties.  She submitted that compliance with court orders was a problem until you received the intensive support provided by a justice plan and that with that assistance you were able to comply until October 2011.  In particular, she submitted that you had been attending the Sacred Heart Mission for two years up to December 2012 and in the six weeks before being arrested, had begun to engage with the Mission's program coordinator, Linda Bradley, in order to get stable accommodation, improve relations with your family, engage in positive activity, get off ice and obtain employment.

21In relation to this offending, your counsel submitted that Mr Paul had the more dominant role in the offending in that he met you a few weeks prior to the offending and knew that you had cognitive problems.  He was the one who told you he needed money and that if you helped him, you would get some ice.  Furthermore, Mr Paul did all the talking and shouting during the offences, giving you directions to cut off the exit path of Mr Hill and Mr Dickerman, challenging Mr Rose to a fight and making threats to the victims. 

22Ms Rowe noted that you have been living in Geelong with your mother, paying her board.  She works full time and no longer has drug issues.  You are an isolated person and spend your time cooking, cleaning and watching television and videos.  Although things have gone well with your mother, your relationship has become strained and you are keen to move out.  Your stepfather no longer lives with her but is supportive of you.  You have had no drug use since March this year.  You continue to attend the Sacred Heart Mission and play football there every second Wednesday with training on Mondays and alternate Wednesdays.  Your bail conditions allow you to attend there for this important social connection.

23Ms Rowe noted that you have served 73 days in custody in relation to these offences and this is a significant period of time which you have served in two separate periods.  You found the second period particularly difficult.  In mitigation, Ms Rowe submitted that you cooperated with police, made admissions and pleaded guilty at an early stage.  You are only 23 years old and a youthful offender.  The primary sentencing consideration is therefore one of rehabilitation. 

24Given your intellectual disability and your age and your vulnerability to the influence of others, your moral culpability is reduced.  General deterrence ought to be moderated and it is clear that given your difficulties, you would find imprisonment very difficult.  It was submitted that you should be assessed for a justice plan and the prosecution did not oppose this course.  I accepted the desirability of the assessment for a justice plan and ordered that you would be so assessed.  I adjourned further sentencing until 3 September when you were to be sentenced with Mr Paul.  However, you had been admitted to hospital following an injury on the football field.

25Justice plans are designed to assist people with disabilities such as yours.  I have read the report of Ms Collandro dated 27 August 2013, setting out your circumstances and the proposed justice plan and I consider that this plan will give you the support that you need.  I have also read the pre-sentence report dated 29 August 2013 which finds you suitable for a community corrections order with an attached justice plan.  I accept the matters put on your behalf on the plea by Ms Rowe and will proceed to sentence you on the basis that the justice plan attached to community corrections order is the appropriate disposition. 

26Carl Sudmeyer, I have decided to impose an aggregate sentence for the three charges. Section 9(1) of the Sentencing Act enables me to do that where the offences form part of a series of offences of the same or similar character.  I am proposing to place you on an aggregate community corrections order.  You must agree to this order.  Do you agree to the order, Mr Sudmeyer?

27OFFENDER:  Yes.

28HER HONOUR:  Thank you.  On each of the charges therefore I place you on an aggregate community corrections order for a period of two years.  I impose the following conditions: (1) assessment and treatment, including testing for drug and alcohol abuse or dependency; (2) that you attend for mental health assessment and treatment; (3) any programs that address factors relating to your offending behaviour; (4) that you be subject to supervision while on the order; and (5) that you adhere to the justice plan which I attached to the community corrections order.

29In addition to the conditions that I have specifically imposed, you must also obey or abide by all the terms that apply to all community corrections orders.  So you must not commit any other offences during the period of the order, that is, the next two years.  You must not commit any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment.  You must report to and receive visits from a community corrections officer.  Is the Community Corrections Centre at Geelong the appropriate centre still or is there another one?

30MS ROWE:  Yes, Your Honour.

31HER HONOUR:  Yes, all right.  So you must report to the Community Corrections Centre at Geelong within two clear working days of today.  Also, you must not leave Victoria without first getting permission from a community corrections officer and you must inform the Community Corrections Office of any change of address, of where you live or where you work, within 48 hours of that occurring.  Finally, you must obey all lawful instructions and directions of community corrections officers.  Do you understand the conditions I have imposed and the general terms that apply?

32OFFENDER:  Yes.

33HER HONOUR:  Thank you, Mr Sudmeyer.  I must also tell you that if you do not comply with any of the terms and the conditions imposed, you risk being brought back in front of me and I would have to consider whether to resentence you on all of the charges.  Do you understand that?

34OFFENDER:  Yes.

35HER HONOUR:  Is there a disposal order still?

36MR ROPER:  Yes, there was a disposal order sought for the imitation handgun and box cutter.

37HER HONOUR:  All right.  So I will make the disposal order sought by the prosecution.  The items were identified in the schedule as the imitation handgun and the boxcutter.

38MR ROPER:  That's right, Your Honour.

39HER HONOUR:  I notes that there was no opposition to the making of the order.

40MS ROWE:  No.

41HER HONOUR:  So I will make that order in the usual terms.  Ms Rowe, I apologise, and Mr Sudmeyer, I know that reading these things out quickly is perhaps of little assistance to you but Ms Rowe can you take through the details.

42MS ROWE:  Yes, I'll go through - yes, Your Honour.

43HER HONOUR:  If you want a copy of these remarks to take him through, I can provide a copy of them to you.

44MS ROWE:  Thank you.

45HER HONOUR:  So you can do that slowly.  Yes?

46MR ROPER:  Can I just confirm with Your Honour, is that with a conviction?

47HER HONOUR:  Yes. 

48MR ROPER:  Yes.

49HER HONOUR:  We will just show you a draft copy of the orders before I sign off on those.

50MS ROWE:  Thanks, Your Honour.  Your Honour, in court - - -

51HER HONOUR:  Yes.

52MS WILBY:  - - - Mr Sweeney and Mr Whiley are both from the Department of Human Services and they are able to - they've informed me that Mr Sudmeyer has already been assigned a case manager, someone with whom he's familiar from a previous time with them so everything's very much ready to go for Mr Sudmeyer which is a very positive thing and not always the situation.

53HER HONOUR:  The mechanism for attaching the justice plan, do we just affix that to the order and put it on file?  I am not familiar with how we - - -

54MS ROWE:  Yes.  For the court file or for the CCO?

55HER HONOUR:  Well, just generally.

56MS ROWE:  Yes.  I think it should be - it's normally attached.  It forms part of the - - -

57MR ROPER:  I'd agree that would be appropriate to do, particularly if the matter should come back to court.

58HER HONOUR:  I will just make a few copies and attach it to all the copies that get distributed, yes.

59MS ROWE:  Yes, Your Honour.

60MR ROPER:  Forms part of the orders.

61MS ROWE:  Yes.  Your Honour, can I just approach my client while that's happening?

62HER HONOUR:  Absolutely.  We are just going to provide a hiccup while we try and work the vagaries of the CLOS system.  For some reason because there were two files in this matter.

63MS ROWE:  That's right.  There were two files.

64UNKNOWN FEMALE:  They need to be connected and then what we need to - in order to finalise both, they need to be connected across.

65MS ROWE:  Okay.

66HER HONOUR:  It's just mumbo jumbo but it is technical.  We cannot override the system, so we will just make the enquiry.  I will adjourn briefly.  Just stay there while we take care of that and I will wait outside to sign the orders.  Thank you.  Just adjourn.

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