Director of Public Prosecutions v Swan

[2018] VCC 1795

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 18-00534

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE SWAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	2 November 2018
CASE MAY BE CITED AS:	DPP v Swan
MEDIUM NEUTRAL CITATION:	[2018] VCC 1795

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr T White
For the Accused	Ms N Smith

HIS HONOUR:

1On 28 November 2017, in the afternoon, you, Kyle Swan, went to the Direct Chemist Outlet store in Warrnambool.  You were carrying a large kitchen knife.  Once inside, you approached the pharmacist and handed over a note which read:

"I have a gun in my pants and a knife up my sleeve.  Give me Xanax, Valium, methadone and codeine or I will hurt somebody now."

2You did not have a knife, or the knife, up your sleeve.  You were brandishing it at the time and continued to do so.  In fact, you stabbed the knife into a plastic tray sitting on the counter.  At one point, another staff member walked towards you and asked you to get out.  You turned and gestured the knife towards that staff member before repeating, "I want my drugs."

3The pharmacist, with great courage and calm - which no doubt ensured that things remained safe in the chaos that was really unfolding - the pharmacist gathered a range of drugs, indicating to you that you were scaring him. 
Once you had the drugs, you left.

4Some minutes later, you went to a nearby liquor shop.  You walked directly to the spirits shelf and selected a large bottle of vodka.  You then turned to the female proprietor, brandishing your knife in a frightening manner.  You then walked out of the store with the vodka.

5You began walking through the shopping centre into a car park when police, who had been alerted, arrived.  You started running, throwing some things over a fence.  You ran from the police, throwing the knife away but then surrendering.  The knife and the bottle of vodka were recovered.

6You were interviewed later that date and made admissions.  You indicated that you have been suicidal and had been on medications provided by doctors. 
You said you took your medications that morning and drank alcohol, and then committed these robberies.  You said you had very little memory of your behaviour.

7These crimes no doubt affected all the victims.  A worker at the chemist store wrote the following:

"I do not feel safe at work anymore.  I have been feeling angry, upset, and anxious.  It's put a strain on relationships with my co-workers."

8In her private life, she suffers from bad dreams and has trouble sleeping.  It has brought up some past emotional issues, and she is suffering migraines due to stress. 

9The female proprietor of the liquor store wrote:

"This event had an emotional impact on me in ways in never expected."

10She says it was:

"like something you only see in the movies, with a terrorist attack."

11She cannot forget the look - that is, your eyes - through the balaclava.  She said the knife was not just a small knife.  It was a knife from horror stories.  So terror, horror, angry.

"These only touch the surface of how I feel."

12She goes on to say that she has worked in that field for a number of decades.  Now she feels vulnerable, unsafe.  She was made to feel terror and fear, and it makes her feel she is unable to protect the people around her, her employees and her customers.  She is not sure how things will move forward in the future.  She feels unsafe in the work environment.  She was, as many people in the community are, a great believer that people are generally good-natured. 
She says:

"Maybe I was naïve, because this one person has brought so much fright, terror and fear into a place where I had my family, friends and staff and customers."

13She wonders how the business will continue to operate.  Does it need certain things such as bars and the like that she had not needed or thought she had needed before?

14These armed robberies were very serious.  You were in a balaclava, creating lasting fear.  You had a large, dangerous knife that you brandished, stabbing into the counter in the pharmacy store.  You had the note stating that you had a gun, and you would hurt someone if your demands were not met immediately.

15These shops, the pharmacy in particular, but the liquor store as well, are vulnerable.  I say that in a sense that the increased abuse and addiction to prescription opioids in our community has created difficulties for pharmacists. 
I do not say that there is some established increase in the prevalence of offences against those sorts of stores.  However, the courts must give practical expression in terms of stern punishment to denunciation of such violent, desperate criminality, and also give expression to deterrence.

16As I have said in the past in respect to other soft targets, such as 24-hour convenience shops or petrol stations, the people who work late at night are necessarily with cash must have a sense that if armed offenders terrorise them, then the courts will play their role in denouncing the criminal conduct and deterring others from embarking on a similar course in the future.  And the courts will do this by imposing stern terms of imprisonment.  The same principles apply to armed robberies on chemists and liquor shops.

17However, of concern in this instance is that this was a brazen set of armed robberies in the middle of the day in a busy shopping centre in the middle of Warrnambool.  Members of the public in both shops and on the streets were nearby.  As I said, I note and commend the calm and courageous conduct of the pharmacist in the midst of your frightening criminality.

18As your personal circumstances, you are a young man, now 24, and 23 at the time.  You have, despite your young age, a criminal history starting in your early teens when you were before the Children's Court.  On 25 September 2013, you were convicted in the County Court of a sexual offence and placed on a community corrections order.  Some years then passed before in 2016, you were back before the Magistrates' Court for crimes involving threats and breach of an intervention order.

19On 24 August 2017, you were again before the Magistrates' Court for violent offending.  You were put on a community corrections order for 15 months. 
One condition was directed at helping you with your drug addiction.  Thus, when you committed these offences, the armed robberies, you were in the very early stages of a community corrections order.  This adds to the seriousness of your offending, though I note that you had been attending for what you were required to at that time.

20You were born and raised in Warrnambool.  Your parents separated when you were quite young.  You lived with your mother, however, you saw your father regularly.  Your parents were in court today and provide significant support, and will do so on your release.  I will refer to that matter later as well.

21The prior conviction for a sexual offence that I have mentioned was with a young woman.  You were in a sexual relationship with her, but she was too young.  You and she had a daughter, now about five.  The County Court judge who imposed a non-custodial order, a community corrections order, had no choice but to order that you register on the Sex Offender Register.

22It seems to me, like so many instances where a County Court judge has no discretion but had to or must put someone as young as you were on the
Sex Offender Register, that in terms of protecting the community from sexual predators, the whole point of the Sex Offender's Register, it seems that in your case this was overreach.  It has left you with a real sense of stigma. 
This stigma, in your home town, and other problems with your ex-partner, saw you head interstate for work.  It was there that you were introduced to ice.  I will return to this disastrous set of circumstances shortly.

23To go back, you finished school too young, it seems.  Just about 14 or thereabouts.  Thereafter, you had periods of work in Warrnambool and in Western Australia, and a traineeship in the dairy farming industry.  But your chosen field now is as a painter.  As you said in your sworn evidence before me, you have some prospects or hopes to get work, or even an apprenticeship as a painter, on your release, with your previous employer.

24Your history of drug abuse is troubling.  You started using cannabis at 13, and it was or became a daily consumption, and the consumption increased over a period of six years.  You used amphetamine and ecstasy.  But in Western Australia, at the age of 19, you were working very long hours as you explained in your evidence.  You took to smoking methamphetamines and again, the abuse of that scourge of a drug became daily and in increasing amounts.

25It continued - that is, your abuse of ice - when you returned to Warrnambool.  Like too many young people in regional towns, ice destroyed your capacity to live normally.  At age 23, you stopped using ice, to your credit.  But you commenced abusing prescription drugs of the kind you demanded from the chemist while wielding the knife.

26At the same time, through the years, as you abused drugs, you drank to excess.  As to the drug and alcohol that you have taken over the years, you said yourself to the psychologist, Ms Lechner, when you saw her from prison, that your drug and alcohol abuse commenced at an early age.  You said:

"We were loose, out of control kids.  Started very young.  Never gave ourself a chance to distance myself from drugs and alcohol.  I didn't know when to stop."

27You gave this account, in general terms, in your evidence before me, and
I accept that account of your drug use.

28Your mental health, if I turn to that, has long been problematic.  Your lawyers have extracted a number of important matters from your mental health records.  Your medical records, in particular relating to your mental health, contain the following, starting with a notation from the child and adolescent mental health screening assessments that were done in May 2011.  It said:

"Kyle reported recent thoughts of suicide every few weeks, and reported two months ago, he'd superficially cut his wrists and had attempted to hang himself with an extension cord.  He reported he obtained the cord, tied it around his neck, and attached it to the swing set with a plan to kill himself; however, realised that it would be very painful and decided against it.  Kyle reported he frequently thinks about ways to kill himself with as little pain as possible."

29Your lawyers extracted the following, moving forward until 2016; that is, December 2016.  Your GP referred you to the South-West Health Care due to:

"concerns regarding paranoid thoughts and auditory hallucinations following ice use one week prior."

30On 22 December 2016, you were experiencing drug-induced psychosis. 
A psychiatrist reviewed you and had not ruled out major mental illness, the previous diagnosis being antisocial personality disorder.  Six days later, on
28 December, you presented with drug-induced psychosis and antisocial personality traits.

31The psychiatrist who saw you noted that there was drug-induced psychosis, personality-related transient psychotic episodes, there was co-morbid alcohol, cannabis and methamphetamine use disorder, antisocial personality traits, likely disorder, poor relationship patterns and social isolation.  No imminent risk, but chronic, impulsive risk relating to poor anger control.  And there was a short time planned to increase your Diazepam to five milligrams.

32Moving forward into January 2017, you reported - it was reported by those looking after your mental health that there was an attempted drug overdose, and it was:

"in an attempt to end his life."

33You were discharged home with the support of your father.  Three weeks later, you admitted yourself as a voluntary inpatient in Warrnambool, and remained there for a number of days with paranoid thoughts, experiencing thoughts of hanging himself in his father's shed.  The psychiatrist noted co-morbid antisocial personality, low-grade psychosis, possibly drug-induced, and substance abuse disorder.

34On 31 January 2017, it was reported that you talked about how you wanted to end your life by hanging yourself, and you were thinking of cutting your wrists.  By February 2017, it was reported by the multidisciplinary team that you had recently presented with more stabilised emotional state, decreased your drug use, and increased self-responsibility in life.  You were working with the drug and alcohol counselling and looked to return to work.

35But by March of that year, you were back at South-West Health Care, requesting to be re-entered into their service.  That was because "my health is not good", and you were starting to feel paranoid.  By mid-April or late April 2017, you again admitted yourself as a voluntary inpatient in the psychiatric wards at the hospital, following a suicide attempt.  It was an impulsive overdose, following an argument about drug use.

36In September 2017, you again attended, having fleeting suicidal ideation.  You were Googling ways in which to hurt yourself and had been thinking suicidal thoughts.  In October 2017, the psychiatrist noted the following:  drug-induced psychosis, social anxiety, anti-social paranoid personality disorders, and a history of polysubstance abuse.  That was late October 2017.  The offending occurred in late November 2017.

37You were seen by Ms Carla Lechner, the medico-legal psychologist.  In her report, she takes issue with your previous diagnosis of a personality disorder.  She believed that the diagnosis was not accurate and your anti-social behaviours were more of a function of your addiction problems.

38Ultimately, she wrote the following in her opinion:  that you had long-standing chronic polysubstance abuse problems.  She said the issues underlining your addictions have remained untreated.  You were devastated by being charged, and the consequences of the sexually-based offence that I have referred to.  She said when she saw you in prison, that you had been abstinent from drug use for six months, and this was a positive platform from which you could now engage in psychological work.

39She said you took responsibility for your offending, and being in custody had provided an important kick-start to your recovery and rehabilitation.  She said that at interview, you had improved your ability to reflect on the impact of your behaviour on yourself and others, now that you had had a sustained period of abstinence from drugs.

40In prison, you were provided with significant anti-psychotic medications, but with supervision in the prison, I was told that you stopped taking Seroquel in May 2018.  The results were not good.  Your paranoia increased or returned. 
With insight, you now realise you must remain medicated.  Your mother has indicated she will supervise your adherence to medications.

41You acknowledged in your evidence the need to remain engaged with mental health clinicians, listen to them and follow their advice.  That is an important development.  There is no doubt that your fragile mental state and your addictions led you to the desperate acts involved in these two armed robberies.  This is not to provide an excuse, but it provides an explanation for what happened.  In your evidence, you reiterated this.

42Your very early plea of guilty means that the sentence that I will shortly announce is shorter than it would otherwise be.  You were cooperative with the police.

43There are other expressions of remorse beyond your plea of guilty.  These were recorded by Ms Lechner.  Far more importantly, I saw your remorse and your shame when you gave evidence.  It is important that now you have been drug-free in prison, you can see the harm of your crimes.  You were able to consider those crimes in light of your own family's experience in working in similar shops.

44Taking into account the submissions of both the prosecution and your counsel, I consider that your prospects for reform are reasonable, especially in light of the insight that you have developed in prison while drug-free.  Importantly, you have and will have, on your release, support in the community from your mother and your father.  You also want to reform so as to be able to have or develop a relationship with your daughter, who is now five.

45Also of importance in respect to your rehabilitation is that you are still a young man.  Rehabilitation is always important when the young fall to be sentenced.  That is because it is in the community's interests that a young person is reclaimed and does not go on to continue with anti-social, frightening, violent behaviour towards the community, but stops.

46The Court of Appeal, in Azzopardi and the case before it, Mills, made it clear just how important rehabilitation is even when serious crimes have been committed.  However, as the Court of Appeal said in both Mills and Azzopardi, I must take into account that you are not a first offender or anything like it.

47The offending in this instance is serious, meaning that your rehabilitation must yield some degree to the sentencing purposes of denunciation and deterrence; that is, deterrence to others and also to you.  I have spoken and I reiterate the importance of denunciation and deterrence as the most weighty sentencing purposes in this matter.

48That said, I have in my sentence done what can be done to facilitate your rehabilitation by moderating the cumulation between these two separate crimes, with their two separate impacts on different people.

49And I have also allowed for the potential of parole that, at its best in the sense, if you are released at the end of the non-parole period, will allow for a lengthy period of parole so as to ensure you are supported and monitored for a lengthy time on release.  When you are released, or if you are released before the end of your sentence, of course, is for others, not me.

50For this offending and taking into account all aspects personal to you as the offender, despite the improvements and your insight, it is not just or appropriate to impose a community corrections order, combined with some imprisonment.  The just and appropriate sentence is a term of imprisonment with the fixing of a non-parole period.

51Can you please stand, Mr Swan?

52For committing the crime of the armed robbery on the chemist, Charge 1, you are sentenced to three years and six months' imprisonment.

53For committing the crime of armed robbery on the liquor store, Charge 2, you are sentenced to two years and six months' imprisonment.

54I order that 12 months of Charge 2 be cumulative on Charge 1.

55That gives a total sentence of four years and six months, and I fix a minimum non-parole period of two years and six months.

56I have been told that you have spent 339 days on remand prior to the imposition of this sentence.  That figure having been reckoned, I declare that 339 days that you have spent on remand as part of the sentence that I have just imposed.  I will ensure that this declaration is entered in the records of the court, so the prison authorities know that you have already spent 339 days in prison as part of the sentence that I just imposed.

57Had you pleaded not guilty to these offences and been found guilty of them,
I would have imposed a sentence of six years with a minimum term of four.

58I make orders for forfeiture and disposal in the terms sought by the prosecution.

59Is there anything further required?

60MR WHITE:  No, thank you, Your Honour.

61HIS HONOUR:  Take a seat, Mr Swan.  Mr Swan, the court is not a room or a place that you can spend any time with the people who clearly are here to support you.  You will just have to go with the prison - the police officers now, back to the cells, back to the prison, and they will be in touch with you in the way that they have today.  Thank you. 

62OFFENDER:  Thank you, Your Honour. 

63HIS HONOUR:  I thank counsel again for their very considerable help and hard work in this case.

64(At this stage the court proceeded with another matter.)

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