Director of Public Prosecutions v Taylor
[2017] VCC 141
•24 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01921
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL MARC TAYLOR |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 February 2017 | |
DATE OF SENTENCE: | 24 February 2017 | |
CASE MAY BE CITED AS: | DPP v Taylor | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 141 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – aggravated burglary – threat to inflict serious injury – assault – criminal damage – related summary offence of committing an indictable offence whilst on bail – Verdins’ principles – immediate custodial sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | John Cain, Solicitor for Office of Public Prosecutions |
| For the Accused | Mr J. Westmore | Balmer & Associates |
HER HONOUR:
1 Daniel Marc Taylor, you have pleaded guilty before me to four charges on the indictment, namely, aggravated burglary, threat to inflict serious injury, assault and criminal damage that relates to an incident that happened at the 7-Eleven store on the corner of Sydney Road with Brunswick Road, Brunswick on 5 August 2016. In addition, you pleaded guilty to a related summary charge of committing an indictable offence whilst on bail.
2 The charges are serious and that is evidenced by the maximum penalties that is prescribed by Parliament, namely, 25 years’ imprisonment for aggravated burglary, five years’ imprisonment for threat to inflict serious injury and assault, and 10 years’ imprisonment for criminal damage. In relation to the summary charge, the penalty is a penalty of three months’ imprisonment or 30 penalty units.
3 In addition, you have admitted your prior criminal history.
4 You are aged 42 and you were 41 at the time of the incident. You have a criminal history that spans a period from 23 January 2004 until 7 July 2016. There are some further outstanding matters that are due to be dealt with on 27 February 2017 which include summary charges of breaching an Intervention Order, attempted theft, criminal damage and breach of a Community Correction Order.
5 You have a diagnosed major psychiatric illness, namely, chronic paranoid schizophrenia. In addition, you have a history of polysubstance abuse going back to your teenage years. You commenced using marijuana at age 15 and that continued to until your twenties. Throughout your twenties you used heroin on a daily basis and at around age 30 you commenced using amphetamines and that roughly coincides with the commencement of your criminal history.
6 The criminal history relates to dishonesty offences, drug related offending, intentionally damaging property, committing indictable offences whilst on bail, fail to answer bail and, in the past, you have one conviction for unlawful assault. You have received a variety of dispositions over the years, including an immediate term of imprisonment that was served in 2009, and that was imposed in respect to supplying a commercial quantity of a prohibited drug.
7 Since then, you have received short periods of imprisonment for dishonesty offending and, at the time of these offences, you were on a 12 months’ Community Correction Order that has been breached by reason of this offending.
8 I will now sentence you on the basis of the prosecution opening, a summary of which was read to the court by the prosecutor during the plea hearing. In brief, at the time of the offending, you were homeless. You were not compliant with your medication and you had been using the drug, Ice.
9 At about 8.00 pm on 5 August 2016, you attended the 7-Eleven store. You were served by a Mr Sunkara, who was working part-time. You purchased a pre-paid mobile phone recharge voucher and left. You then returned to the store shortly after 10.00 pm. At that time, you demanded that the Mr Sunkara reprint the recharge voucher, but he explained to you that it was not the company policy to do so. You then became abusive and reached into the bag that you were carrying and removed an angle grinder, saying to Mr Sunkara, “I’ll cut your neck off with this”. You then turned on the angle grinder and cut through eight metal wires that protected the shop counter and walked out the door. You returned a few seconds later, you walked back to the counter and cut more wires with the angle grinder. You picked up the EFTPOS machine on the counter and threw it at Mr Sunkara and that machine hit him on the arm. You then picked up a computer screen from the counter and threw it to the ground, causing it to smash. You were yelling abuse and eventually you walked to the glass sliding door of the counter and kicked it until it was damaged.
10 The store alarm had been activated by the employee and the police arrived a short time later and you were arrested.
11 Mr Sunkara was taken to the Royal Melbourne Hospital, where he was observed to have suffered some bruising and soreness to the arm together with symptoms of shock, but was released without admission.
12 You were transported to Broadmeadows Police Station and made a “no comment” record of interview.
13 The circumstances in which this offending occurred would have been terrifying to Mr Sunkara. It is obvious from his Victim Impact Statement that the effects are ongoing. He complains of nightmares and the fact that he has disturbance of sleep. He has incurred various out-of-pocket expenses, including an ambulance bill, which has caused him financial hardship.
14 Mr Westmore, on your behalf, conceded that the offending was serious and would have been terrifying for the victim. He submitted, however, having regard to the fact that the offending was spontaneous, of relatively short duration, and occurring as it did in the context of your untreated schizophrenia, that that combination of factors, together with the fact that the aggravated burglary was less serious than many others that are the subject of this charge, all those combined such that the appropriate disposition ought be a term of imprisonment combined with a Community Correction Order.
15 The Crown has sought an immediate custodial sentence.
16 Notwithstanding that I accept many of the factors emphasised Mr Westmore, on your behalf, during the plea hearing, I have formed the opinion that the offending is too serious to warrant a combination jail and Community Correction Order. I consider that a term of imprisonment to be served is appropriate to reflect the need to emphasise denunciation and deterrence.
17 Both your mother and aunt were present in court during the plea hearing and you have their ongoing support. Your mother travelled from Adelaide.
18 You are the third youngest of four siblings and you come from a stable family home. You successfully completed Year 12 at St Ignatius College, Adelaide, and commenced a Fine Arts (Sculpture) Degree at the University of South Australia and then you then transferred to RMIT in Melbourne and completed your Bachelor in Fine Arts obtaining a distinction average in 1999.
19 You practiced as an artist throughout your twenties with some success in exhibiting. You have also worked as a cook.
20 In 1998 you were diagnosed with schizophrenia following an acute episode of psychosis and admission at Larundel Hospital. Prior to that admission, you had suffered an earlier episode of drug-induced psychosis. Following the diagnosis in 1998, you have been hospitalised on other occasions for psychotic episodes, occurring in the last two years. Your most recent admission was some 10 days before this offending.
21 Your general health is not good. You suffer from Hepatitis C and you recently suffered a deep laceration to your left foot from a power saw injury for which you have received treatment at various hospitals between September and December 2015.
22 You have been on the disability support pension since 2004 in respect to your schizophrenia.
23 I accept that there was a context to this offending in that you had been homeless for months leading up to the incident. You had been previously sharing with a friend in Brunswick but he had failed to pay the rent and you had been evicted. Further, you were using Ice and you were non-compliant with psychiatric medication. You had been sleepless for days on end and, at the time, you were experiencing some auditory voices.
24 When you were examined by Dr Alan Jager, consultant psychiatrist, you told him that you now accept that what you did was completely ridiculous and that you could have handled the whole situation more appropriately.
25 Since being in custody, your psychiatric condition has stabilised. You now have insight and your schizophrenia is managed and you are compliant with medication.
26 A short report from Dr Christopher Mulroney, general practitioner, confirmed that he last saw you on the date of the incident. He said that when he saw you, you were in an agitated state, having lost your medication and you sought repeat prescriptions. He arranged those prescriptions for you but understood that you were involved in the activities at the 7-Eleven store later that day.
27 His opinion was that it was very likely that your paranoid thinking was directly related to your mental illness and lack of compliance with medication. He said you did have one medication, Solian, which is an atypical antipsychotic medication.
28 Having regard to the expressed opinions of both Dr Jager and Dr Mulroney, whose opinions were not challenged, I consider that the Verdins’ principles have been enlivened. There is a clear link between your mental illness and the offending and therefore your moral culpability is reduced to an extent. Further, I consider there is a need to sensibly moderate both general and specific deterrence. I accept that the existence of your schizophrenia may mean that a given sentence will weigh more heavily upon you than a person who is otherwise in normal health. Fortunately, it does appear, however, that you have settled well in custody and there is no evidence before the court that there is a serious risk that imprisonment will have a significant adverse effect on your mental health.
29 In mitigation, I have had regard to the matters put on your behalf in terms of the gravity of the offending, I have accepted that it was a short course of conduct, that was spontaneous and ill-thought out on your behalf and it is, in part, due to your condition, your psychiatric condition that your judgment was impaired at that time. There was also the added complexity of you using amphetamines, which has also contributed in part to the commission of the offending. I accept that the offending occurred in the particular context of your being homeless, not compliant with your medication, having symptoms of your underlying serious mental illness and the use of Ice.
30 When you offended, you had symptoms of paranoia and persecutory beliefs and were hearing voices. That, in part, explains the overreaction when the attendant refused to provide you with a duplicate pre-paid mobile phone recharger, but that in no way excuses your behaviour.
31 I accept that you had returned to the 7-Eleven on the first occasion for legitimate reasons but your actions, in using the angle grinder involving, as it did, damaging the property, and making the threat, and assaulting the attendant, was all out of proportion to any perceived grievance that you may have had with him, that is the attendant, on that day.
32 I further accept that it was unusual that you had an angle grinder in your possession, but I accept that it was for a legitimate use in that you had used it earlier in the day to remove some graffiti from a storage facility and that links into my finding that it was not a planned attack but, rather a spontaneous and stupid act on your behalf.
33 I have taken into account the fact that you entered a plea of guilty at the earliest opportunity. Your plea will be given full weight, both as to its utilitarian value and also as evidence of remorse, acceptance of responsibility and a willingness to facilitate justice.
34 In terms of future rehabilitation prospects, I find that they will depend ultimately on you remaining stable, that is, having ongoing mental health treatment, and you remaining compliant with your treatment. Further, you will have to desist from taking methylamphetamines because of the now known link between the use of that drug and the risk of criminal offending associated with that.
35 Finally, it will be imperative that you stabilise and regularise your residential requirements in order to fully optimise your rehabilitation prospects. Given your current situation, I still remain somewhat guarded in terms of your rehabilitation prospects. However, there is some cause for optimism and I have had regard to the reference provided by your friend, Dr Peter Woods. In that reference he confirms that you have demonstrated, in the past, you are capable of being supportive and being a positive contributor to the community. I accept what he says in terms of you not being a person who has demonstrated a history of violence or aggression towards others in the past, and he believes strongly that if you are given the right support you could make a significant contribution in the future.
36 Mr Westmore submitted that there ought to be a substantial degree of concurrency as between charges, given they arise out of single incident of offending. As discussed with the prosecutor, Mr Pickering, during the course of the hearing, I consider that this is a case where an aggregate sentence of imprisonment is appropriate.
37 The formal court orders are –
38 In relation to the matters on the Indictment, Charges 1, 2, 3 and 4, you will be convicted and sentenced to 18 months’ imprisonment, that is an aggregate term of imprisonment.
39 In respect to the summary offence of committing an indictable offence on bail, you will be convicted and sentenced to one month imprisonment to be served concurrently with the sentences imposed on the Indictable offences.
40 I fix non-parole period of seven months’.
41 Section 6AAA of the Sentencing Act 1991, declaration, but for your plea of guilty, I would have sentenced you to two years six months’ to serve 15 months.
42 I make the ancillary orders sought. I note that they were not opposed.
43 I make the order for disposal.
44 I make the order pursuant to s.464ZF(2) of the Crimes Act 1958.
45 What that means, Mr Taylor, is that there is now an order saying that the angle grinder will be disposed of and there is an order now in place that you undergo a forensic procedure that involves the taking of a scraping from your mouth with a cotton bud. I have to tell you that if you do not consent to that under the supervision of an authorised member of the police force, then the sample can be by way of blood sample, and police may use reasonable force to enable that forensic procedure to be conducted, but given that you have indicated your consent to the procedure that should not be an issue.
46 All right. I will just sign those orders.
47 HER HONOUR: Very well. I will just hand back those orders. All right.
48 Then there is the PSD Declaration. I declare that you have spent 203 days’ in custody and direct that that be entered into the record of the court with respect to pre-sentence detention.
49 Thank you.
50 MR PICKERING: As Your Honour pleases.
51 MR WESTMORE: As Your Honour pleases.
52 HER HONOUR: All right. So that concludes the matter. Thank you for your assistance, Mr Westmore and Mr Pickering.
53 MR WESTMORE: Thank you, Your Honour.
54 HER HONOUR: We can adjourn.
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