Director of Public Prosecutions v Tier
[2015] VCC 1798
•14 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-14-01635
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID TIER |
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JUDGE: | HER HONOUR JUDGE LEWITAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November 2015 | |
DATE OF SENTENCE: | 14 December 2015 | |
CASE MAY BE CITED AS: | DPP v Tier | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1798 | |
REASONS FOR SENTENCE
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Subject: Armed Robbery
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R Champion | Office of Public Prosecutions |
| For the Offender | Ms R Sleeth |
HER HONOUR:
1 David Tier you have been convicted after trial of one charge of armed robbery. The maximum penalty for this offence is 25 years' imprisonment.
2 Circumstances of offending. On 30 April 2014 you and another male entered the Premier League Pizza store at 48 Burleigh Road, Melton and ordered a souvlaki and pizza. Alexander Kingsley Stokes (Alexander) and Richard Jefferson Stokes (Richard) were working at the pizza shop.
3 You were wearing a red hooded jumper and scruffy dark blue pants. You had a tattoo under one of your eyes which looked like a symbol and a small detailed tattoo under your left eye. Richard had seen you before.
4 When you placed your order, Alexander asked you what your name was. You hesitated and then gave your name as ‘David’. You left the store several minutes later.
5 You returned to the pizza shop at approximately 7.30 or 7.45 pm on that night wearing sunglasses, a dark coloured hoodie and pants. You were carrying two silver butcher knives in your hands. Both Alexander and Richard were in the store. The hood of your jumper was up. You were wearing sunglasses and a dark coloured material across your face. However, the sunglasses and material did not cover underneath your eyes. Alexander remembered seeing the same cross and a small detailed tattoo that he had seen on your face when you entered the pizza store earlier that night. He said that you looked like the person who came in earlier that night who said his name was David.
6 You yelled at Alexander Stokes to open the till and give you all the money. Alexander opened the till and gave you approximately $500 - $600 in notes.
7 On 24 May 2014 you were arrested and taken into custody in New South Wales on unrelated matters. On 27 May 2014 you were arrested by police in relation to this offending. You were interviewed on 28 May 2014 and released into the custody of Victoria Police on 29 May 2014 to be extradited to Victoria in relation to these matters.
8 The facts in this case are very serious. The aggravating aspects include the element of pre-planning and your attempts to disguise your face by wearing sunglasses, a cloth across your face and wearing a jumper with a hood. Further, you committed the offence during the period of a community correction order, which was imposed for a period of 12 months on 8 July 2013.
9 No victim impact statements have been filed. However it is clear from the evidence given by Alexander and Richard that there was considerable suffering on the part of the victims as a result of your actions.
10 As has been pointed out by your counsel, there are some mitigating factors.
11 Personal history. I have been told something of your personal history and your circumstances. You were born in Wangaratta on 28 May 1991 and are 24 years old. At the date of the offence you were 22 years old.
12 Your biological parents separated when you were three years old. You were then placed in foster care and remained with your foster care mother until you turned 13. You then went to live with your father in Hamilton. Your father was a criminal and served time for murder and armed robbery. You were 18 years old when your father died, aged 50. Your father had a bipolar mood disorder, was involved with psychiatric services and had previous suicide attempts.
13 You first met your biological mother when you were 21 years old. She is a polydrug user who regularly injects methylamphetamine and heroin and also abuses Serapax.
14 You have no full siblings. You have six half-sisters on your father’s side and five of them have the same mother. You were closest to your sister Kerry, who is about 32 years old.
15 You said that the best years of your life was when you were living with your father.
16 Education and employment history. You attended primary school in Warrnambool through to Grade 5, after which you attended primary school in Wangaratta for Grade 6. You then moved to reside with your father in Hamilton, at which time you attended Baimbridge College for Year 7. You left school after completing Year 7. Nevertheless you have good literacy and numeracy skills
17 Shortly after leaving school you were employed at a wool processing plant at Hamilton for seven months. Your other work experience includes sheep crutching, sheet plastering and farmhand work. You now regard yourself as a plasterer and much of your work experience has been in this field. You have never worked on the same job or work site for more than one year. You have not arranged any work for your release but hope to secure work when back in the community as a plasterer.
18 Prior to your father’s death you were a promising football player. You played football from the age of 12. You played for North Ballarat Rebels and for the North Ballarat Roosters. You were in the VFL under 18 training program.
19 You were very upset when your father died. You found your father’s body. The AFL development manager offered to pay for grief counselling but you refused to attend. You stopped playing football as a result of your father’s death. You were admitted as a voluntary patient to Southwest Healthcare Psychiatric Division on 17 July 2009, four years after your father’s death. You presented with depressive symptoms and had attempted suicide on a number of occasions following the death of your father.
20 Your life has been unstable since the loss of your father. You have lived an itinerant lifestyle, living in Horsham, Hamilton, Wangaratta, Sydney and Taree. You were living at the Half Moon Caravan Park prior to your admission to hospital on 10 May 2014. You had minimal contact with your foster mother after you moved to live with your father. You have five half-sisters who live in Melton and they want nothing to do with you.
21 Relationships. When you were 17 years old you had an intermittent relationship with a woman called Cassandra over two years. You have a six year old son, Donovan, from that relationship. Donovan is a ward of the State in South Australia because of Cassandra’s addiction to drugs. You have never seen Donovan.
22 Substance history. You have a history of alcohol and drug abuse, including use of cannabis, heroin and methylamphetamine.
23 You commenced drinking at the age of 16 and were arrested and imprisoned in Kempsey in New South Wales whilst drunk and disorderly. You were a heavy cannabis smoker between the ages of 16 and 22. You started using methylamphetamine when you were 19 years old and have been a frequent user of methylamphetamine over the past two or three years. You started experimenting with heroin around February or March 2014.
24 You told Mr Cummins that you were a paranoid and anxious person and that you use drugs to help you feel better, but they make you worse.
25 Conditions in prison. You have been in custody since your arrest on 27 May 2014, a period of over 18 months. This is your first time in custody. You have found imprisonment onerous. You were placed in protection because of threats made by other prisoners to kill you. You are still in protection, which means that you have limited access to programs and services and limited access to recreation and fresh air. You have been imprisoned with others on protection, primarily sex offenders and people charged with violent sexual offences awaiting disposition. You find many of the prisoners very frightening.
26 On 29 December 2014 you were placed on suicide watch at the psychiatric unit at Port Phillip Prison and were there until 4 January 2015.
27 You were in protection at the Metropolitan Remand Centre during the riots which commenced on 30 June 2015. Those who were engaged in the riots broke down the fence between protection and mainstream and tried to get into the protection block. They also set a number of fires in the mainstream cells. Those in protection were locked in their cells for 24 hours per day for a three week period.
28 To cope in gaol you have been engaging in hobbies such as playing guitar and writing songs. You have also begun going to church on Tuesday and Sunday, which is something you have never done before. You completed the six hour drug and alcohol and ice effects program on 1 and 2 June 2015.[1] Two drug screen certificates of samples conducted on 22 March 2015 and 30 May 2015 and showing negative results were tendered on your behalf.[2] You also attended a legal education seminar on 18 June 2015[3] and obtained a Certificate in Kitchen Operations from the Kangan Institute dated 22 September 2014.[4]
[1] Exhibit 3.
[2] Exhibit 6.
[3] Exhibit 4.
[4] Exhibit 5.
29 You have not used drugs since you have been imprisoned.
30 Your Epilim medication was withdrawn in prison on 6 October 2015. You had been prescribed this medication for the past 17 months. Mr Cummins notes that you are experiencing heightened paranoia and anxiety following the withdrawal of this medication. Mr Cummins noted that you may now suffer from paranoid personality disorder.
31 You have not been visited by any member of your family since they learnt of your arrest concerning the present matter.
32 In Tognolini v The Queen (No 2)[5] Maxwell P, Buchanan and Redlich JJA of the Court of Appeal stated:
The decision to keep the applicant in a management unit was expressly made for his protection. But the very great deprivations associated with being so held inevitably make the experience of imprisonment substantially more burdensome than it would otherwise be. That is a matter which must necessarily affect the sentencing decision.
[5] [2012] VSCA 311.
33 I take into account the conditions that you have experienced in custody in your favour in mitigation of sentence.
34 Prior convictions. You have admitted before me to prior convictions. There are 20 such convictions, involving five court appearances between 2010 and 2013. There are a number of appearances when you were a child.
35 Your counsel submitted that although you have prior convictions, there are no previous convictions for armed robbery. Most of your prior offences were dealt with in the Children's Court and no convictions were recorded. The bulk of your previous convictions occurred after the death of your father.
36 The prosecutor submitted that whilst you do not have prior convictions for robbery, you do have priors for violence-related offences. The prosecutor referred to your appearance on 11 May 2011 at the Hamilton Magistrates’ Court on a charge of unlawful assault, which is said to have occurred on 6 January 2011. You left your girlfriend’s address and then knocked and tried to force the window open, calling her a slut and a whore. As she was trying to close the window, you reached inside and punched her to the face, which caused minor lacerations inside her mouth.
37 The prosecutor also referred to your appearance at the Children’s Court on 2 September 2009 when you were found guilty of one charge of recklessly cause injury and two counts of intentionally cause injury on 1 January 2009. That involved an assault on a victim and the victim’s friend. You pushed and shoved the friend. The victim went to his friend’s aid and you punched him to the face and head several times, resulting in a broken nose and facial injuries.
38 The prosecution submitted that you also have prior convictions for breaching court orders. You had a prior finding of guilt for breach of a youth supervision order, which was dealt with on 3 March 2010, and one prior charge for failing to answer bail dealt with on 2 September 2009.
39 Rehabilitation. You stated that you did not commit the armed robbery of which you have been found guilty.
40 A report by Robert Parkinson and David Byles of the Wangaratta Community Correctional Services assesses you as being at high risk of re-offending.
41 Your friend Hannah Ingle was present in court to support you. She has known you for about nine years and has been visiting you regularly in custody. She lives in Melton and states that you can live with her if no residential services are available. She has recently completed a mental health and disability course in Ballarat and is looking for work in that area.
42 I accept that you have refrained from using drugs whilst in custody. Your prospects for rehabilitation will depend upon your ability to refrain from using drugs and abusing alcohol. In fixing an appropriate sentence, I must seek to maximise such chances of your rehabilitation as there may be.
43 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
44 On the other hand I do not apply those considerations with as much force as I might if you were older. You are 24 years old. At the date of the offence you were 22 years old. You are a youthful offender and must and will be sentenced as such. Your rehabilitation is a primary concern in fixing an appropriate sentence.
45 Mental condition. In a report dated 26 October 2015 Jeffrey Cummins[6], psychologist, referred to documentation he had viewed regarding your mental illness (Mr Cummins’ report). These documents show that you presented to the emergency department at Western Hospital Footscray on 10 May 2014, out of fear of recurrent suicide attempts.[7]
[6] Exhibit 1.
[7] Exhibit 2.
46 At that time a psychiatric history was noted dating back to 2009 with provisional diagnoses of bipolar mood disorder, borderline personality disorder, major depression and anxiety disorder. You were treated with the mood stabilisers Epilim and Diazepam and the antidepressant Avanza. A letter by Dr Daniel Barber noted that you had been non-compliant with those medications for the past two weeks because you had been itinerant and had run out of scripts.[8]
[8] Exhibit 2.
47 The assessment details recorded at the Western Hospital reported that “over the last one to two weeks has experienced increase in frequency and intensity of suicidal ideation. Reports poor sleep and decreased appetite, increasingly irritable. Took one gram heroin two days ago; stated that he had wanted to die and did not expect to wake up. Consumed large amount ETOH prior to having heroin. Has experienced ongoing suicidal ideation since then. Has had thoughts of hanging self or cutting an artery”[9]. You stated that you wanted to die because you do not “want to live like this any longer.” “I’ve got nothing” and “I’ve lost everything.”[10] You were transferred to the psychiatric unit of the Royal Melbourne Hospital. Mr Cummins noted that you had been a psychiatric inpatient on a number occasions since June 2009.
[9] Exhibit 2.
[10] Exhibit 2.
48 In R v Verdins[11] the Court of Appeal stated that impaired mental functioning is relevant to sentencing in at least six ways.
[11][2007]VSCA 102 (Verdins).
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentencing or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6 Where there is a risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
49 Your counsel submitted that Mr Cummins’ report and the hospital records which he referred to indicated that you are suffering from depression. Your counsel submitted that at the date of sentence, principles 2, 3, 4, 5 and 6 of Verdins apply .
50 The prosecution agrees that limbs 5 and 6 of Verdins apply and that your time in custody would be more onerous and made more difficult because of your mental health. However the prosecution position is that principles 3 and 4 of Verdins do not apply because there is insufficient evidence in Mr Cummins’ report to satisfy the third and fourth limbs of Verdins[12]. Although the prosecutor did not dispute any of the opinions or the information contained in Mr Cummins’ report or the hospital records, the prosecutor submitted that Mr Cummins’ report did not go into the necessary detail. The prosecutor stated that she does not require the defence to call Mr Cummins to give evidence.
[12] Transcript p 33.
51 Your counsel submitted that the prosecution has conceded that principles 5 and 6 in Verdins apply in that prison will worsen and exacerbate your mental illness and that the prosecution’s concession must be made on the basis that there is evidence to establish that you are suffering from mental illness at the date of the sentence. Given the concession that principles 5 and 6 apply, principles 3 and 4 then logically follow.
52 I am satisfied on a balance of probabilities that you are suffering from depression. No challenge has been made to the report by Mr Cummins or the material that has been subpoenaed. There is evidence in Mr Cummins’ report that you suffer from a mental illness. Historically diagnoses have been made that you suffer from a mental illness and that you have been hospitalised on a number of occasions in relation to that mental illness and prescribed medication on a number of occasions for mental illness. Mr Cummins himself viewed those psychiatric records, hospital records and confirmed that what those records indicate is consistent with the history given to him by you. Mr Cummins said that in his opinion your mental health problems are likely to be exacerbated the longer you spend in custody. This is not a situation where it could be said that a historical diagnosis of depression has been made but that it has now been treated.
53 I accept that your mental condition would make it more difficult for you to serve a term of imprisonment than it would be for someone with normal mental functioning. I also accept Mr Cummins’ opinion that there is a serious risk that imprisonment will have a significant adverse effect on your mental health.
54 Taking these matters into account and in accordance with the principles stated in Verdins, the weight to be given to both specific and general deterrence is to be sensibly moderated.
55 Submissions on sentence. The prosecutor submitted that general deterrence is an important sentencing consideration given that the armed robbery was committed on soft target employees in a pizza store doing their job at night time. You used two weapons, being two knives. The offending was planned and that is demonstrated by the fact that you arrived with two knives and by the use of various methods of disguising your identity: the face mask, the sunglasses and the hood of the jumper being up. The offending was aggravated by the fact that you were subject to a community correction order at the time[13] which was imposed on 8 July 2013 for a period of 12 months and was due to expire on 7 July 2014. There has been no expression of remorse or acceptance of responsibility. Specific deterrence is also important, as well as just punishment and denunciation.
[13]Lecornu v The Queen [2012] VSCA 237, [30]-[31].
56 The prosecutor referred to R v Pratt[14] which was a case of armed robbery on a service station where the weapon was a blood-filled syringe. In that case the Court of Appeal (Eames JA with whom Winneke ACJ and Phillips JA agreed) stated:
This court has on many occasions stated that offences of this type are prevalent, and because of their seriousness, mitigating factors personal to the offenders must to a degree give way to the primary purpose of punishment for such offences, namely deterrence.
[14] [2003] VSCA 186 [20].
57 The prosecutor also referred to paragraphs 23 to 29 of the sentence of Judge Gamble in Queen v Jackson[15]. Judge Gamble referred to the case of the Queen v Swingler where Buchanan JA at paragraph 11 noted that the crime of armed robbery perpetrated against defenceless, isolated persons late at night is a serious offence and calls for condign punishment in order to deter others. Judge Gamble also referred to R v Backley[16] where the offending occurred at service stations. At paragraph 24, Kaye AJA made the following observations:
The use of a weapon by an immature and troubled young woman, in need of money to support her heroin habit, was fraught with risk. Such an offence was one which was calculated to strike fear into the heart of the victims of the robbery and to cause considerable trauma to those involved. This type of offending is particularly prevalent. In such cases as this, there is a clear need for the imposition of sentences which are sufficiently substantial to act as both general and specific deterrents. Those who commit such offences must well understand that, if and when they are caught, they face lengthy sentences of imprisonment.
[15] [2015 VCC (Jackson), 685.
[16] [2007] VSCA 169.
58 Your counsel distinguished the facts in Jackson. She submitted that Judge Gamble made those comments in the context of an armed robbery involving a gun and threats to shoot the victims involved. The offender had a number of prior convictions including a prior conviction for armed robbery and there was no application of the principles as stated in Verdins.
59 The prosecution position is that a community correction order is not an appropriate disposition in this matter. The prosecutor submitted that two years, which is the maximum term that can be imposed with a combination of a community correction order, is not sufficient to meet the principles of general and specific deterrence and just punishment. The prosecution referred to your lack of remorse, the circumstances of your offending and the aggravating factor that you offended whilst subject to a community correction order. Although the benefits of a community correction order are to address issues like drug abuse and psychological mental health issues, there are ways of addressing those issues both while the person is in custody and whilst they are on parole.
60 In response to the submission that your offending is too serious and a sentence of imprisonment is the only appropriate disposition, your counsel referred to the judgment of the Court of Appeal in Boulton & Ors v The Queen[17]. In paragraph 111 the Court of Appeal stated:
Axiomatically, imprisonment is a sentence of last resort. As s5(4C) of the Act makes it clear, such a sentence must not be imposed, unless the court considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.
[17] [2014] VSCA 342.
61 At paragraph 115 the Court of Appeal stated:
In short, the CCO offers the sentencing court the best opportunity to promote simultaneously, the best interests of the community and the best interests of the offender, and of those who are dependent on her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor or a judge to say, 'How could a CCO be appropriate, given that an offence of this seriousness has always received imprisonment?' As we have endeavoured to explain, the question should mark the beginning, not the end of the court’s consideration.
62 This is without doubt a serious offence. Could you please stand.
63 Having regard to your mental health, the submissions made by counsel and s5(4C) of the Sentencing Act 1991, I propose to order that you serve a term of imprisonment for 22 months followed by a Community Correction Order for a period of three years.
64 As you know, I have sought and received a pre-sentence report in this matter. That report indicates that you are considered a suitable candidate for a Community Correction Order. I am only able to make such an order if you consent to my taking such a course. So that you are in a position to make an informed decision in the matter, I should tell you something about the course I propose.
65 First, the length of the order will be three years. Every Community Correction Order, including the one I propose in this case, contains certain core conditions. They are:
1You must not commit another offence punishable by imprisonment during the period of the order.
2.You must comply with any obligation or requirement prescribed by the regulations.
3.You must report to, or receive visits from, the Secretary during the period of the order.
4You must report to the Sunshine Correction Centre within two working days after you are released from custody.
5.You must notify the Secretary of any change of address or employment within two clear working days after the change.
6.You must not leave Victoria except with the permission of the Secretary.
7.You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
66 The conditions that apply in addition to the mandatory terms are:
1.You must perform 150 hours of unpaid work over a period of 36 months as directed by the Regional Manager.
2.You must be under the supervision of a Community Correction Officer for a period of 36 months.
3.You must undergo assessment and treatment (including testing) for drug abuse and dependency as directed by the Regional Manager.
4.You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.
5.You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the Regional Manager.
6.You must undergo programs consistent with the purpose of treatment and rehabilitation, which may include but is not limited to employment, educational, cultural and personal development programs as directed by the Regional Manager.
7.You must undergo programs that address factors related to your offending behaviour.
8.You must attend for review of your progress and compliance or otherwise with the conditions of the order and you must come back before me on 5 August 2016 at 10 am.
9.I direct that any non-compliance of these conditions is to be notified to me immediately.
67 You must realise that if you breach the order you should expect to be brought back to court and dealt with for such breach. You should expect to be imprisoned, perhaps be fined and perhaps other sorts of orders would be made if that occurs.
68 Do you consent to the making of the Community Correction order containing the terms I have outlined?
69 OFFENDER: Yes, Your Honour.
70 I propose to record a conviction on Charge 1 and sentence you to an aggregate term of imprisonment of 22 months. I will also impose a community correction order that commences upon your release from custody for a period of three years.
71 HER HONOUR: Do you have a copy of the drafts? You may take a seat for a moment. And what about s.464ZF?
72 MS CHAMPION: An application is made, Your Honour, but I don't have a draft order with me. I believe they were emailed to the court prior to the last plea hearing, but my instructor can email those through today.
73 MS SLEETH: Would Your Honour like me to take instructions as to whether my client consents to that order?
74 HER HONOUR: I believe that he did, but you can take instructions again.
75 MS SLEETH: Thank you, Your Honour. Yes, Your Honour, he did consent to that on the last occasion.
76 HER HONOUR: Yes, thank you. I will give you that for signature. If you could stand. Please stand.
77 I have signed an order that the property referred to in the schedule of the disposal order be placed in the custody of the Chief Commissioner of Police and be held under his custody for 28 days from this date or the conclusion of any appeal proceedings and then to be destroyed.
78 I also make an order pursuant to s.464ZF that you provide a sample of your saliva. I am required by law to say to you that those charged with taking that sample are authorised to use such force as may be necessary to effect the taking of the sample.
79 I declare that you have served 566 days by way of pre-sentence detention in relation to this sentence and direct that that declaration be recorded in the records of the court.
80 If you could ask your - I will hand that - if you could ask your instructor, Ms Champion.
81 MS CHAMPION: Yes.
82 HER HONOUR: To forward the s.464ZF.
83 MS CHAMPION: Yes, Your Honour. I will.
84 HER HONOUR: Yes, thank you. Are there any further matters?
85 MS CHAMPION: No, Your Honour.
86 HER HONOUR: Please take Mr Tier into custody and I will leave the Bench.
87 MS SLEETH: As Your Honour pleases.
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