Director of Public Prosecutions v Tindale
[2024] VCC 1943
•2 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-24-01269
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARCHIE TINDALE |
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JUDGE: | HIS HONOUR JUDGE DEMPSEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 October 2024, 21 November 2024 | |
DATE OF SENTENCE: | 2 December 2024 | |
CASE MAY BE CITED AS: | DPP v Tindale | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1943 | |
REASONS FOR SENTENCE
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Subject:Criminal Law – Sentencing
Catchwords: Armed robbery x 2 days apart in near identical circumstances. Young offender. Escalating criminal history. Accused with multiple vulnerabilities. Early plea of guilty. Application of Verdins and Bugmy. YJC assessment unfavourable. YJC ordered.
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act1991 (Vic)
Cases Cited:Queen v McKee and Brooks [2003] VSCA 16; R v Mills (1998) 4 VR 235; DPP v Tokava [2006] VSCA 156; R v Merrett, Piggott and Ferrari (2007) 14 VR 392; Azzopardi v The Queen [2011] VSCA 372; DPP v Hermann [2021] VSCA 160; Bugmy v The Queen (2013) 249 CLR 571; Stewart v The Queen [2015] VSCA 368; R vVerdins (2007) 16 VR 269; Byast v The Queen [2021] VSCA 344; DPP v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
Sentence: Aggregate terms of 2 years 6 months YJC
s.6AAA – 4 years YJC
PSD – 118 days
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Liantzakis | Office of Public Prosecutions |
| For the Accused | Ms K. Hartman | Victoria Legal Aid |
HIS HONOUR:
OVERVIEW
1Archie Tindale, you have pleaded guilty to the following charges:
Charge Offence and Section Date / Particulars Maximum Penalty 1 Armed Robbery
s.75A Crimes Act 19588 May 2024
Armed Robbert of Wade Miller of backpack while armed with a knife25 years imprisonment[1] 2 Armed Robbery
s.75A Crimes Act 1958
10 May 2024
Armed robbery of Naresh Jangid of money while armed with a knife25 years imprisonment [1] These offences are not subject to mandatory statutory schemes.
2You committed two armed robberies against two separate victims in public in the early hours of the morning. You brandished a bladed weapon while wearing a facemask as a disguise. The offending occurs only two days apart in very similar circumstances. It is serious offending. You have pleaded guilty early to it.
3You are a young offender who was 18 at the time off offending and you are now just 19. You have had a deprived background and an established diagnosis of intellectual disability and serious mental illness, as well as considerable substance abuse problems. You have a prior criminal history of some note already, which is related to the issues I have just mentioned. You have a very complex set of needs and require extensive supports.
4Your Counsel submitted I have you assessed for a Youth Justice Centre (YJC) sentence, given your vulnerabilities and impressionability, as well as for a community corrections order (CCO).[2] She initially invited me to impose a combination style sentence whereby you served the custodial portion of any sentence in YJC, then to be released on a CCO. That is not possible under the Act,[3] but it would also be undesirable given the fragmented way in which you would have to be managed between Youth Justice and Corrections.
[2]submitted that the court should adjourn the matter for further plea and sentence for a functional adaptive assessment.
[3]See interaction between s.44 and s.7 Sentencing Act 1991.
5The Crown's primary position is that you ought to be sent to adult prison. They certainly do not concede you served enough time in custody such that you could be released now, or even within 12 months that is available to me as part of combination sentence with a CCO. They contend you ought to be given a lengthy parole period if you were sent to adult prison. Alternatively, they concede that technically a term of YJC would be open, though that ought not be the ultimate penalty.
6I propose to sentence you to a term of Youth Detention and my reasons for doing so follow.
CIRCUMSTANCES OF THE OFFENDING [4]
[4]Exhibit A: Summary of Prosecution Opening dated 7 October 2024.
Background
7At the time of the offending you were living in a Department of Families Fairness and Housing (DFFH) managed unit in Park Street, South Melbourne.
8There are two victims in this matter, neither of whom were known to you.
(a) Wade Miller was 40 at the time you robbed him; and
(b) Naresh Jangid was 29 years of age at the time of the offending.
Offending
Charge 1 – armed robbery of Miller 8 May 2024
9
On Wednesday 8 May 2024 at 4:05 am, Miller was walking north along Chapel Street, St Kilda carrying a light blue backpack on his back. He arrived at the intersection of Chapel and Inkerman Street, St Kilda in the vicinity of the Ampol service station. He was approached by you who was wearing a red coloured face mask, a black and white striped T-shirt, black Raider brand shorts and
light- coloured running shoes.
10You had a 30 centimetre hunting knife and you held it towards Miller and you demanded, 'Give me your money' to which he responded that he did not have any. You then asked, 'Do you have any shard?' (methylamphetamine). He responded, 'No', but offered his light blue backpack instead. You took the backpack and walked south on Chapel Street. Charge 1 – Armed Robbery.
11Miller was in shock. He attempted to enter the service station but it was closed. He used a payphone to call his mother about the incident before returning home. At about 4:15am, he attended St Kilda police station and reported to the police what had happened. Aspects of the offending and your responsibility for it was confirmed via nearby CCTV footage.
Charge 2 – Armed Robbery of Jangid 10 May 2024
12Two days later on Friday 10 May 2024 at 12:30 am, Jangid attended the Commonwealth Bank ATM machine in Clarendon Street, South Melbourne while a friend waited in a car.
13He took out $790 from his account at the ATM. While he was using the machine, you arrived and approached him from behind, wearing a red coloured face mask, Champion brand hooded jumper, black Raider shorts and light-coloured running shoes.
14He turned and he observed you holding a 20 centimetre knife. The victim withdrew the money from the machine and attempted to run back towards the car. You ran and blocked him. His back was against a shop window, and you were pointing the knife towards him. You made demands for the money, specifically stating 'Give me money'.
15Jangid held out his hand and you took the money and ran south on Clarendon Street, turning onto Bank Street towards Park Street, South Melbourne. Charge 2 – armed robbery.
16Jangid ran back to the vehicle and attempted to follow you, losing sight around the South Melbourne police station. He called Triple 0 requesting police assistance. Police attended and spoke to him.
17Again, aspects of your offending and your responsibility for it was confirmed via nearby CCTV footage.
Arrest and Interview
18On Friday 10 May 2024, police were patrolling South Melbourne and observed you wearing clothing matching the description from the offending including the red facemask. You were arrested and transported to St Kilda. Police seized the facemask and the clothing worn during the offending.
19At 1:00 pm police executed a search warrant on your residence where they located and seized a light blue backpack belonging to Miller, a black Champion hooded jumper, and Adidas brand shoes.
20You were assessed by a forensic medical officer who deemed you unfit for interview, seemingly for reasons associated with your mental health and/or drug affected state
21You were charged and remanded to appear at the Melbourne Magistrates’ Court.
22You served 85 days before being bailed on 2 August 2024 on conditions.
23It appears that events have overtaken you and you now find yourself in custody again, having been remanded on other matters.[5]
[5]To be dealt with this afternoon, being 2 December 2024.
24You have been in custody now continuously since the 4 August 2024. It appears not all of that time can be accounted for with respect to this matter as your bail was not in fact revoked on the other. Only 34 extra days can be declared in this case, making a total of 119 days PSD.
Case history
25The matter has proceeded swiftly through the criminal justice system via an early plea of guilty.
Date Event 8 May 2024 Offending – Charge 1. 10 May 2024 Offending – Charge 2.
Charged and remanded.Filing Hearing.
2 August 2024 Committal Case Conference and Bail Application
Matter resolved, pleahearing listed, bail granted.
30 October 2024 Melbourne County Court.
Plea Hearing –21 November 2024 Melbourne County Court
Further plea and sentence – adjourned2 December 2024 Melbourne County Court
Further plea and sentenceVictim impact
26Mr Jangid did not furnish a Victim Impact Statement (VIS) though I can readily infer and accept that the offending would have been frightening for him.
27Mr Miller filed a victim impact statement on 25 November 2024, well after the plea was first conducted.[6] I am told it has been read to you. He spoke of his significant suffering as a result of your conduct. He is constantly anxious and distrustful. His handing over of personal items to you was invasive and caused him a great deal of distress. He had to move home out of fear that you would attend there because you had access to the home given you had taken his keys. He had to replace those items you took from him. It has shaken his sense of personal safety and personal freedom. It has cost him dearly.
[6]Exhibit C: Victim impact statement of Wade Miller.
Offence seriousness
28Your Counsel accepts that the offending is inherently serious. The maximum penalty of 25 years in each instance indicates as much.
29Violent offences like this invariably involve a terrifying experience for victims and threaten the wider community’s sense of security and this is no exception. Twice in a matter of days, you approached victims who were alone, at night, armed with an inherently dangerous and frightening weapon – a large knife (they have been described as being different in length). No knife has ever been recovered. You had the foresight to disguise yourself. You had time to reflect after the first incident to desist from offending and did not.
30There is a basis to conclude that each of the armed robberies was motivated in part (but not solely) to obtain money to buy drugs. The report of clinical psychologist, Ms Mynard[7] dated 17 October 2024 suggests the offending is financially motivated as you needed money ‘to get out of the rut [you were] in’ [8] and ‘sometimes [you were] desperate for money for drugs’ [9] The statement of Miller himself suggests the offending was drug related, given you asked him 'do you have any shard?'.
[7]Exhibit 3: Report of Alison Mynard dated 17 October 2024.
[8]Exhibit 3: Report of Alison Mynard dated 17 October 2024, [48].
[9]Exhibit 3:Report of Alison Mynard dated 17 October 2024, [42].
31The Queen v McKee and Brooks,[10] has application here. The way in which you were introduced to and became a frequent user of drugs arises in this case, not unlike the Bugmy principles do.
[10] [2003] VSCA 16 at [21] per Vincent J.
MATTERS PERSONAL TO THE OFFENDER[11]
[11]Derived from submissions in Exhibit 1: Outline of Plea submissions dated 23 October 2024 and reports tendered.
32You are still a young offender barely 19 years of age who is presently remanded at the MRC. You have served previous periods of remand in adult custody.
Childhood and involvement of child protection
33You grew up on the Mornington Peninsula with your mother Meesha and your father Luke, an older brother and younger sister. Your parents separated when you were about 10. Following the separation, you were spending about half the week in each household. I am told your father was not particularly active in activities with the boys and was not involved in your sport.
34You commenced illicit substance use at the age of just 11. Before you turned 16 you were removed from the family and placed into the care of Allambi Care. Allambi Care provided you with support in relation to psychosocial needs, independent living skills and other supports as required. When you turned 18, Allambi transitioned to Anchor. Anchor managed your Targeted Care Package (TCP) until they closed their support in February 2024.
35In May 2023, your father obtained a family violence intervention order with your younger sister being the protected person. This Order was taken out to prevent you from attending home or your father’s workplace without warning and potentially being substance affected. The IVO was withdrawn on 25 October 2023 upon you signing a 12-month undertaking.
36As part of your involvement with Child Protection, you were on a Family Reunification Order which expired in November 2023 (that is to coincide with your eighteenth birthday).
Education and Employment History
37You attended St. Joseph’s Primary School in Rye from Prep to Grade Six. You struggled with reading and writing which impacted your learning.
38You attended Padua College in Rosebud for Years 7 and 8 and left because you went to school with drugs and were expelled.
39You then attended Rosebud Secondary College for part of Year 9 before moving to Oakwood, which was an alternative school for students struggling in mainstream education. You were enrolled in high school throughout the COVID-19 lock down period in 2020 and 2021; but did not attend due to substance use.
Medical History and Mental Health
40On 31 July 2023, you were admitted to Latrobe Regional Hospital Psychiatric Inpatient Unit under Mr Jim Walsh and Sharyn Perry from the Wonthaggi Early Psychosis Unit. They reported your symptoms were consistent with drug induced psychosis. You were discharged due to not meeting the requirements to be held for a longer period.
41Shortly thereafter on 10 August 2023 you were admitted this time to the Latrobe Regional Hospital Psychiatric Inpatient Unit again, in relation to symptoms consistent with drug induced psychosis. Again, you were shortly discharged after admission on 14 August 2023, because you did not meet the requirements to be held any longer.
42On 5 February 2024, Dr. Renato Assini,[12] Forensic Psychiatrist, Youth Mental Health Service (FYMHS) Orygen, diagnosed you as having:
a. Attention Deficit Hyperactivity, Disorder (ADHD)
b. Mild Intellectual Disability
c. Substance Use Disorder
d. Oppositional Defiant Disorder; and finally
e. Schizophrenia.
[12]Exhibit 4: Report of Dr Renato Assini from origin dated 5 February 2024.
43You have been placed on Risperidone and Paliperidone and receive monthly injections in custody. At the time of the first assessment with Ms Mynard, you were still exhibiting symptoms of very poor mental health. It is unclear when you last received your monthly injection.
Intellectual Disability
44
On 14 July 2022, Mr Michael Bilyk, Clinical Psychologist, conducted a cognitive intellectual assessment of you. That assessment identified that you have a
full-scale IQ of 70 consistent with borderline intellectual disability.
45Ms Mynard opines you would perform somewhere between 65–75 points and recommends that an adaptive assessment take place to determine the functional impact of your low intellectual functioning. Such an assessment would assist those who have to manage your care and custody. It is not fundamental to my task here.
46You have current support through the NDIS. The NDIS plan includes two Support Coordinators, support workers, an Occupational Therapist, and Behavioural Support
47I received a letter from Ms Jacqui Brown, your Specialist Support Coordinator and clinical psychologist, regrettably after the YJC assessment took place. [13] She too highlighted your vulnerabilities and deficits. She described you as at times appearing very child-like. She gave detailed information about the sheer scale of your needs and the impressive scaffolding available for you to deal with those needs. On behalf of the care team, she was very concerned about your fate in adult custody, especially when the spectre of you being coerced into illicit activity by adult prisoners had been raised.
[13]Exhibit 7: Report of Jacqui Brown dated 25 November 2024.
Alcohol and Substance Use
48As I mentioned, you commenced using cannabis and drinking alcohol at age 11. This progressed to daily intravenous use of methamphetamine and heroin. You smoked ice. You sourced the substances from older peers.
49You began using MDMA intermittently from 13 to 14 years of age.
50By reason of your age alone, you could have not hoped to have understood the long-term damage such drug use would do to you.[14]
[14]The Queen v McKee and Brooks [2003] VSCA 16 at [21] per Vincent J.
51Your pattern was to use for multiple days until you were admitted to hospital for an overdose. The most recent record of admission was just prior to being remanded in December 2023.
52Prior to remand you were consuming alcohol regularly on the weekends.
53You had used ice prior to the present offending.
54You do have a desire to engage with drug rehabilitation services in the future.
Current circumstances
Remand and PSD
55You find yourself in custody again, having been bailed on 2 August 2024 on the present matters. That was after serving close to three months in adult custody on remand.
56You were bailed on quite restrictive conditions on that date but by 4 August 2024, you were remanded again for matters where the informant is Lawler. You were charged with affray, assaulting a person with a knife (two people actually), possess controlled weapon and possess 1, 4 Butanediol. Initially, it was thought that the bail you entered two days earlier was revoked. It turns out that this is not entirely correct. I have dealt with this earlier in the context of the case history in this matter.
NDIS and YJ support
57Supported Independent Living (SIL) has been approved for you 1:3 (shared arrangement with three clients) via the NDIS. This approval has been granted in mid-October 2024. The State Trustee will need to make the final decision regarding this offer. Given the relative recency of this decision, no placement has been organised. Until this arrangement is finalised you would have to return to the apartment towers at Park Towers upon release. This environment is seen as a real risk factor for you.
58NDIS support workers from Step as One Disability Service, Greg Robertson and Guiseppe, continue to engage with you in custody. Mr Robertson visits you weekly and the visits last 30 to 40 minutes.
59Your Youth Justice case manager, Kate Atkinson, is engaging with you whilst you are on remand as part of your YSO obligations.[15] Youth Justice will engage with you until 27 March whether you are in custody or released. This, I add, is a high level of investment in you by Youth Justice.
[15]It seems your involvement and engagement can be sporadic, especially when using illicit drugs (see Exhibit 2: YJC Bail Report authored by Katherine Atkinson dated 2 August 2024, 4)
60Your care team still meets approximately every fortnight even when you are in custody. The care team consists of a case manager from Youth Justice, an NDIS – support coordinator, workers from Step as One, and a representative from the Office of the Public Advocate. There would be a support worker usually from Taskforce involved in the meetings for drug and alcohol support but that has ceased while you are in custody. When you are released from custody the AOD support worker would re-engage with your care team meetings.
61Your parents remain supportive of you and wish to see you, their son, engage in rehabilitative services.
62Whilst in custody you are seen by the Forensicare Mental health nurses and psychiatrist for regular review and you are accepting treatment. You are also actively engaged with MobileFMHS Social worker and Occupational Therapists for continued engagement.
63You are currently medicated on:
a. paliperidone
b. sodium valproate
c. olanzapine
Forensic history
64You admit a number of relevant and recent prior convictions. You are not to be punished again for those matters, but they do bear upon my assessment of your prospects and the need to deter you.
65You admit four previous Court appearances, all in the Children’s Court commencing only last year in 2023.
66
Having first been given a Bond for 12 months, your offending escalated, as did the severity of the sanctions imposed upon you. You were placed on probation in
mid-2023 for offences of dishonesty and violence, including attempted armed robbery. By March 2024, you were sentenced for aggravated burglary, and other dishonesty offences to 21 days YJC. It was at that time you were placed on two Youth Supervision Orders (YSO’s) which you breached. You committed offences of robbery, aggravated burglary and other serious offences. You had breached the probation order I mentioned earlier.
67By the time you committed the offending before me then, you were in fact subject to two YSO’s imposed at Frankston on 28 March 2024. The first of those was a six-month order and the second was a 12-month order.
68Your persistent offending and your constant breach of Court orders designed to assist you frankly concerns me. I find the fact you were on two YSO’s accentuates the gravity of the instant offending.
69You are engaging with Youth Justice whilst in custody. Since 13 May 2024 you have attended 11 out of 20 appointments. The nine appointments that have been cancelled or excused have been done so for reasons beyond your control. There have been staffing issues at the prison, meaning appointments cannot be properly facilitated.
70I should add both Ms Atkinson and Ms Dowse of Youth Justice attended the plea.
MATTERS OF SENTENCING PRINCIPLE
Youth
71You are self-evidently a very young offender.
72The principles outlined in R v Mills[16] are applicable with regard to the sensible moderation of general deterrence in favour of a sentence promoting your rehabilitation. Counsel, in my written reasons I outline those principles but I do not feel the need to recite them in open court.
[16](1998) 4 VR 235.
73Age is a very significant factor for me to consider. Youth is important in the sentencing synthesis and should be a primary consideration where it properly impacts upon any assessment of moral culpability, the deleterious effects of adult prison, and the emphasis that must be placed on rehabilitation
74Whilst the offending is serious and general deterrence is relevant, it must be balanced against the significant weight to be given to the principles governing the sentencing of youthful offenders, such as Azzopardi.[17] Counsel, again I have recited the principles as they are stated in Azzopardi in my written reasons.
[17]Mills [1998] 4 VR 235; DPP v Tokava [2006] VSCA 156; R v Merrett, Piggott and Ferrari (2007) 14 VR 392.
75The Court in Azzopardi went on to consider the considerations that I have just outlined in the context of crimes that are particularly serious or persistent.[18] The court concluded that 'only in the circumstances of the gravest criminal offending and where there is no reasonable prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished'.[19] I have not found that your prospects have been extinguished.
[18]Azzopardi v The Queen [2011] VSCA 372 at [37]–[40].
[19]Azzopardi v The Queen [2011] VSCA 372 at [44].
Bugmy
76It is submitted that there is a causal connection between the acute deprivation experienced by you in your formative years and the offending.
77Throughout childhood you had problems with attention and focus, restlessness and impulsivity, hence you were regarded as the class clown and often in trouble for your behaviour. You engaged in high-risk 'daring' activities. You commenced drug use at the age of 11 with the influence of older peers.
78With your parents separated, you had less contact with your father at a time when you probably needed a strong male role model and, in that void, you spent more and more time with peers engaging in anti-social activities. You have continued a downward spiral as your drug use increased.
79Child protection were involved with your family with you being placed on a family reunification order.
80The impact of disadvantage is complex, multilayered and non-linear. It is not easily diagnosed or measured.[20] However, it is submitted your moral culpability should not be assessed in the same way as someone who did not experience the pitiable disadvantage that you did. Counsel I have recited the relevant passages of both Bugmy and Marrah.
[20]DPP v Hermann [2021] VSCA 160, [45].
81It is submitted the principles in both of those cases are applicable here, the result being your moral culpability is diminished as a result.
82The Crown accepts the necessary evidentiary foundation for the application of Bugmy principles is made out, and what is more, there is a basis to reduce your moral culpability generally. [21]
[21]DPP v Herrmann [2021] VSCA 160 at [44]
83Ms Liantzakis though, points to the double-edged nature of Bugmy that requires considerations of issues that the need for community protection arises because of the way in which an offender’s formative years have established entrenched criminal behaviours that are difficult to curb.[22]
[22]Stewart v The Queen [2015] VSCA 368 at [5].
Verdins
84It is submitted on the basis of the assessment of Ms Mynard that your diagnoses of ADHD, Mild Intellectual Disability, and Schizophrenia mean that you were suffering a 'mental disorder or abnormality' or 'impaired mental functioning' at the time of the offences, which falls within the scope of 'the wide variety of conditions' as contemplated by R v Verdins.[23]
[23](2007) 16 VR 269 (‘Verdins’).
85In Verdins, our Court of Appeal said that impaired mental functioning, whether temporary or permanent (‘the condition’), is relevant to sentencing. All six limbs of that case are said to be applicable.
86By way of necessary evidentiary foundation, the letter of psychiatrist Dr Assini, makes a diagnosis of ADHD, mild intellectual disability, substance use disorder, oppositional defiant disorder, and a very recent diagnosis of schizophrenia for which you are now medicated whilst in custody.
87The report of Michael Bilyk [24] finds your IQ of 70 falls within the range of potential intellectual disability.[25]
[24]Exhibit 2: Report of Michael Bilyk dated 28 July 2022.
[25]Exhibit 2: Report of Michael Bilyk dated 28 July 2022, [19].
88The report of Ms Mynard[26] opines that an adaptive assessment is required to fully determine the impact of your low intellectual functioning and whether a diagnosis of mild intellectual disability would be in fact made. [27] She notes that from 15 March 2024, she confirmed that you did not meet that diagnosis, but it was unclear if an adaptive assessment was undertaken by then.
[26]Exhibit 3: Report of Alison Mynard dated 17 October 2024 (especially [49] through to [57])
[27]Exhibit 3: Report of Alison Mynard dated 17 October 2024, [34] & [51].
89On any view, you have very low cognitive functioning which Ms Mynard opines impacts the range of factors in your everyday life. Such individuals usually struggle both with school performance and may not be adequately developed in the sociocultural standards for personal independence and social responsibility. She opines that you have struggled with emotional regulation and behavioural regulation since you were very young.
90She opines that:
'Mr Tindale’s mental health condition of ADHD, his low intellectual capacity, his schizophrenia, and being affected by ice have contributed to a significant reduction in his ability to make reasoned decisions. Furthermore, his ADHD and psychotic state has increased his propensity for impulsivity, and not being able to distinguish between reality and non-reality. This results in the offending being a reflection of Mr Tindale’s impulsivity, lack of care for consequential thinking and lack of empathy for a victim. His low intellectual capacity means that he has reduced capacity for effective internal verbal reasoning, focus and processing information about consequences and having empathy for the victim'.
91Your reduced cognitive function is permanent Mr Tindale and it will not change over your lifetime.
92Turning now to the application of Verdins.
Limb 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.
Limb 2: The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
93Ms Mynard opines that both your diagnoses and methylamphetamine use contributed to a significant reduction in his ability to make reasoned decisions and contributed to the offending. [28] The effect of any impairment on moral culpability is a matter of degree. The Prosecution agree with the Defence submissions[29] that the mitigatory effect is reduced based on your own drug use and the principles in Byast [30] 'where the onset of mental illness is not beyond the offender’s control but is, rather, attributable to the offender’s own decisions'.
[28]Exhibit 3: Report of Alison Mynard dated 17 October 2024, [56].
[29]Exhibit 1: Outline of Plea submissions dated 23 October 2024, [55]-[57].
[30] Byast v The Queen [2021] VSCA 344 at [39]-[42].
94You were ice affected at the time of the offending in circumstances where you had been previously admitted to hospital for drug-induced psychosis.
95Ms Mynard states that when you are using methamphetamine or other illicit substances your risk of schizophrenia and psychotic symptoms worsening is very high. This leads to a higher risk of chaotic and impulsive behaviour, driven by psychotic symptoms and the effects of being intoxicated, as was the situation in the current offending. [31]
[31]Exhibit 3: Report of Alison Mynard dated 17 October 2024, [57].
96Nonetheless it is said you should receive some reduction in moral culpability attributable to your mental illness. As outlined earlier, mental health conditions increase your propensity for impulsivity and not being able to distinguish between reality and non-reality.
Limb 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 sentence or both.
97The Prosecution accept that this limb has some application.
Limb 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.
98There is some evidence that you are able to accept responsibility for the offending and appreciate the wrongfulness of your actions. As you stated to Ms Mynard you were ‘sorry for the offending but struggled to see past my own mental health challenges’ [32]. It is accepted by both parties that specific deterrence is still relevant.
[32]Exhibit 3: Report of Alison Mynard dated 17 October 2024, [56].
Limb 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.
99It is submitted the diagnosis of schizophrenia is a recent one for you having only been made since you were in custody in February 2024. You do not have a lengthy history of non-compliance with medication. You are in the early stages of developing awareness and strategies to cope with complex mental health conditions.
100With respect to your time in custody, it was submitted that due to your ADHD, low cognitive capacity and psychotic symptoms, imprisonment has been and will weigh more heavily on you than it would a person in normal health.
101While Ms Mynard states that being in custody acts as a detoxification forum and boundary for you to stabilise, you will run the risk of becoming institutionalised over time. I pause to note it is very early in my view to make that call, given you have served a total of less than six months confined, over three stages of your life thus far.
102Your ADHD, lower cognitive functioning and schizophrenia conditions mean you struggle to cope with imprisonment, with symptoms of paranoia, restlessness, inattention, distractibility and auditory hallucinations affecting your day-to-day life and causing a lot of anxiety. [33]
[33]Exhibit 3: Report of Alison Mynard dated 17 October 2024, [57].
103It is accepted you are likely to suffer a significant additional burden in prison due to this mental impairment.8 Ms Mynard opines that you have found being in custody burdensome, your complex mental health difficulties make you vulnerable, you struggle to cope in prison as a result of the conditions and you are likely to deteriorate further whilst in custody.[34]
[34]Exhibit 3: Report of Alison Mynard dated 17 October 2024, [57].
Limb 6: Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment[35].
[35]Exhibit 3: Report of Alison Mynard dated 17 October 2024, [32].
104With respect to limb 6, Ms Mynard opines:
[Mr Tindale] is likely to deteriorate in custody further, due to [your] complex array of mental health symptoms. [You] require targeted mental health services and treatment in the community, in order to increase [your] wellbeing, stabilise [your] symptoms and decrease the risk of relapse and reduce the risk of reoffending.
105If there is a 'serious risk' that imprisonment will have a 'significantly adverse effect' on an offender's mental health, some mitigation of sentence may be appropriate.9 In assessing this risk, I may consider the likely conditions of your imprisonment and any management difficulties posed by you, and the availability of appropriate treatment. Dr Assini opines that you presented with persistent negative symptoms of schizophrenia in custody and were prescribed medication. The Youth Justice report in July of this year[36] references poor behaviour in custody towards prison staff and inmates. In October 2024, Ms Mynard opines that ‘[b]eing in custody acts as a detoxification and boundary for [you] to stabilise’ [37]
[36]Exhibit 2: YJC Bail Report authored by Katherine Atkinson dated 2 August 2024, 2 August 2024.
[37]Exhibit 3: Report of Alison Mynard dated 17 October 2024, [57].
106In sum, it is submitted by your counsel that there should be a reduction in your moral culpability as well as a recognition of the deleterious effects upon you whilst being in adult prison.
Plea of Guilty
107You indicated an intention to plead at the first committal case conference.
108You will receive the full benefit of this early plea.
109It demonstrates a willingness to facilitate the course of justice and an acceptance of responsibility.
110Your plea is particularly valuable as it has saved any of the victims from having to give evidence in court.
111Remorse is a nuanced issue in your case. Ms Mynard notes that you are sorry for the offending, and I accept that this is so, but your ability to sense the damage you might have done to others is clouded and obscured by your mental illness. I find that to the extent you are able to exhibit remorse given your own cognitive and mental health limitations, you are indeed contrite.
Current sentencing practice
112These are but one factor I have to take into account. They are not a 'controlling factor' and do not set a numerical limit or an upper or lower limit of the appropriate sentence in any case. Therefore, in coming to the decision about the appropriate sentence here, I should not consider myself limited by the numerical length of past sentences. I should impose a sentence that is just in all of the circumstances and clearly articulate the reasons for the sentence I am imposing. [38]
[38]DPP v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
113Acknowledging the limitations of comparable cases and that each matter turns on its own facts, the prosecution did refer to a number of cases that may be of assistance which were presented along with a useful chart:[39] They were the cases of:
(a) DPP v Pedretti[40]
(b) Seiler v The King[41]
(c) Walker v The Queen[42]
(d) Le v The Queen[43]
(e) Farmer v The Queen[44]
[39]Exhibit B: Crown submissions on sentence and chart of offending.
[40][2018] VCC 259 (1 x attempted armed robbery, 18 years of age).
[41][2023] VSCA 171 (1 x armed robbery, 19 years of age).
[42][2017] VSCA 80 (1x armed robbery, 21 years of age).
[43][2019] VSCA 299 (1 x attempted armed robbery, 20 years of age).
[44][2020] VSCA 140 (1 x armed robbery, 18 years of age).
114It is true that they all deal with armed robberies committed by young people, using edged weapons, who have drug and/or mental health issues, but there is of course a broad range of terms of criminality and culpability within that cohort.
115I have had regard to decisions of this court and the Court of Appeal in order to give appropriate weight to current sentencing practices.
116Those sentences of other Courts are not binding precedents but merely historical statements of what happened in the past,[45] and current sentencing practices represent just one of the factors I need to consider.
[45]See Dalgliesh [83].
117In formulating an appropriate sentence I have only had regard to the purposes for which the sentence must be imposed.
General deterrence, denunciation, and just punishment
118It is conceded that they all have some weight in the formulation of an appropriate sentence here. These principles are relevant in that the sentence imposed must convey that violent behaviour of this nature will simply not be tolerated in the community.
119Ms Hartman submitted that the emphasis which might otherwise be placed upon general deterrence and just punishment needs to be moderated, to reflect the operation of Bugmy and Verdins and your reduced moral culpability.
Rehabilitation and protection of the community
120Due to your young age and impaired mental function, rehabilitation is also a primary consideration. You are engaging with support services in custody. Ms Mynard opines that your current housing situation remains a higher risk for further relapse into drug use and re-offending. Your support workers are exploring alternative accommodation options available upon your release with the recent approval of the SIL.
121You require targeted mental health services and treatment in the community to increase your wellbeing, stabilise your symptoms and decrease your risk of relapse and thus reoffending.
122Whatever prospects you enjoy, Mr Tindale, are enhanced by the provision of the NDIS services, the investment Youth Justice has made (and apparently will continue to make) in you, and the recent diagnosis of schizophrenia which is being treated. Suffering from schizophrenia may be ordinarily seen as a barrier to reform. What I mean is that now that this illness has been diagnosed and identified, you appear to be in the early stages of treatment and medication for it.
Parsimony
123The sentence imposed must be not more severe than is necessary to achieve the purpose or purposes for which sentence is imposed.
Totality
124I am mindful of the significance in this case of the application of the principle that requires me, when sentencing you for multiple offences, to ensure that the aggregate term I impose is a just and appropriate measurement of the total criminality involved. There must be an appropriate relativity between the totality of all of the criminality and the totality of the total effective sentences. This is true when I consider the interaction between the charges on the indictment.
125The totality of your offending encompasses two acts of dishonesty and public violence. Your offending involves harm to different victims, which does add to your overall criminality, but I am minded to impose an aggregate sentence given they occur within one effective course of conduct over two days, in similar circumstances.
DISPOSITION CONTENDED FOR
126You are a vulnerable and impressionable young man. It was submitted the Court should order a pre-sentence report as to your suitability to serve whatever aspect of a custodial sentence imposed on you, within Youth Justice. I agreed to this but I declined to have you assessed for a CCO. A CCO, even with its breadth and scope (as well as the potential to have you serve a year in adult prison as well), was simply not appropriate.
YJC
127Under s 32 of the Sentencing Act 1991, I can only order you to be confined in YJC if (after getting a pre-sentence report)
(a) I believe there are reasonable prospects of rehabilitation; or
(b) I believe you are particularly impressionable, immature or would likely become subject to undesirable influences in adult prison.
128A suitability report was furnished on 21 November 2024. [46] The author consulted very widely, speaking to you, family members and specialist workers who have been involved with you.
[46]Exhibit 8: YJC Assessment 21 November 2024.
129The report suggests that the criteria are not made out.
s.32(1)(a) – rehabilitation
130First, it is said the offending represents an escalation in criminality, coming after a long sustained period of involvement with Youth Justice that has failed to gain traction. You exhibited poor compliance with supervision, ignored warnings, been breached on orders, the specific interventions put in place to assist you have been ineffective due to your persistent, worrying use of drugs (as you are unable to delay gratification and seek out drugs especially when your mental health deteriorates) and disengagement. In YJC in the past, you have been violent towards others and you have been disruptive. Your behaviour out of custody in the form of the offending speaks for itself. It is not only Youth Justice that you fail to engage with. You have often failed to engage properly with the NDIS, AOD counsellor, or YJCSS workers. You require extensive support to address your behaviours.
s.32(1)(b) – vulnerability
131It is said that you have not endured a background of real abuse or neglect. And that so much is true. But you have poor interpersonal skills that often lead to conflict with either you as the aggressor, or at times, you being the victim. Your responsivity issues have already been discussed. In the context here that your mental health is dealt with, you were initially separated from other adults upon reception because of bizarre behaviour, self-harm, and aggressive behaviour. Your behaviour improved over the last six weeks, suggestive of stabilising mental health (it is not quite stable enough yet).
132The factors which I have to have regard to in making a determination are set out in subsection 32(2).
133The Prosecution submissions on these criteria are useful referring me to the:
(a) Nature of the offending;
(b) The age, character and past history of you.
134I have had regard to those matters, detailed extensively earlier. I have had regard to the further prosecution submissions on the matter[47] where it was argued that a term of adult imprisonment was still the appropriate disposition given your apparent unsuitability for anything else. That a longer parole period was open in these circumstances was conceded. [48] I have had regard to the further submissions on your behalf too[49] urging me to come to my own conclusions about your suitability, given the suitability report is not binding on me. In those submissions, your potential for reclamation was re-stated and your vulnerability was highlighted once more
[47]Exhibit D: Further submissions dated 28 November 2024.
[48]Exhibit D: Further submissions dated 28 November 2024, [3].
[49]Exhibit 9: Further defence submissions dated 27 November 2024.
135I had regard to the report of Youth Justice. I cannot help but observe that at no time prior to the present had you ever been diagnosed with and/or medicated for schizophrenia. Whilst this might not be the only challenge in managing your behaviour, it is in my view a significant one. If there is a realistic prospect that with proper management of this significant mental illness in YJC, then that course ought to be persisted with. You are showing some signs of stability now,[50] which was objectively lacking during any of your previous encounters with Youth Justice.
[50]Which admittedly fluctuates, such as at a time close to the original date for sentence more than a week ago, causing the matter to be deferred.
136It is premature for me to conclude that you are beyond reform (albeit with significant assistance) and I am deeply concerned about the corrosive, coarsening effects of having a 19 year old such as you in custody. You are of course not just any 19-year-old. You are someone who has only just been diagnosed with a serious mental illness and is apparently being usefully treated for the same. Adult prisons are not considered to be particularly reformative places. I do not consider it appropriate that you negotiate this process in the harshness of that regime.
137I must stress I have not ignored the view of Youth Justice in this exercise. I have considered the matter at real length and I have been assisted by their insights and the detailed report provided. I have simply taken a different view about where you ought to be detained, especially what I consider to be your vulnerabilities, that I hope that I have expressed very clearly in these reasons.
138It is my expectation that a sentence involving YJC will involve coherent, cohesive treatment plans amongst interconnected bodies that properly communicate and liaise with each other. There is still the vexed issue of adequate and proper housing to be resolved for you. I trust that Youth Justice can have some positive influence in that regard.
SENTENCE
139I consider it appropriate to impose an aggregate sentence here. Such periods of aggregate detention may be imposed in largely the same manner as they can in the case of adult offenders. Specifically, a court may impose an aggregate sentence when sentencing an offender such as you for two or more offences founded on the same facts or that form or are part of a series of offences of the same or similar character.[51] An aggregate sentence of detention may be imposed that addresses multiple offences in one sentence instead of ordering separate periods of detention for each offence, and that is what I have done here.
[51]S.32(a)1) Sentencing Act 1991
140I sentence you as follows
Charge Offence and Section Date / Particulars Sentence 1 Armed Robbery
s.75A Crimes Act 1958
8 May 2024
Armed Robbert of Wade Miller of backpack while armed with a knife
Convicted and sentenced to 2 years 6 months YJC. 2 Armed Robbery
s.75A Crimes Act 1958
10 May 2024
Armed robbery of Naresh Jangid of money while armed with a knife
TES: Convicted and sentenced to 2 years 6 months YJC.
OTHER MATTERS
141Pre-sentence detention will be declared at 119 days.
142But for your plea of guilty, I would have sentenced you to four years YJC.
143I will grant the disposal order in the terms sought by the Crown by consent.
144Any matters arising?
145MS LIANTZAKIS: Your Honour, counsel have had a very brief discussion in relation to pre-sentence detention and agreed that it would be one day less, so 118 days rather than 119 days. We apologise, Your Honour.
146HIS HONOUR: I will correct that. That's all right, I will correct that.
147MS LIANTZAKIS: No other matters to raise, Your Honour.
148HIS HONOUR: Thank you. Ms Hartman would you like to remain on the line just to debrief Mr Tindale, or do you have other arrangements for that sorted out?
149MS HARTMAN: If I could remain on the line that would be preferred. It is a bit unusual but Mr Tindale is going for sentencing this afternoon in his Magistrate's Court matters. I appreciate Your Honour is releasing draft reasons. I would only propose - - -
150HIS HONOUR: You can show them to the magistrate if they can be minded to read them, they are close to 30 pages. But you will have them in about - what time are you on?
151MS HARTMAN: Two o'clock this afternoon, Your Honour.
152HIS HONOUR: You'll have them in an hour.
153MS HARTMAN: Thank you, Your Honour. I don't propose distributing them beyond for that sentencing hearing.
154HIS HONOUR: Yes. Well if there's any doubt I will direct that they are unrevised and restricted and only to be used for that purpose. Thanks very much.
155MS LIANTZAKIS: As Your Honour pleases.
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