Director of Public Prosecutions v Tong
[2020] VCC 541
•1 May 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02086
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CYTON TONG |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF SENTENCE: | 1 May 2020 | |
CASE MAY BE CITED AS: | DPP v Tong | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 541 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed robbery – schizophrenia – no causal connection
Legislation Cited: Sentencing Act1991
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
Sentence: 30 months’ imprisonment with 20 months’ non-parole period - s6AAA: 4 years’ imprisonment with 3 years’ non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Harrison | Office of Public Prosecutions |
| For the Accused | Mr R. de Kretser | Emma Turnbull Lawyers |
HIS HONOUR:
1 Cyton Tong, on 20 April 2020, you pleaded guilty to an indictment containing two counts, being theft, Charge 1, and armed robbery, Charge 2. The maximum penalty for theft is 10 years’ imprisonment, while the maximum penalty for armed robbery is 25 years’ imprisonment. In addition, you pleaded guilty to the related summary offence of commit an indictable offence on bail the maximum penalty for which is 3 months’ imprisonment.
2 You admitted an extensive prior criminal history spanning nine years and two States. Your prior convictions are mainly for dishonesty offences, however there are a number of prior convictions for assault and weapon offences. Your most recent sentence was an aggregate term of imprisonment of 240 days in respect of bail, dishonesty and violent offending.
3 At the time of your offending you were on bail and serving a Community Correction Order, these are aggravating circumstances of your offending.
4 Tendered as Exhibit A and read aloud in Court was the summary of prosecution opening. On Monday, 29 April 2019, you were bailed from the Richmond Police Station having been charged with possessing a controlled weapon. The instant offences were committed whilst you were on bail and this is the basis for the Summary Charge, commit indictable offence whilst on bail.
5 At about 11.40am on 10 June 2019, you went into the First Choice Liquor Store located in Victoria Street, Abbotsford. You walked to the back of the store and selected a can of premixed alcohol, placed it in the right pocket of your jeans and walked out. (Charge 1, theft)
6 About an hour and a half later, at 1.05pm, you entered the same liquor store and went to the rear of the store and looked at some liquor, you then went to the cash register area where the female shop assistant was located. You produced a black handled knife, stood about half a metre from your victim, pointed the knife in her direction and said, “I want one $50.00 note” and gestured towards the till. The shop assistant gave you a $50 note which you took and then ran from the store still holding the knife. (Charge 2, armed robbery)
7 Your conduct was caught on CCTV which was played in court. (See Exhibit B)
8 Not long after the commission of your offences, you were apprehended by police and were interviewed under caution during which you made full admissions, save that you could not remember having stolen alcohol from the store.
9 You have been in custody since the time of your arrest, being 10 June 2019.
10 Mr de Kretser of Counsel, who appeared on your behalf, tendered as Exhibit 1 the report of Warren Simmons, psychologist, dated 3 April 2019 and as Exhibit 2 the report of Dr Pandurangi, psychiatrist, dated 24 April 2020.
11 Whilst I will deal with your personal history and the contents of the reports later in my reasons, ultimately Dr Pandurangi opines:
“… there is no indication that the underlying schizophrenic illness has a direct causal relationship with the alleged offending, although it would have contributed by impacting his ability to exercise appropriate judgement. However, from his own account, the alleged offending is related to his ongoing opiate use.”
12 You are 29 years of age, having been born in October 1980 in Tasmania. You are of Chinese American heritage. Your father was a biochemist and your mother worked in retail. You have two older twin sisters one of whom is a legal practitioner and who provided a reference in respect of you (See Exhibit 3), the other is a doctor. Both your sisters live in New South Wales while your mother still resides in Tasmania.
13 Your family is supportive of you and you remain in telephone contact with them during the COVID-19 restrictions that apply to prisons. You informed me that you are locked in your cell 22 hours per day as part of the restrictions.
14 When you were seven or eight years of age your father died from a heart attack and your mother lapsed into depression, thereafter home life was not easy for you. Your mother has not re-partnered. You were educated at Hutchins College in Hobart to Year 12 and achieved a 99.4 TER score and enrolled in pharmacy the next year. You completed only two semesters of pharmacy and then deferred and worked for some years at McDonald’s.
15 You first appeared in the courts aged 20 in 2011 and have continued to offend ever since. You have a prior conviction for armed robbery the facts of which are set out in the sentencing reasons of her Honour Judge Douglas dated 9 August 2016. Unfortunately, at the time of your plea the extent of your mental illness was unknown and while there was reference in the report of Dr Ducat, psychologist to you exhibiting psychotic symptoms in 2012 these symptoms seem to have been attributed to your abuse of heroin and not your schizophrenia. (See Exhibit D)
16 You commenced smoking cannabis when you were aged 17 years and at about the age of 18 experimented with acid. At about this time, you also commenced to binge drink. You began to use methylamphetamine when you were about 21, but shortly thereafter you started to use heroin and have been addicted to that substance ever since.
17 While in custody on remand, you have spent time at the Melbourne Assessment Prison, Ravenhall Correctional Centre and as at the date of Dr Pandurangi’s report you were placed at St Paul’s, a psychosocial rehabilitation unit at Port Phillip Prison. You were hospitalised at the Thomas Embling Hospital for approximately a month in August 2019 before returning to the Erskine Unit, a subacute mental health unit at Ravenhall, where you remained for approximately three months prior to being transferred to the St Paul’s unit. You were again hospitalised at the Thomas Embling Hospital last November for 2 weeks then transferred to Port Philip Prison where you remain.
18 When interviewed by Dr Pandurangi on 27 February this year, you denied experiencing any unusual or paranoid thoughts. You were unable to recount the reason for your recent hospitalisation at the Thomas Embling Hospital or your placement in mental health units within the prison system. You denied experiencing any voices and denied that others could influence your thoughts or actions.
19 You are currently prescribed Paliperidone 100 milligrams monthly as a depot medication; this is a long-acting antipsychotic medication. You are also prescribed Olanzapine, an oral antipsychotic medication, 5 milligrams daily, together with Sertraline, an antidepressant medication, 50 milligrams daily. You informed Dr Pandurangi that you were not on any psychotropic medications prior to your incarceration.
20 You have a reasonably long history of contact with mental health services. At 21 years of age, you were hospitalised at the Royal Hobart Hospital presenting with psychosis. You had contact with prison mental health services in Victoria in 2015, after your first incarceration, for psychotic symptoms and you were commenced on antipsychotic medication. You had several reviews by psychiatrists and mental health clinicians during your second incarceration between 2015 and early 2018 and displayed a range of psychotic symptoms and were diagnosed with schizophrenic illness. You were hospitalised once again at the Royal Hobart Hospital in February 2018 after displaying violent behaviour towards your mother and presenting with delusions and auditory hallucinations. When released from prison in April 2019, you were referred to the Sunshine Hospital for involuntary treatment but tragically you were discharged after only a few hours.
21 You suffer from a treatment-resistant schizophrenia and Dr Pandurangi is of the view that you should commence on the drug Clozapine, a treatment reserved for resistant psychosis.
22 Mr de Kretzer initially submitted that the appropriate disposition in your case was a Court Secure Treatment Order, however after discussion he abandoned this submission. As events unfolded, I was not satisfied that such an order was appropriate in all the circumstances. Your offending was not motivated by any delusional notions but rather a desire for money to buy heroin to feed your longstanding habit. In prison you have been properly treated and have spent most of your time in one psychiatric facility or another, which has also included two periods at the Thomas Embling Hospital. Mr de Kretzer informed me that he had been in contact with the psychiatrist treating you in prison and that she informed him that she was working towards your transfer to the Thomas Embling hospital in the foreseeable future.
23 Your counsel relied upon the significance of your plea of guilty. You are entitled to the benefits that flow to you from an early plea. Further, your counsel relied on principles one to four set out in R v Verdins & Ors (2007) 16 VR 269. While your mental illness would have contributed to your offending by impacting upon your ability to exercise appropriate judgment, the real motivating factor for your offending was your desire for funds to feed your drug habit. You are suffering from a serious psychiatric illness that is drug resistant and this impacts upon the application of the principles of general and specific deterrence which must in your circumstances be sensibly moderated.
24 Armed robbery is a serious offence punishable by 25 years’ imprisonment. Although your offending appeared to be unsophisticated it does not fall at the lower end of the range of offending of this kind. You committed an armed robbery during the day, on a soft target, being a liquor store, and you threatened with a knife a female attendant who was simply going about her lawful employment. Absent matters personal to you your offending would call for condign punishment
25 In respect to your prospects of rehabilitation, without knowing the circumstances that motivated your previous offending, I am unable to say to what extent your mental illness played a part in that offending. Certainly, you are presently profoundly psychiatrically unwell. You are receiving appropriate psychiatric treatment while in prison. Your mental illness is co-extensive with your drug addiction, but it was your drug addiction that was the root of the instant offending. Accordingly, your prospects of rehabilitation appear on their face to be conditional upon you becoming drug-free and contemporaneously compliant with an effective pharmaceutical regime in respect to your serious psychiatric illness. The latter will impact favourably on the former. Accordingly, your prospects for rehabilitation at best must be assessed as guarded.
26 Offending of this kind must be publicly denounced and justly punished. Further, protection of the community must have a role to play in the exercise of my sentencing discretion. General and specific deterrence in your case must be sensibly moderated. Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending on the Indictment on charge 1 you are convicted and fined $100. On charge 2 you are sentenced to 30 months’ imprisonment. In respect to the related summary offence you are sentenced to 1 months’ imprisonment. This results in a total effective sentence of 30 months’ imprisonment and I fix the period of 20 months’ imprisonment as a period that you must serve before you will be eligible for parole.
27 I declare that you have spent a period of 326 days by way of presentence detention not including today.
28 Pursuant to s6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have sentenced you to a head sentence of 4 years’ imprisonment with a non-parole period of 3 years’ imprisonment. Is there anything arising out of that sentence, gentlemen?
29 MR de KRETSER: No, Your Honour.
30 MR HARRISON: No, Your Honour. Save for the orders to be made. Thank you, Your Honour.
31 HIS HONOUR: Yes, I'll deal with that. The Crown made application for a disposal order in respect of the knife that was used during the course of the armed robbery and I have made that order and hand it down. Mr de Kretser, would you like an opportunity to speak to Mr Tong?
32 MR de KRESTER: Yes, I'll have a brief moment if I – well, Your Honour - after Your Honour leaves the Bench please?
33 HIS HONOUR: Okay, I'll stand down now until 10.30. Mr Harrison, if you'd be so kind as to excuse yourself from the Bar table while Mr de Kretser has his conference? Mr Tong, Mr de Kretser will speak to you. I have sentenced to 30 months' imprisonment – that's two and a half years.
34 OFFENDER: Okay, (indistinct).
35 HIS HONOUR: All right. I've fixed a minimum term of 20 months.
36 OFFENDER: Yeah, yeah. Okay, all right.
37 HIS HONOUR: All right?
38 OFFENDER: Okay. All right, thank you, sir. Yeah.
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