Director of Public Prosecutions v Toth

[2016] VCC 1966

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00394

DIRECTOR OF PUBLIC PROSECUTIONS

v

JADE TOTH

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September & 21 November 2016
DATE OF SENTENCE:	15 December 2016
CASE MAY BE CITED AS:	DPP v Toth
MEDIUM NEUTRAL CITATION:	[2016] VCC 1966

REASONS FOR SENTENCE

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Subject:Trial - sentencing

Catchwords:             Armed robbery

Legislation Cited:     Sentencing Act 1991

Cases Cited:            

Sentence:18 months’ imprisonment and 2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Fallar	Office of Public Prosecutions
For the Accused	Ms J. Clark	Matthew White & Associates

HIS HONOUR:

1Jade Toth, you have been found guilty by jury verdict of two charges of armed robbery.  Armed robbery carries a maximum penalty of 25 years' imprisonment. 

2You are presently 23 years of age, having been born on 9 August 1993, and you were aged 21 when this offending occurred in February 2015.

3You have a criminal record, about which I will go into more detail later. 

4The circumstances of the offending are as follows. 

5The two armed robberies occurred on 25 February 2015 at Henry Street near the Pakenham Train Station. 

6There are two victims in this case:

-    Mitchyl Hill, who was then aged 14; and

-    Jesse Scanlan, who was then aged 15. 

7For convenience, I will refer to all the parties in this matter by their first names.

8Mitchyl used to be friends with Kayla Stobie, who was then aged 14, and who was also a friend of yours. 

9Kayla claimed that Mitchyl had hit her in the past, which Mitchyl denied. 

10Whilst there are some inconsistencies between the witnesses as to the exact circumstances leading to the development of your acts, it is clear that you, Mr Toth, had reacted to a claim by Kayla that she had been hit by the victim, Mitchyl Hill.

11On Wednesday 25 February 2015, Kayla and Mitchyl began arguing about the allegation whilst on board a train on the way to Pakenham station.  At some stage, either on the train or at Pakenham, you asked Mitchyl about the truth of the allegation, and he denied it. 

12You told Mitchyl to wait for you at a nearby park known to both of you, and also to wait for someone else who was coming to confirm whether Mitchyl did or did not hit Kayla. 

13By this time Mitchyl believed he was going to be bashed and did not try to run away because he believed that you would catch up with him.

14Other acquaintances of both you and the victims were present.  One of them, sensing trouble, called police.  At 3.24 pm, police received information that an assault was about to take place near Bourke Park in Pakenham.

15You met up with Mitchyl and others, including Jesse Scanlan, and you walked towards the fence near a Good Guys store. 

16A nearby resident, Ms Scott, heard an argument outside her house about a boy having pushed a girl, which the boy denied.  There were several young men and a girl there.  She heard a threat to "bash or chop his fingers off", and that someone “couldn’t leave unless money was paid”.

17Other witnesses gave evidence that you produced a knife and possibly a cigar cutter as well.  Mitchyl said you told him to hand over his belongings or you would bash him.  He then handed over his cigarette lighter, smoke case and scissors.  This conduct is represented by Charge 1.

18When Jesse Scanlan arrived he saw you and he thought you had a cigar cutter and were threatening Mitchyl.  Because of the conflict in evidence on this subject, it cannot be determined beyond reasonable doubt that what you had was in fact a cigar cutter.  The jury's verdict is consistent with you having with you at the time an offensive weapon, be it cigar cutter or knife.

19You said to Jesse that if he did not give you money you would kill Mitchyl.  After Jesse hesitated the threat was repeated, and Jesse then handed over what money he had, which was $30.  This conduct is represented by Charge 2.

20You then left with your friends and the rest of the group dispersed. 

21At about 3.46 pm, police arrived and you were identified and arrested. 

22Police searched you and located in your shorts pockets one iPhone, one lighter, one pair of earphones, one cigar case, one empty ziplock bag and one pair of scissors.  You also had a plastic bag with two cans of Jack Daniels and two Red Bulls. 

23You were then transported to the Pakenham Police Station.  You were interviewed and you essentially denied the alleged offences.  You accepted that you had threatened to punch Mitchyl in the mouth if you found out that he had hit your friend.  You also said that you had ended up with Mitchyl's things because your friend had asked you to hold onto them because she had no pockets.

24I now turn to your personal circumstances. 

25As I noted earlier, you are now 23 years old and you were 21 at the time of this offending. 

26Your criminal history commenced in the Dandenong Children's Court in January 2011 when at the age of 17 you were given a 6-month good behaviour bond without conviction for shoplifting.  On 22 June the following year, you appeared at both the Dandenong Children's Court and the Dandenong Magistrates' Court:  at the former you were given a 12-month good behaviour bond, again without conviction, for recklessly causing injury, and at the latter you received the same penalty for unlawful assault.

27In February 2013 at the age of 19 you appeared at this court where, for a charge of armed robbery you were convicted and put on an 18-month community correction order, and for a charge of possession of cannabis you were fined.  You were back in the Dandenong Magistrates' Court a month later when you were put on a 6-month community correction order for making a threat to kill, behaving in an offensive manner in a public place, theft and failing to give name and address information to police.

28In March 2015 you were convicted of theft, being shoplifting. 

29Subsequent to the date of the current offending you have been convicted of theft, fail to answer bail, resist police and intentionally damage property, for all of which you received an aggregate sentence of 2 months' imprisonment.  This is not a prior conviction for sentencing purposes, however can be considered as context to your circumstances around the time of your offending and prospects for rehabilitation.

30You have experienced a challenging childhood, your mother leaving the home when you were about two.  Your father thereafter raised you and your older sister on his own whilst working full time.  Between ages 10 and 14 you had been using cannabis, and at 14 you began using amphetamines. 

31You finished school at around Year 7, having struggled academically.  There were periods of suspension for bad behaviour.  You continue to have difficulty with literacy and numeracy skills. 

32You left home on various occasions, eventually leaving permanently at age 15 and travelling to Sydney with your then-girlfriend.  You became heavily involved in the drug culture there, using cocaine.  During this time you witnessed one of your best friends being shot and killed in the context of a drug deal.  You continue to have distressing recollections of this incident.

33Your drug use continued, supplied by your then-girlfriend's family, until you moved back to Melbourne in 2011 when you participated in a residential detoxification program at Windana Youth Community House, Dandenong for a period of two weeks. 

34You met your biological mother some short time after this.  Unfortunately it was a very negative experience and you soon began using amphetamines again. 

35Your then partner left you, and your drug use escalated to ‘ice’ and GHB.  You isolated yourself from your family due to your drug use.

36At the time of the present offending you were abusing numerous illicit substances.  You believe that alcohol played a major role in your offending at the time.  You have stated that during that period you had been using ecstasy, GHB and cannabis.  You were unsure if you had been using methamphetamines, and reported that you were a big ‘ice’ user.

37Several reports concerning your mental health were tendered on your plea.  In 2012 you were assessed and reports were provided by Dr Aaron Cunningham, forensic psychologist, Dr Katinka Morton, psychiatrist, Dr David Huppert of Southern Health Mental Health Program and Ms Angie Fisher, youth outreach worker (two reports), who is with the Youth Substance Abuse Service - YSAS.

38More recently a report has been obtained from Dr Ria Zergiotis, consultant psychiatrist at the Victorian Institute of Forensic Health. 

39You had been referred to YSAS in January 2011 following your discharge from the residential detoxification program at Windana.  It appears from the YSAS reports that you engaged very well with the services provided.  You displayed commitment over a sustained period to treatment goals.

40At that time you also demonstrated resilience and consistency, significantly reducing your level of use and associated risks. 

41Dr David Huppert noted your long history of poly-substance abuse against the background of a difficult upbringing.  You had exhibited intermittent symptoms of psychosis, paranoia and auditory hallucinations in the context of heavy substance abuse.  It appears that your symptoms responded well to abstinence and the anti-psychotic drug Seroquel, and by the time of the report following your period of rehabilitation counselling with YSAS you were no longer indicating paranoid ideas or psychotic symptoms.

42In 2012 Dr Cunningham diagnosed you as suffering from post-traumatic stress disorder, substance abuse psychotic disorder and substance use disorder. 

43Dr Morton assessed you as meeting criteria for chronic paranoid schizophrenia and post-traumatic stress disorder.  This diagnosis was based upon the continuance of psychotic illness symptoms despite a reported abstinence for a period of two years.

44In November this year Dr Zergiotis opined that you did not present with symptoms suggestive of a current mood or psychotic disorder.  You presented with symptoms suggestive of an ongoing post-traumatic syndrome, in particular recurring and intrusive memories and distressing dreams of the traumatic event concerning witnessing your friend's murder.  You have features in your history suggestive of antisocial personality traits.  As to the reported psychotic episodes, Dr Zergiotis noted you reporting that with the decrease or cessation of illicit substances there would be full resolution of these experiences. 

45Both Dr Cunningham and Dr Zergiotis opined that, from a rehabilitative perspective, you would benefit from continued interventions in the community.

46In your own assessment to Dr Zergiotis, you stated that you had ceased using anti-psychotic medication before coming to gaol, you did not think that the medication helped you, your thinking is clearer now and you feel "awesome" without medication.  I note that you have now been in custody for well over a year.

47The offending is very serious.  Armed robbery is a cause of great terror and the production of a weapon has the potential to have dreadful consequences, albeit originally perhaps unintended.  These acts against soft targets in the public domain are to be strenuously discouraged.  Principles of general as well as specific deterrence are significant matters in sentencing considerations.  Your actions were that of an arrogant bully intent on summary vigilante conduct. 

48In mitigation, I accept the submissions of your counsel and take into account in particular that:

·    you experienced a difficult childhood and developed longstanding and chronic poly-substance abuse disorder;

·    your drug use may also be connected with a continuing post-traumatic stress disorder;

·    you currently have a motivation to abstain from illicit substances;

·    you have past history of engaging well with drug and alcohol services;

·    your youthful age and the weight that should be given to rehabilitation;

·    your previous compliance with a community correction order; and

·    the harder conditions that you have experience whilst in remand custody, including periods of ‘lockdown’.

49Ordinarily an offender in these circumstances should expect a sentence to an immediate term of imprisonment and for a significant period.  I note however that you have already served a period of almost 16 months in remand custody for this offending, and that period can be taken into consideration as time served on any sentence imposed.  It can also be taken into account in combination with a community correction order should that disposition be appropriate.

50Balancing all the circumstances, I have concluded that the public is best served by giving support and encouragement to your own attempts to manage your drug problem.  At the same time I have to give appropriate expression to the principle of general deterrence, which means to make an example by this sentence in order to deter other like-minded individuals.  Specific deterrence also remains because of your past offending, in particular having previously committed the offence of armed robbery.  On sentencing for that occasion, Judge Punshon of this court gave emphasis to your youth and rehabilitative progress at the time.  There are disturbing parallels with the circumstances of that offending and the current circumstances.  On that occasion also you threatened a young victim with a knife as you robbed him.

51You have been assessed as suitable for a community correction order.

52I note that pursuant to sub-s.16(3C) of the Sentencing Act, since these offences were committed whilst you were on bail, the term of imprisonment I impose on Charge 2 must, unless I otherwise direct, be served cumulatively on the term of imprisonment I impose on Charge 1.  I note that the Crown did not call for total cumulation, and allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation other than that which I have ordered.

53Mr Toth, could you now please stand?

54On Charge 1 of armed robbery, you are convicted and sentenced to 16 months' imprisonment. 

55On Charge 2 of armed robbery, you are convicted and sentenced to 12 months' imprisonment. 

56Charge 1 is the base sentence.

57I direct that two months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1. 

58The total effective sentence is 18 months' imprisonment. 

59The sentence starts today.

60Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 483 days, not including today, be reckoned as time served already under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

61On Charges 1 and 2 of armed robbery, you are also ordered to serve a community correction order for a period of two years. 

62The community correction order commences immediately upon your release from prison and ends two years from that date. 

63The Corrections Centre you will attend is the Dandenong Community Correctional Service at 46-50 Walker Street, Dandenong, and you must attend there within two clear working days after the completion of your imprisonment term.

64All the mandatory terms of a community correction order apply, and the additional conditions I impose are that:

·    you be under the supervision of a community correction officer;

·    you undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager;

·    you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;

·    you undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric, in a hospital or residential facility if necessary, as directed by the regional manager; and

·    you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager.

65I have not ordered any unpaid work condition on the basis that you have already served a considerable period of your punishment in actual custody, and I do not want anything to interfere with what prospects you may have for obtaining paid full-time employment, which you really should try and pursue as much as possible for yourself.

66I believe from the pre-sentence report that you have had the mandatory terms of the correction order explained to you, though it is appropriate that I briefly summarise them here.

67The mandatory terms are that:

·    you must not commit another offence for which you could be imprisoned during the time that the order is in force;

· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially sets out your obligations as to your attendance at the community corrections centre - such things as not attending drug-affected or alcohol-affected;

·    you must report to and receive visits from a community corrections officer;

·    you must report to the community corrections centre, that is the Dandenong centre, within two clear working days of the order starting, and as I already indicated, this order commences immediately upon your release from prison;

·    you must notify a community corrections officer of any change of address or employment within two clear working days after the change;

·    you must not leave Victoria without getting permission to do from a community corrections officer; and

·    you must obey all lawful instructions from, and directions of, community corrections officers, and such directions may be given either orally or in writing.

68Now, do you understand and agree to all those conditions, Mr Toth?

69OFFENDER:  Yes:

70HIS HONOUR:  If you are ill or if there are exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of that order.  In either case you must notify the Dandenong Corrections Centre, and I would recommend that you obtain legal advice if any of these things happen.

71However, I must warn you that if you breach any condition of this order you will be brought back to court, and that will be back before me.  One of the options open to me is to cancel the community correction order and resentence you on the original charges.  And I may also deal with you for the breach by sending you to prison for up to three months.

72So Mr Toth, do you understand the consequences of breaching your community correction order?

73OFFENDER:  Yes.

74HIS HONOUR:  All right, I will ask you to sign the correction order shortly. 

75At the plea hearing, the Crown sort a compensation order for the payment of the sum of $30 to Mr Jesse Scanlan, which you did not oppose, and I have made that order today.

76Are there any other matters from either counsel?

77MS FALLAR:  No, Your Honour.

78MS CLARK:  I do not believe so, Your Honour.

79HIS HONOUR:  Thank you.  The order can now be passed, please, to Ms Clark to pass to Mr Toth.  Mr Toth, I have signed that order. 

80I just want to mention one further thing.  You are going to be vulnerable, because of your background, to drift back into drug use if you are not incredibly vigilant about complying with the opportunities you get through this order.  It is seen as a punishment in one sense, but really it is directed fundamentally to assist you to help yourself.  And it is not going to be easy. But the main thing is, if you feel vulnerable at any stage just get in touch with the people, even though you might not have a formal appointment with them.  Just get there.  If you need residential treatment, insist on it.  If it gets to you like that, you have got to demand the services that you are entitled to.  So make them work for you.  If you do that, you are going to have a better chance of getting through this period of two years.  If you can do that following the period you have currently done with your self-detoxification in the time that you have been in prison, you might be able to turn these things around.  Otherwise, it is a very slippery slope.  All right, good luck.

81OFFENDER:  Thank you.

82MS CLARK:  If Your Honour pleases.

83HIS HONOUR:  Thank you both for your assistance.

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