Director of Public Prosecutions v Toth, Jade Anthony
[2013] VCC 149
•22 February 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 12-01752
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JADE ANTHONY TOTH |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9, 12 December 2012 and 19 February 2013 | |
DATE OF SENTENCE: | 22 February 2013 | |
CASE MAY BE CITED AS: | DPP v Toth, Jade Anthony | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 149 | |
REASONS FOR SENTENCE
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Subject: Armed Robbery and Possession of Cannabis
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Community Corrections Order and fine.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobbic | OPP |
| For the Accused | Ms C. Woodward | VLA |
HIS HONOUR:
1 Jade Anthony Toth you have pleaded guilty to one charge of armed robbery and one charge of possessing a Drug of Dependence, namely Cannabis L.
2 The prosecutor opened the circumstances of the offending. In short, on Wednesday 13 June 2012 at about 3.20pm, after pulling a scarf over your face, you approached your 16 year old victim and twice demanded his phone. He refused both demands. On the second occasion you also demanded his wallet. You then produced a knife moving it towards the victim and again demanded his phone and wallet. He handed you his phone and you ran off (Charge 1). The maximum penalty for armed robbery is 25 years imprisonment.
3 Shortly after robbing your victim you gave the phone to your fiancée, which she used over the next three days.
4 I accept that the offending was spontaneous.
5 On Friday 15 June the victim recognised you at the Fountain Gate Shopping Centre. He notified security and they reported your identity to police however you were not arrested until 29 June. The phone was located but when returned to the victim it was unusable and had to be replaced. It was valued at $800. You have agreed to pay compensation if an application is made.
6 On your arrest police located a gram of cannabis in your bedroom (Charge 2). The maximum penalty for this offence is a fine of five penalty units.
7 You made full admissions to police. Indeed you seem to have admitted more than your victim alleges. In these circumstances your counsel asked me to sentence you on the basis of your victim’s account, where it conflicts with yours, and I will do so.
8 It seems that you were carrying the knife for protection having been stabbed in past. You said you were “really stoned” at the time of the armed robbery.
9 You spent 4 days in custody before being released on bail.
10 You pleaded guilty at committal mention. This is at the earliest opportunity and you must benefit from pleading guilty.
11 A Victim Impact Statement was tendered. The victim suffered anxiety and has lost trust in others.
12 I will make the Disposal Order sought and also order that you provide a forensic sample as sought. My reasons for the latter will appear in the Order.
13 You have a criminal history however the penalties imposed on each occasion were modest. In particular I note that on 22 June you faced charges in both the Dandenong Magistrates’ Court and Dandenong Children’s Court. The former was for unlawful assault and the latter was for recklessly causing injury. The penalty was without conviction in each instance and you were required to be of good behaviour for 12 months and to continue to seek treatment for mental health problems. Both of these penalties post-date Charge 1.
14 Importantly, you are still young having turned 19 in August last year. Your father, sister and the mother of your partner supported you in court.
15 Your counsel emphasised your rehabilitative progress since being released from the 4 days in custody, which she said was salutary.
16
You were released on Supervised Bail on strict conditions. A report from your supervisor, Warren Gardiner, was tendered. Mr Gardiner also appeared in court. He is here again today. Indeed he has been here throughout the hearings as have members of your family who once again are here today.
Mr Gardiner wrote that, despite “physiological” and “mental health” hardships, you “complied exceptionally well with Youth Justice”. You spoke openly to
Mr Gardiner about your long history of drug and alcohol abuse. Whilst on Supervised Bail you were referred for drug and alcohol detoxification and counselling.
17 You told Mr Gardiner that you had been diagnosed with schizophrenia and reported ongoing visual and auditory hallucinations to him. You also told Mr Gardiner of your recurring nightmares concerning a friend who was shot and killed in your presence.
18 Mr Gardiner expressed a concern about whether you suffer cognitive impairment or whether your mental processes have been adversely affected by your long-term substance abuse.
19 The supervised bail report was very detailed and provides much information about your background and substance abuse.
20 Your mother abandoned you when you were very young and your father raised you, along with your older sister.
21 You exhibited behavioural problems from a young age. You were diagnosed with ADHD in early primary school and although you took medication for this condition for some time you ceased taking medication from about twelve because of its adverse effects.
22 You were a difficult and disruptive teenager and were expelled from school in year 8. You first left home aged 13 and by 15 you had relocated to Sydney living a dissolute lifestyle with a young girl and her family in a drug milieu. It was in this setting that your friend was shot and you returned home to Melbourne and your father.
23 You currently live with your partner and her two children one of whom, aged 2, is from a previous relationship of hers. The other child was born in March this year. You and your partner have been together for about 12 months, according to your counsel, and for nearly 2 years according to a psychological report that was tendered.
24 You began using alcohol and cannabis aged 10. You began using ecstasy and amphetamines at 13. In Sydney you used heroin and cocaine, taking the latter virtually every day. When you returned to Melbourne you continued using cannabis and also used “ice” to which you became addicted until remanded in custody. You completed a detoxification program in October last year whilst on Supervised Bail. You still use cannabis and also consume alcohol to excess.
25 You have a history of cardiac concerns and respiratory problems.
26 You are on a New Start Allowance.
27 Your counsel tendered four reports dealing with your mental state: A report from Southern Health dated 23 March 2012; two reports from Youth Support Advocacy Service (YSAS) dated 3 May 2012 and 31 October 2012 and a psychological report from Dr Aaron Cunningham dated 3 December 2012. This material was tendered on 9 December when your plea began.
28 The report from Southern Health notes that you were referred to their Recovery and Prevention of Psychosis Team (RAPP) in January 2011 after moving from Sydney where you “had been diagnosed with Schizophrenia”. The report states that you have experienced intermittent psychotic symptoms, paranoia and auditory hallucinations in the context of heavy substance abuse. Your symptoms have responded well to “abstinence and the antipsychotic Seroquel”. The report also referred to your attendance at an anger management course and notes that in March you were well engaged with the RAPP team as well as drug and alcohol services.
29 During plea submissions, on 9 December, I commented on the absence of up to date material from Southern Health and a lack of any confirmation concerning the diagnosis of Schizophrenia. The report seems unduly optimistic given your subsequent offending and admitted drug use at the time of the current offending in June last year.
30 Your counsel stated that she had been unable to obtain up to date material and this was the principal reason for your plea hearing being adjourned from 9 December until 12 December. On that date the plea was further adjourned to last Tuesday, 19 February 2013. In the interim I ordered that a pre-sentence psychiatric report be prepared by Forensicare.
31 YSAS is an accredited community service, which assists vulnerable young people with drug, alcohol and mental health problems. It has provided regular support to you since January 2011.
32 Dr Cunningham diagnosed you as suffering Post Traumatic Stress Disorder (PTSD), Substance Induced Psychotic Disorder (SIPD) and Substance Use Disorder. He reported that you attempted suicide in mid last year. You told him that you became suicidal when overwhelmed with stress. He thought you in the Low-Average range of intelligence. He thought you were in the High Risk Needs range of re-offending. To reduce this your PTSD, SIPD and Substance Use Disorder require treatment as well as maintaining accommodation, relationship and employment stability together with avoiding the negative influences of others.
33 Dr Cunningham noted that you continue to experience auditory hallucinations and paranoia and that in the context of your Substance Use Disorder, PTSD and SIPD. You present with severe symptoms of paranoia and mistrust of others. He noted that you have “several current protective factors that may reduce risk factors, stabilise you in the community and improve your psychological functioning. Adult imprisonment however would weigh more heavily on you compared to people without PTSD and SIPD. These conditions would be aggravated, said Dr Cunningham, by adult imprisonment and increase the risk of self-harm and suicide. He thought detention in a Youth Justice facility would provide more mental health, drug, alcohol and employment supports. You require psychological and psychiatric intervention.
34 On the resumption of the plea last Tuesday a number of additional documents were tendered.
35 Your counsel tendered a report from Dr Gideon Dubow of the RAPP Service, Southern Health. This report confirmed your diagnosis of Schizophrenia but could not identify a clear link between your psychotic symptoms and your offending.
36 A report dated 18 February 2013 from your social worker from Southern Health, Tammy Peterson with an attached neuropsychological report prepared in January 2012 was tendered. She confirmed your cooperation with mental health services and eagerness to accept supports.
37 Mr Gardiner also provided an addendum to his progress report noting that you have continued to “comply exceptionally well” with Youth Justice since December last year. This conclusion was qualified by Mr Gardiner’s recognition that your compliance with the GRIPP program, an anger management program, had been poor. Your unimpressive explanation was that you had too many appointments to deal with and that you do not need anger management since ceasing use of crystal methamphetamine.
38 A Forensicare report was prepared by Dr Kantinka Morton who stated that you met the criteria for Chronic paranoid schizophrenia and Post-Traumatic Stress Disorder as well as a cluster of personality traits including antisocial personality disorder.
39 Dr Morton confirmed a number of other matters including the risk of mental state decline in prison, your vulnerability to continuing drug abuse under stress and the need for psychiatric care and treatment.
40 She noted your “variable compliance” with your antipsychotic medication and with your permission had notified your treating team.
41 In the course of discussion with counsel I expressed the view that the realistic sentencing alternatives were detention in a youth facility or release on a Community Corrections Order.
42 I had you assessed for the latter and you were found to be suitable. The assessor found you at low risk of re-offending according to the test administered. Dr Cunningham found you in the High Risk Needs range of re-offending. You have no history of involvement with Community Correctional Services.
43 I also requested a report relating to your suitability for detention in a Youth Justice Centre (YJC). I was informed that the appropriate person to conduct the assessment was Mr Gardiner.
44 You were found to be suitable having met the relevant criteria. Mr Gardiner noted the following 7 factors and considered that they bode well for your rehabilitation. Those 7 factors were your minimal prior history; your family support; your compliance with supervised bail; your engagement with YSAS; your engagement with RAPPS; your acceptance of responsibility for your offending and the contribution of your negative lifestyle traits and your willingness to engage with support services. Additionally, he noted the following 4 factors concerning your impressionability and immaturity and risk of being subject to undesirable influences in prison; first you have never been in an adult custodial facility; next, your understanding is naïve and shallow rendering you vulnerable in an adult facility; next, you suffer significant mental health difficulties which require ongoing attention and treatment; and finally, your physical stature is slight.
45 All sentencing factors referred to in the Sentencing Act are relevant. As noted in discussion this includes the need for a punitive component to the penalty.
46 As I understood the prosecution initially it was submitted that you should be imprisoned for between 2 and 3 years. There may have been some confusion concerning this submission which I rejected. As I now understand the prosecution accept that detention in a youth facility for the same period is open. However, the prosecution do not accept that a Community Corrections Order is appropriate.
47 I consider that there is much in the prosecution submissions made in support of a sentence of detention. The offending is clearly serious. I am troubled by your apparent lack of insight into your offending and absence of positive evidence of remorse. However, as noted in discussion this may be explained in part by your limited intellectual functioning. As also noted you seem to lack guile. For example, your admissions in the police interview are more serious than the victim’s complaint; your explanation for not completing the anger management program is guileless and you frankly admitted to Dr Morton that you had been non-compliant with medication.
48 I am particularly conscious of the fact that the offending occurred whilst you were receiving support and in circumstances where those supporting you thought your rehabilitative progress appeared to be very good and there was optimism about your future. The explanation for your conduct seems to be connected to your impulsivity and drug use. You find it difficult to understand why you did what you did.
49 On the other hand your past history of offending is limited. You have had no previous involvement with Community Correctional Services. Your variable compliance with medication has been identified, indeed you disclosed it, and can be addressed. Although you have continued to use cannabis you have made significant progress concerning your drug use and in particular your use of methamphetamine. Your progress generally has been very considerable.
50 Mr Gardiner gave helpful evidence concerning how you might fare in detention. He noted the presence of criminal networking in youth facilities however he thought your rehabilitative drive was not at serious risk of being overridden by others particularly considering your high level of social motivation provided by your family lifestyle and commitment to your children.
51
Adequate counselling to address issues such as drug abuse and anger management can be provided in custody. Psychiatric services are stretched, as Mr Gardiner noted, but you would be given psychiatric assistance.
Mr Gardiner could not say whether this would match the level of assistance you might get in the community. Certainly your psychiatric condition and medication would be monitored. I accept that you would receive an adequate level of psychiatric assistance in custody.
52 Mr Gardiner thought supervision on youth parole would be more appropriate for you then supervision under a CCO. As I understood him he considered that greater flexibility would be shown to you on youth parole.
53 The problem with this view is that, despite my familiarity with the youth justice system, I am not able to speculate about your release on youth parole. Once I determine that you must be detained my function is limited to fixing the period of detention. Release on parole is a matter for the Youth Parole Board.
54 I am particularly conscious of your limited education and low average intellectual functioning and that you present, as put by Mr Gardiner, “with a naivety and shallowness of understanding”. This level of functioning is likely to explain, at least in part, your variable medication compliance and failure to complete the GRIPP program as well as your honest explanations for these failures.
55 I think that the risk of you breaching a Community Corrections Order is considerable. If this occurred it would be almost inevitable that you would face detention or imprisonment.
56 The prosecution referred me to the Sentencing Advisory Council’s Sentencing Snapshots for the period 2006-07 to 2010-11. The median term for imprisonment for armed robbery was 3 years. Sentences of imprisonment were least common for those aged under 20 years. Community-based orders, now replaced by Community Correction Orders, were most likely to be given to people aged under 20 (25% of people in this age group received this disposition).
57 When introducing Community Correction Orders to the Parliament the Attorney-General stated that the purpose of such orders was to allow a court greater flexibility to impose a less restrictive order than imprisonment where appropriate potentially leading to a reduction in sentences of imprisonment with advantages such as the promotion of the offender’s rehabilitation and the preservation of family and community ties.
58 Mr Gardiner strongly emphasised your commitment to your partner and children and I have already noted the attendance of other family members throughout the extended plea hearings.
59 I consider your case as finely balanced. I accept your counsel’s submission that any form of incarceration should be a penalty of last resort. I have been very troubled by your case but in the end I consider that you should be given the opportunity to continue your very considerable rehabilitative progress in the community.
60 However, I repeat, if you fail to grasp this opportunity it is almost inevitable that you will be placed in custody.
61 On the charge of armed robbery you will be convicted and released on a Community Corrections Order for 18 months.
62
The conditions will be as recommended. You are to be under supervision
[s.48E]; you are to undergo assessment and treatment for alcohol
[s.48D(3)(b)] and drugs [48D(3)(a)], mental health [48D(3)(e)] and programs to reduce re-offending [48(3)(f)]. You are to undertake 150 hours of unpaid community work [48C].
63 On the charge of possessing a drug of dependence you will be convicted and fined $150.
64 Is there anything that I have got wrong or overlooked that counsel can identify?
65 COUNSEL: No, Your Honour.
66 HIS HONOUR: You can come out of the dock and we will prepare the material.
67 I have signed the disposal order and the forensic sample order. You need to understand Mr Toth that a police officer may use reasonable force to obtain the sample and I have ordered that the sample be by way of a scraping from the mouth. I will just hand that down to counsel. If you assist Mr Toth to sign the document please Ms Woodward.
(Orders signed and acknowledged.)
68 We received the report for the assessment. I think an appointment was made for Mr Toth to attend today for induction. I am not sure if that is still available. Obviously he needs to attend within two clear working days but you might be well advised to check if that appointment is still available and the sooner he attends the better.
69 MS WOODWARD: I will discuss it with him, Your Honour, I think the appointment was yesterday but I will explain that he needs to call them today.
70 HIS HONOUR: Thanks very much.
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