Director of Public Prosecutions v Townsend

[2014] VCC 500

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-01985

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRANDON TOWNSEND

-    -    -

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2014
DATE OF SENTENCE:	3 April 2014
CASE MAY BE CITED AS:	DPP v Townsend
MEDIUM NEUTRAL CITATION:	[2014] VCC 500

REASONS FOR SENTENCE
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Subject: Criminal Law - sentence          

Catchwords:   Attempted armed robbery x 1; theft x 1. Use of knife to threaten shop assistant; pleaded guilty; remorse; young offender; limited criminal history; dysfunctional childhood, no family support, homeless, suffering multiple mental health conditions with several recent hospital admissions; Verdins principles apply      

Cases Cited: R v Verdins [2007] VSCA 102

Sentence:18 months, non-parole period 10 months         

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Jones	OPP
For the Accused	Mr A McLennan	VLA

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HER HONOUR: 

1Brandon Townsend, you have pleaded guilty to one charge of attempted armed robbery and one charge of theft, which occurred in Bendigo on 11 August 2013. 

2

You were homeless and without any money and you went to the

24-hour store in Williamson Street and asked for a packet of cigarettes.  When the attendant scanned the packet, you told her you had forgotten your wallet and would be back.  About five minutes later you walked back into the store and dashed behind the counter, holding a knife, yelling at the attendant to "Give me the fucking money."  The attendant, a 20 year old female, fell to the floor, no doubt in fear, and you continued to berate her, demanding that she open the till as you were unable to do so.  You had stolen the knife that day from a supermarket intending to use it as you did.  The owner of the store heard the assistant scream and ran from the rear of the premises.  He saw you standing over her with the knife and ran at you with a broom.  He pushed you away and you fled. 

3The attendant has provided a victim impact statement in which she describes the trauma she suffered as a result of your attack upon her.  Even though she was not harmed physically, she has experienced great anxiety, fear of unknown men, nightmares and the inability to focus on her schoolwork.  Instead of concentrating on her Year 12 work, she had to attend appointments to deal with stress and had to forego extra shifts at work upon which she was depending to earn money.

4I understand that you have been made aware of these details and you very much regret what you did.  It seems that you have some empathy with her suffering, and that level of remorse indicates that you have some capacity for rehabilitation, at least insofar as potential harm to victims is concerned.

5You were arrested within half an hour of the offence and were interviewed by the police.  You made admissions and showed the police where you had discarded the knife.  You were remanded in custody, where you have remained now for 235 days. 

6On the day of the offending you had been evicted from the caravan park where you had been living because you had fallen behind in your rent, as I understand it.  You were aged 20 at the time, and you will turn 21 next month.  You are a young man with no family support, your parents having separated when you were three years old and your mother having ejected you from home when you were 16.  You have had no contact with your father and it seems that you suffered violence at his hands before he left the home.  Your education was disrupted and you have been unable to provide any details other than that you were expelled a number of times. 

7At the age of 11, you were referred to the Royal Children's Hospital regarding a diagnosis of attention deficit hyperactivity disorder and later to the Child and Adolescent Mental Health Service in Kyneton.  Since then, you have been diagnosed with a range of mental illnesses or conditions, including paranoid schizophrenia, bipolar affective disorder, schizo affective disorder, antisocial personality disorder and substance dependence.

8You have had extensive treatment for these conditions with hospital admissions and been subject to community treatment orders from time to time.  Just before you committed these offences, you had been admitted to the psychiatric ward of Bendigo Hospital during the months of May and July because you were failing to comply with your prescribed medication regime.  Around that time you had been living on the streets and in temporary accommodation such as the caravan park.

9On 8 August you stole alcohol from a supermarket and the following day you were alleged to have committed offences at the Myer store, which led you to be charged with attempted armed robbery.  I understand that that charge, or those charges, have been substituted with a charge of aggravated burglary and you have a further hearing date at the Magistrates' Court in respect of it. 

10That night you went to Bendigo Hospital complaining of "increased perceptual disturbance."  The following day you committed the offences for which I am sentencing you now. 

11Mr McLennan, your counsel, has submitted that you were in very desperate circumstances, and I accept that that was so.  You pleaded guilty at an early stage and you are entitled to a discount on your sentence because your plea has avoided the need for a trial and the case has come before the court quite quickly.  It is also an indication of your remorse, which you have also expressed in other ways, and that is an important factor to be taken into account. 

12Also relevant to your prospects for rehabilitation is the fact that you have a very limited criminal history: a court appearance in July last year for a shop theft and possessing a dangerous article.  Those matters were adjourned, without conviction, to enable you to continue psychiatric treatment.  You have not been to prison before this present period of remand. 

13A forensic psychologist, Dr Gee, saw you recently with a view to assessing, amongst other things, the mental health issues you were suffering at the time of the offending and your prospects for rehabilitation.  He had access to a large amount of material, including your hospital files and psychiatric reports.  His opinion was that your impaired mental health functioning "gives rise to several of the Verdins' effects, namely, limiting his ability to make reasoned and ordered judgments, disinhibiting his behaviour and impairing his ability to think clearly and make rational choices, all of which seemingly contribute causally to the commission of the offences."

14Dr Gee concluded that your moral culpability was reduced by reason of your state of health and, in addition, imprisonment would not provide you with necessary treatment, particularly given his view that your mental health is likely to deteriorate without such treatment.  Furthermore, he considered you would likely be exposed to exploitation whilst in prison. 

15Clearly, because of your circumstances, you are not an appropriate vehicle for general deterrence, and it follows that your sentence should be sensibly moderated.  I note that for theft, the maximum penalty is ten years' imprisonment, and for attempted armed robbery, 20 years. 

16There is also very little room for specific deterrence to be a significant principle, because of your state of health and pressing need for treatment and assistance in a broader sense.  I say this because I understand that you prefer to focus on being able to achieve a stable lifestyle with reliable accommodation and a job rather than treatment.  Be that as it may, it is important that once you have completed your sentence and are released into the community, provision is made for assistance with all aspects of your needs, which are considerable. 

17You are a very young man, and therefore your prospects for rehabilitation are regarded as of great importance.  You can be assisted to achieve a properly functioning life, free of crime, in which you can be a contributing member of society instead of someone from whom the community needs protection.

18Would you stand, please, Mr Townsend.

19For Charge 1, theft, I sentence you to a term of imprisonment of six months.

20For Charge 2, attempted armed robbery, 18 months.

21Both sentences are to be served concurrently. 

22I order that you serve ten months before being eligible for parole.

23

You have been in custody for nearly eight months and that

pre-sentence detention of 235 days is to be reckoned as already served, and I shall cause that to be noted on the court record. 

24It means that you will be eligible for parole in about two months' time.

25The parole period will allow an opportunity for you to be assisted with your release back into the community and for assistance with life skills and continuing treatment for your medical health difficulties.

26The prosecution seeks an order for the disposal of a number of items.  You have consented to that through your counsel, and I make that order.

27The prosecution has also applied for an order for a forensic sample of saliva to be obtained from you, and you have also consented to that, and I make that order. 

28I must advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.

29Under s.6AAA of the Sentencing Act, if you had pleaded not guilty to these charges, I would have sentenced you to two years' imprisonment with a non-parole period of 15 months.

30Mr Jones, is there anything I have neglected?

31MR JONES:  There is only the forfeiture order, Your Honour.

32HER HONOUR:  I have done those.

33MR JONES:  No, nothing else, Your Honour.

34HER HONOUR:  Anything else, Mr McLennan?

35MR McLENNAN:  Nothing further, Your Honour.

36HER HONOUR:  All right, thank you.  That completes the matter.  Thank you for your assistance.

37MR McLENNAN:  If Your Honour pleases.

38HER HONOUR:  Mr Townsend can be taken now, thank you, officer.

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