Director of Public Prosecutions v Van Nooten

[2023] VCC 2268

5 5ecol

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00136

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON VAN NOOTEN

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JUDGE:	HER HONOUR JUDGE ELLIS
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2023, 28 November 2023
DATE OF SENTENCE:	5 December 2023
CASE MAY BE CITED AS:	DPP v Van Nooten
MEDIUM NEUTRAL CITATION:	[2023] VCC 2268

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              One charge of armed robbery – plea of guilty – victim suffer injury as a direct result of offending – Limbs of Verdins

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins [2007] 16 VR 269; Worboyes v The Queen [2021] VSCA 169

Sentence:                  Community correction order for a period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Wilson	Office of Public Prosecutions
For the Offender	Mr T. Smurthwaite	Victoria Legal Aid

HER HONOUR:

1Jason Van Nooten, you have pleaded guilty to one charge of armed robbery, contrary to s 75A of the Crimes Act1958 (Vic), which carries a maximum penalty of 25 years' imprisonment.

Circumstances of Offending

2The circumstances of your offending were set out in a Summary of Prosecution Opening tendered as Exhibit 1.

3On Saturday 10 September 2022 the victim, 47 year old Martin Suchta, was standing outside the 1001 Nights Café in Mount Eliza having a cigarette.  You approached him at approximately 7.15 am and said, 'Give me a fucking cigarette'.  Mr Suchta was not somebody who was known to you.  You were wearing all black clothing, had no shoes on and you were holding a guitar underneath your arm. 

4He replied, 'If you're nice I'll give you one', which appeared to anger you.  You then produced a silver pocketknife in your right hand which is described as being 15 to 20 centimetres in length.  The pocketknife's blade was initially concealed and not drawn, but you then flicked the blade out continuing to make further demands for cigarettes. 

5You waved the knife in the victim's direction around chest level, causing him to step back to a safer distance and he asked, 'Are you serious?'  You then took the victim's cigarettes off the table.  He then moved forward in an attempt to collect his cigarettes from your hand.  In doing so, however, the victim missed your hand and instead grazed the knife by accident causing a small cut on his left hand.

6The victim then attempted to pick your guitar off the ground, but you quickly grabbed it off him and you left the scene walking across the road to a nearby Woolworths supermarket. 

7The victim returned to the 1001 Nights Café and notified a witness, John Harvey, that his cigarettes had been stolen by a man holding a knife.  Mr. Harvey then crossed the road in the direction that you had travelled and confronted you, asking 'Mate, what are you doing?'  You replied, 'They were really rude to me'.  Mr Harvey then asked you to give the cigarettes back and you did so before walking off. 

8Police were contacted and shortly thereafter you were located in a toilet block and arrested.  You were observed to be smoking a cigarette that had been stolen from the victim.  Police began looking for the knife that you had used, and this was located on the roof of Sissy clothing store, where it was seized. 

9You were taken to the Mornington Police Station where you were interviewed by police.  You made full admissions to the offending.  You told police that 'they' (presumably the victim) walked past laughing at you, looking at you and making you feel seedy.  You went up to him and asked if you could buy a cigarette, and you told police the victim said 'Yeah, can you ask nice?'.  You told police that you pulled out a fishing tool or a multi tool.  You said you felt threatened for your life.  You said you needed a cigarette to take the edge off.  You then told police that you had thrown the knife onto the roof.  You told police that you knew you were not entitled to the cigarettes, but because the victim was aggressive you helped yourself.

10You were remanded in custody to appear at a filing hearing the same day and then you were ultimately bailed to the Magistrates Court for a case conference.  You pleaded guilty at a committal case conference on 2 February this year.  You have not served any pre-sentence detention.  No victim impact statement has been filed.

Prior criminal history

11You have admitted a prior criminal history which goes back to 2005 and which largely includes Magistrates Court charges for criminal damage, theft, burglary and failing to answer bail.  You have also been charged in relation to failure to comply with a community correction order.  Mostly, your offending has resulted in either a community correction order or a fine.

Personal circumstances

12You are currently 39 years of age.  You were born in Frankston and have lived most of your life in the Frankston/Mornington Peninsula area. You identify with the aboriginal community but you are not ethnically indigenous. You spent a considerable amount of time and you were adopted by a tribe, the Noongar tribe, as set out in Ms Best's report. Your parents separated when you were an infant and you lived with your mother.  You have two sisters and a younger brother.  Despite your parents' separation you continued to have contact with your father during your childhood and this continues today.

13You have described your relationship with your mother as good and that she worked hard to support you as a child. 

14You attended school up until Year 10 and for a period you worked in the construction industry before returning to study at a technical college completing part of a Year 12 equivalent. 

15From time to time you have worked in an informal way doing gardening or maintenance work and you have supplemented your Centrelink benefits (you receive a Disability Support Pension) by busking. 

16You have a long-established diagnosis of mental illness with particular reference to schizoaffective disorder.  You have been prescribed antipsychotic medication since you were 16.  Over the years you have been admitted to psychiatric institutions as an involuntary patient a number of times.  The last admission prior to this offending was in January 2020 when you were admitted to Peninsula Hospital. 

17You have been subject to a community treatment order which has been extended twice, and the order remained in place until 29 June 2021.  At the expiry of that order you ceased to be a patient of a dedicated mental health service.  Your medication was reduced and ceased to be administered by depot injection.  You continued to take your medication up until approximately four months before the offending.  You eventually stopped taking it in circumstances where you felt that you were managing okay and you no longer needed it. 

18You have a long history of substance abuse mainly involving cannabis.  You have also had longstanding problems with accommodation throughout your life and have often slept on the streets or in tents on the Peninsula foreshore.  You now have accommodation, where you have been residing with your mother for the past three months.  After the offending you re-established contact with your doctor and obtained a prescription for appropriate medication.  You are currently taking antipsychotic medication. 

19You currently receive drug and alcohol counselling from Arrow Health and you have indicated via your counsel that you are abstinent from illicit drugs.  You have told Ms. Lieber from Arrow that staying sober is important to you and you recognise that you need support. You are happy to be back in the family home. You have also engaged with an employment agency with a view to finding paid employment. Your employment coach has noted your professionalism and enthusiasm. In the meantime you have been working for a family friend doing gardening fortnightly. Ms. Minshull describes you as an incredibly diligent worker and most considerate human being. You are said to be courteous and kind.

20Your father has prepared a character reference in which he notes that you have taken responsibility for your offending and made a concerted effort to change. The fact that you have been welcomed back into your mother's home indicates how much you have improved. You are said to be much calmer and happier which increases your resolve towards positive change.

21At the time of the offending you were homeless and you had been sleeping on the streets for a number of years.  You had not slept for several days in the lead up to the armed robbery and you consider that your offending was in some way triggered by your lack of sleep.  You were also using methamphetamine, a drug that you do not habitually take.  On this occasion you had also been drinking alcohol.  This, in conjunction with your mental health, clearly had an impact on your behaviour that day. 

22A psychiatric report has been prepared by Dr Fiona Best, with an addendum report.  She considers that you were psychotic at the time of the alleged offending and that this relapse into psychosis was triggered by illicit substances.  According to Dr Best, your ability to think clearly, rationally and exercise good judgement was impaired secondary to psychosis, this being brought about by drug use.

23Your counsel submits that the principles set out in R vVerdins are enlivened.[1] Specifically your counsel submits that your moral culpability is reduced on the basis that at the relevant time you were labouring under the difficulty of a significant mental illness.  Dr Best considers that the impact of your mental illness on your behaviour was considerable, leading her to the view that there was a causal connection between your psychotic state at the time and the offending. 

[1] R v Verdins [2007] 16 VR 269.

24It is also submitted by Mr. Smurthwaite that Limbs 3 and 4 of Verdins are enlivened and that there should be a reduction in weight given to general and specific deterrence as a consequence of the role your mental health played.

25Further, it is also submitted that you would find a term of imprisonment significantly more onerous than others given your mental health. Additionally, noting Dr Best's comments regarding the interruption that imprisonment would cause with respect to your access to treatment, it is contended that Limb 6 is also engaged. 

26The prosecution takes issue that Limbs 1, 3 and 4 of Verdins are enlivened here because:

(a)   you were using ice and consuming alcohol on the date of the offending;

(b)   your relapse into psychosis was heavily triggered by illicit substance consumption; and

(c)   it is submitted that mental impairment causally linking the offending is not mitigating if an offender knew or should have known self-induced intoxication would cause or contribute to his offending.

27The prosecution also rely on a number of matters to establish that you knew or ought to have known that self-induced intoxication would cause or contribute to your offending in this way. 

28Firstly, that methamphetamine is a well-known disinhibitor.  You were an experienced drug user at the time of the offending and it is submitted by the prosecution that you must have had insight into the effect of methamphetamine upon you, noting the comment that you made to Dr Best that you had tried methamphetamine once before, where you said 'It's a big trigger for me, I got psychotic. It's a horrible thing'.

29You reportedly dispute that you told Dr Best that you had used methamphetamine previously.

30The prosecution submits that the relapse of your pre-existing mental impairment was also contributed to by your poor adherence with treatment regimes.  Your failure to take prescribed medication and adhere to treatment has contributed to your offending.  Accordingly, it is submitted that the first limb of Verdins has little or no application to reduce your culpability. 

31Furthermore, the prosecution does not accept that Limb 6 of Verdins is enlivened, and it is submitted that there is insufficient evidence before the court could draw the conclusion that there is a serious risk that a term of imprisonment would have a significant adverse effect on your mental health. 

32I have given this careful consideration. It is very difficult to disentangle your substance use from your mental health issues. Had you remained compliant with your medication, you may not have turned to illicit substances. It was the substance use that appears to have triggered your psychosis and therefore your behaviour. I also accept the prosecution's submission that you must have had some knowledge that failing to adhere to your medication might result in a relapse of your mental health concerns. Drug use too would have played a role in this, and generally speaking, I am satisfied that you would have known the link between your drug use and the impact of this on your mental health, although whether you had specifically had an experience of how methamphetamine interacts is not something I can necessarily conclude with certainty.

33Your counsel makes the concession that the application of Verdins here is clouded and potentially diluted by the involvement of drugs, but Mr. Smurthwaite submits that the extent to which you could have foreseen your behaviour and delusional conduct as a result of the ingestion of drugs, is not something that is easy to unpack. I do not disagree with that submission.

34I am prepared to find that as a result of your mental illness there is a basis upon which your moral culpability can be moderated, however, I do so in a very limited sense given the significant role that your alcohol and drug use played. You must have understood that using drugs may have a deleterious effect on your mental health and give rise to anti-social behaviour. Notwithstanding this, you do not have a history of violence or violent behaviour, and as your counsel submits, this is the prism through which I view your decision to use drugs in the context of you having ceased your medication. To this end I accept that Limbs 3 and 4 of Verdins are enlivened, but again, I give this limited weight.

35I accept that as a consequence of your mental health you may find imprisonment more burdensome than others. You may struggle with prison routines and be vulnerable to co-prisoners, according to Dr Best. I also accept that there is a significant risk that your condition may deteriorate as there is the potential for you to cease anti-psychotic medication in custody and this would be detrimental to your mental health. Again, however, this is largely speculative and I give it limited weight.

Nature and gravity of the offending

36The offence of armed robbery is an inherently serious offence, as is reflected by the applicable maximum penalty.

37The victim in this matter was an unsuspecting person going about their morning.  You produced a silver pocketknife which you waved around in the commission of the offence. 

38The prosecution accepts that the offending here was unsophisticated and lacks the hallmarks of more serious examples of armed robbery that come before the courts.  There is no evidence of premeditation.  The offending was of relatively short duration and it appears that your conduct was largely opportunistic.  As such, I consider the offending to be at the lower end.

39The basic purposes for which a court may impose sentence include general and specific deterrence, denunciation, just punishment and protection of the community, as well as your rehabilitation.   I must have regard to a range of factors including the seriousness of the offending, your culpability, and your personal circumstances. I have taken these matters into account.

40I am required to balance the interests of the community in denouncing criminal conduct, with the interests of the community in seeking to ensure that, as far as possible you are rehabilitated. As to general deterrence, members of the community must understand that robbing another member of the public of their property whilst armed will not be tolerated. 

Plea of guilty

41You entered a plea of guilty at the earliest opportunity. You have accepted responsibility for your conduct and this is consistent with your co-operation with police. Your plea is of a considerable utilitarian value.  You have spared the community the expense of a trial, and further, your plea demonstrates a willingness to facilitate the course of justice. In pleading guilty you have also eschewed a possible mental impairment defence.  Your plea is also some evidence of remorse.

42In the context of Covid 19 and the backlog associated with the pandemic, pleas of guilty have attracted an appreciable discount in sentence in accordance with Worboyes v The Queen. [2] Whilst that backlog has now been reduced to a pre-Covid standard, your decision to plead guilty should be considered in light of that backlog. You entered a plea of guilty this year in February, prior to the court undertaking an assessment of the backlog in trials. By pleading guilty you have ensured a reduction in trial work and accordingly I propose taking into account that your plea of guilty occurred shortly after the pandemic.

[2] [2021] VSCA 169.

Prospects of rehabilitation

43Having regard to your limited prior criminal history (indeed you do not have priors for similar violent offences), your cooperation with police, your early plea of guilty, the demonstration of insight into your offending and the impact that your drug use has upon your offending, as well as your concerted efforts at rehabilitation, I consider that you have good prospects of rehabilitation.  However, this will be contingent upon your preparedness to accept supports and engage in appropriate treatment.  You are fortunate to have the support of your family. Having said that, Corrections have assessed you as a high risk of re-offending.

Submissions

44Given that Mr. Suchta received a small cut to his hand when attempting to retrieve his cigarettes, the prosecution submits that the armed robbery here falls within a Category 2 offence pursuant to s 3(1) of the Sentencing Act1991. Where a victim has suffered an injury as a direct result of the offending, this requires the court to impose a custodial sentence unless an exception under s 5(2H) of the Sentencing Act applies.

45I do not consider the armed robbery in this case falls within a Category 2 offence. The victim sustained a small cut after you had already taken the cigarettes and during his own efforts to retrieve them. At the time the armed robbery had already been completed. Accordingly, I do not consider that he sustained an injury (if a small cut can be described as an 'injury' is questionable) and I do not consider that he sustained this as a direct result of the offending.

46Your counsel submits that a community correction order on its own is open, having regard to the nature and circumstances of the offending and your lack of prior criminal history, coupled with your early plea of guilty. Mr. Smurthwaite submits this would adequately achieve the purposes of sentencing, noting the principles of parsimony.

47Mr. Wilson for the prosecution submits that a combination sentence is open here, but that some period of imprisonment is warranted having regard to the seriousness of the offence of armed robbery.

48I have had you assessed for a community correction order. You have been assessed as suitable. I have also received a Mental Health Advice and Response Service report which reflects your mental health history and inpatient admissions.

49The starting point is that the law says that a court must always regard imprisonment as a disposition of last resort and may consider, even in cases of serious offences, that a community correction order is a punitive disposition which is capable of addressing all relevant sentencing considerations. I have concluded that this is the case here having regard to the circumstances of your offending, your significant mental health issues (albeit that your drug use played a role in the offending), your co-operation, and in particular the significant steps you have taken to your own rehabilitation. The fact that you are seeking support and working a number of days per week suggests that you have some insight into your offending and a desire to bring about change. To sentence you to a gaol term would be counterproductive and potentially have a deleterious effect on your rehabilitation.

Sentence

50Can you stand up please, Mr Van Nooten.

51On the charge of armed robbery, you are convicted and sentenced a community correction order. The duration of the order will be 18 months, commencing immediately.

52There will be a number of conditions attached to the order:

·You will be under the supervision of Corrections for a period of 18 months.

·You must undergo treatment and rehabilitation for drug and alcohol use.

·You must undergo treatment and rehabilitation with respect to your mental health.

·You must undergo treatment and rehabilitation to address your risk of re‑offending.

·You must undertake 80 hours of unpaid community work. Your treatment and rehabilitation hours can contribute to the full amount of the unpaid community work.

53There are also a number of core conditions attached to any community correction order.

·You must not commit any other offence that is punishable by imprisonment during the 18-month period.

·You must comply with any and all obligations and requirements prescribed.

·You must report to and receive visits from Corrections during the period of the order.

·You must report to the nearest Community Correction centre, which I believe is in Cranbourne, within two clear working days from today.

·You must let a Community Correction officer know within two working days of a change of address or employment.

·You must not leave Victoria without first getting permission.

·And you must obey all lawful instructions and directions from Corrections.

54In a moment you are going to be asked to sign a document to indicate that you understand the conditions of the community correction order and that you agree to abide by those conditions.

55As I have said, you must comply with all of the conditions of the order. If you do not do so, you will likely find yourself back before this court on a breach of the community correction order.  If that is the case, I would need to resentence you for this offending.  I may not sentence you to a further community correction order, you may be looking at a term of imprisonment.  You have narrowly avoided gaol today.  It is also likely that there would need to be a penalty for the breach itself.

Section 6AAA

56Pursuant to s6AAA of the Sentencing Act, I indicate that but for your plea of guilty, I would have sentenced you to six months' imprisonment with a community correction order to follow.

Forfeiture

57I make the order for forfeiture of the multi-pocket tool, which I understand is by consent.

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