Director of Public Prosecutions v Walker
[2023] VCC 1314
•31 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
KOORI COURT DIVISION
CR 22-01447
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEWART WALKER |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 July 2023 |
DATE OF SENTENCE: | 31 July 2023 |
CASE MAY BE CITED AS: | DPP v Walker |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1314 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Koori Court Jurisdiction – Armed robbery – Plea of guilty -
Cases Cited: Bugmy v The Queen 249 CLR 571; R v Verdins (2007) 16 VR 269
Sentence:Total effective sentence of 584 days’ imprisonment in combination with an 18-month Community Corrections Order
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APPEARANCES: | Counsel | Solicitors | |
| For the Director of Public Prosecutions | Ms S. Pillai |
| |
For the Offender | Ms J. Clark | Greg Thomas Barristers and Solicitors |
1Stewart Walker, you have pleaded guilty before me in the Koori Court to a charge of armed robbery. The maximum penalty for armed robbery is 25 years' imprisonment.
2You have admitted relevant prior convictions from the Queensland jurisdiction.
Personal Circumstances
3The circumstances of your offending are set out in the Summary of Prosecution Opening, which was Exhibit A on the plea, and forms part of these reasons for sentence.
4Having grown up and lived predominantly in Queensland, you found yourself living in Bairnsdale which seems to have come about from some family connection between you and your co-offender's mother. It is vague on the materials before me but as best I can determine, you and your co-offender, Mr Thomas, knew each other for about three weeks, first in Bairnsdale and then on the streets of Collingwood and Richmond after drifting to Melbourne. I also note that you have a sister living in Bairnsdale.
5You were leading an existence dominated by alcohol and substance use and these factors drove the very serious offending before me. You were 24 at the time of the armed robbery. You were in company. You had come into possession of an imitation firearm. You and your co-accused, Thomas, had been in the Richmond area in the lead-up to the offending.
6Thomas stayed with a vehicle to act as a getaway driver whilst you entered the Coles Express store in Hoddle Street Richmond armed with the imitation firearm. You went straight to the counter, pointed the gun at the victim and said 'Give me all the cash, give me all the cash'. Your victim removed the tray from the cash register and placed it on the counter. He removed all the notes and passed them to you – it was approximately $150-$200.
7You took the notes with one hand whilst still pointing the gun at your victim. You then demanded cigarette boxes. You were given approximately 20 cigarette boxes in a plastic bag. You then demanded thirty packs - which are packs containing 30 cigarettes, as I understand it – 30 packs of cigarettes and you were given approximately 30 of those. You then ran out of the store. The robbery took approximately one minute.
8You were arrested two-and-a-half weeks later on 13 January in Collingwood. You have been in custody 564 days – I will be corrected if that is wrong - on remand for this matter. A substantial part of that period has been through the highest restrictions in custody in place during the pandemic. You have also been in custody in circumstances where your home and family are in Queensland. You have been placed in an Aboriginal and Torres Strait Islander unit.
Personal circumstances
9You are a proud Mununjali and Bundjalung man, born to Aboriginal parents in 1997. You are now 25.
10Your mother is from Keitha in Queensland and presently lives in Cairns. Your father is from New South Wales and I am told he has cultural and language expertise. You have four sisters and five brothers. You moved around a lot in childhood through various states, New South Wales, Queensland and the Northern Territory.
11Your mother has reported that your father was a very strict parent and failed to bond with his sons. He evicted you from the family home after an argument. You were also exposed to family violence in the home.
12You left school at 16 and have been transient since then, living on the streets essentially. You had a brief stint working at a café in Doomben, and seasonal work picking fruit.
13Alcohol and illicit substance use - cannabis, heroin and methylamphetamine - have been major problems for you. Mental health and cognitive functioning are also of major concern.
14Two reports were relied upon as to your cognitive functioning and mental health. Exhibit 1C is a neuropsychological report by Dr Rachel O'Meara, who assessed your full-scale IQ as 77 – in the borderline range. Performance on tests of new learning and memory consistently fell below most age matched peers on her assessment. She assessed variable performance on tests of executive functioning. You were inconsistent in reporting behavioural issues and Dr O'Meara noted bizarre behaviours during the consultation that she considered to be reflective of an unstable mental state. Dr O'Meara said the suggested diagnosis of schizophrenia would be consistent with aspects of your presentation during the assessment and may account for some of the cognitive deficits apparent on testing.
Mental Health
15Exhibit 1D is a psychological report by Ms Gina Cidoni.
16Ms Cidoni noted that you reported previous diagnoses of bipolar disorder and schizophrenia. At the time of consultation you were taking Olanzapine which, she was told, was started about seven months prior to her consultation. You told her you were treated with Haloperidol about four years ago. You were untreated at the time of the offence.
17Ms Cidoni conducted testing in relation to mental health and reported the testing indicated symptoms of trauma, major depressive episodes and high anxiety. Ms Cidoni also stated 'there are signs of psychosis that may be linked to substance use'.[1]
[1]Page 4 and page 5 of Report of Gina Cidoni
18Dr O'Meara discusses your psychiatric history in her report. She noted that it appears you have given differing accounts of symptoms and previous diagnoses. She noted medical records confirm hospitalization after a suicide attempt. Dr O'Meara provided a summary in relation to your mental health on p15, the opinions of which I accept, stating your presentation during the initial assessment raised serious concerns regarding your mental health status, and particularly the possibility of an underlying psychosis.
19She went on to say that she had made contact with your mother and sister, both of whom reported that you and your brother had numerous psychiatric admissions over the past four years due to a queried diagnosis of schizophrenia.
20Dr O'Meara writes:
‘Symptoms characteristic of his psychotic episodes as described by his family members were similar to those observed during the initial assessment session, e.g. laughing to himself. Given that he had been incarcerated for approximately one year at the time of the initial assessment session, such symptoms could not be attributed to the acute effects of substance use or withdrawal and therefore are considered most likely to reflect an underlying psychiatric illness with psychotic feature.’[2]
[2]Page 16 of the report of Dr O’Meara
21You took part in the Sentencing Conversation that lies at the heart of the Koori Court process.
22The concerns raised by Dr O'Meara and Ms Cidoni regarding underlying psychiatric illness with psychotic feature were shared by the Elders and Respected Persons during your sentencing conversation.
23I am satisfied that you did your best to engage during the Sentencing Conversation but there were some bizarre behaviors and unusual presentation from you which gave rise to real concerns as to your psychiatric state. Accordingly, I ordered a psychiatric pre-sentence report during the adjournment.
24An appointment was made with Dr Andrew Carroll of Forensicare who attended onsite at Ravenhall.
25You attended the interview but declined consent to proceed with the process. You further declined consent for Dr Carroll to access your J-Care files.
26Dr Carroll spent approximately 20 minutes with you, explaining the rationale and the process, however, you firmly but politely declined the assessment. Accordingly, no Forensicare pre-sentence report is available.
27During the sentencing conversation you expressed that you had been engaging in ice and heroin use in the past. You said that you lost yourself, you wanted to move back home when your sentence was complete. You were very quietly spoken, and as I say, I accept you did your best to engage, but the sentencing conversation was not as complete and thorough as it often can be due to those concerns as to your psychiatric and psychological functioning.
28I also ordered an extended pre-sentence CCO assessment. I received that report and discussed its recommendations with your counsel at the further plea.
29The main concern regarding the sentencing outcome in your case centred on what supports and living arrangements could be accessed by you after release on either parole or a community corrections order.
30A further concern in your case is the distinct possibility, given your functioning, of you serving an entire head sentence if a head sentence and non-parole period were imposed.
31The CCO assessment referred to enquiries made by Leigh Booth from Nexus on your behalf of your sister who resides at Bairnsdale. The extended assessment raised its own concerns in relation to your supports in the community, in this jurisdiction, and I will refer to the report at p5 under the heading 'Homelessness'.
‘Mr Walker reported he will be homeless upon his release from custody. He reported that prior to arriving in Victoria he would move between New South Wales, Queensland and the Northern Territory. Mr Walker reported that upon his release from custody he will be supported with crisis accommodation and case management by the Bridge Centre.
Mr Walker disclosed that prior to his remand he was sleeping rough, begging for money and asking strangers for food. He reported that he came to Melbourne for a visit to see the space, reporting that he had no ties to the jurisdiction, no mobile phone, nor any emergency contact in Victoria.
When the writer queried whether Mr Walker had any family in Victoria, noting the collateral matters provided by the court indicated the sister resided in Bairnsdale, he reported that he was unsure if she was still there. The writer enquired whether it would be possible for Mr Walker to reside with his sister, noting the importance of family support upon release from custody, however, he advised the writer that it was his intention to stay in Melbourne CBD and not return to his sister's accommodation’.
32There was then further contact with the Bridge Centre and Mr Booth indicated that he had been in touch with your sister who resides in Hoddinott Street, East Bairnsdale, and she was willing to have you reside with her. Mr Booth also advised via that extended CCO report that upon your release on a CCO, if that were to take place, he would take you directly to Bairnsdale to reside with your sister who he had been in contact with and who was supportive of you residing with her.
33I have mentioned the second letter of support from Nexus, the first was Exhibit 1F. There has been an updated one, 28 July, received today, which I have made Exhibit 1G which re-affirms the Nexus support and the support being on a voluntary basis, but ongoing support can be provided and case management. In particularly, the final paragraph reads:
'If Mr Walker is released on July 31st, a Nexus worker will be at the prison to transport him to a hotel for the night. This hotel would be fully funded by the Nexus program. The following morning a Nexus worker would then drive Mr Walker to Bairnsdale where his sister, Patricia Walker, has offered for him to live with her. A Nexus worker would then make periodic visits to see Mr Walker over the next three months to provide support.'
34At the further plea I also made enquiries as to whether a CCO could be supported and supervised, if you were residing at Bairnsdale, and I was advised that it could.
35I accept the contents of the Nexus letter which confirms a solid plan for housing, at least, and a basis for supervision and access to rehabilitative programs via Corrections at that location.
Other factors in Mitigation
Plea of Guilty
36Other factors in mitigation; I accept, of course, your plea of guilty, there is a significant utilitarian value given the current state of lists in relation to your plea of guilty. It is not at the earliest opportunity, but you are entitled to a discount nonetheless.
37The application of R v Verdins in relation to hardship in custody has support in the evidence in Dr O'Meara's report.[3] The prosecution also do not take issue with the application to some degree of that principle as it relates to hardship and experience in custody.
[3]R v Verdins (2007) 16 VR 269
38In relation to Bugmy v The Queen, I am not satisfied on what is before me that there is a sufficient basis for full engagement of that principle.[4] I do take into account your transient and difficult upbringing and exposure to family violence. More significant in your case seems to be the psychiatric and psychological functioning, your transient background and the vulnerability to substance use.
[4]Bugmy v The Queen 249 CLR 571
39This is your longest period in custody by some way and I have had regard to that fact. I also take into account your participation in Koori Court.
Prosecution submission on sentence
40The prosecution, quite correctly, submitted on sentence that it is a serious example of the offence of armed robbery with a firearm being pointed at the victim. It is an imitation firearm but that is cold comfort to the victim at the time.
41The maximum penalty of 25 years' imprisonment is reflective of the seriousness with which Parliament and the community view offences of armed robbery. General deterrence is a very significant factor, as is denunciation.
42The prosecution submitted that I should be guarded as to your prospects of rehabilitation. I am inclined to agree, I am less than optimistic as to your prospects.
43However, having regard to all of the sentencing factors that I must have regard to, including general deterrence and denunciation, I have come to the view that releasing you on a CCO, having served some 18 months in custody, is the best way of serving those sentencing principles whilst at the same time providing a pathway towards rehabilitation.
Sentence
44I sentence you as follows, Mr Walker:
45For the charge of armed robbery, you are sentenced to 564 days' imprisonment in combination with an 18 month community corrections order.
46I declare pursuant to s18 of the Sentencing Act that you have served 564 days in custody, which I note is a little over 18 months.
47Conditions of the CCO are that you are subject to supervision, drug and alcohol assessment and treatment and mental health assessment and treatment.
48My understanding is that you will reside at Bairnsdale with your sister, and as I have indicated, I understand that Mr Booth from Nexus or another Nexus worker, will provide support for you for that to take place and that that is where you will be reporting on your CCO.
49Were it not for your plea of guilty, I would have sentenced you to a total effective sentence of four-and-a-half years' imprisonment with a non-parole period of three years.
50There are no disposal orders in Mr Walker's case, is there?
51MS PILLAI: No, Your Honour.
52HIS HONOUR: All right, they're the only matters. Anything else?
53MS PILLAI: No, Your Honour. As Your Honour pleases.
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