Director of Public Prosecutions v Watson
[2019] VCC 1427
•4 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00802
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON WATSON |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2019 | |
DATE OF SENTENCE: | 4 September 2019 | |
CASE MAY BE CITED AS: | DPP v Watson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1427 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – armed robbery and associated summary charge of commit indictable offence whilst on bail – consideration of s5(2H), 5(2H)(c)(i) and (ii) of Sentencing Act 1991.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Johnson | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms K Rolfe | Matthew White & Associates |
HER HONOUR:
1 Cameron Watson, you have pleaded guilty before me to one charge of armed robbery and one related summary charge that was transferred pursuant to s145 of the Criminal Procedure Act 2009, being Charge 3, commit an indictable offence whilst on bail.
2 The charges are serious, and that is reflected in the maximum penalty that is prescribed by Parliament, namely 25 years’ imprisonment for armed robbery, and three months’ imprisonment or 30 penalty units in respect to the summary offence.
3 You admitted your prior criminal history. There is a prior court appearance that is of little relevance.
4 On 31 May 2006, at Sunshine Magistrates’ Court, you were dealt with for a charge of drive in a manner dangerous and without conviction your matter was adjourned to 21 December 2006. Your licence was cancelled and you were disqualified for six months effective from 31 May 2006.
5 At the time of the commission of the armed robbery you were on bail. You entered bail on 1 January 2019.
6 There are outstanding charges that are to be dealt on 14 October 2019 in the Magistrates’ Court. The charges are make threat to kill, unlawful assault and criminal damage. There are no other matters outstanding.
7 You were 33 at the time of the offending and unemployed. You are now aged 34. You were taken into custody following your arrest on 25 January 2019. You are currently being held on remand at the Ravenhall Correctional Centre.
8 I shall proceed to sentence you on the basis of the amended Summary of Prosecution Opening that was read at the plea hearing.
9 The armed robbery occurred on Tuesday 15 January 2019. You were in company with two other males when you approached the passenger side of a vehicle in which the victim, Joshua Le Broc, was seated. His vehicle had broken down earlier and he was waiting for a tow truck seated in the driver’s seat.
10 You and one of the other males were both armed with crowbars. You demanded Le Broc give you the keys to the vehicle, as well as his phone, laptop and a $20 note. He complied, passing the items out through a slightly opened window. You and the second male then repeatedly struck the roof of the vehicle with the crowbars and used them to force open the window. You demanded that the victim get out of his car.
11 The third male then approached the driver’s side of the vehicle and told you and the second male to get to the boot. You gained access to the boot taking the victim’s television. You all left in a white Toyota Corolla.
12 A number of people in the area witnessed the offending. The victim was heard calling for help, and several of the witnesses called 000.
13 Police attended the scene and the victim’s vehicle was towed for forensic examination. Latent fingerprints on the vehicle were identified as belonging to you and another person, Rhys Waho.
14 The context to the offending was that Le Broc was known to you through mutual drug associations. He was in a relationship with Stephen Francoine.
15 His vehicle had broken down in Westbury Street, St Kilda at about 10.30am earlier in the day. He left it in a parking bay on the street. Le Broc and Francoine walked to where Francoine was then staying.
16 During the afternoon, Francoine and Le Broc had an argument following which Le Broc left and returned to his car. There was an exchange of text messages during which Francoine demanded a response to his message, otherwise he said he was several seconds from sending “Cameron” to the car’s location.
17 Le Broc was seated in the front passenger seat of his vehicle waiting for a tow truck when, at about 6.57pm, Francoine approached him and then left. About 20-25 minutes later Le Broc saw a white Toyota Corolla sedan stop across the road from his vehicle.
18 Le Broc heard a noise and then saw in his rear view vision mirror a male, whom he identified as being you, banging on the windows of a similar looking burgundy Holden Commodore parked on the opposite side of the street. He was able to identify you, as he had met you once through his partner, Francoine.
19 Fearing that you were looking for him, the victim locked his doors.
20 As you went to get back in the white Toyota Corolla you noticed Le Broc’s vehicle. You then approached the passenger side of the victim’s vehicle. You kicked the door of the vehicle and hit the window with your hands. You said 'You wanna steal money do you?' The victim told you that he did not know what you were talking about. You then left in the Toyota Corolla.
21 In the meantime, the victim attempted to call police, but was advised to call 000. Unfortunately he was not able to have that call because his phone went flat.
22 It was about a further 20-25 minutes later that you returned to the area in the white Toyota Corolla, stopping directly behind the victim’s vehicle in company with two other males. You then proceeded to make threatening demands and stole the victim’s phone, laptop and money, and television in the manner earlier described.
23 On 1 January 2019, you had entered bail at the Melbourne East Police Station to appear at the Melbourne Magistrates’ Court on 24 April 2019. By committing the armed robbery, you breached your bail conditions, and that is the subject of the summary offence of commit an indictable offence whilst on bail.
24 On 29 January 2019, you were arrested near Seymour and conveyed to a police station where you were formally interviewed. During the interview, you made fulsome admissions, as particularised in paragraph 15 of the opening.
25 Stephen Francoine was charged with armed robbery and other offences, but those charges were withdrawn prior to committal. A brief was prepared in relation to Rhys Waho based on his fingerprints being located on the victim’s vehicle, however it is anticipated that a brief will not be authorised. The identity of the third male is unknown.
26 Your matter settled following a committal mention on 24 April 2019. It is accepted that you entered a plea at an early stage.
Category 2 offence
27 Armed robbery is a Category 2 offence under s3(1) of the Sentencing Act 1991, as it was committed by an adult after 28 October 2018, in circumstances where you were in company with one or more other persons.
28 Under s5 (2H) of the Sentencing Act, the court must make an order for imprisonment for a Category 2 offence unless one of the criteria under s5 (2H) (a)-(e) applies.
29 In the circumstances of your case Ms Rolfe, on your behalf, relied on the application of s5 (2H) (c) (i) and (ii).
30 The onus is therefore on you to prove, on the balance of probabilities, that at the time of the commission of the offence you had impaired mental functioning that is causally linked to the commission of the offence and substantially reduces your culpability; or you have impaired mental functioning that would result in you being subject to substantially and materially greater than the ordinary burden of risks of imprisonment.
31 Section 5(2HA) states that sub-section (2H) (c) (i) does not apply to impaired mental functioning caused solely by self-induced intoxication.
32 Section 10E (i) defines impaired mental functioning inter alia as mental illness within the definition of the Mental Health Act 2014. The definition of a mental illness within that Act is defined as a 'medical condition that is characterised by a significant disturbance of thought, mood, perception or memory'.
33 I have had regard to the submissions made in respect to your prior history and background by Ms Rolfe. She accepted that this was a case where general deterrence, denunciation and punishment looms large in the sentencing considerations. She emphasised your lack of relevant prior convictions and submitted that protection of the community and specific deterrence were not dominant sentencing considerations.
34 She outlined the context to the offending. You knew both Francoine and Le Broc, the victim. You had a grievance against the victim, whom you believed had 'ripped you off' in relation to a drug deal sometime earlier. That context was not put on the basis of minimising the crime but merely explaining your behaviour towards the victim.
35 Whilst giving context to your offending behaviour it in no way excuses your behaviour.
36 Ms Rolfe appropriately acknowledged that the armed robbery was serious and was aggravated by reason of being committed in company. She submitted, however, and I accept, that your conduct does not reflect offending at the higher end of the spectrum of this offence. You were known to the victim. You were not disguised. He was able to properly identify you. The offending lacked sophistication and it occurred in daylight. There was an absence of physical coercion.
37 Nonetheless it is serious involving as it does an armed robbery committed in company. There is a need to emphasise deterrence and the protection of the community in the sentence.
38 In sentencing you I must condemn your behaviour and impose just punishment.
39 No Victim Impact Statement was filed. However, common sense dictates that Le Broc would have been frightened by your aggressive behaviour that took place in a public place in the presence of bystanders.
40 You come from a close knit and loving family. You were well-supported in court. Your father, Andrew, together with your step-mother and brother, Jayden, were present, as well as your mother, Tracey, who had travelled from Queensland to be present to support you.
41 You were raised in the Werribee area. Your parents separated when you were about nine years of age. Your father works as a paramedic and your mother works in sales. Following separation you moved with your mother to live in Queensland and eventually, you returned to Victoria to live with your father.
42 Your father has two daughters with your step-mother and they are aged 21 and 23 respectively.
43 You are a single man with no dependants.
44 You have a long history of mental health problems and drug addiction.
45 In childhood, you were diagnosed with Attention Deficit Disorder (ADD). You have also been diagnosed with depression, bipolar mood disorder and borderline personality disorder. Your complex mental health situation has been further impacted by your drug use over the years.
46 You have had a long-term history of drug addiction. You began using cannabis from an early age at around 15 years, and then became a regular amphetamine user from age 21, and a methamphetamine user from age 27. You have also abused prescription drugs and other drugs.
47 You were diagnosed with ADD in about Grade 2 following which you were commenced on Ritalin medication under the care of a paediatrician at the Royal Children’s Hospital and continued taking that medication until high school.
48 You had few friends at school and you suffered from being bullied. You completed Year 11 at Galvin Park Secondary College. After leaving school you joined the navy for about six months but ultimately decided that it was not the career that you wanted.
49 You began moving between parental homes in Queensland and Victoria. You worked in hospitality as a chef for many years during which your drug use escalated with an associated deterioration in your mental health.
50 There is a history of self harm, suicidal ideation, multiple suicide attempts and inpatient admissions at Orygen Youth Health Services and a private hospital in Werribee. You were diagnosed with major depression and borderline personality disorder.
51 Your father Andrew’s letter to the Court set out in graphic detail the anguish and difficulties that you and your immediate family have experienced coping with your declining mental health over the past 17 years. He supports you but does not condone your behaviour which is at odds with his values.
52 Your declining mental health and associated drug use has caused him to be very upset and at times exasperated but he is now reconciled to supporting you in the future to enhance your rehabilitation prospects.
53 Notwithstanding this background you have predominantly maintained full time employment. You held various positions as a chef in both Queensland and Victoria. You have also worked in the sales/customer service area and from about 2017 you worked as an early childhood educator in an early learning centre whilst completing your Certificate 3 in that field.
54 The most recent decline in your mental health and associated drug abuse jeopardised your ability to retain that employment.
55 At the time of the armed robbery, you were living independently and were unemployed. Your last employer had advised you to take some time off to get yourself sorted just prior to the commission of the offending.
56 I have had regard to the contents of the report prepared by Carla Lechner, clinical psychologist, whose report is dated 31 July 2019. She diagnosed stimulant use disorder, bipolar mood disorder and borderline personality disorder. She suggested that you require a comprehensive approach to treatment and management that includes psychiatric, psychological and drug and alcohol counselling. She suggests making contact with Spectrum, a clinic that specialises in working with people with a diagnosis of borderline personality disorder.
57 She noted that, at the time of the offending, your mental health was declining and drug use escalating.
58 You were mentally unwell at the time and drug affected, and that adversely impacted on your ability to make good judgements. You now express appropriate victim empathy, regret and shame for your actions and you are focused upon your rehabilitation.
59 She stated that you impress as a person who is capable of consequential and reflective thinking and insight. You now take full responsibility for your actions.
60 In her addendum report, Ms Lechner confirmed that you had ceased taking your medication in the period leading up to the offences, and that you were sufficiently unwell such that you presented to the Alfred Hospital Emergency Department. The hospital discharge summary states that you were 'going off the rails' in terms of stability of your mood, and you were thinking about wanting to die. In addition to your declining mental health, you were abusing both alcohol and the drug, Ice. Thus, further impairing your capacity for rational thinking.
61 Ms Lechner considers that in respect to the burden of imprisonment, that prison has had a stabilising effect in terms of abstinence from drugs and recommencement of your medication, although the stresses of the jail environment itself are not conducive to recovery from mental health problems and may in fact ultimately undermine the gains that you have made.
62 She considers you to be more likely than those without a mental health problem to misinterpret subtle social cues, and to experience difficulty inhibiting your impulses in prison. Therefore, you may, on account of these symptoms of your mental health issues, find yourself caught up in situations that are not in your best interest. This, in turn, may increase feelings of anxiety and poor self-worth.
63 Indeed, it was reported through your counsel, Ms Rolfe, that there had been two incidents whilst you were in jail whereby you suffered physical assaults from other prisoners.
64 Ms Lechner considered that you had stabilised in prison in terms of your mental health but, in light of your mental health issues, she stated you function best in an environment that minimises stress, and that prison was not an ideal environment for you to fully recover and rehabilitate. She stated that, in prison, there was little scope for one on one counselling support to assist you in developing more adaptive mood and stress management strategies.
65 You are now expressing a willingness to be open to such treatment in the understanding that you now accept that you have a permanent mental illness. Prison would therefore have a potentially adverse effect on your mental health, in her opinion.
66 Your mental health condition is currently controlled with medication, Sodium Valproate and Olanzapine.
67 Following your eventual release, your father and step-mother have indicated their willingness to support you, and have indicated that you can return to live with them short-term whilst you re-establish yourself.
68 You have expressed a desire to secure a career in youth work in the future.
69 You have utilised your time well whilst in custody. You have undertaken many courses and the certificates for those courses have been provided to the court. They relate to drug and alcohol abuse, building better relationships, and life skills. You have also undertaken a Certificate 2 in cleaning and kitchen operations, and community services.
70 You are currently at Ravenhall, where you have been employed in the kitchen. You have also worked making pallets in the timber factory.
71 I accept that you are a vulnerable person who has experienced a difficult time whilst undergoing your first period of being in adult custody. There was an incident of self-harm on 28 February 2019 that led to an assessment at St Vincent’s Hospital.
72 Ms Rolfe made submissions on your behalf in mitigation of penalty, all of which I accept.
73 You pleaded guilty at the earliest opportunity. There is real utility in your plea. It was entered following negotiations at an early stage. By your plea you have spared the State the expense and inconvenience of a trial. You have facilitated justice and your sentence will be discounted accordingly.
74 You were cooperative with the police and made full admissions.
75 Notwithstanding the attitude that you exhibited towards the victim when you were interviewed by the police following your arrest I consider that you are remorseful for your conduct and that is evidenced by your plea, your letter of apology and your expressions of remorse to family members and Ms Lechner.
76 You express appropriate regret and shame for your actions and victim empathy. Through your plea you now take full responsibility for your conduct. You are now thinking clearly and understand that what you did was wrong.
77 You exhibit a level of insight into the impact of drugs upon your mental health and, further, recognise the need for ongoing support and treatment in respect to your mental health.
78 I accept the submissions made in relation to the enlivening of the Verdins’ principles and in particular, having regard to your mental impairment at the time of the offending, I accept that the need to emphasise general and specific deterrence is modified to an extent, and that your moral culpability is reduced to an extent.
79 Furthermore, having regard to Ms Lechner’s expressed opinion, I accept that jail is more difficult for you than for a person of normal health, and that long-term you face the risk of your mental health condition deteriorating should you remain in jail.
80 I am satisfied on the balance of probabilities that there is evidence to support a finding that, at the time of the offending, you had impaired mental functioning, specifically bipolar mood disorder, that was causally linked to the commission of the offence and substantially reduces your culpability. Furthermore, your impaired mental functioning is such that you are subject to substantially and materially greater than ordinary burden of risk of imprisonment.
81 Therefore I find on sentencing you for a category 2 offence that I can make an order not under Division 2 of Part 3.
82 Overall, I consider that your prospects of rehabilitation are reasonable, having regard to your current level of insight, appropriate expressions of remorse, and acceptance of responsibility for your wrongdoing.
83 Furthermore, you exhibit insight into the nature of your mental health condition and the need for compliance with medication and for future treatment.
84 Your conduct in jail has been positive, and in addition to working and completing courses there has been a negative drug screen dated 28 May 2019 that has been provided to the court, from which I can be satisfied that you are no longer affected by drugs.
85 You are fortunate in that you do have the very real support of your family. I accept from reading the references from them that you are otherwise considered to be a caring and respectful, hardworking person. Your brother Jaydin, and father both state this offending is out of character. They have observed a real change in your attitude with a huge improvement in your physical health. You are now more engaged with your family and want to make amends for your wrongdoing.
86 You have qualifications and work experience which means that you will be likely be able to secure employment upon your release. You have a place to live so that everything is in place to enable you to be fully supported when you re-establish yourself back in the community which means that prospects for your rehabilitation will be enhanced.
87 I do consider that you are now in a situation where you are best able to address your underlying mental health issues in an appropriate way and that should you continue to remain abstinent from drugs that will enhance your ability to conduct yourself in a more worthwhile way and that will provide the best protection for the community in the future.
88 Ms Rolfe sought a combination sentence equivalent to time served with a Community Corrections Order to provide for your supported release.
89 Ms Johnson, on behalf of the prosecution, submitted that an immediate term of imprisonment was required, having regard to the seriousness of the offending.
90 She submitted that it was a matter for the court to be satisfied that the link between your mental health condition and the offending has been established. She considered that it may be that your mental health did contribute to the offending. Nonetheless, she emphasised that it was serious behaviour, and general deterrence cannot be overlooked, and a term of imprisonment ought to be imposed.
91 In formulating just punishment, I have had regard to the principles set out in the Sentencing Act, and must balance the interests of the protection of the community with the need to impose just punishment, and to provide for your rehabilitation into the future.
92 You have now shown that, in the supported environment of the gaol, you can remain drug-free, and you can deal with your chronic mental health illness in an appropriate manner, such that I consider that you are in a position with the support provided in the community through the Community Corrections Order that your rehabilitation will continue.
93 The Court of Appeal in this State has stated in the guideline judgment of Boulton that a Community Correction Order may be suitable even in relatively serious offending which might previously have attracted a median term of imprisonment.
94 Having regard to all the matters that I have accepted, and notwithstanding the serious nature of the offending, I accept that this is a situation where a combination of imprisonment to be followed by a Community Correction Order is appropriate, and it will satisfy all the sentencing principles whilst affording you the best prospects for your rehabilitation in the future.
95 You have been assessed and the assessment outcome report confirms that you are suitable for a Community Correction Order with conditions recommended namely, treatment and rehabilitation for your drug addiction and mental health conditions and also other offence behaviour programs all addressing your underlying behaviours that led to this offending.
96 In relation to the charges, I will now announce the formal orders so I do ask that you stand please, Mr Watson.
97 In respect to the armed robbery charge, you are convicted and sentenced to 223 days’ imprisonment to be followed by a Community Corrections Order for two years’ duration with supervision, treatment and rehabilitation programs, including testing for drugs and treatment and rehabilitation programs for mental health, and other programs addressing offending behaviour.
98 In relation to the summary charge of commit indictable offence whilst on bail, you will be convicted and sentenced to one month imprisonment, which is to run concurrently with the sentence imposed on Charge 1.
99 I declare that you have served 223 days by way of pre-sentence detention, and direct that that be entered into the records of the court.
100 I have explained to you the core conditions as well as the other special conditions to be included in the order and you have indicated that you understand the effect and the nature of the order and you consent to the order.
101 I have also explained to you should you breach the order by breaching any of the conditions, then you will be dealt with in respect of the contravention and that means you will be brought back before the court and, in respect to the breach, the maximum penalty is three months’ imprisonment. You would also face further punishment for any fresh offending and you may be liable to be resentenced upon these charges.
102 I understand that you consent to the imposition of the order. A copy of that order has now been signed by me and a request will be made shortly for you to sign the order.
103 Finally I make the order sought for a forensic sample pursuant to s464ZF of the Crimes Act 1958 having regard to the seriousness of the offending. It is not objected to and I consider that it is in the public interest. I have only got to tell you about that, that you will be required to attend a police station to give a forensic sample and provided you cooperate that ought not be too difficult.
104 They will provide you with a cotton bud to put inside your mouth to rub against your cheek, but in the event that you do not cooperate they can use reasonable force for the taking of the sample including by way of a blood test so I hope that is not necessary, but I need to tell you about that.
105 My associate does have the order. I will get you to sign that with Ms Rolfe.
106 MS ROLFE: May I approach, Your Honour?
107 HER HONOUR: Yes, certainly. Ms Rolfe, in view of the other matters that are outstanding I will arrange for my revised sentencing remarks to be provided to you and your instructor and also prosecution at the earliest opportunity.
108 MS ROLFE: I am grateful, Your Honour.
109 MS JOHNSON: Yes, Your Honour, I am not sure whether you made an order - comments in relation to the sentence discount for the early plea?
110 HER HONOUR: Yes, the s.6AAA?
111 MS JOHNSON: 6AAA.
112 HER HONOUR: I have not done that, you are quite right. I am required to because it involves the imposition of a gaol term, does it not? So the 6AAA will be but for your plea of guilty I would have imposed a term of imprisonment of three years to serve two years.
113 MS ROLFE: As Your Honour pleases.
114 HER HONOUR: Thank you. We can adjourn.
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