Director of Public Prosecutions v Zividis

[2018] VCC 168

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01967

DIRECTOR OF PUBLIC PROSECUTIONS

v

JULIEN ZIVIDIS

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2018
DATE OF SENTENCE:	27 February 2018
CASE MAY BE CITED AS:	DPP v Zividis
MEDIUM NEUTRAL CITATION:	[2018] VCC 168

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:Armed robbery

Legislation Cited:     Sentencing Act 1991

Cases Cited:Boulton & Ors v The Queen [2014] VSCA 342
DPP v O’Neill [2015] VSCA 325

Sentence:2-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	Office of Public Prosecutions
For the Accused	Mr C. Farrington	Emma Turnbull Lawyers

HIS HONOUR:

1Julien Zividis, you have pleaded guilty to one charge of armed robbery.  This offence carries a maximum penalty of 25 years' imprisonment.

2You were born on 25 September 1995 and you are now 22 years old.  At the time of the offending, some 8 months ago, you were 21 years of age.

3You have no criminal history.

4By way of summary, on Tuesday 20 June 2017 you committed an armed robbery on a takeaway food shop in Noble Park North.  The victim in this matter is Harry Han, who worked in the shop which was owned by his parents.  Mr Han was unknown to you.

5The circumstances of the offending are as follows. 

6At approximately 7 pm on Tuesday 20 June 2017, you were at home with your girlfriend at an address in Noble Park North.  You told her you were going for a run and left the house. 

7You walked across the road to a neighbour's property where you obtained a hammer and clothing which the neighbour was throwing out.  You put on the clothing before continuing up your street towards Heyington Crescent dressed in faded blue pants, a blue checked jacket, a grey hooded jumper, a black t-shirt and grey runners.

8You walked north on Heyington Crescent and walked past the Blue Wave Fish and Chips Shop.  You looked inside as you walked past and saw Harry Han alone in the shop. 

9You took off your t-shirt and tied it around your head to cover your face.  You then covered this with the hood of your jacket and covered your eyes with sunglasses.  You also placed socks over your shoes to cover them.

10At approximately 7.40 pm you returned to the shop and entered, immediately walking behind the counter.  As you did so, you grabbed a hammer from under your jacket and held it out in view. 

11You then approached Mr Han at the till and raised the hammer, saying, "I want the fuckin’ money man" and then making further demands for money.  Mr Han took a step back and was in shock, but opened the cash register for you.

12You reached into the register and grabbed a number of notes.  You then turned and walked back around the counter, stuffing the money into your jacket as you left the shop.  Once you left, Mr Han's parents came into the shop from the adjoining residence to check on him and Mr Han immediately called police, who arrived shortly after.

13You were tracked by a police canine unit and seen in the front yard of your property.  You were searched and found to be wearing faded blue jeans with a black t-shirt over a grey hooded jumper and grey shoes. 

14Police then searched the front yard of the premises and inside a garbage bin found a $50, a $10 and three $5 notes.

15You were arrested and taken to Dandenong Police Station, where you participated in a recorded interview and answered all questions put to you and made frank admissions, including that:

·    you were involved in the armed robbery and that it was a “10-second thing”;

·    you showed the hammer to the worker and demanded money;

·    it was an impulse to do the armed robbery and you came up with the idea to do it around 20 minutes beforehand;

·    you obtained the jacket, hammer and pants from your neighbour;

·    you walked past the shop first to “suss” it out, then tied your t-shirt around your head and put on glasses before going in;

·    after the armed robbery you ran all the way down your street and got rid of the checked jacket and the hammer;

·    you dumped the cash into the yellow-lidded bin at the front of your house;

·    you had no real financial motive to do the act and that it was a “high, sometimes better than drugs and stuff are for some people", adding that you do not feel great about it, but you feel good doing it;

·    the reason you picked that shop was that it had happened to the shop a few times, so you knew it as an easy target and you being a weak person more than anything, in a selfish kind of opportunistic way; and

·    you thought that the worker in the shop would have been feeling awful after the robbery.

16The whole incident from when you left your girlfriend to when you were arrested took only a few minutes over one hour.  At 8.05 pm you had been identified and were being spoken to by police. 

17You were granted bail on the day of your arrest, so there is no pre-sentence detention.

18Your plea of guilty was entered at the first committal case conference at the Melbourne Magistrates' Court on 26 September 2017.  This is therefore a plea at the earliest possible stage.

19I turn now to your personal circumstances. 

20As I noted earlier, you are now aged 22, you were 21 at the time of this offending and you have no prior criminal history. 

21Your mother raised you as an only child.  Your father has been described as a heroin user and you have had no relationship with him when growing up.  You have reached out to him recently, but he has shown no interest in establishing any form of relationship.  You continue to live with your mother and have never lived independently for any significant time.  You are currently in a supportive and stable relationship with your girlfriend.

22You struggled through school with learning and socialising difficulties with others.  You have stated that your brain was different and you could not cope in a normal classroom.  You had few friends and were a target for bullying.

23You left school through Year 10 and have maintained employment in warehousing.  Unfortunately, you were trenched in May 2017 - a short time before the offending - which appears to have had a significant effect upon you.

24A report from forensic psychologist, Dr Aaron Cunningham was tendered on your plea. 

25Dr Cunningham reported that you presented with significant symptoms of anxiety and panic during the assessment with him.  You stated that you have suffered anxiety throughout your life and began to feel the “physical embodiment" of anxiety at the age of 15.  You are often too afraid to leave home, you have trouble sleeping and you reported a tendency to dissociate under stress.  This involves a feeling that things are not real and that you feel dislocated from time and place.  Thought content evidenced perceptions of worthlessness and hopelessness. 

26In summary, Dr Cunningham opines that you meet diagnostic criteria for generalised anxiety disorder, major depressive disorder and persistent depressive disorder.  You evidence clinical elevations on schizoid, dependent and melancholic personality disorder states.  You presented as a significantly mentally ill individual with an inability to regulate emotional states and as a prisoner to your own distorted thought processes.

27In Dr Cunningham's opinion, it is highly likely that you have an underlying neuro-developmental disorder.  You can experience dissociation, at times losing touch with reality and perceiving things with a dream-like quality.  You had been abusing drugs to cope with loss of employment and stress due to becoming overwhelmed by your mental health symptoms.  This led to reckless and aggressive behaviour.

28Dr Cunningham concluded that it appears that drug use was a precipitating factor to your emotional breakdown and it is clear that your mental illness causes significant impairment of your ability to function.  From a psychological perspective, you would benefit from a disposition that facilitated your rehabilitation, and you would benefit from engaging with psychological drug and alcohol intervention whilst in the community.

29In Dr Cunningham's opinion, you would be at significant risk in prison.  You present as psychologically and emotionally immature, and would be a target for manipulation and abuse.  In the present environment, you would likely experience elevations in anxiety and depression and require ongoing mental health monitoring in gaol.  Engaging with psychological and mental health management and treatment would reduce your risk and positively predict rehabilitation.

30The fact of your long term history of mental illness is also evidenced by the record of your medical attendances at the North Dandenong Medical Clinic.  References are observed in the medical notes to diagnosis of Major Depression and Anxiety, instances of thought disorder, symptoms bordering on psychotic depression and being unable to process any statements outside your current paradigm.  The history includes a Mental Health Plan as far back as 2012 and history of depression recorded in 2011.

31The conduct in which you engaged on this occasion is serious.  You created a very frightening and traumatic incident, which can have longlasting psychological effect on a victim.  The prevalence of this type of robbery on soft targets is well recognised and you would have been well aware of its significance.

32Being drug-affected at the time of the commission of an offence is not a mitigating factor.  The fact that you may have been influenced by drugs is no excuse for the conduct that brings you before the court today.

33In mitigation, I take into account the matters referred to by your counsel, including:

·    the absence of any previous history of offending;

·    the character testimonials tendered;

·    your plea of guilty for its utilitarian benefit and as an expression of remorse;

·    your insight in recognising the effect of such an incident on your victim;

·    your record of regular employment;

·    your youthful age;

·    your early difficult life without the care, nurture and support of your father;

·    your long-standing mental health illness, which I accept is complicated and multi-faceted, and causes you significant distress and compromises your emotions;

·    your long-standing habitual use of cannabis; and

·    that any time spent in prison would involve significant risk to your health, and that any time spent in custody would be a greater burden on you than others in the community.

34There was a discussion during the course of your plea as to whether your mental illness is such that it can be characterised as reducing your moral culpability for this crime.  In my view, the evidence is insufficient to enable that conclusion to be made.  Whilst references have been made by Dr Cunningham to Major and Persistent Depressive Disorders and Generalised Anxiety Disorder, there is insufficient development in the evidence as to how they relate to your state of mind in the context of numerous personality disorders, or how they might be connected causally with your acts.

35It is uncertain also whether drug use or your mental illness contributed more to your offending.  Similarly, although it has been suggested that an incorrect prescribing of a particular mental health drug by a different medical practitioner may have been a precipitating cause of your aberrant behaviour, it remains speculative without further investigation and evidence.

36I do note that on 16 June of 2017, just four days before you committed the offence, you consulted the North Dandenong Clinic with symptoms recorded as "worsening anxiety”, “panic attack”, “terrorised by anxiety ... feels uncomfortable in skin”, “heart racing” and “suicide ideation".  You were diagnosed with major depression and anxiety, and prescribed the drug Escitalopram.

37Furthermore, although very uncharacteristic, and frankly bizarre given your otherwise lawful behaviour, your acts involved a degree of considered practical planning and careful disguise.  You described to police your reason for the offending as being a "high, something better than drugs" and you were perfectly rational when being spoken to by police just a little over an hour after the incident and later during the police interview.

38Regardless of these matters, it is clear that you have a longstanding and very significant mental illness, and you require careful and sustained medical care.

39The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victim.  I 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, offenders are rehabilitated and reintegrated into society.

40I have given close consideration to the principles expressed in Boulton & Ors v The Queen[1] and the further expressions of those principles by the Court of Appeal in subsequent decisions of that court, including the authority of O'Neill[2].  I have also carefully considered the provisions of the Sentencing Act 1991, in particular s.5, and case summaries and recent sentencing statistics for the helpful, albeit limited, assistance they provide.  These resources must also be considered in the context of the particular circumstances of the instant case.

[1] [2014] VSCA 342

[2]    DPP v O’Neill [2015] VSCA 325

41In all the circumstances, despite the very serious offending, in light of the medical circumstances, particularly the absence of any previous offending, your youthfulness and your significant mental illness, I regard your rehabilitation as taking precedence in the sentencing discretion.

42At the same time, the commitments necessary to unpaid community work, supervision, attendances to various programs and therapy for you with your mental health challenges will carry an appropriate punitive aspect.  In my view, the purpose for which the sentence is imposed can be achieved without involving your confinement in prison.

43You have been assessed and found suitable for a community correction order.

44Mr Zividis, would you now please stand.

45On Charge 1, you are convicted and ordered to serve a community correction order for a period of two years. 

46The community correction order commences today and ends on 26 February 2020.  The corrections centre you will attend is the Dandenong Community Correctional Service at 46-50 Walker Street, Dandenong, and you must attend there within two clear working day of today, that is, by 4 pm next Thursday 1 March.

47All the mandatory terms of a community correction order apply, and the additional conditions I impose are that: 

·    you be under the supervision of a community correction officer;

·    you perform 200 hours of unpaid community work as directed by the regional manager;

·    you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;

·    you undergo mental health assessment and treatment, including (but not limited to) mental health, psychological, neuropsychological and psychiatric, if necessary in a hospital or residential facility, as directed by the regional manager, and I recommend that you are referred promptly to mental health assessment and treatment;

·    you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager;

·    you participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation, and that may include employment, educational, cultural and personal development programs as directed by the regional manager;

·    you attend as directed for judicial monitoring before me.

48I have also imposed this special condition that you attend for judicial monitoring.  What that means is you have to come back to this court before me every so often - it will be every couple of months initially - for me to see how you are going.  Are you making a proper and valiant attempt to attend the courses?  Are you getting the assistance that you deserve and need from Corrections?  Are there any issues that you need to discuss?  These are the sorts of matters that I will be speaking to you about in judicial monitoring reviews.

49If there is an issue about you not getting the resources that you are entitled to under this order, I can deal with that.  So it is not just a question of you performing.  It could be a question of whether courses or treatment are not getting prioritised.  It is designed to support you, not to intimidate you.  Do you understand that?

50Your first attendance for judicial monitoring is to be on 24 April 2018 at 10 am.  I am concerned that you get the treatment orders that have been directed as soon as is possible.

51I believe from the pre-sentence report that you have had the mandatory terms of the community correction order explained to you.  However, it is appropriate that I briefly summarised them here.

52The mandatory terms are that:

·    you must not commit another offence for which you could be imprisoned during the time that the order is in force;

· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the community corrections centre, that is, not attending drug-affected or alcohol-affected;

·    you must report to and receive visits from a community corrections officer;

·    you must report to the community corrections centre, that is the Dandenong centre, within two clear working days of the order starting, and as I have already indicated, that is by 4 pm next Thursday 1 March.

·    you must notify a community corrections officer of any change of address or employment within two clear working days after the change;

·    you must not leave Victoria without first getting permission to do so from a community corrections officer; and

·    you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing.

53Do you understand and agree to those conditions, Mr Zividis?

54OFFENDER:  Yes, Your Honour.

55HIS HONOUR:  Now if you get sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Dandenong Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen.

56However, I must warn you that if you breach any condition of this order, you will be brought back before me.  One of the options open to me is to cancel the community correction order and resentence you on the original charge, and I may also deal with you for the breach by sending you to prison for up to three months on the breach offence alone. 

57Mr Zividis, do you understand the consequences of breaching your community correction order?

58OFFENDER:  Yes, Your Honour.

59HIS HONOUR:  All right.  I will ask you to sign the community correction order shortly.

60At the plea hearing the prosecution sought an order for the taking of a forensic sample to which you have consented and I have made that order today for the reasons noted on the order, namely, that the seriousness of the circumstances of the offending warrants the order, the order is by consent and the granting of the order is in the public interest.

61Now I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.  Do you understand that, Mr Zividis?

62Are there any other matters from either counsel?

63COUNSEL:  No, Your Honour.

64HIS HONOUR:  If the community correction order can be passed now to Mr Zividis?  Mr Zividis, you can leave the dock for that purpose.  You can come down and sit behind your counsel. 

65In a moment, you will get a copy of that community correction order.  So all those directions on the order are clear?

66OFFENDER:  Yes, Your Honour.

67HIS HONOUR:  Is there anything else, counsel?

68MR HARRISON:  No.

69MR FARRINGTON:  Nothing further, Your Honour.

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