R v Mark Roberts
[2015] VCC 465
•20 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01449
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK ROBERTS |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 20 April 2015 | |
DATE OF SENTENCE: | 20 April 2015 | |
CASE MAY BE CITED AS: | R v Mark Roberts | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 465 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Sedgwick | OPP Victoria |
| For the Accused | Ms Z. Broughton | VLA |
HIS HONOUR:
1 Mark Roberts, you have pleaded guilty to one charge of robbery (Charge 1) and two charges of armed robbery (Charges 2 and 3).
2 The prosecutor, Ms Sedgwick, opened the circumstances of the offending by reading from a written ‘Prosecution Opening’, which was tendered.
3 In short, between 30 March 2014 and 9 April 2014, you committed three robberies at two service stations. You robbed the same service station on the first and third occasion and used a weapon on the second and third occasion, a Molotov cocktail and a knife respectively. On the first occasion you obtained about $200 and cigarettes; on the second you obtained four cans of ‘Red Bull’ soft drink and on the third you obtained about $300. You were disguised on each occasion.
4 Understandably, victims in attendance at the premises were significantly affected and victim impact statements from two victims were tendered.
5 You were arrested by police on 20 April 2014 when questioned about your driving, and police observed a distinctive Molotov cocktail in your car. You made admissions when interviewed.
6 Although you did not plead guilty until relatively recently it is accepted that you should be treated as having pleaded at the earliest practicable opportunity. The delay was due to resolving the question of your fitness to plead.
7 You suffer mental illness and this is a very significant issue in determining the appropriate penalty.
8 You were in custody from the day of your arrest until I released you on bail on 15 April 2014. Accordingly, you served 360 days, just short of a year, in pre-sentence detention.
9 Applications for the retention of a forensic sample and a disposal order were consented to, and I will make these orders. My reasons for the DNA retention will appear in the order.
10 Ms Broughton appeared for you. She filed an ‘Outline of Submissions on Sentence’ which was tendered. She argued that you should be released on a Community Corrections Order, emphasising that you have now spent just short of a year in custody, under very difficult circumstances, you are youthful, you have no prior criminal history, you are in need of mental health treatment that can be best provided in the community, your mental illness contributed to your offending and that you have a strong network of support available when released.
11 In particular, Ms Broughton emphasised the strong statements of principle made by the Court of Appeal in the recent case of Boulton. She submitted that Boulton makes it clear that the “sentencing landscape” has now changed and that judges are required to be very cautious before rejecting the option of a CCO even for serious offences that might have previously required significant terms of imprisonment.
12 The prosecution conceded that the option of "time served" in combination with a relatively lengthy CCO was within range and offered no argument in opposition to this course.
13 Ms Broughton sketched your background. You are still 24 years old but will turn 25 in May. Although your parents separated when you were six they both remained active in your upbringing and, along with their current partners, can offer you very considerable support on release from custody.
14 You grew up in idyllic conditions on a two acre property near Tyabb. You displayed early learning difficulties and struggled academically at both primary and secondary school. You left school at Year 9, began an apprenticeship in carpentry and then successfully completed an apprenticeship in solid plastering. You remained with the one employer for six years. The completion of the apprenticeship and steady employment was considered by all as a great achievement. You then obtained employment with another company and although you loved the work and enjoyed the structure it provided you were retrenched when the company lost a contract. You then undertook sub-contract work but this was less suitable than the stable employment you have previously experienced.
15 After your parents' separation you lived with your mother. She was diagnosed with breast cancer in 2013. She underwent surgery and chemotherapy. Unfortunately, the family home had to be sold and you moved into accommodation by yourself in September 2013. You had been in a relationship but this ended the day you moved into the new flat. By December you were out of work, it seems due to the emergence of symptoms of underlying mental ill health.
16 The offending occurred in the setting of significant mental health problems, together with drug abuse. This is a common scenario encountered by the courts. It is very difficult to unravel the contribution of your poor mental health and drug abuse to the offending. However, it seems clear that poor mental health has played a real role in your offending. It was conceded by the prosecution that the Verdins principles are engaged. In my view, each of the indicia are relevant to some degree and that the sentence needs to be moderated for that reason. The prosecution conceded that your mental state was relevant to your moral culpability, the type of sentence to be served, and that imprisonment has, and would weigh, more heavily on you than a person in good mental health.
17 A body of psychiatric material was tendered. In particular, the prosecution relied upon two reports (19 January and 30 March) from Dr Clare McInerney, a consultant psychiatrist from Forensicare who was initially engaged to provide an opinion concerning your fitness to plead and the presence of any defence of mental impairment. Dr McInerney then began treating you.
18 It seems you developed symptoms of mental illness in late 2013 or early 2014 when you started hearing voices. Dr McInerney thought you experienced First Episode Psychosis in early 2014 and that your presentation was consistent with Paranoid Schizophrenia. Your mental health history is complicated by alcohol and drug abuse. You have engaged in binge drinking since aged about 16. You told Dr McInerney that you were intoxicated at the time of each robbery. You also said you took Xanax. You have used cannabis regularly since your teens. You have used other drugs. Dr McInerney thought it highly likely that you developed symptoms of psychosis prior to the offending and that there are aspects of your behaviour around the “material time that speak to active mental illness”.
19 You were assessed as psychotic when taken into custody and have spent much time in custody housed in a prison mental health unit. From June to December you were admitted to the Acute Assessment Unit. You displayed poor insight into your mental illness and refused medication, remaining severely ill for many months. Indeed, you refused contact with your family for several weeks apparently due to active psychosis. You were waitlisted for transfer to Thomas Embling Hospital for inpatient treatment. However, there were insufficient beds to achieve this. In October 2014 you commenced anti-psychotic medication and your mental state improved significantly within about six weeks, leading to a second medication.
20 When your mental state improved you were discharged from the Acute Assessment Unit at MAP and were transferred to the MRC in January 2015. Dr McInerney saw you twice in March. She discussed your cessation of medication on the first occasion and when she next saw you in late March you agreed to resume medication and said you would continue to take it for at least two years as recommended. You acknowledged that when psychotic you posed a risk of violence. She thought you mentally well at this time.
21 Your insight into your mental illness is only partial. This includes your insight into the negative impact of drugs on your health. However, your willingness to engage voluntarily with mental health services is positive.
22 Dr McInerney thought you would benefit from both GP and community mental health follow up if released from prison. To this end she made a referral for outpatient mental health case management at Peninsula Community Mental Health Service.
23 She thought compliance with mental health follow up and medication should be a condition of any supervision on release.
24 A letter dated 30 March from Dr McInerney was also tendered. It confirmed the referral to Peninsula Community Mental Health Service. My understanding from counsel today is that this service is aware of your pending contact and expects to see you very soon.
25
Two reports (27 July 2014 and 12 January 2015) from Dr Nicholas Owens were also tendered. The first report focussed on your fitness to be tried and
Dr Owens thought you were not fit at that stage. By the time of the second report he thought you had greatly improved and were fit. He confirmed that the likely diagnosis was paranoid schizophrenia and whilst your symptoms had greatly improved with treatment they had not completely resolved.
26 He noted victim empathy and regret for your offending.
27 He thought you unlikely to require hospitalisation unless your condition deteriorates. He thought on-going treatment was best delivered by mental health services in a community or home-based setting with support from family and friends and that appropriate treatment was either poorly developed or unavailable in prison. He thought you must take medication or your condition would deteriorate and he recommended that you continue medication for at least two years.
28 Your father, sister, mother and her partner attended to support you on the plea hearing. Your mother and father are here today.
29 Letters from your mother and father and both their partners were tendered. Your mother and father gave evidence.
30 A letter from a retired magistrate and his partner, who have known you since birth, was tendered. It confirms the supportive environment to which you would return if released.
31 Two letters from a potential employer and family friend were tendered. You have been offered work under supervision for two days a week by a person aware of your “recent problems”.
32 I was very impressed by both of your parents. Both have been school teachers. Your father is now retired and your mother has limited her current employment to two days to be available to assist you. Both are supported by their partners in their concern for you.
33 On 15 April I released you on bail with conditions that you reside with your father and his partner, attend your GP to meet an appointment for 4.30 pm on that day, which was delayed until 5.30 pm, attend Peninsula Community Mental Health Service, a curfew, and attend for assessment to determine suitability for release on a CCO. Your mother lives only a couple of kilometres from your father.
34 Your parents are keen to assist you in every way possible. They are acutely aware of the risks associated with you using drugs. They are alive to signs of mental health decline. They have sought advice and support from VACRO to assist your re-integration into the community. They intend to assist you to meet all appointments you may be required to attend. They have contact numbers to seek assistance if you show signs of “unravelling”. They are keen to seek all the advice and support available concerning management of your condition and risks of drug use. They have been preparing for your return home for about a month before I released you on bail. They understand the importance of impressing upon you the critical need for you to continue taking medication. They are confident that your relationship with them is open and honest. You are close to your sister, who lives with your mother, and even when your relationship with your parents broke down you maintained your relationship with your sister. Your father emphasised that he would not allow any decline in your condition to present risks to the public. I am confident your parents would facilitate the objectives of supervision on a CCO.
35 There has been no problem since I released you on bail.
36 You were assessed as suitable for release on a Community Corrections Order.
37 During discussion on the plea I noted that it may seem to some observers that a sentence of imprisonment for one year for offending such as yours appears inadequate.
38 However, release on a CCO is not intended to be a soft option. If this option fails then I think I will be left with little alternative but to impose additional imprisonment. Community protection is a very important sentencing consideration. However, at this stage I consider that this objective is more likely to be achieved through your rehabilitation in the community. Every judge is concerned when he or she releases offenders who have committed crimes of violence into the community. This always involves risk. Your release into the community must be faced sooner or later and conditions to facilitate your successful rehabilitation are unlikely to improve with the imposition of additional prison at this stage.
39 I consider I am able to impose an aggregate sentence and accordingly sentence. I should interpose here and say that I received some submissions from you in this regard, Ms Sedgwick.
40 MS SEDGWICK: Yes, Your Honour.
41 HIS HONOUR: So thank you for that, confirming that I am able to take this course. Accordingly, I will convict you on all three charges and sentence you to be imprisoned for 360 days in addition to a CCO for 30 months.
42 As noted earlier, you have already served 360 days in pre-sentence detention and this is to be reckoned as time already served under the sentence I have imposed.
43 The standard terms of the Order are set out in s.55 of the Sentencing Act 1991. The Secretary has the power to give oral and written directions to ensure compliance with the Order and this includes drug and alcohol testing. Drug and alcohol testing is also included under the conditions I will impose for drug and alcohol treatment and rehabilitation.
44 The conditions of the CCO, in addition to its terms will be:
That you be under supervision (s.48E).
That you undertake 200 hours of unpaid community work (s.48C).
That you undergo treatment and rehabilitation as recommended for drugs [s.48D(3)(a)], alcohol [s.48D(3)(b)] and mental health [s.48D(3)(e)].
I note that mental health treatment is to be facilitated through Peninsula Mental Health Services. My expectation is that those supervising you will require you to follow the directions of this service or any other appropriate service those supervising you at Corrections identify.
As discussed earlier, I will impose a condition that you not consume alcohol, pursuant to s.48(1). However, as indicated, I would be prepared to consider its removal at some later date.
I will also impose a condition that you be monitored by the court and order that you reappear before me in about two months. I fix the date as 22 June, it is a Monday, I think, at ten o'clock. I expect on this occasion that I will receive a report from Corrections.
45. I will note, by way of summary on the court order, that given the judicial monitoring condition, I expect to be notified if there is any concern on the part of those supervising you relating to non-compliance, at which time I expect I would list your case for earlier monitoring.
46. I also note that your counsel advised me this morning that after the meeting with your local practitioner you were referred for psychological counselling with Ms Fran Malcom.
47. Is there anything I have overlooked? It is a little messy, I am afraid, but anything I have overlooked that counsel can identify?
48. MS SEDGWICK: No, Your Honour. As Your Honour pleases.
49. MS BROUGHTON: No.
50. MS SEDGWICK: And I do not seek the forensic sample order.
51. HIS HONOUR: You do not?
52. MS SEDGWICK: A forensic sample was taken and now it will be automatic retention.
53. HIS HONOUR: So I do not have to make that order.
54. MS SEDGWICK: Yes.
55. HIS HONOUR: That is correct. I had forgotten about that.
56. MS SEDGWICK: Just the disposal order and if Your Honour is inclined, a 6AAA declaration.
57. HIS HONOUR: Say that again?
58. MS SEDGWICK: 6AAA declaration.
59. HIS HONOUR: How tricky is that?
60. MS SEDGWICK: Yes.
61. HIS HONOUR: I have not even thought about it, to be frank. It slipped my mind because I am focussing on the CCO. I wonder whether - how am I supposed to do that, I wonder, when I have imposed imprisonment in combination with a CCO? Just let me think about it for a moment.
62. MS SEDGWICK: Yes, Your Honour.
63. HIS HONOUR: The identification of the sentence I would have imposed had you not pleaded guilty is even more artificial in your case than it normally is. In trying to identify what it would have been I am going to assume that all other factors, aside from the plea of guilty, would have been made out. A plea of guilty is a critical component of the decision to impose a Community Corrections Order in combination with a sentence of imprisonment. Without a plea of guilty it is hard to see that I would have taken this course, and so the likelihood is that I would have imposed a sentence with a non-parole period. However, in trying to identify what that sentence would have been I am required to assume the other strong matters in mitigation relied on by your counsel and summarised in para.10 of my reasons.
64. Doing the best I can, the sentence is unlikely to have been less than three years' imprisonment and the non-parole period is unlikely to have been less than 18 months.
65. MS SEDGWICK: May it please Your Honour.
66. HIS HONOUR: All right. That seems to me, on the face of it, to be, once again, a sentence that looks modest for this type of offending but the factors in mitigation here, even putting to one side the plea of guilty, were strong.
67. MS SEDGWICK: Yes, Your Honour.
68. HIS HONOUR: All right, we will need to prepare that documentation. I will sign the disposal order.
69. MS BROUGHTON: Your Honour, just on behalf of Mr Roberts' parents, they wish to confirm to you they understood what you said, they understand your concerns.
70. HIS HONOUR: Thank you.
71. MS BROUGHTON: They thank you for your recognition of their support for their son.
72. HIS HONOUR: Yes, I think that is fine. My associate has placed that order, if you like, or direction that I am to be notified, or the court is to be notified, of any issue concerning compliance on the part of Mr Roberts as part of the order. It will be part of the court order as well. I have not seen that done before but I think it is fine. So just check it for me and see whether you have a problem with it.
73. I have indicated verbally that my expectation is that there will be a direction from Corrections that Mr Roberts attend the Peninsular Mental Health Service. I do not think it is necessary as part of the formal order. It is a matter ultimately for those supervising Mr Roberts to determine what the appropriate location is. I mean I do not know. There may be a move of residence or something and it all may change at some stage.
74. MS BROUGHTON: Yes.
75. HIS HONOUR: So I think having made my expectation clear, that is sufficient.
76. MS SEDGWICK: May it please Your Honour.
77. HIS HONOUR: Thank you. Did you want to check that for me, Ms Sedgwick?
78. MS SEDGWICK: I have looked at just the free text order. Thank you, Your Honour.
79. HIS HONOUR: Thank you.
80. MS SEDGWICK: It seems appropriate.
81. HIS HONOUR: That the lot? Can I thank you both for your help. I found this a tricky case, so thank you very much.
82. MS BROUGHTON: Thank you, Your Honour.
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