DPP v Becke [2021] VCC 1040

4 The victim, Gopireddy Kommasani, was an employee at the United Service Station on the corner of Fifteenth Street and Benetook Avenue in Mildura.

5 At 7:30pm on 18 October 2020, Mr Kommasani commenced his shift at the service station store ('the store'). He was scheduled to work until 6am the following morning.

6 At 12:45am on 19 October 2020, about five hours into Mr Kommasani's shift, he saw you on CCTV walking towards the store.

7 You entered the store wearing a white bike helmet and a black and white flannelette shirt. A face mask partially covered your face. You were carrying a backpack and a duffle bag ('the bag').

8 Mr Kommasani did not think there was anything out of the ordinary about you and he asked, 'How can I help you?'

9 You placed the bag on the counter and pulled an imitation black handgun from your pants with your right hand. You pointed the handgun at Mr Kommasani and said, 'Take the money out of the till and put it in the bag'. You then opened the bag on the counter. Mr Kommasani initially put his hands up and then opened the cash register drawer. He placed about $800 into the bag.

10 While Mr Kommasani did this, you kept saying, 'Don't call the police or I'll shoot you'. You had the handgun pointed at him during the entire incident.

11 Once Mr Kommasani had placed all the money in the bag, you said, 'Don't call the police. Give me five minutes to leave.' You zipped up the bag and left through the main store entrance. You kept repeating, 'Don't call the police or I'll shoot'.

12 When you left, Mr Kommasani called his manager. He was extremely anxious and scared. His manager told him to lock the doors to the store, which he did, while the manager alerted the police. Police arrived a short time later and secured the scene.

13 Following a review of CCTV footage from several commercial outlets in the area of the service station, police were able to trace your steps following the armed robbery. They located the white motorcycle helmet and black and white flannelette shirt inside a bin at a bus shelter on Fifteenth Street outside the service station. They also located the bag dumped in a paddock not far from the crime scene. Inside the bag police located a black plastic toy handgun and a burgundy and black coloured cotton face covering.

14 On 23 October 2020, you were suspected to be in the Brunswick area. Mildura police contacted members of the Moreland Crime Investigation Unit who located you at the Barkly Square shopping centre in Brunswick at 11am and you were arrested.

15 Later that day, you were interviewed at the Fawkner police station. During the interview, you told police you were born 'Emily Becke' however you now wished to be referred to as 'Matthew Grayson'.

16 You made full admissions to committing the armed robbery and using an imitation handgun, which you said was a plastic water pistol. Apparently, you targeted this service station some days before the present offending. You told police you planned to rob the service station two nights earlier, but police were already there, so you backed out of that plan and decided to rob your target two nights later.

17 You told police you did not commit the armed robbery for money. Rather, you did it because you were homeless and wanted to go to prison. You gave Ms Gina Cidoni, a psychologist engaged by your legal representatives, a similar version of your motive. You told her you were lonely and not coping and you needed medical attention, but you were turned away from the Mildura Base Public Hospital, where you sort treatment, three times.**

**18 No victim impact statement has been tendered. Counsel for the prosecution told me Mr Kommasani has returned to India, his home country, and attempts to contact him have been unsuccessful.

19 Nonetheless, where no victim impact statement has been tendered, a sentencer may draw reasonable inferences from the known circumstances regarding the likely impact of an offence upon any victim.[3] Clearly, this would have been a terrifying experience for Mr Kommasani.

20 It is concerning that, in the answers you gave to police in the record of interview, you demonstrated a complete lack of victim empathy and insight into the likely seriousness of the impact of your offending on the victim. You said Mr Kommasani 'could tell that the gun was plastic, he didn't seem very stressed'[4] and 'he wasn't very threatened by me at all'.[5]

21 However, Mr Kommasani's actions during and after the armed robbery seem inconsistent with this version. In his statement to police, Mr Kommasani said you produced 'a black gun that looked like a revolver ... The gun was pointed at me. I got really scared and didn't know what to do'.[6] He also put his 'hands up'.[7] Later he said: 'The entire time she kept the gun pointed at me. I was very scared'.[8] Finally, after you left the store, Mr Kommasani telephoned his manager, at which time he 'was very worked up and scared [and] didn't know what to do'.[9] After speaking with his manager, Mr Kommasani locked himself inside the store.[10]

22 Armed robbery is a very serious criminal offence carrying a maximum penalty of 25 years' imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This indicates the seriousness with which the legislature on behalf of the Victorian community views this offence. Your counsel conceded this is a serious offence.

23 Moreover, this was a serious example of the offence. You bailed up a lone man using an imitation handgun, which your victim would have thought was real, in the early hours of the morning. The premises you targeted for this crime was a 'soft target', in that Mr Kommasani was working alone with no security other than CCTV.

24 You demanded Mr Kommasani open a cashdrawer and put money into a bag you produced. A number of times you threatened that if he called the police you would shoot him. You had the imitation gun pointed at him throughout the incident. He would not have realised it was not a real handgun. It must have been a terrifying ordeal for your victim.

25 Sentencers have repeatedly emphasised the very serious nature of this type of offence. On one level, the victim may be subjected to a terrifying experience, believing that if the offender's demands are not met, physical harm will ensue.[11]

26 General deterrence, denunciation and just punishment are the primary sentencing considerations in offences of this kind.[12]**

27 You were born in Melbourne in April 1984 and are now 37 years old. You were aged 36 years at the time of the offending.

28 You are your parent's only child. They were both drug users and separated when you were three years old. You reported you were assaulted by your father when you were two years old. You believe you acquired a brain injury from that assault which affected your ability to learn throughout life.[13] However, no abnormalities were detected on an electroencephalogram performed in 2019. You also reported your mother sexually abused you when you were in her care.

29 Your parents each re-partnered and your father had three more children. You had a poor relationship with your stepmother. On one occasion you saw your stepmother assault your father with a metal pole. You felt your stepmother disliked you because you diverted your father's attention away from her.

30 Your mother and her later partner were both heroin addicts. Tragically, both of your parents have committed suicide. You were aged six when your mother died and 34 when your father died.

31 You were raised in Brunswick by your grandmother from the age of three and lived with her until you were 29, when you moved into supported accommodation. You maintained daily contact with your grandmother until her death in 2017.

32 Following your grandmother's death, you received a modest inheritance from her on condition you used the money to purchase a house. You bought a house on the outskirts of Mildura, with which you had no connection. Apparently, you now regret purchasing the property in Mildura because there are no services in the town.

33 You completed Year 12 at Santa Maria College in Northcote and commenced an arts degree at La Trobe University, but withdrew from the course after 18 months. You then completed a vocational training course in beauty therapy and worked in this field for about ten years from 2007. Whilst you were living in Mildura, you commenced a cookery course at TAFE.

34 You have also worked in numerous casual and low-skilled jobs. At the time of the present offending, you were unemployed, having been released from prison some three months before committing the present offence and you were receiving Newstart allowance and the Disability Support Pension.**

**35 Community Correctional Services records indicate a past diagnosis of a complex multi-cluster personality disorder with a definitive diagnosis of paranoid personality disorder and prominent borderline and antisocial personality disorder traits. These conditions were diagnosed by Dr Lester Walton, a forensic psychiatrist, in two reports he prepared in 2015 and 2019.[14]

36 A similar diagnosis was made by Dr Katherine McIntire who prepared a Forensicare Psychiatric Court Report, dated 18 June 2020, for her Honour Judge Fox in relation to another sentencing hearing, which I discuss below.[15] Dr McIntire opined that by reason of your borderline personality disorder:**

In periods of stress, she displays emotional dysregulation and impulsive judgement. On extreme occasions she appears to have had dissociative and paranoid symptoms, which are consistent with borderline personality disorder. This has likely precipitated her offending behaviour. In my opinion, Ms Becke has a reduced capacity to respond reasonably to stressors as a direct consequence of her mental condition.

**37 You have also been seen by Ms Cidoni, who assessed you over a three-hour period on 10 April 2021. As well as providing a report,[16] Ms Cidoni gave evidence at the plea hearing.[17]

38 At interview, Ms Cidoni observed your psychomotor activity was variable. Your speech was slow, and its content confused. Your emotional state was 'dysthymic' and your thought processes 'involved loose associations'. Ms Cidoni thought your insight and judgement capacity appeared 'low'.

39 Regarding your gender identity, you told Ms Cidoni you felt you were always gay, but you supressed this when younger because your grandmother held strict religious beliefs. You identify as a male most of the time, but sometimes you are unsure. Most of the time, you want to distance yourself from being 'Emily'.

40 You have recorded diagnoses of borderline personality disorder, depressive disorder, dissociative identity disorder, schizophrenia, PTSD and bipolar affective disorder.

41 You first came into contact with Orygen Youth Health at age 18 because of your depressive symptoms. You completed the Helping Young People Early program over seven months and were case managed by youth services for some time thereafter.

42 Around 2009, you were admitted to Upton House Adult Mental Health Inpatient Service following a drug overdose and remained there for a month until you were released on a Community Treatment Order. After the order ended, you ceased contact with the psychiatrist and psychologist assigned to you.

43 In 2010, you were admitted to Eastern Health Inpatient Psychiatric Unit for 18 days.

44 In 2011, you were diagnosed with borderline personality disorder by Mental Health services.

45 Twice in 2012 you attended St Vincent's Hospital Emergency Department as a consequence of suicidal ideation.

46 In 2013, through a linkage with the organisation "Mind", you regularly consulted a psychologist, Ms Perry, for one year.

47 In 2015, while you were at Dame Phyllis Frost Centre, you had two admissions to the Marmak Mental Health Unit.

48 In 2017, there was an incident where you contacted police and said you murdered your father. You were admitted to the St Vincent's Hospital, where you were diagnosed with having delusional beliefs.

49 You told Ms Cidoni you travelled from Mildura to Melbourne in an attempt to be admitted to the Royal Melbourne Hospital Psychiatric Unit, after being rejected in Mildura, however, you were not accepted for admission.

50 In September 2019, you were admitted to Thomas Embling Hospital after holding a knife to the throat of a prison chef. You were admitted again in December 2019 because of concerns regarding your delusional thoughts.

51 You told Ms Cidoni that as a child you were sexually abused by multiple perpetrators over a five-year period. You also told Ms Cidoni you were cutting yourself for a period of time from the age of 24 years.

52 Your cousin introduced you to alcohol when you were 14. You would binge drink on weekends until you were intoxicated. You told Mr Bellini, a Community Corrections Officer who assessed you for suitability for a CCO at my request, you were an alcoholic and used alcohol heavily for a period of 10 years, but now you only occasionally drink alcohol.

She has had periods of alcohol abuse, particularly during times of loneliness, disappointment, or resentment. Generally disposed to vent her brittle and unstable emotions, she may become volatile and destructive when she drinks heavily.

**54 You told Ms Cidoni you have no illicit drug use or overuse of medication despite the Upton House admission in 2009, which you said was an error. You told Mr Bellini you never used illicit substances after watching your mother using drugs and saw the long-term effect it had on her.

55 You reported to Ms Cidoni you are prescribed Olanzapine, an anti-psychotic medication, which you take once a day whist you are in custody.

56 Ms Cidoni administered the Millon Clinical Multiaxial Inventory-IV (MCMI-IV) test to assess your DSM-5-related personality disorders and clinical syndromes. Your profile indicates a lack of internal cohesion, emotional lability and a distorted sense of others and their circumstances.

57 Your MCMI-IV profile indicated highly variable and unpredictable moods, an untrusting and pessimistic outlook and feelings of being misunderstood. You have low self-worth and wavering sense of identity, which lead to rapidly changing self-presentations and frequently self-punitive behaviour.

58 Ms Cidoni reported your symptoms were consistent with Borderline Personality Disorder, PTSD, gender dysphoria, periods of dissociation and delusional beliefs. She opined these factors contributed to your behaviour and impaired functioning at the time of the present offending. In her opinion, your complex psychiatric profile has some psychotic features, as well as impulsive and emotional dyscontrol and heightened reactivity.

59 Ms Cidoni opined, your life-long history of trauma resulted in early and severe maladjustment which has continued and possibly worsened over time. She inferred these traumatic experiences have led to your maladjustment.

60 Ms Cidoni also inferred that your cumulative losses - your father's suicide and your grandmother's death - your loneliness, and the stress associated with finding and removing an acquaintance from your home, had all contributed so as to advance a major episode. You told Ms Cidoni you were turned away at Mildura and Melbourne hospitals and the offending was motivated by attention seeking. Although you had already spent time in prison, you said you did not fare well. Prison means you are not alone.

61 Ms Cidoni concluded that you are 'very unwell'. You should reside in supported accommodation with opportunities for daily contact with psychiatric and psychological/therapeutic services. You would be eligible for the NDIS which can provide substantial funding to meet appointments, strengthen your support systems and community networks. It is regrettable that it has not been possible for you to make an NDIS application while you have been in custody.

62 Ms Cidoni opined, your illness may be exacerbated by lengthy imprisonment as your 'complex state leads to marked alterations in arousal, reactivity, intrusion and impulsivity symptoms, resulting in unwanted attention by others'. Moreover, in her opinion, lengthy imprisonment may place you at increased risk of further emotional deterioration and would subject you to a substantially and materially greater than ordinary burden of custodial hardship.

63 Ms Cidoni said you do not have a criminal belief system and you are open to engage in interventions. She considered your risk of reoffending would reduce with appropriate treatment.

64 Whilst you are in custody, you are engaged with a psychologist. You intend to continue engaging with services in relation to your mental health once you are released.[18] You think you will likely remain in Melbourne upon release where more services are available.

65 In this context I have had regard to the contents of a letter from Ms Ashlin Collins, a forensic case worker employed by Australian Community Support Organisation Ltd (ASCO), dated 19 July 2021.[19] She advises you are a participant in the ReStart Program which is an 'assertive support program' delivered by ASCO, which focuses on providing assertive outreach support to help participants establish supports and community linkages over a three-month period.

66 Ms Collins reports, ReStart has been working with you whilst you have been on remand. According to Ms Collins, you have identified your 'transitional support domains as Housing and Mental Health'. Ms Collins advises 'crisis accommodation' can be arranged for you by ReStart upon your release from custody. A 'reintegration transition plan' has been 'collaboratively created' to prepare for your release from custody.

67 You have a relevant prior criminal history which dates back to 26 October 2016 when you committed your first offence at the relatively late age of 32, shortly before your grandmother's death.

68 You were dealt with in the Assessment and Referral Court (ARC) for a large number of charges which included: make threat to kill (2 charges), stalking (8 charges), assault with a weapon, unlawful assault, possess controlled weapon without excuse, and various breaches of orders made under the Family Violence Protection Act 2008 ('FVPA') (11 charges). The matters were dismissed after you successfully completed a program with supervision over 15 months. You had previously spent 69 days in custody prior to sentence.

69 On 11 April 2018, you were again before ARC on four charges for breaching orders made under the FVPA and three charges for breaches under the Bail Act 1977. Again, you participated in supervision through the ARC and you engaged in counselling, resulting in the matters being dismissed.

70 On 25 May 2020, you received a without conviction adjourned bond on a charge of contravene family violence final intervention order.

71 Of particular significance in the present proceeding, on 27 July 2020 you appeared before this Court on charges of attempted armed robbery and prohibited person use imitation firearm. You were sentenced by her Honour Judge Fox to an aggregate sentence of 384 days' imprisonment, which was four days short of time served, and a Community Correction Order (CCO) for 30 months, which required you to be supervised, undergo mental health assessment and treatment, participate in programs and/or courses designed to address factors relating to your offending behaviours and judicial monitoring. You were also dealt with for three summary offences for which you were either fined or convicted and discharged.

72 I have read the Reasons for Sentence of her Honour Judge Fox dated 27 July 2020.[20] According to Dr McIntire your offending in that case was also motivated by your perceived need 'to gain access to mental health treatment' while you were living in Mildura, and 'occurred in the setting of reported financial and social stress'.[21]

73 Finally, on 13 August 2020 you appeared before the Mildura Magistrates' Court on a charge of threat to inflict serious injury. You were sentenced to 7 days' imprisonment, which was time served. You told Ms Cidoni that you 'struggled' in prison and were 'happy to get out'.

74 This offence was committed only seven days after your release from custody and breached the CCO imposed by her Honour Judge Fox. A CCO Contravention Report was prepared dated 19 October 2020 in relation to this breach, which was tended at the plea heating in this matter.[22]

75 You were deemed a medium risk of recidivism and you reported for supervision on a weekly basis. You complied well with the supervision appointments and maintained regular contact.

76 It was noted the 13 August 2020 offence of threat to inflict serious injury occurred after you were released from prison and you discovered there was a squatter living inside your house in Mildura. It transpired the squatter was a man you had met in an opportunity shop who, realising you were going to gaol, took advantage of you. As a result of this offending, a Family Violence Intervention Order was made protecting the squatter. You had no family or friends in Mildura you could turn to, so you were left homeless.

77 According to the breach report, you attended your General Practitioner, Dr Kelechi Ibegbulem, and obtained a Mental Health Care Plan. You were referred to psychologist Andrew Webster, and the service indicated funding could be obtained to help support you given the priority of your treatment needs. You were investigating the possibility of being treated by other local psychologists. You were placed in the regional queue for offending behaviour programs.

78 It was recommended that the CCO be confirmed so you could continue with your treatment. Unfortunately, you committed the present offence, which has intervened to make further treatment in the community impossible for the time being.

79 Your counsel told me you continued to comply with the CCO conditions whilst awaiting breach proceedings before her Honour Judge Fox, that is, until you committed the present offence. The present offence also breaches the CCO imposed by Judge Fox and breach proceedings are awaiting the outcome of this sentence.

80 In light of this history, ordinarily specific deterrence and protection of the community would need to be given significant weight in sentencing you for the present offence of armed robbery. However, in light of your mental health conditions, discussed below, I am of the opinion Verdins principle 4[23] operates in your case to moderate the weight I give to this sentencing consideration.

81 You pleaded guilty to this offence at the earliest opportunity. I accept your plea has significant utilitarian benefit, particularly in the COVID-19 environment. The plea also indicates your acceptance of responsibility for your offending conduct and a willingness to facilitate the course of justice.

82 While I accept you are undoubtedly regretful for the situation in which you find yourself and the effect this has had on you, there is insufficient evidence before me to make a finding in your favour that you demonstrate true contrition and remorse for your offending conduct, beyond what is evident from the plea itself.[24] In my opinion, your failure in the record of interview to recognise the seriousness of your offending conduct, and the effect this would undoubtedly have had on your victim, demonstrates you are not truly remorseful.

83 Nonetheless, I accept you were cooperative with police and made full admissions in your record of interview.

84 Your counsel submitted all six Verdins principles[25] are engaged in your case. The prosecution initially accepted this was so. However, it appears the Director's final position is that only Verdins principles 1, 2 and 3 are engaged in your case.[26]

85 I accept your counsel's submissions that there is cogent evidence of mental impairment and a causal connection between the impairment and your offending conduct, such that your moral culpability is reduced, thereby reducing the weight I would otherwise give to the principle of denunciation. Moreover, I accept general deterrence, while remaining relevant, should be sensibly moderated in your case. A person suffering from complex mental health problems is not a suitable vehicle for sending a message to others.

86 I have come to the same conclusion as her Honour Judge Fox who said:

I accept that your psychiatric condition is relevant to the nature and type of sentence and the conditions in which it should be served. The Forensicare report makes clear that long term and sustained psychological treatment is the most beneficial intervention for personality disorders. Such treatment is not readily accessible in a prison environment. According to Dr Walton it is impossible to treat borderline personality disorder in prison. All experts agree that medication has little, if any, effect in cases such as yours.[27]

87 I also accept you had a deprived upbringing and you were sexually abused as a child. Moreover, I am satisfied that being homeless was a significant motivating factor in this offending. I take these matters into account in your favour.

88 Your counsel conceded a sentence of imprisonment is required to be imposed for this offence. Her submissions were directed to the imposition of a combined sentence of imprisonment together with a CCO.[28] The prosecutor submitted that the only appropriate sentence was one involving a head sentence with a non-parole period.

89 Following the plea hearing, I ordered the preparation of a pre-sentence report in the form of an Extended Pre-Sentence Outcome Report.[29] I received a report dated 17 May 2021,[30] to which I have had regard.

90 In the report, Mr Glen Bellini assessed you as having a medium risk of reoffending according to the Level of Service Risk Assessment Tool.

91 Mr Bellini assessed you as suitable for a CCO. While you were assessed as having a medium risk of reoffending, a number of program and treatment conditions were recommended to address your risk factors. The risk factors he highlighted are your mental health, offending behaviours, and the lack of stable protective factors in your life.

92 Supervision, mental health treatment programs, to reduce reoffending, and judicial monitoring conditions were recommended. While you are engaged with a psychologist in custody, you indicated to Mr Bellini your willingness to continue engaging with services in relation to your mental health once you are released.

93 So far as supervision is concerned, Mr Bellini said you should attend regular supervision which will allow the Community Correctional Services (CCS) to assist you in reducing your offending behaviour, while supporting you in the community. A judicial monitoring condition is also recommended for this Court to further monitor and encourage your compliance with a CCO. I note her Honour Judge Fox imposed these conditions in the CCO she imposed on you on 27 July 2021.

94 So far as mental health treatment and rehabilitation are concerned, Mr Bellini said this would allow CCS to direct you to continue with any ongoing treatment recommended by your doctor and monitor you to ensue you are accessing the treatment to address the needs of your mental health conditions.

95 In respect to the programs to reduce reoffending, Mr Bellini said this will allow CCS to refer you to any suitable programs targeting your offending behaviour. In addition, Living in Communities, Identifying Priorities, Next Steps and Community Supports (LINCS) program could assist you with appropriate supports in the community and link you with your extended family in a more positive manner.

96 So far as protective factors are concerned, Mr Bellini noted you do not have any accommodation organised when you are released from custody. In his opinion, when released from custody you will require intensive case management and one- on-one support in the community to aid with the complexities surrounding your mental health conditions. In this context, I again note the contents of the letter from ASCO referred to above.[31]

97 He expressed concerns you currently have no stable protective factors in your life. He is also concerned you again committed a serious offence, while reporting your intention was to access treatment for your mental health.

98 I am encouraged by the fact you told Mr Bellini you want to make friends, to have people to talk to, and to discuss ideas and plans with. You believe this may help you to make better decisions in the future. This is encouraging as it demonstrates you are gaining insight into the factors affecting your criminogenic behaviours.

99 You told Mr Bellini you want to complete a partially completed cookery course and establish a career cookery. You also mentioned a desire to become a veterinarian nurse and to attend a related course. Mr Bellini observed you do not appear to have clear goals. Nonetheless, you have given some thought to your future and expressed an intention to establish a career, which is also to be encouraged.

100 While you initially indicated to Mr Bellini your intention to reconnect with your stepmother and stepsiblings upon release, you told him in your second interview with him you would not do so. You have no other family you intend to reconnect with when released. Moreover, you are not in an intimate relationship. You said you wish to stay single and have no desire to find an intimate partner.

101 Following receipt of the Extended Pre-Sentence Assessment - Outcome Report, I sought further written submission from the parties. I received 'Prosecution Submissions on Sentence', dated 9 July 2021[32] and a 'Defence Response to Prosecution Submissions Dated 9/7/21', dated 13 July 2021.[33] I have paid careful attention to the submissions made in both these documents.

102 Despite now conceding Verdins principles 1, 2 and 3 (and perhaps, to some extent, principle 4 also is engaged) and accepting the relevance of the other mitigating factors relied upon by you, the Director maintains her position that the only 'appropriate disposition' is a term of imprisonment with a non-parole period. In other words, the Director effectively submits a combined sentence involving a sentence of imprisonment (which could be as great as 640 days or over 21 months) together with a substantial CCO, is 'outside the range' and therefore, presumably, not open to me to impose in this case.

103 Remarkably, despite accepting at the plea hearing that all six Verdins principles are engaged in this case, the Director now seeks to resile from that position and, as I read her submissions, now submits Verdins principles 4, 5 and 6 are not engaged.

104 So far as I can discern, nothing contained in the material provided since the plea hearing was relied upon to justify this charge in position. Rather, the failure of 'the pre-sentence report [to] address the role of the NDIS in the accused's treatment' and a failure of the pre-sentence report to 'address the current state of the accused's mental health whilst in custody' are relied upon for this change in position.

105 So far as Verdins principles 5 and 6 are concerned, much of the Director's post-plea hearing written submissions, prepared by a different prosecutor from the one who appeared at the plea hearing, appears to adopt a different approach to the effect of Ms Cidoni's report and the viva voce evidence she gave at the plea hearing.

106 Moreover, having accepted at the plea hearing Verdins principle 4 was engaged, the Director now submits: 'In light of all the circumstances the prosecution maintains that specific deterrence and community protection remain important sentencing considerations in this proceeding'.[34] Even if the Director did not previously concede specific deterrence was eliminated in this case,[35] her current position leaves little room for specific deterrence to be sensibly moderated, if it is to be 'an important sentencing consideration'.

107 In my opinion the Director's backflip is unfair to you because, had this been her stated position at the plea hearing, defence counsel would have had an opportunity to address these concerns though questioning Ms Cidoni, referring me to other materials such as Dr Walton's two reports and Dr McIntyre's report, and to make submissions addressing the Director's concerns.

108 Moreover, the Director's submissions lose sight of the fact that I must sentence you on the basis that you may serve every day of the 'head' sentence I impose and never be released on parole.[36] What then? You could be released into the community at the end of your head sentence with no support network in place.

109 Furthermore, I can combine a sentence of imprisonment with a CCO for a period of up to five years.[37] Given the objective gravity of the offending conduct, the likely impact on the victim of this crime, your prior criminal history and the mitigating circumstances which the Director concedes exist in this case, it would not be open to me to impose a sentence of imprisonment with a non-parole approaching anywhere near five years.

110 Finally, the Director's submissions addressing the relevance of Verdins principle 5 seem to confuse what the application of that principle involves. It is not a comparison between how well your mental health conditions could be managed on parole as against how they could be managed under a CCO. The comparison called for is between whether the sentence of imprisonment you serve would weight more heavily on you by reason of your mental health conditions than it would on a person in normal mental health serving the same sentence.

111 However, I do not need to resolve these issues because, on the whole of the material, I accept Verdins principles 5 and 6 are engaged in this case. I accept the evidence of Ms Cidoni, supported as it is particularly by Dr Walton's report and Dr McEntire's report. Based on that evidence, I am satisfied on the balance of probabilities any sentence of imprisonment I impose on you would weigh more heavily on you by, reason of your mental health condition, than a person in normal mental health. I am also satisfied on the balance of probabilities there is a serious risk of imprisonment having a significant adverse effect on your mental health. 'Significant adverse effect' is a flexible and imprecise concept.

112 In any event, after much anxious consideration, I have concluded that the purposes for which this sentence is imposed are best served by the imposition a combined sentence of imprisonment, which will involve you remaining in custody for a further approximately nine months, and then being released on a three-year CCO with a number of treatment and program conditions.[38] Apart from being, in my opinion, a just and appropriate sentence in all the circumstances of your case, this approach has the added advantage it will provide an opportunity for your mental health conditions to further stabilise with treatment that can be offered to you in custody, and allow the various support services, including the NDIS, to plan and prepare for your eventual release on the CCO.

113 As the Victoria Court of Appeal observed in Boulton v The Queen:[39]**

It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[40]

114 I have had regard to current sentencing practices in relation to the charge of armed robbery as informed by the decisions of the High Court in R v Kilic[41] and DPP (Vic) v Dalgliesh (a Pseudonym).[42] It is always difficult to gauge more than a general yardstick from so-called 'comparable cases', given the wide range of offending conduct that can constitute the offence of armed robbery and the myriad of personal circumstances pertaining to individual offenders.

115 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.

116 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, so far as is possible, you are rehabilitated and reintegrated into society.

117 Specific deterrence remains a relevant sentencing factor, albeit sensibly moderated by reason of your mental health conditions both at the time of the offending and at the time of sentence. There remains a need to deter you personally from committing further offences. Likewise, protection of the community needs to be taken into account but sensibly moderated for similar reasons.

118 Like her Honour Judge Fox, I find your prospects of rehabilitation are somewhat guarded. Whilst you do not have a lengthy criminal history, you do have significant mental health problems which, if they remain untreated, may lead you to commit further violent offences. In this context, it is noteworthy the present offence was committed less than three months following your release from custody and while you were serving the CCO imposed by her Honour Judge Fox. Although, I accept treatment for your mental health conditions and programs addressing your offending behaviours had not commenced at that time.

On the charge of armed robbery (Charge 1) you are convicted and sentenced to imprisonment for 18 months together with a CCO for three years to commence upon your release from custody, with the following conditions.

s 48CA all hours satisfactorily undertaken for treatment and rehabilitation are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

s 48D(3)(f) programs to address factors related to your offending behaviour

s 48K judicial monitoring on 29 July 2022 at 9.30 am

I declare that pre-sentence detention in your case is 275 days not including this day and I direct that that declaration be entered into the records of the Court.

In accordance with s 6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 3 years' 6 months' imprisonment with a minimum non-parole period of 2 years.**

[1] Contrary to s 75A of the Crimes Act 1958.

[3] See R v Miller [1995] VicRp 60; [1995] 2 VR 348, 354 (Southwell, Ormiston and McDonald JJ); R v Rankin [2001] VSCA 158 [10] (Winneke P, Vincent JA and O'Bryan AJA agreeing); MA v The Queen [2012] VSCA 214 [83] (Neave JA, Bongiorno JA and Whelan AJA agreeing).

[4] Record of Interview, conducted on 23 October 2020 (Ex G6), Q/A 44.

[6] Statement of Gopireddy Kommasani, acknowledged 19 October 2020, Depositions p 22 (Ex P2).

[11] See e.g., R v Smith (Unreported, Supreme Court of Victoria, Appeal Division, Court of Criminal Appeal, McInerney, Menhennitt and McGarvie JJ, 31 July 1978) 11.

[12] Ibid. See also R v Orlikowski (Unreported, Victorian Court of Appeal, Winneke P, Charles JA and Hampel AJA, 16 October 1997), 4.

[13] See Department of Justice and Community Safety, 'Extended Pre-sentence Assessment - Outcome Report' dated 17 May 2021 ('Assessment Report') (Ex C1).

[15] Ex G4. See below at [70]-[71].

[16] 'Psychological Assessment Report on Emily Becke (aka Matthew Grayson)' dated 10 April 2021 ('Cidoni Report') (Ex G3).

[17] Transcript, 4 May 2021 pp 24-41 ('T').

[20] [2020] VCC 1125.

[23] R v Verdins [2007] VSCA 102; (2007) 16 VR 269, 276 [32.4] (Maxwell P, Buchanan and Vincent JJA) ('Verdins').

[24] See Barbaro v The Queen [2012] VSCA 288; (2012) 226 A Crim R 354, 364-365 [32]-[38] ((Maxwell P, Harper JA and T Forrest AJA).

[26] See 'Prosecution Submissions on Sentence', dated 9 July 2021 (Ex P3).

[27] DPP v Emily Becke [2020] VCC 1125 [31].

[28] See Sentencing Act 1991 s 44.

[29] Pursuant to Sentencing Act 1991 s 8A.

[34] Exhibit P3 [22] (emphasis added).

[36] Power v The Queen [1974] HCA 26; (1974) 131 CLR 623; Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525; R v Chan (1994) 76 A Crim R 252, 255.

[37] Sentencing Act 1991 s 38(1)(b).

[38] See ibid s 5(3).

[39] [2014] VSCA 342; (2014) 46 VR 308.

[40] Ibid 338 [131] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).

[41] [2016] HCA 48; (2016) 259 CLR 256, 266-8 [21]-[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).

[42] [2017] HCA 41; (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).