DPP v Downing [2025] VCC 1498

Mr Downing has significant functional limitations across multiple domains that impact his daily functioning. Mr Downing has considerable difficulties understanding and expressing ideas, solving problems mentally, and retaining and manipulating information. These deficits see Mr Downing struggle with complex instructions such as recalling conversations or events accurately, and articulating his thoughts, as well as a disorganised memory. These results make it very difficult for Mr Downing to engage in logical reasoning, manage stress, and make sound decisions in everyday life.

1. In late January early February 2025, you were living in dire circumstances, sleeping in a tent and in a Mildura public toilet. Your home had been destroyed by fire. In that fire, your pet dog had been killed. You lost all of your belongings and became homeless. You had not long before lost your mother to heroin overdose.
2. At about 8.30 pm on 2 February, you entered the PJ's Foodworks supermarket in Deakin Avenue, Mildura. You went to the cool room and took a 10-pack of mixed Vodka drinks valued at $65. You were observed by staff, who confronted you when you attempted to leave. After a time you produced a pair of scissors, threatened Ajithan Jeyam and thereby were able to leave. I have viewed the CCTV footage of this. I accept that you did not enter the store with the intention of using a weapon, nor did you possess it for any offensive purpose. I accept that there was an element of your fear or panic in presenting it. You were not long after apprehended by police.
3. No victim impact statement has been tendered.
4. You seem to have suffered the delusion that shortly prior to the offending you had been shot in the toilet block; that your father had been murdered a few hours before.
5. Your bail was revoked on 13 February, and you spent over six months on remand until I granted you bail on 25 August. I see, given your circumstances, that custody to have already been a considerable punishment.
6. You were born and raised in the Mildura area. You were mainly with your father. An older brother has spent time in prison. Your mother suffered heroin addiction and died in 2024. You had only intermittent contact with her. A younger brother died in a motor vehicle accident in 13. Your father drank heavily after that.
7. You left the family at 25, faced there with homelessness. The Department of Families Fairness and Housing provided accommodation until the fire shortly before this offending.
8. School had been unsuccessful, clearly because of your cognitive and learning difficulties.
9. You have chronically abused cannabis from 12 and then alcohol. There has been longstanding mental illness including the need for psychiatric hospitalisation. In remand custody you continued to suffer hallucinatory and delusionary symptoms. You received the medications Avanza, Lyrica and Seroquel.
10. You have no real employment history but helped your father at times in his farm work. You presently live with him which will continue, at least in the medium term.
11. You receive a Disability Support Pension.
12. There arises the prospect of NDIS support with assistance toward that under the proposed Disability Justice Coordination Justice Plan.
13. In short, you are a highly damaged person, much, if not all of that, through no fault of yours.
14. Your criminal record states two prior court appearances, in 2021 for obtaining property by deception (no conviction was ordered) and in February 2023 for offences including possessing a weapon, burglary, and theft from a shop. You received a community corrections order, with work and therapeutic conditions. You successfully completed that.
15. Your record, given your circumstances, does not in my view state an essentially antisocial personality.
16. The objectively seen circumstances here evidence serious offending requiring consideration of moral culpability, deterrence, denunciation and proportionate punishment. However, there are important mitigating and moderating factors. They include the following.

(1) Your plea of guilty and remorse.

(2) Your personal history and circumstances, including particularly at time of offending.

(3) This includes consideration of your cognitive impairment and mental health. The principles of both Verdins and Bugmy apply, all of the Verdins principles in a substantial way. Further, I find that your impaired mental functioning meets the exception stated under s5(2H)(c)(i) of the Sentencing Act 1991 and permits therefore a sentence other than imprisonment.

(4) Rehabilitation cannot be seen as easy for you. However, you have limited prior offending and present accommodation support; and also will have the assistance recommended in the proposed Community Corrections Order and Justice Plan.

1. I find that further imprisonment of you would be cruel and unjust. It would serve no community interest.
2. You are found suitable for a community correction order. I shall impose that with conditions that support and therapeutic assistance to you. Stand up now please, Mr Downing.
3. I sentence you as follows:
4. On one charge of armed robbery, you are convicted and I impose a community corrections order of 18 months' duration. The usual terms apply.
5. The additional conditions as per the Assessment Report are as follows:

a) compliance with the Justice Plan filed with the Court. > > b) Supervision. > > c) assessment and treatment for mental health. > > d) assessment and treatment for drug abuse and dependency. > > e) assessment and treatment for alcohol abuse and dependency. > > f) participation in programs which address this offending, as you are directed.

6. Had you not pleaded guilty, I would have imposed a sentence of six months' imprisonment combined with a community corrections order.
7. Mr Oswald, are there other orders I need to make? The scissors come to mind. Are there any - I don't know whether they were retained by the police.
8. MR OSWALD: I might just need a moment to clarify that, Your Honour.
9. HIS HONOUR: Yes.
10. MR OSWALD: Yes, Your Honour, there is. There should be a disposal order for the scissors.
11. HIS HONOUR: All right, well look if that can be forwarded to me, I will sign that in Chambers. So I make that order.
12. All right, is there anything else I need to say or do?
13. MR OSWALD: No, Your Honour.
14. HIS HONOUR: Nothing else I need to say or do, Mr Hilton?
15. MR HILTON: Nothing from me, Your Honour. No, Your Honour.
16. HIS HONOUR: All right.
17. You've been able to do this before, Mr Downing. Good luck with this one. Just do what the people who are trying to help you, tell you to do. That's the trick to it. All right, good.
18. That you, Mr Hilton. Thank you, Mr Bellini. I'm sorry, I need to explain the order to you in greater detail, so just take a seat and what will happen, it will be sent to Mildura, and he'll need to sign it there, won't he. All right.
19. Mr Bellini, will his appointment with you be on Friday?
20. MR BELLINI: Yes, Your Honour at 2 pm on Friday.
21. HIS HONOUR: Good, all right, well I'll tell him that. All right, well what I need to do now, Mr Downing, is read out to you the conditions, what you have to do under this community correction order. Then I am going to ask you whether you understand it and agree to it, and then I will sign it, and then it will be sent to Mildura and you will have to sign it, all right. And the next thing you have to do is go to the Mildura Community Corrections Office in Madden Avenue, you know where that is, don't you?
22. OFFENDER: Yes.
23. HIS HONOUR: You need to do that at 2 o'clock on Friday, that's 2 o'clock on Friday 17 October. And now I am going to read it out to you now, all right.
24. The community correction order will last for 18 months and it starts today.
25. The usual terms/rules are these:
26. 1, You must not commit another offence for which you could be imprisoned. And that covers almost any offence at all, all right.
27. 2, You must comply with this rule, that you do not go to any appointment or program affected by alcohol or drugs or in possession of illegal drugs.
28. 3, You must report to and receive visits from Community Corrections.
29. 4, As I have already said to you, but I will say it again, you must report to the Community Corrections Centre at Madden Avenue within two days of the order starting. Your appointment is at 2 o'clock on Friday.
30. 5, You must let Community Corrections know within two days of a change of address or job.
31. 6, You must not leave Victoria without first getting permission from them to do so. Because it is in Mildura there are special permissions that may be given to do that, being so close to the river, but you need to discuss that with them if it comes up.
32. You are living with your father. Where is it, living in Merbein or?
33. OFFENDER: Red Cliffs.
34. HIS HONOUR: Overall, you have got to obey all lawful instructions and directions of Community Corrections. So you have got to do what you are told.
35. OFFENDER: Yeah.
36. HIS HONOUR: All right. Now the special conditions are that:

a) you be under supervision of a Community Corrections officer. > > b) you undergo assessment and treatment for drug abuse or dependency as you are directed, as you are told to do. > > c) you must undergo assessment and treatment for alcohol abuse or dependency, again as you are directed, as you are told to do. > > d) you must undergo mental health assessment and treatment as you are directed, in other words as you are told to do by Community Corrections. > > e) you must participate in special programs that address this sort of offending, the one the offence of which you pleaded before me. And again, you have got to do that as you are directed, or told to do so by Community Corrections. > > f) you must take part in what is called a Justice Plan under the Department of Fairness Families and Housing. You have met those people and both Mr Hilton-Wood and Mr Bellini, or whoever you speak to at the Community Corrections, will explain that to you, all right.

37. In short, as I said to you before, you have got to do what you are told to do, you have been able to do it before and if you are in any doubt about anything, if you are not sure, go to them and ask them and they will tell you what you need to do. Can you do that?
38. OFFENDER: Okay (indistinct).
39. HIS HONOUR: Can you do it?
40. OFFENDER: Yep.
41. HIS HONOUR: And that you understand what I'm telling you?
42. OFFENDER: Yes.
43. HIS HONOUR: And do you agree to this order?
44. OFFENDER: Yeah.
45. HIS HONOUR: All right, well I will sign it, given that I will sign it now and the order will be sent to Mildura, so you need to hang around up there until it arrives, and then you will be asked to sign it as well, and you will get a copy of it. All right.
46. OFFENDER: Okay.
47. HIS HONOUR: Remember, Friday 2 o'clock at Community Corrections in Madden Avenue, all right.
48. OFFENDER: No worries, yeah.
49. HIS HONOUR: Now good luck with it.
50. OFFENDER: Thank you.
51. HIS HONOUR: Anything else I need to do? Thank you for your assistance, Mr Bellini, Mr Hilton-Wood and others, and I will now turn you off. Thank you, Mr Oswald.
52. COUNSEL: The court pleases.