Director of Public Prosecutions v Abbott

[2016] VCC 1317

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

AT GEELONG
CRIMINAL JURISDICTION

CR 16-00632

DIRECTOR OF PUBLIC PROSECUTIONS

v

COREY DEAN ABBOTT

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	30 August 2016
CASE MAY BE CITED AS:	DPP v Abbott
MEDIUM NEUTRAL CITATION:	[2016] VCC 1317

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K.J. Doyle	OPP
For the Offender	Mr B.D. Nibbs	Melasecca Kelly & Zayler

HER HONOUR:

1Corey Abbot, you have pleaded guilty to eight charges arising out of three separate incidents, all occurring on 5 November last year. 

2In the first, at about quarter past five in the afternoon you went to the Healthy Life Health Food Store in Pakington Street.  You, after some time, took yourself down to the rear office where you spoke to the proprietor and, ultimately, grabbed his laptop and another bag.  He tried to retrieve it from you and escort you out of his office.  You threatened him and then produced a knife.  You told him that you were going to stab him if he did not hand over his bags. 

3There was a further scuffle between you, the owner or victim, Mr Van Etten and a customer who had, by then, come into the shop.  The customer and Mr Van Etten were at times trying still to retrieve the bags and the laptop that you had taken, and you were trying to hold on to them. 

4Ultimately, Mr Van Etten grappled with you, tried to grab one of the bags and to grab hold of the hand in which you were still holding the knife.  There was a struggle and the two of you fell to the ground.  You stabbed Mr Van Etten a number of times.  He tried to get away from you.  You pursued him and stabbed him once more after he had run away, this time to his upper torso just above his right nipple.  The other stab wounds were to his upper right thigh, his wrist, the front of his right shoulder and below his pectoral muscle. 

5You had a further wrestle for the goods with the customer before she slapped you across the face, told you you were not having them, which ultimately made you leave the store.  You were then locked out. 

6Having been locked out, you picked up the BMX bike that you had arrived at the shop on and threw it at the door of the store, causing damage to the glass panel.  As a result of that you have pleaded guilty to one charge of attempted armed robbery of the laptop and other bag; one of intentionally causing injury by reason of the stabbings to Mr Van Etten, and one of criminal damage by reason of the throwing of your bike at the door of the shop after you have been locked out. 

7Two hours later you went to a residential property in Coxon Parade, North Geelong.  You smashed a window in the front door which enabled you to enter the premises.  You stole two flat screen TVs and then attempted to transport them on the BMX bike which you had retrieved from the front of the shop, that was the subject of the first incident. 

8You tried to balance them on the BMX bike along Stubbs Avenue, and then Melbourne Road near North Geelong train station.  You were stopped by a man driving by and the televisions were recovered.  That gives rise to the charge of burglary, breaking into the home and, theft, stealing the two flat screen TVs. 

9The third incident commenced about two hours later again.  You had, it would appear, since your last release from prison, been staying with a friend in Norlane.  You had got home to her place by about 9 pm and a friend of hers, the victim of the third set of incidents, Richard Dart, went to the house to visit his friend, the occupant, Ms Bradley. 

10For reasons that are entirely unexplained, you punched Mr Dart to the face numerous times and then when he fell to the ground continued to assault him.  You broke, and knocked out, his two front teeth, and there were obvious injuries seen later, to the right side of his face, and his right eye was blackened. 

11You presented a kitchen knife to him, held it to his throat and threatened to kill him.  At some stage, as a result of the knife being produced, Mr Dart sustained a cut to his finger, what we call a defensive injury. 

12You then told him that you were taking his car and he had to accompany you.  Then, in addition to the knife, you produced a home-made pen pistol, cocked the firing pin, pointed it at Mr Dart's head, threatened to shoot him if he did not comply.  You made him clean up his blood that was on him and around the premises, as a result of your assault. 

13You then forced Mr Dart into his car, which was outside the house, he taking a seat in the passenger seat, you driving it.  You had the knife and the pistol readily accessible to you.  He was terrified and he described you as ranting crazy stuff and sweating badly. 

14That you were impaired by substances is the obvious inference and that was also something that had been apparent to Mr Van Etten, the victim of the first incident. 

15You then kept Mr Dart in his car for a period of close to two hours.  You stopped at times, but warned him that if he got out or tried to escape, that you would harm him and his family. 

16Ultimately, by about 11 o'clock, when you were in the Woolworths car park in Aberdeen Street, you ordered Mr Dart out of the car and then ordered him back in.  He, however, refused to re-enter and you drove off, but before you did so, you threatened to kill him and his family if he told anybody. 

17Mr Dart was so terrorised by what you had done that he did not in fact report what had happened to him to the police that night. 

18Mr Dart's car was found a couple of hours later at about midnight bogged in a vacant block in West Geelong.  A small black pen gun consistent with the description of the one used to threaten Mr Dart, was found in the grass near the car. 

19You were arrested the following morning at the house in Norlane where you had started the assault on Mr Dart.  Ms Bradley, the occupant with whom you had been staying, gave police the knife that she said you had come home with in the early hours of the morning.  It is as a result of those matters that you pleaded guilty to armed robbery of Mr Dart, the armed robbery of his car.  Intentionally causing injury to Mr Dart, the punching and assault to him in the house before driving off, and also to the charge of being a prohibited person in possession of a firearm.  The possession of the firearm being established both by the description given by Mr Dart of its presence from immediately before you forced him into the car, throughout the time you were in the car, and its presence, by the car after it had been abandoned.  

20You were, following your arrest the following morning, remanded in custody, and have remained in custody ever since. 

21You are a prohibited person in relation to the possession of the firearm by reason of your criminal history. By s.3 of the Firearms Act, a person is prohibited from having possession of a firearm if not more than five years has expired since the serving of a term of imprisonment of less than five years' for the commission of an indictable offence.  You were within five years' of the completion of three separate terms of imprisonment for the commission of indictable offences, having been sentenced in May 2013, to a period of one months' imprisonment for arson; in February of 2012 to one years' imprisonment for charges of theft, handling stolen goods and driving whilst disqualified; and in December 2012, to three years' and six months' imprisonment, for recklessly causing serious injury. 

22In addition, at the time of the offences for which I must sentence you, you were subject to a community correction order which had a supervision condition attached.  That also prohibits a person from possession of a firearm for a period of five years. 

23You pleaded guilty to these charges on 18 April 2016.  That is about five months after you were arrested and remanded.  It is accepted by the prosecution and accepted by me that in the circumstances, that is to be treated as a plea of guilty at an early stage, and you are clearly entitled to have that taken into account in your favour. 

24Victim impact statements have been filed both by Mr Van Etten, the victim of the first incident, and Mr Dart, the victim of the second incident.  The effects on them have been profound.  Mr Van Etten owned and managed the business that you broke into.  He has lost his sense of safety, and has experienced real difficulties in coping with the after effects of it; the fear for personal safety, the fear for his wife who worked with him, the fear for the impact on his customers, and the fear of his family.  He feels generally unsafe in the premises. 

25The physical effects were obviously significant as well, but, fortunately, he seems to have made a recovery from them. 

26Mr Dart also has suffered significantly as a result.  He too continues to re-experience and re-live what has happened, as has Mr Van Etten.  He feels that he comes across as angry and nervous these days, whereas before he felt that he was a much more easy going person.  He finds difficulty in focusing and concentration.  He avoids being out in public places and going to see people.  His concentration has been affected and that has impacted upon his driving and his confidence in the way he goes about his work. 

27What they say, each of them, is clearly within the bounds of generally of what one would expect people to feel as a result of violent unprovoked attacks on people just going about their business or their daily activities.  Each of them say that they should have been able to just go about doing what they were doing without causing any harm to anybody, and without fear of a violent assault, in the way that each of them was subjected to. 

28It is clear that, subject to considerations personal to you, the nature and gravity of these offences, the fact that there were three separate episodes, all of them carrying such a disregard for other people's rights and property within such a short space of time, mean that just punishment, denunciation and deterrence must play a significant role in sentencing. 

29You have a very, very substantial criminal history.  You are only 30 years of age and it runs to 13 printed pages.  On my calculation, you have, since becoming of an age where you could be dealt with in the adult jurisdiction, so that is excluding any Children's Court matters, been sentenced twice before this court, once for robbery and once for recklessly causing serious injury. 

30You have been sentenced sixteen times in the Magistrates' Court for a variety of offences involving the whole range of property damage, physical attacks on people, theft, burglary, driving offences, arson, and drug related offences. 

31You have appealed two of those Magistrates’ Court outcomes to this court.  One of them was a significant consolidation of a whole series of charges.  So you have been before this court on four occasions; twice for primary sentencing and twice on appeals. 

32On my count you have twice before been sentenced for recklessly causing serious injury; once for intentionally causing injury and there have been other, I think, summary assaults. 

33You have twice been convicted of robbery and once of attempted robbery and once of false imprisonment.  All these are offences having similarities to the offences here.  There have been quite a number of burglaries and thefts also. 

34It is clear from that criminal history incurred since you were 18 years of age, that you have spent a considerable time in custody, and very little time at liberty in the community since you were 18 years of age.  In fact, I am told that since the age of 14, when you were first sentenced to a period of youth detention or placed in secure welfare as a result of being a child in need of care and protection, you have spent no more than 12 months in any continuous period at liberty in the community. 

35You have, as Mr Nibbs history recounted on the plea and as the history recounted by you to the psychologist Mr Ball, who provided a very helpful report, had a childhood and upbringing of significant disadvantage. 

36Each of your parents was throughout your life with them, significantly affected by their own substance abuse.  Your mother, I am told, was a heroin addict and also used cannabis extensively.  Your father had alcohol as his main substance of abuse. 

37You seem to have spent most of your childhood, up to the age of about 12, under the care of your father, although "care" may be, from the descriptions, too kind a word for it.  You were sent to Western Australia for a short time to live with your mother, but her substance abuse was such that she was unable to care for you, and by the time you are 12 or 13, you had returned to Victoria and had been placed under the guardianship of the Secretary. 

38You had, before that, during your primary schooling, been a difficult and disruptive child.  How much of that was environmental and how much of that is something else is a little hard to work out now.  You were diagnosed with attention deficit hyperactivity disorder and prescribed Ritalin.  The administering of that to you seems to have been erratic; not surprisingly, given your lack of proper parental care and guidance. 

39Your behavioural problems meant that your schooling was extraordinarily disrupted.  You were expelled from a number of schools.  No care seems to have been put by your parents into trying to keep you in school or keep you in education and you completed your schooling early in your first year of secondary schooling having, as I understand it, been expelled yet again.  You are still, at the age of 30, unable to read or write, or add. 

40A recent assessment conducted of you by Mr Ball for the purposes of this plea indicates that on the Wechsler abbreviated scale of intelligence, you registered a verbal comprehension score of 54; a perceptual reasoning index score of 65; and a full scale IQ of 57, placing you in the lowest one percentile of the community. 

41Mr Ball, in his report said this, "Mr Abbott impressed me as a low-functioning and dependent man significantly impaired in his capacity to exercise good judgment.  He possesses no insight into his alleged offending, or his own psychological functioning.  He presented with a history of substance abuse and failing to plan and execute positive and self-sustaining behaviour.  He presented as living on the fringes of the community in association with negative peers." 

42Mr Ball did note that despite your reports of your diagnosis with ADHD in childhood, you presented as asymptomatic for that disorder when he interviewed you.  

43You acknowledged to Mr Ball, as you did to Mr Nibbs and, as your criminal history makes clear, a long history of substance abuse; not surprisingly, given the disadvantage and deprivation of your background.  The substance abuse started when you were very young and has not abated.  

44As Mr Ball said, "Mr Abbott acknowledged a history of prior offences which he related primarily to substance abuse."  He quoted you as saying, "Drugs are a big factor and hanging around the wrong people all my life.  Housing has always been a big problem, the longest I've been out of gaol in 12 years is three months." 

45Mr Ball said your social reasoning reflects your persisting dependent and antisocial personality features and what he described as a "markedly dull intellect".  He said you tend to be impulsive, often making poor decisions, that you learn poorly and slowly from negative consequences and you have that history of long-term drug and alcohol abuse. 

46You suffer, he says, "a raft of dependent and antisocial personality features."  You operate on the assumption that you are not capable of taking care of yourself and must find someone dependable who will support and protect you.  Certainly, you did not have that someone dependable as a child. 

47He reports you feel inadequate and insecure most of the time and see yourself as being less effective or able than everybody else. 

48He said, the antisocial features of your personality mean that you are mistrustful and suspicious of others and your behaviour is guarded and reserved.  You live in hope that with the people you have risked depending on, you can be strong, realistic and determined in life.  Although you do not feel tough or secure by yourself, you look to others to provide protection from what you perceive as a cruel and insensitive world in which people are interested only in personal gain. 

49You feel vulnerable and threatened most of the time and respond with maladaptive behaviour such as substance abuse. 

50So far as your intellectual impairment, it was Mr Ball's opinion that it was congenital rather than acquired.  If that is the case, that may well mean that you are eligible to receive assistance from Disability Services, and I can only recommend in the strongest of terms to the prison authorities who will be responsible for your care in the immediate future and to the Parole Board, that proper investigation in relation to your intellectual impairment, and your eligibility for assistance from DHS is properly investigated.  If you are to have any hope of being able to leave a meaningful, happy, fulfilling and offence free life on the outside, it is only going to be with considerable support. 

51Mr Ball went on to say, your intellectual impairment has been, and will continue to be lifelong, that you must have been affected by your intellectual impairment and the dependent and antisocial features of your personality at the time of your offending, and that your dependent and antisocial features, whilst not necessarily lifelong, remain operative and will require long-term treatment and management. 

52He is of the view that you satisfy the DSM5 diagnostic criteria for antisocial personality disorder, as well as severe opiate stimulant and benzodiazepine use disorder in early remission by reason of your now being in a controlled environment. 

53Mr Ball concluded in these terms.  "Mr Abbott's safe management in the community presents with a number of challenges.  He will require intensive and structured cognitive behavioural treatment to address the dependent and antisocial aspects within his personality.  He will also require drug and alcohol relapse prevention treatment.  He may derive some benefit from mood management.  Homelessness remains a habitual trigger for rapid relapse and will need to be adequately addressed upon his next release.  Such treatment and services might be provided under the auspices of a community correction order, justice plan, or similar conditional release."  

54Unfortunately, the severity of your offending is such that those options are not available, but the recommendations as to treatment are, again, recommendations that I can only urge in the strongest of terms, be followed up on by Corrections both during the term of your imprisonment, and upon your release. 

55As I said to Mr Nibbs in the course of the plea, and as Mr Nibbs, himself, was very astute to point out, yours is a very complex sentencing issue.  The disadvantage and deprivation you suffered in childhood, the early onset of your substance abuse, so much a product of that deprivation and disadvantage, leaves scars that will be with you for life and, as the High Court said in Bugmy that disadvantage must continue to be taken into account as a mitigating factor in sentencing.  The effect of such deprivation does not wear off as a person gets older. 

56On the other hand, the offending history and the assessment of Mr Ball, makes it clear that protection of the community also becomes a significant sentencing factor. 

57Whilst the weight to be given to specific deterrence can, indeed, be moderated to some extent, by reason both of the entrenched disadvantage and by reason of your limited intellectual functioning; nonetheless, the needs of general deterrence and of punishment and denunciation must also be served. 

58What I am going to do, consistently with the submissions made by Mr Nibbs is to fix what I consider to be a significant gap between the head sentence and the non-parole period and to urge the Corrections authorities to assist you to equip yourself with some of the tools that you may need and that you have not been assisted to obtain to date to enable you to live an offence-free and substance abuse free life in the community. 

59I have been given the reasons for sentence delivered by His Honour Judge Smallwood when he sentenced you 11 years ago in December 2005 and His Honour Judge Mason when he sentenced you four years ago in December 2012.

60Each of them said this about your prospects. 

61Judge Smallwood said: 

"Your prospects for rehabilitation and your risk of reoffending are totally problematical.  For someone who has been a Ward from the age of 13 to 18, to go through life not offending again would be, in my view, pie in the sky.  However, the community would want you to be given whatever opportunities can be given to you to get your life together.  If you can somehow do that, your risk of reoffending should decrease dramatically." 

62The 11 years since then have not worked that well for you, but his words are as apposite now as they were then.

63Judge Mason said: 

"In essence I accept that you have underlying emotional and intellectual difficulties, compounded by a history of long-term poly substance abuse.  Because of your very early developmental history, that substance abuse has most probably commenced with a process of self-medication to relieve unpleasant feelings and has developed into addictive behaviour.  You now present with a complex psychological and addictive profile, and it will be very difficult for you to break your cycle of offending without very close and carefully structured professional assistance." 

64And you told His Honour then that was exactly what you needed; it is still the case and I hope that you continue to want to avail yourself of the opportunities that are offered to you, so you can look forward to a better future. 

65I take into account that you are making plans for the future and you could give concrete expression to them to Mr Nibbs:  to get access to programs, to be sentenced as quickly as possible so you can get access to programs in prison; to apply for, and to seek to convince the parole authorities that you should be released on parole; to maintain links with two friends outside who will give you a place to go upon your ultimate release;  to plan to reunite with your brother in Western Australia and have a fresh start in a different State away from the influences that have so clearly perpetuated your cycle of drug abuse and offending, and to try and take advantage of that for an opportunity for a fresh start. 

66You are only 30.  You have got the opportunity to do it, and I can only hope that this sentence will provide some structure to assist you to achieve that, and some hope that you are worth still hoping for. 

67Could you now please stand, Mr Abbott.  On the eight charges to which you have pleaded guilty, you are convicted. 

68On Charge 1 of attempted armed robbery, you are sentenced to be imprisoned for a period of three years, and I direct that six months' of that be served cumulatively upon Charge 2, which I am making the base sentence, and on the other partial cumulation orders. 

69On Charge 2 of intentionally cause injury, you are sentenced to be imprisoned for a period of three years. 

70On Charge 3 of cause criminal damage, you are sentenced to be imprisoned for a period of six months and three months of that is to be served cumulatively. 

71On charges 4 and 5 of burglary and theft, you are sentenced to an aggregate term of imprisonment of 18 months, and six months of that is to be served cumulatively upon the other sentences or partial cumulation orders.  

72On Charge 6 of armed robbery, you are sentenced to be imprisoned for a period of three years and 12 months of that is to be served cumulatively. 

73On Charge 7 of intentionally cause injury, you are sentenced to be imprisoned for a period of three years and I direct that six months of that be served cumulatively; and

74On Charge 8 of being a prohibited person in possession of a firearm, you are sentenced to be imprisoned for a period of two years, and six months of that is to be served cumulatively. 

75That makes a total effective sentence of six years and three months, and I fix the period of three years and nine months as the time that you must serve before being eligible for parole. 

76I declare that you have spent 298 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served. 

77And I make the disposal and forfeiture orders sought.

78Pursuant to s.6AAA, I declare that but for your pleas of guilty I would have sentenced you to a total effective sentence of nine years and six months and I would have fixed a period of six years as the time that you would have had to serve before being eligible for parole.

79Any further orders?

80MR DOYLE:  No, Your Honour.

81MR NIBBS:  No, Your Honour.

82HER HONOUR:  Does the sentence that I pronounced reflect what I said I intended to do?

83MR DOYLE:  Yes, Your Honour.

84MR NIBBS:  Yes, Your Honour.

85HER HONOUR:  And the arithmetic is correct?

86MR NIBBS:  Yes, Your Honour.

87HER HONOUR:  Thank you both, Mr Doyle and Mr Nibbs for your assistance.  Can you remove Mr Abbott please.

88(Offender removed.)

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