Director of Public Prosecutions v Abel

[2014] VCC 192

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR

DIRECTOR OF PUBLIC PROSECUTIONS

v

DENNIS JAMES ABEL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	26 February 2014
CASE MAY BE CITED AS:	DPP v Abel
MEDIUM NEUTRAL CITATION:	[2014] VCC 192

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	Ms J. Taylor
For the Accused	Ms S. McCrickard

HIS HONOUR

1Dennis Abel you have pleaded guilty to one charge of armed robbery and one related summary matter of use amphetamine.  Those crimes carry maximum penalties of 25 years and 12 months respectively.

2Firstly, pursuant to s.464Z(f)(b)(1) of the Crimes Act, I make a retention order in respect of the forensic sample, and that order is made and handed down.  Secondly, I make a disposal order on the terms stated and that order is made and handed down.

3You pleaded guilty at the earliest reasonable opportunity and made full admissions to police.  You are now 27 years of age.  I accept in the circumstances that you have expressed appropriate remorse, and you must of course, get the utilitarian benefit of that plea of guilty.  You do have a significant number of prior findings of guilt and have been incarcerated before.  However, on a perusal of your criminal record, nothing seems to have been quite in this league.  You have overall three co-accused who I'll be dealing with in the future.

4The offending involved you and a Mr Perry, a Ms Strickland and a Mr Pepper.  On 11 September 2013 in the early evening, the four of you discussed doing an armed robbery to buy methyl-amphetamine.  You drove to the Freedom Fuel service station in Sale, Perry and Strickland remained in the vehicle, and you and Pepper went inside.  You loitered for a few minutes and then left and went back to Perry and asked for a $20 note in order to get the till open.  You and Pepper then re-entered the store and the attendant opened the till to change the money.  When she did that you approached her and held a large kitchen knife to her body, screaming "Don't move or I'll stab you".  Pepper then removed approximately $360 from the till and you each fled the store.

5You went down York Street and met up with Perry and Strickland.  Perry was handed the stolen money and he went off to buy the methyl-amphetamine.  He drove the vehicle to the Sale Greyhound where the knife was got rid of and a taxi was ordered.  Perry and Strickland were able then to purchase cigarettes, alcohol and approximately $100 worth of methyl-amphetamine, some of which you used, giving rise to the related summary charge.  You were arrested a couple of days later and made full admissions, as I have indicated.  You gave detailed responses to the nature of the offending.  You pleaded guilty at the earliest reasonable opportunity, and made a full and frank record of interview.

6The victim impact statement in this matter speaks eloquently of why armed robbery is such a serious crime.  The lady involved thought that she was going to be hurt, and was worried that her children, that night, would not have a mother.  She's been having nightmares and finding it difficult to sleep.  It has left her with a continuing sense of insecurity, and obviously, and very stressed when she has to work.  She lost four days' work because of this, and it is clear from the victim impact statement that that $400 was of real significance to her.  In effect, the four of you spent it on cigarettes and drugs.

7As I have said, that victim impact statement speaks eloquently of why armed robbery, particularly in a situation like this on a soft target, is such a serious crime.  It must be regarded as serious, and causes the application of general specific deterrence as well as denunciation, punishment and appropriate community protection.  A significant gaol sentence is inevitable.  I then look at matters personal to you in determining the length of that gaol sentence to be served.

8You participated in Koori Court and doing that does not of itself reduce the seriousness of an offence or mitigate it, but I think Mr Abel, in your situation this is a perfect example of why Koori Court exists.  Having looked at the material and your responses to various things one started off with the impression that you probably could not have cared less.  However, having seen how you dealt with yourself dealing with the Elders, the way you were able to, with your limited capacity, to express yourself, I thought that you showed proper respect and a proper sense of remorse.  It is not an easy task to sit there and be confronted by your Elders, not only in the sense of your offending against yourself, but you are really offending against your own culture.  When people in your situation do this, as Uncle Lloyd Hood would say, "Every black fella in the state has to cop it".  However, you showed the courage to do that and I think you have a desire at least, to try and rehabilitate yourself.  You accepted within your own capacities the effect on the dictum, and again had the courage to be confronted by that.  Accordingly having appeared here, I think you are in a far better position than you would otherwise have been, because those factors in mitigation, which were not apparent, have become very clear I think, to anyone who was sitting in the room during that sentencing conversation.

9You are now 27, you are of obviously aboriginal heritage and you have significant prior convictions.  The decision of Bugmy clearly has application in your circumstances.  I am not going to go through all the detail of this.  You commenced using drugs when you were 12, and around about the time of this offending were using ice.  Yours is a not untypical story, and is one that has best as it can be to be addressed. 

10You have two children, ten and eight I think you said they were, and you are now unable to see them.  The Elders pressed upon you the need to try and remedy that situation, but I would suspect deeply that the reason you cannot see them is probably got to do with drugs, and the only person who can stop the use of drugs and turn that around is you.  That is clearly the situation.

11Very significantly, in your circumstances, there is a DHS report which confirms that in 1999 you were diagnosed as having an intellectual disability.  That was described as mild, but I cannot think of the name of the decision here, but it was a High Court decision in recent times, which points out that 'mild' does not mean mild as it might to a lay person.  'Mild' is significant.  You are illiterate and suffer all the consequences that go with that.  It makes it difficult to get employment, and I can understand, having had to deal with people with that problem before.  It creates a sense of frustration and hopelessness which is difficult to get around.

12I think clearly in your situation with the intellectual disability, that there is some limited lessening of moral culpability, but general deterrence and specific deterrence need to be appropriately moderated.  You are not in protection and I do not think there is anything particular about your circumstances that make gaol harder for you, but I think in the matters the way I have described, those principles do have to play a significant part.

13The prospects of your rehabilitation are entirely up to yourself.  You, I have no doubt, do not want to be like this.  Your community does not want you to be like this, and the only person who can stop you being like this is you.  I think you accept that if you continue using that iniquitous drug ice that you will yourself either die, or there is a real possibility that you will be seriously hurt, or kill some other person.  If that happens, your children will never have a father and I think that is something you are conscious of.

14The risk of you re-offending if you are using ice has to be extreme.  If you are able not to use it, then the risk of you re-offending should dissipate.  You have been addicted to heroin and are presently on a methadone program.  Because you have been on remand, you have been unable to undertake any real courses of education, but upon being sentenced and assessed, you will be able too.  I accept what you told us all at the table, that you wish to endeavour to alleviate your inability to read and write, and that you want to do courses which will assist you upon your ultimate release.

15You are clearly aware that in the past after release, you have associated again with people that Uncle Lloyd Hood described as 'idiots'.  When you complete this sentence it is really up to you how you go about all that, but I have no doubt that if you do go back to those ways and those people, we will see you again.

16Of interest to me, and others, was the fact that you have spent a couple of months out at Wangala Gnalu, which is a place where young aboriginal men contemplate their existence and become more acquainted with their culture.  You clearly went okay out there, where there were no temptations and people all had a joint purpose.  As madam prosecutor said, Wangala Gnalu is a place of hope.  But as yourself indicated upon coming out of there, having done all right, you went back to the "Idiots".

17It is a situation where I will be giving you an opportunity for parole at a stage earlier than might otherwise have been the case as indicated during the course of the plea.  That is becoming a somewhat problematic course of events, and it would be sad indeed, that somebody who was at your stage of life with the capacity to turn it around, is deprived the opportunity of a proper coordinated return into the community.  I have no doubt that the community overall, will be suffering the consequences of what has happened in the last 18 months in the future, so far as parole is concerned.  But taking all those matters into account, and remembering that it is serious offending, and there has to be a significant custodial sentence, but taking into account your particular circumstances, your sentence is as follows.

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On the charge of armed robbery; two years and six months, on the uplifted charge of use amphetamine; one month, that is to be served concurrently with the armed robbery charge.  I direct that you serve a minimum term of

15 months before becoming eligible for parole, and I direct that 158 days be reckoned as having been served under this sentence.  So that you fully appreciate the benefit of your plea of guilty and the fact that you did cooperate with police, I say that but for your plea of guilty - in other words if you had pleaded not guilty and tried to fight it out - I would have given you four with a three.

19HIS HONOUR:  Any other orders I have to make?

20MS TAYLOR:  No Your Honour.

21HIS HONOUR:  Good luck with it all, okay.  And when they do let you go ultimately, you know there are people you can go to.  Do not go wandering.  Do what Uncle Lloyd Hood said; contact community okay, it is your best chance, that's if Uncle Lloyd Hood is still around.

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