Director of Public Prosecutions v Adams

[2019] VCC 690

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00618

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASON NICHOLSON ADAMS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 May 2019
CASE MAY BE CITED AS:	DPP v ADAMS
MEDIUM NEUTRAL CITATION:	[2019] VCC 690

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

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr A. Moore
For the Accused	Ms W. Gibbons

HER HONOUR:

1Jason Nicholson Adams, you have pleaded guilty before me to two charges of theft and one charge of attempted armed robbery.  The facts underlying your offending are as follows.  Between 4.30 pm on 20 March 2018 and 12.30 am the next day, you went to 88 Broom Street, Geelong where you entered the rear carpark and disturbed a number of stacked boxes in the cardboard area.  You were drunk at the time.

2You remained there for about thirty minutes reading books in the backyard and at some point took a yellow raincoat valued at $20 which was located in the rear shed.  On 21 March 2018, two police attended and processed the crime scene and collected a DNA swab of what seemed to be blood from the carport's concrete floor.  This was forwarded to the Victoria Police Forensic Service Centre for analysis.

3On 23 March 2018, you returned to this address and spoke to the victim in relation to this theft, who is the owner of the property, Ms Heather Boal.  You asked for the return of your shoe which you had apparently left there, as you could not afford to buy any others and she gave it back to you.  On 1 May 2018, police were notified that the DNA sample had been identified as deriving from you.

4On 12 December 2018, you were arrested and taken to the Geelong police station for interview during which you admitted to attending the premises, going through boxes and taking the yellow rain jacket.  You told police you believed it had been abandoned.  You told police that you had been reading books for about thirty minutes before leaving.  You were charged with theft and released on summons to appear at the Geelong Magistrates' Court on 29 March 2019.  Ms Boal declined to make a statement to police.  Those actions underlie Charge 1 on the indictment, a charge of theft.

5Charge 2 relates to an incident which occurred at about 7.12 in the evening of 28 December 2018.  The victim was Mr Amir Hadari, who ran a business from a shop in Little Malop Street called 'Amir's Alterations'.  He told police that he had seen you hanging around his shop on previous occasions.  You went into the shop and took hold of a pair of gold handled fabric scissors on the tale and threatened Mr Hadari with it, saying 'Give me money'.  You then went to the kitchen at the rear of the shop and tried to open a door that leads to the rear, then returned to the shop searching through the store for unknown items.  Those actions underlie Charge 2 on the indictment, attempted armed robbery.

6Charge 3 on the indictment, theft, relates to the same incident when you returned to the back of Mr Hadari's store and kitchen and went out through the store entry at which time you were still in possession of the scissors, which are the subject of the theft.  Mr Hadari called police and watched you walk along Little Malop Street, recognising you as you were always outside the store and staring at him. 

7You went into a business in Little Malop Street called 'Fantastic Chinese Massage' where you sat on a chair next to the backdoor for about thirty seconds and then tried to open the backdoor, succeeding after a number of attempts and going into the back of the building.  You opened the door for the switchboard and walked upstairs.  The business owner Mr Shower lost sight of you at this point.  He left his shop when you entered, locking the door behind him to prevent you from returning.

8Mr Shower went outside his front door and saw police, telling them that you had gone upstairs and showing them the way.  Mr Shower had recognised you as a person who had often slept outside his store, although he had no issues with you in the past.  On the morning of the offending, you kicked Mr Shower's shop door and spilled red wine outside the premises.

9At about 7.12 pm, police received a job for a brawl in Little Malop Street, and upon arrival, found that other police were already at the scene.  The job for the armed robbery at Amir's Alterations was called in on over the radio.  Police spoke to Mr Hadari who indicated your last known location and police turned up a flight of stairs in Rock O'Casual Lane and countered you at the top floor of a building and you were told not to move.  You were told you were under arrest, you raised your fists and said 'If you want to go, I'll go you'.  You were sprayed with capsicum spray as you approached police, then you said you gave up and removed scissors from your pants before throwing them on the ground behind you.  You were tackled to the ground by police.

10In a record of interview that evening, you admitted taking the scissors, saying the reason for doing so was that they were nice, but denied ever threatening or robbing anyone.  You were remanded in custody on charges of attempted armed robbery and theft. 

11Mr Hadari made a victim impact statement in which he described the fear you aroused in him when you entered, as you were aggressive and frightening, he being a small man of slight stature, only 62 kilos, while you are clearly a large man well over six foot.

12He said the incident had left him feeling vulnerable, especially when working alone at night.  He said he often replays that day in his mind, thinking what might have happened had he been stabbed and said he was particularly concerned about you returning to his business and seeking retribution.  He believes he has been traumatised by this incident.  He notes that his business is his livelihood and that he is not sure if he can overcome his fears and continue in that business.

13This would significantly impact on his finances.  He stated 'I may have to consider closing altogether and seek alternative employment, or I may need to relocate somewhere where I feel safer'.  So that has been a nasty effect you have had on this man.

14The maximum penalty for attempted armed robbery is 20 years imprisonment.  The maximum penalty for theft is 10 years imprisonment.  You have been remanded in custody since 29 May 2018.  In that time, you have been held in the Roswell Unit in Marngoneet Prison where you have effectively detoxified from alcohol and it is quite clear that alcohol is your problem.  I now turn to your personal circumstances. 

15You are now 38 years of age.  Up until two years ago, you had had a fairly good work history, but alcohol has always been a problem for you.  In his report dated 29 April 2019, psychologist David Ball notes that you have since your teenage years you have suffered from Tourette's Syndrome, as well as attracting a diagnosis of ADHD and a mild or borderline intellectual disability.  It appears over the years that the difficulties presented for you have resulted in you often turning to alcohol for relief.

16You are the only child of your parents who separated when you were about five.  Your father re-partnered and you enjoyed a good relationship with her.  You told Mr Ball that your parents also maintained a good relationship with each other.  Mr Ball said you described a mostly functional and cohesive upbringing.  You said there was no criminality, domestic violence, substance abuse or mental illness amongst family members and that you were treated affectionately and were disciplined appropriately.

17You attended school to Year 11.  You had an aid during primary school as a consequence of your Tourette's Syndrome, but you reported no difficulties with social development and only a minor issue with discipline.  You began an apprenticeship as a chef, but did not complete this and then worked for about ten years as a removalist, but had problems with punctuality.  About two years ago, about eighteen months prior to this offending, you underwent a number of stressful incidents, essentially both your biological mother and your step-mother died, as did an uncle, all of whom had been significant props in your life.  It was at this time that your drinking escalated to the point where you could no longer work and to the point where you effectively, and it would almost seem voluntarily, became homeless.  Your counsel, Ms Gibbons, described you essentially taking up a swag and living in a homeless way and knocking around, if I can put it that way, with other homeless people.  This came to an end when you were arrested for this offending.

18Gaol unsurprisingly has been in a way good for you.  You have received an amount of support and an amount of counselling, you have detoxified and your counsel informed me that for the first time in many years you feel motivated to do something about your life.  You do have some difficulties in that your father has moved to Sydney and there has been a difficult relationship since your alcohol use got out of control.  This is something that you hope to resolve.

19I received a letter from a former treater attesting to your diagnosis of Tourette's Syndrome, Attention Deficit Hyperactivity Disorder and borderline to mild intellectual disability.  You have got some prior criminal history beginning in 2000, starting with a theft.  There is then some driving offences including unsurprisingly a drink driving charge in 2001.

20In 2005, you were dealt with for recklessly causing serious injury, robbery and intentionally damaging property.  For this you were placed on adjournment with a good behaviour component and a condition that you attend upon Dr Jennar, your then treater.  The history goes on with some gaps in between.  You were next dealt with in 2009, again for drink driving.  Then again for drink driving and other driving offences in 2012.  Your last appearance was in 2017 where you were dealt with for being drunk in a public place, failing to answer bail, shoplifting and concerningly, possessing methylamphetamine.

21Your counsel Ms Gibbons informed me that methylamphetamine or ice was something that you would use once a week, when your pension cheque came in, that it was not a drug that you particularly liked, which is fortunate and that really you saved most of your pension money for alcohol. 

22You have been in gaol now for something in the region of almost five months and you appear to have progressed well there.  It was submitted to me that you have positive rehabilitation prospects given your limited criminal history regarding offences of violence.  You have a stable work history and I acknowledge the efforts that you have made in order to follow up treatment, because you really do wish to address your alcohol addiction.  That is, you have had preliminary contact with Foundation 61 which is a residential detoxification and treatment program that you wish to enter on your release from prison.

23You have been working hard with a crop worker whilst in gaol and a short-term plan has been devised surrounding your release which would involve you being placed by the Salvation Army in temporary accommodation, probably a motel for a couple of days, before you move into Samaritan House which is a semi- to long-term residence which is available for you.  It is your desire and your aim to gain entry into foundation G1, and you have also attended regularly upon Alcoholics Anonymous whilst in gaol.

24I am satisfied in light of those circumstances and in relation to the nature of this offending, which is clearly indicative of your chaotic lifestyle, your homelessness and adult state of mind, that you do not present the danger to the community that you did then.  I think it is helpful that advantage is taken of your desire to get your life back in order and it has been in order previously, I am satisfied of that, and that this can be achieved by way of a combination disposition, comprising both a term of imprisonment and then release on a community corrections order.  I note the prosecution did not resile from this as an appropriate disposition in your case.

25I therefore propose to sentence you as follows.  Could you stand up please sir.  On Charge 1, you are sentenced to one week imprisonment.  On Charge 2, you are sentenced to one hundred and - not a nice one Mr Adams, I am going to sentence you to 139 days imprisonment and on Charge 3, I am sentencing you to one week imprisonment.

26In relation to Charge 2, you are sentenced to 139 days imprisonment and then you are to be released on a community corrections order.  You have been assessed as suitable for placement on this order.  It will last for a period of twelve months, all right?  Now before I can place you on this order, I must first obtain your consent, so I need to outline the conditions that relate to that order.

27They are firstly that you must report to the Office of Corrections within two working days of the making of this order, which will be Monday of next week.  I should indicate that I declare that 139 days has been served by way of pre-sentence detention.  So you have to report by Monday and which - that will be to the Gelong ‑ ‑ ‑

28MR MOORE:  Yes.

29MS GIBBONS:  Yes, Your Honour.

30HER HONOUR:  Geelong Community Corrections Office.  Whilst on the order, you must not commit any offence punishable by imprisonment.  That does not mean you have to commit an offence.  You are sent to gaol for it means if you commit an offence which theoretically like knocking off that pair of scissors, you could be sent to gaol for, that will breach the order.

31Whilst on that order you may not leave Victoria without the permission of the Corrections Office, all right?  So if you suddenly decide you want to go and see your dad in Sydney, you do not just head off, you get permission from Corrections first.  You must report any change of address or employment within 48 hours of the making of that change.  You must not attend upon the Community Corrections Office under the influence of drugs or alcohol.  You must report to and receive visits from the Community Corrections Office and you must abide by all lawful directions of the Community Corrections Office.  I am going to order that you undertake 150 hours of unpaid community work.  You are to be assessed for treatment and rehabilitation for drug use.  I do not like that you have developed a little taste for ice, all right?

32OFFENDER:  Yeah I know, Your Honour.

33HER HONOUR:  You might not, but anyway I want you to have some treatment for that.  You are also to attend for assessment and treatment for alcohol use and there will also be supervision, which means Corrections will be keeping more than the usual eye on you and finally, there will be judicial monitoring, which I spoke to you about this morning.  That means every few months, I will be getting a report from Corrections and I will be seeing you and the Corrections officer and we will be having a chat about how you are going, all right?  So I think we will make the first one - I know I said six weeks, but I think that is going - where is that going to take me?  I have got - we will make it ‑ ‑ ‑

34ASSOCIATE:  We have 24 June and you're working half a week that week.

35HER HONOUR:  Yes I am going on leave.  We can fit him for a judicial monitoring can't we?

36ASSOCIATE:  Yes.

37HER HONOUR:  All right, we will make it 24 June at 9.30 am.  Just go to the Community Corrections Office at Geelong and we will beam you in.  You do not have to come to Melbourne, all right.  All right, very well, now what is your plan when you leave here?

38OFFENDER:  Um, I'm going to go straight to the Salvation (indistinct words) and to talk to Corrections if I've got enough time.

39HER HONOUR:  You probably won't.  No it's quarter to three, you might have, very well.

40MS GIBBONS:  Yes.

41HER HONOUR:  All right, I'm sure Ms Gibbons is busy though, she will be able to give you ‑ ‑ ‑

42MS GIBBONS:  No, Your Honour, I've certainly spoken to Mr Adams in custody between the Corrections assessment and now.  He's got phone numbers.  We're hoping that if he can go and obtain a Myki card - one of his difficulties is that all of his possessions are still at Marngoneet.

43HER HONOUR:  Yes.

44MS GIBBONS:  So we've got to try and get him back out there at some point in the next 24 hours.

45HER HONOUR:  I know, yes.

46MS GIBBONS:  But otherwise, certainly to obtain some immediate funds and perhaps even get him to Samaritan House tonight if there's a bed available.

47HER HONOUR:  Would it be easier if it was 140 days, he went back to Marngoneet and was released in the morning?

48MS GIBBONS:  I guess that's a matter for him, Your Honour.  It's easier for us to say that but ‑ ‑ ‑

49HER HONOUR:  No I know it is.  Would that be easier?

50OFFENDER:  Um to go in the morning?

51HER HONOUR:  Yes.

52OFFENDER:  Ah yeah, I guess so, yeah.

53HER HONOUR:  Do you reckon that would work better for you?

54OFFENDER:  (Indistinct words) get my stuff today, yeah.

55HER HONOUR:  It might be easier.  Let's do that.

56OFFENDER:  It's only one more day.

57HER HONOUR:  Let us make it 140.  I declare that 139 days of this sentence have been served by way of pre-sentence detention, so ‑ ‑ ‑

58MS GIBBONS:  Thank you, Your Honour, and that probably gives him all of tomorrow then to make those arrangements.

59HER HONOUR:  ‑ ‑ ‑ you can go home and say goodbye to all your - to all the great mates you have made in gaol and wish them well Mr Adams and you know ‑ ‑ ‑

60OFFENDER:  Thank you very much, I appreciate it.

61HER HONOUR:  Hopefully by the time they get out, you will be a role model for them.

62OFFENDER:  Yes, yes.

63HER HONOUR:  That is what we are hoping.  All right, good well that is what we will do.  So you go back on the bus tonight. 

64OFFENDER:  Okay.

65HER HONOUR:  There is no chance he will be kept in the cells or anything like that is there?

66PRISON OFFICER:  No, Your Honour.

67HER HONOUR:  No, all right.  I have sentenced him in time, the bus will - yes, all right.  Very well, so as long as you know what you are doing.  What I do not want you doing is wandering the town going yeeha and straight off to the ‑ ‑ ‑

68OFFENDER:  No.

69HER HONOUR:  ‑ ‑ ‑ you know Geelong Arms or something like that, all right?

70OFFENDER:  No (indistinct words).

71HER HONOUR:  That would just be a disaster.  All right, I am sure you will not.  I am sure you will go well sir and I look forward to seeing you in six weeks time.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of eight months. 

72MS GIBBONS:  As Your Honour pleases.

73HER HONOUR:  It would have been a straight term.

74MR MOORE:  As the court pleases.

75HER HONOUR:  All right, thank you very much.

76OFFENDER:  I've learnt my lesson.

77HER HONOUR:  Have I attended to everything?  Is there anything that I need to sign that you wanted from me Mr Moore?  Have a seat.

78MR MOORE:  No that's it, Your Honour.

79HER HONOUR:  That's it?  Good.  Thank you very much.

80MS GIBBONS:  As Your Honour pleases.

81HER HONOUR:  Pardon?  We've got to get you to sign things, sorry.  There has been an administrative hold up.  We will just have to stand down while my associate who was not aware of the difference between cumulation and - works out.  I will leave you to it.  I am just going to stand down.  Could I have a word with you Mr Moore just out the back?

82MR MOORE:  Certainly, Your Honour.

83HER HONOUR:  Thank you very much.  Thank you, we'll just stand down.  Thank you.

84(Short adjournment.)

85HER HONOUR:  Thank you.  Yes, thank you.  We have had a little bit of trouble with the program, but my very clever associate ‑ ‑ ‑

86MR MOORE:  Maybe the two of them put their heads together, Your Honour.

87HER HONOUR:  They might've.  I do need to - she is very brilliant, I should not have been - trying to be (indistinct) before, but - so we have had to white something out, but it is good enough.  So we will get you to sign this please
Mr Adams.  Thank you.  Thank you very much for your assistance Ms Gibbons, very helpful.

88MS GIBBONS:  My pleasure, Your Honour.  Thank you.  Mr Adams was just saying he's been very grateful for your comments and the way you have dealt with the matter today.

89HER HONOUR:  No well you nailed it.  I mean you came along with an accommodation option and that was central and without that ‑ ‑ ‑

90MS GIBBONS:  And that makes a difference, yes.

91HER HONOUR:  ‑ ‑ ‑ I would not have had much room to move.  So I am grateful to you, thank you.

92MS GIBBONS:  Thank you, Your Honour.

93HER HONOUR:  All right Mr Adams, so you are out tomorrow, all right? 

94OFFENDER:  Yes.

95HER HONOUR:  And I will see you in six weeks time.  Good luck sir.

96OFFENDER:  Yes, cheers thank you.

97HER HONOUR:  All right. 

98ASSOCIATE:  (Indistinct words).

99HER HONOUR:  No, no, I said that.  He does need to - he would be in the Geelong area, I do not want him tripping up to Melbourne and I have got one request which I have started asking everyone for judicial monitoring.  I always put my judicial monitorings down at 9.30 because I usually have a trial at
10.30 am and you guys are always late and it wrecks my day.  I just beg you please to be on time, 9.30 all right?  All right, and I will be in a much better mood when we are talking.  Thank you very much sir.  We will adjourn to 9.30 tomorrow morning.  Thank you.

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