Director of Public Prosecutions v Aitken
[2013] VCC 1966
•10 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-13-01471
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL AITKEN |
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| JUDGE: | HIS HONOUR JUDGE MCINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 10 December 2013 |
| CASE MAY BE CITED AS: | DPP v Aitken |
| MEDIUM NEUTRAL CITATION: | [2013] VCC 1966 |
REASONS FOR SENTENCE
---Subject: Criminal law – plea – sentence
Catchwords: Armed robbery – knife – co-accused – youthful offender – drug affected – rehabilitation – sentence already being served in a Youth Justice Centre – cumulative – maximum term in a Youth Justice Centre -
Legislation Cited: Sentencing Act 1991
Cases Cited:DPP v Tokava [2006] VSCA 156 [21]-[23]; R v Merrett & Ors. [2007] VSCA 1 [49]
Sentence: Detained for 3 years in a Youth Justice Centre
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Ayres | |
| For the Accused | Mr T. Smurthwaite | Robert Stary |
HIS HONOUR:
1In this matter Mr Aitken pleaded guilty to a charge of armed robbery as detailed in indictment D10811888. That armed robbery took place on 9 September 2010 when one Gary Groeneweg was robbed at the point of both a baseball bat and a knife when he was the person conducting the premises known as the Club X adult store at 1/159 Newlands Road, Coburg.
2At the time Mr Aitken was with a co-accused, as is shown clearly on Exhibit B, the photographs. Mr Aitken was the person with the knife; his co-accused had the baseball bat. Although I have not seen the CCTV, a combination of Exhibit A, being the prosecution opening, and the stills demonstrate the horrific nature of this attack.
3Albeit a young man of only 17, such makes no difference to an accused obviously. One only has to look at the disguises and the circumstances whereby the obvious threats were made to the victim to understand the impact. Those matters are set out particularly in Exhibit D.
4It was most unfortunate in this case that a principle known in the common law, where persons suffering from what's known as an eggshell skull syndrome, are dramatically more affected by a circumstance than otherwise would be. Unfortunately the victim in this case, having already having to live with autism, has been subjected to a dramatic impact. It would appear that the victim was, given his background, progressing very well: was employed, was able to maintain employment and support a family.
5It is always difficult for a Judge in these circumstances, without a proper analysis of what was the pre-existing condition, to be precise about the impact of an event, such as an armed robbery, on a person. Clearly, in reading the victim impact statement, the victim ascribes the full consequences as being responsible for his now state, that being incapable of employment over 15 hours a week, a position of social loneliness and his family/friend relationships destroyed. He certainly puts such down to the impact of this violent armed robbery.
6As Her Honour Judge Hampel pointed out in her sentence of Mr Aitken pronounced on 24 July 2013, these types of crimes on soft targets in small stores in suburban shopping centres are really far to prevalent. I often wonder how a person such as Mr Aitken and his co-accused can be involved in such serious criminality. I think as I recall the spoils of this armed robbery were $400 and some cigarettes.
7The answer must be that people are so drug addicted/ afflicted that there is no thought as to the consequences. I think that is effectively what Mr Aitken said when he gave evidence to the Court today. They unfortunately become so immersed in the milieu of drug taking and the drug-taking that appreciation of all of those risks just goes out the door.
8It is an indication of the impact of the drug milieu and the effect, even on a young boy of 17 at this stage, how grossly disproportionate the balance is when you compare on one side an armed robbery which nets $400 and some cigarettes as against the consequences imposed by Parliament of 25 years' gaol. That in itself demonstrates the principles that Mr Smurthwaite was putting to me as to the impact of the drugged state of Mr Aitken at the time of this offence.
9One of the sad things for a Court is to observe the extensive criminal history of a person so young. It was described by Judge Hampel in her sentence at paragraph 15 as a "sorry criminal history". The background of course to that, as rightly put, has been deficiencies in his upbringing and matters that are set out more particularly in the psychological report of Mr Cummins, which is tendered as Exhibit 3. I do not want to go over those matters; however, it is perhaps encouraging at least that his father is here to support him.
10Despite such a background, which really reflects the comments made by Judge Hampel, Mr Aitken has been able to bring to bear, not only in the plea before Judge Hampel, but here quite remarkable testimonies as to his endeavour since he has been in confinement. He has been confined, according to the time line, since approximately December 2012. There was a positive pre-sentence report tendered, pursuant to provisions of s.32, before Judge Hampel. Can I thank Ms Surbach, if I pronounced that correctly, and indeed her team leader for the s.32 report tendered to the Court today.
11That report does not shy away from the problems that Mr Aitken has had in the past, nor does it shy away from the need for psychological counselling, nor what I said to you before, Mr Aitken - that upon release you will certainly be ordered to attend drug and alcohol counselling. You, because of your capacity for addiction, must be aware of that. However, the view of these experienced people, based in particular upon consultation with the authorities who have been dealing with Mr Aitken, is that he is suitable for such dispositions. It is noteworthy that that consultation has been with Mr David Appleby, the unit manager at Malmsbury.
12What is also particularly impressive insofar as this plea is concerned is the letter from Parkville College. I haven't had the pleasure to observe Parkville College yet, but I will in due course. But Mr McKay, and the actual classroom teacher, talk of continual attendance and a sincere level of interest by Mr Aitken. They express optimism about his rehabilitative prospects. They refer to what they describe as his "exemplary conduct, high work ethic and outstanding attitude together with a much admired perseverance" while in attendance at Parkville College.
13Those comments, for a person who simply looks at your criminal record, would perhaps, if that's all you looked at, seem inconceivable. It seems, however, that despite your commission of such serious offences, you have genuinely set about trying to change your life. Significantly, I would have thought for you, at the top of Mr McKay's letter to the Court is a quotation from the great author Victor Hugo which reads, "He who opens a school door closes a prison." That is so appropriate for you.
14I am impressed by the fact that you have now got to a stage where you have passed your year 11. You have passed Certificate IV which allows you to go on to attain an apprenticeship. I can't tell you when that will be or when you will be in a position to do it, but those matters are determined administratively, as you know; however, that report of Mr McKay, combined with the report obtained and accepted by this Court for the purposes of s.32(1) do speak very well as to your prospects.
15There is no better experience for a Court, which regularly sentences young men, to find a young man who can turn his life around. Unfortunately I have to say to you that many sentiments as expressed by you under oath today, often do not come to fruition. But certainly as best as I can ascertain, you have set yourself up really well to make that change and I hope you do and I hope you are not back in front of me, having become addicted to drugs again. As soon as you're back on drugs, then there's only one alternative in order to obtain them.
16In making those remarks and indicating what I intend to do, I do not in any way underestimate the seriousness of this crime. The maximum penalty is imposed for a purpose and, as Judge Hampel pointed out in her judgment, these types of crimes are decried by the community, not only for the total insecurity they bring to victims, but for their consequences. We can have no better example in this case of the consequences. As a result of that the community have determined that people who commit such serious crimes must suffer severe penalties.
17What of course has to be balanced against that in your case are the very, very important principles relevant to the sentencing of a youth in our community. Those principles are set out regularly by the Court of Appeal and I adhere strongly to them. See DPP v Tokava [2006] VSCA 156 [21]-[23] and R v Merrett & Ors. [2007] VSCA 1 [49]. It must be borne in mind that you were 17 at the time. You are in a position where you are still defined as a young offender under the Sentencing Act, fortuitously for you, you do not turn 21 until the 26th of this month.
18Those authorities call for a Court to put at the centre of its sentencing function the issue of rehabilitation. That does not mean that need for specific deterrence or general deterrence or punishment go out the door, but they have to be appropriately balanced. As I say, this is a most heinous crime. I hear what your counsel said about your background and the fact that you were drug addicted. As I say, ipso facto the commission of this type of crime.
19Taking all of those circumstances into account, I do intend to accede to the submission made by your counsel, a submission that was not objected to by the prosecution in this matter. I do accept the proposition of the prosecution that, had I been dealing with this matter in totality - that is all of these crimes heard at the one time - I would have done what I intend to do here: impose a maximum period of detention that can be imposed under the legislation. That is a period of three years.
20I do so in this case fully aware of the provisions of s.32(5)(a), (b) and (c). That is I do impose this sentence to be served cumulatively upon the sentence that you are currently serving; however, it is necessary for me to advise you that the legislation provides that your sentence can only be - that is the combined sentence - a maximum sentence imposed by both sentences of three years. There is no minimum sentence set obviously and there will be a decision made administratively when it is appropriate for you to be released on parole.
21I can only be encouraged by the steps you have taken to change your life. Unfortunately the way you were going, you looked headed for the scrapheap. The scrapheap of life, unfortunately - an awful way to talk about people, but this Court sees them regularly, people who don't take themselves off drugs and who simply sustain themselves by crime. You are experienced enough and you know enough about the world to realise what I am saying, don’t you!! You know enough, hopefully, of what drugs did to you and how you've landed yourself in this position. You unfortunately also, because of your own family upbringing, have been able to observe the effects of substance abuse on families.
22All such experience should lead you to realise that you must not get back on drugs. Because as I said, if you're back on drugs, you will be back to see me very shortly. In those circumstances, formally therefore, if you would stand, Mr Aitken.
23Pursuant to your plea of guilty, you will be convicted of this charge of armed robbery and sentenced to a period, pursuant to s.32(3)(b) of the Sentencing Act, of confinement in a youth justice centre for three years. As I have said, that sentence will be cumulative upon the sentence imposed by Judge Hampel and the impact of that will, if it is necessary, be explained to you by Mr Smurthwaite in due course. But the legislation provides that the maximum period of detention is three years, so in effect by me giving you three years it is really giving you an extra six months from the time that you were sentenced by Judge Hampel. Do you understand that? That is the maximum, what minimum you serve is an administrative determination.
24I hope you do not disappoint everyone, but most importantly I hope in your own interest that you do go on with your education and that you do do well and get an apprenticeship and become a contributing member of the community. All right, so good luck.
25Yes, Mr Smurthwaite? anything else I need to attend to? I'm sorry, I think I've got to make a determination under 6AAA, don't I?
26MR SMURTHWAITE: Your Honour does.
27HIS HONOUR: As best as I can comply with that legislation in these circumstances, all I would say is that had the plea "guilty" not been made I would not have imposed a detention order. I don't intend to take it any further than that.
28MR SMURTHWAITE: I think once Your Honour has ordered the three years, because obviously that's in excess of Judge Hampel's order, I don't believe there's a need to specify any cumulation because that will automatically supersede it if it begins today and automatically therefore - - -
29HIS HONOUR: I think I've got to say "cumulates" because it's a cumulative sentence, then the sub-s.(5) then brings it into place. In other words I haven't started it - it's not like s.14 in a prison sentence where you would say it begins that time and you work it out and get one minimum period.
30MR SMURTHWAITE: It's just that if it's expressed that way, it seems to me that that indicates it's effectively a five years and three months' sentence, three years cumulative upon two years and three months.
31HIS HONOUR: Yes. Well, it is.
32MR SMURTHWAITE: I see.
33HIS HONOUR: It's three years from today; however, the legislation operates to render - - -
34MR SMURTHWAITE: It does.
35HIS HONOUR: - - - three years from Judge Hampel's sentence.
36MR SMURTHWAITE: That's so. Yes, if Your Honour pleases.
37HIS HONOUR: All right. Good luck. What's the position when he's at Malmsbury? He's not taken down. Is he taken from here or does he go down with you? He goes down with you? All right. Anything else, Mr Prosecutor?
38MR AYRES: All right. Well, the prisoner can be taken - or the detainee can be taken. I thank Community Services for the very good reports.
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