Director of Public Prosecutions v Aitken
[2013] VCC 1071
•24 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00542
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL AITKEN |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 24 July 2013 | |
CASE MAY BE CITED AS: | DPP v Aitken | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1071 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Bhai | Office of Public Prosecutions |
| For the Accused | Mr T. Smurthwaite |
HER HONOUR:
1 On the afternoon of 19 July last year, two men, gloved and concealing their faces, went into Mahi Indian Grocers in Station Street in Bayswater. One of them, you, Daniel Aitken, produced a sawn-off shotgun from your backpack. You and your co-offender approached the store manager and you pointed the gun at him, and the two of you demanded that he give you the money from the till.
2 The manager opened the till and you, Mr Aitken, took some of the money out and put it in the backpack. The manager took out the balance. Both you and your co-offender, Mr Abikhair, each held the manager by an arm at the same time and you looked behind the counter for more money, but there was none. The two of you then marched the manager to the back of the shop, still at gunpoint. He had told you that there was no safe and no further money out the back, and when you got him out the back you realised that was correct.
3 The two of you then turned to leave, and as you left, Mr Abikhair pushed the computer screen and other items from the counter in the front of the shop on to the floor. As you left, you, Mr Aitken, put the gun in your backpack and, with you at the controls of a motorbike, the two of you drove away on a bike. The motorbike had been stolen earlier that afternoon from the Coles car park in Maroondah Highway, Ringwood.
4 A short distance from the scene of the armed robbery, you crossed the road and drove down the incorrect side of the road. You collided with a car driving out of the car park at the Boronia Medical Centre. You and Mr Abikhair abandoned the bike and ran away. You jumped a fence and hid your outer clothing and the backpack containing the shotgun and the cash in a nearby property. The two of you got away, but police arrived soon after and recovered the backpack which contained the shotgun and the takings from the armed robbery. All that you had obtained from this attack was $430.
5 It was not until some months later on 21 October that you were arrested and questioned in respect of the armed robbery, theft of the motorbike, and dangerous driving. There was a fingerprint of yours on the motorbike. You denied any involvement in the armed robbery or the collision, and sought to explain the presence of the fingerprint on the motorbike by saying you could have stolen the bike and sold it to somebody else, or you could have ridden on a mate's bike which had been stolen.
6 After the interview you were lodged in the cells. There, you made admissions to an undercover operative, who was in the cells with you, to participation in the armed robbery and to being involved in the collision, to the theft of the motorbike and to obtaining the shotgun, which you said you had obtained from a cousin of yours for the purpose of committing the armed robbery. Although in your conversation in the cells you did not name your co-offender, your description of your relationship to him, namely that he was the brother of your girlfriend's mother, eventually led the police to him as well.
7
It was not until 1 January that Mr Abikhair was arrested. He made full admissions to his involvement in the theft of the bike and participation in the armed robbery. He said that he was the lookout while you stole the bike, and that the two of you together, after stealing the bike, had discussed how to carry out the armed robbery and the roles that each of you would play.
Mr Abikhair, like you, refused to name the co-offender.
8 So it is now that you, Daniel Aitken, have pleaded guilty to one charge of theft of the motorbike, one of armed robbery, and to an uplifted summary charge of driving in a manner dangerous, and Mr Abikhair has pleaded guilty to one charge of theft of the motorbike and one of armed robbery.
9 The store manager, Mr Francis, in his victim impact statement said he was no longer able to work independently in the shop, and he suffers insomnia due to the emotional trauma of having been held up. Miss Corneille, the driver of the car that your bike collided with, was a young mother. She had a 10-month old baby in the car with her and her fear, arising from being involved in the collision when you locked the brakes and skidded into her car, was obviously compounded significantly by the fear she felt for the risk that was posed to her newborn child. She still finds it difficult to drive, has trouble sleeping, and suffers nightmares. She is on antidepressant medication as a result.
10
In addition to these effects on the wellbeing of your victims, one should not ignore the financial loss that has been caused by your conduct as well. In addition to the theft of the money itself, Mr Francis was unable to return to work at all for two weeks, and the till and the computer screen in the shop were damaged. The motorbike and the car were both damaged. Although
Mr Germain, the owner of the bike, had insurance, his bike was written off, so the insurer bore the loss of that, and he, Mr German, had to pay the excess on his insurance policy.
11 I have not been provided with information concerning the amount of damage caused to Miss Corneille's car, but it is clear that she, too, was inconvenienced by the damage to her car and either she or her insurer or both suffered inconvenience and financial loss as a result.
12 Crimes like this, armed robberies and associated offences, but armed robberies on soft targets, small stores in suburban shopping centres, committed by young men driven by a desire to obtain money to feed their drug habit, are far too prevalent. Your offending has many features which are deserving of stern condemnation and which demonstrates the need to impose a sentence which properly reflects denunciation and deterrence and which imposes just punishment upon you.
13 This was an armed robbery committed in company. You outnumbered your victim. There was a degree of planning involved, as evidenced by the admissions made by you and by Mr Abikhair, and by your conduct: you sourced and obtained the firearm, you chose the target shop and were seen driving slowly past it, checking it out and then waiting until the shop was empty of customers. Although a later examination revealed that the firearm was unloaded, that, of course, was not known or apparent to the victim, and you used that firearm in the manner in which you did, pointing it at, and actually in the face of, the victim in a manner which was intended to convey to him that it was real, loaded, and that you intended to use it in order to achieve your aims of stealing what money was in the shop.
14 You were not content with the money that you obtained from the till and not prepared to believe the victim when he said there was no more money under the counter and there was no safe and no more money in the rear of the shop. You forced the victim at gunpoint to a place where he must have felt even less safe, the rear of the shop, out of view of the public. He had no way of knowing what you would do to him there, whether he would be subjected to further intimidating or violent conduct. All these features add to the seriousness of the offending and help mark its seriousness.
15 At the time, Mr Aitken, you were only 19 years old and you are now 20. You have a sorry criminal history. You were first before a court in early 2006, at the age of 14, on multiple charges of dishonesty and driving offences. By the middle of 2006, you were sentenced again for similar offences. On each of those occasions you were placed on probation without conviction. Less than 18 months after the second of those, you were again before the Children's Court, again on similar multiple charges of dishonesty and driving offences. Again, you were placed on probation, this time with a conviction recorded against your name.
16 Within a year, by late 2008, you were before the Children's Court for further shoplifting offences and you were released on an adjourned undertaking. A year later, by the end of 2009, you were again before the Children's Court on further shoplifting charges and again were released on an adjourned undertaking. By June 2010, you were again facing multiple charges of dishonesty and driving offences, as well as breach proceedings in respect of the last adjourned undertaking, and you were placed on a youth supervision order for a period of nine months. At about the same time, you were placed on a further adjourned undertaking for the possession and use of cannabis and the possession of a controlled weapon without excuse. That was the first time you had been before the court for drug offences, and I think the first time you have been on a weapons charge as well.
17 By August 2011, you were old enough to be dealt with in the Magistrates' Court and you appeared before the Magistrates' Court for the first time, again on charges of dishonesty and motor vehicle offences, and also charges of trafficking and possession of heroin. You were placed on a 12-month community corrections order. You breached that, and the youth supervision order, by non-compliance with those orders and by committing further offences, and in November 2012 both the Children's Court and the Magistrates' Court dealt with you for the breaches and the Magistrates' Court also for the new offences, and you received your first sentence of detention in a Youth Justice Centre.
18 This is a significant history for somebody as young as you, and this offending is clearly an escalation on your previous offending. Although in part the escalation can be explained by reference to your moving on to abuse of heroin in addition to the other drugs that you had been taking since your early teens, it was clear that your behaviour since your early teens had been uncontrolled and that you had, until your remand in youth detention, been unprepared to take any significant steps to change your life.
19 You have been in custody in youth detention since November of last year, and it would appear that a combination of detention, stable accommodation, a more regulated environment where drugs, particularly heroin, are harder to get, and perhaps finally some glimmers of maturity, have brought about some significant changes in you.
20 There were significant difficulties in your upbringing which can in part explain, but do not excuse, your offending. Your parents separated when you were only three, and from then on you moved frequently between them and each of them had frequent changes of address and accommodation. Each of them had significant periods when they abused substances, and there was a period when you were only in your early teens when neither parent was caring for you; you mother, by reason of her substance abuse, was unable to care for you, and your father by then had joined the Army. He was living in barracks and you were not in the barracks with him. As a result, you were left unsupervised, it would appear, for a period of some years.
21 According to what I was told, there were at least eight significant reports to the Department of Human Services in relation to your family circumstances and the risk that you were placed at by reason of inappropriate and inadequate parenting, exposure to violence, exposure to drugs and other substance abuse on the part of your parents, and then exposure to drug and other substance abuse by you. Since your remand and sentencing to youth detention, your relationship with each parent I am told has improved, and you are in regular contact with each of them. They still obviously have problems of their own that they are struggling to deal with.
22 You told Mr Cummins, the forensic psychologist who assessed you for the purpose of this plea, that you were resigned to having to spend extended time in Youth Justice, and you told him that you had already significantly benefited from losing your liberty and through being disciplined. Notably, you have engaged well with the Malmsbury Campus of Parkville College, the new school that now operates within the youth custodial setting. The Malmsbury Campus began its operation in January this year, and by then you had already been transferred to Malmsbury from Parkville.
23 A report, co-signed by your classroom teacher and the campus coordinator, paints a picture of a much improved young man. You had left school at 16, but you had been inadequately schooled as a result of your bad behaviour, your drug abuse, and the inadequate parenting over many years. By contrast, your attendance at Parkville College has been very good. According to the report, you have attended school daily and you have displayed a commitment to excel. The report says that in every class and every interaction with teaching staff you have displayed exemplary conduct and behaviour. They said your attitude towards education and self-improvement was admirable. You completed your school work not only in class but back in your unit, and you were regarded they said as a role model to your peers in work completion and quality of work. The report writers said that your attitude had enhanced the engagement of those around you, and the authors concluded that they wanted to emphasise their optimism about your rehabilitation prospects, based on your exemplary conduct at school, your high work ethic, what they described as your outstanding attitude, and your much admired perseverance at school.
24 I was told that whilst in detention you had formed an ambition to pursue a carpentry or a building construction apprenticeship. You have applied yourself to obtaining your bobcat licence. Your identification of career goals and your anticipation of a meaningful work engagement upon your release stands in marked contrast to your history before detention of unemployment and your demonstrated lack of desire to engage in any meaningful employment before you were detained.
25 Mr Cummins reported that you had been taking prescribed antidepressants since your admission to Youth Justice. He said this was the first time you had ever been prescribed any mood stabilising medication. He also reported that you had reported to him that you were attending upon a psychologist on a weekly basis, and again said this was, on your report, the first time you had received any ongoing mental health treatment. He said that you expressed a positive and motivated attitude to him regarding your rehabilitation. Refreshingly, you reported to him that, although you felt depressed about being in detention, you knew it would be beneficial for you.
26 Mr Cummins said that, as far as he could ascertain, at the time of the offending you were suffering from the symptoms of chronic adjustment disorder, with mixed anxiety and depression. In his opinion, the adjustment disorder developed in the context of your disturbed family life, including the substance abuse of your parents. Mr Cummins said that, although you still report some symptoms consistent with the diagnosis of adjustment disorder, the psychological treatment you are now receiving gives you and gives him confidence in your ability to turn your life around.
27
Consistently with those very positive reports from Parkville College and
Mr Cummins, you wrote a letter which acknowledged your intention to take full responsibility for your actions, and it revealed what I thought was a maturity of insight into the consequences of your behaviour and your victims. I was particularly struck by your saying this.
"I have pleaded guilty to demonstrate that I have taken full responsibility for my actions. I hope that my victims will accept my apology for my behaviour, although I understand that they might not want to".
This shows an understanding of the impact of your behaviour on others, and perhaps thinking of others in a way that is not just seen through the lens of your own wants, needs, and experiences. In my view, it demonstrates that you are showing a better understanding of the consequences of your conduct on others than you did at the time of the offending.
28 I was told at the time of the plea, and this was repeated in the Youth Justice assessment that was conducted after the plea, that you were deeply confronted by having to view the CCTV footage of the armed robbery. I was told that you felt ashamed and shocked, and I accept that.
29 I had you assessed for suitability for a Youth Justice Centre order, and you have been assessed as suitable. I was troubled though by some matters that were revealed in the order and I have been told of today. First, the Youth Justice assessment report reveals that your behaviour whilst in youth detention has not been as generally good as that glowing report from Parkville College indicated and Mr Cummins' report indicated. Second, I was told by the prosecution this morning for the first time that you had other charges pending, other robberies to which you had made admissions to the undercover police officer whilst you were in the cells after you had been interviewed in respect of these offences.
30 As I said to your counsel, in my view, if a plea is put on the basis of rehabilitation and prospects for rehabilitation, there must be a full and frank disclosure of all pending matters, whether they occurred before, at about the time of, or subsequent to the commission of the offences for which I must sentence you, and evidence of bad behaviour as well as evidence of improved behaviour should have been put before me so I could have, before commissioning the Youth Justice report, been in a position to make a proper assessment of your prospects of rehabilitation, the bad things that you have done, as well as the good things that you have done.
31 The Youth Justice report noted, consistently with your behaviour at the time that you were first sentenced to youth detention, that upon your reception into Youth Justice you initially displayed behavioural concerns and engaged in immature behaviour within your unit. Although your attendance and participation at school was excellent, your behaviour otherwise was such that by the end of May of this year you were placed on an individual behaviour management plan. The report notes that in the six weeks since then you have responded positively, and that you are currently motivated to attend vocational health and recreational programs to assist in your rehabilitation. In addition to drug and alcohol awareness programs, personal development programs, skills programs and vocational training, you have also participated in engineering and construction programs and the authors of the suitability report say that you can see real outcomes based on them. They say that that has motivated you to continue your education and to look towards obtaining an apprenticeship.
32 Consistently with what you had reported to Mr Cummins, the report notes your positive engagement in the weekly psychological counselling and your understanding of its benefits to you, namely that it has assisted you to understand the contributing factors that led to your offending. The authors of the report note that it is positive that you are accessing the support of psychological counselling for the first time since your initial involvement with Youth Justice in 2006. That seems to me to be a more nuanced description than the one that I was first presented with.
33 You have undergone detoxification whilst in custody, and the report notes that you are now able to recognise the negative effects that your long term heroin use has had on your health and on your offending behaviour. You say that you hate the person you used to be, and now recognise that when substance-affected you had no self-respect and no respect for others. You have restated to the authors of the report your belief that you have benefited from your time in custody, and that you recognise the positive changes in your attitude, maturity and behaviour. It is not surprising given these matters that, despite what was clearly not exemplary behaviour in every aspect from the start of your detention, you have been assessed as suitable for a Youth Justice Centre order.
34 Despite your extensive history with Youth Justice, you are assessed as having reasonable prospects for rehabilitation. This is based on your demonstrated awareness of the factors that have contributed to your offending and to your present willingness to continue to engage in programs offered to you to assist your rehabilitation. Somewhat surprisingly for somebody with such an antisocial history, you are noted as presenting as polite and respectful, and overall the authors say you have engaged meaningfully during Youth Justice supervision. Your reported motivation to make positive changes in your life has been borne out by this evidence of your changed behaviour in that you are able to identify both your substance use and your associating with a negative peer group as the most significant contributing factors to your offending behaviour.
35 Your current motivation to abstain from heroin use when released into the community and your recently found, that is in the last six months, willingness to engage with your current therapeutic supports bode well for your future. I accept the assessment in relation to the criteria for assessment for suitability for a Youth Justice Centre that you will be highly susceptible to being subject to undesirable influences in an adult facility and that you understand this. I also accept that you are impressionable to older and more sophisticated influences. In my view, having regard to your youth, the significant disadvantages that you suffered in your parenting and your upbringing, the needs of punishment, deterrence, both general and specific, and the significance in a young offender of encouraging your rehabilitation, can best be served by continuing along the path that you have already embarked upon and by sentencing you to a further period of youth detention. It is in large part because you are already in youth detention and that you have shown yourself to have engaged positively with it that I am taking this course, rather than sentencing you to adult custody.
36 Could you now please stand. On Charge 1 of the theft of the motorbike, you are convicted and sentenced to be detained for a period of six months. On Charge 2 of armed robbery, you are convicted and sentenced to be detained for a period of two years. On the uplifted summary charge of dangerous driving, you are sentenced to be detained for a period of three months. I make Charge 2 the base sentence. I direct that two months of the sentence on Charge 1 and one month of the sentence on Charge 3 be served cumulatively on that sentence on Charge 2. That makes a total effective sentence of youth detention of two years and three months. That sentence is to start today and is to be served concurrently with the sentences that you are presently undergoing.
37 All licences you hold are cancelled, and you are disqualified from obtaining a licence for a period of 12 months. I make the orders for forfeiture, disposal, and the taking of a forensic sample and for compensation for Mr Germain that had been requested. I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, I would have sentenced you to the maximum period that would have been available to me of detention in a Youth Justice Centre, namely three years. Given your youth and the progress that you have made to date, I still would have sentenced you to a period of youth detention.
38 Do the orders that I have pronounced reflect what I said I intended to do? Are they technically correct, and are there any further orders that are required to be made?
39 MS BHAI: Yes, Your Honour, as far as I can see, they are correct and there are no further orders required.
40
HER HONOUR: Thank you, Ms Bhai. The forfeiture and disposal orders were framed as joint orders, so I will announce now that I have made those orders, but I will not actually sign them until I make the orders in respect of
Mr Abikhair as well.
41 MR BHAI: Yes, Your Honour.
42 HER HONOUR: The forensic sample is a taking, not a retention, isn't it?
43 MS BHAI: I'm sorry, Your Honour, I'm just checking that. No, it's a taking of the sample, Your Honour, not a retention.
44 HER HONOUR: Yes, thank you. Mr Aitken, I am going to make an order for the taking of a forensic sample, given your history and the seriousness of this offending. As I said, it is a step up the scale. I am going to make that order, directing that it be taken by the scraping of a sample from the inside of the mouth, what is called a buccal sample. I must inform you that if you do not consent to the taking of that sample and cooperate in its provision, then an authorised member of the police force is entitled to use reasonable force to obtain that sample and may well use the more invasive method that is available, namely the taking of a blood sample. Do you understand that?
45 OFFENDER: Yes, Your Honour.
46 HER HONOUR: I will mark the pre-sentence report from Youth Justice as Exhibit P4. Thank you, you can remove Mr Aitken.
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