Director of Public Prosecutions v Aldridge
[2019] VCC 1159
•26 July 2019
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00946
CR-18-02542
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY MICHAEL ALDRIDGE |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 1 July 2019 | |
DATE OF SENTENCE: | 26 July 2019 | |
CASE MAY BE CITED AS: | DPP v Aldridge | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1159 | |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:DPP v Michael Heyfron [2019] VSCA 130; Verdins; Buckley; Vo (2007) 16 VR 269
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D O’Doherty | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr P Murphy | Warren Graham and Murphy Pty Ltd |
HIS HONOUR:
Introduction
1 Gary Michael Aldridge, you have pleaded guilty to one charge of attempted armed robbery contrary to s.75A and s.321M of the Crimes Act 1958; one charge of possession of a drug of dependence, namely methylamphetamine; and one charge of theft.
2 The maximum penalty for attempted armed robbery is 20 years’ imprisonment or 2,400 penalty units. The maximum penalty for possession of a drug of dependence in the circumstances alleged in this case is 30 penalty units or one year’s imprisonment or both. The maximum penalty for theft is 10 years’ imprisonment or 1,200 penalty units.
Circumstances of the offending
3 At your plea hearing on 1 July 2019, the prosecution tendered two documents entitled 'Prosecution Plea Opening', marked Exhibits A and B, respectively, setting out the circumstances of your offending. No issue was taken with those documents by your counsel, and I regard them, therefore, as agreed statements of facts in relation to your offending.
Attempted armed robbery
4 On 17 August 2018, your victim, Renate Hadaway, then aged 73, and her friend Rosemary Kavadis, then aged 71, were at Ms Kavadis’ address at Lake Bunga in Victoria. Ms Hadaway had her vehicle and her caravan parked on the lawn outside Ms Kavadis’ house.
5 At approximately 10.50 am on this day, you entered the driveway of a neighbouring property and approached the front door of that property. You were observed by an occupant on that property to be yelling and acting in a distressed manner. That occupant locked the doors of her property due to your erratic behaviour.
6 You then attended at Ms Kavadis’ property. Ms Kavadis and Ms Hadaway were in the front yard, removing items from the caravan and loading them into Ms Hadaway’s vehicle. You approached the two elderly women whilst holding a large serrated knife. You ran towards them whilst holding the knife in your hand in a visibly agitated state, saying, 'They’re after me', 'I want the car.' You approached the vehicle and entered the vehicle through the driver’s door which was open, again yelling at the victims, 'I want the car.' Fearing for their safety, both of your victims backed away from you. Whilst still holding the knife in your hand, you pursued the two victims, causing them to circle the nearby caravan. Fortunately, they eventually sought refuge inside the caravan and called '000'. You were later located by police in the front yard of a neighbouring property, still holding the large serrated knife. You were arrested and transported to Bairnsdale Regional Hospital where you remained for medical observations.
7 The following day you were interviewed at Bairnsdale Police Station, where you made admissions to your offending. You admitted that you would have taken the vehicle if there had been keys in the vehicle, stating, 'If the keys were in there then, God knows, I probably would've jumped in there and just took off.' You attributed your behaviour to the use of the drug ice, stating that you were 'pretty much off my face.' You stated that due to your drug use, you believed that somebody was after you at the time. You described your own behaviour as 'full on' and agreed that you would have made the victims feel frightened and terrified.
8
You were remanded in custody, and have been in custody ever since. As at
26 July 2019,[1] you have been in custody for 343 days. Ms Hadaway completed a Victim Impact Statement, which was tendered at your plea hearing and marked Exhibit C. I have carefully considered the contents of that statement in the context of taking into consideration the impact of your offending on your primary victim. Ms Hadaway indicates in her Victim Impact Statement that she had recently lost her husband to Non‑Hodgkin's lymphoma a few months earlier, and that at the time of the offending she wondered if she might be joining him as the episode evolved. Ms Hadaway indicated the incident has made her very nervous about going out alone in the evenings, and she stated, 'The worst things are panic attacks which wake me during the night.'
[1]But excluding 26 July 2019
Possession of drug of dependence and theft
9 Some weeks prior to the attempted armed robbery, you were involved in other criminal behaviour. On 19 July 2018, you travelled by train from Shepparton to Southern Cross Railway Station in Melbourne, where you stayed overnight before re-attending at Southern Cross Railway Station on 20 July 2018 to travel to Bairnsdale.
10 Just prior to boarding the train, you found a man’s wallet on the platform. That wallet belonged to Alexander Frame.
11 Five days later on 25 July 2018, you were found by police drinking with friends in the band rotunda in Main Street, Bairnsdale, at 10.15 am. Your bag was searched by police, who located Mr Frame’s wallet within the bag, together with a small zip lock bag in an internal zipped pocket of the bag, containing approximately 0.1 grams of methylamphetamine.
12 When you were interviewed by police, you admitted finding the wallet at Southern Cross Railway Station on 20 July 2018, and stated that you had intended to hand it into police but that over the next four days you had been intoxicated by the effects of alcohol and drugs. You admitted to purchasing the methylamphetamine in Bairnsdale on the evening of 24 July 2018, paying $20, and that the drug was for your own personal use.
13 According to the chronology attached to the prosecution plea opening in relation to this matter, you were granted police bail on 25 July 2018. Clearly, you were subject to this grant of bail at the time you committed the attempted armed robbery on 17 August 2018.
The gravity of the offending and your role in it
14
Whilst it is accepted that your involvement in the theft and possession of drug of dependence offending does not represent criminality of the highest order, the same cannot be said in relation to the attempted armed robbery. The seriousness of that offence is reflected by the statutory maximum penalty of
20 years’ imprisonment. Your offending in that matter involved menacing and inherently violent conduct in the presence of two elderly women. Your primary victim, Ms Hadaway, was clearly very scared as a result of your erratic and threatening behaviour. She was clearly a particularly vulnerable victim. That you were under the influence of the drug ice at the time constitutes no excuse for your serious criminality. There is a significant need for any penalty imposed to reflect the sentencing purposes of just punishment, denunciation, and general deterrence. Given your criminal history, there is also a need for any penalty to reflect the purpose of specific deterrence.
Background
15 You were born on 5 January 1979 and are now aged 40. You are an Aboriginal man, identifying as Kamilaroi, Wiradjuri and Barkindji. You grew up in Bega and Eden, along with your biological brother and your five adopted siblings. You are the youngest in your family. You were told at the age of 10 that you and your brother had been adopted, taken into the care of the Department when you were about three and later adopted by the Aldridge family.
16 Your counsel’s written submissions[2] indicate that your childhood and adolescence were turbulent. This is a description with which I agree. In gaining an understanding of your background, I have had regard to the psychological report of Mr Jeremy Parker dated 1 April 2019, tendered on your plea hearing and marked Exhibit 1.
[2]Paragraph 3
17 It seems that you have indeed dealt with various tragedies in your life. Two of your brothers are now deceased. Your oldest brother died of an overdose about seven years ago and your biological brother, with whom you were close, died in a car accident some three or four years ago. This was a devastating event in your life.
18 In terms of your education and employment, you have been educated in Eden before moving to Sydney at the beginning of Year 10, attending a boys’ college there. You lived with an older sister who had relocated to Sydney some time before. After you finished school, you remained in Sydney, completing TAFE studies in hospitality and gaining work in that industry for a period of time. You informed Mr Parker that you lived in Sydney for 10 years, last working when you were 22 years old, and you described your time in Sydney as living a 'party life.'
19 It was whilst you were living in Sydney that you commenced a relationship with a man named Aaron. That relationship lasted some three years before Aaron died of cirrhosis of the liver caused by alcohol abuse.
20 You provided Mr Parker with some disturbing details in relation to your consumption of alcohol. You informed Mr Parker that you recognised that you were an alcoholic, having previously consumed up to 7.5 litres of moselle each day, a consumption of some four to five casks of wine which lasted for about three years. According to Mr Parker, you recognised that drinking was not only a way of life but allowed you to diminish psychological distress associated with grieving over your brothers' deaths, feeling lost and disconnected about being adopted, and adjusting to your sexuality.[3]
[3]Paragraph 15
21 Whilst you have not previously been diagnosed with any mental health disorders, you have been prescribed the antidepressant Avanza, a mediation that I understand you have been taking whilst on remand in prison.
22 Mr Parker noted an attempt at rehabilitation of some seven months, in or about 2018. Save for that, it appears that you have not had any formal assistance in relation to your alcohol-related history.
23 You informed the Court at your plea hearing that you were not a user of ice, but had used it on occasions, most significantly during the time of the attempted armed robbery. I take that to mean that you did not regard yourself as an ice addict, nor a long term user of the substance, but that for a period of time prior to your offending, you had at least been experimenting with it.
24 I have had regard to your criminal history, which was provided at your plea hearing. That history indicates prior sentences for assault-related offending dating back to 2007. I note that there are significant gaps between the periods of offending, and that you have not previously received a term of imprisonment in relation to these offences. Save for this, I was not provided with any significant detail in relation to that prior offending. As I have indicated, clearly it is relevant in relation to a penalty serving the purpose of specifically deterring you from again offending in such a serious manner.
Mitigatory factors
25 I take into account the fact that you have pleaded guilty in relation to these matters. The prosecution did not take issue with your counsel’s submission that you have entered your pleas of guilty at the first available opportunity. Your early pleas of guilty reflect acceptance of wrongdoing, and a willingness to facilitate the course of justice. A sentencing discount is applicable to reflect the utilitarian value of your plea.
26 I am also satisfied that your pleas of guilty are reflective of genuine remorse. According to psychologist Jeremy Parker, you expressed remorse for your behaviour, and Mr Parker noted that in relation to the incident, you held your head in your hands, shocked and saddened by what you had done. I note also your indications to police when you were interviewed that your elderly victim would have been frightened and terrified by your conduct.
27
Significantly, this matter proceeded as a plea of guilty in the Koori Court.
As part of your plea hearing, you participated in the sentencing conversation on 1 July 2019, where you engaged in a lengthy discussion with the Aboriginal Elders in relation to the impact of your offending. In that sentencing conversation, I formed the view that you were genuine, that you had insight in relation to your offending, and that you were sincerely remorseful for your behaviour. It is clear to me that you were fully and emotionally invested the sentencing conversation. As confirmed in the recent decision of DPP v Michael Heyfron [2019] VSCA 130, appropriate and meaningful engagement in the Koori Court sentencing conversation may operate as a mitigating circumstance. It is acknowledged that participation in the process is more burdensome than appearing at a traditional plea hearing. In that sentencing conversation, you took the opportunity to personally demonstrate your remorse for the offending, you demonstrated insight into the reasons for your offending behaviour, and you were able to articulate an intension to reform. In my view, this is a significant mitigatory factor in your case.
28 Whilst the psychologist, Mr Parker, referred to the likely persistent depressive disorder in your case, your counsel conceded that your mental health challenges did not warrant mitigation pursuant to the relevant Verdins principles. Nevertheless, I have taken into account your difficult background and likely battles with mental health in the general exercise of mercy, together with an appreciation of your likely difficulties in custody. In my view, it is likely that your difficult background, unresolved grief issues, and issues in relation to your sexuality have likely made your time in custody particularly difficult.
29 An assessment as your prospects of rehabilitation is somewhat difficult. At the age of 40, you have a number of concerning prior convictions and findings of guilty, including for matters of violence. Your offending on both occasions is concerning. However, given your plea of guilty coupled with evidence of genuine remorse, and the manner in which you participated in the Koori Court sentencing conversation, I am of the view that your prospects of rehabilitation, though somewhat guarded, remain at least reasonable. Indeed, in the event that you are able to meaningfully engage in appropriate rehabilitation regarding your drug and alcohol issues, together with some of the other underlying issues to which I have referred, it is my view that your prospects of rehabilitation may indeed be favourable.
30 At the sentencing conversation on 1 July 2019, I raised the issue of possible residential rehabilitation at Wulgunggo Ngalu, and you indicated that you would be agreeable to such a course. Accordingly, I requested that you be assessed for your suitability in relation to this program. I also ordered an assessment as to your suitability for a Community Correction Order. I indicated at your plea hearing that, given that you had served 318 days on remand, in appropriate circumstances I would contemplate your release from prison on a suitably structured Community Correction Order, with appropriate supported accommodation.
31 I have now received assessment reports from Corrections (as to your suitability for a Community Correction Order) and Wulgunggo Ngalu – both of which are favourable .In particular I note that you have been recommended for a three month stay at Wulgunggo Ngalu, and I have been informed that a bed is currently available. In all the circumstances, I am of the view that the various sentencing purposes can be met through a combined sentence of imprisonment, largely incorporating the time already served by you, in combination with a suitably structured Community Correction Order. It is my intention that you be released on Wednesday 31 July 2019, so that you can attend to the initial requirements of the Community Correction Order and other logistical matters before proceeding directly to Wulgunggo Ngalu.
Sentence
32 Before I impose the sentence on you, I need to ensure that you understand what is involved in the imposition of a Community Correction Order. When you had the assessment for the Community Correction Order were the likely conditions and structural arrangements explained to you, what is involved in a CCO?
33 ACCUSED: Ah yes.
34 HIS HONOUR: You understand that there are numerous what is called core conditions attached to any Community Correction Order. They include conditions such as not leaving Victoria without permission of your Corrections Officer. And significantly, they include a requirement that you do not commit any offence punishable by imprisonment during the operational period of the order. There are mandatory conditions but they are ones that are particularly relevant to you, do you understand that?
35 ACCUSED: Yes.
36 HIS HONOUR: I understand that you have intentions in the future to move to New South Wales to perhaps reunite with your family and continue on with your life in New South Wales, is that the case?
37 ACCUSED: Yeah.
38 HIS HONOUR: You understand that you will need to undertake your time at Wulgunggo Ngalu first and liaise closely with Corrections to see whether a transfer can be made to New South Wales, do you understand that?
39 ACCUSED: Yeah.
40 HIS HONOUR: You cannot simply go to New South Wales without speaking to Corrections.
41 In addition to the core conditions, I am attaching a number of other conditions to your order. The Community Correction Order is going to go for a period of 15 months. I am not attaching any unpaid work condition to the order. There will be a number of conditions. You will be required to be supervised by a Community Corrections officer. You will be required to undergo treatment and rehabilitation programs in relation to drug use. Treatment and rehabilitation programs in relation to alcohol use and treatment and rehabilitation in the form of programs to reduce reoffending. So there will be a number of treatment and rehabilitation conditions attached to the order, do you understand that?
42 ACCUSED: Yes.
43 HIS HONOUR: Do you understand that if you breach the order by not complying with these conditions or by reoffending, you will be in breach of your order and you will be brought back to court and you will be punished for not only breaching the order but you may be resentenced in relation to these original offences. You understand that?
44 ACCUSED: Yes.
45 HIS HONOUR: Understanding all of that, would you consent to the imposition of a Community Correction Order in the terms that I have explained to you?
46 The formal orders of the court are as follows. On the charge of attempted armed robbery (Indictment J12176296) you are convicted and sentenced to a period of 348 days' imprisonment. I declare pursuant to s.18 of the Sentencing Act a period of 343 days' pre-sentence detention. Again, for the sake of clarity, it is my intention that Mr Aldridge be released next Wednesday 31 July. In addition, I impose a Community Correction Order of 15 months' duration. In addition to the mandatory conditions, the Community Correction Order will have the following conditions, that you be supervised by a Community Corrections officer, that you undergo assessment and treatment including testing for drug use or dependency as directed by the regional manager, you must undergo assessment and treatment including testing for alcohol use or dependency as directed by the regional manager. You must participate in programs and or courses that address factors relating to the offending as directed by the regional manager.
47 Pursuant to s.6AAA of the Sentencing Act, I declare that but for the plea of guilty in relation to the attempted armed robbery, the sentence I would have imposed is 18 months' imprisonment with a non-parole period of 12 months.
48 On the charges of possess drug of dependence (methamphetamine) and theft (Indictment J11950038), you are convicted and fined an aggregate sum $400.
49 I will also make the ancillary orders sought. Mr O'Doherty, there were two disposal orders.
50 MR O'DOHERTY: Yes.
51 HIS HONOUR: And a 464ZF.
52 MR O'DOHERTY: Section 464 forensic sample.
53
HIS HONOUR: Mr Aldridge, the prosecution have made application for an order for the taking of a forensic sample from you, namely a scraping from your mouth. I recall on the last occasion, I was told that that application is not opposed by you. I need to inform you that if at the time of the request by an authorised member of Victoria Police, you do not consent to the taking of the mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted.
Do you understand that? Yes.
54 Mr Patterson, would you accompany Mr Lavery, my associate, down to the back of the court with the Community Correction Order for signing?
55 Mr Collier, I contemplated imposing a judicial monitoring condition on the order, you will obviously note that I have not done so. I note that in the recommendation you made in the assessment report in that regard. If there are any issues arising towards the end of Mr Aldridge's placement at Wulgunggo Ngalu, I would ask that you or those from Corrections Victoria consider bringing the matter before me so that I can perhaps informally find out what is going on. I am interested to make sure that the transition occurs in a positive manner.
56 MR COLLIER: Yes, Your Honour. Would your preference be for the case manager to contact your associate?
57 HIS HONOUR: Yes. Thank you.
58 MR COLLIER: That can be arranged. I will make a note of that.
59 HIS HONOUR: Thank you, Mr Collier, thank you for your assistance in relation to this matter.
60 Are there any other matters or orders that I need to make?
61 MR O'DOHERTY: No, Your Honour.
62 HIS HONOUR: Mr Aldridge, as I have said to you a few times now, the intention is that you will be released from Fulham on Wednesday next week and I sincerely hope that appropriate arrangements are made so that you can get from Fulham to Wulgunggo Ngalu with your medication. It is a three month stay at Wulgunggo Ngalu. I encourage you to stay there for the entirety of that three month period and grasp the opportunity with both hands in relation to making positive changes in your life so that you can move forward, perhaps transfer the order to New South Wales and get on with your life and put all of this behind you. So I wish you luck in that endeavour.
63 Yes, thank you. Mr Aldridge can be removed, thank you.
(Prisoner removed.)
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