Director of Public Prosecutions v Andy

[2017] VCC 31

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -14-01860
CR -15-01332
CR -16-01476
CR -16-02277

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATHEW ANDY

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	1 February 2017
CASE MAY BE CITED AS:	DPP v Andy
MEDIUM NEUTRAL CITATION:	[2017] VCC 31

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Mr G. Hughan

Pages 1 - 13

 

 

HIS HONOUR: 

1Mathew Andy, on 19 September 2016, you pleaded guilty in front of me to three charges of theft, one charge of conduct endangering and one charge of criminal damage on Indictment 270.  You pleaded guilty to one charge of threat to inflict serious injury on Indictment 904D and one charge of reckless conduct endangering on 904C.

2Theft carries a maximum penalty of ten years, conduct endangering five years, criminal damage ten years, and threat to inflict serious injury five years.

3You are an Aboriginal man, 35 years of age and you have a very extensive criminal history.  I am not proposing to go through all that.  You have convictions probably in the hundreds by now for all sorts of crimes involving violence and mostly drug and anger management related offences.  You also, in respect to those indictments, pleaded guilty to a number of summary matters being unlicensed driving, assault with a weapon, contravening conduct of a condition of bail, commit an indictable offence whilst on bail, unlawful assault and drive whilst disqualified.  I will be sentencing on those matters in due course.

4On 24 January of this year, you pleaded guilty in front of me on Indictment 294 to one charge of causing injury recklessly, one charge of armed robbery, eight charges of criminal damage, seven charges of theft, one charge of common assault, one charge of attempted theft, three charges of burglary, one rolled up charge of assaulting a police officer, two charges of negligently dealing with the proceeds of crime and one charge of robbery.

5Causing injury recklessly carries five years, armed robbery 25 years, common assault five years, attempted theft ten years, burglary ten years, assault a police officer five years, proceeds of crime five years, and robbery 15 years.

6On that occasion, you also pleaded guilty to a number of summary matters being drive whilst disqualified, contravene a conduct condition of bail, commit an indictable offence whilst on bail, drive in a manner dangerous, and I say at this point that your licence will be cancelled and you will be disqualified from obtaining a licence for a period of six months.  Other charges include committing an indictable offence whilst on bail and another charge of drive whilst disqualified.  Those are obviously summary matters.  The drive whilst disqualified potentially carries two years.  The rest essentially have maximum penalties of three months.

7You pleaded guilty in circumstances where I accept that that is not an easy task for you.  You have been involved in unfortunate interactions with the police and the public for a long period of time.  However, having heard you speak and dealing with it in the Koori Court twice now and dealing with the Elders, I believe that you are finally starting to understand the consequences that your conduct has on other people and I am prepared to sentence on the basis that your plea of guilty is accompanied by a degree of remorse.

8You also of course must get the utilitarian benefit of that plea, which in a situation as complicated as this, is a fair significant one.

9I have indicated to counsel I have sentenced you previously in April 2012 and subsequent to that and Judge Gullaci in 2007.  I have the sentencing remarks that I made and also Judge Gullaci's remarks and I have clearly taken them into account.  Accordingly, during the course of these sentencing remarks, I do not propose to go into great detail about your background other than make a few salient points.

10The indictments that you have pleaded to and the summary matters were all to a settle indictment and I therefore regard the plea to all of these matters as early.

11Insofar as the matters from 19 September were concerned, they involve on 904C, you driving a motor car on the South Gippsland Highway, which gives rise to unlicensed driving.  When you were recognised by police, you drove away, you revved your engine loudly and drove forward and backward a number of times before executing a U-turn to the southbound lanes of the highway.  You then sped north in the southbound lanes approaching a number of cars that were stopped at a set of lights up ahead.  You drove approximately 200 metres up the wrong side of the road, swerving and fishtailing before turning right onto a side road.  The cars at the lights started towards you and you turned right before they reached the same point on the road.  The police officer did not pursue you as you drove away.  The summary says it was raining heavily at the time and there were pedestrians in the area.  That gives rise to the charge of reckless endangerment.  When interviewed, you said you did not remember it.

12On Indictment 904D, you were on remand at the Metropolitan Remand Centre and you made a telephone call to your ex-girlfriend essentially in which you threatened her in fairly vigorous terms.  That gives rise to the threat to inflict serious injury.  You refused to be interviewed in regard to that matter.  The complainant later made a statement of no complaint and other charges were withdrawn.

13On Indictment 270, you went into Myers in Fountain Gate and just simply stole money from the cash register, which gives rise to the first charge of theft.  On 7 July 2015, you were driving a Ford in Hampton Park when you passed another car coming in the opposite direction.  You immediately stopped, reversed back quickly, cutting dangerously across to the other side of the road and coming to a stop in front of them, blocking the path of the other car.  You got out of your car and approached the driver of the other vehicle.  You were holding a steel bar.  You told that driver to get out of his car.  He said, "What's wrong?"  You then smashed the window of his car with the bar, took the keys out of the ignition and then hit him on the forearm.  That gives rise to assault with a weapon.

14Other cars tried to pull up, you told them to go away.  Other drivers approached you to try and intervene.  You threatened them so they returned to their cars and this at this time, a marked Sherriff's car arrived at the scene containing two Sherriff's officers.  You yelled abuse at them, walked over to your car, put on black gloves, took out the metal bar from your car again and rang at the Sherriff's officers brandishing the bar.  That gives rise to summary charges.  The driver of the Sherriff's vehicle immediately drove forward, mounting the kerb to avoid your car and drove off.  You got into yours accelerating quickly and sped off.

15The Sherriff's officers believed, at least, that you were pursuing them and called 000.  After some distance, you came up next to them, the Sherriff's car.  You were swaying left to right, causing the Sherriff's car to brake suddenly to avoid a collision.  You then turned right into another street and continued on and you came down that street apparently from the opposite direction, they saw you coming and you were on the wrong side of the road.  That gives rise to the charge of conduct endangering.  You were disqualified from driving and the matters of commit indictable offence on bail speak for themselves.

16On 7 July, you again went to Fountain Gate.  You stole money from the cash registers, that is another charge of theft.  On 16 July, you threatened a security officer at Fountain Gate.  That gives rise to summary assault.  You then stole money from a cash register again.  That gives rise to theft.  That also includes obviously contravene bail conditions.  That gives rise to the charges that were dealt with on 19 September.  As I said, I am treating it as an early plea to settled indictments.  There are no victim impact statements in regard to that matter at all.

17Insofar as the matters that came on before me on 27 January are concerned, most of the thefts, criminal damage, attempted theft relate to endeavouring to get coins from Laundromats in the area around Dandenong North.  I do not need to go through the details of that, what you were trying to do would be to jemmy the coin containers off the wall or in some way try and get the contents of them.

18You, at one stage went to a Laundromat where a Mr Hartley was standing outside during the course of one of these attempted thefts.  You ran at him, he backed away in fear, you struck him with a screwdriver causing him to fall to the ground and he received a laceration.  That gives rise to a charge of causing injury recklessly.  I have read Mr Hartley's victim impact statement and I take that very much into account.

19When that occurred, you then went back to the car, took out a jemmy bar and entered the Laundromat.  I accept that that jemmy bar was for the purposes of jemmying off coin containers.  A customer was sitting on a chair.  You walked up to him, struck him to the head, causing him to fall to the floor.  He was holding his mobile phone in his hand, you stood over him and demanded the phone and he says you motioned to stomp on him with your left foot.  You then bent closer to him, struck him to the side of the head, grabbed the mobile phone.  He held onto it.  You brought your right arm around holding the jemmy bar and raised it over his head.  He was cowering and released the phone.  At that time, according to the basis that I sentence here, your brother Stephen Andy walked inside.  You took possession of the phone and $100 in cash, which was in the phone cover.  That gives rise to Charge 2 of armed robbery which, in my view, is the most serious of all the charges that you face on this occasion.  Theft and criminal damage were in the same way.

20You then, leaving the Laundromat, followed a woman, drove up next to her and made a shooting gesture with a finger.  That gives rise to drive in a manner dangerous and a nasty common assault, if I may say so.  Again, there were drive whilst disqualified, commit indictable offences and breaching the bail conditions, I take those matters all into account.

21On 19 April 2016, again theft and criminal damage at a Laundromat.  On 19 and 20 April, attempted theft, criminal damage, theft and the usual commit indictable offences on bail and drive whilst disqualified.  Same sort of conduct on 21 April and same sort of conduct on 22 April, all at Laundromats.

22On 23 April, went again to a Laundromat.  You were asked by a woman what you were doing.  You said you wanted the coin machine and started to walk towards the front of the store.  She took out her phone to call the police, you approached her, grabbed the phone from her, pushed her to the floor as well as taking the phone, you took $200 in cash and the personal cards belonging to the woman which were in the phone case.  That gives rise to a charge of robbery which I have already referred to.

23Again, following that, criminal damage and theft, 23 April at another Laundromat.  Criminal damage and theft on 24 April, you were observed by the Victoria Police Critical Incident Response Team members walking along the road in Narre Warren.  You were apprehended in a residential street by three police officers and as is not uncommon in your history, Mr Andy, you endeavoured to fight them off and were unsuccessful, eventually subdued, handcuffed and placed into a divisional van.  That gives rise to the assaulting police officers in the due execution of duty.

24You were taken to Melbourne Custody Centre and there were relatively minor injuries to the police involved.  You, at the time of the arrest were found with a few hundred dollars' worth of coins, that's the proceeds of crime and a search warrant was executed at your house later on in Hampton Park and a camera was found and health care card which gives rise to another dealing with the proceeds of crime.

25I already indicated what the maximum penalties are for all those offences.  Insofar as these matters are concerned, I have indicated the victim impact statement of Mr Hartley.  There is also a victim impact statement of Ms Van Oot, which describes eloquently, and also one from Rachel Pironell, the fear and psychological consequences as offending such as this has on people and obviously I take those victim impact statements into account.

26In this particular sentencing situation, you are 35, you have got an extensive history.  You have been institutionalised probably from about the age of 15.  In the last 20 years, you have spent 15 of them either in gaol or youth training centres.  This sentence is really about totality in some respects.  The submission was made by your counsel on your instructions for a CCO as well as imprisonment, but as I indicated to him the amount of time required to be served is just simply too much for such a disposition to be given.

27You have an IQ of 75.  You have at various times been diagnosed with psychotic disorders, almost certainly from the use of drugs.  You have been drinking since a very early age, using drugs from an early age.  You have had anger management course and up until relatively recent years, very little had been done to try and assist you.  It is quite clear that when you are well and you were, a year or so ago, very close to being unfit to plead, but when you are well, you are relatively easy to get on with and I accept that the people in the gaol this time are saying that you are much better to get on with now than you used to be.  You are very slowing, it would appear, maturing.

28You have a partner, you tell me.  You engaged in Koori Court twice and whilst that does not of itself obviously entitle anyone to a discount in sentence it enables myself and the Elders to talk about these matters with you and to get the general impression of how you were going.  In my view, over the period of time that I have effectively known you, I suppose is one way of describing it, your attitude and your capacity to communicate has improved greatly.  You are starting, finally I think, to get an insight into what is going to happen to you if you cannot deal with these problems and we have been trying for 20 years, then the ultimate answer to all this, Mr Andy, is you are probably going to die in gaol.  You know that, I know that and nobody wants that to happen if it can be avoided.

29As I said, this is really a totality situation.  I am going to give a period with a non-parole period.  I understand that there may well be serious difficulties in relation to that, but there is not much I can do about it.  I would prefer to be able to release you in a situation where I knew there would be supervision for an extended period of time but I have taken the view, and I obviously think correctly, that no such disposition can be imposed by me because it would be out of the range reasonably available to me.

30In those circumstances, I can do is give you want I consider to be an appropriate head sentence, being in mind totality and the already significant institutionalisation that you suffer from and a minimum term which reflects the seriousness of the offending and hopefully at some stage put you in a situation where you can be released with the appropriate supervision.

31Judge Gullaci said back in 2007 that he thought your prospects for rehabilitation were bleak.  You have probably offended a hundred times since then, but I simply say to you that the way you have conducted yourself in Koori Court, I think there has been some real improvement and all I can do, I suppose, and the Elders share that view, all four of them you spoke to, is sentence you with some hope that you do have a future.

32On 904C, that is the reckless conduct, six months.  On 904D, that is the threat to cause serious injury, 12 months.  On 270, theft, one month.  Reckless endangerment, six months.  Criminal damage, one month.  Theft, one month.  And theft, one month.  Therefore on each of those indictments, there is a period of six months on 904C, 12 months on 904D and effectively six months on 270.

33I direct that two months of the sentence imposed on 904C, three months of the sentence imposed on 904D and three months of the sentence imposed on 270 be served cumulatively upon each other and upon the sentence on Indictment 194, which I will be imposing shortly.  So eight months from that is to be cumulative upon the sentence I impose on 194.

34Insofar as the summary matters, on 904C, unlicensed driving, one month.  On 270, an aggregate of six months.  I direct that two months of that six months also be served cumulatively upon the cumulative sentences I have passed as well as 194.

35On Indictment 194, as I discussed with counsel, I will pass an aggregate sentence of three and a half years.  On the summary matters relating to 194, an aggregate sentence of six months.  I direct that two months of that six months be served cumulatively upon the other accumulations I have directed upon the sentence imposed on Indictment 194.

36That, on my calculations, means that I have imposed another 12 months on top of the three and a half years which gets to a total effective sentence of four and a half years and bearing in mind what I have said about parole and a recent Court of Appeal decision that we apparently did not look at whether it was going to be granted or not.  I direct that you serve a minimum term of three years and three months before becoming eligible for parole.

37I direct that 570 days be reckoned as having been served under the this overall sentence.  I also indicate that in the construction of this sentence, I take into account that there is in excess of a year, that would be almost described as incalculable of what could be described as Renzella time and time thrown away, and that is a factor which without putting a figure on, I have taken into account upon this overall sentence.

38As I have indicated, on Charge 22, a summary charge of a manner dangerous, that will be six months' disqualification commencing now. Just so Mr Andy that you understand the benefit of pleading guilty in all this, pursuant to s.6AAA of the Sentencing Act, I say but for your pleas of guilty, I would have given you seven with a five.

39Does that all add up, gentlemen?

40MR MOORE:  Just bear with me a moment.

41MR HUGHAN:  I think so, Your Honour.

42HIS HONOUR:  I have had about five goes at it.

43MR MOORE:  It does, Your Honour.

44HIS HONOUR:  Are you all right with that, Mr Hughan?

45MR HUGHAN:  Sorry, Your Honour, my learned friend's maths are a bit quicker than mine.  Just bear with me.

46HIS HONOUR:  Yes, of course.  I just do not want to have to bring everybody back, that is all.

47MR HUGHAN:  I think I just lost on 904 - sorry, on 270.

48HIS HONOUR:  Yes.

49MR HUGHAN:  We had Charge 1, theft, one month.  Could you just take me through those?  I know there is a total of six months there.

50HIS HONOUR:  Yes, 270.

51MR HUGHAN:  Yes.

52HIS HONOUR:  The reckless endangerment was six months.  Everything else was a month, concurrent.

53MR HUGHAN:  Yes, all right.  So concurrent.  Six months on that.  So now then we have made two months of 904C.

54HIS HONOUR:  Yes.

55MR HUGHAN:  Three months of 904D.  Three months of 270.

56HIS HONOUR:  Yes.

57MR HUGHAN:  Are cumulative.

58HIS HONOUR:  That is eight.

59MR MOORE:  On each other and also on ‑ ‑ ‑ 

60HIS HONOUR:  Yes, on each other and on - yes.

61MR HUGHAN:  Yes, Your Honour.  So cumulative on each other and on the ultimately on the 194.

62HIS HONOUR:  Yes.

63MR HUGHAN:  Then we have got two months cumulative for that set of summary charges that were associated ‑ ‑ ‑ 

64HIS HONOUR:  No, hang on a second.

65MR MOORE:  No.

66HIS HONOUR:  No.

67MR MOORE:  Aggregate of six.

68HIS HONOUR:  Aggregate of six.

69MR HUGHAN:  Aggregate of six.

70HIS HONOUR:  With two of that cumulative.

71MR HUGHAN:  That is right.  All right, you can see I skipped a step.

72HIS HONOUR:  On the other accumulations and 194.

73MR HUGHAN:  Yes.  The summary charge of 904C had a month on it?

74HIS HONOUR:  Yes, straight out concurrent.

75MR HUGHAN:  Then on 194, we have got three and a half years on the indictment.

76HIS HONOUR:  Yes.

77MR HUGHAN:  On the related summary charges, six months.

78HIS HONOUR:  Yes.

79MR HUGHAN:  Two months of that, so we then have eight and two and two is 12.

80HIS HONOUR:  Yes.

81MR HUGHAN:  Three and a half plus - yes.  Sorry, Your Honour, as I say my maths is a little bit slow.

82HIS HONOUR:  No, that is all right.  So four and a half, that is how it ‑ ‑ ‑

83MR HUGHAN:  Twelve months and ‑ ‑ ‑ 

84HIS HONOUR:  With three, three on the bottom for whatever that is worth.

85MR HUGHAN:  Yes.  And the PSD we had another eight days.

86HIS HONOUR:  That is 570.

87MR HUGHAN:  Five seventy.

88HIS HONOUR: All right, and the s.6AAA just so you can explain it to him clearly that pleading guilty saved him two and a half years.

89MR HUGHAN:  Very substantial.

90HIS HONOUR:  Yes.  He knows he would have done the lot.

91MR HUGHAN:  Yes.  I will go and spend some time with him, Your Honour.

92HIS HONOUR:  I am happy to stand down for five minutes.  Do you want to talk to him in the dock or you can go to the police station.

93MR HUGHAN:  I will have an initial discussion in the dock and if I need to go across, I will go across as well, but thank you, Your Honour.

94HIS HONOUR:  I will come back at a quarter to, so just take five minutes.

95MR HUGHAN:  Thank you, Your Honour.

96HIS HONOUR:  All right, good luck Mr Andy.

97ACCUSED:  That's all right.

98HIS HONOUR:  Those summary matters are withdrawn.

99MR MOORE:  They are withdrawn here?

100HIS HONOUR:  Registry have just told me.  Yes, they are happy if I do it, it is done.

101MR MOORE:  All right.

102HIS HONOUR:  All right.

103MR HUGHAN:  That includes the two lots.

104HIS HONOUR:  The lot, yes.

‑ ‑ ‑