Director of Public Prosecutions v Appleby

[2014] VCC 812

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -13-00053
CR -13-00054

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAY APPLEBY
JOHN REID

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 May 2014
CASE MAY BE CITED AS:	DPP v Appleby
MEDIUM NEUTRAL CITATION:	[2014] VCC 812

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L Hoang
For Accused Appleby	Mr J Dowsley
For Accused Reid	Ms K Ballard

HER HONOUR: 

1Jay Appleby and John Reid, you have each been found guilty by way of jury verdict on one charge of causing serious injury recklessly, Charge 2; and one charge of armed robbery, Charge 3.  You were found not guilty of causing serious injury intentionally, Charge 1, and the jury were not asked for a verdict in relation to an alternative charge of robbery, Charge 4.  The maximum penalty for recklessly causing serious injury is 15 years imprisonment.  The maximum penalty for armed robbery is 25 years imprisonment. 

2This offending occurred between about 4.30 and 5 am on 13 August 2012.  Earlier that night, in the early hours of 13 August 2012, you and a third man had bought a quantity of methylamphetamine or ice from a person.  You and the third man met the drug seller who was driven to the meeting place by the victim in this matter.  The victim was driving a car owned by a friend of his.  You went with the victim and drug seller to collect the drugs and then back to a hotel car park.  You and the third man then went to the house of a friend who lived nearby and used the drugs.  You felt ill after using the drugs.  The two of you then arranged to meet the drug seller again near Ferntree Gully Railway Station on the pretext of buying more drugs. 

3At about 4.30 am the victim drove the drug seller to a street corner near the Ferntree Gully Railway Station.  You were waiting.  You both got into the car, produced knives and demanded cash and a money belt that was in the possession of the drug seller.  A knife was put to the victim's throat.  He used his hand to push it away.  In doing that he received a wound to his hand.  The drug seller got out of the car and ran away.  The victim was stabbed in the legs numerous times as he tried to defend himself during a struggle in the vehicle.  There were repeated demands for the money belt and money.  Ultimately you and the victim got out of the car.  You were verbally aggressive and said you had been ripped off and sold dirty drugs and wanted $300.  You said something about being prepared to use a machete.

4Another car approached the area and stopped at a traffic light.  The victim went over to the passer-by's  car and then fled.  You then got in the victim's car and drove away.  The car was later found abandoned and burnt out.  There is no evidence on which I could conclude that either or both of you were responsible for burning the car.  It is also not possible, on the evidence before me, to conclude which one of you individually engaged in the actions I have described.  You are both responsible as having engaged in a joint criminal enterprise.

5The victim was taken to a hospital.  His injuries included a four centimetre jagged full thickness incision wound to the base of his left index finger; a puncture wound to the right knee; a four centimetre incision wound to the left calf with gaping skin; a puncture wound to the right foot; and scalp abrasions. 

6You, Mr Appleby, were arrested by police on 16 August 2012.  You, Mr Reid, were arrested on 31 August 2012.  You, Mr Reid, admitted to police that you had been at the Ferntree Gully Hotel on the day of the alleged offence. 

7In his victim impact statement, Exhibit A, the victim describes the continuing effects from the injury to his left index finger.  He says that injury has caused him difficulties with his sense of touch and feel, which is difficult in his work as a motor mechanic.  He describes the emotional impact on himself and his family.  He describes the loss of the feelings of security and trust he previously had when around other people.

8

In respect of each of you, I have taken into account your personal circumstances in sentencing you.  Mr Appleby, a number of exhibits were tendered on your behalf including a report of Ms Pamela Matthews, psychologist, dated 29 April 2014, Exhibit A1; a report of Mr Jeffrey Cummins, psychologist, dated 23 August 2009, Exhibit A2; educational assessment, dated 29 October 1992, Exhibit A3; and drug screen results, Exhibit A4. 

I have derived information as to your personal circumstances from those exhibits and from what was said on your behalf by your counsel.

9You are now aged 34.  You were brought up in Melbourne or areas near to Melbourne.  Your parents separated when you were two years old.  When you were about six, your father assaulted your mother and discharged a firearm.  Your father has had ongoing problems with alcohol and has moved to Queensland. 

10During your childhood, you formed a strong attachment to your maternal grandmother and her partner, your step-grandfather.  Your mother was a long term drug user.  When you were about 12 your mother was involved in a bank robbery and was sentenced to a term of imprisonment.  You went to live with your grandparents while she was in gaol.  Your step-grandfather has been a positive role model for you and has always been supportive of you.  Your grandmother has passed away but your step-grandfather was in court to support you and has visited you in custody.  Your mother sadly passed away a short time ago.  You were able to have a prison supervised visit to her in March this year. 

11You were expelled from school while you were repeating Year 9.  You have only had very short periods of employment.  You had one significant relationship in your 20s.  You have an eight year old son from that relationship but have not had contact with him for some years. 

12You commenced using illegal drugs and alcohol from when you were 14 or 15.  You became addicted to heroin and benzodiazepines until you were about 25.  Since then you have generally being using amphetamines, although occasionally you have had lapses into heroin and benzodiazepine use.  You have also abused alcohol at various times over the years. 

13You have admitted an extensive prior criminal history which has involved a great deal of serious offending which appears to have been mainly drug related.  You have served a number of periods of imprisonment.  In June 2010 you were placed on a Drug Treatment Order at the Dandenong Drug Court.  You made some positive progress on that order but stopped complying in mid-2011.  You were re-arrested at the end of 2011 and returned to the Drug Treatment Order.  You were arrested in relation to other matters, bailed and reconfirmed on the order but continued to struggle to comply.  You had committed another burglary around the time your mother had a stroke in August 2012 and were placed back in custody. 

14In January 2013 you were sentenced to a term of imprisonment with three months to be served and you have served that period subsequent to your arrest and remand on these matters.

15

It is Ms Matthews' opinion that you are vulnerable to psychosocial stress and tend to rely on substance misuse as a means of managing such stress.  She is of the opinion that your developmental history plays a significant part in your reliance on substance use to deal with stressors or life events and your failure to seek help at those times.  She says at the time of these offences, you were using alcohol most days and ice at least weekly.  Ms Matthews says, "Given the high levels of support usually afforded on a DTO, the writer does not think it could be said that Mr Appleby lacked access to support during the aforementioned periods of psychosocial stress." 

16Ms Matthews says you are struggling during your current time in prison, given your separation from your mother during her last illness, together with your placement in a protective unit.  She says in those respects your current incarceration is perhaps more onerous.  Ms Matthews recommends, from a rehabilitative perspective, that you be on a period of strictly supervised parole with further access to supports. 

17In sentencing submissions your counsel said that your view was that your chances of receiving parole would be slight.  Your counsel said that you have served the entire period of remand and imprisonment in protective custody, due to earlier assaults which occurred while you were undergoing previous sentences.  Counsel said that you had a very limited history of causing injury offences in that you had one conviction for recklessly causing injury in February 2003.  While clearly the question of parole is a matter for the Parole Board, your counsel said it would be weighing on your mind that you thought that your chances of getting parole would be slight.

18Your counsel submitted that whatever planning was involved in this matter was short and of limited duration.  He submitted that I should regard the taking of the car as an afterthought, rather than part of the original plan. 

19The drug screen results provided indicate that you have been on methadone whilst in custody but were negative as to other drugs. 

20

Mr Reid, a number of reports were tendered on your behalf.  They were a report from Dr Simon Kennedy, psychologist, dated 22 October 2008,

Exhibit R1; a report from Dr Joel Godfredson, psychologist, dated 14 April 2014, Exhibit R2; a letter from Anglicare, dated 31 July 2013, Exhibit R3; and drug screen results, Exhibit R4.  I have taken information as to your personal circumstances from the contents of those exhibits and from what was said on your behalf by your counsel. 

21You are now 36 years old.  Very sadly you were made a ward of the state when you were about two or three months old.  You lived in the St John's Home for Boys and Girls in Melbourne from about the age of two.  You have reported that you were sexually abused there by a male carer between the ages of seven and ten years old.  You have  been in contact with Anglicare and the current Royal Commission conducting an enquiry into such matters.

22According to Dr Kennedy, you told him that during a period of time when you were returned to your mother's care when you were eight or nine, you were sexually abused by your mother's partner.  You were returned to your mother's care at 13 but there was further physical and verbal abuse from your mother.  You were in short to medium term accommodation units from about the age of 13.  You completed Year 9.  Since leaving school you have had sporadic employment, mainly as  a roof tiler, for short periods of time. 

23You began misusing alcohol and cannabis from about when you were 13.  You were addicted to heroin between the ages of 17 and 26 and became a heavy user.  You have been using amphetamines or speed and methylamphetamine or ice on an ongoing basis. 

24You have admitted an extensive and serious criminal history which appears to be predominantly drug related.  You have a limited criminal history of violence.  You were placed in detention when you were 15 and were imprisoned at the age of 17 years.  You have served your current period of remand in protection.  You served a period of previous imprisonment in protection due to your allegation that you had previously been raped by other prisoners. 

25You have, over the years, relied on accommodation with your mother on your release from prison but this has been difficult because of your problematic relationship with her. 

26Dr Kennedy in  his report in 2008 made recommendations as to the types of support he thought you would require in order to be able to deal with your difficulties with substance abuse and institutionalisation on release from prison.  It appears that up until that time you had had very limited treatment to deal with substance abuse difficulties or other psychological issues. 

27Dr Godfredson, in his report, says that you told him, in addition to the other reported sexual abuse, you had been sexually abused when you were about ten by your mother.  You told Dr Godfredson that in the last 14 years, you had spent only 277 days in the community and that the last 20 months had been the worst you had ever done in gaol.  You told him you were fearful of sex offenders who are also housed in protection.  You told Dr Godfredson that you stay in your room with the kettle boiled in case you need to protect yourself.  You told Dr Godfredson that on your release you intended to go on a methadone program and described your difficulties in coping with living in the community. 

28

Dr Godfredson assesses you at being at moderate risk of engaging in future violence noting that you have, in the past, engaged in very few violence offences and had never previously committed an armed robbery. 

Dr Godfredson says that the most likely scenario would involve a situation in which you believed you needed to defend yourself. 

29Dr Godfredson says, "Administration of a general offending risk assessment indicated that Mr Reid has a high number of risks/needs, associated with general offending.  As previously stated, Mr Reid's offending behaviour appears to be directly linked to his drug use.  Furthermore, Mr Reid's drug use appears to be related to his personality and emotional problems, which are linked to his disadvantaged upbringing.  Despite his optimism and desire to live in the community, he has very few skills and resources for doing so." 

30

Dr Godfredson says it is difficult to apply a particular diagnosis to you but that most likely you meet the criteria for personality disorder.  He says you have other trauma symptoms and depressive symptoms.  Dr Godfredson assessed you as being severely depressed at the time he assessed you. 

Dr Godfredson also says that your situation of being housed in protection appears to be exacerbating your symptoms of trauma and depression and says that you had described suicidal thoughts. 

31Dr Godfredson suggests that as an offender who poses a high risk of general re-offending you warrant the highest level of interventions and makes a number of recommendations as to what he considers those interventions ought to be. 

32In sentencing submissions, your counsel said that the impact of protection on you was that you had very limited yard time.  Counsel submitted that you had also said you had been unable to access various courses on remand.  You have returned to the methadone program whilst in custody and the drug screens tendered indicate that you were negative for any other drugs.  Your counsel submitted that as it was likely you would spend any term of imprisonment in protective custody, any sentence ought to be moderated to reflect that. 

33Your counsel submitted that imprisonment was more harsh for you due to the experiences that you had had because of sexual assault in prison but also because of your mental health issues.  Your counsel relied on the sixth of the principles set out in the R v Verdins [2007] VSCA 102 and submitted that there would be a significant adverse effect on your mental health by your continued imprisonment, which ought to be taken into account as tending to mitigate any punishment to be imposed. Your counsel also submitted that the fifth principle of Verdins ought to apply, in that imprisonment was likely to weigh more heavily on you than on a person with sound mental health.

34Your counsel conceded that general deterrence and specific deterrence would be factors that would have to be taken into account in any sentence.  She submitted that a term of imprisonment with a provision for a longer than normal parole period would be appropriate.  Your counsel submitted that there was no evidence of pre-planning in relation to stealing the car.  You counsel in further sentencing submissions said that you had not had a period on parole, except for one month in 2010.  Since September 2008, you have spent less than seven months in the community. 

35The prosecutor in sentencing submissions agreed that the most serious aspect of this offending was the causing serious injury charge and accepted that the taking of the car was probably an afterthought and connected with you fleeing from the scene.  In respect of pre-planning, the prosecutor submitted that I should conclude that you had made a plan to try and get your money back, or exact some form of revenge from being cheated, after being sold dirty drugs.  The prosecutor submitted that you had been prepared to use violence and that one of you had been flashing knives as you were walking along the station. 

36Further the prosecutor submitted in relation to you, Mr Reid, that there was only tenuous relevance to Verdins Principles 5 and 6, given that the diagnosis in relation to you was vague and tentative. 

37Mr Appleby and Mr Reid, you have engaged in serious offending.  I am satisfied beyond reasonable doubt that you decided together to entice the drug seller to a meeting with the intention of getting the money back that you had spent on the drugs.  You took knives with you.  You were armed and ready for the possibility of using those knives, at least to make the drug seller hand over money. 

38In the execution of this plan between you, you made the phone call to get the drug seller and his driver to go to the appointed meeting place.  You met them there and got into the car making your demands.  You put a knife to the throat of the driver and continued to make your demands after the drug seller escaped.  There was then a struggle in the course of which you recklessly caused serious injury to the victim.  He suffered multiple injuries.  You engaged in a course of conduct with the knowledge that what you did was likely to cause him serious injury but you went ahead regardless. 

39I am not satisfied that at any stage in your planning you planned to take the motor vehicle.  You and the driver were out of the car and had what might be described as some conversation.  He then fled and you took the car.  I consider that the most likely interpretation of these events is that at some stage during this incident you decided to take the car and used it to get away.

40The jury found you guilty of armed robbery and armed robbery carries a significantly greater maximum penalty than recklessly causing serious injury.  But it is my view that the more serious offending in this case was the recklessly causing serious injury to the victim.  You inflicted knife wounds and engaged in an attack on the driver.  That attack has left him with ongoing consequences in terms of injury to his hand and his state of mind. 

41In respect of this offending, I am not able to differentiate between you, as I have said earlier, as to which of you did exactly what in this attack.  It is clear from the evidence in the trial, you were both involved in this joint criminal enterprise.  I am sentencing you on the basis that each of you had an equal role. 

42In view of the seriousness of your offending, a sentence of imprisonment is clearly warranted for the purposes of just punishment, denunciation, general deterrence and specific deterrence.  I consider that the sentence also ought to reflect the need to protect the community from further offending by each of you. 

43Mr Appleby, I have taken into account in mitigation of sentence that you will be serving your sentence of imprisonment in protection, which makes that sentence more onerous.  I have taken into account that since being remanded on this matter you have served a sentence of three months for offences of burglary, attempted burglary and theft.  I have taken that matter into account when applying the principle of totality to your sentence. 

44I have also taken into account in mitigation that you suffered a very deprived and disrupted childhood.  You also suffered significant trauma during your childhood.  I have taken into account in mitigation that you have spent some time on remand in this matter with the increased anxiety of your mother being very ill.  It is fortunate that you were able to see her before she passed away.  I take into account that your anxiety about her has made that period on remand more onerous. 

45I have also taken into account that your concern about potentially not being released on parole will weigh on you whilst you are in custody. 

46You have a significant and serious past criminal history.  Your history is very limited in respect of causing injury offences but you have had a number of court appearances for assault and aggravated burglary, in addition to other dishonesty offending.  You have continued to offend in connection with your drug use, despite previous periods of imprisonment and Community Based Orders, including the Drug Treatment Order. 

47This offence appears to constitute some escalation in your offending.  You have expressed no remorse in relation to this offending.  I consider that you are at high risk of committing further dishonesty offences and at least moderate risk of committing a future offence of violence.  I consider that you do have prospects of rehabilitation but at present those prospects are low. 

48In respect of you, Mr Reid, I have taken into account in mitigation of sentence that you also have had what was described by Dr Kennedy as "a rather tragic history".  You certainly suffered severely as a child in terms of the disrupted childhood, disrupted care, sexual abuse and trauma. 

49I also accept that you were severely depressed at the time that Dr Godfredson assessed you.  I accept that imprisonment is likely to be more difficult for you because of your symptoms of trauma and symptoms of depression, and that imprisonment, particularly in protection, is likely to exacerbate those symptoms.  Accordingly I am satisfied that Principles 5 and 6, as set out in Verdins ought apply in some moderation of sentence.  I accept that imprisonment will be more difficult for you because you are likely to have to serve that time in protection. 

50You also have a significant and serious past criminal history.  Your history is one of offences of dishonesty, including stealing cars, rather than violence.  You have continued to offend in connection with your drug use, despite previous periods of imprisonment and earlier Community Based Orders.  For you also this offending seems to constitute some escalation in your offending.  You too have expressed no remorse in relation to this offending.

51I consider that you are at high risk of committing further dishonesty offences and at moderate risk of committing a future offence of violence.  I consider that you too have prospects of rehabilitation but at present those prospects are low.  I agree that you are likely to benefit from intensive support, supervision and monitoring in the community but I do not agree that this leads to a conclusion that a shorter than otherwise non-parole period ought be imposed.  I consider that you are likely to benefit from such support, but that the nature and seriousness of the offending, together with your prior history and low prospects of rehabilitation, suggest that the non-parole period ought not to be reduced for those reasons. 

52In determining the appropriate sentences and the level of concurrency, I have applied the principles of totality and proportionality.  I have considered current sentencing practices for these offences.  I have taken into account the principle of parity and the matters which are particular to each of you. 

53

The sentence to be imposed on Mr Reid will differ somewhat from

Mr Appleby's.  This reflects the somewhat different moderating factors applicable to each of you. 

54Could you please stand, Mr Appleby and Mr Reid. 

55Jay Appleby, on Charge 2 of causing serious injury recklessly, you are convicted and sentenced to 42 months imprisonment.  On Charge 3 of armed robbery, you are convicted and sentenced to 15 months imprisonment.  Two months of the sentence on Charge 3 is to be served cumulatively on the sentence on Charge 2.  The total effective sentence is 44 months imprisonment.  I fix 30 months as the period you are required to serve before being eligible for parole. 

56Jay Appleby, I declare that you have served 545 days of this sentence by way of pre-sentence detention. 

57

John Reid, on Charge 2 of causing serious injury recklessly, you are convicted and sentenced to 40 months imprisonment.  On Charge 3 of armed robbery, you are convicted and sentenced to 15 months imprisonment.  One month of the sentence on Charge 3 is to be served cumulatively on the sentence on Charge 2.  The total effective sentence is 41 months imprisonment.  I fix

26 months as the period you are required to serve before being eligible for parole. 

58John Reid, I declare that you have served 630 days of this sentence by way of pre-sentence detention.