Director of Public Prosecutions v Arias-Jones
[2017] VCC 987
•25 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00429
and CR-16-01543
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID ARIAS-JONES |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 and 15 December 2016, 20 February, 6 April and 24 May 2017 | |
DATE OF SENTENCE: | 25 July 2017 | |
CASE MAY BE CITED AS: | DPP v Arias-Jones | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 987 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Intentionally causing serious injury in circumstance of gross violence – machete attack - robbery and false imprisonment
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited:
Sentence: Imprisonment for 8 years and 9 months with non-parole term of 6 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Warda (until 6 April 2017) Ms C. Duckett (from 6 April 2017) | Office of Public Prosecutions |
| For the Accused | Ms C. Lynch | Papa Hughes Lawyers |
HIS HONOUR:
1 David Arias-Jones, on 5 December 2016 you pleaded guilty to a charge of robbery and a second charge of false imprisonment. Those offences were committed on 19 July 2015.
2 Subsequently, on 15 December 2016 you pleaded guilty to charges contained on a second indictment being one charge of having intentionally caused serious injury in circumstances of gross violence, and two charges of theft of a motor vehicle. In addition you entered pleas to three uplifted summary offences, being dangerous driving, unlicensed driving, and committing the indictable offence of causing serious injury in circumstances of gross violence, whilst on bail. You also admitted an extensive criminal record.
3 It is appropriate to summarise the factual circumstances in which your offending occurred in a chronological form. Detailed prosecution openings in respect of each indictment have been tendered as exhibits.
First episode of offending
4 On 19 July 2015, Matthew Collings was lured to the Riverbend Historical Park (“the park”) in Werribee in order to recoup money that was allegedly owed by Collings to Jye Glowacki, who was a colleague of yours.
5 Collings drove his mother’s car to the park in the evening. He was accompanied by a friend. While they were seated in the car and chatting, another car drove up behind them and parked. That vehicle was a Hyundai which you had stolen on 10 July 2015. Collings recognised two males beside his car. They were Glowacki and Thomas Vanstone with whom he was acquainted. Glowacki was holding a weapon, which Collings believed to be a gun that was pointed at him. Vanstone told the victim to get out of the car and he proceeded to tie Collings’ wrists behind his back with cable ties. Glowacki and Vanstone then took him to the back of the Hyundai where you were waiting.
6 Glowacki and Vanstone proceeded to search the vehicle which Collings was driving and located his wallet and took his bank card.
7 You then drove the Hyundai, with Collings cable tied in the back seat, to the McDonald’s car park near Point Cook. Glowacki and Vanstone arrived at the car park in the car that Collings had taken to the park. The three of you left your vehicles and had a conversation.
8 Vanstone demanded that Collings provide the PIN number of a credit card that was found in his vehicle. Collings complied and Vanstone then went to a nearby service station and withdrew all of the money in Collings’ bank account, which amounted to about $50. It should be noted that you have not been charged with any offences concerning the credit card.
9 While Vanstone withdrew money, Collings remained in the back seat of the Hyundai sedan with his wrists cable tied.
10 You then re-entered the Hyundai, within which Collings remained, and drove to a gaming venue in Point Cook, where you parked the car. Glowacki and Vanstone came to that venue in a separate car and left a short time later.
11 You returned to the Hyundai and drove around in the vehicle before finally releasing Collings at a car park in Hoppers Crossing.
12 On 20 July 2015, the Hyundai was secured and forensically examined by police. Your fingerprints were located.
13 On 24 July 2015, you were arrested in Laverton and taken to the Werribee police station. Initially you made a “no comment” response to police questions but later said that you may have got a lift in the Hyundai sedan and left your possessions there. You also told police that you were probably under the influence of drugs at the time. In relation to cable ties which were found in the Hyundai, you said that you used cable ties all the time. You denied any involvement in the offending.
14 Although no victim impact statement has been provided, it is self-evident that anyone in Collings’ position would have been utterly terrified to be threatened and held captive, while cable tied, in the back seat of a vehicle for an extended period.
15 You were remanded in custody on 25 July 2015 before being bailed on 12 November 2015. You were re-arrested on 2 December 2015 and have been in custody since that time.
16 When you robbed and falsely imprisoned Collings, you were 26 years old. Vanstone was also 26 whereas Glowacki was 22.
17 A number of factors were relied upon to contrast your involvement from that of your co-offenders, Glowacki and Vanstone. Your counsel, Ms Lynch, submitted that:
·you have pleaded to the lesser charge of robbery as distinct from charges of armed robbery to which your co-accused pleaded guilty;
·that you were not the instigator of the offending and it was not your debt that was sought to be recovered;
·that you were not directly involved in the plan to confront and detain Collings;
·that you were not aware of the use of a weapon by the co-accused;
·that you did not play a part in the obtaining, provision or use of the cable ties to secure Collings’ hands;
·that you did not take Collings’ credit cards and withdraw funds after extracting the PIN; and
·that Collings was not physically injured as a result of any action undertaken by you.
18 On 19 August 2016, Vanstone was sentenced to an aggregate term of imprisonment of three years and nine months with a non-parole term of two years after pleading guilty to armed robbery and false imprisonment. Glowacki, who was the architect of the offending conduct, was sentenced to the same aggregate term of imprisonment on 14 December 2016. In contrast to Glowacki, Vanstone had an extensive criminal history which included multiple armed robberies.
19 This matter resolved shortly prior to trial. A contested committal was conducted but I note that until the settlement of the indictment you were facing a charge of armed robbery as distinct from robbery. I accept that the plea of guilty represents an acknowledgment by you of your wrongdoing and facilitates the course of justice.
The second episode of offending
20 Some 17 days after being bailed in respect of the robbery and false imprisonment offences, you engaged in an appalling act of extreme violence.
21 On 29 November 2015, Rhiannon Ross made arrangements to meet Russell Bannon at the BP service station in Truganina. Bannon thought that Ross wanted to discuss an arrangement to repay $50 that he owed her for drugs she had supplied.
22 Ross knew that you wanted to confront Bannon and told you that she was going to meet up with him later that afternoon. You told her that once she met up with Bannon, she was to keep you posted and to stall him until you got there. You told Ross that you:
“didn’t care how much drugs you have to give him (so as to stall him). If he wants this much off ya, then you give him that much. I'll fix it up.”
23 Ross kept you supplied with details of her location. At about 6.52 pm, Ross met Bannon at the service station in Truganina. He entered the car which Ross was driving and gave Ross the money that he owed her. Bannon was then encouraged to go to a quieter location and use drugs. He agreed and followed Ross who contacted you before stopping at a dead-end street in Truganina.
24 At 7.13 pm, Ross messaged you her GPS co-ordinates and you told her to stay with Bannon and to, “shout him wateva u have to shout him, doesn’t matter.”
25 Shortly afterwards, you sped into the dead-end street in a black Camry which came to an abrupt halt blocking Bannon’s car. Bannon opened the door of the car he was sitting in and after taking two steps, recognised you and noticed that you were holding a machete. The blade of the machete was nearly 50 centimetres long and its total length was some 60 centimetres.
26 Bannon asked you what was happening and you walked towards him and said, “Do you wanna be a smart cunt.” Bannon responded, “Hey relax, put that thing down.” You moved quickly towards him, swinging the machete and Bannon took a step back and said, “Willow [your nickname], what the fuck are ya doing?” You moved forwards Bannon and swung the machete at him in a downward motion towards his face or head region. Bannon managed to block this blow by using his hands to protect himself.
27 Bannon then turned to run away but you again swung the machete and hit the back of his calf. You then struck Bannon’s shoulder with the machete and said, “Where’s your fucken gear. Where’s your car keys.” Bannon retrieved his car keys and threw them onto the road.
28 You began walking towards the car but turned around and walked straight back to Bannon and, in a downward strike, wielded the machete towards Bannon’s face. Bannon turned and the machete hit the back of his head, temporarily lodging in his skull. You said, “If anyone finds out about this I'll kill ya family.”
29 Fearing for his life, Bannon begged you to stop. You told Bannon to get into his car but he refused and then you muttered something before entering your own car and driving off.
30 Nearby neighbours, including adults and children, had witnessed this incident from their homes and contacted emergency services before coming to Bannon’s aid. He was in a state of shock and bleeding heavily.
31 Police and paramedics attended the scene and Bannon was taken to the Alfred Hospital by ambulance for treatment. Upon arrival, he was heavily bleeding from his head and left hand and admitted for injuries which included:
·profuse bleeding from the head and a fractured skull;
·profuse bleeding from the left hand, partial amputation of left hand digits: left hand thumb; left hand index finger; left hand middle finger: left dorsal linear wound crossing MP joint thumb, index and middle finger with open joint over index finger and distal second metacarpal, extensor tendon injuries exposed;
·pain, swollen left hand, haemorrhaging from the bone and surrounding tissue;
·inability to move digits, peripheral nerve damage, limited sensation;
·a laceration to the left upper back shoulder; and
·laceration and bruising to the left lower leg.
32 The victim underwent a number of surgical and non-surgical procedures, including plastic surgery, scalp sutures and insertion of wiring in his hand. He was discharged on 2 December 2015.
33 The car that you drove to confront Bannon was a stolen vehicle and is the foundation for Charge 2 on the indictment, being theft of motor vehicle.
34 On 1 December 2015, police officers who were investigating the machete attack were patrolling the Hoppers Crossing area. They noticed a silver Volkswagen which Ross had driven when she met Bannon at the service station in Truganina. The Volkswagen was parked adjacent to a grey Mazda in which you were seated. The police aerial unit took up surveillance and the car that you drove, with Ross in the front passenger seat, was later recorded on the Monash Freeway travelling at speeds in excess of 200 kilometres per hour, weaving in and out of cars in moderate to high levels of traffic. At the time of driving, your licence had expired. That conduct forms the basis for the uplifted summary offences of dangerous driving and unlicensed driving.
35 The Mazda that you drove was a stolen vehicle and that founds Charge 3 of the indictment, being theft of motor vehicle.
36 On 2 December 2015, police entered an address in Werribee. You were sleeping on a couch. You were arrested and provided a false name. Police located a machete and a box of high calibre ammunition in one of the stolen vehicles.
37 After your arrest, you were interviewed. You denied the offending and denied knowing the victim. You said that you had never hit anyone with a machete and denied having such a weapon. You claimed that a few months before the incident, the victim had threatened to shoot you and threatened to come after your family. You denied attacking anyone and said, “I didn’t do it, I'm innocent.”
38 You reason for attacking Bannon is not clear. During your police interview you said that the only time you had met Bannon was some months earlier when you met him by chance at a petrol station. You said that Bannon told you to stay away from a former girlfriend of yours and that he threatened you. For his part, Bannon told police that he had told you to stay away from your former girlfriend and that she was terrified.
Victim Impact Statement
39 Russell Bannon provided a victim impact statement declared on 10 February 2017.
40 Bannon states that as a result of your attack upon him and the injuries to his left hand, he is disabled. As a consequence, he is unable to engage in manual work as a container unloader.
41 More generally, Bannon states that he has been suffering from post-traumatic stress and anxiety, that his relationship with family and friends has dramatically changed, and he is finding it extremely hard to trust anyone. Since the attack he lives in constant fear and only sleeps for a couple of hours at night. Bannon indicates that he is seeing a psychologist regularly.
42 Exhibit C, which was tendered on 20 February 2017, includes several coloured photographs depicting injuries sustained by Bannon. They show an injury to the back of the head and the injuries to his left hand.
43 Unfortunately, efforts to obtain further medical evidence to establish the long-term consequences of the injuries you inflicted on Bannon have not been forthcoming. Bannon has spent some time in custody and has, on occasions, failed to attend for medical follow-up. Ultimately there is no direct medical evidence as to the long-term effect of the injuries sustained by Bannon.
Personal circumstances
44 Your personal circumstances were fully detailed in written and oral submissions from your counsel and further elaborated upon in two reports authored by Matthew Staios, consultant psychologist, respectively dated 19 November 2016 and 15 February 2017.
45 You are now 28 years of age, having been born and raised in Melbourne in a family of Chilean descent. Your parents separated when you were four and you harboured resentment towards your mother.
46 You told Mr Staios that your upbringing was unstable and that you and your siblings were raised in commission housing. You recall moving home on at least twenty occasions because of your mother’s inability to pay bills on time due to an ongoing gambling addiction. Your formative years were shaped by instability, dislocation, exposure to harmful behaviours and other forms of abuse that are more fully detailed in Mr Staios’ report. You told the psychologist that you attended approximately 18 different schools and ceased study after Year 10 due to poor attendance and ongoing substance abuse.
47 Your employment history is very limited. At the age of 18 you worked as a baker for about one year, but you were fired because of your poor attendance and use of illicit substances. Your primary sources of income have come from either unemployment benefits or dealing drugs.
48 At the age of 16 you fathered a daughter who is now 11 years old. You had a steady relationship with her mother for a number of years and both your partner and daughter visited you when you lived in Italy for some six months when you were 19. However, the relationship broke down when you returned to Australia, and you have had no contact with your daughter since you were 20. Prior to being sentenced to 15 months’ imprisonment in 2013, you had a further stable relationship. In the course of that relationship your partner became pregnant, but the child was stillborn.
49 In early 2015, you had contact via social media from a man claiming to be your biological father. His status was confirmed by your mother. This approach further destabilised you and led to a significant increase in substance use as a coping mechanism.
50 You have a long history of substance abuse. You began using cannabis casually at the age of 13, and from the age of 14 you have used cannabis extensively. Mr Staios records your reported use as being 12 ounces weekly. You began abusing methamphetamine from the age of 15, using 4 grams weekly. At the age of 17 you commenced using heroin and reported a daily usage of 3 to 4 grams.
51 Your criminal record reflects your drug use. On 30 October 2013, you were sentenced to 15 months’ imprisonment with a non-parole term of seven months. Your offending included possession of heroin, possession of amphetamine, burglary, theft and other charges involving dishonesty.
52 On 24 November 2014, you were fined and sentenced to a partially suspended term of imprisonment for possession of methamphetamine, possession of heroin, possession of cannabis, carrying a controlled weapon without an excuse, driving offences and a failure to answer bail.
Gross violence
53 You pleaded guilty to intentionally causing serious injury to Russell Bannon in circumstances of gross violence. By reference to s.15A(2)(d) of the Crimes Act 1958, the circumstance of gross violence particularised in the indictment, is that you planned in advance to have with you and to use an offensive weapon and in fact used that offensive weapon to cause the serious injury.
54 The maximum penalty attaching to the offence of intentionally causing serious injury in circumstances of gross violence is imprisonment for 20 years. That maximum is in common with the offence of intentionally causing serious injury simpliciter.
55 However, s.10 of the Sentencing Act 1991 provides that, subject to some exceptions, in sentencing an offender for intentionally causing serious injury in circumstances of gross violence the Court must impose a non-parole period of not less than four years. One of the exceptions to the imposition of the mandatory minimum non-parole period is that, “a special reason exists”.
56 Your counsel submitted that there were special reasons in existence which warranted a departure from the statutory minimum sentence. Ms Lynch called in aid s10A(2)(e) of the Sentencing Act which provides that a special reason exists if there are “substantial and compelling circumstances that justify” a departure from the statutory minimum. Section 10A(3) provides that in determining whether there are substantial and compelling circumstances, the Court must have regard to various considerations including:
“(b) Whether the cumulative impact of the circumstances of the case would justify a departure from that sentence and, where relevant, minimum non-parole period.”
57 Ms Lynch submitted that a combination of factors provided a special reason so as to justify a departure from the statutory minimum prescribed by s.10(1) of the Act. Those factors were identified as:
·your relative youth;
·an early plea of guilty;
·the need for rehabilitation and matters justifying the imposition of a longer than usual period of parole; and
·the impact of the prescribed minimum term and the operation of the principle of totality.
58 I am far from persuaded that the four factors enumerated by counsel do represent “substantial and compelling circumstances” that justify a finding that a special reason exists. I consider that, even in combination, the factors which are relied upon are commonplace considerations frequently advanced in mitigation of sentence.
59 Further, I regard the objective gravity of your offending as very high. In the absence of the provisions pertaining to intentionally causing serious injury in circumstances of gross violence, I consider that your offending is so serious that it would demand a non-parole term in excess of the mandatory minimum period.
Matters in mitigation
60 In the course of her able plea, Ms Lynch submitted that the objective gravity of your offending should be qualified because there is insufficient evidence upon which this Court could find that you formed an intent to inflict a serious injury in advance of your actual encounter with Bannon. In effect, Ms Lynch submitted that your initial intention was only to confront Bannon and that you only formed the intent to inflict serious injury after the encounter escalated from there.
61 I am entirely unpersuaded by this submission. It must be borne in mind that you pleaded guilty to intentionally causing injury in circumstances of gross violence where it is conceded that you planned in advance to have and use an offensive weapon. The weapon was a machete, some 60 centimetres long, and depicted in photographs tendered as Exhibit E. On 6 April 2017, the prosecution tendered a summary of witnesses who made observations about your conduct when you came out of the car in which you had arrived. That summary all points in the one direction. Bannon described you as jumping out of the car and holding a machete and within a very short time swinging the weapon towards his head.
62 In my view, you fall to be sentenced on the basis that you armed yourself with the machete with the intention of inflicting serious injury.
63 Your counsel relied upon a number of other factors, some of which do mitigate the sentence to be imposed upon you.
64 Those factors included:
·the entry of a plea of guilty at an early stage;
·your personal history of dysfunction and neglect;
·remorse;
·your relatively youthful age;
·the absence of any past offending for causing injury;
·your energetic efforts in custody to undertake courses and the provision of relevantly clean urine screens which demonstrate a preparedness to commit to treatment and rehabilitation;
·hardship on remand;
·the risk of your becoming institutionalised; and
·the application of the principle of totality.
65 I accept that your plea was entered at a relatively early stage of this proceeding. A committal was conducted but the matter resolved on day two of the committal hearing. In my view, there was legitimate purpose to the conduct of the committal because at that stage you faced a charge of attempted murder.
66 In his initial report, Mr Staios expressed the opinion that you expressed remorse for your actions and displayed empathy for the harm that you caused. You were said to have attributed your actions to poor decision making under the influence of substances, a lack of sleep and themes of paranoia. However, Mr Staios later stated that your level of insight into your offending was somewhat lacking. In his addendum report, Mr Staios indicated that you appeared to be genuinely remorseful and that you were able to understand that your crimes had a devastating impact on the victims. Whilst discussing your offending, you became emotionally distressed and cried for a brief period.
67 A letter written by you was tendered in which you stated that you sincerely apologise to Bannon and that you now recognise that your conduct will cause him ongoing distress and pain. You wrote:
“I understand that words can only mean so much but to show how sorry I am is the only real way of proving it. The only way I can do this is by being a better person in the future and changing this messed up path I have begun steering myself down. To try and accomplish that I have begun to do as many courses as possible so I can learn to deal with things in a productive manner instead of the destructive way I have always done.”
68 Whilst some scepticism must attach to self-serving letters written by a defendant to the Court, I am prepared to accept that you have belatedly developed a level of insight into the effect of your offending on other people and display a level of remorse.
69 That finding is buttressed by your plea of guilty at a relatively early stage.
70 At the time of the offending, you were 26. You are now 28 and in my view your age is not a significant factor when imposing sentence.
71 Your prospects for rehabilitation are clearly contingent upon your ability to remain drug-free in the community. To your credit, you have undertaken a significant number of courses in prison and have commenced a Methadone program. Drug screens demonstrate that you are not using illicit drugs in prison. Your letter to the Court suggests that you better appreciate the link between your offending and your use of illicit drugs. Ultimately you must demonstrate that fine words written to a Court from prison translate into reality when you are released into the community.
72 I accept that you have experienced a level of hardship whilst on remand, having been moved to the Metropolitan Remand Centre on 11 December 2015. The impact of the prison riots of 30 June 2015 resulted in increased lockdown hours.
73 Your counsel emphasised that although Bannon sustained serious injuries, his life was not threatened nor was he incapacitated for life. She noted that your offending did not occur in the context of a home invasion, the incident was not protracted and was not committed in company with others.
74 During the plea, a number of “comparable cases” were referred to. They are canvassed in written sentencing submissions and I do not propose to detail the distinctions between your conduct and that of other offenders who have been convicted of intentionally causing serious injury in circumstances of gross violence or intentionally causing serious injury.
75 The principle of totality clearly has application to your circumstances. The sentence imposed upon you must avoid the imposition of a crushing sentence on a person who is still in his twenties. Orders for concurrency reflect that consideration. Similarly the statutory presumption for cumulation of sentences for offending whilst on bail has been moderated.
76 As I have previously observed, the gravity of your offending is very high. Your attack upon Bannon was premeditated and ferocious. He was targeted and lured to a quiet location. You armed yourself with a wicked weapon and used that weapon to strike the victim several times. The first blow was towards Bannon’s face or head. Horrible injuries resulted to the victim’s hands while he sought to protect himself. As Bannon sought to retreat, you hit him to the back of his calf with the machete and then struck his shoulder. The final blow was towards Bannon’s face and for a brief time the machete lodged in his skull. At all times Bannon was unarmed, defenceless and vulnerable. Having inflicted serious injury upon Bannon, you threatened him by saying, “If anyone finds out about this I'll kill ya family.”
77 Your attack upon Bannon occurred in a residential street. I do not doubt that your brazen attack was fuelled by your consumption of ice. But your use of ice in no way lessens the sentence to be imposed upon you.
78 Further, you committed the attack upon Bannon whilst on bail for the robbery charge.
79 Your conduct must be denounced and both general and specific deterrence are clearly relevant.
80 On the charge of intentionally causing injury in circumstances of gross violence, you are sentenced to a term of imprisonment of seven years and six months.
81 On each of the two charges of theft of a motor vehicle, you are sentenced to terms of imprisonment of four months. In respect of each charge, one month of that sentence is cumulative upon previous orders and cumulative upon each other.
82 On the uplifted summary offence of dangerous driving, you are sentenced to two months’ imprisonment of which one month is cumulative upon previous orders.
83 On the charge of unlicensed driving, you are sentenced to 14 days’ imprisonment. That sentence is concurrent with previous orders.
84 On the charge of committing serious injury in circumstances of gross violence whilst on bail, you are sentenced to a term of imprisonment of one month. That sentence is concurrent with previous orders.
85 In respect of the offences which occurred on 19 July 2015, contained on a separate indictment, you are sentenced to an aggregate term of imprisonment of two years and three months for robbery and false imprisonment. Twelve months of that sentence is cumulative upon previous orders.
86 The total effective sentence is a term of imprisonment of eight years and nine months. I direct that you serve six years and six months of that sentence before being eligible to be considered for parole.
87 Pursuant to s.18(4) of the Sentencing Act, I declare that you have served 712 days of the sentence that I have imposed upon you and direct that this be recorded in the records of the court.
88 I have previously made disposal orders as sought.
89 As a consequence of being convicted of two charges of theft of motor vehicle, all driver licences held by you are cancelled and you are disqualified from obtaining a driver licence for three years.
90 Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, you would have been sentenced to a term of imprisonment of 11 years and nine months with a non-parole term of nine years and six months.
91 Does anything arise from those remarks?
92 MS DUCKETT: The only question the prosecution have is whether that disqualification commences today or commences - - -
93 HIS HONOUR: Today.
94 MS DUCKETT: Thank you, Your Honour.
95 HIS HONOUR: Ms Lynch?
96 MS LYNCH: No, Your Honour.
97 HIS HONOUR: Thank you. Mr Arias-Jones can be taken into custody please, officer.
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