Director of Public Prosecutions v Ashford
[2022] VCC 2371
•22 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00895
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAREAMA ASHFORD |
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JUDGE: | HIS HONOUR JUDGE MULLALY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2022 | |
DATE OF SENTENCE: | 22 November 2022 | |
CASE MAY BE CITED AS: | DPP v Ashford | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2371 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence
Catchwords: Sentence indication – guilty plea – armed robbery
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Boulton v The Queen [2014] VSCA 342; Bugmy v The Queen [2013] HCA 37
Sentence: Total effective sentence of 226 days’ imprisonment with a 14-month community correction order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Teo | Office of Public Prosecutions |
| For the Accused | Mr A. Imrie | Mr W. May May Lawyers |
HIS HONOUR:
1Kareama Ashford, on 24 September 2020, you robbed a share driver while threatening him with a knife. You took his wallet containing $1500 and his cards.
2On 30 September 2020, you were arrested and made some admissions. You were remanded in custody spending 226 days in custody in difficult conditions prior to being granted bail. The particular form of the bail of your crimes is known as Court Integrated Services Program (‘CISP’) bail, and once on that form of bail, you commenced to turn your life around.
3Under the expert guidance of the CISP case managers, you settled with appropriate accommodation with your partner and your newborn child. You secured good work and adhered to your employer's drug analysis regime.
4On 13 October 2022, I granted your application for a sentence indication. I indicated that the penalty I would impose would be imprisonment for the time you had served on remand together with a Community Corrections Order. I had you assessed for a Community Corrections Order and you were found to be suitable. I will return back to this shortly.
5As I said at the sentence indication hearing, armed robbery is always a serious crime. I have today been provided with a victim impact statement which underlines the trauma that is caused by this violent and frightening crime. The victim of this crime is not the same as he was. He wrote the physical, emotional, financial, and psychological impact of this incident has been significant. He says, 'I desperately want my life back. The life I had before he took my life away.'
6I have taken into account what has happened to the victim as a consequence of this crime. As I said, the offence of armed robbery is always serious, but it is not put in this case that this is a particularly serious example of that crime. As I said at the sentencing indication hearing, there are many matters that establish compelling reasons to give significant weight to your rehabilitation. The other sentencing purposes of denunciation and deterrence are important, but they can be met by the imposition of a period of imprisonment that you have already served, together with a Community Corrections Order. And as I said, the Community Corrections Order will continue to facilitate your ongoing rehabilitation.
7There is, in my view, no doubt that you have taken substantial steps to overcome the problems that you had in your life to that point. You are very different now to the person you were when the crime was committed. There are many ‘protective factors, as they are described, in place. Your ongoing employment is particularly important. Ordinarily, for a crime of armed robbery where an accused person like you has a number of concerning prior convictions, a term of imprisonment of 226 days would be too little. However, the extent of your rehabilitation in this case takes the matter out of the ordinary. CISP reports, the psychological and the neuropsychological materials, your family circumstances and your work with its drug screening makes this case outside the ordinary.
8In this case, what's brought to the fore are the principles expressed in an important Court of Appeal decision of Boulton v The Queen [2014] VSCA 342. The principles that were expressed there were that reclaiming a young offender is always in the community's interest. And that can be achieved more beneficially if the offender, that is you in this case, remains in the community and is simultaneously punished and rehabilitated by undergoing targeted programs.
9The combined sentence I indicated is a merciful outcome given your concerning prior criminal history. But, as I have emphasised, you have come to deal with your drug addictions which were the underlying cause of your past criminality. You now have growing family responsibilities. That is, you have an infant child and are expecting another child with your partner in March. You are now employed with another employer and you have developed, it seems, the self-discipline to go to work and a sense of your own self-worth or self-esteem by having a job and being a provider for your family. Returning you to gaol is not in the interests of the community. It is time to consolidate your reform.
10As can be seen from my sentence indication, I considered a lot could be gained from the Community Corrections Order. Community Corrections’ assessment report and an attached mental health assessment were particularly helpful. Community Corrections report read, in part, and I quote:
When discussing the charges before the court, Mr Ashford expressed, he was a broken and lost young man with no direction in his life. Mr Ashford advised he was abusing substances and alcohol on a daily basis to regulate his emotions. Mr Ashford noted some days prior to the offending his grandmother passed away which exacerbated his mental health. Mr Ashford expressed remorse for his actions and indicated the offending would have significantly impacted the victim.
11I pause there. You can tell that is the case from the victim impact statement that was read out, which you heard just today. The report from Corrections went on:
During the period in which the offending occurred, Mr Ashford reported using amphetamines on a daily basis, and Xanax almost daily. He further reported consuming up to 10 standard drinks on a daily basis. Mr Ashford expressed following his release from custody he used cannabis once in July 2021 and has remained abstinent from substance use since. Mr Ashford noted his alcohol consumption has reduced to up to two standard drinks sporadically.
12I'll just pause there for a moment. Remaining abstinent from substances is easy to say and from this vantage point in the courts, however, I know that it is something that is said very often, as if it is easy for those that are addicted to simply give up substances. So, it must be acknowledged that you have done that, however, it is on a knife edge. If you fall back into substance abuse, it is likely you'll lose your job, it's likely thereafter things will deteriorate. So, in remaining abstinent from substances, all I can urge is that you continue do that.
13The report went on:
When discussing past engagement with CCS, Mr Ashford attributed his poor compliance to being young and naive. Mr Ashford noted his time on remand was a big wake up call and following the birth of his first child, his outlook on life has changed. Mr Ashford noted his partner is currently pregnant. Mr Ashford highlighted he successfully engaged with Court Integrated Services Program (CISP) whilst on bail for the current charges. Mr Ashford expressed motivation to engage on a CCO to maintain the positive changes he has made. The assessor has spoken to CISP County Court who have confirmed his compliance and engagement was positive and he successfully complete the program.
14Pause to note that the extension of the CISP program into the County Court is a matter of real significance in achieving a purpose of sentencing that is often spoken about but given very little practical engagement, and that is that the court in sentencing ought endeavour to establish conditions to facilitate rehabilitation. The CISP program allows that to occur and you Mr Ashford are a success story of that program.
15I note that you are still a young man, 22 at the time of the armed robbery and 24 now. I also note your deprived upbringing, which enlivens the principals in a High Court case of Bugmy v The Queen [2013] HCA 37. I do not need to outline all the deprivations that you endured as a very young child in New Zealand or in Australia once you arrived, but I have taken them into account. Your more positive attitude to your responsibilities now as a father may well be as a consequence of what you endured as a child yourself. Your more positive attitudes mean your mental health has stabilised. The assessment indicated that your mental health plan managed by your general practitioner is sufficient. That too is the recommendation of the psychologist and the neuropsychologist who saw you as part of the CISP program. You need to get in touch with your general practitioner and establish a mental health plan.
16Community Corrections Order, as I said, will not be an easy soft penalty. It is a significant penalty and, if you do not satisfactorily comply with all the conditions, you'll come back before me and all that I have said about the progress you've made and the mercy that I have shown, it will just put to one side and you are highly likely just to go back to gaol. That is to be avoided at all cost.
17The penalty I impose is the following.
18For committing the crime of armed robbery, you are sentenced to a term of imprisonment of 226 days. Pursuant to the provisions of the Sentencing Act 1991 (Vic), I note that it has been reckoned that you have served already 226 days on remand. This amount of time having been reckoned, I now declare it is part of the sentence that I have just imposed. In fact, it is every day of the sentence I've just imposed. The declaration I have just announced will be entered into the records of the court so the prison authorities and the legal system will be in no doubt that you have served every day of the sentence of imprisonment that I have just imposed.
19With respect to the armed robbery, I also impose, in addition, a Community Corrections Order that will last for 14 months. The conditions of that order will be that you have to do a hundred hours of unpaid work. You have to be assessed and treated for drug addiction, assessed and treated for alcohol addiction and undergo programs that will assist you to avoid offending into the future. All the hours that you spend doing those programs are counted as part of the unpaid community work. I expect they won't be all the hours and you will have to go and do unpaid community work.
20I just want to pause on that while you're focused on it. You have to go and do this unpaid community work. There's no choice about it, it's not voluntary, you have to do it. You just have to work it out with your employer and other commitments that you have. It may be group work, I think we have returned back to that now, so you will attend at workplaces to do unpaid community work with others. They may not be as committed to getting out of this system and putting drugs behind them as you currently are. So, there's the temptation. They might have access to it. They may encourage you. They may try and remind you of what it was like to take drugs. But you have to resist. It would be a tragedy if I tried to put you on a program to help you reform and part of that reintroduced you to drugs.
21But I do want you to pay the community back by doing unpaid community work. That's appropriate punishment. So it is really for you to ensure that you don't fall back into drug use by coming across others in that program that might tempt you. Fall back on your drug and alcohol programs, there will be good people that will assist you with that. Alright, you do also have to be under supervision of the Corrections, that is a necessary thing. They will be in touch with you about that.
22Now, with respect to the two bail offences, given your prior history these are not serious crimes on their own. It may be that they are appropriately dealt with with other forms of imprisonment, fines or the like, but I do not see that as appropriate. I do not see it is disproportionate, although it concerned me, to impose a penalty for each of those offences of seven days' imprisonment. Each of them will be concurrent with each other and concurrent with the sentence that I imposed on the armed robbery. That is, you have seven days which has been served. But, nonetheless, if you ever fall back into offending, an indication that while on bail you cannot keep bail and you have received a penalty of seven days.
23
Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of three years and three months with a
non-parole period of 20 months.
24So, what can be said from that is that there is a very significant benefit to you from your plea of guilty, although it came after a sentence indication and it came quite close to a trial. Trial all about a knife which did not seem to make much sense to me. I have given you a significant benefit because you pleaded guilty. That is because the courts have told judges like me that we must encourage those that are guilty to plead guilty, so as to relieve the overburdened criminal justice system from a long list of trials that were unable to be done during the pandemic.
25So, it is to encourage you but, most importantly given that you have pleaded guilty, to encourage others to plead guilty if they are guilty. So, the penalty that I have imposed on you is significantly more lenient that it would have been had there not been a plea of guilty in pandemic times.
26All right, now we'll go through a document shortly, Mr Ashford, that you have to sign and it indicates that you consent to doing the order. I will read those conditions out to you again. So, this is the 14 month corrections order that starts today and it ends in January 2024. You will see the dates.
27Everyone who is on a corrections order – you have been on them before but you didn't really do as well as you're going to do on this, I hope, but –everyone on a corrections order has mandatory conditions. The first is most important to you. You must not commit another offence for which you could be imprisoned during the time the order is in force. So, for the next 14 months, if you commit another offence, even if the magistrate just fines you, you will come back before me and you've heard what I've said about the high likelihood, if not inevitability, of returning to gaol.
28The other mandatory conditions are about cooperation. So, you must report to and receive visits from the Office of Corrections. You must report to the Community Corrections Centre, that's the one in Moorabbin, the address is here. You've got to do that within two clear working days. So, get onto that when you get out of here and set up the next part of it.
29You must let them know, that's the Officer of Corrections, if you change your address or your job. You've got to do that within two clear working days. Just do that straight away. You can't leave Victoria without getting permission so don't think you can go over the border for a holiday, you've just got to ask them. They'll probably say it's alright, but you have to ask them. And you've got obey all lawful instructions.
30So, that applies to everyone and it applies to you. What applies to you especially, that is the conditions just for you, that is:
(a) You must perform a hundred hours of unpaid community work over the 14 months;
(b) You must be under the supervision of a community corrections officer for that 14 months;
(c) You must undergo assessment and treatment for drug abuse;
(d) You must undergo assessment and treatment for alcohol abuse; and
(e) You must participate in programs and courses are consistent with achieving the purposes of treatment and rehabilitation
31Alright? Now, I haven't put on there that you have a mental health condition. That’s because it should be the health system that's working with you on that not the criminal justice system. So, go and see, get a GP – you probably have for your family in any event – just see that person and get a mental health plan, alright?
32So, if you look at that document, your lawyer, Mr Imrie will come down and go over it if you haven't understood it. If you consent to it then sign it and that will bring the matter to an end. Can you take it down to him?
33So, you've signed that saying you've consented to doing the order, that means do it. Now, there is one other thing. It's no small matter in your circumstance and that is the victim has made an application for compensation for the $1500 that he lost. I'm going to sign that order that compels you to make repayment to him for $1,500. Now, it's the right thing to do. I don't for a moment think that you've got $1,500 to just handover and it might take some time, but then again, he shouldn't be without. So make sure you get around to sorting that out and don't leave it as something that you just ignore.
34I've signed that, you'll get copies. Is there anything else required?
35MR TEO: No, Your Honour.
36MR IMRIE: No.
37HIS HONOUR: Mr Imrie thank you very much for your assistance. You're free to come out of the dock Mr Ashford. He'll get copies of those documents before he leaves, it's best that he has them before he heads away.
38OFFENDER: Thank you, Your Honour.
39HIS HONOUR: Because the next step he has to make is to get to the Office of Corrections quickly. If there's nothing further, I thank counsel for their assistance.
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