Director of Public Prosecutions v Astell
[2019] VCC 378
•27 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MORWELL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01571
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK ASTELL |
---
JUDGE: | HER HONOUR JUDGE M. SEXTON | |
WHERE HELD: | Morwell | |
DATE OF HEARING: | 20, 27 March 2019 | |
DATE OF SENTENCE: | 27 March 2019 | |
CASE MAY BE CITED AS: | DPP v Astell | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 378 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law
Catchwords: Armed Robbery – Intentionally causing injury – obtaining property by deception
Legislation Cited:
Cases Cited:
Sentence: TES: 5 years, 4 months and 35 days with a minimum of 3 years 6 months to be served before eligible for parole. Compensation order made.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Gray | OPP |
| For the Accused | Mr M. Reardon (For Plea) Ms P. Healy (For Sentence) | VLA |
HER HONOUR:
1 HER HONOUR: Patrick Astell, you have pleaded guilty to two charges of armed robbery, an offence with a maximum sentence of 25 years’ imprisonment; and to one charge each of intentionally causing injury and of obtaining property by deception, which are offences with a maximum sentence of 10 years’ imprisonment.
2 You consented to this court dealing with six summary offences, to which you also pleaded guilty. These are three charges of committing an indictable offence while on bail, and one charge of unlawful assault, which are offences with a maximum penalty of 3 months’ imprisonment; and two charges of contravening a Family Violence Intervention Order (FVIO), which has a maximum sentence of 2 years’ imprisonment.
3 Your plea of guilty to all these charges was indicated early in the process, which saved the community the time and cost of a trial, and showed you accept responsibility for the offences. It also saved your victims from having to give evidence at your trial. As a result of your pleas of guilty, the sentences I impose today will be less than would have been imposed if you had been found guilty after a trial.
4 I sentence you on the basis of the prosecution opening, an agreed summary which was read out in court,[1] and on the basis of the photographs[2] of the victim of charge 2 (intentionally causing injury). I will briefly outline your offending.
[1] Exhibit A
[2] Exhibit B
5 In February 2018, you and your co-accused, a woman who was then your partner, were living in Churchill. You had recently arrived from Tasmania to be near your father who was in care in Melbourne. You are a qualified baker, like your father was, but you were unable to secure employment in that occupation at the time. Also at that time, you were using ‘ice’ (methylamphetamine).
6 In the early hours of 24 February 2018, you were in a car driven by your co-accused in Traralgon. I will not refer to your co-accused by name as she has elected to go to trial. As there was an interim Family Violence Intervention Order in place prohibiting you from being with her, you being in the car with her contravened that order and is the subject of summary charge 18 (contravene FVIO).
7 At about 1.45am, the car was stopped, you got out of the car and approached a man, Christopher Harris, who was walking along and talking on his phone. You grabbed the phone and threw it away. Then, for no apparent reason, you began hitting Mr Harris on the face with the handle of a tomahawk which you had with you. He attempted to prevent this, and you then hit him on the ear with the blade of the weapon, causing him substantial injury. That is the subject of charge 2 (intentionally causing injury).
8 Mr Harris fell to the ground under your blows, and you are described as having ‘propped’ on top of him, from which position you began searching his pockets. You stole about $140 from him and then ran back to the car allegedly driven by your co-accused. That is the subject of charge 1 (armed robbery). As you were on bail for an earlier charge of contravening a Family Violence Intervention Order, this offending is also the subject of a charge of committing an indictable offence while on bail (summary charge 6).
9 Mr Harris made his own way home and reported the crimes to police. He was taken first to the La Trobe Regional Hospital and ultimately to the Monash Medical Centre, and received treatment for a substantial laceration, which had exposed the cartilage of his left ear[3].
[3] Exhibit B
10 Just over two hours later, at about 4am, you approached a man and a woman in a park in Traralgon, and, threatening them while holding the tomahawk, you demanded their phones and money. You stole the man’s phone and wallet containing bank cards, and ran back to the car. That is the subject of charge 3 of armed robbery of the man, and of summary charge 17 of unlawful assault of the woman, by putting her in fear. This offending is also the subject of a charge of committing an indictable offence while on bail (summary charge 7).
11 At 4.20am, you and your co-accused drove to a service station, where you put fuel in the car. You paid for the fuel and a Bic lighter, a total of $23.21, using the debit card you had just obtained in the second armed robbery. That is the subject of charge 4 of obtaining property by deception, by you falsely representing that you were the authorised user of the card. This offending is also the subject of a charge of committing an indictable offence while on bail (summary charge 8).
12 Two days later, on 26 February 2018, you were arrested in Churchill. As the interim FVIO prohibited you from being at or near that address where your co-accused was living, that is the subject of summary charge 19 (contravene FVIO).
13 Although the offending other than that last charge, charge 19, occurred over less than three hours, it is serious offending. There was an element of pre-planning as you had the tomahawk with you. The choice of victims appears to be opportunistic but it is open to conclude that you and your co-accused were driving around looking for potential victims. The fact that you committed offences of armed robbery and causing injury while on bail makes your offending even more serious. This level of seriousness is reflected in the law that says that every term of imprisonment imposed for an offence committed while on bail must be served cumulatively on any other sentence, unless the court orders otherwise[4].
[4] Section 16(3C) Sentencing Act
14 I do not have any Victim Impact Statements before me, but I do not need them to take into account the considerable suffering of Mr Harris as a result of your cowardly attack on him with the tomahawk, resulting in the substantial injury to his ear. Nor do I need a Victim Impact Statement to take into account the impact that your crimes must have had on the other two victims, putting them in fear as you threatened them while holding the tomahawk. I take the impact on all three victims very much into account in deciding the appropriate sentence.
15 In the circumstances of your former partner being your alleged co-accused, I am unable to have regard to the impact on her of you contravening the FVIO by being with her to commit the crimes, because she does not admit that she committed the crimes, and of course I have no other information about any potential impact on her of you contravening the FVIO.
16 Next, I take into account your criminal history, which is all from Tasmania. Apart from driving and ‘street’ offences which I do not consider relevant, there are a number of offences which are highly relevant to my sentencing of you today. From eight court appearances between 2005 and 2014, you have been convicted of wounding, robbery, 6 charges of assault, dishonestly acquiring a financial advantage, 4 charges of breaching bail, 5 charges of breaching a Police family violence order, and breaching a restraint order. The wounding seems to be a particularly serious prior conviction as I am told it involved a stabbing and a bashing. This was apparently committed on a friend, perhaps a former friend, who had apparently been intimate with your first partner. You received your first sentence of imprisonment for this, 9 months in August 2005, but I do note that it was wholly suspended for two years. You do not appear to have breached the suspended sentence, but I do note you were gaoled in November 2006 for 21 months with a non-parole period of 14 months for one charge of robbery, which is another highly relevant prior conviction.
17 As has been pointed out by your counsel there are some factors that I must take into account in your favour. First, as I have already mentioned, I take into account your early plea of guilty. I also take into account that on your arrest, you made full admissions and co-operated with the police, including by identifying yourself on the CCTV footage, and providing police with the location of the tomahawk, the stolen goods, and the clothing you were wearing on the night. In your recorded interview, you showed insight and recognition of the serious nature of your offending, especially the head injury, and indicated a wish to apologise to your victims. I note you also agree to the proposed orders for monetary compensation to the victims, as well as an order for disposal of the tomahawk. In the circumstances, I treat all these factors as demonstrating your full remorse for the offending as well as your willingness to facilitate the course of justice.
18 I have been told something of your personal history and your circumstances[5]. You are now aged 39 years and were aged 38 at the time of the offending. You were born and brought up in Tasmania, the youngest of three children. Your life took an unfortunate turn when your brother seriously assaulted your father when you were aged 5 or 6, causing your father a serious brain injury that left him in need of residential care for the rest of his life. You were told that your father had died, and did not learn until you were in your teens that your father was alive, with an acquired brain injury, living in care in Melbourne. As I mentioned earlier, your move to Victoria was to be closer to him.
[5] Exhibit 1
19 Before that revelation, your young life had also been marred by the persistent physical and sexual abuse you suffered at the hands of your step-father, from the age of 6. When you finally had the courage to tell your mother of the sexual abuse at age 11, her response was to evict you from the only home you knew, with the resulting loss of contact with your siblings and half-siblings. From the ages of 11-15, you lived with your abuser’s parents, your step grandparents with whom you apparently had a surprisingly good relationship, but even so, it became strained because of their connection to the abuser and so you found yourself homeless again at 15. After a period presumably on the streets, you were able to live with a friend from the ages of 16-18.
20 Against this background, it is not much of a surprise to hear that you began using cannabis at the age of 11, and that you have continued to smoke cannabis daily in your adulthood. That is not to say that the court approves. You added ‘speed’ (methamphetamine) to that when aged 13, using it 1-2 times a week during your teens. You first used ‘ice’ (methylamphetamine) in your mid- 20’s, and it is to this drug you have turned during periods when you are out of work, or do not have sufficient work. On your behalf, your counsel conceded that it was this drug you were using at an increasing rate in the 6-8 weeks before the offending for which I am sentencing you. That increased use of what is known to be a dangerous drug for its impact on users, provides an explanation, but not an excuse, for you acting in such a violent and confrontational way with a weapon. I note however, that the second armed robbery did not involve actual use of the weapon other than as a threat, so there was a de-escalation in your level of violence.
21 Your traumatic childhood has no doubt impacted on your adult life. You have not sought counselling for the abuse you suffered, and it seems have, resorted to drugs in a disastrous attempt to manage low periods.
22 You have had a number of intimate relationships, but all have ended acrimoniously, probably due in part at least to you having no long term exposure to proper role models. You are estranged from the teenage daughters from your first two relationships, with no contact with one since 2005 and no contact with the other since 2015. The last relationship you were in was with the woman who is your alleged co-accused, and who is the subject of the interim FVIO. Apparently this relationship persisted for about seven months after your arrest, with her visiting you in custody, but ended in September 2018.
23 Despite your traumatic upbringing and homelessness and drug use, you completed Year 12 and qualified as a baker through completion of an apprenticeship. This is very much to your credit. Apart from a period of unemployment during your early 30’s, you have worked mainly in that field. However on your arrival in Victoria, you were unable to find work as a baker, and instead took work at a horse racing track, doing various tasks, but you worked only 2-7 days per week, depending on the racing season.
24 I referred earlier to your criminal history. Against the background that I have just outlined, it is noteworthy that after continuous court appearances at least yearly between 2003 and 2007, and 2009 and 2014 you have had periods of time with no offending, in 2008 and between 2014 and October 2017. This is relevant to my consideration of your prospects for rehabilitation.
25 Before I turn to that consideration, I take account of your current circumstances. You have been in custody since your arrest in February 2018, and have undertaken a number of courses, and importantly, are on the waiting list for courses concerning abstaining from drug use. You report that you have stayed off drugs while in custody and I received a clear urine screen result from October 2018[6].
[6] Exhibit 2
26 Because you are not physically present in court but appearing via video link, due to the influenza quarantine in some Victorian prisons, you have not been able to supply your counsel with any certificates for your courses or urine testing. However, I accept that you have done the courses, and you have been abstinent, which is a conclusion supported by the information that you have been a prisoner entrusted with duties. You have worked as a baker for some of the time, but are currently a Head Billet in your unit.
27 Unfortunately, in April 2018, at Ravenhall, you witnessed a suicide by a prisoner housed near to you, and you wisely later took the opportunity to have the counselling that the authorities offered to inmates as a result. Unfortunately, also, that counselling and medication, was not available to you until you were moved to Margnoneet in August 2018 which was a move due to you being assaulted by another prisoner in the month before that.
28 This is the first time you have accessed any kind of mental health treatment. You are yet to access any counselling to deal with the abuse you suffered as a child. This is something that you should address as part of your drug rehabilitation, and while this may not be feasible in prison, I encourage you to take this step after your release, and if that is supervised release on parole, I strongly recommend to those supervising you that this step be incorporated into your rehabilitation.
29 I take into account that you have had some traumatic experiences while in custody, but have, despite this, made the most of your time in the most positive way possible in the circumstances. You served some short periods of imprisonment in Tasmania, but today’s sentence will be the longest you have served.
30 Sadly, your father passed away from cancer on Christmas Eve 2018, while you were in custody. In a further example of the trust you are held in by Corrections authorities, you were given day leave to see him when he received this diagnosis, and again to attend his funeral. There, you re-connected with your two sisters, and your oldest sister is now on your contact list for prison.
31 I have been informed of charges for which you have been sentenced since the offending for which I am sentencing you. In October 2017, you committed offences of unlawful assault, using threatening words, contravening an Family Violence Intervention Order and unlicensed driving. You were convicted in the Magistrates’ Court in November 2018 and were sentenced to 1 month’s imprisonment which was deducted from your time held in custody since February 2018. These are not convictions to be taken into account for today’s sentence, but are relevant to your prospects for rehabilitation. As they occurred at the beginning of this period of re-offending after a gap of more than 3 years with no offending, I treat them as part of the circumstances in which you increased your drug use after your move to Victoria. I have not been told of any other charges pending.
32 Your counsel submitted that your prospects of rehabilitation are reasonable, if you remain drug free. I agree with that submission, on the basis of your good work ethic and willingness to work in any field, as well as your qualification as a baker; also the insight you have already demonstrated into the seriousness of your offending and the resulting impact on your victims, and that the offending was driven by your drug use; and the support from a close family member which you now enjoy for probably for the first time in your life. I also take into account that you have shown the ability to be a law-abiding citizen for periods of time, but clearly this ability is linked to your ability to remain drug free, and I also consider it vital that you address your own abuse and the likely anger that has led you to now commit two violent acts of injuring a person, admittedly 13 years apart.
33 In deciding the appropriate sentence, apart from the matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account that my sentence of you must seek to deter others from committing such serious offences, and because of your criminal record, also seek to deter you from re-offending.
34 I must also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your re-offending. As I have said, you are likely to re-offend if you are still abusing drugs. You now have two convictions for injuring a person, one a stranger, and one a person known to you, as well as a number of assaults that I have no information about, and that aspect of violence is of concern to me as I consider the protection of the community from you. Further, you have now a number of convictions for contravening Family Violence Intervention Orders, and that is also of concern, because intimate partners and family members must be treated with respect and not subject to any form of abuse.
35 All the things in your favour that I mentioned earlier will count for nothing if you do not stay off the drugs and, in my view, do not seek other assistance for the issues that arise out of your traumatic childhood. You are an intelligent man and you must realise that you face spending more, and longer, periods of time in gaol if you go back on the drugs, especially ice, with the inevitable outcome that you will commit offences. That will result in gaol time in your 40’s and possibly beyond. So it is up to you.
36 Your counsel properly conceded that the armed robberies and the injury offence are serious offences, and that a term of imprisonment with a non-parole period is the only sentence available to me in accordance with the law. In deciding the appropriate sentence, he submitted that I should have regard to your disadvantaged background, and that in considering a sentence proportionate to the whole of your offending, I must take into account the fact that all offences, except summary charge 19, occurred over the space of three hours.
37 The prosecutor submitted that the gravity of your offending is to be found in the facts that your attacks were perpetrated on random strangers late at night and that the offending involved use of a weapon: for charge 1 as part of the force in the armed robbery, hitting Mr Harris with the handle of the tomahawk; for charge 2, using the blade to cause significant injury to Mr Harris; and for charge 3, and I add, summary charge 17, having the weapon to hand in a display of potential force to the other victims. The prosecutor conceded that the armed robbery in charge 3 is less serious than that committed in charge 1.
38 I agree with all the submissions, and note that the principle of totality is important in this case, as is the avoidance of double punishment where there is overlap in the offending. However, my sentence must also reflect the fact that there are three victims who are entitled to be separately recognised, while acknowledging that there are two confrontations of differing levels of violence; and as I mentioned earlier, also taking into account that the sentences for committing an offence while on bail must be served cumulatively unless I order otherwise. However, that offence has a maximum sentence of 3 months’ imprisonment and one of the factors I must have regard to for all offences is the maximum sentence for each offence and here that varies greatly, between 3 months and 25 years’ imprisonment.
39 Having considered all relevant matters including the need for denunciation of your crimes, I have decided that I will order that the sentences for summary charges 6, 7 and 8 be served other than wholly cumulatively; put another way, there will be some concurrency between those and all other charges. I have decided on a minimum term that reflects your prospects of rehabilitation, if you remain drug free.
40 Before I turn finally to the sentence, there is one further matter I must deal with. Application has been made for an intimate forensic sample to be taken from you and through your counsel, you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the sample that is then to be taken is a blood sample, and police may use reasonable force to enable such a procedure to take place.
41 I will now announce my sentence. I do not require you to stand, Mr Astell, as we will not be able to see you on screen properly. You are convicted and sentenced as follows:
42 On charge 1 – armed robbery – 4 years 6 months’ imprisonment;
43 On charge 2 – intentionally causing injury – 3 years’ imprisonment;
44 On charge 3 – armed robbery – 2 years 3 months’ imprisonment;
45 On charge 4 – obtaining property by deception – 10 months’ imprisonment;
46 On summary charge 6 – commit offence while on bail – 3 weeks’ imprisonment;
47 On summary charge 7 – commit offence while on bail – 3 weeks’ imprisonment;
48 On summary charge 8 – commit offence while on bail – 3 weeks’ imprisonment;
49 On summary charge 17 – unlawful assault – 1 month’s imprisonment;
50 On summary charge 18 – contravene Family Violence Intervention Order – 2 weeks’ imprisonment;
51 On summary charge 19 – contravene Family Violence Intervention Order – 2 weeks’ imprisonment.
52 The sentence imposed on charge 1 of 4 years 6 months’ imprisonment is the base sentence. I direct that six months of the sentence imposed on charge 2, three months of the sentence imposed on charge 3, one month of the sentence imposed on charge 4, and two weeks of the sentence imposed on summary charge 17 and one week of the sentences imposed on summary charges 6, 7 and 8 be served cumulatively on the sentence imposed on charge 1 and on each other. All other sentences are concurrent.
53 That makes a total effective sentence of 5 years 4 months and 35 days’ imprisonment. I direct that you serve a minimum of 3 years 6 months before becoming eligible for parole.
54 I declare that you have served 365 days in pre-sentence detention including today. These will be deducted administratively from your sentence.
55 I have signed the disposal order and the compensation orders for $140 to Christopher Harris and $23 to Blake Mills[7].
[7] Victim of charge 3
56 Lastly, if you had not pleaded guilty, but had been found guilty after a trial on all your charges, the sentence I would have imposed is a total of 8 years 6 months’ imprisonment with a non-parole period of 6 years.
57 So, I know it's a little hard to balance all of those with the weeks, and days, but I can assure you that the computer has worked it out to be as I have announced.
58 MR GRAY: Yes, Your Honour.
59 HER HONOUR: If counsel has an issue after they've had a further look at it, please let me know and I will make any adjustments I need to in the arithmetic.
60 MR GRAY: Yes, Your Honour.
61 HER HONOUR: Ms Healy, will you be having a conference with Mr Astell at some stage?
62 MS HEALY: I will, Your Honour, yes.
63 HER HONOUR: All right, thank you. So, Mr Astell, Ms Healy will be speaking to you via the video link or seeing you, I'm not sure what the situation is, still under quarantine, and answer any questions you may have.
64 OFFENDER: All right, thank you, Your Honour.
65 HER HONOUR: Well, I thank everyone for their assistance and I think I thanked Mr Reardon last week. I forgot to thank him this morning. And I will - pardon me a moment. I see. Apparently there's another matter that's just come in, so I'll excuse you, Ms Healy, and Mr Astell, I will now disconnect the video link.
66 MS HEALY: Thank you, Your Honour.
- - -
0
0
0