Director of Public Prosecutions v Austin

[2019] VCC 637

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 18-02460

DIRECTOR OF PUBLIC PROSECUTIONS

v

KANE AUSTIN

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	9 May 2019
CASE MAY BE CITED AS:	DPP v Austin
MEDIUM NEUTRAL CITATION:	[2019] VCC 637

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr N. Goodfellow	Victoria Legal Aid

HIS HONOUR:

1Kane Austin, you have pleaded guilty to one charge of theft and one charge of armed robbery.  You have also pleaded guilty to two uplifted summary matters, one of failing to stop and one of unlicensed driving.  Theft carries ten years, armed robbery 25 years.  The summary matters carry gaol as well as, obviously, a fine.

2You are now 21 years of age.  You were 20 years of age at the time of the offending, and you have now been for some 65 days in adult custody.  I would have preferred this to be a Youth Justice situation, but unfortunately, because of your age, it cannot be achieved.

3You pleaded guilty at the earliest reasonable opportunity.  I accept that you have shown remorse in regard to the matter, and having sat and listened to you talking to the elders in Koori Court, I am satisfied that it is indeed genuine remorse.  You must also, of course, get the utilitarian benefit of that plea of guilty.

4You participated in Koori Court.  I thought you conducted yourself very well and showed a great deal of respect.  It is not an easy thing for a young man to sit there and have to deal with his elders in terms of the public shaming, if you like.  And the benefit of it for you is that it persuaded me, at least, that you are genuine in your remorse and your determination to try and turn your life around.

5Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.  And that order is made and handed down.

6You do have a number of prior findings of guilt.  Indeed, it is an odd situation to find, where your criminal history is before me, where all the matters are in the Children's Court and not one of them carried a conviction.

7A summary of the offending can be done in fairly short compass.  And I point out at the outset that there is a co-accused, Mr Young, who has an intellectual disability and is yet to be sentenced by me because I am receiving reports on him.  Parity is not really an issue in this particular situation.

8At approximately 2.30 am on 23 April, your co-accused stole a motor vehicle.  On 25 April, you and he were in that vehicle, which gives rise to theft on your part.  Two of your sisters were sitting in the back seat of the car at the time.  The two of you observed a Jesse Kleehammer and Dylan Patrick-Huggins walking along the street.  Mr Young did a U-turn into a driveway just behind them, and pointed at them and laughed. 

9The vehicle was driven behind the boys and stopped.  Mr Young said to Kleehammer - I may have got that wrong, that you were driving - Mr Young said to Kleehammer, "Do you want to punch on?"  Which he said, "No, I don't know you."  One of the defendants, either you or Mr Young said, "Don't even fuckin' run." 

10The two of you got out of the car.  Mr Young was wearing knuckle dusters on his fist, and held that a few centimetres away from the right side of Mr Kleehammer and said, "Empty your pockets.  Give me your shit."  Mr Kleehammer took a nearly empty packet of cigarettes, a Samsung Galaxy phone, and a pair of earphones out of his pocket.  You snatched them from him.

11You walked towards Mr Patrick-Huggins and said, "Give me that fucking gold chain."  He said, "It's fake.  Why do you want it?"  He took it off, in any event, and gave it to you, and you put that chain in your pocket.  My recollection is that that chain was later found in the possession of Mr Young.

12On 1 May 2018, in the afternoon, you were driving a vehicle in McKean Street in Bairnsdale and police were following you.  The situation was that they tried to intercept you.  Eventually, they were able to, though you failed to stop.  When they told you to surrender yourself, you replied, "Not today", and reversed to the nearest intersection and drove away.  You gave yourself up later, so that gives rise to the unlicensed driving, and as I have indicated, the fail to stop.

13Armed robbery is obviously a serious offence.  I have read the victim impact statements involved in this that shows the fear and humiliation, I suppose is the correct word, that young people in such a situation can feel.  The psychological effects on them have been long-lasting, and it is clear to me because of the conversations during Koori Court, that you do understand the significance of this sort of behaviour and how it affects other people.

14Of course, the application of general and specific deterrence, as well as denunciation and appropriate punishment.  Importantly, you were 20 years of age at the time.  As I said, I would have given Youth Justice, but that is no longer an option available to me.  Submissions were put on your behalf, and yours is a common and sad set of circumstances.

15You, as I understand it, were brought up in circumstances of violence and alcoholism.  You were born in Warragul.  You lived in Drouin.  You lived on the mission for a period of time, and at around about 13 years of age, you moved to Bairnsdale.  You went to a number of different primary schools, which is never a good start, and you did eventually attend at Bairnsdale Secondary School until Year 9.

16In 2014, you met Kira.  You had a child together as well.  You lived together for a period of time.  You, having left school at an early age, had worked with the Bunurong Land Council as a Cultural Heritage Officer, and you were doing that until you were remanded for this new offending.

17There is a psychological report that has been tendered on your behalf from Ms Lechner, and she described you as having been subjected to complex developmental trauma as a child and as an adolescent, resulting in poor emotional regulation and low self-esteem.  She says you have a depressive disorder, and as I said, a complex development trauma.  Rehabilitation is important in your situation.

18In January 2019, you presented to the Bairnsdale regional health service following a suicide attempt.  And it is clear that you have had a lot of difficulties in your life.  I am well aware of the principles in cases such as Bugmy, and it is a difficult thing for someone in your situation to turn your life around.

19It is a situation where you have been using drugs since a very early age.  As you indicated to Ms Lechner, you were simply brought up in circumstances where you were surrounded by alcoholics and drug users, and it is a matter for you as to whether you can get yourself out of that.  You had cannabis from the ages of around about ten or 11, and ice from around 13 or 14.  And you have used every other drug known to the human race, by the look of this.

20In any event, taking all those matters into account, I feel that your prospects of rehabilitation are probably as good as they are going to be.  The risk of you reoffending is dependent upon that rehabilitation.  You are now in a situation where you are in gaol, you understand you will have to do more gaol, and I have had you assessed for a community corrections order.  And upon your release, you will go on to that order. 

21At the age of 21, this is your chance to turn your life around and endeavour to cope.  Your nan was with you in the Koori Court the other day, and you have a situation where you do have, despite the past, family support.  The elders also will support you upon your release, if you decide to make that contact with them.

22In all those circumstances, I am left with no alternative but to give you a gaol sentence with more gaol to serve.  It is an unfortunate situation, but it is a serious offence.  It is armed robbery.

23If you agree, upon the completion of that gaol sentence, you will be placed on a community corrections order which will be for two years with conviction.  You have been assessed as acceptable for that order, and the conditions will be what is described in that, being drug, alcohol and mental health treatment rehabilitation, programs to reduce reoffending through supervision.

24I simply point out that what I am really hoping is that once you are released from custody and you go onto that community corrections order, that the possibility of you going to the Wulgunggo Ngalu Learning Place is a very important one.  I think that at your stage of life, and in the circumstances that you are in, that a few months up there with the men, the Aboriginal men who run that program, would be of real benefit to you.  I cannot order that, but I know that Corrections are well aware of it and that would be a very important part of your ultimate rehabilitation.

25However, in all the circumstances, I really have got no choice here but to give a custodial sentence with a CCO.

26Accordingly, on the charges on the indictment, you are sentenced to be imprisoned for a period of six months.  That is an aggregate. 

27I direct that 65 days are reckoned as having been served under that sentence. 

28Your community corrections order, if you agree, will be, as I have indicated, for two years with conviction and with the conditions that I have outlined.

29Pursuant to s.6AAA, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of 18 months with a minimum term of 12.

30Would you mind accompanying her while he signs that?  Just go with my associate.  Thank you.  Were there any others I have got to make?  Is that all?

31HIS HONOUR:  All right.  Sorry, yes, right.  Yes, all right.  What I have done is, you have got to do gaol.  You cannot do stick-ups, and you know that.  The CCO is a chance for you to turn it all around.  You have got the support of people.  Disaster in the background, I know that, but if you want to, the elders will talk to you as well.  All right?  So when you get out, let us just not have to ever go through this again.  You follow that?  All right. 

32Yes, you can take him now, thank you. 

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