Director of Public Prosecutions v Austin & Clegg
[2023] VCC 953
•7 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-02297
CR-22-02299
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL AUSTIN |
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JUDGE: | JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2023 | |
DATE OF SENTENCE: | 7 June 2023 | |
CASE MAY BE CITED AS: | DPP v AUSTIN & CLEGG | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 953 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Catchwords: Armed robbery – Possession of a drug of dependence – Plea of guilty – Worboyes – Parity – Totality – Verdins – Covid-19 pandemic.
Legislation Cited: ss 5, 5(2H), 6AAA, 18 Sentencing Act 1991 (Vic).
Cases Cited:Newton (a pseudonym) v The King [2023] VSCA 22; R v Verdins [2007] VSCA 62; Shbaro v The Queen [2022] VSCA 190; Taleb v The Queen [2020] VSCA 329; Topal v The Queen [2019] VSCA 289; Worboyes v The Queen [2021] VSCA 169.
Sentence: Daniel Austin: 2 years and 8 months’ imprisonment with a non-parole period of 1 year and 8 months’ imprisonment.
Ricky Clegg: 1 year and 11 months’ imprisonment with a non-parole period of 1 year and 1 month imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | E. Fargher | The Office of Public Prosecutions |
| For Daniel Austin | A. Patterson | Bowler & Co |
| For Ricky Clegg | L. Hocking | Slades & Parsons Criminal Lawyers |
HER HONOUR:
1Daniel Austin, you have pleaded guilty to one charge of armed robbery and have agreed to this court hearing, and have pleaded guilty, to one summary charge of committing an indictable offence whilst on bail.
2Ricky Clegg, you have pleaded guilty to one charge of armed robbery and one charge of possession of a drug of dependence, and have agreed to this court hearing, and have pleaded guilty, to one summary charge of driving whilst disqualified.
3The full circumstances of your offending were outlined in the summary of prosecution opening dated 26 May 2023 and marked as Exhibit A on the plea.
Circumstances of the offending
4
On Wednesday 28 July 2021 at approximately 12.00 pm, the victims
Mr Andree-Jansz and Mr James were travelling to Melbourne from Albury to meet Mr Makrogiannis to discuss a debt of $34,000 owed by Mr Makrogiannis to
Mr Andree-Jansz. The prosecution opening outlines in some detail, contact and attempted contact between Mr Andree-Jansz, Mr James and Mr Makrogiannis. The opening also details the movements of both of you from around 11.00 pm, along with Mr Makrogiannis, Mr McDonald, Mr Grossman and Mr Biddlestone. You both, along with others, ended up at Mr Makrogiannis’ apartment on Rakaia Way, Docklands. Mr McDonald carried with him to the address a large black sports bag containing a firearm.
5A few hours later, that is, in the early hours of 29 July 2021, Mr Andree-Jansz and Mr James went to Caravel Lane, Docklands. Mr Andree-Jansz parked his car and called Mr Makrogiannis, advising him he was waiting outside. Both of you, along with others, including Mr Makrogiannis, left the apartment and Mr Makrogiannis met up with Mr Andree-Jansz. They sat on a bench outside the Rakaia Way, Docklands address to discuss the debt. They were approximately 50 metres away from where Mr Andree-Jansz’s car was parked. Mr James remained seated in the passenger seat of Mr Andree-Jansz’s car.
6Some 15 minutes later, the car you were driving, Mr Clegg, exited the secure carpark of the Docklands residence. In the front passenger seat of the car, was Mr McDonald, in possession of the black sports bag and in the backseat, were you Mr Austin, along with Mr Grossman and Mr Biddlestone. You, Mr Clegg, stopped the car alongside Mr Andre-Jansz’s car in Caravel Lane. You yelled out to him 'Are you Shane?’ He said no and you performed a U-turn and returned again to Mr Andree-Jansz’s vehicle.
7You, Mr Austin, along with Mr McDonald and Mr Grossman, exited the vehicle and yelled at Mr James, ‘Get the fuck out of the car’. Mr James exited the passenger seat of Mr Andree-Jansz’s car. Two of the men ran towards Mr James.
8
Mr McDonald, who was holding the sports bag, removed a firearm from the bag. The firearm was described by Mr James as a ‘Winchester 30/30 lever action’.
Mr McDonald pointed the firearm at Mr James, whilst you, Mr Austin, along with Mr Grossman yelled ‘Shoot him, shoot him’.
9
Mr Andree-Jansz heard the males yelling and returned to Caravel Lane where his car was parked. He chased Mr Biddlestone away before returning to help
Mr James. Mr James yelled out to him 'Watch it he’s got a gun’. Mr Andree-Jansz noticed that you were brandishing weapons.
10
While being chased, Mr Andree-Jansz tripped and fell to the ground and attempted to cover his face with his hands. You, Mr Austin, held Mr Andree-Jansz on the ground with a knife to his throat. You stated, ‘I’m going to fucking stab ya, gimme all your fuckin gold’. Mr McDonald pointed the firearm directly towards
Mr Andree-Jansz’s face. Mr Grossman struck Mr Andree-Jansz legs with a baseball bat and yelled, ‘Get his gold, get his gold’.
11
You, Mr Austin, along with Mr McDonald and Mr Grossman, took a gold Tommy Hilfiger brand watch, a gold linked chain and three gold diamond rings from
Mr Andree-Jansz.
12You, Mr Austin ran back to Mr Andree-Jansz vehicle and entered the driver’s seat and stole the car, with a number of items in it, as outlined in the prosecution opening.
13Mr McDonald left the scene in the car driven by you Mr Clegg, with Mr Grossman also on board.
14Subsequently, Mr Andree-Jansz and Mr James called Triple 0 for help.
15
At approximately 3.00 am, you, Mr Austin, along with Mr Grossman and
Mr Biddlestone, dumped Mr Andree-Jansz’s car in Craigieburn, not long after the vehicle was recovered by police. The vehicle had been rummaged through and internal compartments removed.
16The opening details investigative inquiries made by police, which ultimately led to the police executing a warrant at your home, Mr Clegg, on 24 August 2021. During that search, they also located a small quantity of methylamphetamine. You were arrested and participated in a record of interview which is referred to in the opening. Subsequently, you were remanded in custody where you have remained since this date. In respect of your summary charge, Mr Clegg, at the time of the offending, you were disqualified from driving.
17On 26 October 2021, police located you, Mr Austin, in Seymour. You were arrested and participated in a no comment record of interview. You were subsequently charged and remanded. At the time of the offending, you were on bail.
Victim Impact
18In his victim impact statement, Mr Andree-Jansz speaks of the serious impact of your offending. Since the incident, he has suffered from heightened emotions and irritability. It has placed pressure on his family and relationships, and he feels like he is ‘no longer the same person’. He also suffers a range of ongoing issues, including headaches, difficulty sleeping and increased anxiety. I have taken into account the impact of your offending on Mr Andree-Jansz and, as discussed at the plea hearing, the relevant parts of his victim impact statement.
Gravity of the offending
19Armed robbery is a serious offence as reflected by the prescribed maximum penalty. Deterrence, denunciation and community protection are paramount sentencing purposes.
20Armed robbery with a firearm is also a Category 2 offence per s5(2H) of the Sentencing Act 1991 (Vic), mandating a term of imprisonment. Neither counsel raised any statutory exceptions.
21It was accepted by all parties that the offending here was serious. The prosecution submit this is a serious example of an inherently serious offence. The offending was aggravated by the type and number of weapons used, namely a firearm, a baseball bat and a knife; the number of co-offenders who together committed the offending; the degree of planning and preparation involved in committing the offending in concert; the value of the property stolen; the degree of force used on the victim and the severity of his injuries.
22Between the two of you, Mr Austin, you played a greater role in the offending. You were in possession of a knife and used it in the manner described in the opening, while Mr McDonald held the firearm pointed at the victim. You threatened to stab him and demanded property. You, along with your co-accused, also took the victims property from him and in addition, you entered his vehicle and drove it away.
23The prosecution accept that you, Mr Clegg, played a lesser role in the offending, noting that you did not personally possess a weapon and remained seated in the vehicle used to transport yourself and your co-accused during the offending. After the offending, you drove Mr McDonald and Grossman, who were armed with the firearm and the baseball bat, away from the scene.
24Importantly, the agreed position of the parties is that you are to both be sentenced on the following basis:
(a) You did not have knowledge of the firearm prior to the offending and were not involved in the planning to obtain the firearm.
(b)
Each of you first became aware of the firearm once it was produced by
Mr McDonald. You were aware that Mr Grossman was in possession of a baseball bat; and
(c) Once the firearm was produced and you became aware of the firearm and the baseball bat, you did not desist from your role in committing the armed robbery, in which the firearm, bat, and a knife produced by you Mr Austin, were used to commit the offending.
25On your behalf Mr Austin, it was accepted by Ms Patterson quite properly, that the offending and your involvement was serious. You were heavily drug affected at the time and the events rapidly unfolded and quickly escalated in seriousness. While some co-offenders were engaged in text message exchanges, that may suggest a level of planning on their behalf, there is limited evidence of pre-meditation or pre-planning insofar as you are concerned. At the indication hearing, the prosecution accepted that your involvement in the armed robbery effectively started when the incident took place.[1]
[1] Transcript of Sentence Indication Hearing of 27 April 2023, page 6.
26On your behalf Mr Clegg, a lack of pre-planning and pre-meditation was also relied upon by Mr Hocking, along with your limited role. You told neuropsychologist Bronwyn Hall, that at around the time of the offending, you were under the belief that the purpose of travelling to Melbourne from Seymour with your associates was to use substances.
27In addition, it was submitted that your moral culpability is reduced due to your significant cognitive impairment and the nature of this offence. Given how the events unfolded, you lacked the ability to assess the situation and make a rational decision not to assist in the offending. I will return to these issues shortly, but I indicate here, that I do accept that your cognitive impairment does cause a reduction in your moral culpability.
Procedural history
28
A chronology of relevant dates is outlined in the prosecution opening. Your cases proceeded to a committal hearing on 19 October 2022 and there were subsequent ongoing negotiations. Your case, Mr Clegg, resolved as a plea of guilty on
24 February 2023. Your case Mr Austin was before me for a sentence indication hearing on 27 April 2023, which was subsequently accepted and soon after you entered pleas of guilty.
Plea of guilty
29While not a plea entered at the earliest opportunity, your pleas of guilty are still early and entitle both of you to a substantial discount. Your pleas of guilty indicate your willingness to facilitate the course of justice and your acceptance of responsibility. They are of important utilitarian value and in accordance with the Worboyes[2] principles they will attract a greater amelioration or reduction of sentence. I have also taken into account your expressions of remorse. Mr Austin, you provided a letter to the court in which you accept full responsibility for your offending, apologise for your actions and commit yourself to change. In your case Mr Clegg, during her assessment of you, neuropsychologist, Ms Bronwyn Hall, considered that there was some indication that you accepted responsibility for your role in the offending and it appeared that you harboured regret for your actions.
Personal circumstances
[2] Worboyes v The Queen [2021] VSCA 169.
Austin
30As for your personal circumstances, in brief, Mr Austin, you are presently 34 years of age. Your mother and father separated when you were young and they never had a positive relationship. You remained with your mother, lived in relative poverty and were exposed to her alcoholism and neglect. Your mother is now in recovery, but when you were young, she would often spend days bedridden. With little parental support, guidance or boundaries, you started getting into trouble. While you had some contact with your father growing up, and this was generally reported to be positive by you, it was infrequent and often problematic because of the poor relationship between your parents.
31You experienced difficulties in school, largely as a result of your dysfunctional circumstances at home. You were frequently teased by other children because of your mother and her drinking, as well as the impoverished state of your clothes. You left school at the beginning of Year 10, in the context of frequently being absent and increasingly using cannabis. Subsequently, you attempted to complete a hospitality certificate, but were unsuccessful. You have held jobs from time to time, but you have no extensive employment history, largely because of the impact of your drug use. You last worked approximately five or six years ago.
32From a young age, you were exposed to alcohol abuse and your mother also encouraged you to drink, and soon after, you developed your own problems with alcohol. When you were 17, you overdosed on alcohol and needed your stomach pumped.
33Sometime in Year 10, you were introduced to cannabis and your use soon became a daily habit. Your cannabis use was normalised by the fact that those close to you, including your mother, were also cannabis users.
34At the age of 15, your brother introduced you to amphetamines. You considered your brother to be the ‘coolest person in the world’ and he would give you the drug when he collected you from school. This was a way to bond with him and cope with the problems you were experiencing due to the family dynamic at home. Your drug use increased just before you turned 17. You report both smoking and snorting the drug and it later changed to methamphetamines, when it became available. Your use continued up until your remand.
35When you were approximately 20 years of age, you attended the Bridge Program in Bendigo and you reflect positively on this experience, as representing the first time you felt in control and good about yourself. Unfortunately, you soon relapsed into a pattern of drug use and offending.
36While you have not had a history of positive or steady relationships, you are currently in a stable and supportive relationship with your partner, Ashlee Plieger, who I note has been in attendance at court. Ms Plieger does not condone drug use. She is a mother herself to two young children and resides in Nagambie and is supportive of your rehabilitation.
37You have a three-year-old daughter named Eden, from a previous relationship. She was only one at the time of your remand. Through arrangements with the Department of Families Fairness and Housing, she is currently in the care of your father, who lives in Wallan. Eden does not have contact with her biological mother due to her mother’s substance abuse issues. You have regular contact with her, and she is a significant motivating factor for you. Ms Plieger also has regular contact with her, making the considerable effort of regularly travelling from Nagambie, where she lives, to Wallan.
38I take into account your background and your upbringing, which was marked by neglect, inadequate parental supervision and early exposure, in a family context, to alcohol and other drug use.
39Mr Simmons opines that your childhood experience may have left you vulnerable to substance use. Your criminal history shows a pattern of offending causally linked to your substance abuse. While I do not consider that there is a basis to find a causal link between your offending and your childhood deprivation, I am prepared to accept that it is relevant in a general sense and that it entitles you to some modest reduction in moral culpability.[3]
[3] Newton (a pseudonym) v The King [2023] VSCA 22.
Clegg
40Mr Clegg, you are 33 years of age. It has been noted that because of your challenges, you are not the most reliable historian. It appears that you were raised by your parents who subsequently separated. You have a number of siblings and half siblings. While residing with your mother, you were exposed to family violence and witnessed her using illicit substances. Your father worked as an interstate truck driver and was often away. You and your twin brother resided with your father for a period. You have described your stepmother, who often had responsibility for your care, as ‘mean’. You have little ongoing contact with your mother and most of your siblings, but remain close with your twin brother, who is currently in custody.
41School records indicate that you experienced significant learning difficulties and behavioural issues throughout the whole of your primary school education. You were apparently held back in Grades 1 and 4 and you left school part way through Year 7, at the young age of 13.
42You have never held gainful employment and you have been in receipt of the Disability Support Pension for years.
43Prior to the age of 18, you had tried methylamphetamine and alcohol, but you were not, at that stage, a significant user of either substance. At the age of 18, your father passed away from cancer due to asbestos poisoning. Thereafter, your drug use escalated, and you were persistently using GHB and methylamphetamine until the time of your remand for these offences.
44You have had one long term relationship with a woman named Nicole Wilson, who I note has also attended at court in support of you. You have two children, a daughter aged eleven and a son aged around five from this relationship. In the community, you mostly live with your family, but this is conditional on you not using substances and so in the past, you have found yourself regularly ‘couch surfing’.
45
Both of you, Mr Austin and Mr Clegg, have substantial criminal histories.
Mr Austin, you have priors for dishonesty, violent and driving offences and you have been dealt with for contravening court orders in the past. I note that you have no priors for robberies or armed robberies and that your longest immediate prison sentence appears to have been the six months imposed in October of 2019. You were subsequently sentenced to a period of 270 days’ imprisonment on 4 October 2022 for mainly driving offending, that occurred on 6 November 2020. I will return to this shortly, as it is relevant to totality considerations in your case.
46Your priors, Mr Clegg, include dishonesty, violent and driving offences and you have also contravened several court orders. On 11 April 2019, you were dealt with for a contravention of an order and further offending of trafficking methylamphetamine and you were sentenced to a total effective period of 15 months’ imprisonment, with a non-parole period of nine months’ imprisonment. This is the longest prison sentence you have served to date. Your counsel indicated at your plea hearing that you did not get the full benefit of the parole period and ended up serving most of the sentence.
Mental health and disabilities
Austin
47You, Mr Austin, were assessed as I have already indicated by Warren Simmons in August of 2022. Mr Simmons' assessment indicated that you display symptoms of a personality disorder, with both borderline and antisocial personality traits, which he opines developed as a result of the dysfunctional childhood you experienced growing up. You also met the criteria for stimulant use disorder at the time of remand. You appear to experience some vulnerabilities and are currently prescribed medication in custody. It was not submitted on your behalf that Verdins[4] principles apply in your case. Your background and Mr Simmons' assessment are relevant to your overall circumstances, and I take these matters into account.
[4] R v Verdins [2007] VSCA 62.
Clegg
48
Mr Clegg, you were declared eligible for services under the Disability Act on
22 February 2006, after being diagnosed with a mild intellectual disability when you were 16 years of age.
49
Tendered on your behalf was a neuropsychological report of Ms Hall dated
28 March 2023. She comprehensively outlines your background and in particular, your history of head injuries and psychiatric history.
50Ms Hall performed a range of tests as outlined in paragraph 35 of her report. You were cooperative throughout the assessment and attempted all tasks. You performed in the extremely low range on an overall measure of your intellectual ability with a full-scale IQ of 60, or 0.5 percentile.
51She stated:
'To put the extent of Mr Clegg’s level of cognitive impairment in perspective, formal assessments indicate that his intellectual function is worse than 99.9% of other adults his age and in the wider community. His cognitive impairment is near global, longstanding (developmental in origin) and will be permanent'.
52Your general intellectual functioning, verbal comprehension skills, perceptual abstract reasoning ability, visual integration skills, information processing speed, word reading ability and executive functioning all fell in the extremely low range. You also endorsed extremely severe symptoms of stress and severe symptoms of anxiety. Her report confirms that you have long standing cognitive limitations and that your overall intellectual ability is consistent with a mild intellectual disability.[5] She considers that you will require permanent support with complex activities of daily living, as you progress through adulthood.[6]
[5] Ibid, paragraph 54.
[6] Ibid, paragraph 57.
53Ms Hall considers that your cognitive impairment cannot entirely account for your offending behaviour. She also offers the following opinion at paragraph 60 of her report:
‘Mr Clegg struggles with understanding abstract concepts, he has a limited capacity to engage in consequential thinking, and he has difficulties with reasoning through problems in a logical manner. He is slow to process complex information and he struggles to hold and manipulate information in mind to problem solve. It would also seem he has enduring impulsive behavioural tendencies and struggles to regulate his behaviour in an age and socially appropriate manner. These impairments would have been evident at the time of the offending and he will experience these going forward.’
54Further, she considers that you are likely to satisfy the criteria for a diagnosis of antisocial personality disorder and that you have impulsive tendencies, limited consequential thinking and are susceptible to negative peer influences, all of which are relevant in terms of explaining your history of offending.
55Ms Hall also considered that your intellectual disability renders you vulnerable within the custodial setting. At paragraph 70 she states:
'My impression is that Mr Clegg’s intellectual disability renders him vulnerable within the custodial setting. He would be easily misled by others, and it follows that he would benefit from close monitoring to ensure that he is not taken advantage of or further socialised towards criminality during his time incarcerated. He will also be at increased risk of institutionalisation due to his cognitive limitations, should he serve a lengthy custodial term. Mr Clegg’s time in custody to-date has provided him with the benefit of an extended period of abstinence from his clearly problematic methamphetamine and GHB use'.
56The prosecution accept that you, Mr Clegg, have been diagnosed with a significant cognitive impairment that enlivens the Verdins principles, in particular, limbs one, three, and five.
57On the evidence before me, I accept the application of the Verdins principles. I accept that your moral culpability is reduced; your impairment has a bearing on the sentence to be imposed; you are not an appropriate vehicle for the full weight of general deterrence; specific deterrence requires some moderation; and a term of imprisonment may weigh more heavily on you than on other persons.
Other factors
58You have both served substantial periods in custody, during the pandemic. I take into account the more restrictive and onerous conditions of custody that have applied during this time. In your case, Mr Austin, Ms Patterson submitted that the pandemic has had an adverse impact on conditions in custody throughout your period on remand. Mr Clegg, I was told by Mr Hocking that you are a protection prisoner and that you have been subject to approximately 106 days of lockdown.
59In your case, Mr Austin, I also take into account the principle of totality as it relates to the 270 days sentence you have already served during your period on remand. As I have already noted, you were dealt with on 4 October 2022 in relation to other matters and you received that sentence, declared as wholly served. This means that although you have been on remand since the 26 October 2021, your presentence detention as referable to this matter is 320 days.
60I have also considered the principle of parity in your cases, as between the two of you and relevant co-offenders. The sentencing principle of parity is an aspect of equal justice. It requires that like should be treated alike, but that due allowance must be made for relevant differences between co-offenders. The parity principle and its application in your case, is one that I have very carefully reflected on and raised and discussed in detail at the sentence indication hearing for you, Mr Austin.
61
Your co-offender, Mr McDonald, pleaded guilty to armed robbery, prohibited person possess firearm and commit an indictable offence whilst on bail. On
14 November 2022, he was sentenced in the Drug Court to a three year drug treatment order. The custodial part of the order imposed was a term of imprisonment of 36 months, not to be served unless further ordered. On the charge of armed robbery, he was sentenced to two years and six months’ imprisonment, as the base sentence. On the charge of prohibited person possess firearm, he was sentenced to 12 months’ imprisonment, with six months cumulation. On the charge of commit indictable offence on bail, he was sentenced to one month's imprisonment.
62The sentencing purposes articulated in s5 of the Sentencing Act 1991 (Vic) apply to persons sentenced in the Drug Court Division and in the general Criminal Division. However, rehabilitation of the offender and community protection (achieved through that rehabilitation) have greater importance when sentencing a person in Drug Court.
63In terms of any custodial penalty imposed on an offender, as part of a drug and alcohol treatment order in the Drug Court Division, the Sentencing Act 1991 (Vic) stipulates that any sentence of imprisonment imposed must be the same term of imprisonment that the court would have imposed if it had not made the order. Accordingly, and as accepted by the prosecution, the term of imprisonment imposed on Mr McDonald reflects the term that would have been imposed on him had the order not been made.
64While the principle of parity applies and it is a very important principle, the court must take care to differentiate the roles, moral culpability, charges, criminal histories, and personal circumstances of each offender, as well as all other relevant sentencing considerations, when performing the instinctive synthesis.
65As to role, Mr McDonald was in possession of the firearm. You, Mr Austin, were in possession of and used the knife. You, Mr Clegg, remained seated in the vehicle for the duration of the offending.
66Mr McDonald was serving a CCO at the time of the offending. You, Mr Austin, were on bail. As for prior criminal histories, Mr McDonald’s prior history is, as referred to by the prosecution, ‘slightly worse’ than yours, Mr Austin. Your criminal history Mr Clegg is relatively extensive.
67Your personal circumstances are different and in your case Mr Clegg, your moral culpability and in particular, the need for the sentence to reflect general deterrence are moderated by your cognitive impairment.
68The differences in roles and your individual circumstances do require a degree of disparity between the two of you and this will be reflected in the sentences that I am about to impose. As against Mr McDonald, he was in possession of the firearm and used it, as outlined. I take into account the term of imprisonment stipulated in his case. While I must avoid an unjustifiable disparity between sentences, I am still required, however, to reflect the nature and gravity of the offending and impose an appropriate sentence.[7]
Prospects of rehabilitation
[7] Topal v The Queen [2019] VSCA 289; Taleb v The Queen [2020] VSCA 329; Shbaro v The Queen [2022] VSCA 190.
Austin
69Mr Austin, your history of offending is intrinsically linked to drug use and therefore your prospects of rehabilitation are tied to your commitment and your capacity to address this. There is a need for caution given your prior criminal history and the long-standing nature of your addiction issues, but I accept that there are also some promising signs. Since entering custody, you have maintained abstinence, are on Buprenorphine and you have undertaken available drug courses. Your outlook on life has vastly improved. You see a positive future, free from the ill effects of drug use and are willing to undertake intensive drug treatment to this end. Mr Simmons considers that you would benefit from a referral for drug and alcohol counselling with a focus on increasing self-efficacy, harm minimisation and relapse prevention strategies.
70Your partner, Ms Plieger, is extremely supportive of you. She and your young daughter Eden, are significant motivators for positive change. On your return to the community, you will live with Ms Plieger, and you are motivated to achieve full custody of your daughter and to support your young family. In her letter to the court, Ms Plieger speaks of the positive changes she has witnessed. She states that since you have been clean on drugs you have:
'…really become the person we all know he was; he has a whole new perspective on life and wanting to become the best father for our children, his main goal is to come home and continue working on himself and our life as a family...'.
71While your counsel submitted that a term of imprisonment is warranted in your case, its structure should allow you an opportunity to optimise your rehabilitative prospects.
72Mr Clegg, in your case, there is a need to be guarded as to your rehabilitative prospects, given your prior criminal history, history of drug use and the challenges you present with.
73In her assessment of you, Ms Hall deemed you to be a high risk of reoffending in the longer term, because of your challenges, including your executive dysfunction and difficulties with impulsivity and emotional regulation. She considers that the risk will be reduced by addressing your issues and with appropriate NDIS or other community supports and services upon your release back into the community.
74You were recently approved for NDIS funding and a plan has been obtained during your current remand period. This is a positive development. NDIS support coordinator, Kristy Davis, provided a letter to the court explaining the plan and confirming that you have engaged well with practitioners, including an occupational therapist and a peer mentor/counsellor from Hard Cuddles. These sessions have been designed to assist you with your mental health, create positive connections and offer guidance and support. They have also encouraged you to participate in activities in custody to assist in improving your functional capacity. They will also assist in your transition into the community and ensure that you are supported.
75You too have the continuing support of your family, and you are able to reside with them on your release. Your partner, Ms Wilson, provided a letter in support of you, where she refers to you as a good father and that your children miss you. She notes that you have been through your ups and downs and that you can easily be misled when under the influence of drugs. I also note that in custody you have remained clean from substances, you are presently medicated and working as a billet, cleaning and handing out meals.
Sentencing principles
76The basic purpose for which a court may impose a sentence are punishment, general, specific deterrence, rehabilitation, denunciation and protection of the community. As already indicated, in your case Mr Clegg, these principles are moderated because of your intellectual disability. However, protection of the community in particular, remains an important sentencing consideration.
77I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic), where relevant to your case. I have had regard to the current sentencing practices also for armed robbery and those involving firearms.
78I have considered and synthesised all relevant matters. I have taken into account the relevant principles, including proportionality, parsimony, parity (as I have already canvassed in some detail) and totality.
79Weighing up all these considerations, I will impose the following sentences on each of you.
Sentence
80Now Mr Austin, if I can first turn to you. On the charge of armed robbery, you are convicted and sentenced to a period of two years and eight months imprisonment, with a non-parole period of one year and eight months imprisonment.
81On the bail offence, I am sentencing you to one month's imprisonment. That is to run concurrently. All right, do you understand?
82OFFENDER AUSTIN: I do, yes.
83HER HONOUR: My 6AAA declaration in your case, in other words, had you not pleaded guilty, I would have sentenced you to a term of around four years and one month's imprisonment, with a non-parole period of three years and one month's imprisonment.
84OFFENDER AUSTIN: Yeah.
85HER HONOUR: I declare pursuant to s18 that you have served 320 days, that will come off your sentence.
86HER HONOUR: All right, thank you very much. Mr Clegg, coming to you, I have reflected on your sentence and unfortunately in some respects, it is perhaps an academic one because you have served such a substantial period on remand.
87Taking into account and synthesising all matters in your case, on the charge of armed robbery, you are convicted and sentenced to one year and 11 months imprisonment. In other words, that is a period of 23 months. As I’ve stated this is largely academic given that you have now served potentially all or a good portion of the term I have just imposed, but I set a non-parole period of one year and one month. So 13 months in your case, all right? Do you understand?
88OFFENDER CLEGG: Yes, Your Honour.
89HER HONOUR: Very well, and the non-parole period, as I stipulated is a 13 month non-parole period, one year and one month. We are in a position where I have set a non-parole period, but you are not going to get the benefit of that parole period given you have substantially served your term. I note Mr Clegg that you have NDIS set up for you, that you have got a supportive family, that you have been clean from drugs for a long period of time, and I would encourage you to make the most of those opportunities that you have. Do you understand?
90OFFENDER CLEGG: Yes, Your Honour.
91HER HONOUR: All right. In your case, 6AAA declaration is I would have sentenced you, had you not pleaded guilty, to a period of some three years and three months imprisonment, with a non-parole period of two years and one month's imprisonment. On the possess drug of dependence, given it is a very small amount, given that you are a user of the drug, I am proposing to convict and discharge you on that charge. In respect of the drive whilst disqualified, given its connection to the offending, I will impose a term of seven days imprisonment to be served concurrently.
92All right, in terms of ancillary orders, you indicated Ms Fargher that none are required. Are there any ancillary orders that are required in relation to Mr Clegg's licence? Just one moment.
93MS FARGHER: Your Honour, I haven't turned my mind to that, I will do that now.
94HER HONOUR: Thank you. Now counsel, what I propose to do once Ms Fargher has checked this issue, I am concluding the matter, but I will leave the link on. I appreciate that my reasons were relatively lengthy, and I may have spoken - delivered them at a certain speed, so I will give you an opportunity to speak to your clients. You will have the link until 10.30 all right?
95OFFENDER CLEGG: Thank you, Your Honour.
96MR HOCKING: As Your Honour pleases.
97MS FARGHER: Your Honour, there is a licence disqualification attached, I'm just looking at the legislation to see the duration of that - - -
98HER HONOUR: Are you looking at the Road Safety Act or the Sentencing Act?
99MS FARGHER: I was looking at the Road Safety Act, Your Honour.
100HER HONOUR: Very well, thank you. Mr Hocking, if you have the legislation with you too, it might be advisable for you to have a look at it. What is Mr Clegg's situation? I presume that he is disqualified from driving presently?
101MR HOCKING: He is unlicensed.
102HER HONOUR: He is unlicensed.
103MR HOCKING: And Your Honour, I'm just checking - I'm checking - yes, he's unlicensed. I'm just checking the Act now, but my understanding is that there's no mandatory disqualification provision, but it is discretionary under the Sentencing Act due to the drug related nature of the offending, but I would be making submissions against any further disqualification of his licence, Your Honour, in circumstances where he still needs to complete an intensive drug and drink driving program before he's even eligible to make a licence eligibility application. So he still has to go before a judicial officer to have his licence returned.
104HER HONOUR: Yes, all right. I mean I know that I have the power to do it, I am really just checking whether it’s mandatory before we adjourn. I do not consider, and I do not understand that there is a mandatory provision, but you tell me otherwise.
105MS FARGHER: The wording is 'may', Your Honour.
106HER HONOUR: May, it is may, it is discretionary. Very well, you do not - I mean look, I raised it, you do not seek to make submissions, do you?
107MS FARGHER: No, Your Honour.
108HER HONOUR: No, very well. It is may, it is discretionary. Taking into account Mr Clegg's disadvantages, disabilities, challenges that he faces and the period that he has served in custody, I am not proposing to exercise my discretion to interfere with his licence. Counsel is there anything further?
109MS FARGHER: No, Your Honour.
110HER HONOUR: All right, thank you very much for your assistance.
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