Director of Public Prosecutions v Ayres; Director of Public Prosecutions v Bowen
[2014] VCC 591
•12 May 2014
|
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00343
CR-14-00561
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JESSE AYRES |
| and |
| BRADLEY BOWEN |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 April 2014 | |
DATE OF SENTENCE: | 12 May 2014 | |
CASE MAY BE CITED AS: | DPP v Ayres; DPP v Bowen | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 591 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – false imprisonment – possess firearms
Legislation Cited: Sentencing Act 1991; Crimes Act 1958
Sentence: Accused, Ayres: Total effective sentence of 3 years and 6 months’ imprisonment. Non-parole period 2 years’ imprisonment. Section 6AAA declaration – 4 years and 6 months’ imprisonment with a non-parole period of 3 years.
Accused Bowen: Total effective sentence of 6 years’ imprisonment. Non-parole period 4 years’ imprisonment. Section 6AAA declaration – 8 years’ imprisonment with a non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Singh | Solicitor for Office of Public Prosecutions |
| For the Accused Ayres | Mr A Patton | Ann Valos, Criminal Law |
| For the Accused Bowen | Mr C Terry | Revill & Papa |
HIS HONOUR:
1 Jesse Ayres and Bradley Bowen, you have each pleaded guilty to one charge of armed robbery, the maximum penalty for which is 25 years’ imprisonment; one charge of false imprisonment, the maximum penalty for which is 10 years’ imprisonment; and one charge of possession of a prohibited firearm, the maximum penalty for which is 10 years’ imprisonment.
Circumstances of offending
2 The facts are set forth in the Prosecution Opening, which I adopt.
3 You are brothers-in-law and have a cousin, Bri-annon Moller. Ms Moller worked at the Melton Country Club. In the early hours of 2 January 2012, you went to the Club, armed with sawn-off firearms and disguised with balaclavas, and there confronted Ms Moller and two employees, Elizabeth McIlduff and Max Knight, a security guard, who were leaving the premises after locking up. You approached these persons, pointing your guns at them and demanding they lay on the ground. There was a confrontation between you, Mr Ayres, and Mr Knight, as a result of which you, Mr Bowen, told Knight to “Get off him before I shoot you and kill you”. Knight was bound and gagged with duct tape over his mouth while Ms McIlduff was forced at gunpoint to return to the premises and open the safe. You, Mr Bowen, placed $64,000 in cash into your backpack. You required Ms McIlduff to pour alcohol over the CCTV system to destroy the discs. Ms McIlduff was then bound and gagged and duct tape placed over her mouth.
4 You took their drivers’ licences, threatening, unless Ms McIlduff destroyed the other hard drives on the CCTV, that you would attend their houses and kill them, given you knew where they lived from their drivers’ licences.
5 On 15 May 2013, a search warrant was executed at Mr Bowen’s premises, which located the balaclavas and cable ties similar to those used to bind the victims.
6 In a subsequent police covert operation, you, Mr Bowen, admitted to an undercover police officer, details of the robbery, including payments made to Mr Ayres and the disposal of the equipment used, including guns, overalls and the like. You further said that the robbery was committed on a Sunday night, as it was known the takings from the weekend would be high.
7 The money from the robbery was spent in payments to Mr Ayres, and another person, to dispose of the guns, and in repayment of various debts.
8 Generally, when interviewed by police, you both denied your involvement.
9 I was provided with Victim Impact Statements from each of the victims. Ms McIlduff, as a result of the robbery, has been diagnosed with Post-Traumatic Stress Disorder and now finds it difficult to go out to social functions at night. She no longer works night duties nor enjoys her job in the same manner as before. She says there is “no safe place anymore”. She has difficulty trusting people.
10 Mr Knight, according to his statement, has also been diagnosed with Post-Traumatic Stress Disorder. He has been out of work over a considerable time and has become angry and frustrated.
11 On any view, the effect upon each victim was profound, and it is likely they will carry the psychological repercussions of what occurred for a considerable period to come.
12 You each pleaded guilty at a committal mention, and I accept that your plea of guilty was made at the earliest practicable time.
Matters personal – Jesse Ayres
13 You are now twenty-one and were nineteen at the time of offending. You were supported in Court by your mother, Gail, and your partner, Tia.
14 Your parents divorced in 1998 and for a period you lived with your father in an unstable environment. You have lived with your mother since 2000. At school, you excelled in sport, and in particular football, basketball and ten-pin bowling. You have played basketball and ten-pin bowling at a State representative level. You left school midway through Year 9 and have not completed any further training nor apprenticeships. You have worked in the labouring and construction industry, as a plasterer and in a chemical factory. Recently, you have undertaken a civil construction certificate course and have completed the coursework aspect. You have not yet completed the practical training work. You are presently unemployed but have been pursuing work alternatives.
15 You commenced using alcohol and cannabis while at school, and graduated to amphetamines and methylamphetamines. By seventeen, you were using ice on a daily basis.
16 You have limited prior convictions, including driving offences, attempted theft of a motor vehicle, and criminal damage. On 1 May 2013, you were convicted of firearms offences, served 36 days in jail, and received an eighteen-month Community-Corrections Order. According to your counsel, this has “turned your life around”. According to a report of Werribee Community Correctional Services, you complied with all aspects of the order, completed 50 hours of unpaid community work and successfully undertook a drug abuse and dependency program. You moved in with your mother and partner to Bacchus Marsh and away from the negative peer group at Melton with whom you had previously associated. You became involved in a Christian Youth Group and resumed your involvement with ten-pin bowling at a high level. According to your counsel, you are committed to your partner and hope to purchase a house. You have been abstinent from drugs since May 2013.
Matters personal – Bradley Bowen
17 You are now twenty-nine years of age, and were twenty-six years of age at the time of offending. You had a somewhat fractured upbringing and were said to be rejected by your biological father. Your mother struggled to adequately provide for you and your various half siblings. You described your childhood as strange and isolated, with few friends and little social interaction.
18 You had difficulties at various schools, did not complete Year 10 and struggled with the academic demands. You were expelled from a number of schools. You went to work for a period at the Melbourne Fruit and Vegetable Market and then in various manual jobs. You eventually found a position with a glass manufacturing company and worked as a forklift driver until you took a redundancy package in February 2012.
19 You commenced use of drugs at age twelve, graduating from Cannabis to methylamphetamines.
20 In 2004, you committed an armed robbery in circumstances very similar to those which bring you before this Court.
21 I have read the sentencing remarks of her Honour Judge Wilmoth of 7 October 2004, and note that you were sentenced to serve a period of three years’ detention in a youth training centre. Her Honour’s sentence sets out in detail the difficulties with your childhood and the relationship with, in particular, your father, and the effect upon you of your significant drug habit.
22 You met your wife, Tamika, while you were nineteen, and have three children together. All have a form of Autism Spectrum Disorder. The youngest, aged four, is said not to be able to talk or socially interact. The older two attend a special school and the younger, a special kindergarten.
23 During the course of your three years under the Youth Justice Order, you were involved in an assault of another prisoner, and spent ten months in adult custody.
24 As stated, you worked in the glass manufacturing factory from 2006 until 2012. As the years progressed, you rose through the ranks to become a “line leader”. The shifts you were required to undertake became more difficult, particularly in the light of the fact that you had a young family to look after, and children with special needs. All of this led to you accruing credit card debts and a relapse into drug use, from which you had, to that point, been abstinent. It is said Tamika is staunchly against drug use.
25 It was in this context that you were approached by Ms Moller and it was suggested you rob the Melton Country Club. You were attracted to the proposal, as it would provide you with money to repay credit card and drug debts. You were then involved in the planning for the offence, and recruited your brother-in-law, Mr Ayres, to assist.
26 You were arrested in December 2013 and have, since then, spent time in custody.
27 Because of the diagnosis of autism with your children, Mr Simmons, psychologist, was of the opinion you may also have had the same disorder, although that has not been confirmed. Further, he noted the disruption of your schooling, the fact that you had secure employment over seven years, rising to a supervisory position, and over this period remained drug free. Mr Simmons described that you were remorseful for your actions, and empathetic towards the victims. He noted that you would benefit from drug and alcohol counselling.
Sentencing considerations
28 The purposes for which a court may impose a sentence are:
· Punishment – to an extent and in a manner which is just in all the circumstances;
· Deterrence – both specific and general;
· Rehabilitation;
· Denunciation and/or protection of the community.
29 In sentencing you, I must have regard to a range of matters such as the seriousness of the offences, your responsibility for them and your personal circumstances. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
30 You have both pleaded guilty and are entitled to have that fact taken into account in your favour. A plea of guilty, no matter why or when it is entered, must always attract a sentencing discount. I accept that your plea of guilty was made at the earliest practicable time and evidences some remorse. You have saved the cost of a trial and spared the witnesses the ordeal of giving evidence.
31 In your case, Mr Ayres, you come to be sentenced as a Youthful Offender and as such, rehabilitation is an important sentencing consideration. While you have some prior convictions, they are of limited significance. Aside from some driving offences, the other offences were committed when you were under seventeen years of age.
32 It is of concern that you were sentenced for the firearm offences in May 2013, and ordered to undertake a Community-Corrections Order. While not relevant as part of your prior criminal history, it is a matter to be taken into account in terms of your rehabilitation. In any event, I accept the plea of your counsel that that sentence has, to some extent, made you realise the serious criminal path down which you were going and motivated you take steps towards rehabilitation. You moved away from inappropriate influences in the Melton area, have lived in stable accommodation and involved yourself in a Christian Group and undertaken sporting activities, all of which will assist in your rehabilitation. According to the report of the Community Corrections Officer, you completed all the hours of unpaid community work and undertook appropriate treatment and programs. According to your counsel, you have been abstinent from drugs since May 2013.
33 It remains to be seen whether, following the sentence that I am about to impose, you will complete all the steps necessary to ensure your reintegration into society, including particularly full-time employment and abstinence from drugs.
34 I accept that you were not involved in the planning of the armed robbery, but given your immaturity, were brought into the affair by your brother-in-law. The Prosecution concedes that in the days prior to the armed robbery, you had reservations about remaining involved, and sought to remove yourself from the affair. It is a great pity you did not do so.
35 In your case, Mr Bowen, your counsel submits you are not beyond redemption. I accept that there are some positives in assessing your prospects for rehabilitation. You have been in a stable relationship with Tamika now for nearly ten years, and have three children. I accept she is strongly opposed to your use of drugs. Further, while you were employed by the glass manufacturing company over a period of about eight years, you were in stable employment and drug free. It goes without saying, that the prospects of your rehabilitation will be considerably improved if, after service of the sentence which I am about to impose, you are able to obtain full-time employment and remain drug free.
36 I say to both of you that your drug abuse, particularly the drug ice, has played a key role in your offending. While it does not in any way excuse what has occurred, it provides an explanation as to how you became involved in this serious offending.
37 In your case, Mr Bowen, you have a significant prior conviction for armed robbery committed in circumstances very similar to those which bring you before this Court. It is of concern, in considering your rehabilitation, that it would appear you too easily relapse into drug use and the prospect of easy money through armed robbery when your circumstances become difficult. It remains to be seen whether, after the period of imprisonment I am about to impose, you will be able to resist those temptations.
38 What must be said about the circumstances of the offending is that the armed robbery was particularly serious. It was carried out in the early hours of the morning, involved disguises and sawn-off firearms, and very serious threats made to innocent victims. You subjected each of them to a terrifying experience, in particular your threats that you knew where they lived, and would go to their house to kill them unless they complied with your demands. I accept that it is likely they will suffer significant psychological problems from these threats for a considerable period.
Sentences to be imposed
39 Taking into account all the matters to which I have referred, I impose the following sentences:
Mr Ayres
40 In your case, Mr Ayres, on Charge 1, armed robbery, you are convicted and sentenced to a term of imprisonment of three (3) years.
41 On Charge 2, false imprisonment, you are convicted and sentenced to a term of imprisonment of eighteen (18) months.
42 On Charge 3, possessing a firearm as a prohibited person, you are convicted and sentenced to a term of imprisonment of seven (7) days.
43 In determining whether to order any period of cumulation, and if so, how much, I take into account that although the charges of armed robbery and false imprisonment occurred within the same period of offending, they nonetheless involved discrete actions, and the later charge involving offending of such gravity that total concurrency would fail to do justice. I therefore consider it is appropriate to order some form of cumulation. I direct that six (6) months of the sentence imposed in respect of Charge 2 be served cumulatively upon the sentence imposed in respect of Charge 1, the base charge, and each other charge. That results in a total effective sentence of three (3) years and six (6) months’ imprisonment. For the sake of clarity, I declare that the sentence imposed in respect of Charge 3 is to be served concurrently with the sentence imposed in respect of Charges 1 and 2.
44 Given the matters to which I have referred, and particularly your youth, I direct that you serve a minimum period of two (2) years’ imprisonment before becoming eligible for parole.
45 Pursuant to s18(4) of the Sentencing Act 1991, I declare that a period of three (3) days is to be reckoned as a period of imprisonment already served under this sentence, and I direct that this declaration and its details be noted in the records of the Court.
46 Under s6AAA of the Sentencing Act 1991, I state that but for your plea of guilty, I would have imposed a total effective sentence of four years and six months’ imprisonment, with a non-parole period of three years.
Mr Bowen
47 In your case, Mr Bowen, on Charge 1, armed robbery, you are convicted and sentenced to a term of imprisonment of five (5) years.
48 On Charge 2, false imprisonment, you are convicted and sentenced to a term of imprisonment of two (2) years.
49 On Charge 3, possessing a firearm as a prohibited person, you are convicted and sentenced to a term of imprisonment of seven (7) days.
50 Again, in my view, it is appropriate that there be some period of cumulation. I direct that a period of twelve (12) months of the sentence imposed in respect of Charge 2 be served cumulatively upon the sentence imposed in respect of Charge 1, the base charge, and each other charge. That results in a total effective sentence of six (6) years’ imprisonment. For the sake of clarity, I declare that the term of imprisonment ordered to be served in respect of Charge 3 be served concurrently with the terms of imprisonment imposed in respect of Charges 1 and 2.
51 Given the matters to which I have referred, I direct that you serve a term of imprisonment of four (4) years before becoming eligible for parole.
52 Pursuant to s18(4) of the Sentencing Act 1991, I declare that a period of 182 days is to be reckoned as a period of imprisonment already served under this sentence, and I direct that this declaration and its details be noted in the records of the Court.
53 Under s6AAA of the Sentencing Act 1991, I state that but for your plea of guilty, I would have imposed a total effective sentence of eight years’ imprisonment, with a non-parole period of five years.
54 In your case, Mr Ayres, I shall make the Order sought pursuant to s464ZF(2) of the Crimes Act 1958 that you undergo a forensic procedure. I consider such an order is justified given the seriousness of the circumstances of the offending, that the order is not opposed and that it is in the public interest. I inform you that a member of the police force may use reasonable force to enable the forensic procedure to be undertaken.
55 I shall make the Pecuniary Penalty Order sought pursuant to s58 of the Confiscation Act 1997. The making of the order is not opposed.
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