Director of Public Prosecutions v Baker

[2016] VCC 392

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02216

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES WILLIAM BAKER

---

JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 April 2016
CASE MAY BE CITED AS:	DPP v Baker
MEDIUM NEUTRAL CITATION:	[2016] VCC 392

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Manning
For the Accused	Mr M. McGrath

HIS HONOUR:

1James William Baker, you have pleaded guilty to one charge of kidnapping, two charges of intentionally cause injury, and two charges of theft.  The facts of the matter are set out in the summary of the prosecution opening, which is Exhibit 1 on the plea, I will not now recount the facts, they are not disputed by your counsel, and reader of these reasons can refer to that Exhibit to place the sentence in its factual context.

2It would be trite to say that your behaviour here can be described as appalling, very frightening to the victim, no matter what the circumstances were, and no matter the fact that there was another person involved.  All over $500, I shake my head as to why you would do all that for that amount of money.

3The prosecutor pointed to some of the aggravating features of your offending, it was in company, weapons were used, it was over an extended period of time, there was the kidnapping, actual violence was caused, injury was caused, and he did concede that the co-offender could be seen to be a leader. You were certainly not a passive participant.

4On your behalf, your counsel Mr McGrath made a number of submissions.  He filed a written submission and supplemented them orally.  He also tendered two reports and called two witnesses.  His written submission and the report of Pamela Matthews sets out your background.  Your mother gave evidence, she is a teacher of some 37 years standing.  She outlined your early years at school, and you were an outstanding student up until Year 7 and 8.  At the end of that, you started to change, she said.  You had indeed been in a gifted program at your earlier school.

5In Year 9, you were still at Assumption College.  At the end of that year, because of difficulties that had arisen, you left that school and went to Kangan TAFE at Broadmeadows.  You did not complete your VCAL, wanted to join the Army, and were all set to do so, but changed your mind.  You then had a series of different labouring type jobs.

6Your counsel's written submission and a report of Pamela Matthews set out your early introduction to the use of drugs and alcohol, and in particular methylamphetamine.  It is said that at the ages of 12 to 13 you would binge drink on weekends, again using cannabis about the age of 14, and started using methylamphetamine at the age of 16. 

7Ms Matthews said your profile suggested a person who is dysphoric and pessimistic combined with impulsivity and the potential for acting out behaviours.  She said that you are an immature 20 year old still in the early-mid adolescent stage of development.  At paragraph 37, she set out her view of your behaviour, and in paragraph 39, set out the negative effects of a period in custody would have for you.

8You were bailed to the Arrow Health, and entered a residential treatment program on 17 September 2015.  A report was tendered from Arrow Health, and Mr Quigley, who is a worker there, gave evidence on your behalf.  I had not heard of Arrow Health, so I was particularly interested to see how it operated and what sort of programs you were involved with, and what sort of success rate they have.

9You were at a residential place at Alexandra for some three months, and you are at their premises at Kooyong House in Caulfield.  He believed you are highly intelligent and you have the support of your family, and was positive about what you had achieved at Arrow Health.  In his report he said that he believed you had a motivation to change, you have remained abstinent from drugs, you have been screened regularly, and that includes random urine drug screening, and he suggested that another three months at the Kooyong House would be of benefit to you.

10Your counsel also relied on your early plea of guilty, which I of course take into account.  As an indication of remorse by you, and also for its utilitarian benefit, in that it saved the court the time and expense of a jury trial.

11I have taken into account all the matters put by both counsel.  The basic purposes for which a court may impose sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  I have expressed my view of your offending here, and in sentencing you I must have regard to a range of matters, such as the seriousness of the offence, your culpability for it, your personal circumstances, and those of the victim, if any.  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.

12When I first read this, I was firmly of the view I would be sending you to gaol, or if not, to youth training centre.  But having listened to both counsel, and carefully considered the material, and also considered the principle set out in the case of Boulton v The Queen [2014] VSCA 342, as to the use of community corrections orders, particularly with young offenders and people who have shown some attempt at rehabilitation, I have finally been convinced to place you on a community corrections order for all the matters.

13So I have put you on a three-year community corrections order.  You are to complete 250 hours of work, you are to attend programs for treatment and rehabilitation in relation to drugs, and also mental health.  You are to be supervised by Corrections, and I will also list a judicial monitoring date and time, which will be on 4 July at 10 o'clock. 

14And as I said the other day, Mr McGrath, I would be assisted if I had some report from Arrow Health as to what has been going on.

15MR MCGRATH:  Yes, Your Honour, the only matter, just before Your Honour finishes, Your Honour did not mention the summary up with the charge of make false report.

16HIS HONOUR:  Yes.

17MR MCGRATH:  I just raise that with Your Honour.

18HIS HONOUR:  Did I not mention that?

19MR MCGRATH:  When referring to the matters to which my client had pleaded guilty, that ‑ ‑ ‑

20HIS HONOUR:  Yes, all right.  That is included in ‑ ‑ ‑

21MR MCGRATH:  Yes, Your Honour.

22HIS HONOUR:  Thank you for that.  Have I missed anything else.

23MR MCGRATH:  I do not think so.

24HIS HONOUR:  No?  Are there any other ‑ ‑ ‑

25MR MANNING:  Your Honour, I have updated copies of the disposal that was sought and the forensic sample order as well.

26HIS HONOUR:  All right, thank you.

27MR MANNING:  Your Honour had referred to in discussions at the plea hearing, a potential residential condition in relation to the corrections order, I do not have a submission in respect of that.

28HIS HONOUR:  Yes, I would just leave that as it is at the moment.

29MR MANNING:  Yes, Your Honour.  I can hand those up now.

30HIS HONOUR: Thanks. I sign an order for disposal, pursuant to s.77(1) of the Confiscation Act in the terms of the order. I sign. This 464 order, you did not oppose that, did you?

31MR MCGRATH:  No, Your Honour.

32HIS HONOUR: I sign an order for a forensic sample to be taken pursuant to s.464(ZF) of the Crimes Act, and Mr Baker that means you have to report to the officer in charge - it does not say which police station - "police station at blank".

33MR MANNING:  If Your Honour turns to the final page, there should be a list of police stations there, I believe Moorabbin would be the correct police station, my apologies.

34HIS HONOUR:  I agree with that.  Do you want to talk to your client?

35MR MCGRATH:  Caulfield might ‑ ‑ ‑ 

36HIS HONOUR:  There is one at Caulfield.

37MR MCGRATH:  Yes, Caulfield would probably be the most appropriate.

38HIS HONOUR:  Yes, Hawthorn Road, I know where it is.  At Caulfield, can I write that in? 

39MR MCGRATH:  Thank you, Your Honour.

40HIS HONOUR:  During the period of four weeks commencing 28 days after the sentence, you can explain that to him, Mr McGrath.

41MR MCGRATH:  Yes, I will.

42HIS HONOUR:  Having considered the seriousness of the offence, I am satisfied that in all the circumstances my making of the order is justified for the following reasons, the seriousness of the offending, it is not opposed.  Mr Baker, what that means is that you have got to report to the police station, they take a sample from your mouth, if you do not do so, they can come around and get and use reasonable force to do so, do you understand that?

43OFFENDER:  Yes.

44HIS HONOUR:  All right, yes.  Mr Baker, if you decide not to comply with the corrections order, you are brought back before me and I have to think of something else to do with you, and you would understand that there are not many other alternatives but putting you into custody.

45OFFENDER:  Yes, Your Honour.

46HIS HONOUR:  All right, my printer here does not work, so my associate has to go out.  Sit down, Mr Baker, while we get the order, which you will be asked to signed.  Find a printer that does work.  It is a wonderful court, this, but a lot of the communications equipment is breaking down, and I do not think there is any money to do anything about it.  Mr McGrath, if you would like to take that up to your client, and make sure he understands it.

47MR MCGRATH:  Yes, Your Honour.

48HIS HONOUR:  If he wishes to, he can sign it as consenting to and understanding it.

49MR MCGRATH:  Yes, Your Honour.  Mr Baker has signed the document.

50HIS HONOUR:  Thank you.  Mr Baker, you have signed the document saying your understand the effects and conditions of the order and consent to it being made, is that correct?

51OFFENDER:  Yes.

52HIS HONOUR:  Thank you, gentlemen, I will adjourn until 10.30.

53COUNSEL:  As Your Honour pleases.

‑ ‑ ‑