Director of Public Prosecutions v Banks

[2014] VCC 1494

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01226

DIRECTOR OF PUBLIC PROSECUTIONS

v

DYLAN BANKS

---

JUDGE:	HIS HONOUR JUDGE PARSONS
WHERE HELD:	Melbourne
DATE OF HEARING:	2 September 2014
DATE OF SENTENCE:	5 September 2014
CASE MAY BE CITED AS:	DPP v Banks
MEDIUM NEUTRAL CITATION:	[2014] VCC 1494

REASONS FOR SENTENCE
---

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

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P O’Halloran	OPP
For the Offender	Mr N Tehan	Slades and Parsons

HIS HONOUR: 

1You, Dylan Banks, have pleaded guilty before me to one charge of attempted armed robbery, Charge 3, and two charges of attempted robbery, Charges 1 and 2.  These crimes arise out of circumstances which are fully outlined in the Crown opening, which I have marked as Exhibit A.

2At approximately 11.05 am on 22 March 2014 the victim and his two friends, all of whom were aged 15, were walking along Queen Street in Frankston when they were approached by you and another male, having apparently come from a house on that street.  You made demands for money.  The victims replied they had none and you then began to push them and made grabbing motions at the backpack carried by one of them.  You also grabbed at another of his friend's bags.  The victim broke away from you and left the immediate area.  You then grabbed the headphones that one of your other victims was wearing and threw them to the ground and swore. 

3At that time you then took out a sheathed knife from your front left pocket and removed the knife from its sheath.  The knife was observed to be about 12 - 15 centimetres long with a blade of about eight centimetres.  It was then that the third victim ran away to join the other two victims who had already left the scene.  You did not apparently chase any of them.

4Identification was made of you by use of photo boards and also apparently some CCTV footage from a railway station.  You were arrested and cautioned on 15 April 2014.  You made a no comment record of interview.  You were then released on bail on 16 April before you were further remanded on this matter on 15 May and you have been in custody since.  Clearly that time has been difficult for you and I am told by your counsel, Mr Tehan, that you spent 21 days in the Frankston police cells before you were transferred to the remand centre.  You are now apparently appropriately in the Port Phillip Prison in the Youth Justice Unit.

5There are three victim impact statements in this matter and I have read each and I take each of their contents in to account in determining an appropriate disposition.  It is clear that each of your victims has suffered as a result of your actions and in the way each of them sets out in their statements.  It is appropriate these documents are before me in order to assess the effect that your actions had upon the young men and it is clear that the results of your actions will remain with them for some time.

6Of course, as was very helpfully pointed out by your counsel in his written submissions, which are marked as Exhibit 1, there are a number of mitigating factors to be taken in to account in your favour.  Firstly you have pleaded guilty.  You are entitled to have that fact taken in to account in your favour and I do so.  The community has, by your plea, been spared the time and cost of a trial and witnesses have been spared the ordeal of giving evidence upon your trial.  I can tell you the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.

7I further take in to account, in this regard, the fact that the evidence against you could not be characterised as strong, in the sense that the identification evidence was by means of a photo board and some CCTV footage, and but for your plea of guilty there may well have been a trial which would have been an ordeal for the witnesses.

8Further, I take it in to account in your father that you intimated early your intention to plead guilty to these charges.  Whilst you were not quickly apprehended, and whilst you did not readily admit your part in the crime, these things have come to fruition in an appropriate and timely manner.  In those circumstances I accept that in your case your pleas do indicate true remorse for your actions.

9I have been told a considerable amount about your personal history and your circumstances.  I have before me a psychological report that has been prepared by Dr Bath, dated 31 July 2014, and I have marked that document as Exhibit 2.  I also have a supervised bail progress report prepared by an officer of the Department of Human Services, 27 August 2014, which I have marked as Exhibit 3.  Finally I have a note prepared by your grandmother which I have marked as Exhibit 4.  I have found each of those documents most helpful.

10In addition to those documents I have a report as to your suitability for the youth justice system prepared by Ms Rita Cassar, the author of Exhibit 3.  I found her material to be helpful and insightful.  Finally, of course, I have the assessment with respect to your suitability for a Community Corrections Order which I have marked as Exhibit D.

11In the circumstances I think it appropriate to draw upon the written submissions made on your behalf, which were supplemented by oral submissions.  As I said on the day in court, I found them most helpful with regard to my gaining a full understanding of your circumstances.

12Your personal circumstances are also set out in the reports of Dr Bath and Ms Cassar in some detail.  It is clear that you were exposed to chronic physical abuse as an infant.  Both you and your sister were victims of violence at the hands of your father from a very young age.  You were also exposed to significant drug abuse and neglect by both of your parents in your formative years.  As a consequences of those circumstances the Department of Human Services Child Protection Unit was forced to intervene.  This, I accept, is a relevant matter to consider on your behalf as submitted.

13Further, Dr Bath formed your opinion that you endured profound problems in every aspect of your life, noting the particular psychological impacts of your childhood as follows, and I quote:

"He suffers from very low self-esteem, indeed his turbulent childhood and subsequent behavioural problems have left him significantly doubting his own sense of worth...His history of childhood abandonment and parental hostility resulted in Mr Banks viewing the world as a cold and unforgiving place where a person must assert their authority or be exploited.  Moreover, his early experiences of neglect and the absence of any affection, nurturance, and guidance from his parents created growing resentment toward the world around him...Mr Banks' history of behavioural disturbances meets the criteria for conduct disorder, childhood onset type, and is specified as severe."

14You developed ADHD at the age of seven.  You had been successfully medicated until four years' ago when you ceased taking that medication.  From that time your substance use has been ongoing as a means of self-medication.  Your enduring symptoms of ADHD mean you are prone to engaging in impulsive decision making and behaviour.  I agree with the submission made on your behalf that these matters prevent you from making calm and rational decisions and as a consequence the principles in the case of Verdins are activated on your behalf.

15I have no doubt, in the circumstances, that the fact that you had recently moved out of your grandmother's care and been reunited with your mother, caused you to experience a resurgence of the trauma from your childhood and again you fell victim to abuse from your mother's new male partner.  It is to your credit, and the credit of those around you, that you remain supported by your grandmother, your sister, and your partner.  Clearly it is the hope of all those persons that you successfully engage with the personnel in the youth justice system and you take advantage of what it is that they have to offer you there, by way of counselling and appropriate medication, and that when you return to your family and friends you have sought to make as much use of those facilities as you can whilst in the youth justice system, and of course continue to do so when you are subject to the rigors of the youth parole system.

16I do, as I say, accept that your plea was offered at the earliest opportunity and in the circumstances demonstrates remorse and contrition.  Your youth is a matter of significance in the sentencing matrix pursuant to the principles set out and well understood in the case of R v Mills.  It is clear, as Ms Cassar notes in the report she prepared with respect to your suitability for the youth justice system, that you do have good prospects of rehabilitation.

17I have been informed of a number of subsequent matters that are pending and they include on 9 September and assault charged before the Magistrates' Court and then on 2 October a number of further matters also before the Magistrates' Court.  I am informed by the counsel that there are a total of seven briefs and there are approximately 20 to 30 charges involved.

18I am on balance satisfied the chances of your rehabilitation will depend considerably on the efforts you make to continue on your current path whilst in the Youth Justice Centre.  At this stage I think there is room for some real optimism that you have shown a preparedness to engage with those who are trying to assist you in your rehabilitation and you have shown very positive signs in that regard.

19Of course, as well as those matters personal to you, to which I have referred, including the question of rehabilitation, I must take in to account such matters as deterrence.  General deterrence will always be of great importance in a case such as this, involving, as it does, the victims being a group of young men going about their normal business and walking in the streets of Frankston.  They are entitled to be able to do that without the slightest apprehension that events such as this will befall them, or indeed anyone, at any time.

20Clearly specific deterrence is also of importance, given your relatively recent appearance in the Magistrates' Court for those matters which are set out in your record of prior offences.

21You have not opposed the order with regard to compensation and accordingly I made on the day of the previous appearance.

22Having regard to the seriousness of your offending I do order in the circumstances that an intimate forensic sample, namely saliva, be taken from you and that sample may be taken by a doctor, or a nurse, or other authorised person and it will be taken by wiping a swab inside your mouth.  Although you have consented, if you change your mind I must inform you that the police may use reasonable force to enable that procedure to take place.

23Yes, if you would stand, please, Mr Banks?

24These are without doubt serious offences and in all the circumstances I have no alternative to the imposition of a custodial sentence.  You are convicted and ordered to be detained as follows in the youth justice system.

25On Count 1, six months; on Count 2, six months; and on Count 3, 15 months.

26I order that Counts 1 and 2 be served concurrently with each other and the sentence on Count 3.  That results in a total effective sentence of 15 months to be served by you and detained in the youth justice system.

27As described by the Sentencing Act, I declare that the period of time you have already spent in custody - how long is that?

28MS TEAGUE:  One hundred and 14 days, Your Honour.

29HIS HONOUR:  One hundred and 14 days, that is agreed, Mr Tehan?

30MR TEHAN:  Yes Your Honour.

31HIS HONOUR:  I particularly note and draw attention to the fact that you have served the majority of them in what can only be described as very harsh and onerous circumstances and I direct that that be noted in the records of the court.  Pursuant to the provisions of s.6AAA, had you not pleaded guilty, I would have ordered a total effective sentence of three years in the youth justice system.  Yes, have a seat, please, Mr Banks.  Now, is there anything further with respect to that matter?

32MS TEAGUE:  No Your Honour.

33MR TEHAN:  No, I don't believe so Your Honour.

34

HIS HONOUR:  Again, thank you both for your involvement, and

Mr Banks, I hope that the youth justice system provides you with a good opportunity to keep doing what you are doing.  I appreciate that you would much prefer to be out of the system and with your family and friends, but it seems to me that the youth justice system will give you the opportunity to continue the good path you have gone on and I am sure that if you continue the Youth Parole Board will - quite shortly you will be able to have some release when you show them that you are committed to your rehabilitation.  It is all up to you.   All right, thank you Mr Banks, I will stand down now whilst the next case is called on.

‑ ‑ ‑