Director of Public Prosecutions v Barrett
[2017] VCC 1366
•19 September 2017
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.17-00043
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ZACHARY BARRETT |
---
JUDGE: | HIS HONOUR JUDGE BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 19 September 2017 | |
CASE MAY BE CITED AS: | DPP v Barrett | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1366 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr H. Boyd-Wilson | |
| For the Accused | Mr H. Moody |
HIS HONOUR:
1 Zachary Barrett, you are to be sentenced for one charge of armed robbery. The maximum sentence is 25 years' imprisonment.
2 You pleaded guilty before me on 7 September 2017. When arrested and interviewed by police on 19 October 2016, nine days after the offence, you confessed and spoke candidly about the circumstances of offending. That included that you made a sworn statement after and in accordance with your record of interview. Before me you gave evidence adopting that as true and correct. In that evidence you undertook to give evidence in accordance with it in proceedings against your co-offender, Gia Foley. You entered a plea of guilty at committal which went by hand-up brief. The matter was then listed for plea hearing in this court.
3 You receive the benefit of your plea of guilty and that cooperation both from the earliest time. I shall return to your undertaking of future assistance.
4 At your plea hearing, which ran on 7 and 14 September, Ms Bate for the Crown tendered a written Crown opening and a copy photograph of the weapon that you used in the armed robbery.
5 Mr McGrath for you tendered a letter of character reference by your long time support Dianne Collins; the email of Anthony Lowman, case manager at Carlton Community Corrections as to your progress on a presently imposed Community Corrections Order; the letter dated 1 September 2017 of counsellor Paris Davenport of Caraniche Drug and Alcohol Service; and your two police statements, one of which I have referred to earlier, dated 19 October and 26 October 2016.
6 Mr McGrath called you to give evidence and Dianne Collins to give evidence on your behalf. Both Ms Bate and Mr McGrath provided written outlines of submissions on plea.
7 The circumstances of your offending are comprehensively set out in the tendered Crown opening which is Exhibit A. My own summary may therefore be shorter. It is also informed by the evidence of your own statement and some matters, not challenged, put on your behalf.
8 You are 26 years of age and have a history of struggle with drug and particularly methylamphetamine use. In the early part of 2016 you relapsed into drug use. Your partner Hope Hazelwood-Smith was also using it. By October you were in debt and under pressure and threat from your supplier, Gia Foley. On 10 October she asked you to come to her home in East St Kilda. She offered to reduce the debt if you assisted in respect of another debtor, a man she said had stolen from her. That night Foley lured Hani Refaieh to the premises. You were there with her and Hazelwood-Smith. You and Foley robbed him of his wallet, containing cash and cards, and his mobile phone. You were armed with a golf club shaft and Foley with a box cutter. At one point you struck him to the leg. You badly threatened, intimidated and humiliated him. For example he was made to take off his clothing.
9 As I stated during the plea hearing, although pressured into participating, your active role was a primary one. You seem to have embraced it enthusiastically. Ultimately Refaieh was told that he had to pay the money said to be owed by midnight to get his phone back. Refaieh returned asking for his ATM card to withdraw money. Told to go, he soon after rang the police. When you were arrested nine days later, the golf club shaft was at your home.
10 No victim impact statement has been tendered.
11
You have suffered a dysfunctional and no doubt damaging early life. Your parents separated when you were very young. Your mother was and still is a drug user. You were raised early in the Mulgrave and Gippsland areas. There was a period at 11 to 12 with your father in England. Your mother
re-partnered and you suffered physical abuse at the hands of both her and your stepfather, who also used drugs. There was a diagnosis of ADHD at six and you were treated with medication until 16.
12 You left school after Year 9. There was a period of homelessness.
13 In the context of that childhood you began using cannabis and then amphetamine at 12 and 13. You began to use methylamphetamine at 16.
14 There have been periods of abstinence and stability. For example you have worked in a relatively consistent way. Jobs have been in labouring and factory work. You held the same job at an aluminium manufacturing company for three years between 2011 and 2014. You are currently employed in the construction industry and are in training for a position as foreman.
15 Your criminal record filed at the indictment is consistent with your struggle with drug dependence over time. There are seven prior court appearances between June 2007, when you were 16, and January 2014. Three are in the Children's Court. Offences of dishonesty predominate. There is a Children's Court sentence, without conviction, for causing injury and assault. It was as I have said when you were only 16. There is a subsequent sentence. In May of this year you were placed on a Community Corrections Order for affray. I was told something of the circumstances of that offending. The tendered progress report states good compliance on that order, including that you have continued drug and alcohol treatment beyond the required or standard period.
16 Dianne Collins met you through her daughter when you were a teenager. You have lived with her for prolonged periods, particularly when homeless. You have maintained contact with her into adulthood and stayed with her in early 2017. I found her evidence both genuine and insightful. It presented you as a still young man, harmed by your early life's experiences but with a number of good qualities and of growing maturity. On the basis of her evidence and your own, I accept that you are honestly motivated to rehabilitate. Since this offending you have come to live with law abiding, pro social people, both of whom attended court to support you. You maintain a relationship but do not live with Hope Hazelwood-Smith who is also attempting to rehabilitate from drug use. She was not charged in respect of this offending. You have achieved stable employment with potential for advancement. Ms Collins states in her tendered letter that developing reconnection with your father has helped you.
17
As my description of the circumstances makes clear, this was serious offending. Armed robbery attracts a high maximum sentence. The offending and your criminal record make relevant sentencing considerations of general and specific deterrence, condemnation of the offending and the need to impose proportionate punishment. Your moral culpability, measured by both the nature of your crime and treatment of your victim, remains high despite the situation which led to your involvement. Understandably the submission of
Ms Bate was that your more recent offences indicate or at least suggest an escalation toward violent offending.
18 The appropriate sentence would usually at least include a sentence of imprisonment.
19 However I find important factors which go to moderate your sentence and have, in the balance persuaded me not to send you to prison. They include the following.
20 (1) Your plea of guilty and past cooperation. I find that you are remorseful. You expressed that to police upon arrest.
21 (2) Your badly disadvantaged early life. You began using drugs very young and in a situation of high vulnerability which was not of your own doing.
22 (3) To some extent the circumstances of your involvement in the offending. I feel that I have been careful about considering this. It must be remembered that you were involved, drug dependent but voluntarily, in a criminal and antisocial culture. That you were placed in a compromised, pressured position was ultimately a consequence of that.
23 (4) As I have said I see you as genuinely motivated to rehabilitate.
24 (5) A critical factor, but also seen in combination with the other matters raised, is your undertaking of future assistance in proceedings against Gia Foley. As indicated during exchange with Ms Bate on 14 September, I see your evidence as an important part of the prospective Crown case. It entails risk to you, as perhaps exemplified by an incident at your home on 22 October 2016, 12 days after the armed robbery and three days after your police interview and statement. Foley and a male demanded money, threatening to come into the home and take property. In fear you gave them your television and iPad. You reported this to the police. Although your undertaking to assist against Foley came late, I also bear in mind that you made your police statement, upon which your evidence will be based, at a very early time.
25 Perhaps most significant in the broad circumstances of this case, and as also raised by me in the plea hearing, I see your undertaking of assistance to be consistent with your expressed desire to reform from drug use and crime and real prospects of that.
26 It is a combination of matters which persuades me that in this case a non-custodial sentence can meet the relevant sentencing purposes. I refer to what is stated in s.5(4) of the Sentencing Act and the principles stated in such cases as R v Boulton.
27 In deciding that I have borne in mind and have not, I feel, underrated the seriousness of your crime.
28 You have been found suitable for a Community Corrections Order. It should contain appropriate punitive and rehabilitative conditions. It should be of a duration which attempts to reflect the seriousness of your offending. After considering and weighing what I find to be the relevant and competing matters, I sentence you as follows.
29 You are convicted and I impose a Community Corrections Order of three years' duration. The usual terms apply. The additional conditions are that you perform, over that time, 350 hours of unpaid community work, that you comply with required drug assessment and treatment, that you comply with required mental health assessment and treatment. And that you be under supervision of a Community Corrections officer.
30 Had you not pleaded guilty, I would have imposed a sentence of three and a half years in prison with a minimum term of two years before you would have been eligible for parole.
- - -
HIS HONOUR: I'm making an order that you supply a sample of your saliva and you will need to attend at the Prahran Police Station, after four weeks from today but before the next four weeks; before the next 28 days. The reasons why I'm imposing is the seriousness of this offending, that you do have prior convictions. I understand that the order is not opposed. In all of those circumstances the granting of the order I find to be in the public interest. What will happen is that you will have to use a cotton swab inside your mouth and supply saliva that way. I have not seen it happen but it doesn’t sound very intrusive. If you cooperate in that that's the end of it. If you don't cooperate in that, a sample of blood maybe taken by injection and reasonable force used. Did you say that there is another disposal - yes there is thank you. I'm also signing a forfeiture order in respect of the golf club shaft.
You can come out of the dock now and just sit near your counsel Mr Moody.
Stand up, I need to explain the order to you Mr Barrett. You've been placed on this order which will run for three years, therefore to 18 September 2020. the usual conditions are these, that you don't commit another offence for which you could be imprisoned during the time of the order. You must comply with a regulation that you don't attend any program, appointment or the like affected by alcohol or drugs or in possession of illegal drugs. You must report to and receive visits from Community Corrections. You must report to the relevant Community Corrections centre, I've got here Carlton, there's not one in Prahran? Where do you live?
OFFENDER: Sorry Your Honour, I already attend the one in Carlton, I have a very good relationship with them all over there so I'd appreciate if I could stay there.
HIS HONOUR: That's fine. Yes. But you need to go there within two working days of today, that you need to let Community Corrections know within two days of any change of address or job. That you must not leave Victoria without getting their permission and you must obey all of their lawful instructions. The additional conditions are that you perform 350 hours of unpaid work over that period of time. I recognise that you have your own work commitments but you should raise that with Community Corrections, you're probably doing that already at Carlton.
OFFENDER: I am.
HIS HONOUR: Yes. You must be under the supervision of a Community Corrections officer, you must undergo assessment and treatment for drug abuse or dependency, as directed you must undergo mental health assessment and treatment as you are directed by Community Corrections. Now do you understand that?
OFFENDER: Certainly Your Honour.
HIS HONOUR: And do you agree to it?
OFFENDER: I do Your Honour.
HIS HONOUR: I'll get you to sign the order then. We'll give you a copy of that order in a moment and a copy of the saliva sample order so you know what to do.
OFFENDER: Just to clarify Your Honour, sorry, so that was wait four weeks and then go within a month.
HIS HONOUR: That's right, yes, I don't know why it works that way but you've got eight weeks, but you start the process four weeks in. It's all written out there for you in the order. All right, good luck with it.
OFFENDER: Thank you Your Honour.
HIS HONOUR: Thank you both, you're both excused.
- - -
0
0
0