Director of Public Prosecutions v Barrington (a pseudonym)
[2020] VCC 1081
•16 July 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAM BARRINGTON (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 16 July 2019 | |
CASE MAY BE CITED AS: | DPP v Barrington (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1081 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms G. Mazzone | |
| For the Accused | Ms O. Gomez-vasques |
HER HONOUR:
1 Sam Barrington[1], you have pleaded guilty before me to one charge of armed robbery. The facts underlying your offending are as follows.
[1] This is a pseudonym name.
2 The victim in this matter, Said Haider, was a 24 year old taxi driver working on the evening of 10 May 2018. He received a booking from you to attend at Grant Street, St Albans, which he did at 11.53. You walked out of the house in Grant Street with a man and a woman, then got into the taxi in the left rear seat. You pre-paid Mr Haider $50 and asked to be dropped to an address in Tarneit.
3 About 15 to 20 minutes later the taxi arrived at the address at which time you produced a folding knife and said, 'Give me the $50.' At this time you held the knife in your right hand resting it on the centre console in the car with the blade pointing towards Mr Haider. Mr Haider hit the emergency button in his taxi and said, 'Okay I'll give you $10.' You said, 'Give me $20.' Mr Haider then gave you $5. The actions in you stealing this money whilst armed with a knife underlies the armed robbery charge.
4 You then raised your fist with the knife and stabbed it into the centre console. Mr Haider grabbed the knife, pulled it out and threw it into the footwell of the vehicle. You tried to climb in the front of the taxi and started punching Mr Haider with both fists to his face yelling, 'Fuck you mother fucker, give me the money.' You then got out of the taxi and Mr Haider notified his employer who called the police.
5 Police attended the scene of the accident where they found the folding knife and looked at CCTV footage from inside the taxi. That footage showed a distinctive hand tattoo which was identified by investigators as belonging to you. You were arrested on 22 July and you made a fully cooperative record of interview saying, 'This is all my fault.' You said you had said terrible things to the victim, that you simply did not want to pay the fare 'for some fuckin' dumb reason.' You described the knife, you made admissions of yelling and punching and described yourself as being 'drunk, stupid drunk and fuckin' on drugs.' You said you had drunk a slab of beer in a short period and were 'too wasted to just even care.'
6
This matter was settled to a plea of guilty at a very early stage. You entered your plea on 26 March 2019 following a committal case conference on
17 October 2018 where the matter was resolved.
7 It is accepted by the prosecution that this was a plea made at the earliest opportunity and that therefore you are to be granted mitigation in terms of the remorse that you have shown and for saving the community the time and expense of a trial and Mr Haider the trauma of giving evidence and facing cross-examination at both committal and trial.
8 You were remanded in custody for 29 days before being released. You had at that stage no prior criminal history although you have subsequently gone on to commit other offences.
9 I received a victim impact statement from Mr Haider. It is perfectly obvious that your actions have had a profound effect upon him. He states, 'Before this I was very friendly and happy but after the accident I am scared of everyone.' He said he has hesitation with his friends, he relives this experience by way of flashback when he is driving if someone looks at him. He said he has depression and he says, 'First of all I lost my job, I lost my happiness and I don't know what will happen in the future.'
10 I now turn to your personal circumstances. You are now 21 years of age, you were 20 at the time of this offending. You are of Maori background, you were born in New Zealand and came with your family here in 2009. You have several older half-siblings from a previous relationship of one of your parents, and a 19 year old full biological sister. Your parents remain married and according to what you told psychologist Carla Ferrari whose report dated 25 June 2019 was tendered on the plea, they 'exemplified a positive, loving and respectful relationship.'
11 You described to Ms Ferrari a normal and happy childhood where there was no violence or abuse and that your family have been very, very disappointed and upset at your offending. They are apparently law abiding people who are very much opposed to violence or criminal behaviour.
12 You said you did not have any trouble settling in when you came to Australia, had no particular difficulties at school, you were a good student. You left school during Year 10 because you wanted to start work and gain an income and you worked at a cold storage facility for three years and then in warehousing at Coles for a further two years. However about the year before these offences you stopped working because you described what you call a deterioration in your mental health.
13 On the plea it became quite evident that what happened was you had been in a relationship with a responsible and law abiding young woman but you were going out to nightclubs where you started using ice as a party drug and you soon became addicted to it. Very soon after you began using ice, your girlfriend effectively kicked you out. You fell in a heap and started using ice more and more and more. You were unable to hold down employment, and it was in this context that you started hanging around with other drug users and for the first time in your life, offended in this appalling way against a perfectly innocent man going about his employment. It is quite clear it is not his taxi, as we said on the plea hearing, he would not have been paid very much and now that is work he cannot do any more because of the trauma you have inflicted upon him.
14 It seems that even though you were finally released from custody after 29 days, you did not take advantage of that, you went back to your old behaviour. You ended up continuing to use ice, you also inflicted violence on your own family, smashing a car window, so your parents had to take out an intervention order against you. That effectively forced you into the company of drug using and people who engaged pretty regularly in criminal behaviour. It was because of this it would seem that on 24 January 2019 you with a co-accused stole a taxi, stole the taxi driver's credit cards and used them. You drove the taxi to a number of petrol stations and drove off without paying.
15 Eventually you were arrested, again you were cooperative with police, but this time you were remanded in custody for 100 days and that finally seems to have done the trick. Unsurprisingly you did not enjoy your time in gaol. On your release from custody, you resided with a cousin although you have now gone back to live with your parents.
16 I received material from your father saying that you are now a much better person to live with and you are helpful in the house. The intervention order has been altered so that you can go home. You appear not to have used drugs for quite some time and luckily for you your girlfriend has returned and you are back in a relationship.
17
I might add that the Magistrates' Court dealt with you for that offending on
21 May 2019 and you were sentenced to 100 days' imprisonment and it was ordered that that had already been served by way of pre-sentence detention.
18 So you need to understand, sir, that you have now come before this court having already received a sentence of imprisonment from the Magistrates’ Court. You are now also appearing before the County Court where you have to get into particular trouble to be presented here, and you will now have an armed robbery charge on your priors. That is really serious. If you ever appear in front of a court again, the first thing the court is going to do is look at your priors. Looking at a person's prior convictions is a very important part of any sentencing exercise because the court needs to decide whether this person has good prospects of rehabilitation or whether they are a menace to the community. And if somebody has got a prior for armed robbery, then it is most unlikely you are going to be regarded as anything other than a poor rehabilitative prospect. Do you understand me? What I am saying is you need to keep your nose clean for a very long time.
19 It was the prosecution's submission that this was a violent attack upon a vulnerable victim and therefore the court should respond by way of a disposition which involves some gaol to be immediately served. I agree that it is serious and I think it is also extremely unimpressive that it took a hundred days in gaol for you to come good. But I am satisfied that your prospects for rehabilitation have dramatically improved and I would be reluctant to get in the way of them and I would be reluctant to put you back in gaol where undoubtedly due to your young age you are more vulnerable to be influenced by older, more hardened prisoners, and you might simply re-form the undesirable connections that you did whilst you were using ice over that time.
20 I have therefore decided that I will deal with you by a combination disposition. I am going to sentence you to 39 days' gaol and direct that that has already been served by way of pre-sentence detention. And I am also going to place you on a Community Corrections Order. Now I can only do this with your permission, so could you stand up sir. I need to explain what the conditions of the Community Corrections Order are, all right. You need to calm down and look at me sir and listen to what I am saying all right.
21 The first is that you must report to a Community Corrections Office within two working days of the making of this order, that is by Thursday of this week. Whilst on the order which will last for two years, you must not commit another offence punishable by imprisonment. That does not mean you have to commit an offence and go to gaol, it means if you knock off a box of matches from Woolworths, theoretically you could go to gaol for that. That will breach the order, you will be brought back in front of me and I will re-sentence you. And if you do not do a good job on this CCO I am going to gaol you, do you understand?
22 OFFENDER: Yes.
23 HER HONOUR: While on the order you may not leave Victoria without the permission of the Community Corrections Office. You must report to and receive visits from the Community Corrections Office. You must not attend upon the Community Corrections Office under the influence of drugs or alcohol. You must report any change of address or employment within 48 hours of the making of that change. I think I have covered them all. You must obey all lawful directions of the Community Corrections Office.
24 I am going to order that you undertake 250 hours of unpaid community work. You are to attend for assessment and treatment for drug use. You are to attend for assessment and treatment for mental health difficulties. There will be judicial monitoring, so I will be checking up on your progress. What I am going to do is I will put you down for late August for the first judicial monitoring. And the reason I am doing that, is that you were so late for court today for something that is so important and I am really worried you are not going to keep your appointments. If you do not keep your appointments you will get breached. You do not get breached just by committing another offence, you get breached by not turning up to your drug treatment, to your mental health treatment, to your appointments with Community Corrections. By missing judicial supervision. You have got appointments you have got to keep, if you do not keep them you are going to end up in gaol. Do you understand that Mr Barrington?
25 OFFENDER: Yes.
26 HER HONOUR: Can you say it back to me what I just said to you so I know it has gone in.
27 OFFENDER: Um pretty much have to report to all these appointments and not be late, so don't breach anything.
28 HER HONOUR: What will happen if you get breached?
29 OFFENDER: I go straight to gaol.
30 HER HONOUR: You will. Do you reckon you can handle this?
31 OFFENDER: Yeah easy.
32
HER HONOUR: Good, well we will see. I will see you at the end of August,
22 August at 9.30 so I can make sure that you have reported in and it will probably be about three months after that that I am going to want to see you again. All right?
33 OFFENDER: Yep.
34 HER HONOUR: So I am going to be seeing you at short regular intervals and I will have a report each time. Have you got any questions? You understand what you are supposed to do? Do not ever pull a stunt like you did this morning on Corrections. That was just ridiculous and you put your counsel in a terrible position and you wasted court time. All right, which is important believe it or not. Have a seat, we will draw up the documentation.
35 Is there anything else that I need to do?
36 MS GOMEZ-VASQUES: No Your Honour.
37 HER HONOUR: Good.
38 MS MAZZONE: Just the disposal order for the knife.
39 HER HONOUR: Yes the knife. Thank you.
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MS GOMEZ-VASQUES: Also Your Honour I do have to tender now an apology that Mr Barrington has written.
HER HONOUR: That is right, I ordered that he write an apology. Good, I am glad that has been done.
MR GOMEZ-VASQUES: My friend has already got a copy.
HER HONOUR: Thank you, it will be up to Mr Haider whether he wants to receive it but I wonder Madam Prosecutor if the enquiry could be made. Just sometimes when something like this just happens out of nowhere, it is not that he is supposed to forgive Mr Barrington, it is just that he is meant to have some idea that this is a human being who behaved in a particular way.
MS MAZZONE: The file conduct solicitor will definitely ensure that it is passed on if he would like to receive it.
HER HONOUR: Yes and I would like a copy of my sentencing remarks to go to him too.
MS MAZZONE: Of course.
HER HONOUR: This is a very good letter. Good on you Mr Barrington. See you have got a few brains which I was starting to worry about. Are you listening, stand up Mr Barrington. This is really well written okay?
OFFENDER: It's from the heart you know.
HER HONOUR: I can see that it is from the heart, all right, and it is really impressive. But I am just saying you have obviously got brains, you have obviously got intelligence, you do not need to lead this stupid life. You have got the sort of brains that mean you could have a really interesting job that you really like and you have got a good work history as well. These are the reasons why I am not gaoling you. Ordinarily people who do armed robberies on taxi drivers and people who do armed robberies on people manning petrol stations and milk bars, they are vulnerable targets, they are people just making their living, not earning much money and the courts want to protect them and so then sentence them to send out a message to other idiots like yourself who behave in that way all right. You have only escaped that because you are young and because you have got not much in the way of a criminal history. You have got good family and you have got a good work history. So go back to that and you will be safe, all right. Have a seat thank you. I will get you to sign this. Thank you. I will hand that to you, give that to Madam Prosecutor. As I said I would be grateful if the sentencing remarks went to Mr Haider. I thank counsel very much for their assistance and I'm just warning you Mr Barrington, I better get an absolutely fantastic report from Corrections when I see you or you're in trouble. Got it?
OFFENDER: Yep.
HER HONOUR: Good. Off you go, we'll see you later, thank you very much.
MS GOMEZ-VASQUES: As Your Honour pleases.
HER HONOUR: Do you want a copy of the – we need to give you a copy of the order don't we. Just hang on Mr Barrington, we're just going to give you a copy of the order. I should add that Mr Barrington was found suitable for placement on a Community Corrections Order. It does not say what they reckon is risk of – you also expressed to the assessor a sense of shame as to what you have done. Thank you very much. Yes you can go sir, that is all right, off you go.
MS GOMEZ-VASQUES: Your Honour for the sake of the sentencing remarks, the original remand period was actually 31 days.
HER HONOUR: Thirty-one days.
MS GOMEZ-VASQUES: And the subsequent remand period was actually 105 but only 100 was actually reckoned as served in relation to the Magistrates' Court sentence.
HER HONOUR: I think I said 39 because that only makes 36.
MS GOMEZ-VASQUES: The 31 plus the 5 that never got reckoned.
HER HONOUR: Yes. Let me have a look, what did we say it was?
MS GOMEZ-VASQUES: I think Your Honour did say 39.
HER HONOUR: All right, we will change it back to 36.
MS GOMEZ-VASQUES: As Your Honour pleases.
HER HONOUR: All right thank for that. I do not want him suddenly doing two days, all right, three days or something. Thank you very much. Is there anything else I need to attend to?
MS GOMEZ-VASQUES: No Your Honour.
HER HONOUR: No. I thank counsel for their assistance, you are excused, thank you. I am going to stay on the Bench, I have got a trial running.
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