Director of Public Prosecutions v Bartels

[2021] VCC 1167

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01218

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN HANNIS BARTELS

---

JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Shepparton
DATE OF HEARING:	16 August 2021
DATE OF SENTENCE:	20 August 2021
CASE MAY BE CITED AS:	DPP v Bartels
MEDIUM NEUTRAL CITATION:	[2021] VCC 1167

REASONS FOR SENTENCE
---

Subject: Armed robbery

Catchwords:              Guilty plea – secondary offender - 2 armed co-offenders – high utilitarian value of guilty plea – remorse – very good prospects of rehabilitation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Worboyes [2021] VSCA 169; Boulton v R [2014] VSCA 342; Williams v R [2018] VSCA 171

Sentence:                   546 days imprisonment and 2 year community correction order – presentence detention 546 days

---

APPEARANCES:	Counsel	Solicitors
For the DPP	David Cordy	Ms A. Hogan Office of the Director of Public Prosecutions
For the Accused	Robert Thyssen

HIS HONOUR:

1John Hannis Bartels, you have pleaded guilty to:

(a)   One charge of armed robbery; and

(b)   One charge of possession of a drug of dependence, namely methyl amphetamine.

Circumstances of offending

2The circumstances of your offending are set out in the summary of prosecution opening dated 13 August 2021[1]. They are agreed facts.

[1] Exhibit A.

3You knew a girl called Tayla Wells.

4In the early hours of 18 February 2020, she contacted you on Facebook to try to get some cannabis.

5With her partner, Edward Power-Hall, she drove in her Holden Utility to Marong to meet you.

6You went to Marong with two co-offenders, Zachary Scoble and Mitchell Cahill, in Scoble’s green Ford. When you got there, you told her the drugs were to be delivered to the Queen Elizabeth Oval in Bendigo. You got into Wells’ Ute and she drove to the Queen Elizabeth Oval. You got there around 4:00 AM and waited. You made phone calls, pretending to obtain the cannabis for them.

7Around 6 am, Scoble and Cahill arrived in Scoble’s Ford. Scoble was wearing a balaclava and was armed with a tomahawk. Cahill had his face covered with a bandana and was armed with a knife. Scoble smashed the windscreen with the tomahawk and Cahill smashed another window with the knife. They yelled at Wells and Power-Hall to get out of the car. Both suffered minor cuts and abrasions from the shattered glass. When Wells tried to drive off, you pulled the handbrake on and told them to stop. Scoble and Cahill were yelling at Wells and Power-Hall to get out of the car. One of them removed the key from the ignition.

8When Wells pleaded for them not to take the car, you said “Sorry, but I have to otherwise I will get killed.” You gave Wells two cigarettes and told her not to tell the cops. You also told her, her personal items, which were in the Ute, would be left with someone for her.

9They got out of the car. Scoble and Cahill got in and you drove them to Scoble’s car. They drove, in Scoble’s Ford, to Cahill’s home at Bendigo and you drove Wells’ Ute there.

10Wells and Power-Hall walked off. A security guard at a nearby pharmacy spoke to them. He rang police.

11At 8:59 am, you sent Ms Wells an apology by a Facebook message.

12At 10:50 am, police arrested you at your home where they found a small quantity of methyl amphetamine.

13Half an hour later, police went to Cahill’s home where they found Cahill and Scoble, Wells’ Ute and Scoble’s Ford. Police found a tomahawk, a black-handled knife, a balaclava and bandana inside the Ford.

14Police arrested both of them.

15When police interviewed you, following legal advice, you exercised your right to remain silent.

16Subsequently, you volunteered yourself to police who questioned you again on 20 February 2020.

17You told them:

(a)   Tayla (Wells) and Eddie (Power-Hall) were your friends.

(b)   You met them at Marong to swap drugs.

(c)   You were with Scoble and Cahill and you all smoked some “meth” and “marijuana”.[2]

[2] Question 43.

(d)   You told them you would tried to get cannabis for them.

(e)   While you were waiting with them to get “weed”, Scoble and Cahill smashed windows.

(f)    You pulled on the handbrake and told Taylor and Eddie to get out of the car because “it’s just gonna make it worse trying to drive off”.

(g)   You jumped out of the car as well.

(h)   Scoble grabbed the ignition key.[3]

(i)    Scoble and Cahill told you to get back into the car and drive them to their car and to drop Wells’ car off at Cahill’s home.

(j)    You did and then you called your mum to pick you up and take you home.[4]

(k)   In the days beforehand, you overheard Scoble and Cahill talking about stealing Wells car but you didn’t want to do it.[5]

(l)    You drove the Ute to the Cahill’s home “scared”.[6]

(m)     You said, while you were scared, Wells and Power-Hall “would have been heaps more scared than me”.[7]

(n)   You acknowledged, rather than take the car, you “could’ve turned around and gone back to Tayla and Eddie”[8] and given back the car.[9]

(o)   You said, later that morning (around 9:00 AM),[10] you sent them an apology.[11]

(p)   You admitted, when police arrested you, you had “3 or 4 points” of “meth” in your wallet.[12]

(q)   Knowing your co-offenders would be informed, you nevertheless offered to make a confessional statement.[13]

[3] Question 111.

[4] Question 31; Question 146.

[5] Question 180.

[6] Question 201, 202 and 262.

[7] Question 258.

[8] Question 266.

[9] Question 267.

[10] Question 379.

[11] Question 295 and 325.

[12] Question 395 to 397.

[13] Question 416.

18By your guilty plea, you admit:

(a)   You knew Scoble and Cahill planned to steal Wells’ Ute.

(b)   You met Wells and directed her to the Queen Elizabeth Oval as part of the plan.

(c)   While you did not know Scoble and Cahill were armed until they smashed the car windows, you assisted in the armed robbery by preventing Wells from driving off and then driving her Ute away to be hidden.

(d)   You possessed methyl amphetamine.

Victim impact statements

19Ms Wells and Mr Power-Hall declined the opportunity to make victim impact statements.

20No doubt, as you acknowledged to police, they were terrified when Scoble and Cahill smashed the windows of the car.

Criminal record

21You have admitted a criminal record.

22In 2012, at Bendigo Children’s Court, you were released on probation for burglary and theft and, in 2014, you were released on a further period of probation for unlawful assault and damaging property. In 2016, at Geelong Magistrate’s Court, you were placed on a 12-month Community Correction Order for driving offences. In 2018, the Community Correction Order was confirmed after you had breached it. In 2019, at Bendigo Magistrate’s Court, you were convicted of criminal damage and placed on an adjourned undertaking.

Personal circumstances

23You were born in February 1966 at Bendigo. You were 24 years old when you offended.

24Your personal circumstances are set out in the psychological report of Gina Cidoni.[14]

[14] Exhibit 2.     

25You are the middle child of three boys. Your parents separated when you were 2 or 3 years old. You lived with your father and keep contact with your mother who remained in Bendigo. You went to local schools until Year 11. You completed Year 12 at Apollo Bay Secondary College. At 16 years old, you obtained your Bronze Medallion as a lifesaver. Not long after, when a man attempted suicide, you tried unsuccessfully to save him. A psychiatrist, Tanya Harkness, diagnosed you with depression and grief reaction and treated you with an antidepressant and counselling. In 2016, after  your father died,  you went to live with your mother. you abused methamphetamine to cope with your  grief and you described your life as “a downward spiral”.[15] You said you were under the influence of MDMA, methylamine and cannabis when you offended.

[15] Exhibit 2, p.3.

26When you left school, you worked at a local café and then the IGA . For 9 months prior to this offending, you were working for Hazeldene’s Poultry at Bendigo. You hope to return to that work on your release from prison. You will live with one of your brothers.

27While you have been in custody, you have commenced an engineering course and you are a peer support worker. You are prescribed methadone for your drug addiction and an antidepressant, Sertraline, for your mental health. Your mother and siblings have kept regular contact with you.

28You described prison as “a shock”.[16]

[16] Exhibit 2, p.4.

29Ms Cidoni diagnosed you with major depressive disorder, generalised anxiety disorder and substance abuse disorder. In her opinion, you need psychological intervention to manage your depression and anxiety. You also need treatment for your drug problem.

30Ms Cidoni wrote: “The offending is unprecedented, and it is unlikely that he would commit such a crime if he were acting alone. He was highly drug affected and his judgement was clearly compromised. He is very remorseful.”[17]

[17] Exhibit 2 p.6.

31She assessed your risk of reoffending as low.

Defence submissions

32Mr Thyssen[18], who appeared on your behalf, relied on the following factors in mitigation of penalty:

(a)   your guilty plea for its utilitarian value and evidence of remorse;

(b)   your remorse additionally demonstrated by:

(i)your apology to Ms Wells; and

(ii)your voluntary disclosure of your offending to police.

[18] Exhibit 1.

(c)   your very good prospects of rehabilitation.

33He submitted that I should impose upon you composite sentence incorporating a prison term equivalent to the time you have served and a Community Correction Order.

Prosecution submissions

34Mr Cordy,[19] who appeared for the Director of Public Prosecutions, submitted your offending, which involved a violent robbery of Wells’ motorcar, was serious.

[19] Exhibit A.

35He accepted Scoble and Cahill were the primary offenders and your role was less than theirs. It was also less “thought out”.

36He accepted you have a limited criminal record and your guilty plea has significant utilitarian value.

37He submitted, because of the seriousness of your offending, a sentence of imprisonment should be imposed.

38He acknowledged a Community Correction Order in combination with a term of imprisonment is within the sentencing range.

Consideration

39Armed robbery, as the maximum penalty of 25 years demonstrates, is a very serious offence.

40Ms Wells and Mr Power-Hall were homeless and living in her car.

41Knowing Scoble and Cahill planned to steal the car, you tricked Wells and Power-Hall to the car park with the suggestion cannabis could be obtained, until Scoble and Cahill arrived. When they did, you stopped Wells from driving off. After Scoble and Cahill forced Wells and her boyfriend from the car, you drove it to Cahill’s home.

42It was serious offending and general deterrence and denunciation are important sentencing considerations. A term of imprisonment must be imposed.

43I accept you did not know Scoble and Cahill were armed until they smashed the windows of the car. They were the principal offenders; your role was subordinate. They were armed; you were not. They were in disguise; you were not. Their offending was premeditated; yours less so. They took steps to avoid detection; you did not and you were inevitably caught. I was told they are awaiting trial.

44Your prior convictions are predominantly for driving offences. This is your first violent offending. I accept, on your own, you would not have committed this crime.

45There are a number of mitigating factors in your favour.

46Firstly, your guilty plea, made at the earliest opportunity has high utilitarian value, especially during the public-health pandemic, because it alleviates the current strain on the justice system.[20]

[20] Worboyes [2021] VSCA 169, [35] and [39]

47Secondly, your voluntary disclosure of your involvement to police and entering your guilty plea, demonstrate you are remorseful.

48Thirdly, you prospects of rehabilitation are very good. You have behaved yourself in custody; your reward, in effect, has been your selection to be a peer listener. I accept your time in custody has taught you a valuable lesson.

49I accept Ms Cidoni’s opinion you need treatment for your drug addiction and your mental health to assist your rehabilitation.

50Current sentencing practices demonstrate a term of imprisonment, without a community correction order, does not always follow.

51A Community Correction Order can enable the punitive and rehabilitative objectives of sentencing to be served at the same time, even in cases of very serious offending.[21]

[21] Boulton v R [2014] VSCA 342; Williams [2018] VSCA 171, [47].

52I have had you assessed for a Community Correction Order and you have been found suitable.

53Overall, I am satisfied a composite sentence of imprisonment and a Community Correction Order can achieve all sentencing objectives in your case.

54You have already spent 546 days in custody. For a relatively young man, who has not been incarcerated previously, it is significant punishment. I am also satisfied all sentencing objectives can be achieved without requiring you to serve further time in prison.

55Mr Bartels, by the sentence I impose I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.

56Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charge of armed robbery,  you are sentenced to 546 days  imprisonment in combination with a Community Correction Order.

57The Community Correction Order will commence today.

58The duration of the order is 2 years.

59In addition to the core conditions, I impose the following special conditions:

(a)   drug treatment and rehabilitation;

(b)   mental health treatment and rehabilitation;

(c)   supervision; and

(d)   judicial monitoring.

60The first episode of judicial monitoring will occur on 27 October 2021 at 9:30 AM.

61Pursuant to section 18 of the Sentencing Act 1991 (Vic), I declare you have already served your 546-day prison term by way of presentence detention.

62While there is some artificiality in the process, I declare, but for your guilty plea, I would have sentenced you to 3 years and 6 months’ imprisonment and fixed a minimum non-parole period of 2 years and 3 months.

63For the offence of possession of methylamphetamine, which was a small quantity for your personal use, you are convicted and fined $200.

64With your consent, I make the disposal orders in the terms of the draft orders filed.

-----------------