Director of Public Prosecutions v Battye

[2019] VCC 1707

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00238

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM BATTYE

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	01 July 2019
DATE OF SENTENCE:	18 October 2019
CASE MAY BE CITED AS:	DPP v Battye
MEDIUM NEUTRAL CITATION:	[2019] VCC 1707

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Ms E. Millar

HIS HONOUR: 

1William Battye, you have pleaded guilty to one count of attempted armed robbery and one count on recklessly cause injury. 

2The circumstances of your offending are set out in the summary of prosecution opening for plea. They are agreed facts. 

3On 2 November 2018, at about 5.10 pm, you entered the Long Gully post office with a metal pole concealed inside your pants.  Your offending was captured on closed-circuit TV and I have viewed the recording a number of times. 

4The manager, Jhi Hong Huang, was sitting behind the counter.  There were only the two of you in the shop when you entered.  As you walked towards the counter, you pulled out a metal pole from your tracksuit pants and demanded money.  You banged the pole on the counter and attempted to jump over it.  As you did, Mr Huang pushed you back and he opened the door which separated the counter from the shop.  When he came through the doorway toward you, you struck him to the upper body with the pole.  He grabbed one end of the pole to try to disarm you.  Each of you held an end of it trying to get it from the other.  As the two of you struggled with each, with your free hand, you grabbed his neck and pushed him away from you into shelving.

5He lost balance and fell to the ground near the front door.  You put your knee on his chest to keep him down and you punched him once to his face.  Having subdued him, you dropped the pole and ran out the front door.  Mr Huang picked up the pole and ran out of the shop after you.  He went next door to get help and a shop worker called 000.  Police and ambulance arrived. 

6In the course of your attack upon, Mr Huang had suffered bruising to his nose, right eye, neck, chest, upper abdomen, left hand, right arm, left shoulder and back as well as swelling to the left side of his head and a laceration to his lower lip.

7He was taken to hospital and discharged that night but returned next day with dizziness and weakness and was held overnight.  I have seen photographs of the pole and his injuries. 

8On 15 November at Kangaroo Flat, when police saw you, they told you you were under arrest.  Initially you ran a short distance then stopped and surrendered yourself into police custody. 

9You were placed in the police cells at Bendigo police station.  You told the informant you had taken ice and were suicidal.  A doctor examined you and found you unfit to be interviewed.  You were held overnight and the next day you were found fit for interview in the presence of an independent person.

10At interview you admitted your offending.  You told police your drug dealer had threatened violence against your family and you unless you repaid an accumulated $5,000 drug debt.  You said on the day of your offending you had used alcohol and methyamphetamine and, as you were walking to your uncle's house, you saw a metal pole on the ground.  You decided you would use it to rob the post office where you had been a customer for about four years.  You described how you walked into the post office, pulled the pole from your pants and demanded money from the manager.  You said you hit him to the head with the pole, pinned him to the ground and punched him to the face.

11You acknowledged that your victim would have been petrified and scared for his life.  You said it was one of the biggest, stupidest decisions you had ever made. 

12Mr Huang's victim impact statement was read to the court.  He rested at home for a week after you assaulted him.  He is fearful he will be attacked again.  At work, he is anxious and tired and, at home, impatient and irritated.  He works and lives to look after his wife and children.  He has needed to seek counselling to help him deal with the harm you caused him. 

13Your attack on Mr Huang, although brief, was violent and frightening.  You were in his shop for 30 seconds. 

14You have been remanded in custody since your arrest on 15 November 2018.

15You indicated your intention to plead guilty at the earliest opportunity. 

16You have admitted a criminal history. 

17You have Children's Court convictions dating to 2009.  In 2010 you were ordered to be detained in a youth justice centre for six months on charges of criminal damage, theft and burglary. 

18You also have Magistrates' Court convictions. Relevantly, in 2011, you are sentenced to one month and 14 days imprisonment for theft and recklessly cause injury. In 2016, on charges of robbery, criminal damage and recklessly cause injury, you are sentenced to an aggregate term of 20 months imprisonment with a non-parole period of 6 months. On 19 February 2018, on charges of aggravated burglary, burglary and theft, and driving offences, you were released on a community correction order, with a justice plan condition, for 18 months. On 31 May 2019, you are sentenced to 14 days imprisonment for theft and breach of the community correction order.

19I turn now to your personal circumstances.  You were born on 7 October 1992.  You were 26 years old when you offended and you are now 27. 

20The prosecutor, Mr Cordy, provided the court with a number of reports, which a magistrate had obtained in February 2018, when sentencing you to the community correction order.  They were a Department of Justice and Regulation extended presentence assessment and outcome report, dated 1 February 2018, a DHHS client overview report, dated 13 February 2018 and DHHS justice plan dated 13 February 2018.

21They helpfully set out your personal history.  You had an extremely disadvantaged upbringing.  You were born in Bendigo.  You grew up in a household where supervision and role modelling was poor due to family loss, grief and chronic illness.  Your father passed away in 1996, when you were four years old, and your mother died in January 2006, when you were 13 years old.  You lived with your mother, who had chronic health problems, until she died, and your grandmother.  When you were eight years old you started spending time with older teenagers and running away from home.

22Your first involvement with child protection was in 2004 when you were 11 years old.  You had struggled at school.  When you were eight years old you were declared eligible under the Disability Act 2006 for disability services. You have had some limited support from disability client services between 2000 and 2013. On 11 May 2004, when you were 11, you were psychologically assessed within the moderate range of intellectual disability. The assessing psychologist, Kim Homburg, reported your overall reasoning abilities were significantly below those of others your age.

23Mr Homburg also reported your daily living skills and socialisation skills were well below that of others in your age group and you had difficulty with words and sentences and absorbing abstract concepts.  You went to a special education school from grade six to seven but your attendance was poor.  You then led a transient lifestyle, which included periods of Youth Justice detention and prison, until you were 19 years old when you met your current partner.  You have two children age four and five with her. 

24Significantly, had not offended between 2011 and 2016 and you attributed this to the support of your partner.  In February 2016, DHHS became involved with your children when your partner and you were both using drugs.  For a period of time you had weekly access visits to your children.  You have a brother who was 13 years older than you.  You have had little contact with him in your adult life.  You have never worked except for one day, when you were 17 years old, and that was at a fish and chip shop. I was told you were arrested there because you failed to tell your juvenile parole officer you had moved there for work.

25You receive a disability pension and NDIS payments. 

26Dr Aaron Cunningham, psychologist assessed you on 12 March 2019.  Your responses to intellectual functioning testing were consistent with an intellectual disability.  You told him you feel sorry for the victim and think about him every day.  In Dr Cunningham's opinion, you have general impairments in thinking and reasoning, relative to people your age, and compromised problem solving abilities. In that context, you offended to try to repay a drug debt for which you had had your life threatened. In his view, your intellectual disability would have impaired your judgment.

27His opinions, if I accept them, would enliven Verdins principles.  To assist me in that regard, I ordered a presentence report.  The authors, Dr Bonny Albreckt and Dr Minh Tam interviewed you on 16 August 2019.  They had access to your Forensicare and public mental health fires.  Those records show you had multiple contacts with the Crisis Assessment Team at Bendigo hospital, when you were 14 and 18 years old, when you were 10 years old, you were diagnosed with post-traumatic stress disorder and, when you were 14 years old, you were diagnosed with an adjustment disorder.

28In relation to your offending, you told Dr Albreckt and Dr Tam you needed money to pay a drug debt accumulated from chronic ice use and you had been threatened for payment.  You said you had used alcohol, ice and cannabis before you offended.  You told them you found the pole on the street and that you intended to use it to intimidate and not to harm but the events did not work out the way you intended.  You said you hit the post officer manager with the pole to defend yourself and you said you felt frightened at the time.

29You acknowledge that the victim would have felt scared and could have died.  You expressed remorse and said your offending was stupid.  You said you should not have done it.  You told the Forensicare doctors that prison feels like home.  There you feel less paranoid and anxious.  You enjoy your daily horticultural work, six hours.  You go to the gym and you have undertaken the programs offered you to date.  You also said you need to find a way out of your criminal lifestyle and you express a willingness to accept treatment. 

30In the opinion of Dr Albreckt and Dr Tam your difficult and disrupted upbringing adversely affected your emotional and educational development, perhaps making you more vulnerable to associating with antisocial peers and engaging in illicit drug use as a means of coping with the loss of your caregivers. In their view, your intellectual disability may have significantly challenged your capacity to think through a problem and execute prosocial solutions and to make appropriate social judgments as a young adult and, as well, your modelling of drug use by an uncle, cousin, friends and your partner may have further disposed you to engage in similar drug-using behaviours which, in turn, is likely to be exacerbated by your unresolved grief.

31They opined your intellectual difficulties likely impacted your limited educational and vocational attainments which could further have predisposed you to engage in antisocial behaviour, in this case, to try to repay drug debt.  Additionally, the presence of drug intoxication on the background of deficits in your intellectual functioning, is likely to have exacerbated your impulsivity, ability to regulate your fear from threats and to develop and execute a prosocial solution to the threat you perceived you faced.

32They assessed you as a high risk of engaging in violent reoffending, most likely to occur in the context of ice intoxication, a sense of urgency from some threat, and impaired judgment related to your intellectual disability.  They recommend for you drug and alcohol counselling, grief counselling, programs to address your violent offending and intensive case management when you are released into the community to monitor your mental state and drug use and to assist you with work and stable accommodation.

33Ms Millar, who appeared on your behalf in written and oral submissions relied, in mitigation of penalty, on your plea of guilty for its utilitarian value, acceptance of responsibility for your actions, and remorse, also evidenced by your cooperation with police and the regret you expressed to police and the psychologist. 

34She submitted your offending falls at the lower end of the range of seriousness, taking into account you were alone, your offending was of very short duration and spontaneous, rather than premeditated and planned, and unsophisticated in that you did not disguise yourself, the victim knew you, and you left the incriminating weapon behind.

35She also submitted you only hit the victim with the pole defensively, that is to get away from him when he came toward you. 

36She submitted because of your intellectual disability, you have a mental impairment which engages Verdins principles one to four.  She also submitted that you have insight into your offending, you want to remain drug free, you enjoy your work in gaol and want to work when you are released, and that you did not offend for a five-year period, are all indicators that you have meaningful prospects of rehabilitation. 

37She submitted I should impose a sentence of imprisonment equivalent to the time you have served in remand custody, combined with a community correction order with a justice plan to address the risk factors identified by the Forensicare doctors. 

38Mr Cordy, who appeared for the prosecution, submitted your offending was objectively seriousness. He described it as a nasty, violent attack on a vulnerable victim who was working alone.  He submitted I should find you struck the victim with the pole not defensively but to prevent him from fleeing.  He accepted because of your intellectual disability, your moral culpability and the need for general deterrence should be moderated.

39He submitted specific deterrence was nonetheless a relevant sentencing factor because you have relevant prior convictions, including a conviction for robbery and recklessly cause injury in 2011 when you were sentenced to 20 months' imprisonment, and, in February 2018, when a magistrate had released you on a community correction order for aggravated burglary and other offences which you soon breached, albeit by shop theft, in May 2018. More, despite the obligations of your community correction order, you continued to abuse drugs which led to this offending.

40Mr Cordy submitted the appropriate sentence in your case is a term of imprisonment with a non-parole release period fixed. 

41Any armed robbery offence or attempt is inherently serious.  As I said, I have watched the CCTV footage a number of times and it shows that you were the initial aggressor.  When you approached the counter, you removed the pole from your tracksuit pants, you banged it on the counter and you attempted to climb over the counter to get where the cash will have been kept.  When you menaced Mr Huang, he confronted you as he was entitled to do, to try to disarm you and in the course of that struggle, you hit him with the pole and tried to push him away.

42However, when he went to the ground, and you had subdued him with your knee, you dropped the pole and punched him to the face before you fled.  I accept that after Mr Huang resisted your attempt to rob him, you, in the struggle which followed, were trying to get away from him and, in the heat of the moment, you punched him when you restrained him with your knee.  Taking into account the circumstances of your offending and its very short duration, I find your crimes fall at the lower end of the range of seriousness for the crimes of the type.

43I accept your early plea of guilty has high utilitarian value and is evidence of your acceptance of responsibility and remorse.  I accept you are genuinely remorseful and motivated not to reoffend and I accept, because of your intellectual disability and your disadvantaged background, your moral culpability and the need for general deterrence are reduced. 

44When I indicated, taking into account those matters and the Forensicare recommendations, which focused on your treatment in the community, I would have you assessed for a community correction order, you told me you expect to be accepted for rehabilitative programs when you are a sentenced prisoner and you believe your rehabilitation would be best served by a term of imprisonment followed by a parole supervision.

45You said, based on your previous experience, you fear you will not be able to comply with the terms of a community correction order. 

46I gave you an opportunity to speak with Ms Millar and, following, she confirmed what you had told me and submitted I ought impose a term of imprisonment with a longer than usual non-parole period. 

47Mr Cordy agreed it was open to making of such an order in the circumstances of your case. 

48A community correction order would not be easy for you.  You quickly breached the order made in 2018 and, with time to reflect in gaol, where you have been drug-free and working, I hope you will be in a positive state of mind to take advantage of parole supervision in the community if you are afforded the opportunity. 

49Please stand, Mr Battye.

50By the sentence I impose, I must denounce your conduct, I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to your rehabilitation. 

51Taking into account the circumstances of your offending and its effects, 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, I sentence you as follows: 

52On the charge of attempted armed robbery, you are sentenced to a period of two years, eight months' imprisonment.  On the charge of recklessly cause injury, you are sentenced to a period of two months' imprisonment and I order that one month of that sentence be served cumulatively on the sentence I have imposed on Charge 1.  Your total effective sentence is two years, nine months' imprisonment.  To mitigate your punishment and to give you the opportunity to continue your rehabilitation in the community within the near future, I fix a minimum non-parole release period of one year and six months.

53I declare you have already served 323 days of your sentence by way of presentence detention and, pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty, I would have imposed a total effective sentence of three years, nine months' imprisonment and fixed a minimum non-parole period of two years and three months.

54And, finally, I make an order for the forfeiture and disposal of a metal pole, a grey backpack and a green T-shirt.  Please be seated, Mr Battye.

55Mr Cordy, are there any matters arising out of that?

56MR CORDY:  No, Your Honour.

57HIS HONOUR:  Thank you.  Ms Millar?

58MS MILLAR:  No, Your Honour.

59HIS HONOUR:  All right, thank you both for your assistance in this case.  Please remove Mr Battye.

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