Director of Public Prosecutions v Baxter

[2016] VCC 178

Pages 1 - 10   IN THE COUNTY COURT OF VICTORIA

Revised (Not) Restricted Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 15-02211

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN BAXTER

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	26 February 2016
CASE MAY BE CITED AS:	DPP v Baxter
MEDIUM NEUTRAL CITATION:	[2016] VCC 178

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hughan
For the Accused	Mr J. Sullivan

HIS HONOUR: 

1Adrian Albert Baxter, you have pleaded guilty on indictment No.1 to one charge of armed robbery, five charges of burglary and ten charges of theft.  In relation to that, you have also pleaded guilty to two uplifted matters of failure to produce a licence and failure to stop.  Each of those carries a monetary penalty.  Armed robbery carries 25 years, burglary ten years and theft ten years.

2On a further indictment of theft you have also pleaded guilty and guilty to one uplifted charge of drive whilst under the influence of a drug.  That also carries a monetary penalty.

3In all these circumstances, because of the sentence I am going to impose upon you, I seems to me to be gratuitous to impose any additional penalty for those matters.  Accordingly on those three uplifted matters on each you are convicted and discharged and on the drive with a drug any licence to hold a motor vehicle is cancelled for a period of three months.

4Insofar as the theft on the second indictment is concerned, that is a drive-off involving 25 dollars' worth of petrol at Cann River and accordingly on that charge I simply give you seven days and direct that it be served concurrently with the sentence that I am going to impose on the first indictment.

5You pleaded guilty at the earliest reasonable opportunity and made extensive admissions to police.  You are now 27 years of age.  Your prior history is not as bad as it first appears because there have been appeals involved.  You essentially have charges from 2009 of stealing and threats; you then have further charges of threats to kill from March 2014 which involved DHS and I am aware of the circumstances of that.  You were given then 15 months in the Magistrates' Court.  The matter was appealed and you came before me on 22 July 2014 and I set aside the Magistrates' Court's orders, sentenced you to a period of 152 days and then imposed a community corrections order for approximately six months.

6After the gaol period that order was successfully completed by yourself, as I understand it because you were able to reside with your mother.  Unfortunately I asked that you be sent to Wunganga Ngarlu, but that did not take place.  I understand that after that period of time had expired you were essentially homeless and were living in a car.  You have lost contact with a lot of your relatives. Your mother is not well.  I accept on the material before me, indeed on the Crown summary, that during the period of this offending you were addicted to ice and were being given ice by others and then put in situations where you had to commit crimes to repay it.

7That puts it into a context, though clearly it does not excuse it.  It remains obviously serious offending and I will go through the detail of it in a moment.

8You must obviously get the utilitarian benefit of your plea of guilty.  The matter proceeded again in Koori Court with the elders and I accept that your remorse for your offending is profound indeed.  I have no doubt that you had empathy for the victims of these crimes and in, I might say, a very powerful example of Koori Court the elders and Ms Taylor from the Crown brought home very much to you why people get locked up for this sort of offending.  It is not just because of what happens on a community disposition but because of the effect on the victims.  I am sure that you now understand that.

9That remorse and that acceptance and that preparedness to sit there and be berated, if it is not an unfair word, by the elders shows me that you have a genuine desire to rehabilitate.  The risk of you re-offending is in the end going to be up to you as long as there are appropriate protections put in place via a community corrections order.  Koori Court does not get you a lesser sentence, but often gives a judge much greater confidence in the remorse level and the determination at least to turn one's life around.

10The summaries of the offending I will do I brief.  There are no victim impact statements.  Before I start, obviously a significant gaol sentence is inevitable and, as I indicated, a sentence which will be at the higher end of custody available before a CCO can commence.  I will deal with that again shortly.

11In the scenario that I have described of you being homeless and dependent upon ice, on 8 July 2015 you went into the United service station in Main Street in Bairnsdale.  You had a balaclava and a hooded jumper and you were brandishing a large knife.  You produced the knife demanding money.  You told the man to put the money in the bag.  Mr Aziz opened the till and gave you $350 cash, which you put into a black pillow case.  You then ran from the store and hid in the yard of a relative's house in nearby Nicholson Street until police ceased searching the area.  The cash was not recovered.

12You told police that you were asked to commit the crime by an associate, but you would not name the person.  I accept that that in fact was the case and I accept that you now fully understand not only the dishonesty of it but the terror that a person on the other end of such a crime almost invariably suffers.  That is Charge 1 of armed robbery.

13Charge 2 and 3 are burglary and theft, which occurred in the same situation.  You went to an unoccupied farm outside of Bairnsdale.  Machete implements were found.  A locked bay in a shed was opened.  Bolt cutters and crowbars were then used to force entry into a locked shipping container and a locked gun safe.  The two of you removed a number of rifles as well as ammunition, a chainsaw, two pairs of bolt cutters and a chisel.  The total value was approximately $5,000.  Most that stolen property has not been recovered. 

14As Auntie Di and Uncle Lloyd pointed out to you very clearly during the sentencing conversation, whatever your personal circumstances might be about having to recover debts to pay for ice, putting guns of that nature into the community in this day and age is a very dangerous thing to do.  As Uncle said to you, if someone gets shot with one of those you should feel responsible for it.  But in any event, a couple of the guns were recovered, as I understand it, but it remains a serious crime.  You admitted that crime.

15Charge 4 of theft was Elders in Bairnsdale.  You took a blue Nissan utility with the keys that were already in the ignition and you drove it away.  You abandoned it.

16Charge 5 related to you being on the summary matter of failing to produce a licence.  Police arrested you and you took off.  They subsequently found packaging for items that were in the vehicle that you were in and you were identified off fingerprints.  That gave rise to a charge of theft once the materials had been identified.

17Charges 6 and 7 of burglary and theft, Bairnsdale Bookstore.  You got in at night, took a backpack, were in there overnight and when the owner came you took off.  You were again identified from fingerprints and again, as you did with most of these when interviewed by police in late September 2015, you admitted.

18Charge 8 and 9 of burglary, again a private residence, entered an unlocked shed and you stole a number of power tools and the like to the value of approximately $8,000, again identified from fingerprints, again admitted it to the police.  Some of that material was recovered.

19Charges 10 and 11 of burglary, you went into the Gunai Kurnai Co-operative in Macleod Street through an unlocked window, found the Co-operative's vehicles, the keys to them and took a Toyota LandCruiser.  You drove that out by ramming the front gates with the vehicle's bull bar.  You drove to another location in Bairnsdale where you hid it and removed the stickers which identified it as belonging to the co-op.

20Charge 12 of theft was taking number plates off a Department of Environment and Primary Industries vehicle and putting them on a stolen vehicle.  Summary Charge 17 was you failing to stop when police endeavoured to pull you over; I do not need to go into that in any detail.

21Charge 13 of theft. You stopped at the Billabong Roadhouse and filled up with $150 worth of diesel and just driving off without paying.  Getting us into September, on 23 September, you located a silver vehicle parked in Macleod Street, Bairnsdale.  You took the vehicle and drove to see a relative and you caused mechanical damage to it, but the vehicle was recovered.

22On 24 September at 5 o'clock in the morning you again entered the Gunai Kurnai Co-operative building on Macleod Street and you started another vehicle which was unlocked.  You unsuccessfully rammed the gates of the premises and the vehicle had to be bogged and abandoned.  You said that you did not start the vehicle and attempt to ram the gates and your version of events cannot really be disproved, so that is why that charge is as such.

23Insofar as those crimes and the other thefts of the vehicle from the Gunai Kurnai Co-operative, the elders made it very clear to you that they regarded a Koori stealing from other Kooris - as Uncle Lloyd pointed out to you, they are limited resources and by you destroying property of that co-operative you are hurting your brothers.

24Charge 16 of theft just simply is shoplifting in Bairnsdale.  When interviewed, as I have said, you have admitted most of this, what you could remember at least, and were clearly cooperative and I accept that you have from the outset indicated remorse and accepted responsibility.  I take all those matters into consideration.

25As I said, there are no victim impact statements, but I am satisfied that you do have now appropriate victim empathy and a great deal of shame, particularly in regard to the burglaries and the thefts on the co-op. 

26In terms of matters personal to you, I have had you assessed for a community corrections order.  You have been accepted after obviously your extensive period in gaol.  That community corrections order will have drug abuse - I do not see that alcohol abuse is a problem - mental health assessment and the offence-specific programs, which will be Wunganga Ngarlu.  This morning we have had a good conversation between yourself and myself and the others and Auntie Di about how you should look forward to these opportunities that are going to be available to you upon your ultimate release. 

27It is really a matter for you, Mr Baxter, but you are clearly an intelligent young man and there is no reason why you should not be able, at the conclusion of what will be obviously a significant gaol term - you can turn your life around.  You are still only 27 and have a lot of life in front of you.

28The matters personal are so common in the Koori Court.  As I said, you participated well in Koori Court and it takes a lot of courage to sit there and be confronted by your elders and make eye contact and accept the shame.  You did that.  There was a report of Mr Parker, a psychologist, as I understand it, which I will go through in a moment.  It is obvious that you have lived your life disassociated from family with very few supports.

29You have had a relationship that went wrong.  There were two children of that relationship.  When you got out of gaol after the sentence that I had imposed previously, the situation was that your partner had found somebody else and had gone to Delegete with the children.  There has been, other than a telephone call, as I understand it, no direct contact with the children since then.  That I accept it had been a matter of real trauma and upset to you and will continue to do so, hopefully that in the long term you will be able, if you can stay well and stay clean - to be able to get a proper relationship with your children.

30As I have indicated this offending occurred after the last CCO and I have been through the detail of that. 

31Mr Parker's report from just a few weeks ago goes through your history and I do not know that I need to go in any detail.  He describes that you have two children, that you were brought up in Bairnsdale, that you are the second eldest.  Your parents separated when you were young and you lived with your father until grade 5.  You then went with your mother travelling around Australia and lived in various places.  You went to Perth, Adelaide as well as Darwin.

32At 17 you returned to Bairnsdale and lived with your grandmother before moving out when you were with a partner when you were about 18.  It is with that partner that you have the children and the disappointment and upset that I have already described.

33You left school in year 8 and apparently were diagnosed with an attention deficit disorder and you took medication until you were in year 8.  Fortunately for you, as I said, you are obviously intelligent.  You have no difficulty in reading and writing and you have been able to obtain certificates in using a chainsaw, traffic management, driving an excavator and first aid.

34You told Mr Parker and indeed discussed it during the course of the Koori Court hearing that you have a real interest in reptile handling and ultimately would like to take a course in such and then be able to have a business as a snake catcher.  That is a laudable occupation and you should keep the determination that that is what you would like to do.  You have worked for periods of time including a six-month contract as a firefighter for DSE. 

35I am not going to go through the previous offending; we know what that was all about.  You used marijuana from an age of 14 and 16 onwards began the use the amphetamine.  You are attending an Narcotics Anonymous program in prison and that is good.  You are also looking forward to doing a Koori drug and alcohol problem.  There will also be one attached to the CCO.

36You are in pretty good health.  You do have poor mental health and you have been diagnosed as having depressive symptoms which have been at times severed but which have certainly been ongoing.  You were seeing, prior to incarceration, a counsellor in Bairnsdale to address these serious matters.

37In conclusion Mr Parker says that you have kept very little out of all this criminality for yourself.  You do have a mood disorder and you have had it since you were a teenager.  You have tried to mask it through drugs.  That is an extremely unfortunate situation but one that is not uncommon in this jurisdiction in which we now sit. 

38I think as I said the prospects for your rehabilitation - I accept that you are determined, that you are intelligent - if you can stay off the drugs then you should do pretty well.  The risk of you re-offending will depend upon that and that can only be judged in a significant period of time that I have endeavoured to put into place, as we discussed with the elders and your counsel and the prosecutor, a way in which you can be ultimately released from prison into a system of supports and supports which will give you real encouragement.

39However, they are serious offences, they must carry a significant gaol term.  General deterrence clearly has to play a part.  Specific deterrence for you may or may not be of significance, but there must also be denunciation of people trying to do their job, being robbed and an appropriate punishment. 

40Partially because your criminal history and partially because of the seriousness of the armed robbery in particular and also the burglary involving the guns, I have decided in the ultimate on that indictment you should be sentenced to an aggregate period of imprisonment of 23 months.  Because of the rules about minimum terms, of the 150 days pre-sentence detention I will only declare 120 days of it.  That means that I have effectively in real terms given you a minimum term of two years.  That is my intention.

41So I will declare 120 days as having been served.  If you agree, the community corrections order will commence upon your release.  It will be with conviction, will go for a period of two years and will have the conditions that I referred to earlier. 

42I do not think there were any other orders, were there?

43MR SULLIVAN:  Your Honour, I ‑ ‑ ‑

44HIS HONOUR:  If I had, I would have made them on the spot.

45MR HUGHAN:  There might have been a disposal order.  I forget now, Your Honour.

46HIS HONOUR:  I don't think so because I think it was all - no, I don't think there was.  It can be made later if need be.  There's no - I'm not going to hold it all up.

47MR HUGHAN:  I don't usually get too excited about these. 

48HIS HONOUR:  No.

49MR HUGHAN:  Your Honour knows I don't know much about this, but I did think that there were motor vehicle theft charges.  Did Your Honour announce the ‑ ‑ ‑

50HIS HONOUR:  Yes.

51MR HUGHAN:  ‑ ‑ ‑ licence orders?

52HIS HONOUR:  No, thank you.  Thank you for that.  I had a note of that.  On the theft of motor vehicle charges, disqualified from holding a licence and disqualified for an aggregate period of six months.  Yes, thanks for that, Mr Hughan. 

53What will we do for a Corrections place to go to?  I mean it's going to be totally up in the air, isn't it?

54MR SULLIVAN:  Yes.

55HIS HONOUR:  Perhaps ‑ ‑ ‑

56MR SULLIVAN:  Well, nominally we can make it out of Morwell or Bairnsdale.

57HIS HONOUR:  I don't know what he'll get.

58MR SULLIVAN:  Sale.  He's going to Fulham.

59HIS HONOUR:  He'll probably go to Fulham.

60MR SULLIVAN:  Probably make it Sale.

61HIS HONOUR:  We'll make it Sale; if there's a problem we can always ‑ ‑ ‑

62MR SULLIVAN:  They can transfer it to another place.

63HIS HONOUR:  We can transfer it, yes, if need be.  Yes, that's a good idea. 

64(At this stage the court proceeded with another matter.)

65All right, all done.  Yes, thanks, Mr Sullivan.

66MR SULLIVAN:  Thank you, Your Honour.

67HIS HONOUR:  All right.  Stick with it, Adrian. 

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