Director of Public Prosecutions v Behrendt
[2016] VCC 690
•23 May 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00572
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL BEHRENDT |
---
JUDGE: | Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2016 | |
DATE OF SENTENCE: | 23 May 2016 | |
CASE MAY BE CITED AS: | DPP v Behrendt | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 690 | |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobabic | OPP |
| For the Accused | Ms C. Foot | VALS |
HIS HONOUR:
1 Michael Behrendt, you have pleaded guilty to one charge of armed robbery. The maximum penalty for this offence is 25 years' imprisonment.
2 I have heard a summary of the offending, and it is not my intention to repeat the whole summary. It is Exhibit A in this hearing.
3
Briefly, at 3.09 am on Friday, 8 January 2016 you entered a
7-Eleven convenience store on Ormond Road in Elwood. The victim was the sole employee on duty. You followed the victim into the store and said to him, "What’s going on mate?”. You produced a silver steel rod and held it towards him. The victim sustained a small cut to his hand when he tried to push the weapon away. You then told the victim to, “open the fucking door”, meaning the door into the cash register area. He told you to wait outside the area and he would give you the money, but you forced your way in. You demanded the victim open the till, while still holding the steel rod. After a failed attempt, the victim opened the till and you began to take cash from it. You again held the steel rod to the victim’s face. You also took cigarettes. You then left the store. The victim pushed the alarm button and called the manager of the store, who told him to call the police. Police attended and viewed CCTV footage and lifted a palm print.
4 On 11 January 2016 your legal representatives contacted the police to advise them that you wanted to arrange a time to voluntarily attend the police station. On 18 January 2016 you attended the St Kilda Police station by appointment, where you were arrested by the informant. You participated in a record of interview and made full and frank admissions. You told the police that you were under the influence of alcohol and that you did not know why you committed the offence. You said that you had a lot of guilt and shame for what you had done. You apologised for your criminal behaviour.
5 You were released on bail into the Court Integrated Services Program (CISP) on 19 January 2016 and you successfully completed the program on 6 May 2016.
6 The matter proceeded as a straight hand-up brief at a committal mention on 11 April 2016.
7
Mr Behrendt, I make this point at the outset of my sentencing remarks. You have been involved in a very serious criminal offence. The maximum penalty of 25 years is an indication of how seriously this offence is regarded. The usual sentencing order for someone charged with this offence is immediate imprisonment. In this sort of case general deterrence, just punishment and denunciation are all significant sentencing considerations. You also have relevant prior convictions. In 2008, when you were 17 years old, you were dealt with in the Children’s Court for offences including robbery and recklessly cause injury. You were released on a Youth Supervision Order. Between
November 2008 and June 2012 there were three appearances in the Magistrates’ Court for low level assault offences. All the offending involved the abuse of alcohol. In 2008 you were placed on a bond to be of good behaviour and on the other two appearances you were fined. This prior history means that specific deterrence and protection of the community are also relevant sentencing considerations.
8 There are, I accept, significant matters in mitigation in this case.
9 Your offending is at the lower end for offences of armed robbery. I note that this was unplanned and you wore no disguise.
10 I am satisfied that you are very remorseful for your offending. When you sobered up you contacted your legal representatives and arranged to surrender yourself. You made full admissions to the police. You entered an early guilty plea. Your plea of guilty has saved the victim from the trauma of giving evidence and also saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.
11 Since your release on bail you have worked hard to rehabilitate yourself. You have not offended on bail or breached bail conditions. As part of CISP, you participated in drug and alcohol counselling; accepted support from your Uncle Mark Williams, a respected Koori community member who works with young men at the Inner South Community Health Service, and you also attended for psychological counselling upon Uncle Garth Ally. Those who have worked with you agree that you would benefit from the treatment offered through the Corrections facility, Wulgunggo Ngalu. As Dr Cunningham in his report, expressed it, connecting you to your culture and elders would assist in providing you with a stable prosocial sense of self.
12 You have come from a background of great disadvantage. Your mother, a Wiradjuri woman, and your father separated when you were seven years old. Your mother passed away when you were eight years old and you went to live with your father. He is not an Aboriginal man. You suffered emotional and physical abuse from your stepmother and by the age of 12 or 13 your father had moved to America and you were left to live your teenage years without any stable support or accommodation. Your education effectively ceased at the end of Year 7. Given this background it is not surprising to read that you have had problems with the abuse of drugs and alcohol from your early teenage years. In addition, your experience of abuse and neglect have left a legacy of psychological issues that need to be addressed. Your disadvantaged circumstances do moderate the weight to be given to specific and general deterrence.
13 You are still a relatively young man and a court puts greater weight on the rehabilitation of the younger offender. For someone from such a difficult background, your prior criminal history is relatively modest. I note that you have had periods in the past where you have managed to work and over the last four years there have been periods where you have remained drug free. Unfortunately, there have been periods of relapse and that has to stop. However, you are now endeavouring to engage with your culture and your extended family and this has the potential to assist you with your strongly expressed desire to change your behaviour.
14 You consented to having the charge heard in the Koori Court. In doing so you agreed to participate in a process that involves appearing before Elders from the Koori community. The process is described as a “sentencing conversation.” It was obvious to me from the way you participated in the process, that you were indeed ashamed of what you had done; that you were very sorry for what you had done; that you have good insight into the problems in your life that you need to address; and that you are willing to use support to help you change your life. You were supported at the Koori Court hearing by your uncle and your cousin. Your uncle spoke in a most moving way about your life and his hopes for your future. He is a strong support for you and I accept that you want to work with him to reconnect in a meaningful way with your heritage. I give you credit for your participation in the Koori Court process. The Court of Appeal has recognised that the "sentencing conversation" in the Koori Court is designed to further the reformation of an Aboriginal offender.[1] Participation in this process is not easy. Indeed it is challenging and your active participation in the process is a factor that mitigates punishment.
[1] See The Queen v Steelie Morgan [2010] VSCA 14 at page 11.
15 Mr Behrendt, I am satisfied that you are a young man with real potential to rehabilitate.
16 I am persuaded because of the matters that I have outlined in mitigation of penalty, that the most appropriate order in this case is a Community Corrections Order.
17
You are convicted and ordered to be released upon entering into a Community Corrections Order for a period of two years. You are required to report to the Moorabbin Community Corrections Centre before 4 pm on Wednesday,
25 May. The order will have the following special conditions attached: you are to be under supervision for the period of the order; you are to perform 250 hours of community work; you are to be assessed and undergo treatment for drug abuse or dependency and you are to be assessed and undergo treatment for alcohol abuse and dependency; you are to undergo any mental health assessment and treatment; you are to participate in programs to reduce reoffending; and you are to be assessed for your suitability for, and if suitable, to participate in the Wulgunggo Ngalu Learning Place program.
18 Mr Behrendt, if you had pleaded not guilty and been found guilty after a trial I would have sentenced you to a term of imprisonment of two years and set a minimum term before you would be eligible for release on parole of 15 months.
19 I also order you to undergo a forensic procedure for the taking of what we call a buccal swab, which is a mouth swab. I do so for the following reasons: the seriousness of the offending; your prior criminal history; the order is in the public interest and; as I understand it, the order is not opposed. You must attend on the Officer in charge of the St Kilda police station within the next 56 days to undergo the procedure. If you do not consent to the taking of the sample the police may obtain a blood test and use reasonable force to obtain the sample.
20 HIS HONOUR: Mr Behrendt, you can now step down and take a seat behind your counsel. Now, Mr Behrendt, you understand what has happened?
21 ACCUSED: Yes.
22 HIS HONOUR: All right. So one thing that I have got to emphasise is that the Community Corrections Order means that there can be no further offending and also if you do not comply with any of the conditions of the order, Community Corrections will breach you and bring you back before me. So I have given you this opportunity to remain within the community and to continue your rehabilitation. Do not let yourself down by not doing what you are required to do, all right?
23 ACCUSED: Yes, Your Honour.
24 HIS HONOUR: Yes, all right, thanks.
- - -