Director of Public Prosecutions v Bird
[2017] VCC 286
•15 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication | |
Case No. CR-16-02085
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN BIRD |
---
JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 March 2017 | |
CASE MAY BE CITED AS: | DPP v Bird | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 286 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Triandos | |
| For the Accused | Mr E. Murphy |
HIS HONOUR:
1
Benjamin Bird, you have pleaded guilty to one charge of robbery, one charge of kidnapping, one charge of theft and three charges of possess drug of dependence. You have also pleaded guilty to two uplifted charges of unlicensed driving. The indicted charges carry maximum penalties of
15 years, 25 years, 10 years. Insofar as possess drug of dependence are concerned, 12 months or a monetary penalty. So far as those charges are concerned I do not propose to go into detail other than the possess cannabis will be simply convicted and discharged and the others I will pass concurrent sentences on.
2 You pleaded guilty at an early reasonable opportunity. You have expressed somewhat dubious but nevertheless I accept it, remorse. And you must get the utilitarian benefit of that plea of guilty.
3 You were 26 years of age at the time of the offending and were still therefore relatively young. You do have prior convictions of some concern which reduces the capacity for parity, and in fact you have done gaol sentences previously.
4 Pursuant to section 464Z I order that you provide a saliva sample for DNA purposes. That order having been made I must advise you that should you refuse to provide such a sample the police may use reasonable force to take it from you.
5 The offending is in a couple of separate incidents for you Mr Bird. Insofar as incident one is concerned, on Wednesday, 5 April 2016 you were driving a red Hyundai. It was parked in the middle of the street with the doors open. The police were called to the scene and attended and you were found in possession of methylamphetamine and cannabis. There was also a tourniquet and a syringe found. You were apparently found under a cattle race and were in no state to be interviewed. That also gives rise to the summary charge of one of unlicensed driving.
6
The second incident which is by far the most serious involved you and a
Mr Jackson as well as eight other offenders. I have been given the details of all those co-accused. There was a Mr Fraser who was 24 with a large number of priors and he is conducting a trial.. Nicole Clarke was 28, Trista Diston 29, and Candice Rukton, 19. And each of those received a community corrections order for the very same offending in the Magistrates' Court.
Mr Jackson was a further co-offender who received a community corrections order from me just a week or so ago. Mr Atkinson had the charges withdrawn and Ms Crampton received a community corrections order and Mr White and Mr Young were dealt with in the Children's Court. Accordingly all the
co-accused have received community corrections orders for what is effectively the same offending. That is obviously other than Mr Fraser who has a significant number of prior convictions.
7 In your particular situation you do have much more significant prior convictions than the others, you have now been in custody for an extended period of time. In any event and it was not suggested to me that other than an active custodial sentence was appropriate, and accordingly I propose to do that in the end with a minimum term.
8
The offending involved a situation where you, Diston and Clarke had known Mr Sanders for a number of years. Over the previous 12 months that relationship had deteriorated because you believed he had broken into your house and stolen your children's Christmas presents. In the early evening of Monday,
13 June 2016, you, Diston and Clarke were at Diston's address in Churchill. The children were present, there was a conversation about how Sanders had wronged them in the past and how both Diston and Clarke had been ripped off over drug purchases. The three of you then decided to orchestrate a "touch up" of the victim which you agreed would occur at Diston's house and at around about 7 o'clock you called your friend Mr Jackson who was at his Morwell home with Rukton, Crampton and apparently Atkinson.
9 You asked Jackson to come to the Churchill address to help "roll", the victim for drugs and money. Jackson agreed but said his car was with Fraser and after some messing about you all ended up at Robinson Street and then drove to Churchill arriving at approximately 8,.10 pm. Both vehicles were parked in the rear yard of the address so the victim would not be alarmed by the presence of other people.
10 Upon arrival the ten of you entered Diston's bedroom via the bathroom as the bathroom was the only access point. Once inside the group planned the robbery whereby the victim was to be invited around to the house on the pretext of selling drugs to Diston. It was not actually on the pretext, it was only the payment that was the pretext. He was to be invited to the bathroom to have a cigarette and exchange the drugs, shortly after that Diston would use a code phrase, "I'm going to check on the kids" which would be the cue for all the others to come out of the bedroom and assault and rob him.
11 After the plan was made, Diston sent a text message to him asking to come around and sell her and her friend Crampton three points of ice. He agreed and drove to the address in his blue Ford arriving at approximately 9.30 pm. The victim was invited into the house by Diston and as per the plan entered the bathroom to weigh up the drugs. He was followed into the bathroom, at which point Crampton took possession of the ice. I interpolate at this stage that Sanders has never been charged with trafficking even though he clearly was and I think he should have been. He had the gall at the last hearing insofar as Jackson was concerned to be asked to give a compensation order for the taking of his mobile phone which I will describe in a moment which he is probably lucky was taken.
12 In any event Diston used the code word and you all came in. There were then various assaults, he was kicked and punched. I have read the victim impact statement, it is pretty unclear who did what to who at what stage. But in any event I accept that he was assaulted. He did receive a laceration to his right ear and a split lower lip. While that was occurring you were also accusing him of breaking into your house and stealing from you. You then demanded he empty his pockets however he refused. You then reinforced the demand for him to empty his pockets and again he refused. You then instructed the others in the bedroom to search his pockets which they did and together stole his wallet containing his driver's licence, bank cards and other personal cards in relation to his Apple iPhone and his car keys. The value of those items was approximately $700 and that gives rise to the charge of robbery and I have already made my comments about drug deals gone wrong when I sentenced the other man.
13
White then foolishly said, "Let's handcuff him and take him up bush." He was told by Diston that he deserved to die. He was taken out and having said that he had more ice at another house, he was going to be taken there. The car was full and he was put in the boot which gives rise to the charge of kidnapping. As you got to the address he got out of the boot and ran, he was then chased by Jackson and in any event he went inside and shouted out, "Get the gun, get the knives" which the group of you clearly had enough knowledge of him to believe, and you all left. You were basically unfit to be interviewed as
I understand it.
14
That is the scenario that occurred. There is a victim impact statement from
Mr Sanders, I have taken it into account. Despite the milieu in which all of this took place it still has to be regarded as serious. In your case with a criminal history such as you have got, general and specific deterrence have to play a part as well as denunciation and appropriate punishment.
15 You are the oldest of the group. You are the one with the priors and realistically it would appear to have been your idea and directed by you. As I have indicated your counsel did not suggest that anything other than an active custodial sentence was appropriate.
16 I take into account on your behalf a reference from your mother and also reports from Dr Cunningham which outlined the circumstances of your existence. Mr Cunningham says,
"In my opinion Mr Bird presents with a diagnosis of autism spectrum disorder. Mr Bird presents with indicators of childhood instability in the form of his father's alcoholism and violence, parental separation, homelessness, being raised in care and perceived sexual abuse. Mr Bird stated that his father was an alcoholic who was physically violent, suffered violence when trying to protect his mother. His parents separated when he was 12 years old. He stated he was then placed into care and eventually became homeless. He has continued to have difficulty maintaining stable accommodation. He stated that he was sexually abused between the ages of 12 and 18 and stated the alleged perpetrator was acquitted in 2012. He then had described to him a situation where a child had been stillborn and your drug use had escalated."
17 That is the unfortunate history of so many people who come before these courts but obviously I take it very much into account.
18 I accept, and I say this directly to you Mr Bird, that you have been making a real effort prior to this offending occurring to get your life in order and it is unfortunate that it came down to this.
19
The prospects of your rehabilitation are entirely up to you, the risk of you
re-offending, I would have to be guarded but I am prepared to give you the benefit of the doubt. In that way I am going to give you a minimum term despite you having done a previous sentence which gives you a greater opportunity for parole than might otherwise have been the case.
20 Accordingly on Charge 1, one month.
21 On Charge 2 as I have indicated, convicted and discharged.
22 On Charge 3, 15 months.
23 On Charge 4, 12 months.
24 On Charge 5, three months.
25 On Charge 6, one month.
26 On each of the two summary charges, one month each.
27
I direct that two months of the sentence imposed on Charge 4, one month of the sentence imposed on Charge 5, and the two months imposed on the summary matters be served cumulatively upon each other and upon the sentence imposed on Charge 3. That gives an effective head sentence of
20 months and I direct that you serve the minimum term of 10 months before becoming eligible for parole. And I direct that 185 days be reckoned as having been served under this sentence.
28 Pursuant to section 6AAA I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of 30 months with a minimum term of 18 months.
29 Any drivers licence held be cancelled and you are disqualified from obtaining another one for a period of three months.
- - -
HIS HONOUR: All make sense?
MR TRIANDOS: Yes Your Honour.
MS MURPHY: Yes.
HIS HONOUR: All right thanks for that.
MR TRIANDOS: Just in relation to the theft of motor vehicle, I think it's a mandatory cancellation of the drivers licence.
HIS HONOUR: You're dead right, it is too, Which charge was that again.
MR TRIANDOS: It's Charge No.5 Your Honour, theft of motor vehicle.
HIS HONOUR: Yes, theft of the motor vehicle, any licence to drive, can I suspend it or has it got to be cancelled?
MS MURPHY: There's no licence been held for some time Your Honour.
HIS HONOUR: No I understand that but I've still got to make the order.
MR TRIANDOS: Yes it has to be cancelled Your Honour.
HIS HONOUR: It has to be cancelled.
MR TRIANDOS: Yes.
HIS HONOUR: Any drivers licence held be cancelled and disqualified from obtaining another one for a period of three months.
MS MURPHY: Yes Your Honour.
MR TRIANDOS: As Your Honour pleases.
HIS HONOUR: Nothing else? And I will sign those - you can explain to him that it will be a gaol one so they will ask him in there and I will sign those in chambers and then we will send one to you Ms Murphy afterwards.
MS MURPHY: Thank you Your Honour.
MR TRIANDOS: As Your Honour pleases.
HIS HONOUR: All right thanks for that. He can go thanks gentlemen, I just want to talk to Mr Triandos for a second.
MS MURPHY: May I be excused?
HIS HONOUR: Yes of course you can.
- - -
0
0
0