Director of Public Prosecutions v Blair
[2022] VCC 491
•8 April 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
Case No CR-21-01617
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARLON BLAIR |
---
JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 March 222 |
DATE OF SENTENCE: | 8 April 2022 |
CASE MAY BE CITED AS: | DPP v Blair |
MEDIUM NEUTRAL CITATION: | [2022] VCC 491 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW SENTENCE
Catchwords: Koori Court Jurisdiction – Aboriginal offender – Armed robbery – Threat to inflict serious injury – recklessly causing injury – Plea of guilty – Youth – Progress on bail
Legislation Cited: Sentencing Act 1990
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571
Sentence: 2-year Community Corrections Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J McCarthy | Office of Public Prosecutions |
For Accused | Mr J. Murphy | Gallant Law |
HIS HONOUR:
1Marlon Blair, you have pleaded guilty in the Koori Court before me to a charge of armed robbery, a charge of threat to inflict serious injury, and a charge of recklessly causing injury. The maximum penalty for armed robbery is 25 years' imprisonment. The maximum penalty for making threat to inflict serious injury is five years' imprisonment. The maximum penalty for recklessly causing injury is five years' imprisonment.
Circumstances of Offending
2The facts of the matter are clearly set out in Exhibit A, which is the prosecution opening, for plea purposes, and Exhibit A forms part of these reasons for sentence. During the opening, video footage shot on a phone that was the subject of the robbery was played in open court, and I viewed that footage.
3I do not propose to summarise the circumstances of the offending in detail, save to say these matters. You were 18 at the time and living in Reservoir. Your victims were 18 and 17. One of them may have been known to you, or at least, you were known to her. On Wednesday 3 March at around 11:15 in the evening, your victims were at W R Ruthven Reserve, Preston. You and your co-offender entered the park and approached your victims.
4There was initial discussion around a cigarette and asking for directions, at which point you produced a knife and pointed it at your victims. The knife was approximately 30 centimetres in length, including the handle. Your co-offender was holding a thin plank of wood. You said in a loud voice; 'What I'm going to need you to do is give me everything you've got - phone, wallet, before I put this knife through your neck.'
5Your female victim put her phone down on the step and held her hands up in the air. You told her, 'I'm going to fucking stab you.' Telling her you were going to stab her throat and chest, whilst daring her to, 'Try to fucking scream.' That forms the basis of Charge 2, making threat to inflict serious injury. Your co-offender was also making demands, asking her what she had and your female victim was saying she didn't have anything else. Your co-offender took the knife from you and held it to your male victim's neck saying, 'We're not leaving until we get money.'
6You took the knife back and held it to your female victim's neck saying that, 'I swear to fucking God if you don't shut up, I'm going to put this through your neck.' You took your male victim's iPhone and demanded that he reset it. Demands were also made of him to transfer $500 via mobile banking.
7Your co-offender struck your male victim over the top of the head with a thin plank of wood then dropped it and took the knife back from you and held it in front of your male victim's face and brushed the blood against his face and throat. He was told to strip down to his underwear. You used your co-offender's phone to video what was happening. Your co-offender was making comments to your male victim such as, 'Why are your hands up? Face me like a man.'
8Once he was undressed, your co-offender rubbed the knife against his body. He then gave the knife to you and your co-offender punched your male victim's face and head a number of times. You also punched him. He fell over, curling himself into a foetal position. You continued hitting him. It is alleged in the opening you were stomping on him and taking turns to kick his head, which was the basis of the reckless causing injury charge, and then stopped filming and left the area. Police subsequently attended. At one point your female victim received a message from your co-offender's phone stating, 'I would like just to bring the phone back and have a chat. Tell the stupid cops I can see them in the same park. Losers.' And, 'Hey, why get the police to speak to me - I'll tell you my real name if you answer me.' Amongst other messages.
9The next day police caught up to you and interviewed you. You made denials in relation to the offending. The video of the incident was located on a recovered iPhone, which I think was your co-offender's. And the summary of that I will not repeat in the prosecution opening, but as I say, I viewed that footage. The offending is extremely serious and I made those observations at the time of the plea hearing.
Objective Gravity of Offending
10Your conduct and that of your co-offender involved humiliating and degrading conduct towards your victims. It was conduct that was over and above the more ordinary form of armed robbery of this type, which is nonetheless very serious. You engaged in gratuitous torment and humiliation and the causing of injury to your victims. You expressed shame and disgust at your actions during the sentencing conversation, and I accept that your assessment of your actions at the time, as expressed through the sentencing conversation are genuine.
11You have no prior convictions, as I have already noted. You were 18 at the time of the offending. Two victim impact statements were filed, which I have read and as one would expect, the terrifying and tormenting conduct engaged in by you and your co-offender towards your victims has had severe impact. It was prolonged. It would have placed them in extreme fear for their safety, and as I have observed, you deliberately engaged in conduct which would terrify, humiliate, and degrade your victims.
12The offences before me, in particular Charge 1, enlivens s 5(2H)(e) of the Sentencing Act. You are in the fortunate position where the prosecution have conceded that there are compelling circumstances, exceptional and rare in your case to justify a departure from the operation of that section. Your counsel, in an excellent written submission, has also made submissions and set out reasons why compelling circumstances, exceptional and rare can be met.
13Given the combination of matters before me, I also accept that the exception to s 5(2) applies. You are further fortunate that the prosecution also concede that given a range of factors, a community corrections order is within range in your case. That is a community corrections order standing alone, not a combined custody and community corrections order. Notwithstanding those concessions, the prosecution rightly point out the serious aspects of your offending in relation to the gravity of it, including the use of the knife; not just the presence of a knife but the way it was used. You committed the offence of armed robbery in company. It was persistent and prolonged, and the impact of the offending on your victims is serious.
14The prosecution also note that the value of the property obtained was relatively low, and there was no evidence of significant planning or premeditation. It is common ground in your case that youth and the principles that apply to sentencing a young offender apply in your case, and that you have good prospects of rehabilitation. It is also common ground that you are otherwise of good character, and that your plea of guilty is significant.
Personal Circumstances
15Submissions were made on your behalf which provided me with a detailed outline of your background, and also useful submissions in relation to the nature of the offending and your personal circumstances. These were Exhibit 1 on the plea. I accept your counsel's general description of the confluence of factors relevant to your commission of these serious offences, where it was stated ‘these serious offences were committed by a young indigenous man with no criminal history, who was experiencing homelessness, drug addiction, and separation from his father and girlfriend at the time.’
16The submission goes on to note that you have since repaired your relationship with your father and girlfriend; entered a plea of guilty during a pandemic, and importantly being on supervised bail conditions for almost a year -around 10 months - at the time of the plea, in fact. Your 17-year-old co-offender was sentenced without conviction to a six-month youth supervision order.
17I consider that homelessness and drug addiction, the separation from your father such as it was, for a young man of your background, to be significant matters in assessing your moral culpability for this very serious offending.
18Your background was one that involved some dysfunction. It is realistically conceded by your counsel that the circumstances of your youth were not of the extreme deprivation that is often seen when principles of Bugmy v The Queen (‘Bugmy’)[1] are considered, but nonetheless on close analysis, you were exposed to negative influences in your younger years.
[1]Bugmy v The Queen (‘Bugmy’) 249 CLR 571.
19Up until the age of 11 you were exposed to illicit drug use, excessive alcohol use, and associated violence. At around the age of 11 you went to live with your father. Your father has experienced incarceration I am told. To his great credit he is now working with John Holland Construction and appears rehabilitated and will be a good role model for you. At the time of the offending that relationship had broken down, but I'm told and accept that it is now repaired and notwithstanding that you are not living with your father, he is a support for you.
20You attended Reservoir High School from Year 7 to Year 12 and you were in the VCAL program, which you completed in 2020, and that is to your great credit. As I have already noted, you have no prior convictions. You were challenged during the sentencing conversation as to why it was that someone with your level of education and skills would engage in such serious offending. It was a good point, but your response to being challenged with these matters gives rise to some confidence as to your prospects, given that background and the level of scholastic achievement, and employability.
21You have been involved in sports in the past; basketball, playing in the Whittlesea Basketball League and again during the sentencing conversation you were challenged as to why you were not engaging more in these pro-social activities, employment and sport. I accept that now that the serious criminal charges hanging over your head will be resolved in a sense, and you'll be on a community corrections order once I have dealt with you, that it is likely that you will find the motivation to engage in those pro-social activities moving forward.
22I am also told and I accept that you have been working for a few weeks in concreting, and it would be in your interest to continue to engage in work as much as possible.
Other Factors in Mitigation
23Turning to an explanation of the circumstances that perhaps led you to excessive drug use, this no doubt disinhibited you and allowed you to behave in such an appalling manner. The confluence of pressures, using the terminology from your counsel in his written submissions, are described as follows; your relationship with your father, the central role model in your life had broken down, and you had not been in contact with him in months. You had been functionally homeless for months.
24You had not had contact with your girlfriend for some time. She was not happy with the lifestyle you were living. You were hanging out with the co-offender, drinking alcohol, smoking cannabis, and taking Xanax and speed. It was submitted to me that the occasion of your offending was one of the first times you had taken speed, which I take to be amphetamine. I accept whilst these matters are not offered as an excuse for your offending, I accept that they do go some way to shedding light on why an 18-year old such as yourself with no prior convictions, who had achieved a Year 12 level, would be behaving in such a violent and criminal way.
Progress on bail
25It is significant that you have been on strict bail for at least 10 months, involving a residential condition curfew, non-association, and engagement with Youth Justice, and your Youth Justice worker Ms Hunter attended the plea hearing. Your performance on bail was not without blemish and indeed again this was a matter that you were challenged about during the sentencing conversation from your elders, appropriately so.
26You could have done better on bail. You could have occupied your time more purposefully, but nonetheless I take into account the bail progress reports and the fact of you being on such strict bail for a significant period of time for a young person. I also take into account your youth, good character, the guilty plea, which I regard as early. What I accept of your remorse and insight, the disadvantage and dysfunction to the level that I accept is present in your case. In light with the Bugmy principles in relation to assessing moral culpability, I accept generally the findings in the psychological report that was relied upon on your behalf from Lisa Jackson.
Parity and prospects of rehabilitation
27I have had regard to your co-offender's sentence, although noting it was in a different jurisdiction, and I have had regard to your prospects of rehabilitation.
Participation in Koori Court
28The sentencing conversation is a matter that I also take into account. You participated and engaged in the sentencing conversation. You are proud of your Aboriginal heritage. You have stated that being Aboriginal is important to you. Your Aboriginality comes through both your mother and your father's lines. I was told your father is a member of the Yawrawarka People, whose traditional lands run north from Cooper Creek in South Australia up to the Queensland border.
29You engaged respectfully in the sentencing conversation but you were reserved. I put your reserved demeanour down to your youth, immaturity, and perhaps natural personality, but also shame in relation to those aspects of your offending which you yourself described as disgusting. You were challenged as I have said about not working whilst on bail, how you were spending your time. And you appeared to take on board those challenges in a positive way. You were also challenged in relation to your need for drug and alcohol counselling.
30Your self-assessment was that you did not need that sort of assistance. As part of the community corrections order I will impose upon you, I will make such an order.
31The sentencing conversation was also a useful opportunity for you to express your remorse and your understanding of the impact on your victims, and I accept that those expressions were genuine. Other positives to emerge from the sentencing conversation was your engagement with Elders and the Koori Court officer, Ms Annesley, as to your plans for the future and how you're going to engage and drive your own rehabilitation.
32Work is a positive factor for you. You told your Elders in the Court of the certificates you have achieved; your white card first aid Certificate 2, and importantly you discussed your engagement with culture and how that can be a source of inspiration and purpose for you on your rehabilitative path.
Other Sentencing Considerations
33I should also note that I received and have considered in a positive way in your case the following documents; a reference from Jade Faulkner, which is consistent with the observations I have made during these sentencing reasons. I accept the contents thereof. Letter and records from First People's Health and Wellbeing. The supervised bail progress reports, and I've already mentioned the psychological report of Lisa Jackson. All of those matters - all of those documents provide support for your counsel's submissions and the prosecution's submissions in relation to your prospects for rehabilitation, the reasons for offending, and ultimately how I should deal with you.
34I have taken into account the important principle of general deterrence. I have also taken into account the fact that I must impose sentences which appropriately denounce your crime. I have taken into account specific deterrence in your case, as well as your prospects of rehabilitation and other sentencing factors that I must have regard to.
Sentence
35In relation to the matters before me, Mr Blair, I sentence you as follows. I will impose an aggregate sentence, which is a community corrections order, across the three charges on the indictment.
36You are sentenced to a community corrections order of two years' duration with conviction. The special conditions of that order include community work, 200 hours. Treatment and rehabilitation as directed in relation to drug treatment and rehabilitation. Alcohol treatment and rehabilitation as directed. Supervision.
37I also intend to impose a judicial monitoring condition, and I will monitor you six months from today's date. We will see how you are going on 7 October, on the order. So the judicial monitoring session will be 9.30 am on 7 October.
38Pursuant to s 6AAA, were it not for your pleas of guilty to the matter, I would have sentenced you to - after seeking a report, in all likelihood I would have sentenced you to 20 months' youth detention.
39Now there is one day in custody which I have also taken into account as that would have been a salutary experience for you. Other than noting there has been one day spent in custody in relation to these matters, I do not think it is appropriate that I make a pre-sentence declaration.
40I do not think there are any orders I need to make. Are there any other orders I need to make, Mr McCarthy?
41MR McCARTHY: No Your Honour.
42HIS HONOUR: Mr Murphy?
43MR MURPHY: Your Honour, please excuse my ignorance; the only suggestion that I saw I the CCO report was a specific order so as to allow Mr Blair to count rehabilitation and therapeutic sort of services as against his community correction order hours. Rather, community work hours.
44HIS HONOUR: Yes, well that's always a matter for me, but thank you for bringing that to my attention because I do usually do that, but I'll - as part of the order, I'll indicate that 50 hours of treatment can account for work hours, if you understand.
45MR MURPHY: Yes. Please the court.
46HIS HONOUR: That will be placed in the order in the correct terminology. Now Mr Blair, do you consent to the order?
47ACCUSED: Yes Your Honour.
48HIS HONOUR: All right, well that's what I think they do these days, is when you report to Corrections, they'll get you to sign it then, or the other alternative is we'll email it to your legal representatives and they'll sign it. We'll do both, but you'll be required to sign it at some point, and I must tell you, if you breach any condition of that order, or contravene it is the language used these days, you'll be back before me.
49And what I've got to tell you is breaching can be by not doing what you're required to do. If they tell you to do treatment for drug assessment and treatment and you think, I don't need that, I'm not doing it, well then that will be a breach, and you'll be brought back here for breach, and if the breaches continue, no doubt I'll be asked to re-sentence you. The other thing is that if you re-offend, if you commit any offences during the operation of this order, you'll be in breach and you'll be brought back before me for re-sentence, all right? So this is a serious order.
50I think it hit home to you during the plea that not just the offences that you're before this court for but the nature of them, the way you conducted those offences, the violence involved and the torment involved place your offending and a very serious level, notwithstanding that you were 18 at the time. Young men who are 18 can very easily find themselves in adult jail for this type of offending. What saved you in this case is your lack of prior convictions but also your reasonable conduct on supervised bail for ten months and what you brought to the court hearing in terms of a plan moving forward and your prospects of rehabilitation.
51But you need to understand, this sort of conduct, this is your change. It's very easy, and young people often don't understand how easy it is. You do something like this again, there will be no youth detention; you just go straight to adult jail. So that's where you're at. So if ever, over the next two years you're getting resentful about this order or you're feeling gee this is really - why is he getting me to do this, I don't - I've done enough, I don't need this, you've got to remember, this is your punishment. That's a big part of this order, is being in place of jail. Instead of jail. Because the community expects that people who engage in this sort of conduct, even young people, the conduct is denounced, which means you know, put down and expressed as to how bad it is, through a sentence. And also that the person is punished to deter others and to deter them from doing it again.
52So if you're ever finding it a bit hard, or thinking that Corrections are annoying and you don't want to do what they're saying, just remember that I'm giving you this opportunity in place of jail. So make sure you do the order and do everything that's required of it, and it will be for your benefit. There will be people there to help you, people to help you with anything that's going on in your life, if there's housing issues or making sure that you're not slipping into drug use, it's all for your benefit, so take the opportunity. All right, anything else gentlemen?
53MR McCARTHY: Nothing further Your Honour. Please the court.
54MR MURPHY: No Your Honour.
55HIS HONOUR: All right, thank you. Look, good luck Marlon, I'll see you in six months' time and hear some good reports about you.
56ACCUSED: You too.
- - -
0
1
0