Director of Public Prosecutions v Blunt

[2016] VCC 1404

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. 16-01368
16-01858
16-01369

DIRECTOR OF PUBLIC PROSECUTIONS

V

SHELTON BLUNT

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JUDGE:	His Honour Judge Smallwood
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 September 2016
CASE MAY BE CITED AS:	DPP v Blunt
MEDIUM NEUTRAL CITATION:	[2016] VCC 1404

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Bhai
For the Accused	Ms P. Villella

HIS HONOUR:

1       Shelton Jay Blunt, you have pleaded guilty to eight charges of theft, two charges of armed robbery, two charges of aggravated burglary, two charges of obtaining property by deception, one charge of obtaining financial advantage by deception, one charge of attempting to obtain property by deception, five charges of burglary and two charges of attempted theft.  Those crimes carry maximum penalties of ten years, 25 years, 25 years, ten years, ten years, five years, ten years and five years respectively. 

2       I note insofar as those charges are concerned, that the armed robberies were always coming to this jurisdiction, but the other matters could have been dealt with in the Magistrates' Court, and I take that into account. 

3       You pleaded guilty at the earliest reasonable opportunity and you must get the utilitarian benefit of that plea of guilty.  Having had the opportunity of discussing these matters with you, and listening to you talk to the elders in Koori Court, I accept that your remorse for what you did is genuine, even though no admissions were made to police at the time.  It is clear to me that you are a relatively articulate and warm person. 

4       Together with these matters, on 8 May 2014 I placed you on a community corrections order for a charge of armed robbery and related offences.  It was a two year corrections order and you were also sentenced to be imprisoned for 300 days, which you had already undergone.  In that matter, you again pleaded guilty and it was hoped that you would be able to be rehabilitated.  Unfortunately, these matters breached that community corrections order. 

5       Accordingly, in that matter I find the breach proven and you are convicted and discharged.  The community corrections order is cancelled.  What I am going to do, because you did 300 days at the time and because of the size of the sentence that has to be imposed for these matters, a question of totality, I think, demands that I sentence you to six months to be served concurrently with other sentences imposed this day. 

6       You do have a very significant criminal history, and you are 43 years of age.  As I have indicated to your counsel, I am a bit concerned about the level of the criminal history because my recollection from the first time I dealt with you is it is incorrect.  In any event, I accept that of your 43 years, you have spent at least a couple of decades either in boys' homes or in gaol.  It is a very unfortunate history, and one which is distressingly familiar to those of us who work with Aboriginal people. 

7       In any event, I think the commencing point should be the offending that gave rise to the first sentence I imposed upon you.  You had, at some stage earlier this decade, been in a coma as a result of a drug overdose, I am told.  That has had a profound effect on you, and I will be referring to that later. 

8       On 30 November 2012, you entered the Social Club Café in St Kilda.  That was approximately a month after you had been in hospital following that overdose.  You had been rendered unconscious, and at that time I accepted that there was a strong suggestion, at least, that you had suffered an acquired brain injury. 

9       You approached the victim in this particular matter who was standing behind the service counter and ordered a coffee from her.  It was approximately 8.15 in the morning.  She made a cup of coffee for you and placed it on the counter.  You then produced a black handled knife, held the knife at your side and pointed it at her, and said, "Go back and shut the door or I'll stab you".  She went out the back door of the café.  You had doubts whether you said that, but subsequent events would seem to suggest you did. 

10      She was clearly very afraid.  You took her iPhone which was sitting on the counter, $20 in coins from a cash drawer and her handbag containing money and credit cards.  In any event, that was the armed robbery that you were found guilty of and there were deception offences associated with it.  On that occasion, you again, after the armed robbery, took a taxi and paid the taxi fare using the stolen credit card and I have noted all those matters. 

11      You participated in Koori Court on that occasion, and there was high hopes that you would be able to resurrect your life.  As I said to you on that occasion, "You have been using ice and it was very strongly pointed out to you that if you were released from gaol and continued to use ice, you either die or the odds are pretty high, as we are alluding to, our great concern at the present time is that you will stab somebody.  Either way, it would be pretty much the end of the road for you, I think". 

12      In any event, you then were released ultimately from custody and went onto a community corrections order.  As I understand it, and I am trying to keep this as simple as I can, as I understand it, you were then good, for want of a better word, for a period of approximately a year.  You received a community corrections order in the Magistrates' Court for previous offences and you completed that. 

13      You received a suspended sentence in the Magistrates' Court for previous offences, and you did not breach that.  You stayed at Galiamble on two separate occasions, one for a period of four months, as I understand, and one for a period of a few months.  That is no mean feat for somebody in your circumstances and in that particular institution. 

14      It was subsequent to that in late last year that the problems all started to arise again.  You went off medication.  You commenced using ice and the consequences that were pointed out to you back in 2014 almost became a reality.  So far as this offending is concerned, on 14 October 2015, a Mr Dann parked his motor vehicle and you stole it. 

15      What I will do is I am not going to read all these things out.  I will annex them to my sentencing remarks.  All the medical reports I will direct that they stay on file, so if there is ever a query about it, the information is there.  There is no absolutely no point going through all this for Mr Shelton's benefit. 

16      In any event, over the rest of the next few days, you stole registration plates and put them on different vehicles until 31 October 2015.  Just after 9 o'clock in the morning on that day, you went into a shop known as Bras 'n Things at the Airport West Shopping Centre.  A 19 year old girl was working behind the counter and you chose some items.  You took them to the counter and she scanned them. 

17      You were on the other side of the counter with your hands in your pockets.  You pulled out a knife about 30 centimetres in length.  You held it in front of your chest, angled towards her.  You spoke quietly, saying, "Open the drawer".  She froze.  You repeatedly told her to hurry up, come on.  She opened the till.  You said to her, "I will fucking stab you." 

18      You went around the counter, she stepped aside.  You took notes from the till and asked, "What, no 50s?"  She said, "No, we bank them."  She pointed to the coins and said, "Do you want to take the coins?"  I am assuming you did.  In any event, you told her to get on the floor, which she did.  You took the items from the counter and left the store. 

19      After leaving the store, you went to Parer Road in Airport West.  You saw a local resident and asked him to call you a taxi saying that you were a bit lost.  At around about 9.20 am you got into the taxi and went to the McNamara Road shops.  You walked towards the shops while the driver waited for you.  You entered the IGA Supermarket, bought a can of deodorant and asked the cashier to change the $2 coins into a $20 note. 

20      This has been captured on CCTV and there has been a great lot of discussion about your mental capacities, and I accept principally what is said in those reports, but it is quite clear to me that you were getting the $2 coins changed into a $20 note so that she would open the till.  As soon as she opened the till, you produced a long knife and lunged towards her with it.  She screamed.  You leaned over the register, took the cash.  You told her to, "Get on the ground or I'll stab you". 

21      She continued to scream and you left the store.  You went back to the taxi and directed the driver to another address in Airport West where you paid the fare and left the taxi.  At that stage apparently, I do not quite understand quite how, police have identified but were unable to locate you. 

22      Six weeks later on 12 December 2015, you committed a burglary on a house in Seaford.  People were home.  You took various things, credit cards and the like and that was an aggravated burglary, reckless as to people being present.  On 20 January you burgled a business premises in Braybrook.  About half an hour after that on 20 January, you went into a residential address where again people were home.  This was another aggravated burglary, and stole items. 

23      A few hours after that, another address, being a commercial premises, and a few days after that again, commercial premises.  On 31 January, you burgled a burger shop in Footscray and money was stolen, and shortly after that on 31 January 2016, you burgled premises known as Totally Workwear in Brooklyn.  You gained entry by connecting a tow rope between a metal grille at the rear of the store and the vehicle you were driving, and you used the vehicle to dislodge the grille and create a hole in the wall and stole approximately $2000. 

24      It is my view that each of these crimes shows a certain wherewithal or understanding of what you were doing and a certain element of preparedness.  Clearly you went to the bra shop prepared to commit the offence you did with a knife concealed and with a hoodie over your head, certainly at the IGA, you clearly put some thought, at least, into what you were going to do. 

25      As you will fully appreciate, Shelton, you have done almost exactly this before.  You are clearly aware of what the consequences of it were and what the consequences of it, that it was wrong and what the consequences are to the people on the other end of such conduct. 

26      There is a victim impact statement from the girl in the bra shop which describes the terror that she felt and the ongoing difficulties that she suffers.  One only has to look at the video to know what the effect was on the girl or lady in the IGA.  It is offending such as this that the community demands that there be an appropriate punishment. 

27      In your situation, it is very difficult for the reasons that I will outline in a moment.  All offending, particularly the armed robberies and aggravated burglaries, has to be regarded as serious.  Burglaries on commercial premises are always serious as well.  In the normal course of events, they would call for the application of general and specific deterrence as well as denunciation and appropriate punishment. 

28      It is difficult to see here how moral culpability is really significant.  You knew it was wrong.  You had done it before, and you have been punished for it before.  I accept that because of the circumstances in which you were, that general and specific deterrence probably should be reduced to a degree, and I accept that gaol for you is a more difficult proposition than it is for other prisoners because of the various conditions that you have. 

29      I would suspect that you are at extreme risk of being institutionalised, if you are not already, and whilst the neuropsychologist talks about being led and the like, it is an unfortunate situation for people such as yourself that gaol involves circumstances where the making of decisions, obtaining of food for yourself and looking after yourself no longer becomes your problem, and that is where institutionalisation comes from. 

30      However, from bitter experience of having worked in these courts for many years, in your situation I think community protection has to play a significant part.  The matters that I will refer to, which I will certainly take into account, are important, and they explain your conduct to a large extent but this is the sort of offending that, quite frankly, creates abhorrence in the community and justifiably so. 

31      Your counsel provided a very, very helpful chronology of how you have progressed since you were given that original CCO.  I take into account all of the matters that she has listed.  In the time that you have been in custody, which is now some 201 days, you spent a period of three months under a 23 hour lockdown.  You have been doing all the courses that are available to a remand prisoner.  You have been working in the timber yard during the course of the day.  You are still subject to the potentiality of a lockdown and I take those matters into account. 

32      It is clear that you are very interested in your culture.  You have undertaken a Koori IT course and you are completing a Koori cuisine course.  Your name is down for drug and alcohol and you say that you are not using drugs in gaol and you are receiving medication.  It was clear to me at the sentencing conversation in Koori Court, when the elders spoke to you, that you became quite emotional when they were talking to you about connection with culture.  As they said to you, and for what it is worth, coming from me, that this is a very important thing for you to develop. 

33      You were in the double jeopardy, if I can put it that way, of having not been brought up within an Aboriginal family, being clearly Aboriginal.  You have been brought up in a white family where you were treated as one out and isolated.  I would not even try to guess at the sort of effect that would have on a young boy as he grew up and tried to become a responsible adult.  It is clear that your childhood was traumatic and again, I do not think there is any need for me to sit here for ten minutes and go through all that. 

34      I am well aware of the principles outlined in decisions such as Bugmy, and of course take them into account.  I am also well aware of the circumstances of cases such as Muldrock and the various cases relating to protection of the community, and again, I take all those matters into account. 

35      I personally find these sentencing tasks are very, very difficult through a very large degree of sympathy and understanding for the plight in which you, as a man in your forties, find yourself.  However, a significant gaol sentence in this situation is objectively simply inevitable. 

36      Filed on your behalf were a number of reports, one from Janover, a psychologist, one from Carla Lechner, psychologist, one from Mr Jackson, a neuropsychologist, and there are also progress notes that have been provided in regard to your condition whilst you were undergoing the CCO.  I take all those matters into account. 

37      There was also a letter obviously written on your behalf, from somebody talking about your time in gaol.  I say this, that I have no doubt that when you are well, as you are at the moment, that your desire to rehabilitate and your desire not to offend in the way that you have is a genuine one. 

38      I then look to, as much as possible, the objective aspects of your circumstances.  I have outlined in simple terms your past.  You have had a partner in the past and you have a number of children, who I have no doubt that you would love to be connected with. 

39      The community corrections order was complied with very well for a period of time whilst you were in a protected environment, and these sentencing remarks obviously will go to the parole board and I would strongly urge that upon your ultimate release, that it be done under supervision with a protective form of accommodation, one which you understand and that you be given all supports necessary to endeavour to achieve a rehabilitation. 

40      I am well aware of authorities such as Tonguenen and Leach and others about reformation, and again they play a part in this very difficult sentencing exercise.  What the reports effectively say is that you, and I accept it, have an acquired brain injury.  It is hard to know what your premorbid state was, you are such a poor historian. 

41      The reports assert a previous diagnosis of schizophrenia.  I accept that symptoms of that exist.  It is debatable as to whether it is schizophrenia or whether it is an organic disability brought about by drug use and by, in particular, the overdose which rendered you unconscious.  In any event it is, for these purposes, semantics to try and distinguish between them. 

42      The fact of the matter of is that you do hear voices.  They are not command ones, and you are psychiatrically unwell.  It is clear that you need to take medication for the rest of your life in respect of that, and yours is one of those unfortunate circumstances where you thought you were all right and you have told us you stopped taking the medication.  Such situations often result in disaster. 

43      I make it clear that I have read each of those reports a number of times.  I am aware of the medication that you have been on, and I am aware of all the drug addiction that you have had, the alcohol addiction that you have had.  Throughout your life you have been socially isolated, that your social connections are transient, that you have a number of factors in your existence which put you at higher risk of reoffending. 

44      Ms Lechner advised or suggested that your neuropsychological situation be examined and that now has been.  That was by Mr Jackson and again that report will remain on file.  He describes how this offending all came about, how you were on the CCO and doing well.  He describes the childhood that I have talked about, and he talks about the other reports that have been received. 

45      One of them says, from Arbias as I recollect, that you do not have an acquired brain injury, and I am making it clear that I am finding that you do for these sentencing purposes.  His report is very full.  He says that you have an IQ of 55, which is in the extremely low range.  As I indicated, I am well aware of the decision of Muldrock.  55 is a very low IQ.  I do think that you function, certainly having listened to you talk to the elders when you are well at a relatively reasonable level, but clearly when you are unwell and when you are using, it is a very different proposition altogether. 

46      He says that after these tests that there is a hypoxic brain injury on the medical evidence and on your neuropsychological profile.  He also says that it is likely that you have suffered a degree of substance related brain injury, given your many years of heavy alcohol and drug use. 

47      He says, and I note this, "The cognitive impairment from a severe hypoxic brain injury is generally more extensive and severe than that seen in a substance related brain injury, and therefore there is a high probability that any substance related brain injury that was present at the time of his heroin overdose is now masked by the severe brain injury produced by his hypoxic brain injury.  It is noted that it is over three years since he suffered his hypoxic brain injury.  In an absence from drugs and alcohol now for at least six months".  This is when he sees you, "Therefore it is clear that his current cognitive impairment is permanent and stable", and I accept that. 

48      He then goes on to point out that you understand the wrongfulness of your actions, and I have already indicated that.  He says that you had, "A very severe to profound new learning and executive difficulties".  That means that you are, he says, quite totally unable to think clearly and make calm, reasoned decisions or appropriate judgments. 

49      "He has no capacity to conceptualise above the most basic of levels.  He cannot work out solutions to situations and he cannot learn new skills.  It is highly likely that under any circumstances of stress or being faced with a situation he is not used to, of reverting to past well-learned behaviours.  This will lead him to making the same errors again and again, no matter what the consequences". 

50      He says, almost distressingly, in my view, "So what might be seen as poor impulse control may well simply be that he cannot stop doing his old behaviours because that is all he can do.  It is noted that his sort of substance abuse".  This does not bring in the current versions, "And his psychotic disorder would make him highly likely to demonstrate poor impulse control and low frustration tolerance if he was intoxicated or had not taken his psychiatric medication, as had occurred at the time of the offending".  He then points out how that would relate to your capacity to make decisions. 

51      He also goes on to say that the prospects of your rehabilitation are dependent upon the support structures that are put around you after your release from prison.  He says you do not have the ability to live independently in your community and require a high level of support and structure.  I very much agree with those propositions. 

52      He says you require constant support and supervision, as seen in supportive residential accommodation, and he says if you do not receive that level of support upon release, "Then it is almost inevitable that he will resume taking drugs, drinking alcohol and reoffending".  That is not what one would describe as a good prospect for rehabilitation. 

53      The offending is serious and calls for a significant sentence in any event, and as I have indicated, community protection has to play a part in all of this.  I can honestly and openly say that your circumstances have caused me to feel that this is a situation where insofar as the opportunity for a minimum term is concerned, it is not a matter for me, at all, what the parole board do or do not do, that an element of mercy should be extended. 

54      I am going to impose what I consider to be, taking into account your cognitive difficulties, the Verdins principles and the other principles that I have referred to, insofar as the head sentence is concerned, that I am going to give a minimum term which is less than would otherwise have been the case but for your disabilities and the sympathy that I feel for you. 

55      It was put on your behalf that a community corrections order, together with a custodial sentence was within range.  It is my view, and as I indicated, that I think that because of the recent Court of Appeal decision, that one has to declare all the time that has been served that a gaol sentence of less than two years in this situation would be an error.

56      I think all I can do is give you what I consider to be the appropriate sentence in your extremely difficult circumstances, and put a position in place where after a significant period of time, the parole board should be able to release you into the community in a protected environment which may give the community and yourself the benefit of you not reoffending. 

57      As you will appreciate yourself, Shelton, if it was simply a situation of you pinching things or something like that, it would be different, but it is a situation where for protection you just cannot go and do this to young women behind the counter.  The elders pointed out that you seemed to target young women in these situations.  That may or may not be the case, but it is violent offending and the community just will not allow it to occur. 

58      So taking into account as best I can all the usual competing authorities and principles in such a sentencing regime, and taking into account the matters that were put very strongly on your behalf by your counsel, you are sentenced as follows.  I am giving individual sentences for each charge. 

59      It seems to me that I could not give an aggregate sentence here because of the time frames which means that it is going to be a long, drawn out process, and if he has got any sense of arithmetic he is going to get a fright while this is being done, but I have made a lot of the sentences concurrent, obviously for totality reasons, which is the very reason that I am giving the breach of the COO totally concurrent as well. 

60      You are sentenced to be imprisoned as follows, and I have checked this arithmetic but I will do it slowly so counsel can make sure.  Charge 1, three months - you can stay seated.  This is going to take a while.  This is going to take about five minutes, I think.  Charge 1, three months.  Charge 2, one week.  Charge 3, one week.  Charge 4, three years.  Charge 5, three years.  Charge 6, 18 months. 

61      Charge 7, three months.  Charge 8, three months.  Charge 9, three months.  Charge 10, two months.  Charge 11, three months.  Charge 12, nine months.  Charge 13, two months.  Charge 14, 18 months.  Charge 15, three months.  Charge 16, two months.  Charge 17, nine months.  Charge 18, three months.  Charge 19, nine months.  Charge 20, nine months.  Charge 21, three months.  Charge 22, nine months.  Charge 23, three months. 

62      Because of the close proximity to the offending and because of reasons of totality, as I have indicated, I am not going to go into some minute mathematical calculation and the majority of those sentences are to be served concurrently. 

63      However, I direct that six months of the sentence imposed on Charge 5, six months of the sentence imposed on Charge 6, two months of the sentence imposed on Charge 12, six months of the sentence imposed on Charge 14, two months of the sentence imposed on Charge 17, two months of the sentence imposed on Charge 20, and two months of the sentence imposed on Charge 22, be served cumulatively upon each other and upon the sentence imposed on Charge 4. 

64      There would be many ways that that could have been differently done, but it is the effective sentence that is important.  That gives an effective head sentence of five years and two months.  For the reasons that I have outlined, in this particular situation I direct that he serve a minimum period of two years and seven months before becoming eligible for parole. 

65      On Charge 1, I direct that any licence be suspended to drive a motor vehicle, be suspended for 12 months.  I direct that 200 days be reckoned as having been served under this sentence, and pursuant to s.6AAA, I say - and this is not taking into account the CCO breach - that pursuant to s.6AAA, just on the indictment, but for your plea of guilty you would have been sentenced to be imprisoned for a period of seven and a half years with a minimum of five. 

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HIS HONOUR:  I am sure that arithmetic is okay.  I might just sit here for a moment, if you do not mind checking, counsel.  The licence suspension can start today.  He is not going anywhere. 

MS BHAI:  Your Honour, we agree with that. 

MS VILLELLA:  Yes, Your Honour.

HIS HONOUR:  Everyone is agreed.  Thanks for that, ladies.  Do you follow that, Shelton?  It's as good as I can do for you, my friend.  Okay.  You can't do this and you know that, and we've got to impose a proper sentence but good luck with it all, and hopefully when you get out they can give you proper accommodation to live in and you can get on with your life.  

ACCUSED:  Yeah. 

HIS HONOUR:   Again thanks, ladies.  I appreciate that. 

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