Director of Public Prosecutions v Buckley, Peter John
[2013] VCC 471
•16 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER JOHN BUCKLEY |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 16 April 2013 | |
CASE MAY BE CITED AS: | DPP v Buckley, Peter John | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 471 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Ayres | |
| For the Accused | Mr S. Gardner |
HIS HONOUR:
1 Peter John Buckley, you have pleaded guilty to one charge of attempted armed robbery and one uplifted charge of drive whilst disqualified. Those crimes carry maximum penalties of 20 years and, in this situation, two years respectively.
2 You are 35 years of age and you pleaded guilty at the earliest reasonable opportunity. I accept that your plea of guilty is accompanied by appropriate remorse. Indeed, when you were arrested by police you made fulsome admissions to the offending and expressed regret at that time that you had done it. You, in talking to the police described yourself effectively as a "dickhead". You must also, of course, get the utilitarian benefit of that plea of guilty, which, of course, has saved a victim from the traumatic experience of giving evidence. Those factors go very much in your favour.
3 You are 35 years of age. You have been addicted to drugs for something approaching 20 years. You have a long criminal history involving in excess of 20 appearances. Appearances have been for mainly dishonesty with some violence and driving matters. It is the criminal history of a drug addict. The crime to which you have pleaded guilty today is beyond what is your normal operational area, I fear. You have done nothing this serious previously.
4 The circumstances of the offending are that on 24 September of last year you drove your own vehicle to a tobacconist's which you then attempted to commit an armed robbery upon. You had tried to change the appearance of your number plates and you were in disguise, wearing a long, fake beard. When you arrived there you reconnoitred and when there was no one in the shop other than the person behind the counter. You went in. You were holding a knife in your hand with the blade exposed. I am told that the depositions reveal that approximately three centimetres was exposed. You had a large travel bag in your left hand. You walked around behind the counter area, which must have been terrifying for the victim, and stood about a metre away from him, saying, I want the money. The victim, Mr Phan, was scared and thought he would be hurt. He told you to go away and pressed an alarm keypad. He then told you to, "Fuck off, the police will be here in a minute". You then turned around and walked out of the store. The whole incident took about 25 seconds. You then drove away and were later noticed to be acting suspiciously by somebody who reported the matter to police. You were then arrested and made the confession that I have already described.
5 I accept the submission insofar as the offending itself is concerned. There was no gratuitous violence or threats and that it was over relatively quickly. On the other hand, as Mr Ayres for the Crown points out, you went behind the counter, which must have been a frightening experience indeed. There is no victim impact statement before me but I do not need a victim impact statement to bring home the fear and often ongoing psychological trauma that offending such as this causes. It was not suggested otherwise than it is deserving of an active custodial sentence.
6 The matters is serious. It calls for the application of general and specific deterrence as well as denunciation and appropriate punishment. In determining the length of that sentence I then turn to matters personal to you.
7 Tendered on your behalf was a report from Mr Warren Simmonds, a psychologist, and also a report from ARBIAS, in a neuropsychological sense. Your mother, who has been a support to you for a long time, gave sworn evidence on your behalf and indicated that she will remain a support as a home for you to go to upon your ultimate release. You are very fortunate in that respect as many in your position do not have such family support.
8 Mr Simmonds's report goes through your history. You effectively - and I will do this in very brief form - never knew your father and your mother was the one constant in your life. You were educated to around about Year 9 standard and are of low average intelligence. You are not highly educated, obviously, but you do have a work record. I am told that the longest you have been employed as, was as a boilermaker for a period of approximately four years, not all that long after leaving school. You have worked in the past.
9 Your drug and alcohol history is a disturbing one. You commenced consuming alcohol in Year 7. You commenced using cannabis when you were about 13. You were introduced to heroin at around about 20.
10 You had used propellants, or at least paint, when you were in around Year 7 to Year 8. Later on in life you started using amphetamines which you had used up until recent times, that is up until you were locked up for this. You have clearly abused prescription drugs over a long period of time. You have used ecstasy and other drugs as well. On three occasions, you have told Mr Simmonds, that you have overdosed in a situation requiring Narcan. You have also injected Temazepam. That is a sad drug history indeed and the witnesses, at least most of them in this matter, including Mr Simmonds, have you coming across as being older than your actual chronological age.
11 Attempts have been made over the years to give you relief from the drug use. You told Mr Simmonds that you had undertaken three community residential drug withdrawal programs in the past but had always used upon returning to the community. You have endeavoured to withdraw in gaol and I am told and accept that in the almost seven months that you have now served you have been drug free. That should be a starting point for you. You have previously done gaol sentences but not of this duration. You do not have psychiatric difficulties but the report from ARBIAS makes a number of matters clear.
12 In 2007 you suffered a stroke. The people at ARBIAS were specifically requested to determine whether you have an acquired brain injury. They reported as follows:
"Mr Buckley's substance use and medical history suggests a number of risk factors for acquired brain injury and cognitive problems. Considering the chronicity and extent of his alcohol intake and his neuropsychological profile, the findings are not suggestive of alcohol related brain injury. It is possible that the early onset and heavy consumption of substances during adolescence, including cannabis and paint, may have compromised his cognitive development. It is also possible his history of heroin overdose may have resulted in hypoxic brain injury (in relation to oxygen deprivation). The clearest cause of acquired brain injury is the stroke that Mr Buckley experienced in 2004 at 27 years of age. A CT brain report revealed left, middle cerebral artery infarct with involvement of the basal ganglia, the internal and external capsules, left cordate nucleus and a focal cerebral spinal fluid anomaly".
13 The report goes on to say that it would not affect you in terms of moral culpability but that imprisonment would be harder for you than for the normal prisoner. You, because of your slow psychological responses as a result of that stroke, and your mother confirmed this on oath, insofar as memory is concerned and physical disabilities, would struggle to appreciate circumstances that may arise in a custodial setting. That can lead to tension and confusion, to say the least.
14 I take that into account insofar as the principles of Verdins are concerned, that you are a person with an acquired brain injury, no doubt about that, and accordingly, there is a limited degree of moderation in the sentence that I impose. Also these sentencing remarks obviously will be provided to the Parole Board and the gaol, together with the psychological reports, though I am assuming that appropriate medical treatment is available to you and has been available to you since you were incarcerated.
15 The prospects of your rehabilitation are up to you. The risk of you re-offending on your criminal history would have to be regarded as significant. However, in a situation where this will be the longest sentence that you have undergone, hopefully, you will have been drug free for an extended period when you are released on parole. You have a safe environment to go to, that being your mother. She described it as a five acre property where show horses are raised. It is a situation which you could take advantage of if you choose.
16 In that scenario I am prepared to give you a slightly lesser minimum term than might otherwise have been the case.
17 Taking all those matters into account as best I can, on the charge of attempted armed robbery you are sentenced to be imprisoned for a period of two years and six months. On the uplifted charge of drive whilst disqualified I see no point in increasing the sentence but you are sentenced to be imprisoned for a period of three months, which will be concurrent. Insofar as that charge is concerned I direct that any - sorry, do I have to disqualify it or can I suspend?
18 MR GARDNER: You can suspend.
19 HIS HONOUR: Right. Any licence to drive a motor vehicle is hereby suspended for a period of six months. The reason that I do it for that, even though it is your at least third drive whilst disqualified is that I think it is important that you, if possible, have a driver's licence upon your ultimate release if you are endeavouring to work. That gives an effective head sentence of two years and six months. I direct that you serve a minimum term of 15 months before becoming eligible for parole.
20 I direct that 204 days be reckoned as having been served under this sentence.
21 I say, pursuant to s.6AAA, just so you understand the benefit of your cooperation, your confession and your plea of guilty, but for that plea of guilty you would have been sentenced to be imprisoned for a period of four years with a minimum term of three years.
22 All right, any other orders I need to make?
23 MR AYRES: As for disposal, Your Honour.
24 HIS HONOUR: I have made that.
25 MR AYRES: Yes.
26 HIS HONOUR: There was no retention or anything like that, was there, 464s?
27 MR GARDNER: No.
28 HIS HONOUR: No. All right, thanks gentlemen.
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