Director of Public Prosecutions v Cakebread
[2012] VCC 868
•26 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY CAKEBREAD |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 June 2012 | |
CASE MAY BE CITED AS: | DPP v Cakebread | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 868 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T.S. Hoare | |
| For the Accused | Ms N. Karapanagiotidis |
HER HONOUR:
1 Timothy Cakebread you have pleaded guilty before me to one charge of armed robbery, and have admitted prior convictions. The facts underlying your offending are as follows. On Sunday 8 January 2002 you rode an unregistered motorbike to a milk bar in Werribee, carrying with you a black handled kitchen knife. You went into the milk bar, took a carton of milk and a carton of a drink called Up & Go from the refrigerator and went to the counter. There you removed your knife and demanded two packets of Peter Jackson cigarettes from the shopkeeper.
2 The shopkeeper in response grabbed a large metal pole to defend himself and then you ran from the store taking with you the cartons of liquid that you had taken from the refrigerator and rode away on the motorbike. You threw the knife away near a water spillway in Werribee. About an hour later that day you were riding the motorbike in and around the Werribee area when you were seen by police. You tried to avoid being arrested, driving off, but then lost control of the motorbike and came to grief on the road. You ran from police and climbed onto the roof of a house attempting to jump across houses, but landed on the ground and injured yourself.
3 You were then arrested and taken to the Werribee Police Station and then taken by ambulance to the Werribee Hospital where you were X-rayed and treated for minor injuries. You were taken to Ballarat and put in the cells there, then interviewed on 9 January when you made full admissions to the allegations.
4 I now turn to your personal circumstances. You are now 20 years of age, at the time of this offending you were 19. You have remained in custody since your arrest in relation to these matters. You are the middle of three children born to your parents, and were raised in and around the Ballarat area. Your counsel informed me that your father, who has a long history of criminal behaviour, and has spent a number of periods in gaol, was extremely violent towards your mother, and your parents separated when you were about ten.
5 Your mother has an intervention order for life against your father apparently, his prior convictions includes convictions for serious assaults upon her. In any event she has re-partnered, and you told psychologist Carla Lechner, whose report dated May 24 2012 was tendered on the plea, that you intensely dislike her new partner.
6 Your younger brother Jarrod lives with your mother, and you still have contact with her. You have an older sister who lives with an aunt, but you do not get on and have no contact with her. You continued to have contact with your father over the years, which it would certainly seem has not been to your advantage, as he has encouraged you to engage in drug use, and has taken you along on some sprees of offending, mostly in relation to dishonesty.
7 It appears you have had behavioural problems from an early age, ultimately this being diagnosed as ADHD, and eventually were made a ward of state. It appears as a result of that wardship you were then placed with your maternal grandmother in Werribee with whom you remained for a couple of years, were then taken over by your maternal aunt who lived next door. Ultimately there was a falling out between you and those relatives on your mothers side, and you no longer have any contact with them.
8 A large number of reports were tendered from you on the plea, relating to the counselling you have received, and the diagnosis made about ADHD via the Royal Children's Hospital. It appears your grandmother in particular took you to a number of medical appointments, and for some years you were on the conventional medication for that disorder, which it would appear from the reports did have some mollifying effect on your behaviour.
9
However you frankly describe your behaviour in your teenage years to
Ms Lechner as disgraceful. It appears at school you excelled at sport and mathematics, but ultimately spent a lot of time, as you termed it, "punching on" with other students, and eventually were asked to leave, although it seems you are not formally expelled, from Galvin Park Secondary School partway through Year 10. You have had very little employment since leaving school. You had a couple of months working as a bricklayer, and I think there was some work in a factory, but essentially since that time you have remained unemployed.
10 Unfortunately your lifestyle has been very unstable. You have short periods at home with your mother, but this never lasts, you spend a large amount of time, essentially couch surfing between friends homes, and in that time you have developed pretty consistent drug use with cannabis, and most disturbingly ice. Very frankly in court today you told me you were using about three grams a day or a week?
11 ACCUSED: Three and a half grams a day.
12 HER HONOUR: Yes, three and a half grams a day of ice, which is a very large habit indeed. Unsurprisingly the amount of drugs you were using, both in terms of their effect on your behaviour, and because of the amounts of money you needed to support that drug habit, has led to fairly continuous offending.
13 For a young man your age you have a long prior criminal history, beginning in 2009 with theft of a motor vehicle, burglary and theft, and then you have gone on to receive numerous dispositions for theft, burglary, damaging property, criminal damage, shoplifting, drug offending such as using ecstasy, shoplifting, handling and receiving stolen goods. And in that time have received numerous periods of detention in a youth justice centre.
14 Eventually I suppose the way to describe it is you wore out your welcome with the youth justice system. You were sentenced to 15 months detention in a youth justice centre in June of 2010, however by April 2011 you had been transferred to the adult system and served about four to five months in modern prison.
15 You were released in about October or November of 2011. You got out and lived with a friend in Werribee for six to seven months, but immediately resumed using ice. You spent a short period of time with your mother, who told your counsel that during that time you were paranoid, and sleeping very badly. You in court frankly told me you had had a psychotic episode where you believed a person unknown to you was attacking your brother, and at that time you believed you were in Ballarat when you were in fact in Melbourne. I had some conversation with you on the plea about the fact that it appears that ice is starting to have some effect on your brain function should, and that you are getting early warning signs that if you keep using either ice or speed, or any amphetamine based substance, you are likely to develop a psychiatric illness, which is often the case with long-term users of amphetamine based drugs.
16 In any event it appears that at the time you committed this offending you had not been asleep for 15 days. You were, you frankly told police, completely affected by the drug, and that when you went out that day you took the knife with you, your counsel said, not because you were going to commit an armed robbery, but because you believed other people in Werribee might be out to get you. In other words you were displaying the symptoms of paranoia that often accompany the drug use that you have been engaging in relating to amphetamines.
17 Since your arrest, as I have said, you have remained in custody. This plea began in Ballarat, but had to be adjourned in order the neuropsychological report be obtained, because some months previously you had been involved in a motorbike accident, you suffered fairly continuous headaches, and there was a concern that you might have suffered an acquired brain injury. I received a really excellent report from neuropsychologist Martin Jackson. In his reported dated 24 June 2012 he stated that the result of various tests that he conducted with you did not reveal thankfully that you have any injury to your brain from the accident. It appears that your intellectual functioning is intact.
18
What that means is you have no problems with your intellectual functioning. You do have behavioural problems. You tend to be impulsive. You told
Mr Jackson that you tend to snap, and of course you have had a background involving significant dishonesty, and a very poor role model in your father, who basically has encouraged you to use drugs, and to offend with him. That is so no matter how much you may love him, the example he has set for you has not been at all desirable.
19 One of the reasons I was so impressed by Mr Jackson's report is that it was entirely realistic. It was his view that the key to recovery by you, that is the key to you leading a life where you do not get into trouble with police, is stable accommodation, and stable employment. At the time of this offending, as I already said, not only were you abusing both cannabis and ice to a disturbing degree, you were also unemployed, and living in a very insecure accommodation scenario. As I have said you were basically couch surfing.
20
There is very little unfortunately that a court can do to address these problems, but I do make this comment very strongly, and my sentencing remarks will be forwarded to the Parole Board. It is my view that what
Mr Jackson had to say about you is entirely practical, and it is absolutely vital that when the time comes for you to be released on parole, that whoever is handling your case pays particular attention to work, and particular attention to accommodation.
21 I have already said to you during the plea Mr Cakebread, and there is no reason why I should not repeat it now. It seems to me you are the sort of young bloke if you got a job you liked could well become obsessed with it, and would work very long hours indeed. It seems to me you have got that sort of personality. But unless accommodation and work are in place I am most concerned that you will simply go back to leading this sort of rackety lifestyle you were before, involving moving from house to house, and using drugs along the way, and inevitably offending again.
22 I am particularly concerned about the offending that has brought you before this court. It involves an escalation in offending. Armed robbery involves violence, and you do not have a history of violence, except in relation to objects, for example wilful damage. One of the comforting things about your prior history, long though it is, is that even though you have got a very impulsive personality, and even though it seems you are a person who likes to do what he wants, and does not have an awful lot of regard for authority, you are not someone who has been involved in violent offending, and that is very much to your credit.
23 However if you keep using ice there is no doubt you will end up attacking somebody, it is the nature of the drug, and it is the nature of what it does to your personality, which is to make you paranoid, make you angry, make you liable to feel threatened by other people and to attack them. I am going into some detail about this because I am very concerned that whoever handles your parole is fully cognisant, that is fully aware of the problems that I see that need to be addressed on your release, and that full attention is paid to them.
24 I will be forwarding all these reports, in particular Mr Jackson's report, to the Adult Parole Board. At the same time Mr Cakebread you can have all sorts of people helping you, but you have to help yourself as well. We have had a long talk today about what it is it seems you need when you leave gaol eventually, you have informed me that you have got a friend who has got his own business, and hopefully you can work for that friend, but you need to get your housing sorted out, and you certainly need a job, and I hope that those are things that you can achieve when you are ultimately released on parole.
25 Insofar as the offending is concerned I note that you were extremely cooperative with police. I accept that at the time of this offending you were very much under the influence of a very damaging drug. I accept the finding by Ms Lechner that whilst at the time you gave no thought to what effect your offending might have had on the shopkeeper later on you came to the realisation that you would have scared that person. There appears to be no victim impact statement, but the experience of this commonly is that when someone is working in a shop or a service station, or one of those vulnerable places, and they are subject to an armed robbery, that is a bloke coming in waving a knife, then the effects of that last a long time.
26 Essentially, and you need to hear this Mr Cakebread, because it does not seem to you are a person who would want to inflict this sort of distress on another human being, but inevitably these people themselves feel scared every time they go to work. They are scared someone is going to come in the door and hurt them, they are scared of being robbed again. Very often they are people who do not make a lot of money. You do not make your fortune working in a milk bar. So they are people who are working very hard for not much money, and as a result of being robbed in the way that this shopkeeper was, I have got no doubt he will feel some fear every day. In other words he is going to go to a job every day where he is scared, and that is a horrible way for a human being, who is simply going about his daily work, to feel.
27 Unfortunately these sorts of attacks on vulnerable victims such as shop assistants and shop owners are all too common, and it is quite clear that the courts in dealing with offending such as this, have to mainly pay attention to sentencing a person in a way which not only punishes that person, but which sends a message out to the community that this behaviour will not be tolerated, and that people such as this shop keeper can expect to be protected by the courts as far as they possibly can. What that means is that - particularly taking into account your prior criminal history - the only way I can really deal with you, in my view, to mark the seriousness of your offending, is to impose a sentence of imprisonment which will be immediately served.
28
In sentencing you however I do take into account that you pleaded guilty. I do take into account your particularly difficult background. I am not convinced that you do not have a good future if the fundamental issues of employment and accommodation are attended to. You are not someone who is presenting as having any intellectual difficulties at all. In other words your brain is working fine Mr Cakebread, you are a perfectly competent human being, and if you can get work you have probably got a good future. But so far it has not gone so well, but at least you do not have to worry about the fact that you might have done something to your brain in that last accident that you had. And at least while you are in gaol your capacity to obtain drugs is limited, although I am perfectly aware that being in gaol does not mean that you can not get your hands on something. But it appears from what you told
Ms Lechner that you have formed an association with some older prisoners who very much dislike ice, so that is a positive, but as I said all I can do at the moment is sentence you to a term of imprisonment which takes into account your youth, the fact that you did plead guilty, and that you have got some prospects of rehabilitation.
29 I therefore sentence you as follows. Can you stand up please.
30 On the charge of armed robbery you are sentenced to two years imprisonment, and I order that you serve twelve months of that sentence before becoming eligible for parole. I direct that you have served - - -
31 MR HOARE: 170 Your Honour, including today.
32 HER HONOUR: 170 days of this sentence by way of pre-sentence detention. Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three years, and order you serve a minimum term of 18 months.
33 So that is it, all right Mr Cakebread, and again I know I am repeating myself, but I am most concerned that those people who are involved in preparing you for parole and for your release from gaol have regard to what Mr Jackson has had to say, and regard to my findings, that it is imperative that you get assistance with housing and work. All right good luck Mr Cakebread, I hope I never see you again as much as you hope you never see me again.
34 OFFENDER: Thanks.
35 HER HONOUR: Thank you, you can take him down. Do I need to sign any orders?
36 MR HOARE: No Your Honour.
37
HER HONOUR: No, all right. Thank you very much for your assistance
Ms Karapanagiotidis.
38 MS KARAPANAGIOTIDIS: Thank you Your Honour.
39 HER HONOUR: You obviously spoke to everyone you possibly could speak to, I'm aware that clients like Mr Cakebread are not terribly helpful in terms of information that they're going to give you, and that you do need to speak to other people. Lots of counsel don't do that, and the fact that you did made my job a great deal easier, so I thank you for that.
40 MS KARAPANAGIOTIDIS: Thank you Your Honour.
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