Director of Public Prosecutions v Carey

[2015] VCC 1315

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 14-01851
CR 14-01852

DIRECTOR OF PUBLIC PROSECUTIONS

v

KEITH CAREY
JAMES CAREY

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Bendigo
DATE OF HEARING:	16 September 2015
DATE OF SENTENCE:	16 September 2015
CASE MAY BE CITED AS:	DPP v CAREY
MEDIUM NEUTRAL CITATION:	[2015] VCC 1315

REASONS FOR SENTENCE
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Subject:
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Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For Accused CAREY	Mr A. Marshall
For Accused CAREY	Mr S. Moglia

HIS HONOUR:

1On 28 April 2015, and again today, both of you; James Carey and Keith Carey, pleaded guilty to the following charges.  Charge 1; armed robbery.  This charge has a maximum penalty of 25 years' imprisonment.  Charge 2; theft.  This charge has a maximum penalty of ten years' imprisonment.

2On 28 April 2015, and again today, you both admitted your prior criminal history.  The background is that from 28 April 2015 your plea hearings were adjourned to 25 June 2015, to be heard by my brother Judge, Judge Chettle.  On that day there was a report missing, and so the two pleas could not proceed.

3I note that Judge Chettle had ordered that both of you be assessed for the purposes of a Community Corrections Order, and I have these reports dated 29 June 2015 in respective of you, Keith Carey, and 25 August 2015 in respect to you, James Carey. Your plea hearings were adjourned to the September circuit here in Bendigo. 

4A copy of the summary of the prosecution opening was tendered in this hearing; and that is Exhibit A.  A copy of the sentencing remarks of Judge Lacava dated 26 February 2015 for your co-accused, William Atkinson was tendered.  On the principal charge of armed robbery Mr Atkinson was sentenced to two years' imprisonment.

CIRCUMSTANCES OF OFFENDING

5I now turn to the circumstances of the offences, and I am going to read extensively from the summary that was read this morning so that the context of your offending is properly set out.

6On 11 March 2014 William Atkinson was introduced to Norton Green and James Penno at their unit in Condon Street in Kennington - referred to as "the unit" in these reasons - by a young female; Ieshia Singh.

7While they were at the unit Atkinson purchased a small amount of cannabis from one of the occupants, and then tried to sell a car GPS navigator to another one of the males.  Atkinson wanted $40 cash for the GPS unit and told the males he would return to the unit to sell it to them.  Singh and Atkinson left the unit a short time later, and as they left Atkinson told Singh that he would go back to the house with Alex and "Rabbit"; that is you, James Carey, and rob the house.  Singh told Atkinson that he could not go back to the house and rob it because they were her friends and it would look bad for her.

8On 13 March 2014, between 9 am and 10 am, Atkinson returned to the unit with the GPS system in a green shopping bag.  One of the male occupants opened the door and Atkinson told him he wanted cannabis or cash for the GPS system.  Atkinson was refused and asked to leave.  He did leave, but left the GPS system at the front door of the unit.

9At approximately 3.30 pm the same day the accused men, were celebrating a birthday of Sharon White, who was the partner of William Atkinson. Atkinson's unit in Townsend Street, Kennington was situated less than a kilometre from the unit itself.  Atkinson decided to return to the unit to collect the $40 cash, and to get cannabis for the birthday party celebrations.  Another male, Robert Bowen, who was also at the property, had a car and agreed to drive both of you, Keith and James Carey, together with Atkinson and Alex Egan, to the unit in his blue Mazda sedan.  Bowen parked his vehicle out the front of the unit.  The unit was occupied by two males, Norton Green and James Penno, along with two visiting females, Cassidy Flight and Lilian Barnaby.

10Atkinson knocked on the front door, which was unlocked.  He opened the door and walked into the lounge room, followed by you, Keith and James Carey, and Mr Egan.  The prosecution is unable to say whether Bowen entered the unit or not.  Green was sitting in the lounge room when you entered into the unit, and Penno was in his bedroom with the two females.  Atkinson told Green that he wanted the $40 for the GPS unit that he had left behind earlier in the morning.  The men started walking through the unit, going in and out of rooms, and Green told them that the person they were looking for was not home.  Green felt intimated and scared and told the men to leave the property.  Penno was aware the intruders were in the unit, so he stood with his foot up against the door to stop them from coming into his bedroom.

11Green ended up in the hallway with Atkinson and another offender. The other offenders stayed in the lounge room, where they filled bags with a PlayStation console and several computer games.  By this stage an offender who the prosecution are unable to nominate had armed himself with a display machete that he had found in one of the bedrooms.  The offender pushed Green up against the wall in the hallway and held the machete to the left side of his throat.  He held the machete to Green's throat and walked him to the locked door, where Penno and the two females were hiding.  He told Green to open the door and then put the tip of the machete at Green's back.  Atkinson yelled at Green, continuing to demand the $40.  The armed offender held Green against the bedroom door and grabbed his head with two hands and repeatedly bashed Green's head into the bedroom door three to five times.

12An offender still had hold of Green's hair when he kicked the bedroom door several times.  Atkinson had also kicked at the bottom of the door, and both of them managed to completely destroy the bottom of the door.  Penno unlocked the remaining top half of the door and Atkinson and another offender entered the bedroom, where Penno and the two girls were.  The machete was pointed towards Penno's face as Atkinson demanded money and drugs.  Another offender then grabbed an iPad out of Cassidy Flight's hands, and also picked up a mini MacBook computer from the bed and put the computers into a black bag that Atkinson was holding.

13Atkinson told Penno that he would give the computers back if he was given $40.  Penno took $50 from a shelf in his room and gave it to Atkinson, who said:  "Where's the rest of your money?"  Penno told the men that they did not have any more money.  At this point you, Keith Carey, entered the bedroom holding a knife that you had found in the unit while the armed robbery continued.  Penno retrieved the remaining $100 from his shelf and gave it to Atkinson, telling him that that was all he had, and then returned to the lounge room and continued to search for more valuable items.  Atkinson pointed out a laptop case, which the men took, and then they all left the unit.  On the way out Atkinson said to the two males:  "Don't call the cops.  Don't think we won't come back and slice your throat."  Penno followed the men out of the unit and watched them get into the Mazda sedan, which was driven then by Robert Bowen.

14The prosecution cannot prove beyond reasonable doubt that you, James Carey, were armed at any stage during the incident, and accept the plea of guilty to Charge 1; the armed robbery charge on the indictment, on the basis that you knew an armed robbery was unfolding, you remained, and were prepared to assist as required.

15The accused men returned to Atkinson's unit, where they divided up the stolen property.  I will not list the stolen property in full.  You, the Carey brothers, took the stolen iPad and left Atkinson's unit.  You met friends at nearby Strathdale Shopping Centre and travelled to Maldon to reside with your friends.

16Green sustained cuts to his throat and swelling and bruising and cuts to the left rear side of his head.  Green experienced pain from his injuries and sought medical treatment at the Bendigo Hospital later in the evening.  James Penno did not sustain any visible injuries.  The two females in the unit, Flight and Barnaby, were not physically injured.

17On 14 March 2014 police executed a search warrant at Atkinson's unit in Townsend Street, Kennington.  Atkinson recovered the stolen iPhone4 with the yellow sticker on the back from the garden and handed it to police.  Police also recovered a stolen Katana sword, which was secreted in the roof space of Atkinson's house.

18On 14 March police arrested both of you; James and Keith Carey, who were passengers in a car that was parked near Kangaroo Flat.  Police recovered the stolen iPad 3 with the Superman stickers on the back from the car, that you were both passengers.

19On 16 March 2014 police located and received a machete with a zombie print on the blade, which had also been stolen from the unit.

20Keith Carey; you were interviewed by police on 17 March 2014.  You played down your role in the offending and claimed that you had no knowledge the co-offenders were going to the unit to “burgle it”, as you described it.

21James Carey; you were interviewed by police and exercised your right to remain silent.  On 17 March 2014 police recovered a stolen MacBook Air computer from Ieshia Singh, who had received the stolen property from Egan on 15 March 2014.

22I recounted the full prosecution summary to demonstrate the level of your respective roles in this offending.  It is clear that William Atkinson was the leader and organiser of the raid.  In the course of this offending, Keith Carey, you have armed yourself with a knife from the kitchen.  There is no evidence you had used a knife to injure or threaten any of the occupants in the premises.  James Carey, the prosecution accept it cannot prove you were armed with any weapon during the incident.  The accepted position is that you knew an armed robbery was unfolding and you remained prepared to assist if required.

IMPACT ON YOUR VICTIMS

23The offending resulted in the injury to Norton Green.  Mr Green sustained cuts to his throat and the left rear side of his head.  He also had pain, swelling and bruising.  No doubt he has suffered psychologically, along with the fellow occupants of the house, or the unit, at the time of the offence.  Each of them have declined the opportunity to make a victim impact statement.

PERSONAL CIRCUMSTANCES OF JAMES CAREY

24I turn to your personal circumstances, and I will deal with you separately.  I will start with you, James Carey.

25You are 36 years old.  You have a total of eight prior court appearances which include driving offences, dishonesty offences, violent offending and property offences.

26In 1997 you were sentenced to a youth training centre for theft, and theft of a car.  In the same year, in 1997, you had a suspended sentence for burglary.  In 2001 you were sentenced to a four month intensive corrections order for intentionally cause injury and intentionally damage property.  Your offending since then has been motor vehicle or driving related offences except for one appearance for theft in 2005.  In respect of these offences you had no reason whatsoever to be present at the unit except to support whatever Atkinson was going to do there.

27You have had a very violent upbringing at the hands of your father.  You still retain a relationship with your mother and your stepfather.  You live with them in Epsom.  You are currently in a relationship with Kimberly Castle and you have a five month old son, Noah, with her.  You have had no contact with your own father since you were 21.  You described to Mr Cummins, psychologist, the extent and nature of beatings that your father had given you and your brother and sister.  You were hospitalised for months as a result of one of those beatings.

28Your education was interrupted because of the family violence and you attended primary school at Berriwillock, Sea Lake and Swan Hill.  As I understand it you went to high school in Lakes Entrance and finished Year 9 at Swan Hill High School.  After leaving school you worked in a feedlot and as a concreter, at the Ardmona factory near Shepparton.

29In 2008, whilst you were working at a truck body construction business in Warragul you were injured in an angle grinder accident.  You were on compensation for a period of time and then you were terminated from your employment.  You are currently on job search allowance.  You continue with your compensation claim and your physical rehabilitation for your injury to your left leg.  You are in constant pain in your left leg and take Panadeine Forte and Nurofen to control that pain.

30You have had three main relationships and a total of seven children, including a child that you adopted.  You told Mr Cummins that you had a problem with alcohol but you have never had any treatment for your dependence upon it.  You are not a regular user of other drugs but have used cannabis, amphetamine and methylamphetamine in the past.

31Mr Cummins has assessed you as suffering from residual symptoms of PTSD, or post-traumatic stress disorder, and adjustment disorder as a result of your industrial accident in 2008.  Mr Cummins assesses you as having dependent personality style. 

32Mr Cummins' opinion is that your mental health will deteriorate if you are in prison.  You have started a course to retrain yourself in the use of heavy construction vehicles.  To date, that course is not completed, but it is a sign that you are motivated to rehabilitate and re-engage with work and support your partner and young child.

PERSONAL CIRCUMSTANCES OF KEITH CAREY

33Keith Carey, I turn to your personal circumstances.  You are now 30 years old.  When you were last in custody, you were informed that you were of indigenous heritage.  You do not identify yourself as Koori or mix with the Koori community.  You have relevant prior criminal convictions in 2002 at Swan Hill Magistrates' Court.  You were placed on a without convictions, s.19B bond for using telecommunication service to menace.

34In 2004 at Swan Hill Magistrates' Court, you were placed on a community based order for intentionally threaten serious injury.  In 2006, you were dealt with for breach of that CVO and convicted and fined $775.00.

35In 2007, there were two court appearances for driving charges, not directly relevant in these proceedings.  In 2013 at Wangaratta Magistrates' Court, you were convicted of intentionally cause injury, recklessly cause injury and criminal damage and sentenced to an aggregate sentence of six months imprisonment.  You served four months and you had two months suspended for twelve months.  At the time of these offences, you had just completed the suspended gaol term period or operational period for that gaol term by five weeks. 

36You were born in Swan Hill.  You had a disruptive time in your formative early life.  As I have said before, you were subjected to beatings from your father.  You have two siblings, James the co-accused and your sister Julie, who you last had contact with some 20 years ago.

37You do not have contact with your parents.  You were "adopted" out of your family when you were nine years old.  You told Carla Lechner, a psychologist, that you attended no less than 364 schools, some for as long as one day.  You advised Ms Lechner that you had been physically abused by both your parents.  Your father was particularly violent and your mother escaped with you and your siblings to Sale.

38Your father traced you and the family to Sale.  Your mother then returned to Swan Hill and you were taken away at that stage by welfare.  You reported that you were diagnosed with ADHD when you were 12 years old.  You completed your formal education at Year 7.  You then worked on a number of farms and led the life of an itinerant worker.  You have been a long term drug abuser.  You commenced smoking marijuana at an early age.  You have used LSD, ecstasy, cocaine, methylamphetamine, amphetamines.

39Whilst using ice, you have had psychotic symptoms of paranoia and auditory hallucination.  You have also been a heavy drinker, reporting that you would drink up to one to two slabs of beer a day.  You told Ms Lechner you are an aggressive drunk.  Clearly, you have an ongoing problem with substance abuse.

40Ms Lechner in her report dated 22 June 2015, has assessed you in the mildly intellectually disabled range of cognitive functioning.  Ms Lechner had diagnosed you as suffering from major depression, with features of post-traumatic stress disorder.  I have heard evidence from Mr Ken Hibbert who described you as a hard worker, who had improved your attitude to people and authority such as police.  He described how your strong relationship with your girlfriend Kim has been a positive factor in your life. 

41Daniel Perton has known you from your days in Swan Hill.  You have in the past lived with Mr Perton and his wife.  Mr Perton said you had effectively been rejected by your own family and now were part of the Perton family.  He described you as someone who “wanted to be wanted”. 

42Ms Leanne Smith told the court how you had lived with her in the past, and helped her looking after her children.  She said "That with the right support, you do great".  They are her words.  You are currently unemployed, but worked for some two days a week as a greenkeeper at the Bendigo Golf Club.  You live in Neilborough with Mr Darrell Smith.  You have children that do not live with you.  You are in a stable relationship with Kim and have the support of her family.  You still use cannabis.

SENTENCING CONSIDERATIONS

43I will now turn to sentencing considerations.  As I say, the first consideration I take into account is that each of you have pleaded guilty to the charges on the indictment.  The plea of guilty was made after some negotiations with the prosecution.  Your plea of guilty has utilitarian value of allowing orderly and effective administration of justice.  It gives certain outcome to your cases and a resolution of the substantive issues raised by your offending.  Your pleas allow for the preservation of court and police resources to deal with other matters, and your pleas vindicates the public confidence in the legal process set up to protect the community.  A plea of guilty to these charges indicates and demonstrates some remorse on behalf of both of you for the offending.

44Your pleas are clear acknowledgement that you accept your responsibility for your criminal behaviour in this case.  Your pleas also recognise you are willing to facilitate the course of justice in the community.  Whilst each of you accept the summary of the prosecution opening as the appropriate basis for sentencing, you have maintained a difference in your respective roles.

45James Carey, you have maintained you never went into the unit at the time of the armed robbery.  You accept you are complicit in the offending and prepared to assist as required.  Keith Carey, you maintained you were making sure no harm came to the girls present in the unit.  As I have said, I accept your plea shows some remorse, but each of you sought to downplay your involvement in these offences.

46The principle of parity in sentencing is enlivened in this case.  The parity principle is based on a notion of equal justice and the need for consistency in sentencing.  Your co-accused William Atkinson was sentenced to a total effective sentence of three years imprisonment, with a non-parole period of eighteen months.  Atkinson's offences were more extensive than those faced by each of you.  Atkinson's role in the offences of armed robbery and of theft was more significant than each of you.  Atkinson planned it and was the leader in the offending.

47Each of you went along for the ride and participated to a lesser extent as events unfolded.  Mr Egan, a young offender, was dealt with under a different sentencing regime to each of you and was placed a youth justice centre order.  Each of Egan and Atkinson had more extensive criminal histories than either of you.

48As between yourselves, the issue of parity is that whilst there are slight differences to your roles in the offending. Keith got a knife at the premises and was motivated by collecting his $20 from Mr Atkinson, or through Mr Atkinson.  James, you are the older brother, and were in the house with the people who you did not know.  The respective roles of each of you in this case are so similar, that parity deems that you are to be punished equally.

49In respect of the past criminal histories, James you have eight prior court appearances involving in part property and violence offences.  Keith, you have six prior court appearances involving in part property and violence offences.  Your latest appearance was a suspended sentence which you completed only five weeks before these offences.

50The similarity of your prior criminal histories, although different in periods of time they are spread over dictates that there is no significant difference between you when considering the appropriate sentence for these offences.  Mr Moglia, on behalf of James Carey, and Mr Marshall, on behalf of Keith Carey, submitted that whilst Verdins did not have direct application to either of you, the fact that each of you suffer from compromised cognitive functioning and depression in Keith's case, that incarceration would have a deleterious effect on both of you in respect of your mental health.

51I accept incarceration will be more difficult for each of you in comparison to the person of normal mental health and cognitive functioning.  I take that into account when fixing the totality of your sentences.  I accept that for each of you, that these two charges are appropriately dealt with as an aggregate sentencing disposition.

52You have each been assessed as suitable for a community corrections order with conditions.  The offence of armed robbery and the offence of theft all occurred in the same or one series of events at the unit. 

53The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.

54In sentencing each of you, I must have regard to a range of factors such as the seriousness of your offences, your individual culpability for them and your personal circumstances.  I am required to balance the interest of the community in denouncing your criminal conduct and secondly, to ensure that as far as possible as an offender, each of you are rehabilitated and reintegrated into society.

55I am mindful of the provisions of the Sentencing Act and in particular s.5(4)(C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is imposed. I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case.  The principles of general and specific deterrence require that a sentence of imprisonment is appropriate in this case.  Denunciation of your behaviour and just punishment, also require a term of imprisonment to be imposed on each of you.

56In your case Keith Carey, I regard your prospects of rehabilitation as guarded.  I note you have been assessed by the Office of Corrections as at moderate risk of re-offending.  In order to promote your prospects of rehabilitation, you will be placed on a community corrections order upon your release from prison.  The conditions will include supervision, drug and alcohol assessment and treatment, mental health assessment and treatment for your depression and offender reduction programs.

57In your case James Carey, your prospects of rehabilitation are also guarded.  You have been assessed as at medium risk of re-offending by the Office of Corrections.  In order to assist you in your rehabilitative path, you will be placed on a community corrections order upon your release from prison.  The conditions will include supervision, drug and alcohol assessment and treatment and mental health assessment and treatment.

58In each of your cases, a combination of imprisonment and a community corrections order is the appropriate sentencing disposition.  Would you please stand. 

59James Carey, on Charge 1, you are convicted and sentenced to six months imprisonment.  On Charge 2, you are convicted and ordered to serve a community corrections order for two years commencing immediately upon your release from prison for Charge 1. The conditions are supervision, drug assessment and treatment, alcohol assessment and treatment, psychiatric assessment and treatment.

60I declare that you have served seven days pre-sentence detention which will be deducted administratively from your sentence. I make the disposal orders sought and consented to by you. Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a total effective sentence of 15 months. That is for both charges.

61Keith Carey, Charge 1, you are convicted and sentenced to six months imprisonment.  Charge 2, you are convicted and ordered to serve a two year community corrections order commencing immediately upon your release from prison for Charge 1. 

62The conditions of your community corrections order are supervision, drug assessment and treatment, alcohol assessment and treatment, mental health assessment and treatment and offender reduction programs. I declare that you have served eleven days pre-sentence detention which will be deducted administratively from your sentence. I make the disposal order which was sought and consented to by you and pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to fifteen months aggregate sentence for both these charges.

63MR CORDY: Your Honour, I make application in respect of both accused for a forensic sample, pursuant to s.464ZF of the Crimes Act.

64HIS HONOUR:  Yes.

65MR MOGLIA:  Not opposed.

66MR MARSHALL:  Yes, not opposed.

67HIS HONOUR: Thank you. James Carey, I am ordering that pursuant to s.464ZF of the Crimes Act, that the authorities are authorised to take a sample, that is a DNA sample from you, that is done by taking a scraping from your mouth. If you do not comply with that, they have the power to use reasonable force in order to obtain one. Do you understand that?

68OFFENDER J CAREY:  Yes.

69HIS HONOUR: Thank you. Keith Carey, I am making an order that under 464ZF of the Crimes Act, that the police or the prison authorities can take from you a scraping from your mouth, in order to obtain a DNA sample. Do you understand that? Thank you.

70MR CORDY:  As Your Honour pleases.

71MR MOGLIA:  As Your Honour pleases.

72HIS HONOUR:  Mr Moglia and Mr Marshall, you can go to the dock and assist in the signing of that order.

73MR MOGLIA:  Thank you, Your Honour.

74HIS HONOUR:  Yes, you can remove the prisoners, thank you.  Mr Moglia and Mr Marshall, thank you very much for your assistance.

75MR MOGLIA:  As Your Honour pleases. 

76HIS HONOUR:  Thank you, Mr Prosecutor.  Adjourn until 9.30 tomorrow, thank you.

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