Director of Public Prosecutions v Carlyon
[2023] VCC 1271
•18 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01666
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAE CARLYON |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 July 2023 | |
DATE OF SENTENCE: | 18 July 2023 | |
CASE MAY BE CITED AS: | DPP v Carlyon | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1271 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentence
Catchwords: Attempted robbery – possession of Xanax – youthful offender
Cases cited: Worboyes v The Queen [2021] VSCA 169; Boulton v The Queen [2014] VSCA 342; R vMills [1998] VSC 241
Sentence:Convicted and ordered to serve a Community Corrections order for a period of two-years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Worrell | The Office of Public Prosecutions |
| For the Accused | Mr L. Howard | Victoria Legal Aid |
HIS HONOUR:
1Trae Carlyon, on 18 July 2023 at the County Court here in Melbourne you pleaded guilty to the following charges on indictment no. N10913835:
Charge 1, was attempted robbery, this charge has a maximum penalty of 20 years' imprisonment.
Charge 2, possession of a drug of dependence, alprazolam, which is Xanax.
This charge has a maximum penalty in your case of one year imprisonment in the circumstances of your offending.
2You have no prior convictions. You were granted bail after your arrest. You have no pre-sentence detention.
The circumstances of your offending
3The prosecutor tendered a Summary of Prosecution Opening upon the Plea which was dated 18 October 2022. It was Exhibit “A”. The opening was read into the record of the court. I will refer to it in part.
4
On 9 May 2022 at approximately 6 am, you ordered a taxi via Melton Taxis.
You wanted to be taken from 52 Church Street in Melton to Hampton Park. At 6.25 am Mr Singh arrived at Church Street in Melton and collected you in his taxicab which was a Toyota Kluger.
5
You then were wearing a black coloured New York branded beanie, a
black-hooded zip jacket and light grey tracksuit pants. You stated that you wanted to be taken down to 12 Oaktree Drive in Hampton Park and Mr Singh advised you that he would require $200 pre-payment before leaving. You stated you did not have the necessary money and that you had to be taken to the local Westpac ATM to get the money out to pay him.
6When you got there you took out a hundred dollars from the ATM and provided Mr Singh with that amount, saying you would give him the rest when you got to Hampton Park. Mr Singh stated he would not drive you anywhere unless he had the full payment. So you then requested that you be taken home. As you were driving home you got Mr Singh to pull up in a nearby street within Melton. You then told him to park the car and you produced a knife. You stated, 'Give me your phone and your wallet or I'll stab you'. That's the attempted armed robbery.
7Mr Singh then grabbed your wrist and in effort to appease you he offered to take you down to 12 Oaktree Drive in Hampton Park. You then relaxed a little bit and placed a knife between your legs on the seat of the taxi. You asked him to turn off the dispatch radio because you thought he could contact the police that way. Mr Singh complied with you. You were then driven down to Hampton Park. On the way you stated to Mr Singh on a number of occasions, 'If you do anything wrong, I have a knife. If you go to a police station, I'll stab ya'.
8Other than that sort of threatening language the two of you engaged in conversation concerning your families and other topics. Along the way you were pumping yourself up, because you told him you were a “big gang man” and indicated if you needed people from the city, all you needed to do was to call them.
9In any event, you kept asking him how far it was and how long it would take to get to Hampton Park. When you were getting close you placed your knife in the sock of one of your socks. You then told him when you got to Hampton Park that you would pay him once you got the money from the guy that you were meeting down Hampton Park and asked him to wait for you so he could take you back to Melton.
10Just before 8 o'clock in the morning of that day, you exited the vehicle and he, Mr Singh, drove away. There was contact made between Mr Singh and his controller and the police were called. The police turned up around about 9 o'clock in the morning and located you on the corner of Manning Close and Pound Road in Hampton Park. You were still wearing the same clothes that you had on in the taxi.
11At about 9.20 the police arrested you. You were then searched, and the following items were seized from you:
a) A 20cm long black handled steak knife with a 10 cm blade.
b) A Samsung mobile phone that was in your right pocket of your pants;
c) Whilst you were placed in the back of a divvy van, police searched you and located a zip lock bag containing 10 whole and three partial Xanax tablets in your left pocket.
12You were then conveyed to Narre Warren police station. Due to your condition, you were assessed by a medical officer and declared that you were unfit to be interviewed. Later on, the police obtained the CCTV from the taxi, which clearly showed it was you. You entered a plea of guilty to these charges at the committal mention stage. You have been on bail for 14 months.
Your personal circumstances
13You were 22 years of age at the time of the offending, you are now just turned 24. You live with your parents and your two younger siblings, aged 15 and seven years of age. When you were 18 years old you moved out of the family home and into a share house. This was the result of some difficulties you had with your father.
14Your father has worked as a personal trainer and a prison officer. Your mother worked in the retail industry and is re-training to be a receptionist, as I understand it now works as a receptionist. Your younger siblings are both at school.
15You attended Melton Primary School and then attended Kurunjang Secondary College. You got halfway through Year 11 and gave it away. You have worked in the trades of a pastry chef; carpentry; and tiling. When you left home at 18 years old, you were on a job search allowance. You had enrolled in a Bachelor of Health Science course online at the University of South Australia. You ceased that course due to your anxiety about today's result.
16You initially smoked cannabis. You then used cocaine and Xanax. Indeed, at the time of the offending you were in possession of Xanax tablets. You were on CISP bail for 16 weeks after your arrest. You have been drug free since your arrest to the hearing of these charges.
17Jeffrey Cummins, a forensic psychologist, has assessed you for the purpose of this proceeding. His report dated 1 June 2023 was Exhibit 2. He assessed you as suffering from symptoms of major depressive disorder. He also assessed you as a low moderate risk of committing further violent offending. You expressed remorse for your offending and that you were apologetic for it, and said as much to Mr Cummins.
18
Your mother, auntie and grandmother have set out in their references that you are remorseful, and you have told them about it. You have been the victim of an assault since this offending, which resulted in your hospitalisation for head injuries.
As you know crimes have consequences for the victim and for the perpetrator. You know that from both ends of the same stick.
19Your victim as I understand it, had the opportunity to make a victim impact statement but decided not to. No doubt, he was very frightened by what you did.
Sentencing considerations
20The basic purpose for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions and the protection of the community. In sentencing you I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances. I am required to balance the interest of the community in denouncing your criminal conduct, with the interest of the community and in seeking to ensure that as far as possible, you as an offender are rehabilitated and reintegrated into society.
21I am also required to take into account current sentencing practices in fixing your sentence. That enquiry's directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences. I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as indeed they are from one another. Of course, current sentencing practices is only one of the considerations I have to take into account.
22You have pleaded guilty to these charges. A plea of guilty was indicated at the committal mention stage. It is an early plea. Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice, there is a certainty of the outcome and resolution of the substantive issues raised by your offending.
23Your plea also allows for the preservation of court and police resources to deal with other matters and your plea vindicates the public confidence, set up in the legal process to protect the community.
24Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion. Your plea also recognises you are willing to facilitate the course of justice and I accept that your plea to these charges indicates and demonstrates remorse on your part. Your plea has relieved your victim, Mr Singh, of the stress and inconvenience of giving evidence at a committal, or a trial.
25The pleas of guilty also have a further utilitarian value because the plea is given at a time which is effectively in the COVID-19 pandemic. You have not sought to delay the finalisation of these charges by conducting a trial at some indeterminate date in the future. The Worboyes discount as it is called applies to your sentencing process.
26You are a youthful offender. It is a principle of sentencing law when a young offender such as yourself, is to be sentenced, the sentencing disposition should be tailored to take into account all other sentencing considerations to promote your rehabilitation. This approach serves the interest of the individual offender and the community in general.
27In the case of Mills, the three propositions about sentencing youthful offenders is set out: (1) the youth of an offender, particularly a first-time offender such as yourself, should be a primary consideration of a sentencing court where that matter properly arises as it does here; (2) in the case of a youthful offender, rehabilitation is usually far more important than general deterrence as a sentencing consideration. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. In short, rehabilitation benefits the community as well as yourself, the offender; (3) is that the youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if the offender is beginning to appreciate the effects of his past criminality. I accept that this is the case with you.
28The benchmark of what is serious and just defines adult imprisonment may be quite high in the case of youthful offender, where the youthful offender has not previously been incarcerated, a shorter term of imprisonment must and maybe justified.
29You have no prior convictions. Your offending occurred in circumstances where you had been using Xanax and were going to see a drug related associate in Hampton Park. You have had a four-year battle with using drugs of addiction up to the point of these offences. You have undergone 16 weeks on a CISP bail program. You tell Mr Cummins you are not using cocaine or Xanax now. Your mother confirms that you are off the drugs at the moment.
30Drug addiction is your problem and the basis of your criminality on this occasion. Your drug addiction is not an excuse for your criminal behaviour, it is causally related to your criminality.
31Your counsel has submitted a Community Corrections Order was the appropriate penalty in your case. I have considered the principles of Bolton's case, and had you assessed for CCO as you know. You have been assessed as being suitable for a Community Corrections Order. The prosecution also concede that at Community Corrections Order was within range as an appropriate penalty in this case, that of course is not the end of the matter.
32Your offending is serious. The charge of attempted armed robbery carries a maximum penalty of 20 years' imprisonment, and the seriousness of your offending is marked out by the following matters:
(a) Your victim was working alone and confined in his taxi when you offended, he was a soft target;
(b) You held your knife up to Mr Singh when you have demanded his phone and his wallet;
(c) This offending was completely without planning, at best it was opportunistic type offending;
(d) After the offending, you had been challenged, you travelled with your victim from Melton down to Hampton Park. The offending was protracted in the sense that it was for the whole trip;
(e) You asked your victim to wait for you at Hampton Park because you would get the money owed to you and be back to pay the taxi driver; and
(f) You were always going to be caught: your pick-up point was your home; your precise destination was known; and the CCTV in the taxi easily identified you as the offender.
33I assess your offending as low-level offending, almost to be properly described as inept and silly. This does not take away from the fact that you undoubtedly gave Mr Singh a very serious cry and cause for concern.
34Your prospects of rehabilitation are guarded, as they are directly related to your ability to control and overcome your addiction to illicit substances. If you relapse to drug use, you will come back to the criminal justice system repeatedly with the inevitable consequence of what I describe as catch and release, punctuated by ever-increasing terms of imprisonment. In short, it is up to you, which path you choose to follow, drugs or no drugs.
35You have very dedicated parents and a wider family support who are here with you in court today, they are standing by you. No doubt over the course of your life, and in particular your drug using life, you have caused an incredible heartache. They are still here to assist and support you today. You are to want of their support of you.
36The sentencing principles of general and specific deterrence, protection of the community, rehabilitation and just punishment dictate that in your case it is appropriate for you to be given a chance, to be punished and rehabilitated through the imposition of a Community Corrections Order.
37Would you stand please?
38On Charge 1, you are convicted and ordered to serve a Community Corrections Order for a period of two years, commencing today. The conditions of that order are as follows:
(a) That you are to be supervised.
(b) That you are to perform 250 hours of unpaid community work.
(c) That you are to attend to drug treatment and rehabilitation as directed by Corrections.
(d)
That you are to attend and receive mental health treatment as directed by Corrections and you are to attend a judicial monitoring, which is fixed for
16 October 2023 at 9.30 am. That means you come back here.
(e) And I declare that the hours you spend in either drug rehabilitation or your mental health treatment are to be accredited to the unpaid hours of community work pursuant to s48CA of the Sentencing Act.
39Now, I will make that last condition or order to encourage you to partake in drug rehabilitation and for your mental health treatment. It is for your benefit.
40On Charge 2, you are convicted and fined $750.
41Section 6AAA. But for your plea of guilty, I would have sentenced you to a straight sentence of 12 months.
42Does that cover everything?
43MS WORRELL: I'm just thinking the disposal and forfeiture order as well, Your Honour, thank you.
44HIS HONOUR: Yes, thank you. And I will sign the disposal order in respect of the Xanax tablets.
45MS WORRELL: And there was also forfeiture of the knife. Thank you, Your Honour.
46HIS HONOUR: I'll sign the disposal and forfeiture order. When that document is produced, I'll give it to your counsel, he can show you and you can sign it if you agree to the CCO, if you don't agree, I'll do something else. You can take a seat for a minute, yes. Thank you.
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