Director of Public Prosecutions v Carter
[2018] VCC 277
•13 March 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-16-02201
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JYE CARTER |
---
JUDGE: | HIS HONOUR JUDGE MASON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 & 13 March 2018 |
DATE OF SENTENCE: | 13 March 2018 |
CASE MAY BE CITED AS: | DPP v Carter |
MEDIUM NEUTRAL CITATION: | [2018] VCC 277 |
REASONS FOR SENTENCE
---
Subject:Plea - sentencing
Catchwords: Armed robbery
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:80 days’ imprisonment (time served) and 18-month Community Correction Order
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C. Foot | Office of Public Prosecutions |
| For the Accused on 8 March 2018 | Ms N. Kaddeche | Emma Turnbull Lawyers |
Pages 1 - 8
HIS HONOUR:
1Mr Carter, you have pleaded guilty to one charge of being a prohibited person in possession of an imitation firearm and one charge of possession of a drug of dependence.
-The maximum penalty for the offence of prohibited person possessing an imitation firearm is 10 years' imprisonment or 1200 penalty units.
-The maximum penalty for possessing a drug of dependence in your case, where I am satisfied on the balance of probabilities that the offence was not committed for any purpose related to trafficking, is 12 months' imprisonment or 30 penalty units.
2You were born on 30 August 1978 and are currently 39. At the time of the offending you were aged 37.
3You have a prior criminal history about which I will go into more detail shortly.
4By way of background to the offending, at the time of the offending you were the Sergeant at Arms of the Finks Motorcycle Club, Ringwood chapter.
5You were a ‘prohibited person’ at the time of this offending as defined in s.3 of the Firearms Act 1996.
6In 2015, Echo Taskforce detectives conducted an investigation into the criminal activities of the Ringwood Chapter of the Finks Motorcycle Club. The Ringwood Chapter operated out of premises in Yallourn Parade, Ringwood.
7As part of the investigation, detectives utilised optical and listening devices within the Yallourn Parade premises and identified various persons, including you, as members or associates of the Ringwood Chapter of the Finks Motorcycle Club.
8I understand the position that you held as Sergeant at Arms is that of what is known as an "enforcer".
9Conversations were recorded by listening and optical devices installed in the ‘boardroom’ of the premises.
10On 8 December 2015, police were monitoring the optical and listening devices installed in the ‘boardroom’ at the Finks' Ringwood Clubrooms.
11At 10.13 pm you entered the ‘boardroom’ in possession of an imitation handgun. A Mr Hadis was also in the room at the time. You pointed to the imitation hand gun and spoke to him before you handed the imitation hand gun to him. This gives rise to Charge 1: being a prohibited person in possession of an imitation firearm.
12On 15 December 2015 at approximately 6 am a search warrant was executed at your home address. You were not present at the time. Located in your bedroom was a ziplock bag containing a brown-coloured substance. The substance was analysed and found to be 6.1 grams of benzylpiperazine (known as BZP). This gives rise to Charge 2: possession of a drug of dependence.
13At approximately 7 am on 15 December you were arrested at the Finks' Ringwood Clubhouse and subsequently interviewed by police. You made admissions to possession of an imitation firearm.
14You were held in remand custody for these matters from 15 December 2015 until 3 March 2016, so pre-sentence detention in relation to this matter is 80 days. I also note that on 4 March 2016 you commenced a 14-month sentence for other offences whilst you were on remand for the current offending. You were released on bail for these offences on 25 April 2017.
15I now turn to your personal circumstances.
16As I noted earlier, you are now aged 39 and you were 37 at the time of this offending.
17You have quite an extensive criminal record, commencing at age 18 in the Albury Local Court when you were fined for driving offences. You continued to appear in New South Wales’ Local and District Courts more or less continually for the next 14 years - and have been variously fined, imprisoned and placed on community-based orders - for drug, driving and violence offences.
18You then left that State and commenced your criminal career in Victoria with an appearance in the Melbourne Magistrates' Court in May 2012 when you were fined for driving offences. Convictions for drug, driving and violence offences again followed, with terms of imprisonment. The 2014 matters included extortion and assaults.
19The most recent previous sentences were imposed only two and a half months before re-offending on the current matters and involved similar matters, drug and firearm related.
20You were finally released from prison on 25 April 2017, some ten and a half months ago, and have not re-offended since.
21You had a difficult early life growing up in Albury where your father was a strict disciplinarian, prone to fighting, and you witnessed a lot of violence. He was allegedly murdered when you were 19. You and your father shared a mutual love of motorcycles and you have joined various motorcycle clubs, predominantly for the members’ mutual love of riding but also for the disciplined code.
22You are talented at drawing and painting and work as a tattooist.
23A 2014 report tendered as Exhibit 2 refers to an earlier history of mood fluctuations, anger, anxiety and depression. A 2016 report by psychologist Kris Nickless refers to your involvement with drug and alcohol issues. I note that during your time in custody for your August 2014 convictions, you provided regular samples for drug detection as well as completing semi-intensive rehabilitation programs.
24Your firearm possession - that is, the imitation firearm - is serious because of the use which can be made of such an item for purposes of intimidation and robbery.
25The possession of dangerous illicit drugs such as BZP is serious not only for the personal danger to health that it carries but also for the criminal element that is created in its trade and the offences which often result from individuals damaged by its use.
26In mitigation, I take into account the matters submitted by your counsel including:
· your plea of guilty, both for its practical effect and as evidence of remorse;
· your admissions;
· the efforts you have made in custody in attending to rehabilitative courses and providing samples negative to drug use in prison;
· that since being bailed from custody in April 2017 you have maintained gainful employment and have not reoffended;
· the support you continue to have from your family and girlfriend and the support you give to your twin daughters from an earlier relationship; and
· the time you have spent whilst on remand for this matter while serving a sentence of imprisonment on an earlier sentence. Some portion of that period will be allowed in a broad way. I note that you spent the full time of that earlier sentence in custody without any parole period.
27In all the circumstances, it is my view that the balancing of sentencing purposes is best achieved by allowing the time served in remand custody in this matter to stand as the total time served in confinement for these offences.
28However, I consider it necessary to add a period of further time to be served within the community for you to undertake unpaid community work and at the same time allow you to get support for any underlying drug or behavioural issues that you have that might otherwise lead to a relapse into conduct that might cause a return to crime.
29In my view this is a better option in the community's interest than returning you to prison after you have taken serious steps to avoid further crime.
30You have been assessed as suitable for a community correction order.
31Mr Carter, could you please now stand?
32On Charge 1 of being a prohibited person in possession of an imitation firearm you are convicted and sentenced to 80 days’ imprisonment.
33The sentence starts today.
34As to this term of imprisonment, you were remanded on this matter on 15 December 2015 and remained in prison until a sentence for another matter commenced on 4 March 2016 and ended on 25 April 2017 when you were granted bail. So, pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 80 days be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
35Now, I note that since the pre-sentence detention equals the term of imprisonment it is my intention by the sentence that I am imposing that Mr Carter not be taken into custody. The term of imprisonment has actually been served by the taking into account of the pre-sentence detention. So, do you understand that, Mr Custody Officer? Thank you.
36Continuing the sentence, on Charge 1 of being a prohibited person in possession of an imitation firearm and Charge 2 of being in possession of a drug of dependence you are also ordered, with conviction, to serve a community correction order for a period of 18 months.
37The community correction order commences today and ends on 12 September 2019. The Corrections centre you will attend is the Reservoir Community Correctional Service on the ground floor of 909 High Street, Reservoir, and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm this Thursday 15 March.
38All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you perform 100 hours of unpaid community work as directed by the regional manager:
· you undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
· you undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric, if necessary at a hospital or residential facility, as directed by the regional manager; and
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the Regional Manager.
39I realise you have already had the mandatory terms of the community correction order explained to you but I will just go over them again now. The mandatory, that is, compulsory, terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must comply with the requirements of Regulation 17 of the Sentencing Regulations 2011 which essentially set out your obligations as to your attendances at the community corrections centre, such things as not attending drug-affected or alcohol-affected;
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre, that is the Reservoir Centre, within two clear working days of the order starting - and, as I have already indicated, that is by this Monday at 4 pm, 15 March;
· you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from the community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing.
40Do you understand and agree to those conditions, Mr Carter?
41OFFENDER: Yes, I do.
42HIS HONOUR: Now, if you get sick or if exceptional circumstances arise the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case, you must notify the Reservoir Community Correction Centre. I recommend that you obtain legal advice if any of these things happen.
43However, I must warn you that if you breach any condition of this order you will be brought back to court and that will be back before me. One of the options open to me is to cancel the community correction order and resentence you on the original charges and I may also deal with you for the breach by sending you to prison for up to three months on the breach offence itself.
44So, do you understand the consequences of breaching your community correction order?
45OFFENDER: Yes, I do.
46HIS HONOUR: Thank you. I will ask you to sign the community correction order shortly.
47Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed on Charges 1 and 2 on the indictment is 18 months' imprisonment with a minimum period of 12 months to be served before eligibility for parole.
48At the plea hearing the Crown sought an order for a forensic sample and I make that order today for the reasons noted on the order, namely, that the seriousness of the offending warrants the making of the order, your prior convictions warrant the making of the order, the order is by consent and the making of the order is in the public interest.
49I also need to inform you that if at the time of the request for the sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Carter?
50OFFENDER: Yes.
51HIS HONOUR: At the plea hearing the Crown also sought a disposal order to which you consented and I have made that order today. Are there any other matters from either counsel?
52MS FOOT: No, Your Honour.
53MR RUDSTON: Thank you no, Your Honour.
54HIS HONOUR: You can leave the dock now. I'm just going to get you to sign the order before you leave the court but you can leave the dock in order to do that. Come down and sit down behind your counsel, Mr Carter.
55Can you sign that now and then I will counter sign it. That's the correction order? Thank you.
‑ ‑ ‑
0
0
0