Director of Public Prosecutions v Carter
[2015] VCC 1919
•4 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTIONCR 15-01317
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAYDEN ALAN CARTER SHAUN MICHAEL CRANE |
---
| JUDGE: | HIS HONOUR JUDGE MULLALY |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 4 December 2015 |
| CASE MAY BE CITED AS: | DPP v Carter |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1919 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Mr J.B.B. Lewis | Office of Public Prosecutions |
| For Accused Carter | Mr A. Paull | Mr M. Brugman |
| For Accused Crane | Ms M.E. Casey | Victorian Legal Aid |
HIS HONOUR:
1Jayden Carter and Shaun Crane, on 29 April this year in the middle of the afternoon, you men drove to near a milk bar on Roslyn Road in Belmont. You men had decided to commit an armed robbery, though you have given conflicting stories as to whose idea it was and the reasons for the crime.
2In the event you, Mr Crane, drove the car and waited as a the getaway driver. You, Mr Carter, put on gloves and took a knife and went into the milk bar.
3There you threatened the proprietor with a knife and demanded cash and cigarettes. The proprietor threw notes and two packets of cigarettes in your direction. You picked up the notes and the cigarettes and took off back to where Mr Crane was in the car.
4Later that day the police called your father, Mr Crane, and arrangements were made for you to attend for an interview at the police station.
5Ultimately when the police tried to interview you, Mr Crane, you became violent assaulting Detective McKinnon and Detective Cay, including spitting blood on Detective Cay.
6While, you, Mr Crane, were at the police station, the police arrested you, Mr Carter, near the railway station.
7At your interview, Mr Carter, you made admissions indicating the armed robbery was done as a favour for Mr Crane because he owed money to an ice dealer. Mr Crane denies this. His account is that he gave up ice some time before the robbery and it was your idea, Mr Carter.
8Both you men are liable for the actions of the other in committing the crime. The motivation for the robbery was to get money, and each of you did what was necessary to commit the crime and get the money.
9After arrest you, Mr Crane, were remanded in custody where you remained for 154 days. These were very troubling times in our prison system and your incarceration, being the first time you have ever been in prison, was a very difficult thing. You, Mr Carter, were bailed after one day in custody.
10The crime had an adverse effect on the victim who spoke in his victim impact statement of his nervousness and anxiety when someone comes into his shop, especially in dark glasses, since the robbery. He is more vigilant and security conscious.
11The courts are concerned that those who work in shops and necessarily with cash, are protected, and that the armed offenders who rob them and cause fear, are properly punished.
12The crime was planned but very poorly. The use of the car led quickly to the arrest of you, Crane, and you, Mr Carter. The amount stolen was small. Although fear was created, there was no gratuitous violence or aggression.
13Armed robberies are always serious, but I keep in perspective the nature and circumstances of this example of that crime. I will defer discussion of the moral culpability of each of you as that matter is bound up in your personal circumstances, in particular, your very young ages and, in your case, Mr Crane, your intellectual disability.
14Turning first to your personal circumstances, Mr Carter, you are now just 21 and were 20 at the time of the armed robbery. You come from a caring decent family who have rallied around you after the shock of discovering your involvement in a crime of this sort.
15You have no relevant prior criminal history. All there is is a small fine imposed with conviction for hindering police in 2009, and it is a matter of no moment in my sentencing task.
16In recent times you have been placed on a community corrections order for shop stealing. I am told you are progressing well on that order.
17You had very significant difficulties at school, suffering from dyslexia and ADHD. Sadly, after schooling you remain illiterate. You were able to get work after leaving school in Year 9. You worked at the one place for four years until a workplace accident caused you to give work away. Your work history shows you can be reliable and stable. It is to your credit.
18Although you have a supportive family, you fell into heavy drug use in the period leading up to the offending. There had been, it seems, significant trauma in your broader family and it saw you react badly by taking to different drugs and in greater amounts.
19Your drug problems are no excuse for this offending, but your dramatic spiral out of control from a previous stable life into drug use, and this offending provides an explanation.
20More important is how you reacted to your criminality. First, you immediately accepted responsibility and confessed to the police. You stuck to this approach and pleaded guilty at the first opportunity. You told the police when arrested the following.
21When you were asked, "How do you think the guy in the milk bar is?" You said, "I really want to apologise to him right now. I'm not this kind of person, bro. I want to apologise to the guy, I'm not this type of person."
22You have continued to express remorse. The letters from those who know you well, your family friends, Ms Randelle, Mr Essom, and Ms Parasitch, all speak of your deep and genuine remorse.
23I have no doubt that you are remorseful. Beyond the evidence of your expressions of remorse, you have also taken practical steps to tackle your drug problem. You have engaged in drug counselling and rehabilitation at the Salvation Army. The reports on your progress are very encouraging. You have put drug use behind you and the many urine analysis tests that you have submitted are all clean.
24The Salvation Army have referred you to appropriate counselling to deal with the sad family tragedies that you endured around the time of the crime.
25You are attending your general practitioner who is co-ordinating your mental health plan. Your engagement with all the bail conditions and the reports of your progress and rehabilitation are encouraging. You have done all required of you to show that this offending was truly a one off aberration and that the harsh lessons you have learned and the steps you have taken to reform, make it likely you will not repeat this foolish mistake that you made.
26You are still very young and, in all respects, a first offender who has since the offence done all you could to reform. Thus, I am required to give prominence to your rehabilitation in the sentencing process. I am permitted to give less weight than would otherwise be the case, to general deterrence, and deterrence to you, and to punishment. Your youth and immaturity are factors I consider lessening your moral culpability.
27You do not have the maturity and personal resources to make considered decisions. It seems that you are easily influenced.
28I will return to the appropriate sentence to impose after I have dealt with the personal circumstances of Mr Crane.
29Mr Crain, you are likewise very young, though a bit older than Mr Carter. You were 21 at the time, and now 22. You, too, have a supportive family. You live now with your father. Although you attended high school to Year 10, for much of the time you were in special learning programs. You have a low IQ and have been assessed as eligible for services under the Disability Services Act, due to your intellectual disability.
30This is, in your case, a most prominent sentencing consideration. The High Court in the case of Moldrok v The Queen, repeated the principles that those like you, with intellectual disabilities, are not appropriate vehicles for general deterrence.
31Those principles, again, were re-stated yesterday, or the day before, by our Court of Appeal in the DPP v O'Neill, the point being that the community is not comfortable if I use you as the one to make an example to deter others who are unlike you and who do not have intellectual disabilities.
32Thus, I will moderate the impact to general deterrence. Likewise, I consider your moral culpability to be lower. Your intellectual disability and your youth and immaturity mean that you were not able to think through what you were doing, and the consequences that will follow. Thus, the full weight of denunciation will not be visited upon you.
33You have had some work as a brickies labourer, spray painter and panel beater, and in roofing. You took up drug use in your teenage years. You say you gave up ice at the age of 20 because of an increase in paranoia caused by the drug.
34You suffer from a significant physical ailment which causes much anxiety and social awkwardness and embarrassment. You suffer from incontinence or leaks from your bladder and, as a consequence, you are constantly at the toilet or showering to cover up embarrassing smells.
35This proved to make your time in the adult prison at age 21, with the added problems of your intellectual disability, a very onerous punishment indeed. Unfortunately you have broken the law in the past, you were on a community corrections order at the time of the offending. This is a matter of real concern. This offending breached that community corrections order and I will deal with you for that in the course of sentencing you.
36You were attending at Headspace as part of your community corrections order. You were being treated for a range of mental health problems and being referred to the appropriate places for treatment and counselling for your drug problems.
37There were some encouraging signs, but you did continue to use drugs. As progress was being made, you then committed this crime, were remanded, and your treatment programs at Headspace were interrupted or ceased.
38The community corrections order you were on was part of a Justice Plan, established because of your intellectual disability. It is of concern that you committed this crime while on that community corrections order and Justice Plan, but, nonetheless, given the five months in custody on remand, I consider it was worthwhile getting reports as to your suitability to once again take up a community corrections order as part of a Justice Plan.
39Since I released you on bail on 30 September 2015, you have resumed living with your father, have got some casual labouring work and have resumed regular appointments with Headspace. These are good signs.
40I am also told that you are physically and mentally in a better place and that your parents have said that they have got their son back.
41The assessments from the intellectual disability services and the Office of Corrections are that you are suitable for another community corrections order and Justice Plan, notwithstanding the breach of the last one.
42In this regard I have to be realistic and understand for intellectually disabled, the courts have to show a greater level or tolerance for setbacks. The community would understand that some compassion is appropriate, though you must understand, Mr Crane, that this really is your last chance.
43Here I have two immature and inadequate young men who have committed a serious crime. Both are remorseful and are trying to overcome considerable problems that they have, so as to stay out of trouble, and manage as best they can in their lives. They both have supportive families and, there are plans to help them reform, hopefully, permanently.
44As I say, both are remorseful. Gaol for these young men would be a brutal punishment. Mr Crane has experienced five months' gaol with his added physical difficulties that I have described.
45In recent times our Parliament has established a different sentencing regime. Now available to judges is the capacity to impose longer community corrections order with more unpaid work hours, strict conditions and supervision and monitoring, including judicial monitoring, and more targeted programs directed at rehabilitation.
46Also in the amendments to our Sentencing Act, Parliament made it crystal clear that I cannot impose a sentence involving confinement, that is, gaol, or Youth Justice Centres, unless I am satisfied that a community corrections order could not satisfy all the sentencing purposes.
47This led to the Court of Appeal in the important guideline judgment of Bolton v The Queen to declare that the sentencing landscape in this State had changed very significantly. Judges were, from now on, or from Bolton onwards, to recalibrate crimes previously punished by gaol terms and even serious crimes which would attract mid-level terms of imprisonment could now be punished by community corrections orders.
48The Court of Appeal noted the grim harsh nature of prison and how the young, in particular, could be hardened and exposed and perhaps absorb more or worse anti-social attitudes if they were incarcerated.
49The community rather would benefit from a sentence where there is no imprisonment and reform was targeted. A sentence of imprisonment could well put the community at greater peril.
50The community corrections order was seen as enabling punishment and rehabilitation to occur simultaneously; the situation unavailable in prison.
51Community corrections orders are no soft option. In addition to unpaid work, an offender is under the court's monitoring for lengthy periods. Both you mean are said to be suitable for a community corrections order.
52You, Mr Crane, have served five months in gaol. This was due to bail not being granted or not applies for until I heard your plea, and adjourned to get the Justice Plan assessment.
53In terms of parity, your gaol term is a matter of concern. I certainly ought not impose gaol on you, Mr Carter, so as to even the ledger, as it were, if I do not consider that gaol is a just and appropriate punishment.
54There are important differences between the circumstances of you both; your intellectual disability, Mr Crane, yet, on the other hand, you, Mr Crane, have more criminal history or prior criminal matters and you also committed the very serious offences involving the attack on the police officers and, you were at the time, on a community corrections order which has been breached.
55The offending against the police officers is troubling offending, particularly as you have a prior conviction in that regard.
56Thus, there is justification for disparity in the punishment imposed, that is, gaol, and a community corrections order for you, Mr Crane, and a community corrections only for you, Mr Carter.
57Can you gentlemen please stand.
58Mr Crane, for committing the crime of armed robbery, you are sentenced to three months' imprisonment, together with a four year community corrections order which will be part of a Justice Plan.
59As part of the community corrections order you have to do 200 hours of unpaid work; you have to be under supervision, and you have to submit to judicial monitoring and I will speak more of that at a later point.
60In respect of the crimes involved in the assault on the police, both the matter on the indictment, and the summary matter, you are sentenced to an aggregate term of two months' imprisonment. That will be cumulative upon the sentence imposed for the armed robbery.
61There is a total imprisonment of five months' and a four year community corrections order.
62In respect to the crime of possession of the drug of dependence, you are convicted and discharged.
63The total sentence is one of five months' imprisonment. I declare that you have done 154 days, or five months' of the term that I have just imposed. I will ensure that this declaration is put on to the records of the court so that the prison authorities are left in no doubt you have done every day of the five months' sentence that I have imposed.
64In addition there is the four year community corrections order.
65Had you pleaded not guilty to these offences, and been found guilty of it, I would have imposed a term of two years' imprisonment, with a minimum of 16 months, together with a two year community corrections order.
66Mr Carter, for committing the crime of armed robbery, you are sentenced to a four year community corrections order with 200 hours of unpaid community work. You must also have, as part of that, programs relating to your drugs, mental health, and other programs to assist you in not re-offending.
67There will also be judicial monitoring, which I will outline shortly.
68Had you pleaded not guilty to these offences and been found guilty of them, I would imprison you for two years' with a minimum term of 16 months' with a three year community corrections order.
69In respect of the breach of the community corrections order imposed by a magistrate, the charge is proved, you are convicted, and the community corrections order is extended for six months further from today. It will run concurrent with the community corrections order that I have imposed this day.
70Does that satisfy all the requirements and all the offences that these men were facing?
71MS CASEY: It does, Your Honour.
72MR LEWIS: Yes, Your Honour.
73MR PAULL: Yes, Your Honour.
74HIS HONOUR: Documents need to be produced and once they are produced the conditions will be explained to you in more detail and you will then sign documents and bring the matter to an end.
75MS CASEY: Your Honour, on the 30th, were the compensation and disposal orders, I recall, I think they were ‑ ‑ ‑
76HIS HONOUR: I have signed all those documents if they are here.
77MS CASEY: ‑ ‑ ‑ by consent anyway.
78MR LEWIS: Yes, they have been provided to Your Honour's associate.
79HIS HONOUR: Get all those, he's got work to do at the moment.
80In respect of Mr Crane:
81#EXHIBIT SC1 - Report of Dr A Cunningham.
82#EXHIBIT SC2 - Report of D. Barnes, Headspace dated 18/05/15.
83#EXHIBIT SC3 - Letter from Headspace, Dr R. Walker, dated 12/05/15.
84#EXHIBIT SC4 - Letter from Headspace, Ms Radicevski, dated 06/05/15.
85#EXHIBIT SC5 - Report of Dr J. Crawford, Highton Clinic, dated 02/05/15.
86#EXHIBIT SC6 - Corrections Remand History.
87#EXHIBIT JC1 - Report of Dr A. Gallogly dated 27/11/15.
88#EXHIBIT JC2 - Testimonials.
89#EXHIBIT JC3 - Certificate of completion from Salvation Army.
90Are they all the exhibits in that?
91MR PAULL: Yes, Your Honour.
92HIS HONOUR: Thank you. You can be seated.
93I much prefer to see counsels' faces looking completely benign and reading their next brief rather than nervously looking at things as if I've made some egregious error.
94MS CASEY: No, no, no errors, just whether we ‑ ‑ ‑
95MR PAULL: We are just working out whether an application for forensic samples have been made.
96MR LEWIS: Yes, it was made on the previous occasion, Your Honour, so disposal, compensation, and forensic sample were the orders sought on the last occasion, in any case.
97HIS HONOUR: Right, is there anything to say about any of that?
98MS CASEY: Just in relation to the 464ZF I think I indicated last time it was a matter for the court.
99MR LEWIS: Yes, sorry, Your Honour, just one issue. The 6AAA declaration, I note that - it just struck me that Mr Crane's is less than Mr Carter's on my understanding.
100HIS HONOUR: I thought they would be the same but ‑ ‑ ‑
101MS CASEY: Your Honour announced a two year CCO for Mr Crane, and a three year one for Mr Carter.
102HIS HONOUR: They are both meant to be two. I am so sorry, did I say three?
103MR LEWIS: Yes, Your Honour, I actually had assumed Your Honour had it the wrong way round because of the - in any case it's not that it's of much moment, but ‑ ‑ ‑
104HIS HONOUR: Thank you. Just adjust that slip.
105Mr Carter and Mr Crane, the prosecution have made an application that each of you provide a forensic sample. That is a scraping from your mouth. From all that they will be able to extract DNA and they will keep it, so it will always be on a database. I have considered that application and I intend to grant it. In your case, Mr Carter, it is because of the seriousness of the circumstances and the granting of the order is in the public interest.
106In respect of you, Mr Crane, it is because of the seriousness of the circumstances. Your prior convictions and the granting of the order is in the public interest.
107You need to understand that it works this way. After 28 days from now, a window opens up, stays open for four weeks, you have got to get down to the police station here in Geelong within that four weeks and have the forensic sample taken from you.
108The police are authorised, listen to this, Mr Crane; the police are authorised to use reasonable force to get the sample if you do not co-operate. The way through is just co-operate, it is just a scraping from your mouth. You have got a bit of an unfortunate history of arcing up - do not. Do you follow?
109OFFENDER: Yes.
110HIS HONOUR: Each of you are required by an order I am signing, to compensate the victim in the matter to the sum of $30.
111There is more paperwork to do, just take a seat.
112Mr Crane, I will deal with you first; the community corrections order, it is going to last for four years, a long time, you will be 26 and there are conditions that apply to everyone who is on a community corrections order, so just listen to these.
113The first one I really emphasise for you. You just cannot commit another offence for which you could be imprisoned during the time of this order for the next four years. Well, do not commit any more offences at all, but if you do it within the next four years, you will be back before me, and I will hear what you have got to say; the chances of there being a merciful outcome for someone who has committed an armed robbery and who committed further offences, chances are you will just go back to gaol.
114You must comply with any obligations or requirements under the sentencing regulations. That is they need to know who you are, they will take a photograph and whatever; just co-operate with that.
115You must report to, and receive visits from, the Office of Corrections. You must report there to the community corrections centre. You know where that is, the State Offices in Lt Malop Street, you have got to report there within two clear working days. Do that early next week.
116You must let the community corrections officers know within two clear working days if you change your address or job, and you must not leave Victoria without getting permission to do so from the Office of Corrections and you must obey their lawful instructions.
117Those conditions apply to everyone. What applies to you is there is 200 hours of unpaid work over the four years. I have not put an intensive period in there, but just do it as quickly as you can.
118You must be under the supervision of the community corrections folk for four years, and there will be a Justice Plan for you to participate in services provided under the Justice Plan and you must undergo assessment and treatment for drug abuse and dependency.
119You must attend for review, on 18 March 2016, at 9.30. So March next year, 18th, it is a Friday, come back, I will be here, and I want to hear from Corrections that you are doing well. If you are not, well, I will be none too pleased.
120If you sign that, it will deal with your matters.
121MS CASEY: Can I just confirm; did Your Honour just announce that the drug treatment was separate to the ‑ ‑ ‑
122HIS HONOUR: Yes, it is part of their - it is in there.
123MS CASEY: My understanding from Corrections was that that should just be incorporated as one of the Justice Plan conditions rather than a separate condition.
124HIS HONOUR: Certainly. So is that going to cause a problem if it is there now?
125MS CASEY: I do not think so, Your Honour.
126HIS HONOUR: Good, thank you.
127MS CASEY: I think, as long as everyone is in heated agreement that it is dealt with through Disability Services.
128HIS HONOUR: You can be seated, Mr Crane.
129Mr Carter, you are on a community corrections order for four years, it goes from today to 3 December 2019. The conditions that apply to everyone on a community corrections order, you must not commit another offence for which you can be imprisoned during the time the orders are in place.
130For the next four years if you commit an offence then almost everyone you can think of will be punishable by imprisonment. If you do that, you will be back before me.
131You must comply with any obligations and requirements under the sentencing regulations relating to taking a photograph or the like. You must report to and, receive visits, from the Office of Corrections and report to the community corrections centre down there at the State Offices, you know where it is; within two clear working days. You must let the community corrections officer know within two clear working days if you change your address or your job. You cannot leave Victoria without getting permission to do so, and you must obey lawful instructions and directions from the Office of Corrections.
132You must do 200 hours of unpaid community work over the four years and I also say to you just get it over and done with.
133You must be under the supervision of a community corrections officer for four years. You must undergo assessment and treatment, including for drug dependency, as directed by the regional manager. You must participate in programs and courses that address factors relating to offending, as directed by the regional manager.
134You, too, must come back here on 18 March 2016, for judicial monitoring, so I will be here and we will see how you are going. If you sign this order.
135To both you men, you have both been on community corrections orders, or on one in your case at the moment, but I am concerned both of you have attributes or you have got things about you that you might be easily led.
136Not everyone who is on a community corrections order that you might come across will be trying to stay away from drugs like you two are. You have just got to stay firm, think of what your families are helping you with, do not let them down. Do not fall into bad habits with other people who do not matter. Your family does.
137Do every single day of every single hour that you are required. Do not turn up late or say that it is all too hard, or you forgot. I know that it is difficult sometimes to remember all your appointments, but this is when you have got to make the biggest effort. If you get through this, then you might well not be back before courts again. If you do not, if you fail, then you will be, I predict, regularly back here.
138Thank you. Is there anything further required?
139MS CASEY: No, Your Honour.
140MR LEWIS: No, Your Honour.
141HIS HONOUR: Both you men can when I stand down, which I will do in a minute, can leave the dock.
142I thank counsel for their considerable assistance over a period of time of a difficult case like this.
‑ ‑ ‑
0
0
0