Director of Public Prosecutions v Carter
[2020] VCC 1050
•17 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-20-00113
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TODD CARTER |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 July 2020 | |
DATE OF SENTENCE: | 17 July 2020 | |
CASE MAY BE CITED AS: | DPP v Carter | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1050 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – One charge of armed robbery and one charge of theft – Offender armed with a knife entered first victim’s car and demanded money – Victim’s young child was in the back seat – Offences committed to repay drug debt – Good character – no prior criminal history – Serious example of armed robbery – Genuine remorse – Very strong prospects of rehabilitation – Circumstances surrounding COVID-19 pandemic taken into account.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991.
Cases Cited: R v Okutgen (1982) 8 A Crim R 262.
Sentence: Imprisonment for a period of 2 years and 6 months, with a non-parole period of 16 months, together with a fine of $800.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms E Maguire (Plea) Ms A Patterson (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr S Thomas | Balmer & Associates |
HIS HONOUR:
Introduction
Todd Carter, you have pleaded guilty to one charge of armed robbery contrary to s 75A of the Crimes Act 1958 which carries a maximum penalty of 25 years imprisonment (Charge 1), and one charge of theft contrary to s 74 of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment (Charge 2).
You have no prior criminal history.
Circumstances of the offending
The armed robbery
On 30 October 2019, Leah Treadwell, who was unknown to you, was at the Woodgrove Shopping Centre in Melton West with her four year old daughter.
At 4.30 pm, Ms Treadwell returned to her car, a grey Toyota Prado, which was parked in the Aldi carpark at the rear of the shopping centre. She and her daughter entered the car before Ms Treadwell turned from the driver’s seat to the back seat to put on her daughter’s seat belt. She observed you approaching her car in her passenger side mirror.
You opened the front passenger side door of the car and sat on the passenger seat beside Ms Treadwell. Ms Treadwell noticed you were holding a fold out knife in your right hand. She could not see the blade but identified that it was a knife.
Ms Treadwell asked you what you wanted, to which you responded ‘I need $800'. Ms Treadwell told you that she did not have $800 on her and you repeatedly asked her for the $800. You told her that she would have to take you somewhere to get the money, stating that she must have had money as she had a nice car.
Ms Treadwell told you that she would not take you to get the money. She said that you could take the car instead, and that she just wanted to get her daughter out of the car.
Ms Treadwell’s daughter began to cry. Ms Treadwell told you that she did not want her daughter to be in this situation. You told Ms Treadwell that you could not take the car.
Ms Treadwell told you that you could take her wallet and her mobile phone, and that she just wanted to get her daughter out of the car. You said that you would take the mobile phone instead and you took her black iPhone 7 out of her hands. It is these facts that relate to Charge 1, armed robbery.
You then got out of the car and walked across the carpark towards High Street in Melton. You were captured on CCTV footage approaching a silver Volkswagen hatchback.
Ms Treadwell drove home. Her partner then drove her to the Melton Police Station to report the incident, arriving at approximately 5:00 pm.
The theft
On 2 November 2019 Ms Thi Nguyen, who was also unknown to you, was working at the Woodgrove Shopping Centre. She was walking inside the centre, returning to her place of work, at around 5.00 pm when she was approached by you.
You asked to use Ms Nguyen’s mobile phone, claiming that your car had broken down. You provided a telephone number to Ms Nguyen and she entered it into her mobile phone. The number was called three times on loud speaker but there was no answer.
Ms Nguyen needed to return to her work because it was past closing time and she offered you the use of the shop telephone to call a friend. You refused this offer and asked if you could use her mobile phone one more time. You said that it would be quicker if you could put the telephone number in yourself.
Ms Nguyen handed her mobile phone, a red iPhone XR, to you to allow you to make your phone call. You took possession of Ms Nguyen’s mobile phone and ran off. It is these facts that relate to Charge 2, theft.
Ms Nguyen chased you, yelling out for help as her phone had been stolen. A security guard heard Ms Nguyen yelling and saw her chasing you. The security guard and another member of the public, Mark Magion, also chased you.
You entered a silver Volkswagen hatchback with registration IMT 1HE. Both the security guard and Mr Magion tried to open the car doors, but they were locked. Mr Magion took a photograph of the car and provided this to the security guard, who later provided it to the police.
Ms Nguyen attended the Melton Police Station at 7.00 pm that evening to report the theft.
You were captured on CCTV footage inside the shopping centre.
Arrest and interview
Still images from the CCTV footage from the first incident were circulated within Victoria Police and you were identified as a suspect through the car you were driving. Checks were conducted which confirmed that the car was registered to your mother.
On 5 November 2019, at approximately 8.20 am police executed a search warrant pursuant to s 465 of the Crimes Act 1958 at your address. Photographs were taken during the search and police seized a number of items including a black fold out knife, a pair of jean shorts and a t-shirt.
You were arrested and conveyed to Sunshine Police Station where a recorded interview was conducted. You made admissions to the offences from the outset stating that you had ‘committed those crimes’.
In relation to the armed robbery you stated that you had the knife on you but did not pull it. You also said that you did not remember ‘having the knife out or visible’. You stated that you gave Ms Treadwell’s phone to someone to whom you owed a $800 methylamphetamine debt. You expressed remorse stating ‘I’m not proud of this’. You said you were desperate and scared about what might happen to you and your mother due to your outstanding drug debt.
In relation to the theft, you stated that you used the stolen phone to pay the remainder of the debt you owed. You acknowledged that the victim would have felt ‘angry, scared…and confused’.
Nature and gravity of the offending
In my view this a serious example of this type of armed robbery. That is, an armed robbery on a soft target, in this instance a woman with her daughter, simply going about her daily business in a public space. On this occasion the victim had returned to her car and was attending to the seatbelt of her four year old daughter when you approached the car, got in next to the victim and produced a knife. At that point the victim saw the knife you were holding as you demanded money. There can be no doubt that this would have been a terrifying experience for both the victim and her daughter. Further, during the course of the armed robbery, the victim’s daughter became upset and began to cry.
While it is accepted that that offending was unsophisticated in the sense that you did not try to conceal your identity and the offending occurred in a public place in daylight, it is not entirely opportunistic. The offending must have involved some forethought. However it is also accepted that your offending occurred while you were in the grip of a serious ice addiction and that you committed the armed robbery in order to repay a specific drug debt. While that is an explanation for your conduct, it does not excuse it and this is yet another example of the destructive nature of methamphetamines and the types of violence people engage in under its influence.
The theft of the phone, while not in the same category of seriousness as Charge 1, is still an offence of some seriousness in the particular circumstances. Again the victim was simply going about her business and was trying to assist you when you ran off with her phone valued at $1,200 causing her distress and inconvenience.
Victim impact statements
Both victims provided victim impact statements which I have read and taken into account.
Leah Treadwell, the victim of the armed robbery, states that she has ongoing anxiety. She states that she rarely takes her daughter to the shops and is always on edge and anxious. Ms Treadwell suffers sleep disturbance and struggles to deal with the thought that her daughter could have been hurt during the incident. Ms Treadwell also states that her daughter is afraid to sleep alone since the incident.
Thi Nguyen, the victim of the theft, states that she has been affected emotionally as a result of the incident and notes the inconvenience caused as a result of losing her phone.
Personal circumstances
You are 36 years of age. Your parents separated when you were very young, and you were raised by your mother. You maintained a close relationship with your mother as an adult, ultimately caring for her before she passed away recently. You have a sister who is aged 39 and you maintain a positive relationship with her.
You had limited contact with your father growing up, meeting him for the first time when you were about three or four years old. You wanted your father to be part of your life in your teenage years however you have had no contact with him since you were 14. Your mother remarried and you had a good relationship with her husband until they too separated after seven years.
After completing Year 11 you completed a four year plumbing apprenticeship and worked as an employee plumber for over six years. You then started your own roofing and plumbing business with a colleague. That business continued for four years and was wound up in 2013. You maintained employment by then working for tool companies as a tool salesman however your most recent employment was terminated following a dispute with your employer in September 2019. It appears that it was this event that led you to increased drug use and this offending in the weeks that followed.
You are not in a relationship however you have a daughter now aged 17 from a relationship that ended in 2002. Following that relationship, you were involved in another long term relationship that ended in 2012. You maintain a positive relationship with your daughter who lives with her mother. Prior to your remand you would see your daughter on a weekly basis and were involved in her activities.
You owned your own home in Bacchus Marsh however you sold that house in 2013 in order to move in with your mother and care for her as her health declined as a result of emphysema. Your mother passed away in
December 2019 while you were in custody. Your sister maintains the rent of your mother’s home and you will have accommodation there upon your release.
As to you drug use, you commenced using methamphetamines in 2013, using first at a recreational level. Your addiction soon escalated, and you were using heavily in the weeks prior to the offending.
A report was prepared by Sandra Cokorilo, psychologist, and tendered on the plea. I have read that report and taken it into account. In short, Ms Cokorilo is of the opinion that you display symptoms consistent with a major depressive disorder that was in existence preceding, during and post the offending period. Not surprisingly she also finds that you suffer from stimulant use disorder. While Ms Cokorilo is of the view that there is a connection between your mental health and the offending, your counsel sensibly did not rely on any Verdins principles, but rather that your conditions at the time are able to be taken into account as providing some context to the offending and an explanation as to why you so desperately needed money.
As a result of psychometric testing, Ms Cokorilo is of the opinion that you are medium risk of reoffending. The most relevant risk factors are your previous substance abuse and the current offending. However, Ms Cokorilo also notes that in your case there a number of protective factors such as stable work history and your attitude to improving your insight through treatment and counselling.
Since being in custody you have used your time constructively working as a cleaner at the visitor centre, preparing iPads and other equipment for
non contact visits. You have been substance free in custody which is supported by clean urine screens. I also note that after you were remanded, your mother passed away and you were unable to attend her funeral which has weighed heavily on you.
Relevant sentencing considerations
It was submitted by Ms Maguire who appeared on behalf of the Director of Public Prosecutions, that general deterrence, just punishment and denunciation of your conduct are relevant and applicable sentencing principles. Mr Thomas who appeared on your behalf, did not take issue with that submission acknowledging the seriousness of the armed robbery charge.
As you have no prior criminal history, it was submitted on your behalf that less weight should be given to specific deterrence and protection of the community which in all the circumstances I accept. Indeed, it is a rather exceptional circumstance to find someone of your age and history resorting to such aberrant behaviour and serious offending. In that regard, at age 36, it is well established that your previous good character is a matter that is able to be taken to account in this instance.[1]
[1]R v Okutgen (1982) 8 A Crim R 262 at 265-266.
Your plea of guilty was entered at the earliest opportunity and as such your willingness to facilitate the course of justice has avoided the need for a trial. Significantly, your plea has avoiding the need for the victims to have to give evidence and relive a traumatic event. I also accept that you cooperated with police and were frank in your record of interview.
Over and above your plea of guilty, it was submitted that you have expressed genuine remorse. As noted, you were frank in your interview where you made expressions of remorse as noted in the prosecution summary. I also note the comments of Ms Cokorilo where she formed the view that your expressions of remorse were genuine. She notes that you have experienced anxiety and guilt as a result your actions.
As to your prospects of rehabilitation, I note that Ms Cokorilo is of the opinion that you displayed good insight and judgement in understanding the connection between your deteriorated mental state and self medication with substances leading to your involvement in the offending. Cleary you will have further work to do in order to remain drug free however you have no prior criminal history and have an excellent employment record. You also have maintained strong relationships with your family and daughter. In all the circumstances I assess your prospects of rehabilitation as very strong.
Finally, I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community. In your specific circumstances, I accept that this is a matter to be taken into account in your favour.
Sentence
Mr Carter, please stand.
Todd William Carter, on Charge 1, armed robbery, you will be convicted and sentenced to 2 years and 6 months imprisonment. On Charge 2, theft, you will be convicted and fined $800.
On Charge 1, I direct that you serve 16 months before becoming eligible for parole.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 255 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 3 years and 3 months imprisonment with a non-parole period of 2 years.
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