Director of Public Prosecutions v Cartwright

[2020] VCC 1295

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 20-00119

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL CARTWRIGHT

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 July 2020
DATE OF SENTENCE:	19 August 2020
CASE MAY BE CITED AS:	DPP v Cartwright
MEDIUM NEUTRAL CITATION:	[2020] VCC 1295

REASONS FOR SENTENCE

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Cases Cited:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Mr J. Barrera	Stary Norton Halphen

HIS HONOUR:

1Daniel Cartwright, you have pleaded guilty to a series of offences committed from 9 July 2019 to 11 July 2019, two armed robberies committed on service stations.  The facts and circumstances of your offending were comprehensively set out in the prosecution opening tendered on the plea.

2In brief compass, on Monday, 8 July 2019, you travelled from Melbourne to Portarlington in a stolen car (the Holden).  You were with your long-time friend, Mitchell Caligari.  You stayed at Caligari's parent's holiday home in Portarlington.  On 9 July 2019, you and Caligari went in the stolen car to the Portarlington Football Club House where number plates from another car were stolen and attached to the stolen Holden.

3From there you drove to a service station in Portarlington and filled the stolen car up with petrol and drove off without paying.

4Fifteen minutes later, you and Caligari drove to another service station in Moolap.  You put on face coverings and pulled the hoods over your heads,  armed with a large knife and Caligari with a sledgehammer.  You ran to the counter in the service station yelling for money and pointing your knife threateningly at the petrified staff.  The staff member retreated from the counter to the storeroom.  A customer was in a restroom and upon hearing what was going on called 000.

5You and Caligari then jumped the counter.  You filled a bag with cigarettes as Caligari stole the cash register drawer.  The two of you then ran out, however, you realised you had left your knife.  You returned searching for it, but you could not find it as Caligari was urging you to leave.  The DNA was later found on the knife.

6You then drove to Melbourne and at some time between 9 and 10 July, you stole another set of number plates and put them on the stolen Holden.  On Thursday, 11 July, you repeated your earlier pattern, this time alone without Caligari.  You first stole petrol from a service station in Tullamarine.

7In around 1 pm in the afternoon, you drove at speed right to the door of the service station at Kealba.  You had a hooded top on, dark glasses and a T-shirt tied around your head.  You ran into the shop carrying a bag and a dovetail pull saw which a frightening knife-like weapon.

8Once in the store, you brandished your weapon at the employee demanding that he give you the store's money.  A female employee ran in fear to a storeroom where another male employee was already.  You went with the first man that you had bailed up to the counter area where he put notes from the till into your bag, approximately $150.  You asked for cigarettes but those cigarettes could not be located.

9You said then,

'Don't worry about it.  Sorry for all this.  I apologise.'

10You then drove away parking in St Albans.  You fell asleep and were found by police at about 8 pm.

11At your interview, you ultimately made admissions to this second armed robbery.  Doing so, you said the following, which is summarised.  You said,

'Look, I'm on the dole.  Look, I'm looking for work.  I'm about to get evicted from where I'm living and money is getting tight.'

12You then said that once your bag had money in it, you apologised and left.  You said you were very nervous to do the armed robbery, that you did not want to but you had no choice because you did not want to be homeless.

13You said,

'It's either do that and pay your rent or do that and go to gaol and have a roof over your head.'

14You again repeated that you apologised because you knew you had done the wrong thing and you knew that the store attendant would feel scared and it would have an effect upon him, he just doing his job.

15You then said that you did not pay your rent but purchased $200 worth of heroin which you used and that is why you passed out.  You said, towards the end of this part of the interview, that you committed the armed robbery for money, for drugs and rent.

16You were also interviewed about the armed robbery at Moolap and the theft of the car, the number plates and petrol but you denied involvement.

17You were remanded in custody and have remained there to this day, a total of 405 days.

18You indicated a plea of guilty at a committal on 29 January 2020 before your co-accused, who was charged for the first set of offences, committed suicide earlier this year.  I will say more of the effect of that on you at a later point.

19Both armed robberies were frightening, and no doubt have had an effect upon the victims.  Although no victim impact statements were tendered, these were frightening armed robberies, notwithstanding your expressed apology at the end of the second one.

20The gravity of this offending is significant.  Theft of number plates to avoid detection and also the disguises used reveal a level of planning was involved.  Courts must impose firm sentences on offenders who terrorise employees with weapons to get cash and cigarettes from soft targets like service stations.  Your crimes must be denounced in practical terms; that is by sentences of imprisonment which in turn also act as a deterrent to others.

21As to your moral culpability, your counsel submitted that your drug addiction operated to lower your moral culpability.  I will defer analysis of that question until I have expanded on your background including your drug addiction and your prior history of committing armed robberies.

22As to your personal circumstances, you are now 34.  You were raised in the Broadmeadows area.  Your parents separated when you were 12.  There was conflict before and after the separation.  You remained with your mother, though due to your behavioural problems, you lived with your father from time-to-time.

23Your time at school was difficult.  You left after Year 9.  You commenced an apprenticeship in carpentry, but you did not complete it.  Your employment thereafter has been intermittent and short-term.  You acknowledge that as an employee, you were unreliable due mainly to your problems with drugs.

24You commenced daily use of cannabis at age 15.  You abused prescription drugs by your early 20s.  By age 27, you were addicted to heroin.  You have been able to abstain from heroin for lengthy periods but have lapsed.  You were in a period of heroin use when you committed these armed robberies.

25You have prior convictions for three armed robberies committed in 2014.  They were committed on a service station and two milk bars in order to get money because you had lost your job around that time.  In addition, you were using drugs.  You were sentenced to 16 months' imprisonment together with a
two-year community corrections order.  You did not breach that community corrections order to your credit.

26Your criminal history prior to this was mainly driving matters.  However, your prior conviction for three armed robberies on like soft targets is particularly relevant and troubling.

27Following your release from prison, you were able to abstain from drugs for three years.  You were on a methadone program.  However, you relapsed in 2018.  Numerous heroin overdoses did not cause you to abstain.  However, you did undergo a rehabilitation program in October, November of 2018 but again relapsed.

28You relapsed shortly thereafter.  You immediately sought out another drug rehabilitation program in Sydney away from your associates in Melbourne.  However, you committed a stalking offence and resisting arrest on 1 January 2019 in Sydney.  It seems you underwent another four-week detoxification program in mid-January to mid-February 2019.

29In March 2019, you were placed on an 18-month community corrections order in New South Wales.  Accordingly, you were still subject to this order when you committed these offences.

30You returned to Melbourne after your time in New South Wales and took to drugs yet again.  You have been examined by two medicolegal psychologists over the years.  Dr Cunningham saw you for the purposes of your 2015 plea for the first set of armed robberies.  He diagnosed you with major depressive disorder and post-traumatic stress disorder, the latter arising from an assault upon you in 2013.

31Ms Slatev saw you in February 2020 for this plea and she came to the diagnostic conclusions relating to your major depressive disorder and your
post-traumatic stress disorder.  She also came to the obvious conclusion that you have a chronic drug addiction problem.

32You are back on the methadone program in custody and have done rehabilitation programs prior to the pandemic.  Notwithstanding that you have persevered and done all you could to get assistance and do rehabilitation programs in custody, I say notwithstanding the pandemic, you have done all that you could in custody.

33With this background, I return to the question of what impact your drug addiction has on sentence in particular with respect to your moral culpability and to your prospects of rehabilitation and the need to give weight to the protection of the community and as an aspect of who you are, that is a person with a drug addiction.

34Your counsel relied upon the Court of Appeal decision in Lacey[1] and the later decision of Beasley[2] that made clear that the principles set out in Lacey have general application including to armed robbery offences.

[1]Lacey [2007] VSCA 196

[2]Beasley [2017] VSCA 154

35It was submitted that as a consequence of your drug addictions and the connection of that addiction to the offending, your moral culpability was lowered and thus moderation of denunciation was warranted.  Your counsel referred to other County Court sentences for armed robbery.

36I note that earlier this year in a Director's appeal in the matter of Green[3] which involved multiple armed robberies, the Court of Appeal in rejecting the Director's appeal found that causally connected drug addiction was a mitigatory matter in respect of law the armed robberies committed by Terrence Green.

[3]Green [2020] VCC 23

37In Lacey, the Court of Appeal said the following, paragraph 12,

'There is clear and binding authority that in Victoria drug addiction may constitute a significant mitigating factor.'

38It referred to the earlier well-known decision of R v Nagy[4], which McGarvie J stated the following,

'The law does not preclude a court in sentencing this applicant from regarding it as an important factor that he and his de facto wife were heroin addicts and that the crimes were committed with a view to obtaining heroin and money to enable their addiction to be satisfied.  Such a factor has been regarded as important in the determination of a person's criminality: R v Voegeler[5] (1988).  The regard that is to be paid to this factor depends on the circumstances but there is no legal restriction on the extent of the allowance which can be made for it in determining a sentence.'

[4]Nagy [1992] VicRp 45

[5]Voegeler [1988] VicSC 144

39In Lacey the court went on to then cite passages from R v McKee[6]; in particular stated that Buchanan JA summarised the position as following,

'The motive for the commission of the crimes was the appellants' need of money with which to buy heroin to feed their addiction.  According to the Court of Criminal Appeal in New South Wales it has been "said on countless occasions that addiction to heroin is not to be considered as effective reduction of what otherwise would be an appropriate sentence".  While the existence of an overwhelming physical craving may explain the commission of a crime to obtain money to purchase heroin to still the craving, the courts' refusal to take it into account may be due to the view that the decision to begin to use drugs is said to be voluntary and the commission of crimes to feed an addiction is a likely consequence of that choice.  In R v Henry[7], Spigelman CJ said:

"[S]elf-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice."

[6]McKee [2003] VSCA 16

[7]Henry [1999] NSWCCA 111

40Buchanan JA went on,

'The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs.  Age is relevant to the question, as Spigelman CJ acknowledged.  I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse.  An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend on the likelihood of the addiction being successfully treated.  In my view, a sentencing judge may have regard to the circumstances which led to an addiction that causes the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.'

41The Court of Appeal then in Lacey concluded,

'The offender's addiction will only call for mitigation of punishment where it is established on the balance of probabilities that there was a link between that addiction and the commission of the offence.'

42In the R v Koumis[8], the court analysed the relevance of an offender's drug addiction to the issue of moral culpability, stating,

'A number of general propositions may be stated about the relevance of addiction to the question of moral culpability and whether it should be viewed as a mitigating circumstance for the purposes of sentence.  Drug addiction provides no justification for the purposes of sentencing.  Drug addiction is not of itself a factor that necessarily calls for a lesser sentence than would otherwise be appropriate.  The sentence to be fixed has to reflect the seriousness of the crime [which was in that case trafficking in substantial quantities of a drug of dependence].  Denunciation and general deterrence assume particular importance as the purposes to be effectuated by the sentence.  Generally speaking, addiction and any consequential impairment of judgment, will not have any significant mitigatory effect upon those sentencing considerations.

'The general reluctance of courts to take drug addiction into account rests in part, at least, upon the view that the decision to begin to use drugs was voluntary and the commission of crimes to feed an addiction was a likely consequence of that choice.'

[8]Koumis [2008] VSCA 84

43What can be distilled from the cases is that drug addiction may have mitigatory impact and if it does, it is to varying levels depending on all the circumstances.  Once again, it is individual sentencing that focuses on all the unique circumstances of the case.

44Your upbringing and family circumstances were not easy though far from some of the sad examples of deprivation that come before the court such as set out in the matter of Terrence Green that I have referred to.  I note you have ongoing family support.

45That said, you fell into cannabis use in your teens.  Your choice to use heroin was at the age of 27.  You committed the first set of three armed robberies in 2014 to get money because you had lost a job and also because you craved drugs.  Thereafter, you have abstained and undergone serious drug rehabilitation programs which have worked for a time but not permanently.

46You spoke of committing the second armed robbery to get rent money and drugs.  You were found and arrested likely intoxicated by drugs.

47Applying principles in case I have referred to there is, in my view, some connection between your crimes, especially the second armed robbery and your addiction but it seems other things, such as rent, were at play as well.  But more importantly your drug addiction in the circumstances in which it arose progressed, ebbed and flowed, with significant time in abstinence and the rehabilitation programs that you have undertaken and your past relevant offending leads me to the view that your moral culpability for these armed robberies is only moderated to a small degree.

48In my view, guided by what was said by the Court of Appeal in McKee and Koumis as well as Lacey, Beasley and Green, this means that your drug addiction is mitigatory but only to a small extent.  In this regard and operating in the opposite direction is that because your drug use and addiction persists, notwithstanding rehabilitative efforts and years of abstinence and the deterrence in gaol, it does continue to trouble you.

49This leads to the conclusion that you remain a risk of reoffending especially if you succumb again to drug use.  So, your prospects are very guarded.  Also, protection of the community must be given weight; also, too, must deterrence to you.

50Returning back to matters that prevail at the moment, the COVID-19 pandemic means prison is more onerous.  There are no more visits, longer and more frequent lockdowns and limited vocational and rehabilitative programs.  I have taken into account these factors in coming to the appropriate sentence.

51Your plea of guilty is of value especially as jury trials are suspended.  It is evidence of remorse.  You have expressed remorse and in fact apologised during the second armed robbery.  You wrote letters of apology to the victims.  Your sister in her helpful letter also wrote of your remorse as well as your early childhood difficulties and I have taken all that was expressed into account.

52You have remained in contact with your sister and mother and have ongoing family support that will be still there when you are released.

53You have learned of your co-accused and friend's suicide while on remand and have been saddened by it.  He was a friend from early childhood, one like you, who was troubled by drug use.

54Your counsel emphasised your efforts at rehabilitation in prison.  Your rehabilitation is not overlooked.  You were able to get through a community corrections order and have abstained from heroin use for lengthy periods after your release from prison.  However, given the gravity of these crimes, the need for denunciation and the need for deterrence to you and to others and the need for protection of the community, these matters must be well to the fore and your rehabilitation must yield to them.

55The sentencing purposes are only adequately met by the imposition of a sentence of imprisonment.  There must be a small degree of cumulation within the indictments and also between the two indictments.  I have, however, kept well in mind the principle of totality as it applies to this short period of criminality from 9 to 11 July 2019.

56For the reasons that I have just outlined, I impose the following terms of imprisonment.  They will be done indictment by indictment.

57On Indictment K11821189, in respect of Charge 1, the theft of petrol, you are sentenced to two months' imprisonment.

58In respect of Charge 2, the armed robbery done in company, - I might have to adjust the numbers and the like as to the offences but the sentences that attach to each crime are as I am outlining them.

59So in respect of the armed robbery done in company with Mr Caligari, that is the base sentence of four years.

60In respect of Indictment K11820778, on the charge of armed robbery being the armed robbery on your own, the sentence I impose is three years and three months.

61In respect of the theft of the car, you are sentenced to a term of imprisonment of one year.

62In respect of the theft of petrol, you are sentenced to two months; and in respect of the theft of the number plates, you are sentenced to six months.

63In respect of the theft of the car, which is a 12-month sentence, I cumulate a total of three months in respect of that matter on the armed robbery.

64That is a total sentence of three years and six months.

65I order that one year and two months of the sentence imposed on K11820778 be cumulative upon the sentence on K11821189.

66That gives, and this is the important matter, Mr Cartwright, a total effective sentence of five years and two months and I fix a minimum non-parole period of three years and six months.

67Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of seven years and six months with a minimum term of five years and six months.

68You have already served 405 days in custody.  This figure, having been reckoned, I declare it is part of the sentence I have just imposed.  I will ensure that this declaration is entered into the records of the court.  This will mean that the prison authorities are left in no doubt that you have done 405 days of the sentence that I have just imposed.

69I will just pause there and check, have I attributed the indictment numbers in the sentences in the appropriate way?

70MR MOORE:  Just you mentioned that - the first indictment you mentioned, I think you said, Your Honour, 189; I think it is 159.

71HIS HONOUR:  I am so sorry.

72MR MOORE:  But that will be fixed up, no doubt.

73HIS HONOUR:  One five nine.  Yes.

74MR MOORE:  Yes, Your Honour, but apart from that, I saw no difficulty, Your Honour.

75MR BARRERA:  Your Honour, just in relation to the theft of motor vehicle, because Your Honour sentenced a term of imprisonment, Mr Cartwright has been convicted.

76HIS HONOUR:  Yes.

77MR BARRERA:  Does Your Honour have a disqualification period in mind or is it just the standard three months that is assumed by the legislation?

78HIS HONOUR:  Yes, the three months assumed by the legislation.  Thank you very much for pointing that out.

79So, by reason of the statute, your licence is cancelled and disqualified from driving for a period of three months.

80Anything else?

81MR BARRERA:  As Your Honour pleases.

82MR MOORE:  Your Honour, by an oversight, a notice of forfeiture and disposal for the items which are set out in paragraphs 39 and 40 of the prosecution opening hasn't been filed as yet.

83HIS HONOUR:  All right.

84MR MOORE:  It is in the process of being done now.  It will be done - well, as I understand it, but turning to that opening, I do not imagine there would be any objection to such an application.  The items which were listed in the application are the knife that was found behind the cigarette cabinet.

85HIS HONOUR:  Yes.  Yes.

86MR MOORE:  And various other items seized from the stolen Holden.

87HIS HONOUR:  Yes.

88MR MOORE:  And also, other items from the holiday house which are listed in paragraph 40.  So, I do not know whether my learned friend could obtain those instructions now.

89HIS HONOUR:  Is there any difficulty in respect of those matters?

90MR BARRERA:  No.

91HIS HONOUR:  Forfeiture orders; it looks to me like they are all connected.  This is not running off and getting things that have got nothing to do with the offending that are rightfully his.

92MR BARRERA:  Yes, Your Honour.  There are a phone and wallet that I will contact the informant about but there is no issue with the forfeitures as proposed.

93HIS HONOUR:  All right.  I will sign those in due course when they are filed.

94MR MOORE:  Thank you, Your Honour.

95HIS HONOUR:  If there is nothing further, we will all leave this hearing, Mr Barrera, and I will allow you, through my associate and tipstaff, to have further discussions with Mr Cartwright in the prison within bounds.  All right?

96MR BARRERA:  Thank you, Your Honour.

97HIS HONOUR:  Everyone else has to leave including his family support.

98MR BARRERA:  Thank you, Your Honour.

99HIS HONOUR:  Thank you.

100MR MOORE:  Thank you.

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