Director of Public Prosecutions v Cassidy
[2020] VCC 463
•21 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02264
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BEAU CASSIDY |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 April 2020 | |
DATE OF SENTENCE: | 21 April 2020 | |
CASE MAY BE CITED AS: | DPP v Cassidy | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 463 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Armed robbery – general deterrence – rehabilitation
Legislation Cited: Sentencing Act 1991
Sentence: 14 months' imprisonment with CCO for three years - s.6AAA: three years' imprisonment with a non-parole period of two years' imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A Buckland | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr D Gibson | Victorian Legal Aid |
HIS HONOUR:
1 Beau Cassidy, on Monday, 6 April 2020, you pleaded guilty to one charge of armed robbery committed at Horsham on 21 July 2019. You admitted your criminal record that sets out one appearance at the Magistrates' Court at Bendigo on 28 June 2017 for, in the main, driving offences. You were sentenced to a community correction order with the only condition being that you perform 150 hours of unpaid community work. You successfully completed the community correction order. It is of note that one of the offences of which you were convicted was drive under the influence of a drug.
2 Tendered as Exhibit A and read aloud in court was the summary of prosecution opening. You are presently 26 years of age and were 25 at the time of your offending. At the time of your offending, you were living with your parents in Horsham and working in Horsham installing solar electric systems. At about 5.28 am you walked into the Caltex service station in Baillie Street, Horsham. You wore a black cap under a hooded long-sleeved jumper, dark coloured track pants and black and white runners. Your jumper was pulled up to partially obscure your face and you used a cloth for this purpose as well. You had secreted on you an aluminium baseball bat.
3 In the service station, you tried to make a cup of coffee from a self-service machine but needed help from the console operator, after which you paced around the Caltex shop in a nervous manner. You selected a number of items and placed them on the counter. You asked the attendant to open the locked mobile phone cabinet as you wished to buy a phone. The attendant did as you asked and as he returned to the counter, you produced the baseball bat and pointed it at him. You said to the attendant, 'It's not my fault – sorry.' You also threatened the attendant by saying, 'Don't do anything stupid, I know your registration and what your car is.' You told the attendant to give you cash from the register and he gave you $120. Thereafter, you demanded a pack of cigarettes, which the attendant handed over to you. Prior to leaving the Caltex shop, you took the shop's walkabout phone. While walking away from the service station, you discarded the phone and your cap.
4 Your conduct had been observed by a witness who phoned 000. Your movements to and away from the Caltex service station were caught on CCTV and you were subsequently identified from that CCTV footage by an employee of Victoria Police, who recognised you by your gait.
5 Your young male victim's immediate reaction to your crime was to sit down on an empty milk crate behind the counter at the service station and break down in tears.
6 On 14 August 2019, you were arrested and interviewed under caution, during which you made 'no comment' answers to questions asked of you, save that you claimed that you could not recollect the incident. You were remanded in custody and remain so.
7 Tendered as Exhibit B was the victim impact statement of the service station attendant, Mr Loft. Your threat to Mr Loft that you knew his car and its registration number caused him to be so scared that he did not drive his car for some time. Mr Loft no longer works night shifts and has become fearful of people who resemble you who enter the Caltex service station. Mr Loft, as at 27 December 2019, the date that he swore his victim impact statement, was scared to go out at night. Mr Loft ceased going out with friends at night and was fearful of meeting you in Horsham. By your conduct, you have adversely affected Mr Loft's life.
8 Beau Cassidy, you are 26 years of age. You were born in Edenhope and raised in Horsham. You have one sibling, an older sister aged 31 years. Your father, Brian Cassidy, worked as a painter for 30 years and is presently employed in a disability care role with Wimmera United Care in Horsham. Your father has worked in this role for the past seven years. Your mother has been employed by Forty Winks for the past 20 years.
9 Your upbringing was described as a supportive one and at the time of your offending and arrest, you were residing at home with your parents. Upon your release from custody, you will return to your parents' home.
10 I was informed that you are a talented sportsman, and that as a young boy participated at State tournament level in basketball between the ages of 12 to 16 years. You commenced playing football when you were eight or nine years of age and played in two premiership teams in 2015 and 2018 in reserve-grade football for the All Saints Football Club.
11 On 29 April 2016 you were involved in a serious motor vehicle collision where you were the driver of a truck that rolled at some speed. You received only minor injuries as a result of the collision. However, you thought that you were going to die. This experience, I was informed, is constantly on your mind and has contributed in part to your mental health issues.
12 You attended St Bridges College in Horsham to Year 12, leaving in the final term of that year. At the age of 17, you commenced a traineeship in retail at Mitre 10 in Horsham, where you worked for approximately two years. Thereafter, you were employed by CHS Group Australia. CHS is a family owned and operated business, whose operations include electrical work, plumbing, solar installation and some engineering works. CHS is the largest employer in the Horsham region. Before leaving CHS, you were employed as an assistant fleet manager, having responsibility in part for 118 vehicles at sites between Horsham and Warrnambool.
13 At the time of the commission of the armed robbery and your subsequent remand in custody, you were working as a sub-contractor, installing solar panels for a company, VV Electrical and Solar. Your work was not consistent, and your income could vary significantly depending upon the availability of work.
14 Tendered on your behalf as part of Exhibit 3 were references from David Hopper, the founding owner and his son, Timothy, the current managing director of the CHS Group. Mr David Hopper is a long-time friend of your family, as well as being your previous employer. Mr David Hopper was aware of your problem with methylamphetamine and worked with you to help you through your problems or 'battles', as he described them. Mr Hopper opines that getting you to work would be beneficial to you. Timothy Hopper writes of your strong work ethic, politeness and personality. He hopes that you will return to your community as the great young man that you once were.
15 You commenced to use cannabis at age 16 and was first introduced to methylamphetamine at about 17 years of age. Initially you used methylamphetamine on weekends and found that you could maintain your employment despite your drug abuse. You quickly became addicted to methylamphetamine and became an intravenous user in or about 2019. At the time of your offending, you were using methylamphetamines from Wednesdays to Saturdays after you had been paid and then abstained from the use of methylamphetamine until your next payday. You instructed that you drink socially only.
16 Tendered as part of Exhibit 3 is a letter from Uniting, a drug treatment organisation that offers support to you after your release from prison.
17 Tendered as Exhibit 2 were two reports from Ms Mynard, psychologist, dated 19 February 2020 and 3 March 2020 respectively. You reported to Ms Mynard that in addition to cannabis and methylamphetamine abuse at 16, you engaged in binge drinking on weekends. You have also experimented with ecstasy and GHB, sometimes using a cocktail of MDMA, sleeping pills and methylamphetamine.
18 In respect to past attempts at rehabilitation, you attended Tabor House for two weeks, and reported to Ms Mynard that you experienced drug induced psychosis whilst detoxifying there.
19 Further, for 12 weeks you attended 'the Bridge' rehabilitation program at Bendigo and then at 'the Basin' for 16 weeks, a treatment facility run by the Salvation Army in Melbourne. Any period of abstinence during treatment has been followed by relapse into the abuse of methylamphetamine. In addition to inhouse rehabilitation, you have from time to time been prescribed the antipsychotic drug Olanzapine, together with Valium to assist you in ridding yourself of your addiction but, as with your attempts at in-house rehabilitation, you soon relapsed into the abuse of methylamphetamine.
20 You reported to Ms Mynard that the motor vehicle collision in 2016 haunts you and that you use methylamphetamine to deal with this trauma. Additionally, you are haunted by witnessing the death by overdose of a friend's father who, together with you and your friend, used methylamphetamine at the time of his death.
21 You further reported to Ms Mynard that the reason for your offending was that you owed a debt of $50 to your supplier, a person of whom you were afraid. The detail of your narrative is set out at p.7 of Ms Mynard's first report.
22 While in custody, you have completed a number of training courses and are drug-free (see Exhibit 4).
23 In respect to your present psychological state, in her initial report, Ms Mynard wrote at length in respect to you suffering from depression, PTSD, anxiety and your stimulant use disorder and its sequalae. In her subsequent report, Ms Mynard opines:
'I think that Mr Cassidy's depressive symptoms are because of his current circumstances, and his low mood is more related to his PTSD symptoms of negative affect, after the accident. He doesn't come across as having a long-standing depressive disorder, but more PTSD symptoms of negative affect.'
24 Later in her report, Ms Mynard opined:
'Mr Cassidy's PTSD would likely affect him in custody, given that he recently had a panic attack in custody, it appears that his mental health is deteriorating. In an environment where he does not feel safe and does not have control over his environment, PTSD is likely to become worse and his anxiety also becomes worse. His PTSD is likely to adversely affect his ability to cope in prison, given that he experiences overwhelming emotions and struggles to contain himself at times.'
25 In his written submissions, Mr Gibson of counsel, who appeared on your behalf, sought to rely on all of the principles set out in R v Verdins & Ors. During discussion, however, this position was abandoned. However, I am satisfied that your time in prison will be more burdensome for you than for a person who does not suffer from your psychological disabilities, namely PTSD and anxiety.
26 You have a supportive family. Your father gave evidence on your plea. It was plain from his evidence that you have driven your parents to the edge of despair. You have been asked to leave the family home more than once, but as you had nowhere to go, your parents relented and you remained in their home and, as I have earlier noted, they are willing to have you back upon your release from prison. Your father visited you regularly in prison until the recent restrictions. You have put on in excess of 10 kilograms in weight while in custody. Your father swore that there is a chance that you will be able to obtain work when you are released from prison.
27 There is drug treatment available for you upon release, and as your father works shift work, he will be in a position to monitor you and your rehabilitation. Further, you still have some friends that are not part of the drug scene in Horsham, with whom you can reconnect.
28 You entered your plea at the earliest opportunity, and you are entitled to the benefits that flow to you from that plea, being that it is some evidence of your remorse and that it has utilitarian value.
29 Your offending is objectively serious in that in the early morning, whilst armed with a baseball bat, you robbed a 'soft target', being a service station manned by a single employee who was simply going about his lawful employment. You threatened the attendant and this threat remains with him. The service station that you robbed was one used by your father. Your father, since your offending, has spoken to the attendant and apologised on your behalf to him and confirmed during the course of conversations with him that he now works day shift only for some 30 hours or so per week.
30 I do not regard your prior criminal record as relevant to the exercise of my sentencing discretion. However, your prospects for rehabilitation are entirely dependent on you being abstinent from the abuse of methylamphetamine and all other drugs of addiction. This is something which you have been unable to achieve after several attempts at inhouse rehabilitation and the use of antipsychotic and relaxant medication while not in an inhouse rehabilitation facility has also proved ineffective
31 In respect to the COVID-19 virus, it was conceded that the likelihood of you catching the virus in custody and the impact upon you of this is speculative. However, it was submitted that the impact of the virus increases the burden of imprisonment on you in at least in these respects, being contemplating the prospect of catching the virus, the impact on prison conditions, including likely lockdowns, and the suspension of personal visits from family. In all the circumstances, I must take that matter into account in arriving at an appropriate disposition in your circumstances.
32 Ultimately, it was submitted on your behalf that a sentence of imprisonment combined with a community correction order with conditions met all the purposes of sentencing in your circumstances.
33 The Crown submitted that your offending was a serious example of the offence of armed robbery. The armed robbery was committed on a soft target, being a Caltex service station manned by a single individual in the early morning. You threatened your victim and your threats and actions have had a profound effect on him. Further, the maximum penalty for armed robbery is 25 years' imprisonment and it is regarded by Parliament as a serious offence. These matters, in combination, the Crown submitted warranted a sentence that involved the fixing of a head sentence and a non-parole period.
34 At the end of the plea the matter was adjourned so that you could be assessed for suitability for a community correction order, and you have been found suitable, subject to conditions.
35 You are an appropriate vehicle for the application of general deterrence, and public denunciation and just punishment must be reflected in the sentence that I impose on you. However, you are 26 years of age with no relevant prior criminal history. You have a loving and supportive family who will support you upon your release from custody. You have the chance of employment. You are presently drug-free and, if supported in your rehabilitation, stand a chance of remaining drug-free and not reoffending. Your work history and sporting prowess are aspects of your life that if reignited will assist in your rehabilitation, which is both to your benefit and that of the community.
36 Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you to 14 months' imprisonment, together with a community correction order for a period of three years with conditions, namely:
(1)that you be subject to the supervision of the Secretary of the Department or his nominee;
(2)that you undergo treatment and rehabilitation in respect to your mental health; and
(3)that you undertake treatment and rehabilitation in respect to your drug abuse.
37 Are you prepared to enter into that community correction order?
38 OFFENDER: Yes, Your Honour.
39 HIS HONOUR: I declare that you have spent 251 days by way of pre‑sentence detention, not including today.
40 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to three years' imprisonment with a non-parole period of two years' imprisonment.
41 Now, I had cause to be forwarded to the prison, the forms required to be signed by you to consent to the community correction order, and with the speed of Mercury, that document had been signed and returned in anticipation of my sentencing remarks. So, you have consented to that order and I will sign it, as you have already.
42 Now, I will explain this order to you. At the end of your term of imprisonment, which is a period of 14 months from today, minus the 251 days in prison that you have already spent. When you are released from custody, you will attend at the Horsham Community Correction Services at Level 2/21 McLachlan St, Horsham, within two clear working days of your release from prison.
43 I have, in addition to the statutory conditions, placed three further conditions. First, that you must be under the supervision of a community corrections officer for a period of three years. That you must undergo assessment and treatment, including testing for drug abuse of dependency as directed by the regional manager. You must undergo any mental health assessment and treatment, that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility as directed by the regional manager.
44 The term of the community correction order is for a period of three years once you are released from prison.
45 Understand this, once you are released from prison, this order lasts for three years. If you breach this order by non-compliance with it or by committing a criminal offence during the currency of the order, you will breach the order and you will be returned to me. I do not recommend to you that you come back to me having breached this order; do I make myself plain?
46 OFFENDER: Yes, Your Honour.
47 HIS HONOUR: Yes. Now, the other matter is this, there was an application for forfeiture order.
48 MR BUCKLAND: Yes.
49 HIS HONOUR: And the only thing I called into question about it is the phone that is taken from the Caltex service station is included in the order. Should that be - - -
50 MR BUCKLAND: They seem to be just exhibits, forensic exhibits, but if Your Honour's minded to take that off, I am sure they could just hand it back to the service station, they can do what they like.
51 HIS HONOUR: Unless it was damaged in some way, that is the only thing. So, what I will do is I will delete it from the schedule, and I will make the order because they are the other matters, or objects are simply matters that were used for the purpose of forensic analysis.
52 MR GIBSON: As Your Honour pleases, thank you.
53
HIS HONOUR: Thanks very much. I will hand down a copy of that order. Now, Mr Cassidy, what will happen is this, that once I have singed the formal orders of the court, I will make copies available to counsel for the Crown,
Mr Gibson, who appeared on your behalf, and I will have forwarded to the prison my formal orders and a copy of the community correction order that you have signed to go into your personal property so that you have them for future reference; do you understand?
54 OFFENDER: Yes, I understand, Your Honour.
55 HIS HONOUR: Thank you very much. Are there any other matters arising?
56 COUNSEL: No, Your Honour.
57 HIS HONOUR: Mr Gibson, would you like some time to speak to Mr Cassidy after I have left the Bench?
58 MR GIBSON: Thank you, Your Honour, very briefly, thank you.
59
HIS HONOUR: Yes, thank you. The Crown will absent themselves,
Mr Buckland, thank you.
60 MR BUCKLAND: Indeed, Your Honour, it will not take a second.
61 HIS HONOUR: Thank you very much.
62 MR BUCKLAND: Thank you, Your Honour.
63 HIS HONOUR: And I want to thank counsel for their assistance in this matter. And Mr And Mrs Cassidy, I want to thank you for your attendance today and particular, Mr Cassidy, for your assistance in giving evidence on the plea.
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