Director of Public Prosecutions v Cato

[2015] VCC 272

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -15-00144

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYDEN CATO

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2015
DATE OF SENTENCE:	12 March 2015
CASE MAY BE CITED AS:	DPP v Cato
MEDIUM NEUTRAL CITATION:	[2015] VCC 272

REASONS FOR SENTENCE
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Subject: Criminal law – sentence – attempted armed robbery – trafficking in a drug of dependence
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Two-year Community Correction Order, 150 hours work, conditions for treatment and rehabilitation.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D Glynn	Office of Public Prosecutions
For the Accused	Mr J McLoughlin	Victorian Legal Aid

HER HONOUR: 

CHARGES

1Hayden Cato, you have pleaded guilty to one count of attempted armed robbery, and one count of trafficking in a drug of dependence.  The maximum sentence for attempted armed robbery is 20 years' imprisonment.  The maximum sentence for trafficking in a drug of dependence is 15 years' imprisonment. 

CIRCUMSTANCES OF OFFENDING

2The full circumstances of your offending were contained in the prosecution opening, which was read out to the court yesterday. 

3

In summary, the circumstances of the attempted armed robbery are that on

3 November last year, you attempted to rob Ahmad Sallum when he was at the bus stop next to the Eltham train station. 

4At that time you had a black handled hunting knife in a scabbard attached to your belt, but concealed under your shirt. 

5When you accosted Mr Ahmad, you pushed him forcefully with two hands to his chest, causing him to lose balance and fall back into the shelter. You kept demanding that he give you $20.00.  After approximately 37 seconds of wrestling, you let go and stepped back.  You started to get the knife out of the scabbard and Mr Ahmad ran away. 

6When he came back about ten minutes later to try and catch his bus, he saw you again and you called out to him.  He spoke to some protective officers that were at the scene and you were arrested some 15 minutes later, walking through the carpark.

7Now the circumstances surrounding the charge of trafficking in the drug of dependence, are that when you were interviewed with the police, you told them that you had $50 in your wallet, of which $25 was obtained from selling marijuana.  You told then that you had sold a gram and a half earlier that evening, and it was due to your admission that you were charged with this offence.

PERSONAL CIRCUMSTANCES 

8Your personal circumstances were set out in detail in the written plea submissions prepared by your counsel.  You were born on 21 June 1993.  You are a young offender, being only 21 years old. 

9From your birth until you were six, you lived with your mother and your maternal grandparents.  You do not know who your father is, so you have no contact with him. 

10

When you were about nine years old, your mother formed a relationship with Peter Christoff, who became a step-father figure to you.  You have two

step-brothers due to this relationship that your mother had.  Unfortunately

Mr Christoff passed away when you were 14.

11Now with respect to your schooling, you obtained the VCAL, and then you completed Certificates 1 and 2 in landscaping, so you have some qualifications.  You worked as a labourer and doing casual gardening. 

12When you were 18, until about 2013, you were in a relationship with an older woman.  You had inherited some 40,000 from your father's estate.  It appears that you made significant financial contributions towards her and her children. 

13With respect to your medical health, it is apparent from a letter written by your doctor, that you suffer from depression, anxiety and panic attacks.  It is possible that your mental health problems are related to your long-time use of marijuana.  You have been smoking marijuana since you were 14.  There is a lot of medical research with respect to the adverse effects of marijuana on the developing adolescent brain.  You have also developed or been diagnosed with epilepsy, which is now controlled by appropriate medication.

14

You have one prior court appearance at Heidelberg Magistrates' Court on

29 September, I think 2013.  You were convicted of driving related charges, including dangerous driving while being pursued by the police.  You were placed on a Community Corrections Order for 12 months.

SENTENCING REMARKS

15Now in sentencing you, I have taken into account all the background circumstances I have just outlined.  I have also taken into account the mitigating factors which were put by your counsel yesterday.  These include your early plea of guilty, for which I have given you an appropriate discount.  Also the fact that you are a young offender with good prospects of rehabilitation, in particular if you do something about your drug addiction.  Another factor I have taken into account is that the prosecution were reliant on your admissions for the charge of trafficking in a drug of dependence. 

16I have also taken into account your medical history, including your depression, anxiety and recent seizures. 

17I have taken into account that you have served 44 days pre-sentence detention.  You have had a taste of imprisonment.  I am sure you do not want to return to gaol. 

18Your counsel submitted that a Community Corrections Order was appropriate,   and the prosecution did not argue with their submission.  I have had you assessed and you have been found suitable.

19However, before I sentence you, I must inform you that general and specific deterrence are important sentencing considerations, with respect to both attempted armed robbery and trafficking in a drug of dependence.  This is reflected in the maximum sentence of respectively 20 years and 15 years.  There is no doubt that Mr Ahmad would have been shocked and frightened during the attempted armed robbery.  The fact that you had a knife in your possession is a matter of considerable concern.  If he had not run away, and if you had produced that knife and threatened him, then you would have been facing further time in actual custody. 

20In deciding to give you a chance to avoid more actual gaol time, as well as the mitigating factors I have just referred to, I have taken into account what your uncle said in his reference.  The young man he described as being "good natured, reliable and committed to his family", is not the same person who attempted to rob Mr Ahmad.  You must never become that other person again.

21Would you please stand up.

SENTENCE

22On the charge of attempted armed robbery, you are convicted and sentenced to a two year Community Corrections Order, with conditions for treatment and rehabilitation with respect to drugs and alcohol, with supervision and 150 hours work. 

23On the charge of trafficking in a drug of dependence, you are sentenced to six months' Community Corrections Order, with the same conditions, except that the work will be 50 hours.

24Now those orders are concurrent with each other and concurrent with the Community Corrections that you are already undergoing.  That effectively means that you have got 50 hours on top of  the 100 hours that you are already doing on the other Corrections order, which is pretty doable, given that you have got an extra year in which to do the 50 hours. 

25I have already made the Disposal Order.  I will make a s.464ZF Order, and I believe it has been explained to you what that involves.

26MR McLOUGHLIN:  It has, Your Honour.

27HER HONOUR:  So those orders are made.

28But for your plea of guilty, you would have been sentenced to three years, to serve two. 

29All right.  Now the Community Corrections Order will now be brought to you by my associate.  Your counsel can approach you as well.  And if you agree with the conditions, you can sign that document. 

30MR GLYNN:  There is just one matter, Your Honour.  In Your Honour's sentencing remarks, when Your Honour summarised the attempted armed robbery offence, I appreciate it was a very brief summary.

31HER HONOUR:  Yes.

32MR GLYNN:  But Your Honour omitted the fact that when Mr Cato was wrestling with the victim, he was demanding money saying, "Give me $20, and that's germane to the offence, of course.

33HER HONOUR:  But - yes, yes.  I should have said that during that time, you were demanding the sum of $20.  Thank you for drawing my attention to that fact.  Yes, and you repeated that several times. 

34So Mr Cato, you realise that you have got to comply with that Community Corrections Order, and if you commit another offence, you come back before me and there would be no second chances, you would just be going inside and continuing to serve your time in custody.  Do you understand that? 

35OFFENDER:  Yes, Your Honour.

36HER HONOUR:  So you have got to take it very seriously and you have got to take advantage of it.  All right. 

37Are there any other matters? 

38COUNSEL:  No, Your Honour.

39HER HONOUR:  Thank you. 

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