Director of Public Prosecutions v Caughey

[2015] VCC 1408

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENTLEY CAUGHEY

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	1 October 2015
CASE MAY BE CITED AS:	DPP v Caughey
MEDIUM NEUTRAL CITATION:	[2015] VCC 1408

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr A. Buckland
For the Accused	Ms S. McCrickard

HER HONOUR: 

1Bentley Caughey, you have pleaded guilty before me to one charge of armed robbery and a summary charge of using heroin.  The facts underlying your offending are as follows.

2On Thursday 21 August 2014, you, having become worried about a drug debt, asked your mother for $350, which she was not able to give you and at about 6.25 pm that day, you drove your car to Reilley Street, Inverloch.  Your son was in the car.  You got out and changed into a grey hooded top, dark jacket, cargo pants and sunglasses and then went into the local BP service station on the corner of Bayview and Williams Streets.  You went straight to the counter where there was a 21 year old console operator sitting and produced an uncapped syringe, pointing at her and saying, "Open the till or I'll stab you."

3She did this, stepped back, as you held the syringe towards her and with the other hand, you removed $768 in cash.  As you left, you said to the operator, "If you tell anyone or call anyone, I'll kill you."  You ran back to the car, changed your clothes and drove to Keysborough in Melbourne, where you met your drug dealer and purchased more heroin.  You were arrested shortly after 10 pm as you returned to your house.  Your victim in the armed robbery having recognised you.  You made full admissions to your actions, including to the threats you made to the console operator.

4You said that all the money had been spent but $99 was found in the car and I am ordering that you compensate the BP service station in the sum of $669.

5I now turn to your personal circumstances.  You are 39 years of age and you have had a difficult history.  In 2000, you were involved in a single car collision where you suffered multiple injuries and an ongoing acquired brain injury.  This has led to a number of difficulties in your life, in particular you have difficulties with mood changes and it appears from various reports I have received on the plea, including a report from the ARBIAS, that you have almost since that time suffered very high levels of depression and anxiety.

6At the time of the crash, you were married, had two children and your wife was expecting a third child.  That marriage has since ended, but your 17 and 15 year old sons live with you.  You also have a 17 year old foster son who lives with you.  All three are engaged in study. 

7You have a good work history, but in 2009, suffered a severe injury to your leg whilst at work, which ultimately resulted in an amputation.  You continue to suffer pain from this, indeed you suffered chronic pain at the time, particularly chronic pain from phantom leg syndrome.  As a result, you went on to develop a heroin problem, which has gone on unabated until quite recently.  You have a longstanding cannabis problem, which is ongoing and at one stage in your life, alcohol was a difficulty for you.

8You were gaoled for some days after being arrested in relation to this matter.  I note that a very early plea was entered at committal mention stage.  Eventually, when you were released, you were ordered to attend the CISP program as part of your bail conditions and I received four progress reports from that organisation attesting to the fact that you undertook a great deal of rehabilitation.  You largely stopped using heroin.  You went on the Suboxone program on which you remain.  You also attended for psychological counselling.

9You have not totally stayed out trouble since being charged for this offence.  Late last year, there was an argument with your mother where you pushed her and this matter ended up in court and you were dealt with for unlawful assault.  You have also been dealt with for unlicensed driving and for using heroin.  It appears once the CISP program finished early this year, you largely continued, I note the reports you continued to attend upon the chemist to provide you with Suboxone on a regular basis, however on two occasions, you lapsed back into heroin use.

10In the meantime however, other parts of your life have remained positive.  You have purchased a house in Inverloch.  You are employed as a dairy farmer, looking after a herd of around 400 cows and I received a letter from your employer attesting to your hard work, the responsibility that you have undertaken and the fact that he is now very reliant upon you.  I also received a number of references from friends and family.  Your mother continues to support you.  I noted a particularly interesting reference from your tennis club where apparently you still play tennis.  The author of that letter noted that there are a number of police officers who were members of the tennis club.  You have told everyone what you did and expressed a great deal of remorse.

11Your mother, in her reference, said she continues to support you and says that you are also very remorseful for your actions.  In the last six weeks, you have begun a relationship with a woman who is crime free and I received a letter from her mother.  Your girlfriend's father is very debilitated by Motor Neuron Disease and your girlfriend's mother wrote in her report that in the short time you have been involved in a relationship with her daughter, you have been extremely helpful to the family and they have, to some extent, come to rely upon you.  They are also aware of your offending.  They, with a number of other people, regard it as out of character and all have written that you have not only spoken freely about your offending, but expressed remorse for it.

12When the words out of character are used about you, Mr Caughey, that does not mean that you have remained crime free up to this point in your life.  You have a reasonably extensive prior criminal history going back to 1995, when you were dealt with for possess and use of cannabis.  However, whilst in 1995, you were dealt with intentionally or recklessly causing injury and assaults, which related to a pub fight, I think your counsel said, the rest of your prior criminal history relates to driving whilst disqualified, some dishonesty and possession of cannabis and amphetamines.

13The victim impact statement made for distressing reading.  Your victim, as I have said, was a 21 year old woman who wrote with some indignation about the fact that she was simply carrying out her work when someone, a local who she knew, that is you came in and behaved in the extraordinarily violent way that you did towards her.  As a result, and this court sees this all the time with victims of armed robberies who are victims whilst at their place of work, she now feels unsafe in her employment and has considered giving it up.  She needs to work, as is evident from her victim impact statement, because she has got two small children.  You should be thoroughly ashamed of your actions on that day.

14Certainly, what you did amounts to an escalation in any of the offending you have engaged in previously.  I accept that it was unsophisticated, a relatively impulsive act by you, but make no mistake about it Mr Caughey, you have come very close to receiving a very serious sentence of imprisonment for what you did on that day.  It is extremely serious offending, it is cowardly offending, it is offending on what you would call a soft target and it pretty much represents the depths to which you had sunk insofar as your drug habit was concerned. 

15It is also singularly unimpressive that you carried out this very serious offending whilst your son was in your car, that you then attended on a drug deal while your son was in your car and whilst your son, on the way back, went to get McDonalds, you injected yourself with heroin.  That is appalling parenting and if your children were not the age they were and this came to the notice of Department of Human Services, you could confidently expect that they would have taken out some sort of application in the Children's Court to have your children removed from your care.

16I do accept that because of your ongoing anxiety and depression, your amputation, the pain that you have continued to feel, your acquired brain injury, that service of a sentence of imprisonment would be more difficult for you than for the ordinary person.  I am concerned that the community would not be well served if I sentenced you to a term of imprisonment to be immediately served as it would result in the loss of your employment, serious disruption to your children's lives and would not inevitably have you exited from the prison you were held in, in any great shape either to continue with your rehabilitation you achieved insofar as your drug habit is concerned or for you to be a contributing member of society.

17Had you not undertaken and achieved as well as you had the demands of the CISP program, I would not have hesitated in determining that you deserve a term in gaol.  Because of your own good efforts, and that includes holding down what I accept is fairly rigorous employment involving a fair degree of responsibility, you have to be a good worker to be a dairy farmer in the way you are and to undertake the amount of milking that you clearly organise on behalf of your employer and that is very much in your favour.  You also have a pretty good work history.

18However, this will be your last ever opportunity, Mr Caughey.  If you come before a court again, the first thing that will be seen on your priors is an appearance in the County Court for armed robbery.  Any judge in the future, any magistrate in the future will see that you have been given an enormous opportunity.  Ordinarily, persons who commit armed robberies on 21 year old girls sitting behind a counter at a service station can expect nothing but gaol.

19For the reasons I have outlined and I accept also you are extremely remorseful for your actions, I am prepared to place you on a community corrections order.  In so doing, I have regard to the comments of Their Honours in the decision of Boulton, who opined that the creation of a community corrections order had changed the sentencing landscape so that in certain offences, which would ordinarily attract gaol might now be the subject of such an order.

20The order, however, will last for four years.  There are a number of conditions that you will have to undertake.  It may be, Mr Caughey, that you find this order interrupts you quite severely in the way you undertake your day to day activities and that is just too bad.  Whilst you are on this order, my strong advice to you is to make it a priority.  You attend when Corrections tell you to attend.  You go to appointments they make for you.  You do what they say.  If you cannot attend, you must provide documentation, which authenticates that you have an acceptable reason for not attending.

21If you fail to abide by the conditions, if you offend in the four years that you are on this order, you will be brought back before me on a breach of the order at which time I will resentence you for this armed robbery and I am warning you that I would be about, at this stage, 98 per cent inclined to gaol you if I ever see you before me on breach of an order.  You will also, as I have said, be appearing before me on a six monthly basis at which time I will receive a report from the Office of Corrections as to your progress on the order and your adherence to it.

22Now, I cannot place you on an order without your permission, so I need to outline the conditions that attach to it.  The first condition is that you must report to the Community Corrections Office within two working days of being placed on this order, that is by Tuesday of next week.  Whilst on the order, you must not commit another offence punishable by imprisonment.  That means if you decide that you are going to knock off a box of matches from Safeway, theoretically, you can go to gaol for that and that will amount to a breach of the order.

23Whilst on the order, you may not leave Victoria without the permission of the Office of Corrections.  Whilst on the order, you must inform the Office of Corrections of any change of address or employment within 48 hours.  You must report to and receive visits from the Office of Corrections as directed.  You must obey all lawful instructions of the Office of Corrections.

24I am going to order that you undergo assessment and treatment for drug abuse.  I am going to order that you undergo assessment and treatment for mental health problems.  I am going order that you undertake programs designed to reduce reoffending.  That is, you will undergo an anger management program.  How many hours a week are you working?

25OFFENDER:  It's on four days.

26HER HONOUR:  Four days.  I am going to also order that you undertake 300 hours of unpaid community work.  Are you prepared to enter this order?

27OFFENDER:  Yes.

28HER HONOUR:  Thank you.  I am also, as I have said, going to order that you repay the BP service station in Inverloch, the Evans Petroleum in Inverloch, the sum of $669.

29In relation to the summary charge, I am going to order that you are fined and you will be fined $500.  I will give you six months to pay.  I am also signing a disposal order in relation to the items that were used by you in the armed robbery.

30I forgot to add the condition that there will be supervision, which means you will be more intensively monitored by the Office of Corrections and that there will be judicial monitoring and that you will appear before me on the first of these judicial monitoring occasions in six months' time, which will make it 1 April 2016.  We will probably be able to organise it by way of video link.

31Finally, I am ordering that police take a forensic sample from you.  That is, they will take a scraping from the mouth and you must report to the police station at Wonthaggi within 28 days of the making of this order and I need to advise you that if you do not allow police to take that swab, police may use reasonable force in order to obtain it.

32So it is all up to you now, Mr Caughey.  I have spoken about writing a letter of apology to the victim in this matter and that is to be done within two weeks and you are to give it to the informant.  You are not to go near her.  I am sure that you are the last person that she wants to see and you make sure that it is an abject apology and that you fully discuss the effects that you have had upon her and no excuses about, "I was hanging out, I am not a bad person really."  It is to be something along the lines of, "I have done you a terrible wrong.  I understand that your life is considerably less enjoyable than it was the day before I walked into that service station.  It was cowardly, it was wrong and I will be forever ashamed of it."  Words something along those lines.  I do not want to hear about, "I have changed now and I am a different man."  Just an abject apology.  I am sure, Ms McCrickard, you have got a thousand things on your plate, but if you want to run your eye over it before if you have got time.

33MS McCRICKARD:  That is no problem, Your Honour.

34HER HONOUR:  Yes, well I hope it is not, because I know you are an extremely busy woman, but that needs to be done.

35MR BUCKLAND:  In relation to that query whether you can make an indication, of course you can under the residual power s.48, Your Honour.

36HER HONOUR:  Very well, I do make that order and it is to be done within two weeks.  If you do not do it, that will be a breach of the order as well.

37OFFENDER:  Yep.

38HER HONOUR:  All right?

39OFFENDER:  Yes.

40HER HONOUR:  And it would be good if a copy of that apology can be sent to me so I can make sure you have done the job properly.  The main aim of it is not to make you feel better sir, it is to make her feel a little bit more reassured that when she sees you in the street, as she undoubtedly will in Inverloch, she does not have to feel fearful and that the damage you have done her has been acknowledged by you, as it should be.

41Here are the orders.  We will just print out the community corrections order, thank you.

42I thank counsel for their assistance in this matter.  Thank you very much.

43MR BUCKLAND:  Thank you, Your Honour.

44HER HONOUR:  All right, we will get you to sign that please, thank you.

45Thank you, does that take care of everything?

46MR BUCKLAND:  Yes, Your Honour.

47HER HONOUR:  One of these, Mr Buckland, you are going to come along and make a suggestion where I will say, "Absolutely I agree with you."  You have not had a big week of that so far.

48MR BUCKLAND:  I think we agreed yesterday,

49HER HONOUR:  Pardon?

50MR BUCKLAND:  Basically we were in agreement yesterday, as I recall.

51HER HONOUR:  Were we?

52MR BUCKLAND:  Yes.

53HER HONOUR:  What was yesterday?

54MR BUCKLAND:  It was a sex pen matter, Your Honour.

55MS MCCRICKARD:  Matter of Hart, Your Honour.

56HER HONOUR:  Pardon?

57MR BUCKLAND:  It was a young man.

58HER HONOUR:  Yes, we were.  We were with that one.  Yes, well that is true.  Well everyone was agreeing yesterday.  I meant one where defence and you are at loggerheads.  All right.

59MR BUCKLAND:  All right.

60HER HONOUR:  Thank you.  Thank you very much.

61MR BUCKLAND:  Thank you, Your Honour.

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