Director of Public Prosecutions v Charles

[2024] VCC 550

IN THE COUNTY COURT OF VICTORIA

 Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-01063

DIRECTOR OF PUBLIC PROSECUTIONS

v

BLAKE CHARLES

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JUDGE:	JUDGE DAWES
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2024
DATE OF SENTENCE:	24 April 2024
CASE MAY BE CITED AS:	DPP v Charles
MEDIUM NEUTRAL CITATION:	[2024] VCC 550

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:  Carjacking; common law assault; possession of a drug of dependence (cannabis); possession of a drug of dependence (methylamphetamine); possession of cartridge ammunition; contravene conduct condition of bail

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Bugmy v R [2013] 249 CLR 571; R v Verdins [2014] VSCA 62

Sentence:  3 years’ imprisonment

NPP 1 year 8 months

Forfeiture and disposal

$500 fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Stokes (sentence) Mr S. Profitt (plea)	Office of Public Prosecutions
For the Accused	Mr L. Barker	Emma Turnbull Lawyers

HER HONOUR

1Blake Charles, you committed two offences on 17 December 2022.  You were arrested on 21 December 2022 and your house was searched.  Items were seized, resulting in three further charges.  You were incarcerated and then released on bail with a number of conditions that you subsequently breached, resulting in three summary charges.  You have pleaded guilty to the following offences:

Charge no.	Offence	Maximum penalty
1	Carjacking	15 years’ imprisonment
2	Common Law Assault	5 years’ imprisonment
3	Possession of a drug of dependence (cannabis)	5 PU
4	Possession of a drug of dependence (methylamphetamine)	1 year imprisonment or 30 PU

2You have also pleaded guilty to the following summary offences:

Summary charge no.	Summary offence	Maximum penalty
5	Possess cartridge ammunition	40 PU
8, 9, 10	Contravene conduct condition of bail	3 months’ imprisonment or 30 PU

3The circumstances of your offending have been provided in the summary of prosecution opening.  It is agreed to be an accurate account of events.  A general summary of the facts is as follows.

4At the time of this offending, you and Ms Rebecca Carr were both aged 26 years and had been in a relationship for approximately three years.  You lived together in Yarraville with three young children.  The victim was 49 years of age.

5On 16 December 2022, at approximately 11.30 pm, the victim exchanged messages with Ms Carr on SKOUT, a social networking application.  They exchanged phone numbers and began to text each other.  Ms Carr sent messages to him from a phone number which was used by both of you.   Between 11.55 pm on 16 December and 1.08 am on 17 December 2022, 69 texts were exchanged between the victim and Ms Carr’s mobile.  The victim also called Ms Carr and spoke to her three times.  He arranged to meet her at an address in Yarraville.

6During this time, you and Ms Carr communicated with an unknown person, via text, to organise the purchase of various drugs.  At 12.53 am on 17 December 2022, 15 minutes before the victim arrived in Yarraville, you and Ms Carr sent messages that included:

'Heading out soon.  Just gotta do something to this cunt that's been chatting up bec and then I'll have a car’.  ‘Some cunt from SKOUT.  His loosing his car and everything.’  ‘His like 5 mins away'.

7At 12.57 am the victim parked his car, a Holden Berlina, 50 metres away from where he had arranged to meet Ms Carr.  At approximately 1.10 am, Ms Carr met up with the victim.  She got into the front passenger seat and asked him to drive her to an address in Altona Meadows to drop something off.  He agreed.

8You remained at home at that time and continued to text the other number.  At 1.14 am, you sent a message stating: ‘Becs just getting this cunt to drive her to drop off 100 ml then coming back'. 

9When Ms Carr and the victim arrived at the Altona Meadows address, Ms Carr met with a male and exchanged items believed to have been GHB and methylamphetamine.  The victim then drove Ms Carr back to Yarraville.  At 1.07 am, you had called Ms Carr.  She had answered the phone and the call remained connected for over 39 minutes, which allowed you to monitor their trip.  At approximately 2.00 am, they returned to the address in Yarraville.  The victim believed that he and Ms Carr were going to have sex, so he locked the doors of the car.

10A short time later, you attended and started banging on the driver’s side window. 

11The victim was extremely frightened and tried to start the car so he could drive away.  Ms Carr unlocked the car, which gave you access to the inside of the vehicle.

12You opened the door and dragged the victim out of the car, kicking and punching him to the head and body.  The force of your impact caused the victim to fall to the ground.  (Charge 2)

13You then entered the driver’s seat of the vehicle and drove away with Ms Carr (Charge 1) for approximately 6.7 kilometres.  You dumped the vehicle outside an address in Sunshine.  Ms Carr took two phones and a wallet from the car.  A fire extinguisher was then sprayed inside the vehicle.  You and Ms Carr walked to a 7-Eleven in Sunshine where you were picked up by a friend.

14Meanwhile, the victim flagged down an Uber driver who called Triple 0.  Police attended the scene, and the victim provided a statement.  An ambulance was requested, but due to the delay, the police took the victim to hospital.  He remained there until approximately 6.00 am but left due to the long wait times in emergency.  He sustained a 'bump to the head'. [1]

[1] Para 28 – Summary of Prosecution Opening.

15On 21 December 2022, a search warrant was executed at your address in Yarraville.  Ms Carr was immediately arrested and cautioned.  She made admissions that you were involved, after which you were also arrested and cautioned.

16Investigators located a number of items at your address during the search, including:

·Three Ziploc bags containing a total of approximately 20 buds of cannabis; (Charge 3)

·A Ziploc bag containing methylamphetamine; (Charge 4)

·Three rounds of .22 ammunition; (Summary Charge 1)

17You participated in a record of interview at the Footscray police station on 21 December 2022.  You admitted that you and Ms Carr organised to meet up with the victim.  You stated that you kept an open transmission with Ms Carr using your phones during the car ride, to ensure her safety.  You stated that you heard the victim saying sexually explicit things to Ms Carr.  You admitted that you approached them in his vehicle, pulled the victim out and assaulted him.  You stated that you then walked down the street to cool off.  You denied stealing the victim’s vehicle before you returned home. You then said that you could not remember what you did, as your anger had obscured your memory of the events afterwards.  You admitted that a hat located at the scene was yours. 

18You were remanded into custody and released the following day on bail, with conditions.  On 23 December 2022, you failed to attend a scheduled appointment with your CISP manager, in breach of your bail (Summary Charge 8).  On 30 December 2022, an officer attended your address at 8.26 pm.  You were not there and your father stated he had not seen you for two days.  This was in breach of your bail as you had agreed to comply with a curfew between the hours of 8.00 pm and 6.00 am (Summary Charge 9).  On 1 and 2 January 2023, you failed to report to Keilor Downs police station, which was also in breach of your bail (Summary charge 10).  On 17 February 2023, you were remanded back into custody where you have remained.

19You were initially charged with a number of offences, including two counts of aggravated carjacking.  You and Ms Carr ran a contested committal, where the victim was cross examined.  On 22 June 2023, you were committed to stand trial and entered a plea of not guilty.  On the same day, you offered to plead guilty to the current offences.  A factual basis was agreed and the prosecution accepted your offer on 28 September 2023.  You were arraigned on
14 December 2023, and entered pleas of guilty to all charges.

20I accept that while your plea was not entered at the earliest opportunity, you were originally facing more serious offences.  You are entitled to receive a substantial benefit for your guilty plea to the lesser charges.  It has a significant utilitarian benefit.  You have saved the court and the community the time and expense of running a trial and spared the victim the ordeal of giving evidence again.  You have facilitated the efficient administration of justice and are entitled to a benefit for that.  The utilitarian benefit of your plea is enhanced by the fact that Worboyes[2] considerations were engaged at the time you offered to plead guilty.  It is also accepted that your plea of guilty is consistent with remorse and I will return to this aspect of the sentence later in these reasons. 

[2]                  Worboyes v The Queen [2021] VSCA 169.

21You admit that your offending is serious.  The victim was lured to attend with the suggestion of sexual favours from Ms Carr and in return, he would provide drugs.  While you knew the plan, you became overly concerned and incensed when you realised the victim’s level of sexual enthusiasm.  You were affected by methylamphetamine and GHB at the time and it was in that context that you decided to steal the car.  The parties accept that there was some level of preplanning.  Carjacking is a violent theft offence and I consider your offence to be slightly below the mid-range level.

22No Victim Impact Statement has been provided.  It is accepted that this was an unexpected, frightening experience for the victim and that he would have suffered pain from your flurry of blows.  Fortunately, the assault was brief.  His car was recovered 27 hours later and was undamaged.

23While Ms Carr was initially charged with similar offences, her matter has been remitted to the Magistrates’ Court for a guilty plea to charges that do not align with yours, other than possession of drug charges.  There is no parity issue to consider.

24You have admitted your criminal history, being nine prior appearances in the Magistrates’ Court for mostly consolidated pleas of guilty, between May 2018 and October 2022.  You have prior convictions for numerous offences including dishonesty and assault matters. The current incident demonstrates an escalation in the seriousness of your offending.

25You have been sentenced to imprisonment in the past.  Four of these sentences were in combination with a Community Corrections Order ('CCO'), all of which were contravened.  Your criminal history is drug related.  The corrections orders confirm that you have had ongoing issues with drug use for some time and have been given the opportunity to address your rehabilitation in the community.  While you were able to complete the most recent CCO, it appears that you did not derive any significant benefit from your compliance.  You relapsed into illicit drug use prior to the current offending, shortly after the order concluded.  You were in a relationship with Ms Carr, another drug user, at the time.  That chaotic relationship has now ended.

26You were subject to CISP when released on bail for the current case.  You admit the breach of this condition as well as other bail conditions, which resulted in your being remanded back into custody.  Overall, your previous compliance with court orders has been poor.

27I turn now to your personal circumstances.  You were born in Tasmania in March 1996 and are now 28 years of age.  Your parents are still in a relationship and you are the younger of two sons.  You are an Aboriginal man, belonging to the Palawa Indigenous community from Tasmania.  Your family moved to Victoria when you were two years old, settling in the suburb of Sunshine.  Your family experienced financial issues.  Despite this, you were always fed and clothed.

28You described your parents’ relationship as 'very up and down' as they argued frequently.  During these arguments, you would take your mother’s side and your brother would take your father’s side, resulting in unresolved issues in the family.  The altercations never became physical.  Your parents’ arguments prompted you to start running away from home at the age of 13.  You moved in with a friend and then into a hostel for six months.  You subsequently returned home, where you stayed until the age of 17.

29Although you were unaware at the time, you realised as a teenager that your parents’ mood swings were the result of their use of amphetamines and methamphetamines.  You became aware of this when your brother started to use drugs with them.  The drug use within the household accustomed you to the consequences of substance abuse.  You had started to smoke cannabis at the age of 13, but ceased when you pursued a career in sport.

30You describe your mother as your 'rock' and felt that she was always there for you.  Your father encouraged competition between yourself and your brother, which led to a falling out in your relationship with your father as you grew older.  You felt you were never able to meet your father’s expectations, while your older brother was met with his approval.

31You did quite well in your education.  You attended secondary school and completed Year 9, before you commenced an apprenticeship as a chef for six months.  You were retrenched when the business closed.  You completed Certificates II and III in Sport Education and then returned to school and completed Year 11.  While you had no issues with education, you were bullied at school, due to your size.  You were overweight at the time and are now 6 foot 11 inches (or approximately 211 cm) in height.  Since leaving school you have worked intermittently as a concreter and for a hire company.

32You were a competent sportsman and by your late teenage years, you played basketball in the Big V Championships, before you were offered a scholarship to attend Orland College in New York.  Regrettably, your host family pulled out two weeks before you were due to leave and you could not find another family to take you in, so you were unable to access the offer.

33The disappointment in losing the scholarship started a low period in your life.  When you were 18 years old, your brother introduced you to methylamphetamine, which you commenced using on the weekends.  You stated that the drugs 'numbed [your] sense' and made you feel as though you had no worries in the world.  Within a month, you were using daily and continued to do so until you were first incarcerated.  You went on to use GHB.  While you have ceased your drug use in the past, you relapsed when in the relationship with Ms Carr.

34Your relationship with Ms Carr lasted for four years and you have two young children together, as well as one stepchild.  You lived with your children at the time of the current offences and they now reside with your parents.  You have another child from a previous relationship that was born in 2017.  You adore your children and assert that you are determined to remain clean from drugs, so that you can return to live with them.

35At the request of your solicitor, you participated in a psychological assessment with Mr Warren Simmons.  He has provided a report for the court, dated 7 March 2024.  You provided as much detail to him as you could in the interview although your Aboriginality was not addressed.  There was no evidence of any disorders of thought or perception.  Your personal history and circumstances have been summarised in the report.  Mr Simmons has made the following observations and findings:

·While you have no history of abuse or neglect, your childhood left you vulnerable to substance use.  Your parents modelled it as normative behaviour and there was ongoing conflict with your father, which led you to run away from home.

·You ceased any substance use when pursuing a career in basketball.  When this opportunity ended, you commenced your drug use.

·At the time of your recent remand, you met the criteria for both GHB and Stimulant Use Disorders. 

·Your history of offending is associated with your substance use.  You acknowledge that your drug use has impacted your thought process and led to your current offending.  You accept that your conduct was wrong.

·You did not attempt to justify your behaviour and understand that it may have had a negative impact on others.

·You would benefit from a referral for drug counselling, to impose relapse prevention strategies.  You had depressive symptoms when remanded and now receive antidepressant medication.  Referral to a psychologist may also be of benefit to you.

·Your offending occurred in the context of substance use.  Your prospects are associated with your remaining abstinent.

36While it is conceded that the report does not enliven any Bugmy[3] or Verdins[4] principles, I do take your background and Mr Simmons’ findings into account as part of your general circumstances.

[3] Bugmy v R [2013] 249 CLR 571.

[4] R v Verdins [2014] VSCA 62.

37While in custody, you have undertaken and completed a number of educational courses.  You have provided two clean urine samples, confirming that you no longer use drugs.  You now access medication which is of assistance to your drug cravings and feelings of depression.  You have re-engaged with your Indigenous heritage and perform excellent artwork.  You regularly engage with the Koori liaison officer.  You have worked for most of your time on remand as a laundry billet and are now transitioning to a unit billet. 

38You have undertaken a period of self-reflection while in custody.  You recognise the connection between your drug use, offending and imprisonment.  Your goals when released are to successfully integrate into the community, remain drug-free and to return to employment in the construction industry.  You may move away to the country, although you do not wish to be separated from your children again.  Your toxic relationship with Ms Carr has ended.  You have found peace in exploring your Indigenous heritage and will continue to engage in artwork.

39Your mother, Ms Tina Charles, has provided a letter to the court.  You have regular contact with her.  She describes the negative impact of your drug use on your lifestyle and on your family.  You have acknowledged the mistakes that you have made and do not want to do that again.  Your parents currently care for two of your children and your stepdaughter.  You have daily phone contact with your children, who miss you.  Your criminal behaviour that has resulted in incarceration has been distressing for your parents.  They continue to support you and believe that you have learnt from your mistakes.

40Ms Charles writes that you want nothing more than to get your life 'back on track' and are very remorseful for what you have done.  I accept that you have shown remorse for your actions and that this is consistent with your plea of guilty.  I am prepared to moderate your sentence to reflect that.

41The offence of carjacking is a Category 2 offence, pursuant to s5(2H) of the Sentencing Act.  The Act is prescriptive in the type of penalty to impose in such a case, being a term of imprisonment unless one or more criteria are established.  Your counsel did not seek to persuade the court that any of the criteria could be applied in your case.  A term of imprisonment, therefore, is the only appropriate disposition for the offence of carjacking.

42Your counsel has submitted that it would be appropriate to impose a CCO for the other offences, when considering all of your plea material.  The prosecution submits that a term of imprisonment with a non‑parole period is appropriate. 

43I am unable to accept your counsel’s submission as to sentence.  You previously had numerous opportunities to benefit from corrections orders that supervised your drug rehabilitation, yet you breached most of them and continued to offend.  The current incident occurred within a matter of months of the completion of your most recent therapeutic CCO.  Given these facts, in the context of your overall level of non-compliance with court orders, I am not persuaded that a further corrections order would form an appropriate part of this sentence.

44In the course of your plea, I referred to the Sentencing Act requiring that a CCO must commence no later than three months after making the order.[5] In those circumstances, I consider that imposing a CCO for the other offences is unrealistic, as I am obliged to impose a sentence that is proportionate to your criminal conduct.  While I accept that for the other offences, the Act allows the imposition of a composite sentence. [6] I am not persuaded that a further corrections order would form an appropriate part of this sentence for the reasons that I have already outlined. [7]

[5] Section 38(2) Sentencing Act

[6] Section 44(1) Sentencing Act

[7] Paragraph 43

45It is conceded that the principles of general deterrence, denunciation and just punishment form part of the sentencing mix, as do specific deterrence and protection of the community. Rehabilitation also remains a relevant consideration.  Your prospects are, in effect, in your hands.  Given the insight you have developed, I consider that your prospects are not unreasonable.

46I accept that your supervision upon release will be of benefit to both you and the community.  I intend to impose a period on parole that will allow your monitoring and supervision.  Subject to the decision of the Parole Board, I hope that you will be able to access parole as soon as it is available, to facilitate your rehabilitation.

47I take into account the maximum penalty for these offences and current sentencing practices.  The principle of totality is relevant and I have taken care not to doubly punish you for these offences.  I have endeavoured to tailor your sentence to ensure that it is proportionate to your overall criminal conduct.

48Balancing all these factors as best I can, I sentence you as follows:

Charge no.	Charge	Sentence	Cumulation
1	Carjacking	2 years’ 9 months’ imprisonment	Base sentence
2	Common Law Assault	6 months’ imprisonment	3 months
3	Possession of a drug of dependence (cannabis)	Convicted and discharged	NA
4	Possession of a drug of dependence (methylamphetamine)	1 month imprisonment	Concurrent

Summary charge no.	Summary offence	Sentence	Cumulation
5	Possess cartridge ammunition	Convicted and fined $500
Given that this series of offences form part of one course of conduct, I will impose an aggregate sentence.
8, 9, 10	Contravene conduct condition of bail	Aggregate 1 month imprisonment	Concurrent

49For Summary Charges 8, 9 and 10, contravene conduct conditions of bail, given that this series of offences form part of one course of conduct, I will impose an aggregate sentence of one month's imprisonment for these three summary offences.

50That is a total effective sentence of three years' imprisonment.  I fix a non-parole period of one year and eight months and I enter in the records of the court that you have served 434 days as pre-sentence detention.

51I make the orders for disposal and forfeiture.  In relation to the fine of $500, I will not grant a stay for the payment of that fine so that you can call that in straight away while you are in custody and have it converted to days of imprisonment.

52The declaration I make under s6AAA, had the matter not resolved to a plea of guilty I would have imposed a sentence of four years with a minimum term of two years and 10 months.

53MR BARKER:  If Your Honour pleases.

54HER HONOUR:  Is there anything else, Mr Barker?

55MR BARKER:  Nothing, Your Honour.

56HER HONOUR:  All right, thank you.  I will check with the prosecution.  We have been provided with the forfeiture and disposal orders.  There are no other orders sought, are there?

57MS STOKES:  No, Your Honour.

58HER HONOUR:  All right, thank you.  I understand that when Mr Charles was committed to stand trial he was also committed on a summary charge, being Summary Charge 7, possess prohibited weapon in a licensed premises.  Could you confirm that that order has been struck out?  It has not formed part of the material in front of me.

59MR BARKER:  No.

60HER HONOUR:  And at the last hearing the prosecutor indicated that it was as a result of the discussion between the parties, they agreed on the appropriate charges to proceed, and on that basis the plea of guilty was entered to the charges that are before the court.

61MS STOKES:  Yes, Your Honour, that charge should be struck out if it is still on the system.

62HER HONOUR:  All right.  It is still on the system so I will direct that Summary Charge 7 has now been struck out and is no longer proceeding.  Thank you.

63MS STOKES:  Thank you.

64HER HONOUR:  Thank you very much.

65MR BARKER:  Your Honour, if I could make use of the link for a couple of seconds with Mr Charles after you leave the bench?

66HER HONOUR:  We can disconnect the court and keep the link running between you and Mr Charles if that is all right.

67MR BARKER:  Thank you, Your Honour, very grateful.

68HER HONOUR:  All right, thank you.  I will cut the direct links into the court.

69MR BARKER:  Thank you, Your Honour.

70MS STOKES:  If Your Honour pleases.

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