Director of Public Prosecutions v Charles
[2024] VCC 72
•30 January 204
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
KOORI COURT
Case No. CR-23-00339
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GAVIN CHARLES |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2024 | |
DATE OF SENTENCE: | 30 January 204 | |
CASE MAY BE CITED AS: | DPP v CHARLES | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 72 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Koori Court; Armed Robbery; Commit Indictable Offence Whilst on Bail
Legislation Cited: Sentencing Act 1991;
Cases Cited:Honeysett v The Queen [2018] VSCA 214
Sentence: Term of Imprisonment for 8 months. Two days reckoned as served. Convicted and fined $200 – S6AAA: Total effective sentence of 18 months imprisonment with a non-parole period of 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Sharp | Director of Public Prosecutions |
| For the Accused | Ms K. Rolfe | Barwon South West Lawyers |
HER HONOUR:
1Gavin Charles, you have pleaded guilty on indictment to a single charge of armed robbery.
2You have also pleaded guilty to a related summary offence of committing an indictable offence, being the armed robbery, whilst on bail.
3In sentencing you for these crimes I must have regard to the maximum penalties for the offences you have committed. Those maximum penalties are as follows:
(a) Armed robbery – 25 years' imprisonment
(b) Commit an indictable offence whilst on bail – 3 months' imprisonment
4These maximum penalties reflect the seriousness with which Parliament regards these offences.
The offending
5The circumstances of your offending were set out in a document titled 'Summary of Prosecution' dated 19 January 2024. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
6The offending that gives rise to these charges occurred in Marshall in the morning of 11 June 2022, at which time you were 28 years of age. You have a co-accused in this matter, Christopher Oakley. He is presently awaiting trial for alleged offences arising from the same events. The victim of your offending, Jack Patten, was 23 years of age at the time of the offending.
7On 10 June 2022, Mr Patten had your brother, Eddie Charles, over for drinks at his residence in Geelong. Your brother invited you and your other brother, Ronald, as well as Bryce Bodington and Mr Bodington's girlfriend.
8Between the hours of 5:00 am and 6:00 am on 11 June 2022, Eddie and Mr Bodington invited Mr Patten to an address in Marshall, being Unit 5 of 70 Station Road ('Unit 5').
9The group caught an Uber to Unit 5 and continued drinking. You and Eddie left to go to the neighbouring unit, being Unit 6, and were shortly followed by Mr Patten and Ronald. Unit 6 was the residence of Mr Oakley and his partner, Caroline Thomas, who were both unknown to the victim. You had known Mr Patten through high school.
10Mr Patten spent time in the kitchen area with Ronald, Eddie and Ms Thomas, before going upstairs. Upon walking upstairs, Mr Patten saw you standing in the hallway and Mr Oakley standing in the bathroom area holding a gun described as 'a couple of feet long with a skinny barrel and wooden handle'.
11When Mr Patten reached the top of the stairs, you told him to get in the toilet and sit down while Mr Oakley pointed the gun towards him. Mr Patten complied with your demands.
12Upon sitting on the toilet, you raised with him a family incident that occurred approximately a year prior involving Mr Patten. You accused him of not apologising. Mr Patten said words to the effect of 'I'm sorry. I thought we already went through this' and then he asked you 'Do you really want to do this?'.
13At one point during the confrontation, Mr Patten attempted to stand and leave. You told him to sit back down. Mr Patten complied. He was fearful of being shot.
14Mr Oakley then told Mr Patten 'Hand me the phone' and instructed you to take Mr Patten's mobile phone. In fear of being shot, Mr Patten handed over his Apple iPhone to you. These facts form the basis of Charge 1, Armed robbery, and summary Charge 5, Commit indictable offence whilst on bail.
15Mr Oakley was still holding the gun and told Mr Patten that he could leave. You and Mr Oakley moved out of the way to allow Mr Patten to exit.
16As Mr Patten moved towards the staircase, he heard a loud bang and felt pain in his calf. He turned around and saw Mr Oakley standing approximately a metre behind him, holding the gun.
17Mr Patten recalls Mr Oakley saying words to the effect of 'Get the fuck out ya dumb fuck'. In fear of being shot a second time, Mr Patten immediately left the premises.
18Mr Patten walked around the corner to Marshall Railway Station, where he alerted the station master, John Morgan, that he had been shot with an air rifle. Mr Morgan contacted “000”. Police and ambulance attended. Mr Patten was taken to Geelong University Hospital where he received treatment.
Arrest and Interview
19On 29 June 2022, a search warrant was executed where you were residing at 4 Moira Lane, Grovedale. You were arrested and conveyed to Geelong police station. Your Nokia mobile phone was also seized.
20During a recorded interview with Police, you admitted to being present at the time of the offending but denied any involvement. When asked by the Police about what had occurred, you told them words to the effect that Mr Oakley and Mr Patten were 'playing tug of war with the fuckin' – with the rifle, whatever' and that the gun 'could've gone off earlier'. You also stated that you were 'probably more than halfway down the stairs' when the gun was fired.
21You were charged, remanded and subsequently released on bail.
Offence gravity and victim impact
22This is obviously serious offending.
23Despite discussion during your further plea held 30 January 2024, I do accept that there is a difference in the roles alleged between you and Mr Oakley. There is no evidence that you attended his premises with a weapon, Mr Oakley is said to have held the gun, uttered the demand to Mr Patten and directed you to take his phone. However, only one person can hold one gun. You followed directions once they were given. I do not accept the submission the there is a 'marked difference' in your roles as the armed robbery took place. This may be a matter of semantics.
24The immediate precursor to your offending where Mr Patten was directed to sit in the toilet and address your concerns relating to your previous contact is not the subject of charge. It 'sets the scene' for what then took place.
25Armed robbery is a Category 2 offence pursuant to s3(1) of the Sentencing Act 1991 as you had with you a firearm at the time of the offence and the offence was committed in company. This circumstance is recognised in the sentencing provisions which require the imposition of a term of imprisonment, and one not in combination with a corrections order, unless an exception applies. One is not sought on your behalf. Otherwise, these circumstances present as cowardly. Mr Patten was particularly vulnerable given he had already been made to sit on the toilet whilst a firearm was pointed at him and was still so seated when the demand for his phone was made.
26I could not form the view that you were aware the gun was loaded at the time of your offending. I accept that the armed robbery happened in the moment, after a night of excess and on the apparent instigation of Mr Oakley. Your intention must have occurred within that split second and your actions to support Mr Oakley within a similar time frame. This much was conceded during your further plea hearing and does impact to reduce the objective gravity of your offending.
27Whilst I accept your offending appears to be spontaneous, unsophisticated and relatively short-lived, I doubt much of this description matters to Mr Patten. Whilst there is no victim impact statement, I have little hesitation in suggesting that Mr Patten would have been frightened and concerned for his safety as events unfolded. In addition, people hold much of their personal lives in their phone and it is likely to have been an important item to him. I understand that Mr Patten's phone was returned.
28You are not charged with the shooting of Mr Patten and will not be punished for that either. The facts as outlined in the Crown summary serve perhaps to highlight the risks, and perhaps obvious ones, attenuated with such activity.
Plea of guilty
29The Sentencing Act obliges me to take into account the stage at which you entered your guilty plea.
30Your charges resolved on 25 August 2023 to those now before me. When committed to this court on 7 March 2023, after contested committal proceedings, it was on charges which then included false imprisonment, intentionally cause injury and reckless conduct endanger serious injury - charges which are no longer before this court. A date for plea hearing then needed to be obtained in the Koori Court with that listing being 22 January 2024 at Geelong.
31In that sense your plea has taken place at a relatively early opportunity – that is once matters had been resolved to an appropriate indictment.
32Your indication of your willingness to plead guilty has saved the court the time and expense of contested proceedings and importantly, witnesses of the need to attend court and relive traumatic events. Your plea has also come on the back of the Court's continued response to the COVID‑19 pandemic and the backlog that event created and therefore does have some additional utilitarian value.
33On the materials before me you have expressed remorse for your offending and I do accept that you are genuinely sorry.
34These factors will all be taken into account in your favour.
Koori Court & Sentencing Conversation
35As mentioned, your plea took place in the Koori Court. The Koori Court can only hear a plea proceeding involving an Aboriginal or Torres Strait Islander offender who pleads guilty and consents to the matter being dealt with by the Koori Court and where a judge considers the matter is appropriate to come before the Koori Court.
36The clear objective of the Koori Court is to ensure greater participation of the Aboriginal community in the sentencing process of the County Court through the role played in that process by Aboriginal elders and/or respected persons. Others such as family members and supports are also able to contribute in what is referred to as the sentencing conversation. The sentencing conversation is designed to assist the reform of an aboriginal offender through a blend of customary law and the English common law. Participation in the process can be more burdensome than appearing in a traditional plea hearing, because of the confronting nature and the inability of the offender to hide behind their counsel.
37In a decision of Honeysett v The Queen [2018] VSCA 214, the Court of Appeal looked at the Koori Court plea process and stated:
'In our view, in determining the weight to be attached to an offender's participation in a Koori Court sentencing conversation as a mitigating factor, a sentencing court should consider a range of factors including:
'(1) The fact that participation in the process is a voluntary one, maybe confronting to the offender and will likely involve him or her being shamed. As noted in Morgan, participation in the process may of itself be rehabilitative;
'(2) The fact that an offender is, rather than hiding behind counsel, taking the opportunity to personally, (a) Demonstrate his or her remorse for the offending, (b) Demonstrate insight into the reasons for and the seriousness and effect of the offending and (c) Express any intention to reform and how that will be done, including by participating in available rehabilitation programs;
'(3) The court's assessment of the genuineness of the offender's statements during the sentencing conversation.
'That assessment should take into account all of the information before the court. Based on the court's assessment of the quality and genuineness of the statements made by the offender, it is a matter for the individual judge to assess weight in the circumstances of the particular case.
'In fixing a sentence, it is a duty of the court to impose just punishment adapted to all the circumstances of the case by reference to the permissible sentencing purposes of general and specific deterrence, any means by which rehabilitation of the offender be facilitated, denunciation of the offending and the need to protect the community.'
38Auntie Nellie Flagg and Uncle Rod Jackson were the respected elders who took part in the sentencing conversation. Each of the elders challenged you and you were respectful towards them. You were also supported in court by your brothers Eddie and Rory, your sister Tara and your father, Barry, all of whom are present here today. Two representatives of Wathaurong Aboriginal Cooperative were also in attendance. All were able to participate in your sentencing conversation.
39Whilst you clearly found the sentencing conversation confronting, and on occasion found it difficult to answer questions asked of you, you were able to articulate that you believe it is a Court where you are listened to and heard. You spoke of the whole process making you realise a lot of things and that you want to be able to get on with your life.
40I did find your participation in the sentencing conversation to be genuine and I take that and your participation in the Koori Court process into account.
41I turn now to your personal circumstances and prospects for rehabilitation.
Personal Circumstances
42Tendered on your plea were Defence Submissions, a psychological report authored by Psychologist Jeffrey Cummins dated 10 January 2024, and character references authored by your brother Rory Charles dated 18 January 2024 and your friend Kelly Lomas dated 18 January 2024.
43Post your hearing in Koori Court on 22 January 2024 and today's date, you have also filed a letter of apology to Mr Patten. I note that Uncle Rod Jackson asked you why you had not done this during the sentencing conversation. A letter has also been provided authored by the Wathaurong Aboriginal Cooperative.
44I have had recourse to each of these documents and will return to them at a later stage.
45You were born in November 1993 and are currently 30 years of age.
46Your father, Barry Charles, is a member of the Yorta Yorta community and your mother, Anette Charles, is a member of the Wudjari community. Your parents have never separated and are both in their early 60s. Your father currently has ongoing physical health issues relating to back pain and his heart. Your mother has retired from a cleaning role. You report that you were loved by both of your parents, and that they have always been supportive.
47You are the third in a sibship of seven ranging from the age of 23 to 33. You have one sister and five brothers. Your brothers, Daniel (aged 24) and Eddie (aged 28) reside at the family home with you, your parents and your daughter Nevaeh (aged 10).
48Your daughter has been in the care of your parents since the age of two. You are closely involved in her care.
49In terms of education, you attended Epping Primary School until Grade 2. Thereafter, you attended Grovedale West and Grovedale Primary Schools. You then attended Grovedale Secondary College until halfway through Year 10. You reported that you had difficulties reading and writing at school and that you continue to struggle. You state that there are limitations on your literacy that have impacted on the completion of training and education, as well as obtaining a driver's license.
50Upon leaving school, you obtained some work cleaning at Deakin University. You obtained your white card at 17 and commenced studying a traffic control course. You did not complete the course due to the difficulties with your reading, writing and comprehension.
51You have not been in any ongoing or steady employment since the age of 17 years. At present, you have a medical exemption associated with your Centrelink benefit. You enjoy working with cars and you have a desire to pursue employment and training in mechanics.
52Your longest intimate relationship was with a woman named Caitlin, the mother of your daughter, Neveah. You were in this relationship between the ages of 20 and 23. This relationship ended in the context of you both struggling with unemployment and substance abuse issues.
53You have not been in another steady intimate relationship.
54You have recently been impacted by significant grief, losing your cousin, Mark, to suicide in July 2023. Your grief remains profound as the two of you shared a close bond, seeing each other almost daily and supporting one another in trying to remain abstinent from drugs.
55You do have a history of substance abuse, as you began experimenting with cannabis around the ages of 13 and 14. You began to use it daily by the ages of 16 and 17 and would use it frequently until your arrest. You commenced smoking methamphetamine at the age of 20, and while you generally describe using it intermittently, you did at times use it daily. You deny a problem with alcohol.
56I turn now to the expert report tendered on your behalf. This report is not the subject of challenge and I take its contents into account such as they assist.
57You told Mr Cummins that you didn’t need counselling in relation to drug or alcohol use but that you may contact Wathaurong Aboriginal Cooperative in order to support abstinence. When asked about traumatic events in your life, you said that the events of 11 June 2022 were the worst thing in your life to date. You expressed remorse and regret for your actions that day.
58In brief compass, Jeffrey Cummins’s report of 10 January 2024 indicates that you presented as mildly depressed and lacking in motivation. Mr Cummins opined that, while he did not ascertain any symptoms of Major Depressive Disorder or Generalised Anxiety Disorder at the time of the offending, he accepted that your level of anxiety and general level of depression at the time of the offending was probably elevated due to your lifestyle. There does not appear from his report to be any barriers to your rehabilitation.
59Mr Cummins further assessed your risk for committing further offending as low‑moderate trending towards low. In his opinion you would benefit from mental health treatment to assist you to gain motivation to pursue life goals.
Prospects of Rehabilitation
60In the years preceding your offending you spent less time at home with your family and more time in the company of less than desirable associates. Your drug use increased and your shame of your overall situation led you to lose contact with your family. I am told you were living in your car in June of 2022. It is in the context of drug and alcohol use and your friendship circle at the time that you offended in the way that you did.
61You have no prior criminal history alleged.
62This fact augers well for your prospects of rehabilitation
63You did have offending which occurred in February of 2021 relating to weapon possession and offending in March of 2021 relating to offences of unlicensed driving and fail oral fluid test. These matters obviously predate the offending before me. They were not dealt with until 10 March of 2023 when they all proceeded by way of guilty plea in the Koori Court division of the Magistrates Court. You were apparently placed on an adjourned undertaking for a period of 12 months.
64This would indicate that your consent to participate in Koori Court in the County Court was an informed one. It also supports the submission that your offending of 11 June 2022 was out of character and that you have learnt a valuable lesson since.
65One of those lessons arose from you spending two days in custody as a direct result of your offending on 11 June 2022. This you describe as a 'wakeup call'. You instruct that you have not used methamphetamine since.
66You have complied with fixed bail conditions and there have been no allegations of further offending since your release on bail, a period now in excess of 18 months. This would indicate that there has been some sanction and deterrence in your experience to date of the criminal justice system. I accept that you were genuinely shocked by what transpired on 11 June 2022.
67In addition, the letter from Wathaurong Aboriginal Cooperative authored by Blake Natoli-West dated 25 January 2024 would indicate that you were trying to get assistance from their service post your hearing in the Koori Court in the Magistrates Court on 10 March 2023. Whilst it does not appear that you were proactive in following up with Wathaurong until August of 2023, for a variety of reasons unrelated to you, it would appear that despite various referrals being made, none came to fruition.
68This reality has meant that you have not accessed support services. You have instead stayed at home and avoided your previous lifestyle. This has had the desired effect of keeping you out of trouble and reconnecting you with family but may not have addressed issues relating to your history of drug use.
69I accept that you were trying to get assistance from a culturally appropriate service throughout last year. Mr Natoli-West's letter does tell me that you were able to attend a number of community events. He has the capacity to support you should another referral to their service be made. I encourage you to consider this.
70Your resort to drug use is somewhat difficult to understand based on the materials before me. From what I have read and what I saw in the sentencing conversation, you are well loved by your family, and they give the impression that they will continue to support you whatever view you take of yourself. Describing yourself as the ‘black sheep,’ as you did to Mr Cummins, is probably unhelpful.
71Your brother, Rory Charles, described your offending as 'out of character' in a reference which he has provided. This would appear to be so. Rory is in regular contact with you and observes your helpfulness to your family and strong connection to your daughter.
72Through your Counsel, you say the Court process has led you to be more open to your family about your drug use and assisted you to disconnect from previous associates. Your family are keen to continue to provide you with a stable base and to assist you to access programs designed to help you. I note that your brother, Rory, works for the Wathaurong Aboriginal cooperative You are fortunate to have this support and I encourage you to embrace what your family offers you.
73I accept that your relationship with your daughter, Neveah, is also important to you and is a positive motivator for you into the future.
74I have little to say about the letter of apology to Mr Patten. It appears prompted by the sentencing conversation and questions asked of you as to why this had not been done. I appreciate the time it would have taken you to write. It has at least further turned your mind to how your actions affect others, particularly your victim.
75A character reference authored by Kelly Lomas, someone who has known you for 20 years, describes you as a good person with a kind heart. That is a far better description than that of ‘black sheep’. This is another positive reflection. You also spoke to her of your remorse.
76Your prospects for rehabilitation would appear to be good at this time but would perhaps be further advanced by you seeking assistance to remain abstinent and resolve your low mood, lack of motivation and anxiety.
77In the overall context, there appears to be less need to place great weight on the sentencing principles of specific deterrence and protection of the community.
Sentencing Submissions
78Your counsel submits that a period of imprisonment less than that attracting a parole period is open and appropriate in order to balance competing sentencing considerations. In her submission, this amounts to a submission that any sentence imposed should be less than 12 months given the provisions of s11 of the Sentencing Act 1991.
79The Crown submit that a term of imprisonment with a non-parole period reflects all the circumstances and applicable sentencing principles and I was initially attracted to this course.
Sentencing Principles
80The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.
81In sentencing you, I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim. I must also balance the interests of the community in denouncing criminal conduct with the interest the community in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
82I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty and the principles of both totality and proportionality. Mr Sharp and Ms Rolfe, before I commence the sentencing process I just want to check whether there are any factual errors or matters that I have referred to that you need to correct?
83MS ROLFE: Your Honour, there was an oral amendment to the opening after paragraph 16. It is in relation to (indistinct words) and that was ultimately referred to by Your Honour to the issue of (indistinct words). So its leading Your Honour (indistinct words) Your Honour was going through the prosecution facts (indistinct).
84HER HONOUR: Can you be more precise?
85MS ROLFE: So if it was amended, so after paragraph 16 - - -
86HER HONOUR: I know, I understand the amendment. Can you be more precise about where you say the facts were wrong?
87MS ROLFE: Okay. The facts didn't include the words 'open and instructed (indistinct words) the victim's phone'.
88HER HONOUR: Well it's my clear understanding that he was under direction.
89MS ROLFE: Yes, and that became clear but Your Honour appeared to be reading from - speaking to after paragraph 16 Your Honour appeared to be reading from the opening about (indistinct words).
90HER HONOUR: I have got 'Mr Oakley told Mr Patten to hand me the phone and instructed you [being Mr Charles] to take Mr Patten's phone'.
91MS ROLFE: Okay, I didn't, I didn't hear that.
92HER HONOUR: That's what I have just read.
93MS ROLFE: Okay, Your Honour, that's my error. (Indistinct words.)
94HER HONOUR: Well just in case I made an error, I asked you and you've responded, bringing something to my attention but it's my clear understanding that your client was following directions.
95MS ROLFE: Yes, and that was clear (indistinct words).
96HER HONOUR: Yes, all right. Anything from your end, Mr Sharp?
97MR SHARP: (No audible response.)
98HER HONOUR: All right, thank you.
99Section 16 (3C) of the Sentencing Act requires that every term of imprisonment imposed on a person for an offence committed whilst released on bail must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.
100On the summary charge of commit an indictable offence whilst on bail, taking into account totality and your lack of relevant history, you are convicted and fined the amount of $200.
101In an ideal world I would have preferred that you have the opportunity to benefit from a supported transition into the community. Sentencing legislation prevents me from giving you a sentence of imprisonment in combination with a corrections order. I should not increase the appropriate sentence so that you can access parole. Hopefully you can access, on your own terms, services that are clearly on offer to you through local and culturally appropriate services.
102Mr Charles, for the single charge of armed robbery you are convicted and sentenced to 8 months' imprisonment. I reckon two days as having already being served in accordance with the sentence just imposed.
103Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed if you had not pleaded guilty. If not for your pleas of guilty you would have received a sentenced of 18 months with a minimum of 10 months before being eligible for parole.
104If there is nothing arising from either of you, you might have a brief opportunity to speak to Mr Charles.
105MS ROLFE: Yes, Your Honour.
106HER HONOUR: Thank you.
107MS ROLFE: Your Honour, sorry - - -
108HER HONOUR: Yes, yes.
109MS ROLFE: Just in terms of custody management issues - and I take this from the report of Mr Cummins - I was just going to seek that Your Honour noted it's his first sentence.
110HER HONOUR: I will have that on the warrant, that it's the first time in custody.
111MS ROLFE: (Indistinct words) sentence and in light of what is referred to at paragraph 53, I seek that (indistinct words).
112HER HONOUR: Can you be a bit more precise. Because it's not very precise in Mr Cummins report, if that's what you are referring to.
113MS ROLFE: Yes. (Indistinct words.)
114HER HONOUR: He will probably see a nurse in any event, but I will add that to the custody warrant, that if he could be seen by a medical professional.
115MS ROLFE: Your Honour, if it's noted that (indistinct).
116HER HONOUR: Yes, all right thank you very much, all right.
117MS ROLFE: Thank you, Your Honour.
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