Director of Public Prosecutions v Cheyne
[2019] VCC 1200
•2 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Restricted Suitable for Publication |
Case No. CR-19-00327
Indictment No. J13087349
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID CHEYNE |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 26 June 2019 | |
DATE OF SENTENCE: | 2 August 2019 | |
CASE MAY BE CITED AS: | DPP v Cheyne | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1200 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of armed robbery – two summary charges uplifted involving driving a motor vehicle in a manner that was dangerous to the public and driving during a period of disqualification from obtaining an authorisation to drive a motor vehicle
Legislation Cited: Crimes Act 1958, s75A; Road Safety Act 1986, s30(1), s64(1); Sentencing Act 1991; Criminal Procedure Act 2009, s145
Cases Cited:Phillips v R [2012] VSCA 140; R v Mills [1998] 4 VR 235; Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43; Patone v R [2017] VSCA 3; Huynh v R; Au v R [2017] VSCA 216.
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Youssef | Solicitor for the Office of Public Prosecutions |
| For the Offender | Miss S Powell | Victoria Legal Aid |
HIS HONOUR:
1 David Cheyne, on 26 June 2019, you pleaded guilty to the charge that you, at Frankston, on 26 November 2018, robbed Rahul Gandhi Katam and Tash Roberts of certain money, namely $250 cash, and at the time had with you an offensive weapon, namely a small axe.
2 The offence of armed robbery is contrary to s75A of the Crimes Act 1958 and punishable by a term of imprisonment of 25 years. Counsel for the prosecution submitted that the circumstances of the armed robbery do not constitute a “Category 2 offence” within the meaning of s3(1) of the Sentencing Act 1991.
3 Pursuant to s145 of the Criminal Procedure Act 2009, the following summary charges were transferred to this Court:
(a)Charge 3 – that you at Frankston South on 26 November 2018, did drive a motor vehicle in a manner that was dangerous to the public, having regard to all the circumstances of the case. You also pleaded guilty to such offence on 26 June 2019.
Such offence is contrary to s64(1) of the Road Safety Act 1986 and carries a maximum penalty of 240 penalty units, or imprisonment for a maximum period of two years (or both). Furthermore, s64(2) of the Road Safety Act 1986, provides that if a person is found guilty of the offence, the Court must, if the offender holds a driver licence or learner permit, cancel the licence or permit and must, whether or not the offender holds a driver licence or learner permit, disqualify the offender from obtaining one for such time (not being less than six months or, if a vehicle was driven at a speed of 45 kilometres per hour or more in excess of that permitted, twelve months) as the Court thinks fit;
(b)Charge 4 – that you at Frankston South on 26 November 2018, did drive a motor vehicle on a highway – namely Nepean Highway – during a period of disqualification from obtaining an authorisation to drive a motor vehicle. You also pleaded guilty to this offence on 26 June 2019.
Such offence is contrary to s30(1) of the Road Safety Act 1986 and carries a maximum penalty of 240 penalty units, or a maximum of two years’ imprisonment (or both).
Details of your offending
4 Counsel for the prosecution has provided a document headed “Prosecution Opening on Plea”, dated 20 May 2019, which was tendered and marked as Exhibit 2. Such opening has been accepted by you and your counsel as an appropriate representation of the offending.
5 The important matters contained in the prosecution opening are:
·You are presently 24 years of age, having been born on 4 October 1994. At the time of the subject offending, you were also 24.
·The three victims in this matter are:
– Rahul Ghandi Katam (“Katam”), who is a 25-year-old male, who was employed as a service station attendant at a Caltex Service Station in Frankston
– Tasha Roberts (“Roberts”), who is a 23-year-old female, who was employed as a manager at a Caltex Service Station in Frankston
– Todd McKenna (“McKenna”), who is a 26-year-old male from Frankston South.
· At about 5.45pm on 26 November 2018, you drove to the Caltex Service Station, Frankston, in your partner’s sedan. You parked the car and walked into the service station, and then immediately entered the public toilets located inside the station. You were dressed in a grey and black-hooded jumper with “Zoo York” branded against the chest in large letters. Katam and Roberts were the only two staff on duty at the station at this time.
· After a short period inside the toilet, you exited the bathroom and approached the service centre, where Katam was stationed. No other customers were present in the store at that time. When Katam went to greet you, you removed a white plastic supermarket bag from your right pants’ pocket and threw it onto the counter, and then removed a small orange-and-black-handled hatchet from the front of your pants and brandished the weapon at Katam. You said to Katam, “you know what to do, just give me the money, give me the money”. Having not understood what you were saying, Katam replied, “sorry, sorry”. You repeated another two to three times: “just give me the money,” “you don’t have to tell me sorry, just give me the money,” and, “the police aren’t gonna come, just give me the money”.
·Roberts, who was working in the rear office at the time, heard a male voice asking for money and she viewed the CCTV camera at the front counter and saw you standing at the counter with an orange-handled hatchet placed on the counter. CCTV footage also shows you placed your left arm on the service counter during this time.
·Roberts then joined Katam at the front counter and told you that she was there to help and you repeated “just give me the money”.
·Roberts opened the cash counter and placed the contents of the register, being $250, into the plastic bag which was being held open by Katam.
·You then grabbed the bag from the counter and told Roberts that she better not lock you in.
·You then left the service station and was seen running from the service station to the parked sedan. Roberts than activated the duress alarm to alert police (armed robbery – Charge 1 on the Indictment).
Summary charges – dangerous driving and driving without a licence9.
·On 26 November 2018, you were not licensed to drive a motor vehicle. You were disqualified by the Bairnsdale County Court on 10 December 2014 from obtaining any licence or permit under the Road Safety Act 1986 for a period of 54 months, effective from 10 September 2014.
·At approximately 5.55pm, shortly after the commission of the armed robbery, you drove south on the Nepean Highway and were observed driving erratically at a fast speed, in peak-hour traffic. You then swerved into a parking lane on the highway and collided with a vehicle driven by McKenna, who was attempting to drive into a residential driveway. The collision caused damage to McKenna’s vehicle.
·The collision also caused extensive damage to your vehicle, which lost control on colliding with McKenna’s vehicle, and veered across two lanes of traffic, colliding with an 80-kilometre-per-hour speed sign on the centre median strip of the Nepean Highway (Summary Charge 3 – dangerous driving, and Summary Charge 4 – driving without a licence).
·Detective Senior Constable Paterson (“Detective Paterson”), who was off duty at the time, witnessed the collision, and approached you, asking if you were okay and to stay at the scene. You then left the scene and began to run, discarding your hooded jumper, and then walked along a beach, followed by Detective Paterson.
·Detective Paterson caught up with you and engaged you in a conversation for 45 minutes before the police arrived. He noted that you appeared to be affected by alcohol.
·Police arrived at the scene, and you were arrested, and ultimately taken to Frankston Hospital for examination, and a blood sample was taken. The sample was analysed and found to contain not less than 0.092 grams of alcohol per 100 millilitres of blood.
·You were released from hospital the following day, 27 November 2018, and when interviewed you gave “no comment” answers in relation to the armed robbery, but made the following general comments:
– you took your partner’s vehicle without her permission (Q&A 35-37)
– you were “piss drunk” yesterday. You went to the Langwarrin Hotel, bought some beers and then drank everywhere (Q&A 49-55)
– you could not remember what happened after stopping drinking. By the time you had left the Langwarrin Hotel you were drunk and probably had ten beers (Q&A 55-57)
– you arrived at the Langwarrin Hotel around 10.00am and left in the afternoon (Q&A 57-62)
– you had been using Ice for the past 6 months after a four-year break, but denied using any in the last couple of days(Q&A 68-70)
– when asked if there had been a trigger for your offending the day before, you responded that you had “just wanted to die”, that you had just “had it” (Q&A 75-76)
– you do not remember anything from yesterday and your memory was “sketchy” from the time that you left the pub (Q&A 92-93)
– your last memory from yesterday was being arrested and you remember being arrested on a hill (Q&A 100-102)
– when asked if any questions had jogged your memory, you responded “not really” because you were wasted. You did not know what you thought had happened and was surprised by what police had told you what had happened on the previous day (Q&A 109-112)
– you remembered feeling sad and depressed the day before and you did not know how it got so extreme yesterday [the drinking] (Q&A 115-122)
– when asked about the hatchet, you responded that you did not know where you got it from and did not know it was in the car (Q&A 123-125)
– you had no memory of being at the service station (Q&A 127)
– you denied you owned a Zoo York jumper (Q&A 130)
– you stated that you never thought of doing an armed robbery before (Q&A 172) and expressed that, despite needing money, you would never do anything like that though (Q&A 173)
– you made admissions to being the driver of the vehicle involved in the collision and not having a driver’s licence at the time of offending (Q&A 157-166).
6 You were charged and remanded in custody on 26 November 2018. As at 26 June 2019 – the plea hearing – the total pre-sentence detention was 212 days, excluding 26 June 2019.
7 Counsel for the prosecution sought an order that a forensic sample may be obtained from you pursuant to s464ZF(2) of the Crimes Act 1958, and such was not opposed.
Victim Impact Statement
8 Ms Tasha Roberts declared a Victim Impact Statement on 13 June 2019. In that statement, she declared that she did not want such statement to be read aloud in Court, and ultimately it was tendered (see exhibit 3).
9 In the Statement, Ms Roberts states that for the first week after being the victim of the armed robbery, she was “apprehensive any time a customer walked in wearing a hoodie or had their hands in their pockets”. She noted that after a few weeks she found herself still nervous, but not to the point where it really affected her. Presently, she does not feel unsafe at work, or concerned about customers coming into the store, but just feels more aware of things to look out for.
Your criminal record
10 Counsel for the prosecution tendered your criminal record, dated 4 June 2019 (exhibit 1). Such record consists of the following:
(a)on 23 June 2011, at the Frankston Children’s Court, you were found to have committed an affray (common law) and recklessly causing injury, and without conviction were placed on probation for a period of 6 months to 22 December 2011;
(b)On 27 February 2013, at the Frankston Magistrates’ Court, you were found to have been drunk in a public place and resisting police and, again, without conviction, you were fined an aggregate of $400;
(c)on 10 September 2014, at the Bairnsdale Magistrates’ Court, you were found to have driven in a manner dangerous, using an unregistered motor vehicle on a highway, use vehicle not safe and in roadworthy condition, failed to stop vehicle after an accident, failed to report to police owner not present, failing to answer bail, unlicensed driving, driving whilst disqualified and drunk in a public place, together with driving in a manner dangerous, and was convicted and sentenced to a community correction order of 24 months, with such conditions starting on 10 September 2014. Among other things, your licence was cancelled for a period of 54 months;
(d)on 11 January 2016, at the Frankston Magistrates’ Court, you were found to have contravened your community correction order made on 10 September 2014 and were ultimately sentenced to 3 months’ imprisonment, wholly suspended for one year, under the then s27 of the Sentencing Act 1991 and fined $1,000;
(e)on 13 July 2017, at the Frankston Magistrates’ Court, you were found guilty of two charges of driving whilst disqualified and were convicted of each offence and sentenced to one month’s imprisonment, to be served concurrently with any other prison term.
Your personal circumstances
11 Your counsel tendered the following documents:
(a)a document head “Defence Plea Outline”, dated 18 June 2019 (exhibit “A”);
(b)a report from the clinical and forensic psychologist, Mr Jeffrey Cummins, dated 30 January 2019 (exhibit “B”);
(c)a reference from your partner, Rebekah Thompson, dated 26 June 2019 (exhibit “C”);
(d)Certificates of Completion in relation to “Coping Inside Program”, dated 20 March 2019; the Kangan Institute Certificate II Warehousing Operations, dated 13 February 2019, and a certificate headed “Alcohol and Me”, dated 2019;
(e)a handwritten letter from your mother Rebecca Grobbe (undated), (exhibit “E”).
12 Partly based on those documents, and partly based on various submissions made by your counsel, I note the following:
·You were born in Frankston and grew up on the Mornington Peninsula and have one younger sister, who is approximately nineteen years old.
·When you were about four or five years old, your father left the family and you and your sister were raised by your mother, who you describe as a chronic alcoholic.
·According to the psychologist, Mr Cummins, you have struggled throughout your life, feeling rejected by your father, who you last had contact with at the age of sixteen. You do maintain a close relationship with both your mother and sister, who visit you in custody.
·You completed Year 10 at Mornington Secondary College and midway through Year 11, at the age of sixteen, you left school and commenced a roof-tiling apprenticeship. On completing your apprenticeship, you worked full time in this area for seven to eight years, until early 2018, when your then employer entered semiretirement and there was not enough work for you.
·After you were put off work as a roof tiler, you had various jobs, including plastering, gardening and building maintenance.
·You have been in a relationship with Rebekah Thompson for about eight years. Ms Thompson is four years older than you and you have two daughters with her – Marnie, who is four years old and Aubrey, who is one year old. Prior to your arrest, you were the sole income earner of the family.
·Ms Thompson remains supportive of you, and since being in custody you speak to her and the children on the phone most days.
·You informed the psychologist, Mr Cummins, that from the age of thirteen you started binge drinking on weekends, snorting amphetamine, smoking cannabis and taking ecstasy.
·You began smoking methamphetamine when you were eighteen or nineteen, and continued to use that drug until September 2014, when your first daughter, Marnie, was born. After her birth, you refrained from abusing alcohol and virtually abstained from all illicit drugs for four years.
·You have instructed your counsel that your alcohol consumption increased after your first experience of custody in July 2017. You also instruct that you relapsed into heavy alcohol and methamphetamine use in early- to mid-2018 in the context of job instability and financial strain. You have never had any treatment for alcohol or drug use.
·You reported to the psychologist, Mr Cummins, that you saw a psychologist for around twelve months, when you were fifteen years of age, in respect of anger management issues. Furthermore, in early 2018, you were taken to the Frankston Hospital by police and admitted to the psychiatric ward, and were treated for drug-induced psychosis. You were discharged within twenty-four hours without any follow up.
·Again, you instruct your solicitor that you experienced severe symptoms of Depression for at least one year before the offending, but did not seek treatment. You report attempting to commit suicide on two occasions in around November 2016 (according to Mr Cummins) and on both occasions, while under the influence of alcohol.
·Since being on remand, you have been prescribed the antidepressants, Mirtazapine and Effexor and the mood stabiliser, Olanzapine, for Depression and Anxiety. This is the first time you have taken medication for your mental health issues and you report that such drug medication have been effective.
The circumstances of the offending
13 You have instructed your counsel that, in the months leading up to the subject offending, you were experiencing a high level of financial and personal stress, which was the catalyst to a relapse of heavy alcohol and illicit drug use. Furthermore, in early 2018, you lost your long-held roof-tiling job and a few months later your second daughter was born. In such circumstances, you struggled to find stable work and to pay rent and support your family.
14 In the lead up to the offending you were smoking about 1 milligram of methamphetamine per week and drinking 15 cans or stubbies of full-strength beer per day. This, in turn, made it difficult for you to maintain employment that was offered. The stress and financial strain of the family was further exacerbated in September 2018, when your partner’s father died unexpectedly.
15 On the day of the offending, you went to the Langwarrin Hotel around 8.00pm and stayed at the hotel for several hours, drinking and playing the pokie machines. When you left the hotel, you continued drinking in the car park.
16 You were feeling extremely distressed and intoxicated at the time of forming the intention to commit the armed robbery, and at the time of the offending itself, having consumed about sixteen to seventeen beers that day.
17 You were asked, in the Record of Interview, whether there had been a “trigger” for your behaviour that day, to which you responded, “I’ve just had it … I just wanna fuckin’ die.” You told the psychologist, Mr Cummins, that:
“…I felt terrible because I'd wasted all of this money on alcohol and I thought, well I need some money to take home to my missus and so I formed this idea of doing an armed robbery and that's what I did … ."
18 Your counsel notes that your anguish after the offence was apparent, as Detective Paterson, who apprehended you on the day, noticed that you were crying when apprehended on the beach.
The report of Mr J Cummins
19 The consulting clinical and forensic psychologist, Mr Jeffrey Cummins, interviewed you by video-conference link on 29 January 2019.
20 During the course of such interview, you stated to Mr Cummins:
“"I can't believe I've come to this. I can't talk to my missus on the phone. Whenever I talk to her, I just cry. I'm hoping she'll come in and see me and my sister has said that she'll help out in terms of looking after the children so Beck can come and see me. I'm not coping in here. I feel really depressed. I don't think I'll take my life but I've certainly been thinking about this again. You know, I keep thinking that when I get right back into the alcohol and the Ice, it's all because I just can't accept that I've been rejected by my dad. When I saw my dad when I was 16 all he wanted to do was to tell me how to live my life and I just thought, well what's the point? Of course I knew I shouldn't have done an armed robbery, but at the same time it's probably the best thing that I got arrested and I've ended up in here - because this has forced me to think about my whole situation and I know I've let down my mum and my girlfriend and my kids."
21 You also informed Mr Cummins that it was your goal to remain illicit-drug free and to control your alcohol intake when you are released from custody. Apparently, you also want to participate in an anger management program. You also told Mr Cummins that at the time of committing the armed robbery you appreciate you were doing the “wrong thing” and committing a criminal offence. Mr Cummins noted that at interview you remained pre-occupied with the impact of your offending behaviour on you, your mother, sister and de facto partner, and it was thought that you were at an early stage in terms of exploring issues relevant to victim empathy.
22 Mr Cummins assessed you as to the risk of committing a further offence of violence and such risk was assessed as “moderate”, to which Mr Cummins noted this confirms it is essential you undertake a comprehensive anger management program. Again, Mr Cummins noted that you expressed regret concerning your offending, and according to Mr Cummins, you considered your offending was a “desperate and relatively spontaneous act”, even though you had the small hatchet in your possession at the time of committing the armed robbery.
23 Mr Cummins opined that the risk of you committing a further offence will be very much linked to whether or not you cease using illicit drugs, and whether or not you control alcohol intake when released back into the community. To this end, he noted that you required treatment in relation to both alcohol and drug use.
The various references
24 I have read the reference from your partner, Rebekah Thompson, wherein she describes herself “as somewhat responsible” for the desperation that compelled you to do something that you would not typically do. In this respect, she refers to the death of her father on 28 September 2018, which caused her not to effectively care for the children at that time, resulting in you taking time off work and drinking further. She generally describes you as “incredibly hard-working, honest, respectful and kind”. She also describes how you have expressed “deep remorse” for your criminal activities and such activity is “just so far removed from the person I know and love”.
25 I also refer to the reference from your mother, who, like your partner, describes you as hardworking and who always has been employed. She also describes the build-up of various stresses, including the death of your partner’s father, the lack of work and financial pressure, all playing a role to what she describes as an event “out of character”.
26 In particular, your mother states that she knows you are “deeply sorry” and wished you had never committed the offending, and you become very emotional when discussing that issue.
27 I also note that you have completed courses, including “Coping Inside Program” and the module “Control Traffic with Stop/Slow Bat”, arranged by the Kangan Institute. More particularly, you have also undergone the course “Alcohol and Me”.
Mitigating circumstances relied on by your counsel
28 Your counsel submitted the following matters are relevant in mitigation of your sentence:
(a)that you entered the plea of guilty at the “earliest opportunity” and such course has at least a utilitarian benefit and demonstrates a willingness to facilitate the course of justice. Reference was made to the well-known case of Phillips v R [2012] VSCA 140. Although noting that you stated in your Record of Interview that you had no memory of the offending, Mr Cummins opines that this was probably due to embarrassment and shame;
(b)that you are extremely “remorseful” for your offending and although, as your counsel notes, you have been absorbed by the impact of your offending on your family, you are very cognisant of having caused significant trauma to the victims;
(c)although your counsel submitted that the family hardship suffered as a result of any imprisonment is not “exceptional”, it is something that weighs heavily on you that you are unable to contribute to the care of your children and financially support your family. Also, as pointed out by your partner in her reference, your four-year-old daughter, Marnie, is having considerable difficulty with your separation and has become more anxious and withdrawn which, in turn, has had a profound impact on you;
(d)that you have been assessed by Mr Cummins as to your risk of re-offending in respect of violent matters as being “moderate” and is largely dependent on whether you can control your intake of illicit drugs and alcohol abuse, all of which seems to flow from unresolved emotions of being rejected by your father, associated anger and very low self-esteem;
Your counsel submitted that your prospects of rehabilitation are “good”, given your relative youth, limited prior convictions, commitment to and support from your family, your good employment history, your desire to control alcohol intake and remain abstinent from illicit drug use, and your eagerness to engage in mental health and drug and alcohol treatment;
(e)Your counsel submitted that although you are not a “young offender” within the meaning of s3(1) of the Sentencing Act 1991, you are still relatively young, being 24 years old. Initially, your counsel had some hesitation as to whether the well-known cases – for example, R v Mills [1998] 4 VR 235 and Azzopardi v R; Baltatzis v R; Gabriel v R (2011) 35 VR 43 – have any significant application given that you are not a young offender by definition. Ultimately, counsel for the prosecution submitted, rightly in my view, that youth generally is a mitigating factor (see Mills (op cit) at p241). In this respect, your counsel submitted that rehabilitation should play a significant role in determining an appropriate sentence.
29 Your counsel accepted that the crime of armed robbery, by its nature, is a “serious offence”, particularly when those robberies are on “soft targets”, such as the service station in this case. Furthermore, your counsel accepted, appropriately in my view, that there was a high potential for violence to escalate given you had with you the small hatchet, no doubt traumatising the victims of the robbery.
30 However, it was further submitted that the armed robbery was not at the “higher range of seriousness”. Although accepting that there was “some planning” in that you chose the venue, wore a hoodie, and entered with a plastic bag and the small hatchet in your pants, you did act alone and whatever planning was involved was “amateurish”. The robbery yielded approximately $250, much of which was dropped by you when you were running along the beach before apprehension.
31 Again, it is acknowledged by your counsel that the principles of deterrence, both general and specific, and protection of the community assume significance in a sentence for armed robbery. By way of general deterrence, I mean that a sentence must deter other people from committing such an offence, whereas specific deterrence means that the sentence should deter you from ever committing such an offence again. Obviously enough, community protection is important.
32 Your counsel noted that s5(4) of the Sentencing Act 1991 provides that imprisonment is a sentence effectively of “last resort”. In all the circumstances, it was submitted that an appropriate sentence would be a combined sentence involving a term of imprisonment followed by a “structured” community correction order with a therapeutic component which would meet all relevant sentencing purposes and afford the best prospects for rehabilitation.
Response of the prosecution
33 Counsel for the prosecution submitted that, generally, the mitigating factors relied on by your counsel are relevant in determining an appropriate sentence. However, counsel for the prosecution ultimately submitted that, in all of the circumstances, a combined sentence would be inappropriate and there should be a head sentence with a parole period. In particular, it was submitted that the type of weapon used – the small hatchet – is particularly relevant and the situation could have escalated quite dramatically.
Conclusion
34 The offence of armed robbery is a very serious offence, as is made clear by the maximum penalty of 25 years’ imprisonment. Although I accept that your offending, insofar as it relates to the armed robbery, was not the worst form of this type of offence, I do note:
(a)the offending did involve you robbing what can only be described as a “soft target”, being a service station;
(b)although I accept that the robbery was unlikely to be a product of long-range planning, I do consider that the robbery was not a spontaneous event. In particular, I refer to you wearing a hooded jumper and having the wherewithal to bring a plastic bag to hopefully carry away stolen money;
(c)in particular, you had the wherewithal to bring and carry into the service station the orange and black-handled hatchet and brandish the weapon at Katam.
35 I accept there were circumstances building up in your life – including your recent loss of a job, the death of your partner’s father, various financial worries, all of which caused you to dramatically increase your alcohol consumption and a relapse into drug use, particularly methamphetamine in mid-2018. Furthermore, I accept that you had been drinking heavily on the day of the offending – of course, such is not a defence to the offending but sets the context in which the offending occurred.
36 Furthermore, shortly after the armed robbery, you drove a motor vehicle erratically at fast speed in peak hour traffic, swerved into a parking lane on the highway and collided with a vehicle driven by McKenna, who was attempting to drive into a residential driveway. You are fortunate that such driving did not end up with someone being killed or seriously injured. Of course, such driving was at a time when you had not held a licence since 10 September 2014.
37 I also note that on 10 September 2014, you were also found to have driven in a manner dangerous and when unlicensed amongst a whole series of driving offences. At that time, you were sentenced to a community correction order for 24 months that was ultimately breached, which resulted in you being sentenced to three months’ imprisonment, wholly suspended under the then s27 of the Sentencing Act 1991, and fined $1,000. Furthermore, on 13 July 2017, you were found guilty of two charges of driving whilst disqualified and were convicted of each offence, and as already noted, sentenced to one month’s imprisonment.
38 Clearly, sentences ordered against you for past driving when unlicensed, have not deterred you from committing that offence.
39 In mitigation, I do take account of your plea, which I accept was at an early time, and has, at least, the utilitarian benefit of saving the time and cost of a trial and, also, more particularly, the need for the victims to come to court to give evidence and relive the circumstances of your offending. It is always a question for the sentencing judge whether remorse or a willingness to facilitate the course of justice and acceptance of responsibility are to be inferred from a plea of guilty (see Phillips (op cit) at paragraph [68]).
40 In your Record of Interview, you claimed to have little or no memory of the circumstances surrounding the armed robbery and even denied ownership of some clothing. Although you have expressed concerns about the impact on your family in relation to your offending, I consider that you have demonstrated very little remorse for the victims of your offending. Although your counsel submitted that your prospects of rehabilitation were “good”, I tend to the view that your prospects for rehabilitation are somewhat “guarded”.
41 The Court arranged for you to be assessed to determine your suitability for a community correction order, and such assessment occurred on 26 June 2019. At that time, you were assessed as being “medium risk” of re-offending, according to the Level of Service Risk Assessment Tool.
42 The assessing Community Corrections officer, Mr C Groh, noted that during the assessment process you were “open and forthcoming with information, and demonstrated some insight into [your] offending behaviour and the precursors to [your] offending”. Mr Groh also noted that you were a fully-qualified roof tiler by trade and that would be available to you after release from prison. Furthermore, he noted that you would be welcome to return to reside with your partner and two daughters.
43 I also accept that any period of imprisonment will weigh heavily on you as you will be unable to contribute to the care of your children and partner during such period. Furthermore, such hardship will be heightened by the circumstances of your daughter, Marnie, who has had considerable difficulty with your present separation.
44 It was submitted by your counsel that because you were a “youthful” offender, such considerations as general and specific deterrence, denunciation and just punishment should be all moderated, with the emphasis being on your rehabilitation. As has been already recorded, s3(1) of the Sentencing Act 1991 defines a “young offender” for the purposes of that Act as “an offender who at the time of being sentenced is under the age of 21 years”. Again, as has been noted already in these Reasons, the various propositions enunciated in Mills (op cit) and Azzopardi (op cit) can be applied to offenders who, although not falling within s3(1) of the Sentencing Act 1991, can still be considered “youthful”, as chronological age does not necessarily reflect maturity (see Patone v R [2017] VSCA 3 at paragraph [19]).
45 However, the impact of youth as a mitigating factor in sentencing decreases as the offender’s actual age increases (see Mills (op cit) at page 241; Huynh v R; Au v R [2017] VSCA 216 at paragraph [52]).
46 It is also the case, as I have already recorded, you have contravened a previous community correction order made on 10 September 2014, which resulted in a sentence of three months’ imprisonment, wholly suspended for one year, and you have also served one month’s imprisonment as a result of the sentence imposed at the Frankston Magistrates’ Court on 13 July 2017 for two charges of driving whilst disqualified.
47 I consider that such a past record also diminishes the significance of what might otherwise be attached to youth (again, see Huynh & Au (op cit) at paragraph [52]).
48 Taking all these circumstances into account, I consider that the armed robbery is serious offending and, indeed, the driving offences have to be viewed in the light of your previous convictions for similar offences – in particular, the offence of driving whilst disqualified. In such circumstances, I do not consider it appropriate to order a combined sentence but, rather, an immediate period of imprisonment with a non-parole period.
49 I do consider that considerations of general deterrence, specific deterrence, denunciation, just punishment and community protection are all relevant in coming to an appropriate sentence. I have moderated each of these elements to some extent on account of your youthfulness and, also, I have also provided for a slightly longer period of parole, if granted, to assist you in transitioning back into the community.
50 I also point out that I intend to cancel any licences you hold but, more particularly, in the circumstances, disqualify you from obtaining a driver licence or learner permit for twelve months. Such disqualification is based on the general discretion of being not less than six months, rather than the vehicle being driven for a period of 45 kilometres per hour, or more, in excess of that permitted. In respect of the latter issue, although there is evidence that you were driving at a “fast speed”, there is no evidence before me as to what the speed was or, indeed, what was the speed limit at the area where the offence occurred.
51 Please be upstanding:
(a)in relation to Charge 1 on the Indictment, you are convicted and sentenced to two years’ and nine months’ imprisonment;
(b)in relation to the uplifted Summary Charge 3, involving driving a motor vehicle that was dangerous to the public, you are convicted and sentenced to a period of imprisonment of four months;
(c)in relation to the uplifted Summary Charge 4, involving driving a motor vehicle during a period of disqualification, you are convicted and sentenced to a period of imprisonment of six months;
(d)the Court directs that two months of the sentence imposed in relation to the uplifted Charge 3, and four months of the sentence in relation to the uplifted Charge 4, be served cumulatively upon each other and the sentence in relation to Charge 1 on the Indictment. The total effective sentence is three years and three months and I order that there be a non-parole period of two years;
(e)in relation to the uplifted Charge 3, I further order, pursuant to s64(2) of the Road Safety Act 1986, that any licences and permits that you might hold to drive a vehicle be cancelled, and you are disqualified from obtaining a driver licence or permit for a period of twelve months from this date;
(f)further, I declare that you have been in custody in respect of these offences for 249 days and such number of days be reckoned as a period of imprisonment already served under this sentence, which is to be deducted administratively.
I also make ancillary orders sought by the prosecution in this case, in relation to the taking of a forensic sample and of the disposal order, and
(g)pursuant to s6AAA of the Sentencing Act 1991, I declare that save for your pleas of guilty, I would have sentenced you to four years’ and eight months’ imprisonment.
52 Yes, counsel anything to say?
53 MS YOUSSEF: No, Your Honour.
54 MS POWELL: No, Your Honour.
55 HIS HONOUR: I take it this is the family there, are they?
56 MS POWELL: Yes, Your Honour.
57 HIS HONOUR: I will allow the family to approach the dock.
58 MS POWELL : Thank you.
59 HIS HONOUR: If they want to. Mr Cheyne, you must understand, and I hope you have reflected on this already in prison, the community just will not tolerate the sorts of armed robberies that you committed, even though as I found you were under a degree of stress at the time, in no way does that excuse the type of event that you committed. Indeed, as I have said, and others reporting about this, a mistake during or with that particular hatchet, anything may have happened. You could be facing far, far more serious charges than you are facing today. The second thing you have to realise, and I hope you reflect in prison about this, you have flagrantly breached an order about driving a vehicle. You just cannot expect to keep on going and doing that type of thing and get away with it. That is not going to happen. I have increased the penalty from a couple of months I think to five or six months here. When you come out and ultimately drive again, when you get your licence and hopefully you will get your licence, and will not drive again illegally, if you do that, that is going to get worse and worse and worse, and there is good reasons for this. You just have to understand that. You just cannot go around thinking, 'I'm going to get away with this' because you will not, you will not get away with it, and this is the second offence for dangerous driving.
60 Again, in one sense you were lucky. Your driving could have killed someone so easily on the Nepean Highway at that time, killed someone, could have killed you, could have killed the other driver, could have killed kids in cars.
61 What you have to appreciate you just cannot do that sort of thing. Now, it sounds like you are contemplating things in prison. That is a good move. That is a good move. You know, I hope you will keep yourself clean in prison. That is going to help you immensely when you are released to get back to your normal life and you are probably luckier than most in two ways, I suppose.
62 First, you have got a job, well a potential job, you have got training, you have been a trained roof tiler so you have got something to go back to. Many people have not. And second, it sounds like you have got a pretty supportive family. Your partner, you have got two young daughters to go back to too. All something to aim for.
63 What you should do, in my opinion for what it is worth, the next, however long you have got in, and hopefully you will get parole when it comes up, you work on all those things about getting over that problem with the grog and also the drugs, because if you do not, I can assure you, if you do not, when you're released and you start with drugs and alcohol again, the chances are you are going to be back here again and it won't be Penny Alley, it will be years.
64 You just have to really think about that, and at 24, you have got all your life in front of you, you really have. So you have to start making some pretty big and serious decisions while you have got time to think about that.
65 Yes, take the prisoner. Yes, we will adjourn.
66 MS YOUSSEF: Your Honour, there's just one (indistinct) of the 6AAA. We have the total effective sentence as four years, 8 months but we were not advised of a non-parole period.
67 HIS HONOUR: No, I don't think it is necessary for me to do that.
68 MS YOUSSEF: Yes, all right, that's fine.
69 HIS HONOUR: Any comment? I have been asked to do that once before, I am not sure a 6AAA actually says that does it. It just says, and most sentences I have read and certainly sentences I - which might run to a few now - I have never put a non-parole period, but I think the critical issue is that people have to understand, see the non-parole period is just that. I have got no control whether people are going to get parole or not. But what people have to understand, that a plea of guilty has some real meaning in that sentence otherwise it is less than what they would have potentially got otherwise, so I think that is the fundamental basis behind it. So look, I will not accede to that. Do you want to comment on that at all?
70 MS POWELL: Not at all, Your Honour.
71 MS YOUSSEF: Thank Your Honour.
72 HIS HONOUR: Yes, well thank you. We will adjourn temporarily.
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