Director of Public Prosecutions v Cheyne Ahern
[2016] VCC 853
•21 June 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-16-00526
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHEYNE AHERN |
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| JUDGE: | HIS HONOUR CHIEF JUDGE KIDD | |
| WHERE HELD: | Melbourne | |
| DATE OF HEARING: | 9 June 2016 | |
| DATE OF SENTENCE: | 21 June 2016 | |
| CASE MAY BE CITED AS: | DPP v Cheyne AHERN | |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 853 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence following plea of guilty to armed robbery – TES 3 years with NPP of 21 months.
Cases Cited:Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | G. Overend | Office of Public Prosecutions |
| For the Accused | Mr D. Gibson | Victoria Legal Aid |
HIS HONOUR:
1. Cheyne Ahern, you have pleaded guilty to one charge of armed robbery. The maximum penalty is 25 years' imprisonment. You have also pleaded guilty to three summary charges, committing an indictable offence whilst on bail, which has a maximum penalty of 30 penalty units or three months' imprisonment; driving whilst disqualified, which has a maximum penalty of 240 penalty units or two years' imprisonment; and driving an unregistered vehicle, which carries a maximum of 25 penalty units for a first offence.
2. You were born on 21 August 1979 and are currently 36 years of age. You were 35 years old at the time of the offending.
Circumstances the offending and Interview
3. A prosecution opening was tendered on the plea. It is an agreed summary. Your offending may be summarized as follows: On Monday 14 December 2015, you drove an unregistered Holden sedan and parked the car at St Mary’s Football Club. Your driver’s licence had been cancelled and you were disqualified from driving by the Magistrates’ Court on 3 April 2014. You crossed the rail line and climbed up the embankment to Main Street, in order to avoid detection, arriving at the Greensborough Hotel at about 10:20 pm. You had a stocking over your head which covered your face and you were holding a hunting knife. There was no one behind the bar or till when you entered, so you approached a group of people to ask them where the hotel staff were, while holding a hunting knife up at chest level. They did not know.
4. You found the victim, a male employee, in the gaming area and told him to get the money out of the tills. The other group of people left the room. The CCTV footage of the incident, which was played during the plea, showed that they left in a state of fear. The employee walked to the bar area with you following behind him, with the knife still at chest height. The employee got all of the notes out of the till behind the bar and put them into the bag you were carrying. You then told him to get the money out of the cashier till. He walked back around to the front of the cashier and opened the till and gave you the notes. You left through the main doors with approximately $960. At the time of the offending you were on bail for unrelated matters.
5. You later participated in a record of interview and made full admissions.
Impact on Victim
6. A victim impact statement written by the hotel employee was filed by the prosecution. He describes feeling uneasy when he returned to work a few days after the offence. He felt jumpy and on-edge. He engaged with a counsellor and advises that he now feels comfortable at work, with no long-term effects.
Criminal History and Personal Circumstances
7. Mr Ahern, you have a lengthy criminal history, dating back to the age of 17. However it does contain only appearances in the Magistrates’ Court and you have never been sentenced to an immediate term of imprisonment.
8. Your offences have included drug-related offences, driving offences, offences of dishonesty and multiple offences of violence, including recklessly causing injury, intentionally causing injury, reckless conduct endangering serious injury, and assault.
9. When it comes to your compliance with court based orders, it is very much "hit and miss". According to the community corrections order assessment report, you have been the subject of five community based orders, imposed between 2000 and 2007. You have also been the subject of two community based orders for unpaid fines, which were converted into community work. You have completed four of these CBOs, or community based order and breached three community based orders. Your criminal history indicates that you failed to comply with two community based orders. One of these community based orders was for 18 months and involved offences of violence. You have complied with two wholly suspended sentences. You have also been dealt with three times for having failing to answer bail.
Difficult background, drug abuse and mental health history
10. Information as to your upbringing and background is to be found in the report, dated 6 June 2016 from Dr Nicholas Owens, consultant psychiatrist, tendered on your behalf at the plea hearing.
11. Your childhood was characterised by significant instability, including frequent moves of addresses, an unstable relationship between your mother and step-father, witnessing and experiencing psychological and physical abuse from your step-father, and substance abuse problems in a parental figure.
12. I take into account your dysfunctional upbringing. This seemed to set the scene for what has thereafter been a life marked by drug abuse, personal difficulties and significant mental health issues.
Verdins and relevance of mental health issue
13. I turn now to your mental health history and the question of Verdins.
14. Information as to your personal difficulties, your drug use, or your past drug use, and in particular, your psychiatric problems, is also to be found in Dr Owens' report.
15. You developed problems with substance abuse around the age of 16, which became steadily worse in subsequent years, to the point of intravenous opiate dependence by 19.
16. You have not worked for 12 years.
17. Your relationship with your ex-partner appears to have been marked by significant instability, in terms of being able to provide stable and consistent parenting to your children.
18. Your psychiatric history indicates that you initially developed a psychotic illness around the age of 19 and have had relapses of psychosis, requiring acute inpatient treatment on multiple occasions since then. The current diagnoses are paranoid schizophrenia, opiate dependence and stimulant abuse.
19. The offending with which I am concerned appears to have taken place in the context of a number of inter-related factors. These include a problematic relationship with your ex-partner, who had an intervention order in place against you; your acute lack of funds to provide for the basic needs for yourself and your family; and your use of methylamphetamine, which may have acted to cause some degree of disinhibition of your behaviour.
20. Dr Owens was unable to identify any clear connection between your mental illness of schizophrenia and your conduct at the time of the offending. There is no evidence that you were experiencing acute positive symptoms of schizophrenia at the material time
21. Your counsel specifically disavowed the application of Verdins principles. You were not suffering from any psychosis episode at the time of the offending. Further, while the management of your condition is marked by some uncertainty, it appears to be at least as well managed within the prison environment than it would be within the community, according to the report of Dr Owens, in particular at p.10.
22. Nevertheless, your counsel relied upon your psychiatric history for the purposes of providing the general contextual setting for your offending. Your counsel submitted that by reason of your psychiatric history, you have a more limited capacity to address the problems which you face in life, such as your drug problems and your financial and gambling problems. These problems provide the immediate setting to the current offending. Your counsel submitted I should moderate the sentence accordingly. I accept this.
23. Your mental health issues form part of your personal characteristics. While your complex psychiatric condition does not attract the level of mitigation of sentence that must be allowed where it is relevantly connected to your offending[1], in a Verdins sense, it is still relevant to an assessment of your moral culpability in a more limited way. You are less equipped than a normal person would be to cope with the myriad of personal and drug related problems, which provided the setting for this offending.
[1] As understood Verdins principle 1
Guilty Plea
24. You pleaded guilty at the earliest opportunity at a committal case conference on 4 April 2016, and the matter proceeded by way of straight hand-up brief. You are entitled a discount for the utilitarian value of the plea. Your plea also represents evidence of your remorse. I treat your plea as having been entered at the earliest possible time and you are accordingly entitled to the full benefit.
Insight and remorse
25. When asked about the psychological impact of your actions on people who witnessed your behaviour at the material time, you said to Dr Owens that this had not occurred to you before. However you accepted that it was likely that you caused substantial fear and you felt bad about this. You told Dr Owens that you regretted it, that "dropping a knife in front of old people" was wrong and that you feel "like a scumbag". I accept that this is evidence of your developing insight and remorse into your offending. I also accept that your full admissions which you made to the authorities or the police, and your plea of guilty reveals remorse.
Prospects of rehabilitation and the issue of specific deterrence
26. I assess your prospects of rehabilitation as uncertain, having regard to your adverse criminal history and to the matters canvased in the report of Dr Owen.
27. Your adverse criminal history bears upon the need for the protection of the community and the increased importance of specific deterrence as a factor in sentencing you, having regard to the past failure of more moderate penalties, including community based dispositions in deterring you.
28. Dr Owens assessed your risk of re-offending, in the medium to long term, as moderate.
29. You are currently receiving medical treatment for paranoid schizophrenia in custody. Dr Owens says your mental state will require careful review on an ongoing basis, as there is clearly a risk that such deterioration may eventuate. You will need to continue taking
anti-psychotic treatment for the foreseeable future.
30. Dr Owens noted that when in the community, you have not engaged well with mental health services outside of acute inpatient admissions. Your drug use is likely to have been a central factor in past relapses.
Dr Owens noted that nevertheless, there is evidence that, while remaining compliant with anti-psychotic treatment, your symptoms are reduced significantly and you appear to have insight into the benefit in anti-psychotic medication.
31. As your counsel said on the plea, your prospects of rehabilitation are very much tied to controlling your psychiatric condition and your drug problems.
32. Dr Owens concluded in his report at pp 10 to11, the following: I am quoting directly from the report, and he is referring to his assessment of you, Mr Ahern:
"At the time I assessed him, he had no clear plans as to where he would live if released, and his relationship with his ex-partner appears to have irretrievably broken down. Although he could receive ongoing psychiatric treatment from a local area mental health service, given his history of non-compliance, he would be at high risk of treatment default.
In my view, reduction of the risk of re-offending in a community setting would require a fairly intensive co-ordinated management plan, involving correctional services, mental health services, drug and alcohol services and accommodation support services. Mental health services within the prison would need to liaise with community mental health services to ensure that Mr Ahern does not miss out on ongoing mental health treatment upon his release.
Depending on his mental state at the time, he may require use of the Mental Health Act 2014 to ensure that he remains engaged in treatment, although it must be said that previous use of compulsory community treatment orders, most recently last year, has failed.”
Clearly this raises some serious questions about predicting your mental state into the future, or at the date you become eligible for release. It also raises serious questions about predicting what will be required to manage your mental state upon your release.
Offence gravity, general deterrence, just punishment and denunciation
33. Mr Ahern, in my view this a serious example of the offence of armed robbery. It is certainly significantly above a lower end street level type armed robbery.
34. It involved a degree of planning, albeit it was rudimentary. You selected the target because of its vulnerability and potential for cash, even though you only obtained a modest amount. You brought a disguise.
35. Its execution involved the brandishing of a menacing weapon. The CCTV footage which was played in court shows that it was undoubtedly an air of aggression about your behaviour and determination.
36. You committed the offence whilst on bail. That said, I am conscious that you will also be sentenced for committing and indictable offence whilst on bail, and you must not be doubly punished.
37. Although this offending represents an escalation on your criminal past, your criminal history does bear upon your moral culpability.
38. Employees who work at night time at relatively soft targets, like hotels, where there is cash upon the premises, must have a sense that if armed offenders terrorise them, then the court will play its role in denouncing the criminal conduct and deterring others from embarking on a similar course in the future.
Submission as to disposition
39. Mr Ahern, with some reservations, which I expressed at the plea hearing, I had you assessed to determine your suitability for a Community Corrections Order (CCO), in combination with a term of imprisonment. The report, prepared by Mr Temple-Camp, indicates that you are considered suitable for a CCO. Drug assessment and treatment was recommended due to your reported daily use of methylamphetamines during the period in which your offending occurred. Mental health treatment and other offence related programs were also recommended. The author notes a concern regarding a lack of accommodation arranged upon your release.
40. Your counsel submitted that I should consider a disposition which involved a term of imprisonment, in combination with a CCO. The prosecution submitted that such a disposition was within the appropriate range, as was a term of imprisonment with a non-parole period. At one point your counsel hinted at the plea that the duration of the term of imprisonment could be as little as time served, which in round figures is six months.
41. I accept that a CCO involves a punitive component, and notwithstanding this, in my view a minimum term of imprisonment of some duration, considerably more than time served, is the only appropriate sentence for you for this offending, to satisfy all the relevant sentencing considerations, such as general and specific deterrence, just punishment and denunciation.
42. Further, after anxious consideration, I have determined that for offending of this gravity by someone with your criminal history and your uncertain psychiatric state and rehabilitation prospects, the appropriate disposition is one of a term of imprisonment with a non-parole period.
43. In reaching that view, one of the matters I have had regard to is what was said in the guideline judgment in Boulton, particularly at paragraphs [196] to [200]. Having recognised the difficulties which the court may have in assessing the suitability of a CCO, where the court proposes to impose a term of imprisonment of 12 months or more, the court noted the following:
In some circumstances, it will be more beneficial to fix a non-parole period than to attach a CCO. The Adult Parole Board would then be able to assess, as the expiry of the non-parole period approaches, the offender's rehabilitative prospects, having regard to how he or she has fared in custody and will be able to tailor parole conditions to the offender's needs as they then appear to be.[2]
[2] Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 at [198]
44. I have, however, moderated each component of the sentence to take into account the matters in mitigation, to which I have already referred.
‘Renzella’ Pre-Sentence Detention
45. I will come to declare pre-sentence detention in a moment. That
pre-sentence detention commences from 28 December 2015, when you were remanded on this matter. However, you were in fact in custody for ten days prior to this on an unrelated matter from 18 December 2015. This cannot form part of the pre-sentence declaration, but I am required to take that into account in a general Renzella way, which I do, even though it is a very short period.
Sentence
46. Mr Ahern, would you please stand.
47. On Charge 1, Armed Robbery, you are convicted and sentenced to three years' imprisonment.
48. On Summary Charge 4, committing an indictable offence whilst on bail, you are convicted and sentenced to one months’ imprisonment. I direct that this be served concurrently with the sentence imposed on
Charge 1.
49. On Summary Charges 5 and 6, driving whilst disqualified and driving an unregistered vehicle, you are convicted on both and sentenced to an aggregate fine of $1,000.00.
50. This result on a total effective sentence of three years' imprisonment.
I direct that you must serve 21 months' imprisonment before becoming eligible for parole. Can I just check the PSD?
51. MR GIBSON: One hundred and seventy-six days, Your Honour.
52. HIS HONOUR: Sorry?
53. MR GIBSON: One seventy-six.
54. HIS HONOUR: That is up to but not including today?
55. MR GIBSON: Not including today's date.
Pre-Sentence Detention
56. I declare that you have served 176 days pre-trial detention, not including today. In fact, did I hear that correctly?
57. MR GIBSON: Yes. Yes, Your Honour.
58. HIS HONOUR: It is not including today.
Ancillary Orders
59. Through your counsel, you did not oppose the making of a disposal order regarding the knife and clothing used during the armed robbery. I will make the order as per the order handed up at the plea.
60. You have also not opposed the making of a compensation order in the sum of $960, pursuant to s.86 of the Sentencing Act1991. I will also make that order.
6AAA
61. Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), I indicate that had you not pleaded guilty, I would have sentenced you to four years' and six months' imprisonment, with a non-parole period of three years'.
62. Is there anything else, Counsel?
63. COUNSEL: No, Your Honour.
64. HIS HONOUR: Yes, if you could take the prisoner away please.
65. Thank you. Yes, sine die.
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