Director of Public Prosecutions v Cleaver

[2019] VCC 538

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00252

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN CLEAVER

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2018
DATE OF SENTENCE:	27 March 2019
CASE MAY BE CITED AS:	DPP v Cleaver
MEDIUM NEUTRAL CITATION:	[2019] VCC 538

REASONS FOR SENTENCE
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Subject: Armed robbery
Sentence: 4 years and 10 months' imprisonment; 3 years and 2 months non-parole

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For the Accused	Mr J. Lavery

1HIS HONOUR:  Benjamin Cleaver, you have pleaded guilty to one charge of theft of a motor vehicle for which the maximum penalty is 10 years imprisonment, and one charge of retention of stolen goods, namely a car key, for which the maximum penalty is 15 years imprisonment, and one charge of armed robbery, for which the maximum penalty is imprisonment for 25 years.

2The circumstances of your offending are summarised in the prosecution opening for trial.  I marked this as Exhibit A on the plea.  You pleaded guilty to the first two charges on indictment H10721472 pre-empanelment of a jury, and not guilty to the charge of armed robbery.  The trial was stood down for discussions, and you then indicated that you would plead guilty to the armed robbery charge.  Your pleas of guilty to the charges follow a short contested committal and after the charge of armed robbery was listed before me for trial. 

3The prosecution case against you was that you and four other offenders carried out an armed robbery on the Michael Hill Jewellery Store at the Westfield Shopping Centre on 14 March 2017.  One of the co-offenders was Jake Cavalieri.  His role was to drive you and the other four co-offenders to and from the scene of the crime.  He also purchased the weapons that were used, namely mallet hammers.  He has pleaded guilty to his crimes and has been sentenced by another judge of this court.  I will have more to say about that later.

4The BMW car that you and the others travelled in to and from the armed robbery was previously stolen.  It is a subject of Charge 1.  When you were arrested a plastic black valet key for the same BMW was found in your possession.  It is the subject of Charge 2. 

5Cavalieri dropped off you and another co-offender Riley Battams, and two other unknown co-offenders, at the shopping centre where the armed robbery occurred.  He waited outside for you and your co-offenders to return.

6Wearing dark clothing and hoodies covering your faces, you and your three other co-offenders ran to the Michael Hill Jewellers.  Three of you were carrying hammers.  You stormed into the store and the offenders with hammers started smashing the display cabinets and stealing the jewellery within them.  The whole incident is said to have lasted some 30 seconds after which you and your co-offenders decamped and ran to the waiting car, driven by Cavalieri.  The stock value of the jewellery stolen was $57,000 and $10,000 damage was caused by the offending. 

7Battams pleaded guilty and was dealt with in the Children's Court. 

8Cavalieri also pleaded guilty to charges related to these matters including armed robbery and theft.  He also pleaded guilty to some drug offences.  He received a total effective sentence of four years and two months' imprisonment with a non-parole period fixed of two and a half years.

9Your counsel Mr Terry appropriately conceded that there were distinguishing factors between you and Cavalieri which would mean that you must receive a longer sentence.  Those factors include your age, you are older than he and your prior criminal history is more extensive.  You are 29 and Cavalieri 26.  You admitted prior convictions from 11 previous court appearances between 2009 and 2017.  Your prior offending is mostly drug related with prior convictions for burglary and theft and going equipped to steal, and possessing a prohibited weapon and criminal damage.  Prior to this offending you had not previously been in adult custody.

10Cavalieri on the other hand also has prior convictions for drug-related offending but from three previous court appearances, two of which were in the Children's Court and he has had one previous appearance in the Magistrates' Court in 2016.  He was subject to a community corrections order at the time of offending. 

11Further, although he acted as the getaway driver and he was the one who purchased the hammers that were used as weapons, he waited outside and was not part of the confrontation that was the armed robbery.  Cavalieri cooperated with the police and made full admissions at an early time.  You did not do that.  When interviewed you denied any involvement and you made a number of false denials and attempted a false alibi.  That too is an important distinguishing factor.  As I said you pleaded guilty virtually at trial. 

12Mr Terry, again submitted appropriately that I must have regard to the sentence imposed on Cavalieri in arriving at an appropriate sentence so that you do not have a sense of grievance as a result of any differentiation in the sentence I impose on you from that imposed upon Cavalieri.  In passing sentence, I have had full regard to these matters.  Indeed, I am somewhat constrained by the sentence imposed on Cavalieri.  This was very serious offending.  In my view the sentence imposed upon Cavalieri can be considered light in all the circumstances.  This is especially so as he conceived the plan to carry out the armed robbery and purchased the hammers used.  He was motivated to repay a drug debt of some $50,000. 

13Your defence was that the prosecution could not prove beyond reasonable doubt that you were one of the co-offenders.  However, evidence gathered soon after the armed robbery link you to these crimes.  DNA was found on an empty beer bottle found in the abandoned getaway car.  There was extremely strong support that this was your DNA.  Your fingerprints were found in the vehicle.  The plastic valet key the subject of Charge 2 was found in your possession.  This could start the getaway vehicle.  DNA evidence was also found on a hammer left at the crime scene and there was strong evidence this was your DNA.  There was also other evidence linking you to the getaway car and to the co-offenders.  In other words, it was a reasonably strong circumstantial case that you faced.  I was told by Mr Terry your guilty plea followed the provision by the prosecution of clearer CCTV footage taken from within the store that showed an offender wearing shoes later found to be in your possession.  When that was made available you pleaded guilty.

14When the armed robbery took place there were customers as well as staff in the store.  One of the customers was holding a young child.  The method of carrying out the robbery, in company of three others, and in circumstances where customers would have been terrorised by the noise, and level of violence imparted to smash the counters and grab the contents means, in my judgment this offending was a very serious example of the offence of armed robbery.  As I said, there were a number of offenders.  The robbery was planned and targeted.  The identity of the offenders hidden by use of hoodies.  There were customers and staff in the store, the robbery taking place as it did in broad daylight in a busy shopping centre. 

15Although your plea of guilty to the charges was made relatively late in the process, by pleading guilty to all of the charges you are nonetheless entitled to a reduction in sentence.  By pleading guilty you have now admitted responsibility for your offending and you have advanced the administration of justice.  You have saved the time and costs of a trial and, importantly, you have saved the victims of your armed robbery from having to be called to give evidence against you. 

16I admitted into evidence victim impact statements from two members of the staff of the jewellery store robbed by you.  In those statements the effects that offending of this kind can have on people in the position they occupied are there to be seen.  They have both suffered a nervous and psychological reaction to this offending which has lasted considerable time and persists.  In passing sentence, I have taken the victim impact statements into account as I must. 

17Mr Terry filed with the court a helpful outline of submissions which I marked as Exhibit 1.  Mr Terry also relied upon a psychological report from Jeffrey Cummins dated 31 January 2019 which I marked as Exhibit 2.  Mr Terry did not rely upon any Verdins principles but relied upon the Cummins report as a record of biographical information relating to you and the fact that you told Mr Cummins of your regret and remorse at having been involved in this offending.  I accept you are now remorseful for your conduct and from what you said to Mr Cummins, you have insight into your conduct. 

18You were a long term drug user and this has impacted your life particularly since 2011.  I was told by Mr Terry and accept that in the days leading up to the offending you were using and abusing methylamphetamine or Ice.  You readily signed up to the plan to commit these offences and played an active role in it.  You were remanded on these matters on 17 July 2017 and you have now served 569 days' pre-sentence detention.  I was told and accept that in a prison setting you are now clear of drugs.  You have had six clear urine screens.  You have been housed mostly at Port Phillip Prison where you are a leading hand in the bakery.  There have been no disciplinary issues related to you in prison.  You have completed a hospitality course but because you were on remand you have had difficulty getting into other courses.

19I turn to some matters of background.  You are the oldest of six children.  Your parents separated when you were aged 5.  You recall domestic violence at the hands of your father to be a feature of life in your home from a young age.  You maintain a relationship with your father but you are not close.  Your mother re-partnered and you were close with her new partner but he suicided in 2007.  You suffered emotionally following this event.  You maintain a good relationship with your siblings which includes a half-brother. 

20You were educated in Eltham leaving school during year 10 and commenced a bricklaying apprenticeship.  You worked well until age 25 when you partnered and the relationship produced twins.  You sought and obtained employment in concreting to earn more money to support your partner and twin children.  You maintained this employment up until about six months before the offending and you earned good money.  You and your partner and your children lived with your partner's mother and you were a hands on parent. 

21I was told and accept that between 2014 and 2017 you managed to rid yourself of drugs and you cared for your family.  However, your relationship broke down doubtless because of pressures of the need to work and you could not cope.  In late 2016 you recommenced using drugs. 

22In December 2016 you were injured in a serious motor vehicle accident.  You suffered from a fractured back and ribs.  You were hospitalised for two weeks but could not return to bricklaying or concreting work.  In early 2017 your partner left you, but you still enjoy a good relationship with her and she ensures you have good contact with the children now aged 5 by telephone.  They have not visited you in prison but you may see them if sent to a lower security prison after sentence. 

23Mr Terry submitted you have reasonably good prospects for rehabilitation provided you stay off drugs.  You have a good work history.  You have good family support.  You have previously completed two community corrections orders.  Whilst I accept that there is evidence that suggest your prospects are reasonable I am of the view your prospects for rehabilitation are guarded.  The doubt I have is you are a long term drug user and you have previously been given non-custodial dispositions but you re-offended.  It remains to be seen if you can remain drug free outside a prison setting.  I hope you can as you are still relatively young and you can still make something of your life.  Whether or not you do so is entirely up to you.   

24In sentencing for crimes of this kind the sentence I impose must properly reflect deterrence both general and specific and the sentence must appropriately denounce your offending.  It must also impose just punishment. 

25On Charge 1 theft of the BMW vehicle you are convicted and sentenced to imprisonment for a period of eight months. 

26On Charge 2 retention of stolen goods being the plastic valet key you are convicted and sentenced to imprisonment for a period of 14 days. 

27On Charge 3 armed robbery you are convicted and sentenced to be imprisoned for a period of four and a half years. 

28I direct that four months of the sentence imposed on Charge 1 cumulate upon the sentence imposed on Charge 3 making a total effective sentence of four years and ten months. 

29I direct that you serve a minimum period of three years and two months before being eligible for release on parole.

30Pursuant to s.6AAA I state that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of six and a half years' imprisonment with a non-parole period of four years and nine months. 

31I declare that there has been 569 days' pre-sentence detention under the sentences passed this day and I direct that 569 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively. 

32I have been asked to sign forfeiture orders which were not opposed and I will do so. 

33Are there any questions arising out of that?

34MR DEVLIN:  No, Your Honour.

35MR FLICKER:  No, Your Honour.

36HIS HONOUR:  Yes.  Thank you.  Would you take Mr Cleaver back into custody, please?  Adjourn the court until 10.30, please.

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