Director of Public Prosecutions v Compt
[2012] VCC 1255
•7 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01003
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLAN JAMES AARON COMPT |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2012 | |
DATE OF SENTENCE: | 7 September 2012 | |
CASE MAY BE CITED AS: | DPP v Compt | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1255 | |
REASONS FOR SENTENCE
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Catchwords: Attempted Armed Robbery – Youthful Offender serving a Youth Supervision Order imposed in the month preceding the offence
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Bhai (Ms N. Todorov appeared for sentence) | Office of Public Prosecutions |
| For the Accused | Mr P. Tiwana | Dribben & Brown Criminal Law |
HER HONOUR:
Introduction
1 Mr Compt, you have pleaded guilty to one charge of attempted armed robbery on 12 December 2011, the maximum penalty for which is 20 years’ imprisonment.
Antecedents
2 You have admitted prior appearances in the Children’s Court involving dishonesty offences, offences against the person, possession of cannabis and property damage offences. As recently as November 2011, you appeared and were released on a Youth Supervision Order for a period of 12 months in respect to intentionally damaging property, assault police, resist police, use threatening words in public and possession of cannabis charges.
3 At 18 years of age, for the purpose of sentencing, you are a young offender. However, based on your earlier and, as to part, relevant history, this current offence represents an escalation in the seriousness of your offending, although your young age does emphasise rehabilitation as a sentencing consideration.
The circumstances of the offending
4 The prosecution’s opening was read into transcript and it was tendered as a statement of agreed facts. I have read the depositional material, which included the record of interview and witness statements, and I will not repeat all the matters outlined in the prosecution’s summary.
5 Having first attempted to disguise yourself by pulling the hood of your jumper over your head and by wearing a scarf covering the lower part of your face, at about 9:00 pm on 12 December 2011 you entered a milk bar in Cranbourne. You were carrying a knife.
6 You ran towards the counter with the knife held out in front and demanded that the owner who was attending the store at the time, Lei Dong, aged 36, open the till and give you the money.
7 When you arrived at the counter, you apparently waved the knife and leant over the counter and pressed the buttons on the till. However, after Mr Dong responded by picking up a wooden stick and instructing you to “stop”, you turned around and ran out of the store. Your response to his challenge and Mr Dong’s later recollection that at the time your voice sounded “a bit shaking” indicates that you probably were, as you later claimed, nervous during the commission of this offence.
8 In any event, you were seen to run past the car park next to the milk bar and enter a car which was not carrying licence plates or operating its lights. The vehicle was driven off by an accomplice. I was told that neither the driver nor the vehicle have been identified.
9 CCTV footage showed you placing your left hand on the inside of the glass door as you left the store. And the latent palm print left on the door subsequently connected you to this offence.
10 On 19 March 2012, police executed a search warrant at your Cranbourne home where they found the hooded jumper, pants and shoes worn at the time of the offending.
11 You were arrested on 20 March 2012 and taken to Dandenong Police Station where you exercised your right not to comment in response to police questioning. You were released on bail.
12 Subsequently, on 30 March 2012, you were stopped by police and your car searched. Cannabis was found and you were arrested and remanded in custody on the drug offence.
13 I was told that on 4 April 2012, whilst on remand, an incident occurred in the police cells which led to you being charged with assault police and acting to the prejudice of the management of the gaol.
14 On 26 April 2012, you pleaded guilty and you were convicted on these and two other charges arising from the possession and use of cannabis. On this occasion the Magistrate ordered that the 27 days already spent in custody be reckoned as a period of imprisonment already served and you were released on Supervised Bail. Among other things, this required that you attend appointments arranged by Youth Justice and comply with lawful directions of Youth Justice Officers.
15 According to your counsel, by your account this first period of detention in adult custody was frightening, and in the months preceding the plea hearing this experience was one of a number of factors which contributed to a marked improvement in your behaviour and motivation to reform.
16 I was told that you pleaded guilty to the current offence at a committal mention on 18 June 2012 and that the matter proceeded by way of straight hand up brief.
17 The prosecution has acknowledged that your plea of guilty was entered at the first reasonable opportunity, and as such you are entitled to a substantial sentencing discount because you have spared the victims and the witnesses the inconvenience of a contested trial and you have saved the community the not insignificant cost of a contested trial.
18 I assessed the seriousness of this attempted armed robbery as being at the lower end of the scale of for this type of offending. In doing so, I allowed for:
· the evidence of some level of planning and method in that you disguised yourself and arranged for an accomplice to aid your escape in a vehicle that was clearly being driven so as to avoid detection;
· I also took into account the evidence relating to the manner in which the knife was employed, which no doubt was intended to instil a greater level of fear;
· I took into account the selection of a vulnerable target, namely a milk bar operating during the evening with a lone owner in attendance;
· I also took into account the fact this offence was committed within weeks of your last appearance before the Children’s Court and during the operational period of a Supervision Order.
19 This was not, however, a sophisticated or well-considered attempt to obtain cash.
20 Whilst your recollection of the circumstances of this offence was poor, your explanation of this offence was that you were under the influence of LSD, a drug you said you had only ever previously used once. The effects of the drug and your need for money because your apprenticeship wages did not adequately cover your living expenses you said left you susceptible to the urgings of your accomplice to commit this offence.
Impact on the victims
21 No victim impact statement was submitted. However, for the purpose of sentencing I have allowed for the fact that Mr Dong likely found this a frightening experience. I have also allowed for his wife’s statement to police. She said that at the time she was caring for their baby in a back room and after hearing a male scream, she observed the attempted robbery on the CCTV footage screen. In all the circumstances, I expect this also represented an extremely unsettling experience for her.
Personal Circumstances
22 Your personal circumstances were summarised by your counsel and addressed in the material tendered. The latter included a report from psychologist, Ms Matthews, a report from Department of Human Services youth worker, Warren Gardiner and written references from your mother, Doreen Compt and your current girlfriend, Brianna Gleeson. Mr Gardiner’s further pre-sentence report in which he assessed you as suitable for a Youth Justice Centre Order and the pre-sentence report from Corrections assessing you as suitable to undergo a Community Correction Order also provide material updating matters relating to your current circumstances.
23 I was told that you were born in Doveton and that from age nine you have resided with your mother and siblings in Cranbourne. You are the second of your mother’s four sons.
24 You describe dysfunctional, unsettled and difficult formative years, with estrangement at an early age from your biological father and no long-term relationship with your stepfather, who is also separated from your mother.
25 However, throughout your life your mother, who attended Court and, as I said, provided a reference, and your siblings have provided positive and supportive relationships in your domestic environment. In other words, I have taken into account the fact that you have a positive domestic environment with your mother and your siblings, notwithstanding the absence of any male role models. Currently, you also enjoy the support of Ms Gleeson, with whom over the last five years you have had an on and off again relationship. At 19 she had a nine to ten month old child to someone else. However, I was told that you are together again in a positive relationship, where you prefer to spend your free time with Ms Gleeson and her daughter, rather than negative peers.
26 There were numerous changes in the schools attended by you, without you having shown any academic inclination. Ms Matthews assessed you to be of average intelligence.
27 You report behavioural problems from about age 13 after being assaulted by a gang of youths, who were never charged. You also report significant and long-term cannabis abuse commencing from about aged 14 and social binge drinking. Other than using LSD twice, you also report a history of using amphetamines and ice.
28 Allowing for the various reports made and despite Ms Gleeson’s stated belief that you are drug-free, I was satisfied that in the months during which you have been on supervised bail, save for a reduction in this use, you have continued to use cannabis, although in saying that now I take into account the drug screens that would indicate that you have been clean, at least when you were tested on 11 and 22 August. Otherwise, you probably have been, as claimed, abstinent from illicit drugs. In other words, I accept that you probably have been abstinent from other drugs, save for some use of cannabis. I have also accepted that you have restricted but not discontinued your use of alcohol.
29 Despite leaving school at age 14, you have a relatively solid work history, with a demonstrated capacity to obtain mostly unskilled jobs. For instance, for two and a half years from late 2009 until June this year you worked as a roof-tiling apprentice and by the date of the plea hearing you were employed and apparently enjoying work as a spray painter. Whether or not the untimely termination of this employment was, as you said, due to your employer’s financial concerns, you told Mr Gardiner that in recent weeks you have secured further employment with another metal fabrication company.
30 The reports submitted by Ms Matthews and Mr Gardiner suggest that your offending is probably a product of a combination of factors: your immaturity, ongoing symptoms of anger, drug abuse as a means of emotional distancing, poor peer relationships, an untreated speech impediment which Ms Matthews felt had adversely impacted your self-esteem and the absence of significant male attachment figures during your development years.
31 Ms Matthews advocates rehabilitative steps that focus on mood identification and management, substance use, strategies to deal with peer pressure, speech therapy and self-esteem building and on supports to develop relationships with appropriate role models.
32 Your plea of guilty is an indicator of a level of remorse, although the depth of your understanding of the causes of your behaviour remains problematic. For instance, Ms Matthews felt that you had shown reasonable awareness that low income and poor peer relationships were contributing to your offending, yet poor awareness of the role substance abuse had in mediating your emotional state and criminal behaviours and poor awareness of the fact that there were healthier means of managing your moods.
33 Nevertheless, allowing for particularly Mr Gardiner’s reports, I have accepted that since being released on Supervised Bail you probably have made a measurable shift toward maturation, namely by showing some insight and some understanding that you must chose a stable and productive life if you are to avoid engagement with particularly the adult criminal justice system.
34 Your history and the challenges you face in maintaining ongoing change do, however, suggest that your prospects of rehabilitation must be approached with some caution.
Sentencing Principles
35 Superior Courts have repeatedly stressed the importance of general deterrence and the protection of the community as sentencing considerations where the offending involves even an attempted armed robbery. In the sentencing hierarchy the offence carries a very high penalty because it typically involves frightening confrontation of victims whilst armed. Moreover, this type of offending leaves the rest of the community with an understandable sense of threat to their personal safety.
36 Subject to the relevant mitigatory matters the sentence imposed today must send a strong message that attempting to rob soft targets such as a milk bar at night will be met with real punishment.
37 During the plea hearing, I rejected your counsel’s suggestion that the current regime for Community Correction Orders is to be viewed as in some way having subsumed the earlier Intensive Correction Order regime under which the court first determined whether the offending warranted the imposition of a term of imprisonment and, if it did, in an appropriate case ordered that this be served as an Intensive Correction Order.
38 Currently, if the offending warrants the imposition of a term of imprisonment and, where this is not precluded by the Sentencing Act 1991, unless the court considers it desirable to wholly or partially suspend this term, it must be served. If the term of imprisonment does not exceed three months there is also scope to impose a term of imprisonment and, on release, a Community Correction Order. The term of imprisonment in that case would be in adult custody.
39 Relying in the main on your youth and the reported improvement in your behaviour and circumstances in the months since being placed on supervised bail in April 2012, you sought an opportunity to undergo a Community Corrections Order. Alternatively, if I acceded to the prosecution’s submission that a sentence involving confinement not exceeding three years was called for, your counsel urged that this be served in a Youth Justice Centre.
40 As you know, the pre-sentence reports ordered by me today have indicated that you are suitable either for detention in a Youth Justice Centre or to undergo a Community Correction Order.
41 As the prosecution correctly submitted, the focus of detention in Youth Justice Centre is on rehabilitating youth who due to their offending history and the threat their behaviour poses to the community must face a period of confinement. Your engagement with the youth justice system so far with numerous periods of probation or supervision, the objective seriousness of the attempt and, in my view, your move to more serious offending very shortly after attaining the age of 18 indicates that, in this instance, a sentence involving confinement is justified. However, the measurable gains made so far and your youth call for a sentence that helps promote rehabilitation and avoids adult incarceration.
42 I am satisfied that you present with reasonable prospects of rehabilitation and that your immaturity renders you susceptible to undesirable influences should you be sent to adult custody. In these circumstances detention in a Youth Justice Centre is preferable to adult custody.
Sentence
43 Please stand, Mr Compt.
44 On one charge of attempted armed robbery, you are convicted and sentenced to be detained for 18 months’ in a Youth Justice Centre.
45 The total effective sentence is 18 months’ detention and the sentence starts today.
46 I understand that there is no pre-sentence detention pursuant to s.35 of the Sentencing Act 1991.
47 Pursuant to s.6AAA of the Sentencing Act I indicate that but for your plea of guilty a sentence of two years and two months' imprisonment with a non-parole period of 17 months would have been imposed.
48 At the plea hearing, pursuant to s.464ZF(2) of the Crimes Act 1958, the prosecution sought an order for the taking of a forensic sample. I have acceded to that order and, in doing so, I have taken into account the seriousness of the circumstances of the offending, your prior appearances, the fact that the application was not opposed and the interest the public has in obtaining such a sample, and I will sign that order. Counsel, where do you say he should attend for this?
49 MR TIWANA: He is in custody.
50 HER HONOUR: Yes, I know, I just realised. What orders do you have for me to sign?
51 MS TODOROV: Your Honour, I have assumed that both types of orders have been tendered to Your Honour's associate. If that's not the case, perhaps I can undertake to email the right orders to her upon returning to the office.
52 HER HONOUR: I think you will need to, because the order I have got here talks about where he is to attend, and of course he is in custody.
53 MS TODOROV: If Your Honour accedes to that course, I will be happy to do so.
54 HER HONOUR: I had not noticed that. The other order that was sought was a disposal order, which I will move to sign now and get that off the plate.
55 I need to caution you though in relation to the taking of a sample offence that the police may use reasonable force to enable this procedure to be conducted. I do not expect that will be a problem, Mr Compt, in your case. You clearly understand what you have to do. I will sign that other order when it is made available.
56 MR TIWANA: Your Honour, it doesn’t look anyone is here from Youth Justice. I don't know whether Mr Gardiner was - - -
57 HER HONOUR: He rang my associate yesterday and said he was hoping someone would get here.
58 MR TIWANA: Yes, because as I understand it, he will be driven to the detention facility.
59 HER HONOUR: By the Youth Justice officer?
60 MR TIWANA: Yes, that's the normal procedure.
61
HER HONOUR: The only thing I can ask at the moment is that he be
kept - - -
62 MR TIWANA: Yes, he will be kept downstairs for now.
63 HER HONOUR: Yes, and in a perfect world that would have happened straight away. I am sorry, Mr Compt, but it seems as though we need to make sure that Mr Gardiner - - -
64 MR TIWANA: As long as they're aware, that's fine, Your Honour. Thank you.
65 HER HONOUR: Yes. As I said, he spoke to my associate yesterday and spoke of somebody else getting here because he was otherwise caught up. We can probably give him a call, and my associate will do that when I rise. I think that is the best I can do.
66 MR TIWANA: Yes.
67 HER HONOUR: At the moment, Mr Compt, you will be taken away and held until Mr Gardiner or somebody from Youth Detention comes to collect you. You do understand that the Youth Parole Board will be looking at your situation immediately and making a decision about your detention and so forth. All of those matters are in their hands as of now. Could you please remove Mr Compt.
68 MR TIWANA: Your Honour, may I just have a very quick word with him, just very briefly?
69 HER HONOUR: Yes, please do.
70 MR TIWANA: Thank you.
71 HER HONOUR: Are there any further matters I need to deal with?
72 MR TIWANA: No, thank you, Your Honour.
73 MS TODOROV: Nothing further, Your Honour.
74 HER HONOUR: Thank you for your assistance.
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