Director of Public Prosecutions v Condon

[2018] VCC 1955

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01084

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL CONDON

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2018; 4 September 2018
DATE OF SENTENCE:	4 September 2018
CASE MAY BE CITED AS:	DPP v Condon
MEDIUM NEUTRAL CITATION:	[2018] VCC 1955

REASONS FOR SENTENCE
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Subject:  

Catchwords:  CRIMINAL LAW- sentence- armed robbery- intentionally cause injury- theft of a motor vehicle- limited criminal history- young offender- drug dependence- ADHD diagnosis- history of family violence- early remission of stimulant use disorder- supervision- plea of guilty

Legislation Cited:
Cases Cited:

Sentence:Imprisonment for 12 months and Community Corrections Order for 2 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Tueno
For the Offender	Mr R. Backwell

1Daniel Condon, you have pleaded guilty to;

·        one charge of armed robbery,

·        one charge of intentionally cause injury, and

·        one charge of theft of a motor vehicle. 

2You have also admitted a short criminal record.

3The circumstances of your offending are detailed in the prosecution opening, which is an agreed statement of facts, and has been tendered as Exhibit A. 

4In summary, on 14 November 2017, at around 4 am, the victim, Brian Kneebone, left his apartment and took the lift to the car park basement in response to a telephone call.  He armed himself with a metal pole for protection. 

5In the car park, you approached him, holding a meat cleaver, and demanded his wallet. You head-butted him, and he tried to run away, but fell over. You grabbed him by his jumper, to pull him up.  He said his wallet was upstairs, and you walked with him to the lift.  He dropped his keys, and you picked them up. 

6On the way to his apartment, you said words to the effect, "I'll cut you if you make a noise and wake the neighbours."  At his apartment, you made him unlock and open the door and grabbed the keys.  Inside his apartment, you demanded his wallet.  You said words to the effect of, "Show me where the wallet is.  I'll cut you if I have to."  When he did not reply, you punched him to the right eye. 

7He said he would give you his wallet if you returned his keys. He gave you the wallet.  You looked inside and said, "That's not enough.  I'm going to take your car."  There was $340 in the wallet.  You took the car key from his set of keys, which you returned to him. You said if he called the police, you would come back and kill him.  You drove off in his car. 

8As a result of the assault, Mr Kneebone suffered pain and swelling to his forehead, a sore neck, and two black eyes. He reported the incident to police.  He has declined to make a victim impact statement.  

9The events in the basement were monitored by close circuit TV. Sometime in November 2017, police located Mr Kneebone's car near Napier Street, Essendon.  The car was displaying two different registration plates.  Inside the car were two other identical plates.  Your fingerprints were found on the car's rear windscreen. 

10On 6 December 2017, police telephoned you. You agreed to attend Moonee Ponds police station for interview.  You did attend the police station and were interviewed.  You were then charged and remanded in custody.  You have been in custody since 6 December 2017.

11I turn now to your personal circumstances. Your counsel, Mr Backwell, described your childhood as chaotic and traumatic. Your mother and father separated when you were about four to five years old.  Your father was a heroin addict.  As an infant, at 18 months, you had already lived in 16 different places.  For the last five years, your father has been in and out of prison and you have lost contact with him.  

12You lived in Warrnambool until you were around seven to eight years of age, before moving to Ascot Vale with your mother when she remarried.  When you were 11 or 12 years of age, you were diagnosed with ADHD.  You began using cannabis at the age of 13 and started using methamphetamine at the age of 16.  When you committed these offences at the age of 19, you were abusing drugs on a daily basis. 

13Clinical psychologist, Carla Lechner, wrote that you have a history characterised by complex developmental trauma, such as chronically low self-esteem, emotional dysregulation, hyper-vigilance, especially to confrontation, and difficulty in establishing and maintaining trusting relationships. 

14You told her that your mother and you were subject to physical, verbal and emotional abuse by your stepfather. You described your stepfather as an alcoholic. You said he would come into your room when you were asleep and scream at you, choke you against walls and throw things at you.  Each day, you would come home from school feeling sick and afraid of the arguments that might ensue that evening with him.  

15You described times when he had head-butted your mother, thrown her to the ground, and tipped tables on her. You said she was too afraid to leave, but as you got older, around the age of 15 to 16 years, you began to intervene in these confrontations, in an attempt to protect her.  When she finally left your stepfather, you described feeling annoyed that she had not done so earlier.  

16At school, you found it difficult to concentrate, and struggled with learning.  In turn, you were prescribed Ritalin and Concerta for your ADHD.  Ms Lechner stated your ADHD diagnosis means you can be impulsive and vulnerable to following the lead of others.  You were expelled from Maribyrnong Secondary College at the end of Year 8 for fighting, and you then attended Essendon Keilor Secondary College, where you were also expelled, at the start of Year 10, for the same reason.   

17When you were in high school, you worked part-time at a local butcher.  You got up at 4.30 each morning and went to work until 8.30, before going to school.  Your stepfather would take half of your wages, saying it was for food and rent.  After leaving high school, you worked at the butchery full-time for five to six months. You then went on to work as an industrial handyman for 12 months.  After this, you began working as a roof plumber. 

18Your workmates were ice users and introduced you to the drug. After you stopped working as a roof plumber, you tried to return to work as an industrial handyman, but your abuse of ice made you unreliable. To try to get off the ice, you moved back to Warrnambool, where you stayed with your grandparents and an aunt.

19You went back to school, to attempt to complete Year 10, but you fell into the wrong crowd and relapsed. To get away from them, you moved to Brisbane in 2017, to live with your uncle. You stopped using ice for about four or five months.  You had to return to Melbourne for a court matter, and relapsed again, using ice and GHB.  It is in this context that your offending occurred. 

20The circumstances of your offending suggest to me that you knew Mr Kneebone.  When I asked your counsel about the connection, he replied he was your drug dealer. At a committal hearing, the proposition was put to him, but he denied it.  He said he did not know you at all. As I say, the circumstances of your offending indicate he was known to you, but I cannot make a finding either way.  However, I am not prepared to find that yours was a random attack.

21Despite your traumatic background and history of illicit drug use, you have a very limited criminal history.

22On 24 March 2017, in Melbourne Children's Court, in respect of a charge of criminal damage, which I was told was graffiti offending, you were released on a 12-month good behaviour bond in the sum of $100. 

23You are supported in this court by family and friends. Your mother had told Ms Lechner you will always have a place to live, and she will continue to support you.  Jacqui Henderson has known you all your life. In a reference, she stated you enjoyed country life and being around animals.

24In April 2017, you worked for Ms Henderson in Carnarvon where she was training racehorses. You worked long days for a small wage. She said you were a huge help. She described you as a great kid with a good heart. She stated your offending was out of character for the boy she knows. 

25Sharon Arzanov and her family have known you for more than eight years.  Mrs Arnzanov wrote that you worked for her for years in her coffee shop and you also worked for her husband as an industrial handyman. I was told Mr Arzanov was willing to re-employ you when you are released from prison. 

26In prison, you had worked your way to a position of responsibility as a billet. During your time in remand, you spent two and a half months in lockdown, for 23 hours a day, and then on an intermediate regime, which allowed you one to two hours out of your cell daily. You have not had the opportunity to engage in any programs.  I was told you are on a waiting list for drug counselling. 

27Nevertheless, in the controlled prison environment you are in early remission of your stimulant use disorder, according to Ms Lechner's diagnosis. In Ms Lechner's opinion, imprisonment has had a salutary effect on your thinking and your motivation to stay out of trouble in the future. She stated you would benefit from drug rehabilitation counselling and trauma-focused work. She said you would also benefit from a degree of supervision and support, to assist you to engage with the appropriate professionals.

28On your behalf, Mr Backwell relied on a number on factors in mitigation of penalty, including:

(a)    Firstly, your plea of guilty. Although it was not made at an early stage, it is evidence of your acceptance of responsibility, and has facilitated the course of justice;

(b)   Secondly, your very limited prior criminal history;

(c)   Thirdly, that you fall to be sentenced as a young offender.  You were 19 at the time of your offending, and 20 now;

(d)   Fourthly, your traumatic childhood;

(e)   Fifthly, your mental health. In Ms Lechner's opinion, your ADHD contributes to an impulsivity on your part, and poorly thought out decisions;

(f)    Sixthly, that your drug use was attempted self-medication in response to distress associated with your experiences of abuse;

(g)   Seventhly, your otherwise good work history; and

(h)   Eightly, your positive response to your time in custody. I was told enforced drug abstinence has helped you reflect on the impact of your behaviour and to see your future options more clearly. 

29I accept the force of these submissions. 

30Mr Backwell submitted I should sentence you to a term of imprisonment combined with a Community Correction Order, to advance your rehabilitation, which he acknowledged will depend on you remaining abstinent from illicit drug use. 

31Ms Tueno, on behalf of the prosecution, submitted I should impose a term of imprisonment and fix a non-parole period to allow for your release on supervision.  She emphasised the significance of general deterrence and denunciation in sentencing for armed robbery.  There are many pronouncements of the Victorian Court of Appeal to that effect, and I will not repeat them. 

32To allow me to consider both sentencing options, I have had you assessed for a Community Correction Order and you have been found suitable.  The assessing officer recommended treatment and rehabilitation for your drug abuse, and also for your mental health, as well as supervision and judicial monitoring.

33Mr Condon, by the sentence I impose I must denounce your conduct.  I must punish you and deter you and others from committing crimes of the same or similar kind.  I must also look to the protection of the community and also your rehabilitation. 

34Stand, please. 

35Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, on the charges of armed robbery, intentionally cause injury, and theft, you are sentenced, in an aggregate sentence, to a term of imprisonment of 12 months, in combination with a Community Correction Order.  The Community Correction Order will be for a period of two years.  I have imposed the aggregate sentence because the offences are founded on the same facts and occurred in a single episode. 

36I note you have spent 272 days in custody, up to but not including today's date.  It is my intention that you should serve an additional six months in prison, so that you will be released on 3 March 2019, when you shall commence the Community Correction Order.  Accordingly, to give effect to my intention, I declare you have already served 183 days of the sentence that I have imposed upon you, and I direct that this be noted in the records of the court. 

37In relation to the Community Correction Order, in addition to the mandatory terms, I order you undergo assessment and treatment for drug rehabilitation, and assessment and treatment for your mental health.  I also order that you be subject to supervision and judicial monitoring of this court, which means that you will be back here on 8 July 2019, at 9.30 am, when I will review your progress on your Community Correction Order. 

38Pursuant to s.86 of the Confiscation Act, I order you pay Brian Kneebone the sum of $340. 

39Pursuant to s.464ZF of the Crimes Act, I order you undergo a forensic procedure for the taking of a scraping from your mouth until a sample of sufficient standard is obtained, for placement on the database.  I must inform you, if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, police may use reasonable force to enable that forensic procedure to be conducted.

40On the charge of theft, under s.89(4) of the Sentencing Act, I may suspend or cancel your driver's licence and disqualify you from obtaining another.  I have noted you will live with your family on release from prison, and you have an offer of work from Mr Arzanov.  In the circumstances, to assist you to advance your rehabilitation, which, in my view, will better serve the protection of the community, I will not make any order in respect of your driver's licence. 

41Pursuant to s.6AAA of the Sentencing Act, I indicate that but for your plea of guilty, you would have been sentenced to an aggregate term of imprisonment of four years three months, with a non-parole period of two years and three months. 

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