Director of Public Prosecutions v Costello

[2019] VCC 540

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01199

DIRECTOR OF PUBLIC PROSECUTIONS

v

BENJAMIN COSTELLO

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATES OF HEARING:	12 December 2018, 23 January 2019, 12 February 2019, 19 February 2019
DATE OF SENTENCE:	12 April 2019
CASE MAY BE CITED AS:	DPP v Costello
MEDIUM NEUTRAL CITATION:	[2019] VCC 540

REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – common assault – armed robbery – theft – combination sentence imposed.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V. Toong	John Cain, Solicitor for Public Prosecutions
For the Accused	Mr N. Goodfellow	Leanne Warren & Associates

HER HONOUR:

1Mr Costello, you have pleaded guilty before me to one charge of common assault, one charge of armed robbery, and one charge of theft.  The charges arise out of events that occurred on 24 September 2016. 

2Each of the charges is serious, and that is reflected in the maximum penalty that Parliament prescribes and they are as follows.

3Common assault, five years' imprisonment; theft, ten years' imprisonment; and armed robbery, 25 years' imprisonment.  I will now sentence you on the basis of the summary of the prosecution opening that was read at the plea hearing and is marked as an exhibit.

4You were aged 27 at the time of these offences, and you are now aged 30.  There were four victims to the armed robbery; Troy West, Oliver Haye, both of whom were then aged 19, Ethan Baker aged 18, and Tanya Christie, the owner of a black 2006 Volkswagen Passat, that is the subject of the charge relating to the armed robbery.

5Briefly, the circumstances of the offending were that on the morning of
24 September 2016, your co-accused Brenton Matthews drove to 13 Redan Street North Bendigo with his then partner, Blaine Devisser, and her two-year-old daughter.  Matthews was driving a hire vehicle, a Toyota Corolla.  He parked in the driveway of 13 Redan Street, and met with you, and your then-partner, Melissa McGowlie, and another female occupant of the premises in the front yard.

6At about the same time, Haye, West, and Baker arrived in a black Volkswagen Passat station wagon, that was registered and owned by Tanya Christie, who was the mother of Troy West.  They arrived at No.8 Redan Street.  West parked his vehicle in the driveway, then left the vehicle and went inside the house with the intention of purchasing a stick of cannabis.  Baker remained seated in the front seat, with West seated in the driver's seat. 

7You saw the black Volkswagen Passat station wagon parked in the driveway, and that was about 20 metres from where you were standing.

8You walked towards the car, and as you did so, you picked up a tree branch that was about one metre in length.  You approached the driver's door and struck it with the branch.  West wound down the window of the driver's side door and asked you what you wanted.  You asked him for some drugs, he told you that he did not have any, and asked you to leave him alone.  You then reached inside the window and removed the keys from the ignition.  He struggled with you, and the keys dropped between the seat and the driver's side door.

9You then punched West to the head, opened the car door, and wedged the tree branch into the door, preventing it from closing.  The keys fell outside onto the ground.  You then collected those keys from the ground.  West managed to shut and lock the driver's side door. 

10Haye heard a commotion coming from outside whilst he was inside No.9 Redan Street.  He walked outside and asked you what you were doing.  You were holding the tree branch above your head; he backed away from you, fearing that you were going to strike him.

11Matthews then walked over from 13 Redan Street, jumped the fence into the front yard and approached Haye.  Haye retreated back inside No.9, Redan Street with you following.  As Matthews approached the front door, he picked up a golf club from the ground in the front yard.  You followed Haye and punched him, causing him to fall to the floor in the loungeroom.  You continued to punch and kick him, shouting, "Where's your gear?" and that constitutes Charge 1, for the common assault. He suffered injuries, namely redness, swelling, and soreness, but did not require any medical treatment as a consequence of the assault.

12You and Matthews then went back outside to the black Volkswagen.  You approached the driver's door and demanded that West get out of the vehicle.  Matthews was still armed with the golf club.  When West refused to do so, he counted down from three, before swinging the club at the driver's window, causing it to smash, and glass shattered onto West.

13The force of the swing broke the golf club in half.  You then punched West to the fact through the broken window and at the same time, West also struck him.  West and Baker fled from the vehicle via the passenger side door, and ran up Redan Street towards Hustlers Road, where they approached a stranger, and they were able to use her phone to call police.

14You got into the Volkswagen Passat and using the keys that you had already had in your possession, you reversed it out of the driveway.  That constitutes Charge 2, armed robbery.  You then swapped positions, you went around to the front passenger seat and Matthews got into the driver's seat.  Devisser and her daughter followed him in the hired silver Toyota Corolla.  Matthews drove the vehicle to a remote area between Epsom and Eaglehawk, where the vehicle was left in an area off the roadway.

15You were then driven with Devisser in the hire car to Kangaroo Flat, and later at 12.50 pm, you in company with Matthews, attended the Kangaroo Flat McDonald's, where he stole a hamburger and did not pay, and that constitutes Charge 3, theft.

16On the following day, Devisser was intercepted by police whilst driving the Toyota Corolla on the Calder Freeway near Carlsruhe, and police located several items belonging to Christie, West, and Haye inside the vehicle.  She was arrested and taken to Kyneton police station.  At the time of her arrest, police also observed the black Volkswagen Passat station wagon, which they presumed was being driven by Matthews.

17Devisser then contacted Matthews and informed him where she was being held.  He then returned in the Volkswagen Passat to Kangaroo Flat.  He left her child at his brother's address, and later surrendered himself and the stolen vehicle to the Bendigo Police station. 

18Some days following the incident, you left Victoria and went to South Australia where you were extradited from in respect to these charges, on 17 October 2016.

19A formal interview was undertaken, but you made a no comment record of interview. 

20Following the extradition a bail application was refused.  You were eventually bailed on 22 August 2017. 

21The matter then was listed for a trial at Bendigo County Court on 27 November 2017.  At that stage, the trial was not reached and was re-fixed for 24 August 2018.  Your matter subsequently resolved and you were arraigned and pleaded guilty to the charges on the indictment and admitted the prior criminal history.

22The arraignment took place on 4 September 2018.  After the arraignment, the matter was adjourned for a plea hearing. 

23The plea hearing commenced at the Bendigo Circuit of the County Court on 12 December 2018, when you were arraigned before His Honour Judge Mason.  Mr Cordy, the prosecutor, conceded that the plea of guilty in this matter from the prosecution's perspective, was of high utilitarian value.

24He indicated to the court that the estimate of the length of trial was seven days, and the prosecution had difficulties with some reluctant witnesses.  In addition to conceding that the plea had high utilitarian value, he submitted that it was indicative of some remorse, and maturity on your behalf.

25I have regard to your prior criminal history.  It spans a period from 14 August 2007 to 25 November 2015.  There are some earlier entries that are not relevant, relating to some driving offences where you were dealt with by, without conviction, adjournments, and fines.  Of some relevance on 14 May 2013, you were dealt with in respect to offences relating to violence against a person, including unlawful assault, intentionally cause injury, recklessly cause injury, fail to answer bail, drug related offences, and other driving offences, and you were convicted and placed on a community correction order for 12 months, with special conditions.

26On 18 November 2014, at the Melbourne Magistrates' Court, you were dealt with in respect to the contravention of that order, and an aggregate of three months' imprisonment was imposed, and that sentence was wholly suspended, under s.27 of the Sentencing Act 1991 with an operational period of one year. On that same date you were also dealt with in respect to contravention of some family violence intervention orders and theft, for which you received an aggregate term of imprisonment of three months, wholly suspended for 12 months. Those two sentences ran concurrently.

27Thereafter, you have had court attendances in respect to variations of orders, and conversions of fines to community work.  On 30 March 2015, you were fined in respect to a contravention of a family violence order.  On 25 November 2015, you were dealt with in respect to contravention of the suspended sentence order, and the three months' imprisonment was restored effectively from 25 November 2015.  In addition on that date, you were convicted of other charges, including contravention of family violence intervention orders, fail to answer bail, and drive whilst authorisation suspended, and were placed on a community correction order for 18 months, subject to conditions.

28You subsequently appealed those sentences, but on 7 July 2016, at Bendigo County Court, the appeals were struck out, because of your failure to appear.  On 17 October 2016, you were extradited from South Australia to Victoria.  You were then required to serve three months' imprisonment, that was restored on 25 November 2015.  In addition, a seven-day sentence was imposed on
27 January 2017, in respect to some unrelated driving offences.

29You remained on remand in respect to the indictable matters, the charges on the indictment and you were released eventually on bail on 16 August 2017,  under the Court Integrated Services Program (CISP), with treatment and referral for drug addiction and assessment for mental health. The final CISP progress report of 16 October 2017, confirmed that you had maintained regular contact, and completed the program successfully.

30You had a comprehensive alcohol and other drug assessment with the Loddon Valley ASCO COATS on 4 September 2017.  You were then referred to North District Community Health for ongoing drug counselling.  You attended and engaged in all scheduled appointments and maintained abstinence from drug use within the community.  You felt well and focussed on the future.  You were successfully working six days a week, and enjoying a routine and keeping busy, and you were spending time with your mother and siblings and feeling supported within the community.  You were taking steps to access contact with your son.

31The author of that report remarked that you appeared to take advantage of the supports available to you in the community and utilised the resources to improve your quality of life and address your support needs. 

32Subsequently, you developed a relationship and you came to live in Melbourne and I will refer to that later.

33Ms Leevold, your partner, is present in court, and has been present at various stages throughout the hearing of this matter.  Your situation has changed somewhat insofar as you were charged with some offending on 22 December 2018, in relation to matters arising out of an incident that had occurred on that day, and you were remanded in custody until 6 February 2019.  You spent a total of 46 days' in custody. Prior to your release after the charges that related to 22 December 2018, were not proceeded with.

34I note that the victim of those charges, was alleged to have been Megan Leevold.  I have had regard to the letter that Ms Leevold wrote to the court, where she confirmed that you had been in a relationship since January 2018, and that you had provided her physical, emotional, psychological, and financial support.  Hers is a complex situation, where she suffers post-traumatic stress disorder, anxiety disorder, depression, and borderline personality disorder.  Tragically, she lost both her parents to a murder-suicide, and she has had real issues coping with her situation since then.  She is on a disability pension and has had a multitude of health problems. In her letter, she supports you, and states that you have provided a positive impact upon her life.

35In addition to her letter, there is a letter from her treating doctor, Dr Katherine Winter, dated 22 November 2018, that confirms Ms Leevold's chronic multiple health issues, including significant mental health illness.  She confirms that
Ms Leevold suffers chronic pain and is under the care of the Royal Melbourne Hospital pain clinic, and she confirms - that is, the doctor confirms that you are a significant source of support to Ms Leevold and you assist her, regularly attending appointments and caring for her on a day to day basis. She confirmed that you were providing significant psychological support in assisting her recovery from her post-traumatic stress disorder.  She expressed a concern about the effect of any separation upon her and her health in the event that you were to be incarcerated. 

36The situation did change somewhat, upon you being arrested on 22 December 2018.  But it appears now that you are back living with Ms Leevold and things at this stage, are settled.

37You are no longer working.  You were working at one time with Hume Concrete Pipes and Products, as a production labourer, and from the letter that was written by the operations manager, John Harrison dated 24 September 2018, it was apparent that you were working, and you were a conscientiousness member of staff, who exhibited a good work ethic.  Mr Harrison describes you as being a person with first-rate attendance and being a valued member of the team.

38It was anticipated that you were in line to transition to a permanent position and the reference was provided in full knowledge of your circumstances.  He indicated that over the course of time since he has known you, you have always tried to improve yourself, and he is keen for you to continue your employment with Humes. 

39Unfortunately, because of your changed circumstances following your incarceration, your mental health condition deteriorated substantially.  That is now being addressed in the community through the mental health treatment plan, that is being devised by your doctor.  Currently you are not fit for paid employment.

40I have had regard to your history and background.  A report from Dr Linda Borg, neuropsychologist sets out in full the detail of your history.  I note that you have had a very difficult childhood.  Your father was a violent and abusive man, who was absent from your life, from about age five.  You were raised in Bendigo by a single mother, and you had many difficulties at school.  You left school at
Year 12.

41Notwithstanding being an early leaver, you have a good history. You worked in a bakery for about three years, and then you went through a stage of working as a recreational boxer, and then undertaking full-time boxing training.  You spent three to four years in Echuca being coached, and when your coach relocated to the Peninsula, you followed him and obtained work on the Peninsula Link in 2009 to 2010, then you returned to Bendigo.

42Sadly, you have a complex and long history of illicit drug use.  You began using cannabis at a very young age and then became a regular user of methamphetamines.  You had a relationship and there is a son. That relationship broke down some time ago, and you have not been able to establish a connection with your son.  But it is one of your desires to reconnect with your son.

43Dr Linda Borg's report sets out in detail your current situation.  Mr Goodfellow did not seek to rely upon it in relation to the Verdin's principles, but did refer the court to it, and I have had regard to its contents in relation to context and also, in relation to the provision of the background details and information.  I accept that your difficulties as a young person have had an impact upon you, and they continue to have an impact upon you.  One of the objectives of the order that I propose, imposing is to enable you to address the trauma that you have suffered in your life, as well as the mental health issues that in part, have contributed to your offending behaviours over the years.

44Your counsel, Mr Goodfellow, acknowledged the offending was serious, particularly the assault and armed robbery, and he outlined to the court the context of the offending.  My view is that it was aggressive and unnecessary behaviour and whatever motivations for your offending were, they do not in any way justify the actions that you took on that occasion.  However, I have had regard to the fact that you now accept full responsibility for your actions through your plea of guilty.

45I have had regard to the utilitarian value of the plea and I accept that in the circumstances, you have facilitated justice and I have had regard to the earlier remarks made by the prosecutor, David Cordy, in relation to the value of the plea.

46You are a person who has had a difficult background, but you do show signs of being able to address your underlying offending behaviour, and I am satisfied having read the report of Stephanie Burt, who prepared the extended pre-sentence assessment outcome report, that you are genuinely motivated to change.  The comment that she makes in regards to this is that,

"Mr Costello presented with a strong motivation to address his offending behaviour and pleaded for assistance to develop a pro-social lifestyle".

47That comment was made, even in the context of you not having been compliant with orders in the past. 

48In assessing the appropriate punishment, denunciation of your conduct is required, and on behalf of the community, I formally denounce your behaviour.  Deterrence, general and specific deterrence are both important sentencing factors, as well as the protection of the community.

49I have had regard to the fact that you have already spent time in custody in respect to this matter, and there is also the dead time that was referred to, being the 46 days from 22 December 2018 to 6 February 2019, that has been factored into the sentence.  To impose an actual further term of imprisonment would be severely counterproductive and disruptive of your situation, in particular your mental health, and in my view, would expose you to further deterioration in your condition.

50Mr Goodfellow submitted that a disposition which meant that you did not have to serve any further time in custody, such as a community correction order, with therapeutic and punitive aspects, would satisfy all the necessary sentencing principles.  Mr Maguire acknowledged the positive matters on your behalf; but he submitted that the Crown position was having regard to the seriousness of the offending, that an actual further term of imprisonment to be served is appropriate.

51I have had regard to the fact that the complainants and other witnesses in this matter have not been cross-examined, either at committal or at trial, and that is a factor in your favour. 

52I have had regard to the sentence I imposed, with respect to the co-accused, Brenton Matthews, and it was accepted by the learned prosecutor, that the parity principle does have some limited application in your case.

53I accept that the criminality exhibited by both you and the co-offender Brenton Matthews, is equal and that you both played an equal role.  Mr Matthews was dealt with on a different basis, because he was 18 at the time of the offending and had no prior criminal history.  The first two charges on your indictment are common to the matters for which Matthews faced sentence.

54The charge of theft in relation to Mr Matthews was in relation to filling up his stolen vehicle with some diesel fuel and driving off without attempting to pay.  He had an unrelated summary charge in relation to speeding.  He made full admissions, and his plea was entered at an early stage at committal mention, and so his plea also had utilitarian value, and a sentencing discount applied.

55It was acknowledged that the offending was serious, having regard to the victim impact statements that were read to the court, and for him, his youth, was a real consideration, and different principles applied.  His offending occurred in the context of a methamphetamines addiction and he had spent some time in an adult custodial setting, on remand, prior to sentence.  He was convicted and placed on a sentence of detention of two years and six months, to be served in a youth justice centre, and a total of 176 day's pre-sentence detention was declared.

56Your situation is very difficult.  You are an older, more mature person, and you had prior criminal history, that was of some relevance.  Parity is somewhat difficult, that is, applying the principles of parity is somewhat difficult in the circumstances such as this, where different dispositions apply, and different antecedents are also relevant.

57Your situation up until December 22 last year, was one of positive reformation.  You had regularised every aspect of your life and you were acting responsibly.  You were appropriately caring for Ms Leevold.  That was independently documented, and I considered that to be significant and a real indicator as to your prospects for reformation in the future.  Overall, having regard to the offending, the time that has elapsed since the offending, what has happened to you since then, the times that you have spent in custody, and your current expressed desire to live a pro-social life, I consider that the most appropriate sentence in all the circumstances is a combination sentence which in effect, has regard to the time that you have spent in custody, both in relation to
pre-sentence detention and also the dead time of 46 days' that I have earlier referred to, and a community corrections order.

58You have consented to such an order and understand the consequences of breach.  I have had regard to the guideline sentencing judgment of Bolton v R, and it is accepted that a community correction order of itself, is punishment and is capable of being a deterrent to others and does provide for specific deterrence to individuals.  I note that the court in that case, confirmed that a community correction order may be suitable even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment.

59It is important that a sentencing court does look to the future as well as to the past.  That is because it is one of real benefit, not only to you individually, but also to the community at large.  In your circumstances, I have taken a view that you are a person who is capable of redemption and you do require further active encouragement to continue your rehabilitation, so as to reduce the likelihood of reoffending in the future.  It is important to regularise your situation, so that your mental health is stabilised and that you address the traumas that have been active in your life over many years and I consider you are now at an age and stage in your life, where you are ready to embrace change.

60So I will ask that you do now stand please, Mr Costello, while I announce the formal court orders. 

61In relation to Charge 1 and 2, that is the common assault and armed robbery charges, an aggregate sentence will be imposed of
210 days', to be followed by a community corrections order of two years' and six months' duration, with special conditions of supervision, treatment and assessment for alcohol and other drugs, and mental health conditions, and also offender-behaviour programs.

62Further, there is an unpaid work component of 200 hours; the duration of the order is for two and a half years, as I have stated. There will be a condition pursuant to s.48CA of the Sentencing Act 1991 that any hours satisfactorily undertaken in respect to the treatment and rehabilitation conditions are to be counted as hours of unpaid community work.

63In relation to Charge 3, the theft charge, you will be convicted and discharged.

64I make the following declaration pursuant to s.6AAA, but for your plea of guilty, I would have imposed a term of imprisonment of three years, to serve two years. 

65I make the disposal order sought, and finally I make the order pursuant to s.464ZF(2) of the Crimes Act 1958 for the taking of a forensic sample; having regard to the seriousness of the circumstances of the offending, I consider such order as warranted. I note the order is by consent. I consider the granting of the order is in the public interest.

66What that means is that you will have to attend a police station at some stage, and they will provide you with a cotton bud to place inside your mouth, to scrape on your cheek, provided that you provide them a sample that complies with the order.  In the event that you do not comply with the request for the taking of a sample, then I have to advise you that they can use reasonable force and they can take the sample by way of blood sample.  Hopefully that will not be necessary.

67I have imposed an aggregate term of imprisonment in respect to the first two charges, as set out in the indictment, because the offending arises out of the same series of offences, and it is the same, of similar character.  What that means is that the one term of imprisonment, the two-ten days, has been imposed to reflect the criminality of both charged offences, having regard to the circumstances of the offending, that I have already described.  I think that covers everything.

68MR GOODFELLOW:  As Your Honour pleases.

69MS TOONG:  As Your Honour pleases.

70HER HONOUR:  Yes.  We will prepare that document. I have not included a judicial monitoring condition because at this stage, I consider
Mr Costello, you have demonstrated an appropriate attitude and motivation to adhering to the terms of the order.  I do recommend that if there is any difficulties with any of the conditions of the order and there is a need to seek a variation, that you consult with your lawyers about that.

71ACCUSED:  Thank you, Your Honour.

72HER HONOUR:  Be co-operative with the community corrections people, and they will give you all the necessary supports that you require.

73ACCUSED:  Okay, thank you.

74HER HONOUR:  Yes.  Hopefully, you can continue on the good progress that you were making up until December last year.

75ACCUSED:  Yeah, yeah.  Thanks very much for all your support.

76HER HONOUR:  All right.

77ACCUSED:  And helping me.

78HER HONOUR:  Good.  All right.  Well, we'll get the orders signed, the ancillary orders and we will provide them to you, Ms Toong.

79MS TOONG:  Thank you, Your Honour.

80HER HONOUR:  We have very old versions, November last year.

81MS TOONG:  Yes.

82HER HONOUR:  All right.  Thank you.  It has been a long process, but I appreciate, Mr Goodfellow, that you stayed in it, and supported your client throughout.  I think it makes a difference.  Mr Costello can be released from the dock.  You will be provided with a copy of your community corrections order, which directs you to go to the Werribee Community Corrections centre, within two working days.  Early next week.  I recommend he goes Monday.

83MR GOODFELLOW:  Yes, Your Honour.  We will have that conversation.

84HER HONOUR:  All right, thank you.  We can adjourn.

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