Director of Public Prosecutions v Crapper

[2020] VCC 1434

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00543

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMON CRAPPER

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2020
DATE OF SENTENCE:	16 September 2020
CASE MAY BE CITED AS:	DPP v Crapper
MEDIUM NEUTRAL CITATION:	[2020] VCC 1434

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Plea of guilty - one charge armed robbery; two charges attempted armed robbery - offences at the lower end of the spectrum – no prior criminal history – early plea – good prospects of rehabilitation – community protection best achieved by rehabilitation - impact of COVID-19 pandemic.

Legislation Cited: ss.75A and 321M Crimes Act 1958; ss. 44, 18 and 48CA Sentencing Act 1991.

Cases Cited:R v Mills [1998] 4 VR 235 ; Turney v The Queen [2020] VSCA 131.

Sentence:Aggregate sentence of 66 days imprisonment with a Community Corrections Order of 36 months. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Menon	Office of Public Prosecutions
For the Accused	Mr C. Lindsay	Ann Valos Criminal Law

HER HONOUR:

Introduction

1Damon Shane Crapper, you have pleaded guilty to one charge of armed robbery contrary to s.75A of the Crimes Act 1958 and two charges of attempted armed robbery contrary to ss.75A and 321M of the Crimes Act 1958.

Circumstances of the offending

2The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea, dated 16 July 2020; that document was marked as Exhibit A on the plea and forms part of these reasons.  I will give a brief summary of the facts here.

3You have struggled with drug and alcohol addiction for some years.  I will return to the events that preceded your admission to the Windana Clinic later in these reasons, but the brief account of your offending commences on 6 January 2020 when you voluntarily admitted yourself to the Windana Youth Community House in Dandenong to undertake residential drug treatment.  You had planned to spend at least 14 days as an in-patient there, due to be discharged on 20 January 2020.  But on 11 January 2020 you discharged yourself.  You went to a nearby shop where you purchased some alcohol; you stole a stay-sharp knife (the kind that slips into a sheath) from a supermarket.

4At around 5.30 pm on the same day Ms Maryam Bedhari had met with some friends for coffee at The Pines in Doncaster East; she went back to her car which was parked in the indoor car park next to the library.

5You went up to her, hiding your face with your jumper.  Ms Bedhari saw you take the knife out of your pocket.  It was about 15 centimetres long including the handle and the blade.

6You stood in front of Ms Bedhari holding the knife in your hand, though you did not point it at her; you did not raise your voice but spoke and said something like “give me your cash”.  Ms Bedhari told you that she was sorry but she did not have any cash with her.  She then said something like “what would you like?”. You said something like “so you don't have any cash?”.  She repeated that she did not.  You put the knife back in its sheath and back into your pocket.  You said “sorry” a few times and walked away calmly.

7Ms Bedhari drove home and called 000.  She felt shocked, scared and worried about being attacked with a knife.  This event gives rise to Charge 1 on the Indictment, attempted armed robbery.

8A short time later at about 6 pm Foji and Ethan Lim were returning to their car in the same car park.  Foji Lim is Ethan's father; Ethan was 16 at the time.  Foji Lim had parked in the underground car park at The Pines while they used the gym nearby.  As he got into their car, Foji Lim heard a voice close by saying, “Give me your money or I will stab you”.

9Mr Lim saw you standing very nearby pointing a knife at him.  He took a $50 note from his car and handed it to you.  This is the factual basis for Charge 2, armed robbery.

10After you took the money from Foji Lim you walked around to the passenger side of the car, pointed the knife at Ethan and told him to give you money too.  At this point Foji Lim, worried for his son, got out of the driver's seat and approached you, holding a gym bag.  He asked you what else you wanted and told you to leave.  This is the basis for Charge 3, attempted armed robbery.

11You then walked away towards the bus stop.  Foji Lim followed you to try to photograph you; you ran towards him and threatened to stab him.  Foji ran back towards his car. 

12When you were arrested you had two injuries; one was a self-inflicted knife wound to your right thumb that seems to have occurred during the offending, the second was a fracture of your right elbow that was the result of your being wrestled to the ground.

13You were admitted for treatment at Box Hill Hospital on 11 January 2020 and discharged, having had surgery for the laceration on the thumb, three days later on 14 January 2020.  You were in police custody while in hospital.

14After your discharge from hospital, you answered questions in an interview.

15You told Police that you had admitted yourself to the Windana Clinic for detox on a voluntary basis on 6 January 2020.  You told them that you had had an argument with your father about not being able to come home if you did not complete the full two weeks in the clinic.  You said that you had been upset that day after speaking with your dad and discharged yourself.  You told Police how you went to a nearby bottle shop, bought a cheap bottle of wine and got the knife from the supermarket.  You said that you then walked around for about an hour thinking of ways to get money to buy drugs.  You decided to go up to strangers and try to intimidate them into giving you money.  You told Police that it was not your intention to hurt anyone, you were just desperate for money and drugs.  You acknowledged that it would be terrifying for the victims to have someone come at them with a knife.  You acknowledged that the victims would “feel horrible now”.  You said that you felt bad for Mr Foji Lim because you could “see the son, the look in the son's eyes when the dad was trying to fight me”.

16You went on to tell Police that you have been using methamphetamine every day for about six years; you told them that you use about a gram and half a day.  You “swore on your life” that you would  “never stab anyone”.

17After you were interviewed, you were charged and remanded in custody.

18On 1 April 2020, you communicated your intention to plead guilty to the charges and your case was transferred to the County Court for a plea hearing.

Nature and gravity of the offending

19By its nature, armed robbery is a grave offence.  It necessarily involves putting others in fear, or at least trying to.  It carries a maximum term of imprisonment of 25 years (or 20 years for an attempt) and these penalties demonstrate how seriously these crimes are to be regarded.

20In your case, you held a knife while approaching your victims.  In your record of interview, you told police that you “wouldn't have actually attacked anyone”, however, your victims weren't to know that.

21You told Police that you committed this offending in order to buy drugs.  This was in the context of what was very likely a severe withdrawal you were experiencing as the result of your entry into the Windana Clinic.  I accept that  your offending arises out of that particular form of desperation, rather than any desire to profit or to intimidate.

22In the first attempted armed robbery you did not hold the knife to the victim and, when she told you she did not have any money with her, you apologised and walked away.  In your record of interview you tell police, “She is like, ‘Did you want anything else?’ and I'm like, ‘No, I just want money’.”

23The next event was more directed.  Your approach to Mr Foji Lim and the subsequent approach to his son Ethan was both more menacing and more successful.

24You told police in your record of interview that you are “not very good at crime”.  This is a sound assessment by you; it is also encouraging that you have that view of yourself.

25Your conduct on the day of your offences was seriously frightening for those concerned.  You appeared to grow in confidence during the course of these offences, yet I am able to categorise these offences as falling at the lower end of the spectrum:  relatively unplanned, amateurish even, unfolding over a short time, born of desperation, and to some degree ineffective.

Victim impact

26Although the victims did not make victim impact statements, in their statements to Police they expressed feelings of shock, fear and concern about being attacked with a knife and, in Mr Lim's case, his understandable concern about protecting his son from you.

27In passing sentence on you I take into account the effect on your victims, some of which is well described by you in your Police interview.  They should never have been put in this position by you.

Personal circumstances

28You are 22 years old.  You were born and raised in Greensborough.  You are one of twin boys.  Your father works in traffic management and your mother works in the home.  Although you describe your childhood as “pretty good”, you were always shy.  You went to Greenhills Primary School but found it difficult to focus and you were asked to repeat prep.  Despite your efforts, you always had poor grades; schoolwork never came easily to you.

29Later you went to Greensborough Secondary College and then transferred to St Helena Secondary College where you completed your schooling to Year 11.  Although your relationships were better at secondary school you were still a little below-average in your studies.  By the end of Year 10 you were truanting from school, smoking cannabis and drinking alcohol.  After leaving school you attended TAFE at Diamond Valley Learning Centre for two years, undertaking studies in maths, English and woodwork.

30In his report dated 18 March 2020, which is Exhibit 2 on the plea, Mr Warren Simmons notes that you were always a shy student, struggled at school with focusing and had particular difficulties in interacting with others as well as experiencing considerable anxiety.  Mr Simmons is of the opinion that this combination of features would have left you vulnerable to substance abuse.

Role and relevance of addiction

31You commenced using cannabis around the age of 15;  your use was almost daily from that time.  You went on to use “up to 40 bongs” a day but found your levels of anxiety increased while using this drug.  Before you turned 16 you commenced using amphetamines, introduced by a friend.  This became a regular habit; you took it intravenously or smoked it and you were using up to 1.5 grams per day until your recent incarceration.

32You used benzodiazepines to manage the come-down from methamphetamines, although it appears you did not use these drugs independently for individual effect.  This is relevant to an assessment of your condition on the day of your offending. 

33The history of your attempts to deal with your addictions starts at 16 when you went into a community residential drug withdrawal program with the Youth Substance Abuse Service arranged by your parents.  You then remained abstinent from methamphetamines for about one year.

34From the age of approximately 16 years it appears that you have been diagnosed with “generalised anxiety disorder with prominent panic features and obsessionality”, alcohol dependence disorder and amphetamine misuse disorder.  I refer here to the letters of Dr Wake and Dr Ben Newham, Exhibit 8 on the plea.  Your medical records show that you first came to the attention of the St Helena Medical Clinic in September 2015.  This is referring to the letter of Dr John Smith dated 8 July 2020, also on Exhibit 8.  Your father had taken you for treatment when your truancy and erratic behaviour came to his attention.  It seems that from 2015 you were, on and off, presenting for treatment at the Austin Mental Health Unit.  The medical notes of Dr Smith disclose that you had multiple presentations between 2015 and 2019 for alcohol abuse, methamphetamine abuse and for anxiety.

35Dr Smith's letter appends a report from Dr Ben Newham, psychiatric registrar, and the consultation notes of Dr Emma Jane Greenhill after a visit you made to her on 25 November 2019.  Dr Greenhill's notes record that you were, on that date, awaiting admission into a private rehabilitation facility in St Kilda.  You were diagnosed as having an anxiety disorder, alcohol dependence disorder and amphetamine dependence disorder.

36It is clear that by November 2019 both you and your family had reached a level of desperation about your ongoing drug and alcohol use.  This was the culmination of a four to five-year period in which you had been presenting at various clinics and hospitals with these problems.

37I was provided with a letter from the Windana Clinic, which details your admission to that facility in early January 2020.[1]  That letter notes that you exited the program against the advice of staff on 8 January but returned the following day on 9 January 2020, saying that you had made a mistake and you were hoping to be readmitted.  You did re-enter the program, but on Saturday, 11 January you again left the program against staff advice.

[1] This letter was formally tendered after the plea hearing and marked Exhibit 12.

38The letter notes that while in the program you engaged well with staff and with co-residents.  Your care plan while the Windana Clinic states that you were to commence on a 'Valium detox schedule'.  It appears that the benzodiazepines were prescribed to you to assist your withdrawal from alcohol and other drugs.  On the day you exited voluntarily for the second time, on Saturday, 11 January, you had been given a very substantial amount of Valium.  The report of Dr Warren Simmons observes that the combination of the benzodiazepines and the alcohol you drank when you left would have resulted in impaired mental functioning.

39While the consumption of alcohol does not mitigate your offending in and of itself, the Prosecutor conceded, and I accept, that the effect of that combination of benzodiazepines and alcohol was likely to have had an unforeseen effect on you.  This proposition is supported by the fact that, notwithstanding that you had had very significant drug and alcohol issues from the age of 16 to 21, you come before the court as a person with no prior criminal history whatsoever.

40Further, I note that the event that precipitated your departure from the Windana Clinic was apparently a very difficult conversation you had with your father before you discharged yourself.  Understandably, given the lengthy history of your addiction and what appears to be very consistent and affectionate help from your family, it appears that by the time you were struggling with continuing in the Windana program your father at least felt desperate enough about your staying in the program that he told you if you did not stay there for the full duration of two weeks you would no longer be welcome in the family home.

41In considered submissions, the Prosecutor acknowledged that it was difficult to locate the cause of this offending precisely given how closely related your mental health issues and use of illicit substances and alcohol to treat them have become.  The Prosecutor conceded, and I accept, that there could be some moderation of the role of general deterrence on the basis that the state you were in as you left the Windana Clinic and, just prior to the offences, was caused by an unfamiliar combination of benzodiazepines, alcohol and the highly emotional state you were in as the result of your conversation with your father.

42Such moderation must be tempered by the fact that the offending, although unplanned and poorly executed, was still organised and goal-directed.

Psychological evidence

43On your plea, your counsel tended a psychological report written by Mr Warren Simmons.

44The content of that report was ultimately relied upon for context and a general explanation of the forces that were operating on you at the time of your offending and no specific Verdins[2] submissions were made.  At paragraph 34 of his report, Mr Simmons noted that the prescription of benzodiazepines given to you as part of the withdrawal prescription at the Windana Clinic was most likely to prevent seizures when you were withdrawing.  Mr Simmons notes that having consumed alcohol after being given those benzodiazepines would have resulted in some impaired mental functioning such that you acted in a manner that is not typical of your previous pattern of behaviour.  The Prosecutor conceded, and I find, a reduction in moral culpability as a result of the unusual combination of benzodiazepines, alcohol and the emotional turmoil of the conversation with your father.

[2]R v Verdins (2007) 16 VR 269.

Time in custody

45After your discharge from hospital you spent 66 days in adult custody at both Port Phillip Prison and the Ravenhall Correctional Centre.  It was your first time in gaol.  Your counsel noted that you were 22 years old but look younger.  I am told, and accept, that your time in prison was extremely difficult.

Impact of COVID-19 pandemic

46Although you were released from custody just at the time when the crisis of the COVID-19 pandemic arrived in Victoria, I take into account that any further period of incarceration would likely be more onerous upon you as a result of additional restrictions in custody.

Youth

47I accept that at 22 you are still youthful and that the principles attaching to the sentencing of youthful offenders apply to you, adding particular weight to considerations of rehabilitation.[3]

[3]R v Mills [1998] 4 VR 235.

Time on bail

48You were granted bail on 20 March 2020.  You were initially on the Court Integrated Services Program; however, I understand your involvement was terminated by reason of your committal to the County Court.  On bail you were obliged to provide weekly urine screens and have done so from 6 April 2020 to 10 August 2020 and but for one screen that showed a relapse into methamphetamine use your screens have otherwise been clean.  The report from that time on CISP was favourable, describing your engagement as  positive and candid.  I am referring to Exhibit 4.

49I note that public health restrictions and the Court's role in supporting them required a longer than usual adjournment between your plea hearing and the date of sentence.  That period no doubt caused you additional strain.  In the period between two hearings I was provided with additional urine screens dated 17 August 2020, 27 August 2020, 4 September 2020 and 11 September 2020 (I am referring to Exhibit 10), all of them clean.  You continued to use your time on bail well.

50While on bail you have continued to seek treatment from professionals including Ms Howard, Mr Leveridge, your alcohol and drug counsellor, and I received an additional letter dated 14 September 2020 from Mr Leveridge.  That is Exhibit 9.  That letter notes your continued and genuine engagement with that process.  You have continued to have the support of your mother.  Her letter, Exhibit 6 on the plea, speaks eloquently of your struggle with anxiety and substance abuse and of your family's patience with you.

Police interview

51I note that on 14 January 2020 you provided an interview to police.  In it you made full admissions to the offending.  You cooperated with Police and these are important matters to be considered in your favour.

Early plea

52Your offer to plead guilty was made very early and the full sentencing discount for such a plea will be applied.  Your plea has importantly avoided the need for victims to come to court and relive their truly unpleasant experiences.

Assessment of rehabilitation prospects

53It is clear that by November 2019 your mental and physical health were in such a decline that you, with the support of your family, sought radical medical intervention to address your issues.  It is clear that you had every intention of undergoing very challenging residential treatment for your addictions.  It is clear that such a step was not taken lightly by you or by your family.  It was no doubt very difficult.  The fact that you did not complete this rehabilitation should not be seen as a failure; you were by then confronting an entrenched situation.

54When you communicated with your family that you did not feel able to continue with the program, your parents' reluctance to have you back home (understandable perhaps, given what they must have been through) was experienced by you as a rejection and you felt hopeless.

55I accept that you, with the help of your family, were engaged in a difficult,  sincere attempt to reckon with the drug use and mental health issues that were destroying your life and your health.

56It is clear from the way you describe your own actions to the police that you do not see yourself as a person who would deliberately harm others; in your interview with police you describe your conduct in a way that suggests that you are capable of feeling, and do feel, shame and remorse for what you did.

57Importantly you have used time on bail well.  You have continued to engage with treatment.  You have continued to get urine screens which, but for one, have been clear from all illicit substances.  Your conduct on bail describes a person who has some capacity to at least persist with the very difficult task of detaching yourself from seriously high levels of drug and alcohol abuse.  This, along with the continued support of your loving family, allows me to conclude that your prospects of rehabilitation are good.  That is not to say it will be easy.

Other sentencing considerations

58Despite your long-standing addiction, you come before the court as a person of good character with no prior criminal history.

59In his written submissions, Exhibit 2 on the plea, and in oral submissions Mr Menon submitted that a combination sentence pursuant to s.44 of the Sentencing Act was within range for this offending[4].  At the plea hearing Mr Menon submitted that these offences could be regarded at the lower end of the spectrum.  Moreover, in written submissions and in a more detailed way in oral submissions, Mr Menon submitted that if the court were to make findings that rehabilitation should have a primary focus in this case such a finding would not only be sound at law but would lawfully assist a conclusion that a sentence could be imposed that would not involve further immediate incarceration. 

[4] See in particular paragraph [2] of those submissions.

60I understand these submissions had not been arrived at lightly.  While I consider that there is a role for punishment, general and specific deterrence and denunciation in this case, I also find that your attempts at rehabilitation are very significant and that your prospects of that rehabilitation are good. 

Current Sentencing practices and totality

61I am obliged to have regard to current sentencing practice and I have done so in your case.  I have also had regard to the principle of totality in arriving at your sentence for these three charges.

Community protection best achieved by rehabilitation

62Ultimately, and assisted by important concessions made by counsel for the Prosecution, I conclude that community protection will be best achieved by your rehabilitation.  I also conclude that, notwithstanding the gravity of your offending, I can impose an appropriately onerous community corrections order in addition to imprisonment.

Community corrections order assessment

63After you plea hearing, you were  assessed as suitable for a Community Corrections Order.

Sentence - aggregate

64Mr Crapper, now is the usual time where I come to the disposition in the sentence and that is normally when I get you to stand and to listen to my sentence, but that does not make sense on a screen, so just stay seated and pay attention.

65I will impose an aggregate sentence in your case.  Mr Crapper, what this means is, and I am obliged to explain to you, that this is a sentence for all the offending bundled together, because it was joined up in time and place and character and it was of the same or similar seriousness.[5]  So it is one sentence for all three events put together.

[5]Turney v The Queen [2020] VSCA 131.

66I impose an aggregate sentence of 66 days imprisonment with a Community Corrections Order of 36 months. I declare that 66 days of this sentence have already been served pursuant to s.18 of the Sentencing Act.

CCO conditions

67I am now going to read you the conditions of the community corrections order, which will be for a duration of 36 months.  Once I have read through these conditions I am going to allow you an opportunity to speak to your counsel about them and I will be asking your counsel to confirm your consent.

68You will be first subject to the standard conditions of a CCO.  That means, importantly, that you must not commit any other offences that are punishable by imprisonment during the 36-month period.  Let me be clear about this:  if you do, you will be brought back to court before me and resentenced for these offences; absent very powerful reasons, you should expect that will involve your imprisonment. 

69You must report to the South Morang Community Corrections Service within two days of today by telephone.

70You are required to advise your supervisor in the Corrections office of any change of address where you are living or working and you must do so within two clear working days.

71It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Community Corrections Officer.  You are not able to leave the State of Victoria without their prior permission.  That is for the entire 36 months.

Special conditions

72Special conditions that I will attach to the order are as follows:  You will be required to complete programs to further address your drug use and alcohol use. 

73You must report for supervision with your case manage on a fortnightly basis.

74You must submit to assessment and treatment for alcohol and drug dependence. 

75I should say that the reporting condition is flexible according to what your Community Corrections Officer demands, so if that decreases over time that is all right.

76Assessment and treatment for alcohol and drug dependence. 

77Submit to mental health assessment and treatment.

78I require you to perform 75 hours of unpaid community work over the term of this order, but pursuant to s.48CA of the Sentencing Act I direct that time spent in treatment and rehabilitation programs be credited towards those hours.  So I am requiring you to do unpaid work, but if you are attending for treatment, participation in group sessions or what have you that clocks up the hours.

79I know that the Office of Corrections will work with you to preserve and continue the treating relationships you have already commenced.

80I also require you to participate in judicial monitoring.  That means you have to come back to court, probably by video for the time being, in two months to tell me how it is going.

81Before your release on bail, I think I have already declared the time served.

82Pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty I would have imposed a sentence of 18 months imprisonment with a non-parole period of 12 months.

83I make the disposal order regarding the knife as sought.

84So, counsel, now I am going to stand down briefly and allow Mr Lindsay and Mr Crapper to have a conversation about those Community Corrections Order conditions.  This comes about because the process of providing written documents for signed consent has become untenable, so it is sufficient if we have Mr Crapper's consent through you formally, Mr Lindsay, in oral form on the video hearing.

85MR LINDSAY:  Yes, Your Honour.

86HER HONOUR:  the other parties will be put in the waiting room or the lobby area of the hearing.  We will give just a few minutes, so I will say at 10 minutes past 11 o’clock we will resume.  Just a moment, I will just confirm. 

87All right, we will come back at approximately 10 minutes past 11 o’clock. So, Mr Lindsay, I just need you to go through those conditions with Mr Crapper and if he does consent we will make that order. 

88MR LINDSAY:  Yes, as Your Honour pleases.

89(Short adjournment.)

90HER HONOUR:  Yes, Mr Lindsay, have you had an opportunity to explain the terms of the order that I will make for your client?

91MR LINDSAY:  Yes, thank you, Your Honour, for that time.  I can indicate that Mr Crapper both fully understands the nature of the order and the conditions and in addition to that provides his full consent, Your Honour.

92HER HONOUR:  All right, thank you for that.  Then I think I have already said so, but I make the disposal order as sought for the knife.  Are there any other ancillary orders, Mr Menon, that I should be ‑ ‑ ‑

93MR MENON:  No, Your Honour.

94HER HONOUR:  All right.  Then all that remains is for us to fix a date for the judicial monitoring.  The date is 9 November at 2.30 pm.  So, Mr Crapper, in two months’ time you have to reappear by video before me at 2.30 pm on 9 November.  At that hearing I will learn some more about how you are going on the order and have a chat to you about it.  I am not sure what the arrangements are in terms of funding for representation, but if you are not represented I will just deal with you directly.

95So it might feel like it is over, but it is not over.  You are just starting on your order and it will not go away.  This is a really good time to grapple with this.  I will hear from Corrections and from you about how it is going in two months. 

96Counsel, is there anything else before we adjourn?

97MR LINDSAY:  Nothing further, Your Honour, other than just to indicate that I will be present for that hearing as well.

98HER HONOUR:  All right, then. 

99MR LINDSAY:  Yes, Your Honour.

100HER HONOUR:  Then if there is nothing else ‑ ‑ ‑

101MR MENON:  Nothing further, Your Honour.

102HER HONOUR:  ‑ ‑ ‑ we'll adjourn until Friday.

103MR LINDSAY:  As Your Honour pleases.

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