Director of Public Prosecutions v Cream

[2019] VCC 1494

IN THE COUNTY COURT OF VICTORIA Revised
Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02054

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW CREAM

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2019
DATE OF SENTENCE:	13 September 2019
CASE MAY BE CITED AS:	DPP v CREAM
MEDIUM NEUTRAL CITATION:	[2019] VCC 1494

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Kounnas
For the Accused	Ms E. Clark

HIS HONOUR:

1At the County Court at Melbourne on 25 July 2019, Matthew Cream, pleaded guilty to one charge on indictment number J1183049.  Charge 1 was a charge of armed robbery.  This charge has a maximum penalty of 25 years imprisonment. 

2You have admitted an extensive criminal record which I will refer to later on in these reasons for sentence.  At the date of your plea, you had been in custody on remand for this matter for a total of 378 days.  Not including today, you have been on remand for this offence for 428 days.

CIRCUMSTANCES OF YOUR OFFENDING

3The prosecutor tendered a summary of prosecution opening dated 25 January 2018.  There were amendments to paragraphs 26, 27 and 31 of that document.  It was Exhibit A on the plea.  At the time of the offending, you were 23 years old, in chronological age.  Your co-offender was 15 years of age.  On 11 July 2018, at approximately 2 am, you, Matthew Cream and your co-accused attended at the United Service Station located at 112 Main Road East in St Albans. 

4In the early hours of the morning, the doors to the premises were locked, however, access was provided by the attendant on shift, Mr M Enjamuri.  You approached the counter and produced a multi tool with a knife attachment, pointing it towards Mr Enjamuri who was standing behind the wire enclosure.  You stated 'Give me all the money' and tried to climb over the counter.  However, you were unable to do so because of the wires.  You made a further threat stating 'I will hurt you if you don't give me the money'.

5When you attempted to gain access to the wire enclosure, the co-accused threw a pair of sunglasses from a nearby display at Mr Enjamuri saying 'Just give him the money'.  In fear of being stabbed, Mr Enjamuri opened the cash register and handed approximately $1,200 in cash to you.  During this time, your co-accused was standing guard at the automatic doors, holding them open to ensure that you could not be locked inside the premises.  After the money was handed to you, both yourself and your co-offender left the premises on foot, departing in a westerly direction along Main Road East.  The victim of your crime contacted 000 and reported the incident which had been captured on CCTV.  At 2.57 am, the two of you entered a taxi at Keilor Downs Plaza and were conveyed to an address in Glenroy.  The in-cab CCTV footage captured that trip.  Police attended at the United Service Station unsuccessfully attempted to locate the two offenders.

6Later on that day, you were involved in a car collision outside 12 Fakenham Road in Ashburton.  Witnesses called 000 to report the incident and the two of you were located by attending police a short distance from the vehicle.  Members from the Metropolitan Ambulance Service attended and examined both yourself and your co-offender.  You were cleared to remain in police custody.  Your co-offender was conveyed by ambulance to the Royal Children's Hospital.  At the time of your arrest, the police seized a number of items in your possession which included:

·an orange coloured Nike bum bag;

·a pair of black and white striped Nike runners;

·a blue coloured multi tool with knife attachment; and

·a Huawei mobile phone and SIM card.

7The bum bag, shoes and the multi tool were all depicted being worn by or used by you in the United Service Station CCTV footage. 

8Examination of the phone revealed a series of text messages with “Daniiii 2”, which discussed committing an armed robbery to obtain money.  These text messages were dated 9 July 2018, which was some two days before the offending.  An Optus subscriber check revealed the phone number attached to “Daniiii 2” was registered at an address on Elgar Road, Burwood, which was the residential address of your co-accused.

9You then were conveyed to the Sunshine police station, but appeared to be severely intoxicated.  It was also believed that you may have hit your head during the course of the car collision.  Forensic medical officers advised the police to convey you to hospital for monitoring.  You remained at Sunshine Hospital under police guard until you were cleared for release on 12 July 2018.  You then took part in a record of interview with police and provided no comment responses or denials.  You confirmed your friendship with the co-accused.  You stated you have only ever been to St Albans once in around October 2017.  You denied ever having attended at the United Service Station in St Albans.

10Following your co-accused release from hospital, she was also conveyed to the Sunshine police station and took part in a record of interview.  Your co-accused did not identify you or provide your name.  She referred to you as her male friend.  She confirmed that she had been drinking alcohol and smoking cannabis with a male friend, while in the St Albans area.  Your co-accused made full admissions to the armed robbery.  She stated that the two of you had no money to get a taxi home, so she suggested they rob the United Service Station. 

11She stated that she and the male friend, which is you, had a short conversation about committing the offence after which she handed you the multi tool to use during the offence.  She stated that she did not use the weapon 'Because he's got the balls and I don't' and confirmed that she had held the door open to ensure they could not be locked inside.  She made the statement that the two of you only achieved a $340 result from your armed robbery. 

12The victim of your armed robbery offence, Mr Enjamuri, was given the opportunity to make a victim impact statement, but had declined to do so.

YOUR PERSONAL CIRCUMSTANCES

13I turn to your personal circumstances.  At the time of your offence, you were 23 years old.  You are now 24.  You have experienced a difficult upbringing.  You were raised by your mother until approximately the age of three.  Since that time, you had been in foster care placements and subsequently, times in the Juvenile Justice Centres for your protection.  Your father passed away as a result of a heart attack in 2008.  You have had little to do with your father during his lifetime.  Your parents separated in 2000 or 2001 when you were five or six years old and by that time, already in DHS care.  Both of your parents have been poly drug users or abusers.  Your father was in the cycle of release and prison prior to his death.  You were exposed to abuse by your parents and described your young life as 'pretty shit' to Ms Linda Borg, who was the neuropsychologist who examined you.  Ms Borg’s report is Exhibit 2.

14You had one stable period in your life when you were placed in foster care with Ms Anne Cream, who described herself as your step mother.  That was Exhibit 5.  This foster care placement took place in November 2011.  You have maintained contact with Ms Cream and she was at court on the day of your plea hearing and I think she is here today.  Her reference, that is Exhibit 5, sets out a frank assessment of your upbringing and future chances in life, but vows to stand by you nevertheless.

15After you were 16 years old, you were placed with Ms Deanne Sutton.  In her letter (Exhibit 6 on the plea) she described you as institutionalised and not able to handle either life inside prison or outside in society.  She stated that after your motor vehicle accident in 2015, and your resultant head injury, you have not been the same person. 

16A DHS report dated 1 May 2012 sets out and confirms the following:

a)on 17 October 2005, a guardianship order was made in respect of you;

b)in April 2003, a supervision order was made in respect of yourself;

c)in the period between 1995 and 2002, that is from your birthdate and onwards, thirteen reports of concern were made in respect to your welfare; and

d)after serving time in Melbourne Youth Justice Centre in November 2011, you were then placed with Ms Cream.

17You have a long term alcohol and drug abuse history.  You started with alcohol at the age of 12 to 13 years old.  You also commenced cannabis at that time.  By the age of 16 years, you had commenced using heroin.  You are currently on a methadone program in prison.  By age 17, you commenced using ice.  Since 2017, your ice use had increased to a daily use.  Your parents were drug abusers and you have followed their example.  You have even been hospitalised at Royal Children's Hospital after an overdose on a combination of alcohol and Benzodiazepine.  In 2015, you were involved in a serious transport accident when the car collided with a power pole.  You were a passenger.  You have been assessed by Ms Borg.  She does not diagnose an acquired brain injury as a result of that accident. Of course, you did suffer other significant physical injuries. 

18You have a history of a diagnosis of ADHD and being medicated on Ritalin in 2007.  That is from Exhibit 2.  Ms Borg assessed you for a previous court hearing and prepared a report dated 25 May 2018, some six to seven weeks prior to this offending.  It was Exhibit 2.  After conducting tests on you, she assessed your premorbid intellectual functioning to be within the low average range, with a demonstrated full scale IQ of 67.  Her opinion was expressed as follows:

'In this context, the most prevailing aspect of Mr Cream's presentation and cognitive profile is a significant compromise in the verbal intellectual inabilities — in the absence of verbal memory impairment.  Specifically, he presents with (1) difficulties with comprehension of verbal instruction and limited vocabulary;  (2) impaired acquisition of verbal information (i.e. word meanings and general knowledge; (3) poor educational attainment and paucity of vocational pursuits; as well as (4) a developmental history categorised by early learning and literacy difficulties.

Additionally Mr Cream presented with deficits in high-order attention, processing speed and working memory, as well as a mild degree of executive dysfunction, categorised by impairments to verbal reasoning and complex planning.  In light of these findings and his history, it is considered that Mr Cream presents predominantly with a developmental learning disability — namely, a specific language and reading impairment.  The additional deficits demonstrated in attention and executive functioning also likely reflect ongoing deficiencies associated with childhood ADHD. His profile is not in keeping with an intellectual disability, nor is there evidence to support a possible closed head injury or hypoxic brain injury.’ 

19You have a limited education.  You attended primary school to Year 5 level, when you were expelled due to behavioural issues.  By that time you had repeated Grade 3 and you had repeated Grade 4.  You are functionally illiterate.  Exhibit 4 was a letter to the court which was prepared by a fellow inmate because you cannot read or write.

20Your criminal history is extensive.  You have twelve prior adult court appearances.  Your offending includes dishonesty, violence and drug related offending.  You have been in and out of custody since 2014.  You have been given a CCO with a justice plan in March of 2014 when you had just turned 19 years old.  You did not comply with that order.  Since then you have spent approximately four of the last five years in custody.  You present to this court as a serious risk of being institutionalised at the age of 24.

SENTENCING CONSIDERATIONS

21Sentencing considerations.  The basic purpose for which a court may impose a sentence of just punishment, deterrence both specific and general, rehabilitation, denunciation of your actions and the protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it and your personal circumstances.  I am also required to balance the interest of the community in denouncing your criminal conduct, with the interest of the community seeking to ensure, as far as possible, you as an offender, are rehabilitated and reintegrated into society.

22I am required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly, but not exhaustively, to the kinds of sentences imposed in comparable cases and the statistics for those sentences.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.

23I am also mindful of the provisions of the Sentencing Act, and sentencing in particular, sect. 5(4C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.  I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case.  As you know, I have had you assessed for a community corrections order.  You have been assessed as being suitable.  That is not the end of the matter.

24I have also had you assessed for a Justice Plan by the Department of Health and Human Services.  The report dated 22 August 2019 and prepared by
Ms Joanne O'Brien has assessed you as a suitable candidate for a justice plan.  Ms Cogen, the disability support worker and case worker in your case gave evidence today that she was your designated case worker and would be the person responsible for its implementation, if ordered by the court.  She acknowledged that you had a long term relationship with DHHS.  I note, with concern, that DHHS reports in their report as follows.  'Mr Cream has some difficulty engaging with services when in the community'.

25You have pleaded guilty to this charge.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community.

26Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to this charge, indicates and demonstrates some remorse on your behalf.  I note in your letter to the court, which was Exhibit 4, that you show some understanding of the crime cycle you are in and your desire to exit that cycle through rehabilitation, from drug use.  Your present detention is the longest period of drug abstinence in your adult life.  You continue to receive daily 40 milligrams of methadone whilst in custody.

27The seriousness of your offending is indicated by the following factors. 

(a)  The maximum penalty set down by Parliament is 25 years imprisonment.  (b)  You offended with an accomplice who was 15 years old at the time. 

(c)  You had a multi tool knife weapon at the time of the offending. 

(d)  The victim was alone and a soft target, as they are described, early morning. 

(e) The offending was in the night time. 

(f)  There is only some degree of planning for the offence.

(g) The offending was over within a short period of time.

28Having stated all that, I assess this offence at the lower level for armed robbery offending.  I take account of your extensive criminal history.  You were only at liberty from a previous period of incarceration for a few weeks when you committed this offence.  This of course is indicative of your profile, both criminal and personal, that you are approaching being an institutionalised person. 

29I take into account your deprived and dysfunctional upbringing and abandonment in assessing your moral culpability for this offending.  I accept your upbringing raises the issue that you are not a proper vehicle, through which to show general deterrence and specific deterrence from incarceration is also reduced.  The sentencing considerations of denunciation and protection of the community are best reflected in a period of imprisonment followed by an intensive rehabilitation program under the control of a community corrections order.

30Your counsel submitted a combination of imprisonment and a community corrections order with an attached justice plan referred to in the DHHS report dated 22 August 2019 was the appropriate sentence.  The prosecutor submitted that a term of immediate imprisonment was the only appropriate sentence.  I assess your prospects of rehabilitation as poor.  You are young and have an extensive criminal record.  You have limited positive supports in the community.  You have a long term drug abuse history.  At 19 years old, you failed on your last chance to complete a justice plan.  Nevertheless, your best chance at rehabilitation is to engage in a justice plan and complete it.  If you do that successfully, your chances of rehabilitation generally will improve.  As a result of that, community protection will be enhanced. 

31I note your co-accused was sentenced to probation in the Children's Court jurisdiction on 4 October 2018. The principle of parity of sentence is not offended by a sentence of imprisonment, followed by a CCO and a justice plan to be imposed on you, due to the age differential and the criminal history differential between yourself and your co-accused. Section 44(1) of the Sentencing Act prescribes the limits of a sentence combining a term of imprisonment and community corrections order.  Will you stand please.

32On Charge 1, a charge of armed robbery, you are convicted and sentenced to a term of imprisonment of eighteen months.  Further, upon completion of that sentence of imprisonment, you are ordered to serve a community corrections order for a period of two years.  The conditions are the community corrections order are as follows.  You are to be supervised.  That you are to be judicially monitored which effectively is six weeks after your release from prison and that you comply with the justice plan dated 22 August 2019, which is part of the condition of the CCO.

33I declare that you have served 428 days pre-sentence detention.  Pursuant to s.6AAA, but for your plea of guilty, I would have sentenced you to three and a half years of imprisonment, with a two and a half year non-parole period and the disposal order that was sought is signed.  Is there anything further?

34MR KOUNNAS:  No, Your Honour.

35MS CLARK:  No, Your Honour.

36HIS HONOUR:  Have I got the days right?  Just so there's some certainty about the date of the judicial monitoring, on my calculation, it will occur on 21 February 2020 at 9.30 am.  I will just hand down the community corrections order

Ms Clark. 

37MS CLARK:  Yes, Your Honour.

38HIS HONOUR:  If you could just check with your client that he's prepared to enter it.

39MS CLARK:  He's signed that, Your Honour.

40HIS HONOUR:  Thank you.  I'll sign it and we'll get a couple of copies, one for the prosecution, one for yourself and one for him. 

41MS CLARK:  As Your Honour pleases.

42MR KOUNNAS:  As Your Honour pleases.

43HIS HONOUR:  Mr Cream, the sentencing process has been completed, so you do not have to listen to anything I have got to say.

44OFFENDER:  Yep.

45HIS HONOUR:  But I do want to say this.  Everybody in this room knows you have had a really rough start.  But there comes a time in a person's life when they have got to start making their own decisions and start taking a little bit of control of their own life.  You are at that point, all right?  Now in the past, as I have said in these sentencing remarks, at 19 years old you were given this same chance and you mucked it up.  Do not muck it up this time because the reality is this.  That this is your last chance.  You have got to serve out this justice plan, this community corrections order, get on top of your drug addiction, get on top of the other matters you have got to deal with and stay out of this system.

46I mean the people standing either side of you, they have got plenty to deal with without looking after you.  You are on a spinner at the minute.  You do not need it.  The people who have come to support you here today do not need it.  We do not need it.  So do something for yourself.

47OFFENDER:  Yes.

48HIS HONOUR:  I accept you have had a hard run, we all know that.  You have just got to harden up, get out some time in the New Year, 2020 is your fresh start.  Take the chance.

49OFFENDER:  Yep.

50HIS HONOUR:  Good on you.  You can remove the prisoner.

51MS CLARK:  Thank you, Your Honour.

52HIS HONOUR:  Yes Mr Kounnas and Ms Clark, thank you very much for your assistance.

53MS CLARK:  Thank you, Your Honour.

54HIS HONOUR:  Ms Cotan, thank you very much for your help today.  You were probably surprised when you jumped into the witness box.  I'm sorry about that.  I do that sometimes.  Good luck with him when he gets out.

55MS COTAN:  Thank you.

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