Director of Public Prosecutions v Creek
[2023] VCC 1025
•16 June 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR-23-00407
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KYE CREEK |
---
JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 May & 16 June 2023 | |
DATE OF SENTENCE: | 16 June 2023 | |
CASE MAY BE CITED AS: | DPP v Creek | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1025 | |
REASONS FOR SENTENCE
---
Subject:Plea - sentencing
Catchwords: Armed robbery – commit indictable offence whilst on bail
Legislation Cited:
Cases Cited:
Sentence:12 months' imprisonment, 18-month CCO
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z. Menon | Office of Public Prosecutions |
| For the Accused | Ms A. Hancock | James Dowsley & Associates |
HIS HONOUR:
1 Kye Creek, you have pleaded guilty to an offence of armed robbery, for which the maximum penalty is imprisonment for 25 years, and you have asked me to take into account and have pleaded guilty to a related summary offence of committing an indictable offence whilst on bail, for which the maximum penalty is imprisonment for three months.
2 You have admitted a criminal history which commences with an appearance at the Ringwood Children's Court in April 2017 when you were aged 13. There followed a number of appearances in various Children's Courts for a variety of offences, including armed robbery, offences of violence and use of weapons.
3 The prosecution has tendered and led to the court a summary of prosecution opening which describes how, on 15 December 2022 at about 8.30 pm you approached a male stranger on a road in Boronia in Victoria, threatened him, produced a box-cutter and demanded his property. He provided you initially with his wallet and phone. You checked the wallet for cash and handed the wallet and the phone back to him. You then kicked and punched him to the head, asking him repeatedly, 'Where are the drugs? Where are the drugs?' He described begging for his life, feeling dizzy and having sore teeth.
4 You took his backpack which contained a flask, a wallet, identification cards and other personal items. Those are the items the subject of the armed robbery charge. You then left the scene with his property, saying, 'Don't try and follow me or I'll kill you'. The victim went to the police station and reported the matter. You were arrested at your home on 21 December 2022, where you were found hiding under the bed. Police seized the backpack that you had stolen and its contents.
5 At the time you were on three separate orders of bail, including conditions to attend the Ringwood Children's Court and the Ringwood Magistrates' Court on 25 January 2023. That supports the related summary offence of committing an indictable offence whilst on bail.
6 You were interviewed by police following your arrest, and you gave a “no comment” interview.
7 It is accepted by the prosecution that you resolved this case at the earliest reasonable opportunity. There is no victim impact statement.
8 Your counsel provided me with a written outline of submissions dated 8 May 2023 (Exhibit 1), together with a report from psychologist Christine Harding (Exhibit 2) and a report from psychologist Laura Fleming (Exhibit 3).
9 Those reports and the information provided in the written submissions of your counsel show that you had a seriously deprived and chaotic childhood, and that you were exposed to violence and substance abuse. Child protection services became involved on occasions, and there were some real concerns about you being the victim of abuse.
10 It is urged on your behalf that I should apply the sentencing matters of the Bugmy principles. I do so at least in the general sense that a person with your sort of background is liable to engage in antisocial and criminal behaviour, and that can mitigate the sentence. In this case I regard it as a significant mitigatory factor.
11 In addition, the reports of the psychologists identify various symptoms which suggest the existence of mental impairments which include antisocial personality and borderline personality disorders.
12 Since the age of 12 you have been abusing drugs of various kinds, starting with cannabis and progressing to methylamphetamine, GHB, and cocaine. Since the age of 14 you have been abusing Xanax, a benzodiazepine.
13 You have been the subject of various orders which have brought you into contact with Youth Justice, and one of the principle submissions of your counsel was that I should seek a pre-sentence report and that I should impose a Youth Justice Centre order for this offending conduct. Such a report was obtained. It did not support the submission that I should impose a Youth Justice Centre order; indeed, you were assessed as being unsuitable for detention in the Youth Justice Centre.
14 I will not go into all the reasons put forward for that, but it can be observed by looking at your criminal history that you have had a good deal of exposure to Youth Justice over the years with limited success, and it seems to me that it would be an unusual course for a judge in those circumstances to impose a Youth Justice Centre order against the recommendation of those who specialise in assessing these things, and those who are a part of the organisation which is responsible for your care, welfare, and rehabilitation under such an order.
15 The alternative submission of your counsel was that I should impose a combined sentence, that is, a sentence of imprisonment with a community correction order. Pursuant to that submission, today I have obtained a community correction order assessment report which has found you suitable for a community correction order. A report from Forensicare had already been obtained just a couple of days ago in connection with an appearance at the Magistrates' Court which supported the conclusion that you were suitable for a community correction order with a condition that you be subject to treatment for mental health.
16 You have pleaded guilty. That is very much to your credit, particularly in these times where the COVID pandemic is still in existence and, to some extent, continues to result in delays and backlogs in the justice system and also imposes more restrictive conditions on persons in custody, either on remand or serving sentence.
17 Your counsel drew my attention to the fact that you are a young offender and that rehabilitation is a primary and significant consideration in sentence. I accept that submission wholeheartedly. It seems to me that I should reduce the sentence that I would otherwise have imposed for the offences to which you have pleaded guilty by a significant degree in light of your youth and the need to promote your rehabilitation.
18 I do not, at this stage, regard your prospects of rehabilitation as being anything better than guarded. Whilst there may be some bright signs on the horizon arising from you not having been in custody for the last two years up to this offending, you were on bail for other matters at the time that you offended, and you have a very substantial and significant record of court appearances which are relevant to the sentencing exercise.
19 I must take those into account in assessing the need for protection of the public, which has to be balanced against the primary need of promoting your rehabilitation. Offences of this kind are serious, and the courts must denounce such conduct adequately and impose sentences that give proper regard to general deterrence, although that again is significantly modified, given your youth.
20 You are 19 years of age now. There is, I think, a real risk of you becoming institutionalised unless your rehabilitation can be promoted under a structured community correction order. Whilst it will not necessarily be easy for you to negotiate a community correction order, the order will be substantially a rehabilitative order designed to help you stay out of trouble and deal with your drug and alcohol problems and mental health issues, but I make clear to you that you will be at risk of a further period of incarceration if you breach the terms of the order during its currency.
21 You have now been in adult custody on remand for - it is 177 days, is that right?
22 MR MENON: Yes.
23 HIS HONOUR: Yes. Whilst I do not regard that as long enough to punish you adequately for this offending conduct or to meet the other sentencing considerations to which I have referred, in my view it is necessary to reduce what might otherwise have been a custodial sentence to one which enables me to impose a sentence which includes a community correction order.
24 Taking all those factors into account, on the charge of armed robbery on the indictment you are convicted and sentenced to imprisonment for a period of
12 months.
25 On the related summary offence of committing an indictable offence whilst on bail, you are convicted and sentenced to imprisonment for a period of one month.
26 I order that the one month’s imprisonment imposed on the related summary offence be served concurrently with the period of 12 months' imprisonment imposed on the indictment charge, making a total effective sentence of imprisonment for 12 months.
27 I declare 177 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and deducted accordingly, and I order that those facts be noted in the records of the court.
28 In addition, subject to your consent, I will order that you be the subject of a community correction order, which would be for a period of 18 months, for the offence of armed robbery.
29 I am going to read the terms of that order to you so that you can understand what you will be asked to consent to.
30 The first non-mandatory term of the order is that you will be required to perform 150 hours of unpaid community work over a period of 18 months as directed by the regional manager, and I will order that 75 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition - if you fail to comply with that term of the order, the Secretary of the Department of Justice or his or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.
31 I have considered the submission of your counsel and I have considered the balance between the period of imprisonment that I have imposed and the need for further punitive orders in the community correction order, and it seems to me that the balance that I have struck is a just one. Provided that you engage with the treatment and rehabilitation which I am about to outline to you, you will not be required to do more than the balance of 75 hours if you complete 75 hours of treatment and rehabilitation.
32 The further non-mandatory terms of the order will be that:
· you will be subject to supervision by a community corrections officer;
· you must undergo assessment and treatment (including testing) for drug abuse or dependency as directed by the regional manager;
· you must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the regional manager;
· you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the regional manager;
· you must participate in programs and/or courses that address factors relating to your offending as directed by the regional manager; and
· you must be subject to judicial monitoring, which will require you to appear before this court for a review of your compliance with the order – and you must attend for your first review on 21 March 2024 at 9.30am at this court.
33 The order that you are going to be asked to consent to has some mandatory terms which apply to all community correction orders, and they are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force - if you do, then you will be in breach of the order, and if you breach the order for any other reason also you could be brought back to this court and you could be re-sentenced for the original offence, which would almost certainly mean a further period of imprisonment;
· you must comply with any obligational requirements prescribed by Regulation 17 of the Sentencing Regulations, which are concerned with you not turning up to supervision appointments drunk or drug affected, that kind of thing;
· you must report to and receive visits from the Secretary of the Department of Justice or his or her delegate;
· you must report to the community corrections centre at 60-62 Maroondah Highway, Ringwood, within two clear working days of the order starting and that will be upon your release from your present term of imprisonment;
· you must let a community corrections officer know within two clear working days of you changing your address or job;
· you must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his or her delegate; and
· you must obey all lawful instructions from and directions of the Secretary or his or her delegate.
34 First of all, do you understand the terms of the order?
35 OFFENDER: Yes, I do.
36 HIS HONOUR: Ms Hancock, do you wish to discuss those terms with him?
37 MS HANCOCK: No, Your Honour. I'm content that - I did discuss it briefly with him just prior to Your Honour coming onto the Bench and I'm content that he understands, based both on my discussion with him but also Your Honour going through the conditions in detail.
38 HIS HONOUR: Thank you. Are you willing to comply with the terms of the order and to be the subject of this order?
39 OFFENDER: Yes. Yes, I do. I consent.
40 HIS HONOUR: Thank you. I will take your indication as consent and will not require a signature from you on the order. I shall sign the order and that will bring the order into effect.
41 I make the - is it a disposal order?
42 MR MENON: Yes, Your Honour.
43 HIS HONOUR: A disposal order in accordance with the draft.
44 But for your pleas of guilty I would have sentenced you to imprisonment for a period of three years with a non-parole period of two years.
45 Are there any other orders I need to make, counsel?
46 MS HANCOCK: No, Your Honour.
47 MR MENON: Nothing further from the prosecution.
48 HIS HONOUR: Thank you both.
49 Mr Creek, I sympathise with your early life. I think that now you are entering adulthood and maturing, there may be signs that you have come to the realisation that you need to get a grip on your life, otherwise it's going to be miserable.
50 OFFENDER: Yes.
51 HIS HONOUR: I recognise that you have lacked role models, particularly good male role models, in your life, and you are going to have to work out ways in which you can turn all of that around. You can understand why it is necessary to punish you for the offending, but do look upon this community correction order as an opportunity. It is an opportunity for you to accept the discipline of the order as a way to discipline yourself and take advantage of the therapeutic courses and treatments that may be offered to you.
52 I don't want to see you committing further offences. I don't want to have to give you further time for breaching the order. I want to see you get through this order. It is entirely up to you, and I hope you embrace the order as an opportunity as well as further punishment.
53 MS HANCOCK: Thank you, Your Honour.
- - -
0
0
0