Director of Public Prosecutions v Crees
[2016] VCC 1640
•4 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-16-00177
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEOFFREY LYALL CREES |
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| JUDGE: | HIS HONOUR JUDGE JORDAN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 May and 21 October 2016 |
| DATE OF SENTENCE: | 4 November 2016 |
| CASE MAY BE CITED AS: | DPP v Crees |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1640 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – armed robbery – resist police on duty – possess a drug of dependence – commit indictable offence whilst on bail
Legislation Cited: Sentencing Act 1991, Crimes Act 1958
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
Sentence:Convicted and sentenced to a total effective sentence of 2 years and 6 months’ imprisonment with a non-parole period of one year and 8 months. Section 6AAA declaration: 4 years’ imprisonment with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G Coghlan | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T Hoare | Victoria Legal Aid |
HIS HONOUR:
1You have pleaded guilty to one charge of armed robbery which carries a maximum penalty of 25 years’ imprisonment. You have pleaded guilty to one charge of resist a police officer which carries a maximum penalty of 5 years’ imprisonment. You have also pleaded guilty to one charge of possess a drug of dependence and it also carries a maximum penalty of 5 years’ imprisonment.
2You have agreed to a summary charge being heard and you pleaded guilty to committing an indictable offence whilst on bail and it carries a 3 months’ imprisonment maximum.
3The plea hearing commenced on 16 May 2016 and finalised on 21 October 2016 after receipt of a number of reports I had ordered and further submissions. I will refer to them later.
4The circumstances of your offending are set out in the Plea Opening read in court, exhibit A. In addition, some forensic services photographs add to the evidentiary picture, exhibit B.
5The Opening speaks for itself but briefly, you and your wife of 20 years, on 14 November 2015, committed armed robbery on a bakery at Burnside. Two female shop assistants were the victims of this crime. It involved you producing a tomahawk, 30 centimetres in length, which you held out and pointed at one of the shop assistants as you made your demands for money from the till. The shop assistant retreated and you walked around behind the counter and screamed at the other shop assistant.
6Between $2000 and $2500 was stolen from the till and you fled in a motor vehicle waiting for you outside. The car was traced back to you and the next day, on 15 November 2015, your residence was searched and you were arrested. You were awoken by two police officers and you became aggressive and resisted as police attempted to take you from the bedroom. A search of the bedroom revealed 4 zip lock bags containing heroin with a weight of 5.1 grams.
7I have considered submissions on the issue of quantity and all the evidence. In spite of the fact that scales and some plastic bags were found in your possession, I am satisfied on the lesser standard of proof, namely the balance of probabilities, the drugs were for personal use.
8These offences were committed while you were on bail, having been granted bail on 6 November 2015, to appear on 4 December 2015. This bail was not for other offending but I am told was in a context of not complying with a Community Correction Order given to you on 7 May 2015. I agree with the sensible concession made by the Crown that the armed robbery was mid-level offending and the other offences fit into the minor category.
9In relation to the armed robbery, I do consider it is a serious example of this type of offending in that the victims were soft targets. There was a degree of planning, though unsophisticated, involved in terms of your getaway vehicle and concealment of its numberplates. You came armed with a tomahawk. You produced a tomahawk and pointed it at one of the victims against a background of screaming for the till to be opened. You also got away with an amount of cash.
10A Victim Impact Statement has been provided by the principal victim, exhibit C. It points very clearly to the fear, stress and psychological consequences of your offence. That fortunately did not include any physical injury. Nevertheless that Victim Impact Statement, more eloquently than I could describe, points to particular fears at night, at work and how relationships have been impacted. A requirement for fortnightly psychological treatment is described.
11You must have had some appreciation as to the likely consequences of your actions as you, to your credit, seemed to indicate some remorse to the police for what had happened due to your victims being females.
12You have an extensive criminal record. It extends over about 20 years in spite of the fact that you are now only aged 38. Problems with heroin have clearly gone back over a number of years and have played a part in your offending which has involved a number of driving offences, shop thefts, as well as possession of heroin and other substances, to name some of your offences.
13Also you have failed to comply with a number of court orders. It is fair to say that there is nothing of the nature of armed robbery in your history. Your attendances have been in the Magistrates’ Court and this is the first time you have been before a higher court.
14I turn now to matters personal to you. You have four children. Clearly, you and your wife have had enough personal and offending difficulties involving drug usage that has led to DHS taking care of your children.
15You have had employment from time to time but it has been impacted on repeatedly by your drug addiction and its effects.
16You have been in custody since 15 November 2015 so it is now almost 12 months. You appear to have benefitted from being in custody in terms of methadone treatment having a beneficial effect in terms of your heroin addiction.
17An Outline of Defence Plea Submissions sets out a number of matters with respect to your background, exhibit 1. A report from David Ball, forensic psychologist, dated 26 of April 2016 also sets out a number of your personal circumstances that do not need repetition, exhibit 2. A report from Dr Heather Dowd of 9 May 2015 speaks of your heroin problems over many years and some of the treatments you have had in the past for that problem, exhibit 3. A reference from your aunt was also tendered, exhibit 4.
18After hearing submissions about your serious mental health problems, I made orders pursuant to s80 of the Sentencing Act 1991. A Statement of Intellectual Disability dated 23 August 2015, a Client Overview Report dated 27 September 2016, and a Justice Plan dated 27 September 2016 were received, exhibit D.
19A Community Correction Order assessment was organised and took place on the further hearing date of 21 October 2015. An Assessment Outcome Report was received, exhibit E. You were assessed as unsuitable for a Community Correction Order for a number of important reasons. These included that you have had the opportunity of seven previous community-based dispositions and have contravened the five most recent of those seven. You have breached orders by both further offending as well as non-compliance. The report also indicated some lack of realisation on your part of the severity of such orders.
20For those reasons I reject the submission of defence counsel at the first plea hearing that a term of imprisonment, together with a Community Correction Order and Justice Plan was an appropriate disposition. At the further plea hearing your counsel responsibly did not make any further submissions urging a Community Correction Order approach to your sentence in view of the Assessment Outcome Report. I have considered the matters s5(4C) of the Sentencing Act 1991 requires.
21On this further plea hearing, the submission was that a term of imprisonment with a non-parole period was the appropriate disposition and the term of imprisonment suggested was in effect time served already. Defence counsel submitted that an aggregate approach to sentencing was appropriate and this was raised both at the first plea hearing and on the further occasion. The prosecution wished to seek instructions at the first plea hearing whether an aggregate approach to sentencing was appropriate in your case. At the further hearing the Crown submitted in the circumstances it was a sentencing option that was open to the Court in this case should I wish to sentence in that manner.
22I have indicated in plain language that I had proposed imposing an aggregate sentence of imprisonment and had announced that in open court. The reasons are there is a series of offences of the same or similar character when all the evidence is looked at in the course of your offending on 14 and 15 November 2015 against the background of feeding your drug addiction.
23Your counsel pointed to a number of matters you are entitled to have taken into account in mitigation. Your plea of guilty was given at the earliest stage and is consistent with genuine remorse. You have also saved the witnesses the ordeal of giving evidence and you have saved the community the time and expense of a trial.
24Verdins’ principles are enlivened in your case in a number of respects. The documents in exhibit D show your proven intellectual disability from childhood. You have had an organic mental disability that unfortunately has seen you with a full scale IQ of 64. You fit into the mildly retarded category. Your full scale IQ falls at the one percentile, meaning that 99 per cent of the population would perform better on testing than you.
25While there is some equivocation in Dr Ball’s report complicated by the fact that you have some personality disorders and drug dependency that also disable you, I am satisfied that your organic mental impairment of itself has a causal connection with your offending.
26I am satisfied that it has an impact on the sentencing exercise in a number of ways. You are not as suitable an example by way of general deterrence as others might be. I am also satisfied that it will make your prison time more arduous. I am satisfied that it is relevant to a limited extent to lessen your moral culpability but against that what you stated to the police about the impact on the female victim, indicated you still had a certain awareness in that regard. However, at the same time that statement to police does assist you in indicating remorse.
27Other matters have been set out by defence counsel as described in exhibits 1 to 4 and they point to your difficult personal circumstances over the years. Your prison time is harder than for others. Your hardship is added to in view of the fact that your wife is yet to face trial for the same robbery and is unable to have contact with you as part of her bail conditions.
28You are also without your children. The lockdown procedures in relation to prisoners is presently on remand since last year’s riots have also added to the hardship of your time in custody. You have some family support, with several members attending Court on your behalf at each plea hearing.
29I assess your prospects of rehabilitation are not without hope but they are certainly guarded. They are dependent largely on the success or otherwise of the treatment directed towards your longstanding heroin addiction.
30As well as those matters personal to you to which I have referred, I must take into account other relevant sentencing considerations. General and specific deterrence must be given weight in the sentence imposed. The community cannot and will not tolerate offending which so seriously comprises a citizen’s right to feel safe in their own workplaces and which can have devastating physical and emotional consequences for the victims of such crime.
31The message must be clear and consistent that appropriate punishment will result in the circumstances of your offending. Your sentence must manifest the community’s denunciation of your conduct and impose just punishment. I must seek to protect the community from any repetition of this type of offending and must seek to deter you and others from such offending. This is without doubt serious offending in relation to the armed robbery charge for the reasons outlined.
32You are convicted and sentenced by way of an aggregate sentence on these offences including the summary offence, to an immediate term of imprisonment of two (2) years and six (6) months. I direct that you serve one (1) year and eight (8) months’ imprisonment before being eligible for parole.
33I declare 355 days pre-sentence detention pursuant to s18 of the Act to be reckoned as served.
34Pursuant to s6AAA of the Act, I declare that but for your pleas of guilty I would have imposed an aggregate sentence of four years’ imprisonment with a non- parole period of two years and eight months.
35I will make the ancillary Orders that have been sought and that are not opposed.
36Could you take Mr Crees, thank you.
37MR HOARE: Just before Your Honour goes ‑ ‑ ‑
38MS COGHLAN: Your Honour, I just raise one matter ‑ ‑ ‑
39HIS HONOUR: Yes, just take a seat, Mr Crees.
40MS COGHLAN: It’s unlikely to effect, in my submission, Your Honour’s sentence. It’s just that the maximum penalty for Charge 3 on the Indictment which is possess drug of dependence, given Your Honour’s finding in relation to that that it was not for the purpose of trafficking it changes the maximum penalty to one year.
41HIS HONOUR: All right, well thank you. Well, I will alter my sentencing remarks to reflect that you have also pleaded guilty to one charge of possess a drug of dependence and in view of what I have accepted in terms of the quantity, it carries a one year – it carries a one-year imprisonment.
42MS COGHLAN: Thank you, Your Honour, and it appears as though it was accepted by Your Honour that it was not a serious example of that in any event so it can be reflected in the total effective sentence.
43HIS HONOUR: All right, thank you very much for that.
44MS COGHLAN: Thank you, Your Honour.
45MR HOARE: Now, Your Honour, I was going to ask for leave to briefly speak to Mr Crees before - sorry, after Your Honour’s left the Bench because I have to be across ‑ ‑ ‑
46HIS HONOUR: Yes, is there any problem with that?
47MS COGHLAN: No, Your Honour.
48MR HOARE: And I’ve asked through your Tipstaff who - if it’s okay with the prison officer. The only reason is I’ve got to be somewhere else at ten o’clock.
49HIS HONOUR: Yes, Mr Prison Officer, is there any problem with that?
50PRISON OFFICER: No, sir, there’s no problem.
51HIS HONOUR: All right.
52MR HOARE: Thank you, Your Honour.
53HIS HONOUR: All right well I’ll certainly allow that and well, you just stay there for the moment then, Mr Crees. So you will send those ancillary Orders through to me for signature?
54MS COGHLAN: Yes, Your Honour.
55HIS HONOUR: All right, thank you. Is there anything else?
56MS COGHLAN: No, Your Honour.
57MR HOARE: No, Your Honour.
58HIS HONOUR: And thank you for your assistance to counsel.
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