Director of Public Prosecutions v Crosswell
[2014] VCC 1593
•2 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BENJAMIN CROSSWELL |
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JUDGE: | His Honour Judge Montgomery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 2 May 2014 | |
CASE MAY BE CITED AS: | DPP v Crosswell | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1593 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Roper | |
| For the Accused | Mr R. Lawrence |
HIS HONOUR:
1 Benjamin Crosswell, you have pleaded guilty to one charge of armed robbery and one charge of robbery. The details of your offending are set out in the summary of the prosecution opening which is Exhibit 1 on the plea. I attach that exhibit to the file. I do not intend to recite the facts.
2 The prosecution summary is accepted by the defence as the factual basis upon which I should sentence. Any reader of these reasons can refer to the exhibit to place the sentence in its factual context.
3 For the benefit of the school students in court, the case is about an armed robbery that occurred in Brunswick Street, Fitzroy, at 11.40 p.m. in which the accused man and two others approached a number of people near Victoria Parade and then with threats about: “I’ve got a fucking gun. I’ll fucking shoot you if you don’t give me your shit.” And the prisoner’s hand here was concealed under his hooded windcheater pointing at all.
4 There was then a wrestle and thereafter the armed robbery took place. So it is a street armed robbery late at night in Brunswick Street, Fitzroy. I have dealt with the other two offenders, quite a long time ago. They were all affected by or had been using drugs of one sort or another.
5 This accused is being dealt with now because although the incident occurred in 2010, over four years ago, Mr Crosswell escaped, after pleading or resolving the matter, to Tasmania for over two years and has only recently been found there and has been brought back.
6 Mr Crosswell, this was a particularly serious incident of armed robbery and robbery on the street on soft targets. An aggravating feature of it was that the co-accused, Franklin, produced a knife and put it to the throat of the victim, Chelsea Zwirs so that it was almost touching her.
7 An issue of parity arises - that is, the two co-accused whom I have already sentenced - as to what sentences they got and what I should impose on you. Mr Franklin had an additional charge of armed robbery arising out of that and Ms Jordan Spencer was 19. I put her into Youth Justice Centre for 12 months and I sentenced Mr Franklin to a sentence of 27 months with a non-parole period of 14 months.
8 Apart from the fact that he had an armed robbery, an extra armed robbery, in my view there is no reason to differentiate between the two of you in respect of the armed robbery and robbery charges you have in common.
9 Two victim impact statements were tendered and I have read those and considered their contents. Mr Franklin, when one adds up the head sentence for the armed robbery and robbery that you face received a head sentence of 15 months.
10 Section 9(1) of the Sentencing Act, in my view, enables me to impose an aggregate sentence; that is, to impose a total sentence in relation to the two offences because they arise out of the same facts or circumstances.
11 On your behalf, your counsel submitted that I should take into account your early plea as it is an acceptance of responsibility by you for your offending and also save the court the time and expense of running a jury trial. I accept that and you have been given the appropriate discount for that.
12 A number of reports were submitted to me in addition to your counsel’s outline of submissions on plea and chronology. Those submissions and reports set out your background.
13 You are now 25. At the time of the offence you were 21. It set out your personal background at home. You left home at 13, being brought up by your mother. Your father had left and was not a particularly good father anyway.
14 You have a relatively good work history and, indeed, in essence have been working on fishing boats since leaving primary school.
15 You were exempted from attending high school which in 2001 was something you could do in Tasmania. I am not sure if you can still do it.
16 A report was tendered from Mr Jeffrey Cummins, a well-known forensic psychologist, dated 28 April 2014. It sets out the background of your life and the difficulty, in fact, that Mr Cummins had in seeing you the first time.
17 He went out and you were not in a fit mental state to be interviewed because you were the victim of bullying and intimidation from other prisoners and, indeed, that, I am told by your counsel, has continued; although in the last week or so you have moved to a different part of the MRC where things are better.
18 Mr Cummins set out your alcohol and drug history which involves binge drinking from 14 to 15 to around 21, beginning to smoke cannabis at 14 and moving onto crystal methyl amphetamine and other drugs.
19 The focus of assistance from YSAS and SHARC from whom also I have reports, YSAS in 2010 and SHARC in 2010, was that the focus of the drug assistance was on alcohol, cannabis and crystal methyl amphetamine.
20 You have had one relationship but that has finished.
21 You said in relation to the charges to Mr Cummins: “At the time I was using Ice, often daily. I was a bit drunk.” You expressed remorse to him. He said that you, whilst being interviewed, presented as being severely depressed. He said it was his opinion you are unlikely to have any personality disorder but you did present as a traumatised person. You are of normal although below average intelligence.
22 He said in his opinion your prospects for long-term rehabilitation are guardedly favourable and in his opinion the risk of you committing further offences is very much linked to whether or not you are able to remain drug free and that is often the case with people charged in this court.
23 A drug screen has been tendered to me showing you were negative for drugs whilst in custody in April of this year. You have been doing a program in gaol and you have written a letter to me expressing your remorse and shame at what you did to the victims in the case.
24 Your counsel outlined the treatment you have had from other prisoners and submitted that your time in gaol will be a greater hardship to you than other people because of that.
25 He submitted that you have prospects of rehabilitation because you expressed a desire to go back to fishing and that jobs are available to you in Victoria.
26 It was put to me that you have refrained from using drugs whilst you were an escapee in Tasmania. There is no evidence about that apart from those instructions and I am not convinced or unconvinced of it. I just do not have any evidence upon which I could form a conclusion. Instructions are not good enough.
Sentencing considerations
27 I take into account general deterrence. That is, I have to impose a sentence to send a message to others in the community that you should not be doing this.
Specific deterrence
28 For this, I have to impose a sentence that should impress on your mind you should not do it again and I have to express what is called the court’s denunciation of the crime. That is my opinion of it. Well, it was appalling. How would you like to be walking down the street with some friends and a group of other people with hoods and a knife rob you in threatening circumstances?
29 PRISONER: I wouldn’t like it, Your Honour.
30 HIS HONOUR: You certainly would not like it; no one would. But that is what these victims were confronted with. The fact that you had been using drugs is no excuse at all. That is a pathetic reason.
31 I also have to take into account your prospects of rehabilitation. As Mr Cummins says, it really depends on whether you remain drug free. I suggest you go back to work as a fisherman and put all this behind you when you get out of gaol.
32 I have taken into account your personal circumstances and the fact that you have had some difficulties whilst in goal and it will make it harder for you.
33 I have taken into account, as I have said, your plea of guilty in the terms that I have indicated, and I have considered all the submissions made by both the prosecutor and defence counsel and have considered s.5(1) and (2) of the Sentencing Act.
34 In all those circumstances, doing the best I can weighing up the competing sentencing considerations, I sentence you to an aggregate sentence of 15 months’ imprisonment and order that you serve a non-parole period of nine months.
35 I very much bear in mind the parity issue with Mr Franklin who got 27 months with a non-parole period of 14 months with an extra armed robbery charge.
36 I declare the 74 days you have already served be determined to be part of the sentence I have just imposed under s.18(1) of the Sentencing Act.
37 Pursuant to s.6AAA of the Sentencing Act – I had better look and see what I said last time – I am not sure I did one.
38 MR LAWRENCE: Paragraph 78, Your Honour.
39 Seventy-eight. But for your plea of guilty, it is always difficult to know what would occur after running a trial but if you had not pleaded guilty you would at least have been serving a sentence of 30 months with a non-parole period of 24 months.
40 I have made an order for under 464ZF and disposal orders. Are there any other matters I need to attend, gentlemen?
41 MR LAWRENCE: No, Your Honour.
42 MR ROPER: No, Your Honour.
43 HIS HONOUR: All right, you can remove Mr Crosswell, thank you.
44 PRISONER: Thanks, Your Honour.
45 PRISONER REMOVED
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